Shifflett v. Com.

• Decision Date: 15 April 1997
• Docket Number: No. 2258-95-2,2258-95-2
• Citation: 24 Va.App. 538,484 S.E.2d 134
• Parties: Vernon Leroy SHIFFLETT v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 134

484 S.E.2d 134

24 Va.App. 538

Vernon Leroy SHIFFLETT v. COMMONWEALTH of Virginia.

Record No. 2258-95-2.

Court of Appeals of Virginia Richmond.

April 15, 1997.

Rehearing En Banc Granted May 20, 1997.

Scott Goodman, Charlottesville, for appellant.

Richard B. Smith, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: BENTON, ANNUNZIATA and OVERTON, JJ.

ANNUNZIATA, Judge.

Following a jury trial, appellant, Vernon Leroy Shifflett, was convicted of driving after having been adjudicated an habitual offender and after having been twice convicted of the same offense. Appellant was sentenced to three years imprisonment. On appeal, he contends the trial court erred in preventing him from eliciting testimony at the sentencing phase of his trial concerning the impact of his incarceration upon his family and his employment. He further contends the trial court erred in limiting the scope of his closing argument at the sentencing phase. Finding no error, we affirm.

I.

Appellant was adjudicated an habitual offender in 1990 and convicted in both 1992 and 1993 of driving after having been so adjudicated. In January 1995, Virginia State Trooper Bob Davis saw appellant standing alone and fueling a pickup truck. Davis recognized appellant as an habitual offender he had arrested previously for driving the same vehicle. Davis drove toward appellant's home, pulled off the road, and waited. Appellant drove by Davis with Kim Roach in the passenger seat; Davis stopped appellant and arrested him.

During the guilt phase of his trial, appellant testified that he was employed as a painter. He further testified that he lived with Kim Roach and their two children, ages eleven and four. The jury found appellant guilty.

Prior to the sentencing phase, appellant's counsel stated his intent to introduce mitigating evidence concerning appellant's employment and family responsibilities. Specifically, counsel stated his intent to elicit testimony from Kim Roach concerning the income that appellant brought to the family and the effect his incarceration would have on the family. The trial court refused to allow such testimony on the ground that it was not relevant to punishment. During the sentencing phase, the court precluded appellant's counsel from eliciting testimony from appellant's employer on the same ground. The employer would have testified that appellant earned nine dollars per hour, did excellent work, and that the employer needed to keep him in his employ.

In his argument at sentencing, appellant's counsel urged consideration of the fact that, instead of hiding in the bushes waiting to catch appellant, "[i]t would have been just as easy" for Davis to have approached appellant and warned him not to drive. The court sustained the Commonwealth's objection to the argument on the ground that it was not relevant to punishment.

II.

Code § 19.2-295.1, detailing the sentencing proceeding in bifurcated felony jury trials, provides, in part:

In cases of trial by jury, upon a finding that the defendant is guilty of a felony, a separate proceeding limited to the ascertainment of punishment shall be held as soon as practicable before the same jury.... After the Commonwealth has introduced ... evidence of prior convictions, or if no such evidence is introduced, the defendant may introduce relevant, admissible evidence related to punishment.

We must determine whether the evidence appellant sought to introduce falls within the scope of "relevant ... evidence related to punishment" for consideration by the jury under Code § 19.2-295.1. We review the trial court's decision for abuse of discretion. See Coppola v. Commonwealth, 220 Va. 243, 253, 257 S.E.2d 797, 804 (1979), cert. denied, 444 U.S. 1103, 100 S.Ct. 1069, 62 L.Ed.2d 788 (1980) ("discretion is vested in the trial court to determine, subject to the rules of evidence governing admissibility, the evidence which may be adduced in mitigation of the offense").

Although this is an issue of first impression, we base our decision on well accepted principles found in two sources. First, pursuant to the principles of statutory construction, we analogize the sentencing provisions of Code § 19.2-295.1 to the statutory provisions applicable to the sentencing phase of bifurcated capital murder trials. See Gilliam v. Commonwealth, 21 Va.App. 519, 522-23, 465 S.E.2d 592, 594 (1996); Bunn v. Commonwealth, 21 Va.App. 593, 598, 466 S.E.2d 744, 746 (1996). Second, we look to the "declared purposes of punishment for criminal conduct," including " 'deterrence (general and specific), incapacitation, retribution and rehabilitation.' " Gilliam, 21 Va.App. at 524, 465 S.E.2d at 594 (quoting United States v. Morris, 837 F.Supp. 726, 729 (E.D.Va.1993)). ¹

In reference to the statutory provisions applicable to the sentencing phase of bifurcated capital murder trials, we note that under Code § 19.2-264.4, "[t]he jury has the duty to consider all the evidence relevant to sentencing, both favorable and unfavorable" before making its determination. E.g., Stamper v. Commonwealth, 220 Va. 260, 275-76, 257 S.E.2d 808, 819 (1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980). Evidence considered relevant to jury sentencing and in mitigation of punishment in capital murder sentencing is specifically addressed in Code § 19.2-264.4(B). ² Although the list of mitigating factors is not exclusive, the enumerated factors share a common denominator: they all address either the defendant's history or background or the circumstances surrounding the crime. See Coppola, 220 Va. at 253, 257 S.E.2d at 804 ("The kind of evidence therein contemplated bears upon the record of the defendant and the atrociousness of his crime."). Accordingly, under the statutory scheme, mitigating evidence is that which shows "extenuating circumstances tending to explain, but not excuse, [the] commission of the crime." Correll v. Commonwealth, 232 Va. 454, 468, 352 S.E.2d 352, 360, cert. denied, 482 U.S. 931, 107 S.Ct. 3219, 96 L.Ed.2d 705 (1987) (quoting Coppola, 220 Va. at 253, 257 S.E.2d at 797). See also Burket v. Commonwealth, 248 Va. 596, 616, 450 S.E.2d 124, 135 (1994), cert. denied, 514 U.S. 1053, 115 S.Ct. 1433, 131 L.Ed.2d 314 (1995); Murphy v. Commonwealth, 246 Va. 136, 142, 431 S.E.2d 48, 52, cert. denied, 510 U.S. 928, 114 S.Ct. 336, 126 L.Ed.2d 281 (1993).

Guided by these principles, we find no abuse of discretion on the part of the trial court in the present case. Appellant sought to elicit testimony from his girlfriend and employer concerning the financial impact his incarceration would have on his family and employer. Unlike the fact that appellant resided with his family and that he was employed, evidence of which was admitted during the guilt phase of his trial, the testimony in question did not relate to appellant's history or background or to the circumstances surrounding the crime. That testimony was, therefore, not relevant evidence related to punishment for consideration by the jury under Virginia law. See Code § 19.2-264.4; Coppola, 220 Va. at 253-54, 257 S.E.2d at 804 (Effect of incarceration upon relatives not mitigating circumstance "analogous to any of the evidence specifically approved in the statute."). In short, the proffered evidence concerning the impact of appellant's incarceration upon his family and employer did not tend to explain the commission of the crime.

Furthermore, in the context of the jury's role in sentencing, we find no support for the admission of the evidence in question under the declared purposes of punishment for criminal conduct. Those purposes relate to (1) the defendant (specific deterrence, incapacitation and rehabilitation); (2) the victim (retribution); or (3) the public at large (general deterrence). We find that, given the facts of this case, none of these purposes would be served by the evidence appellant sought to elicit. ³

III.

Determining the appropriateness of a closing argument is a matter committed to the discretion of the trial court. Griffin v. Commonwealth, 22 Va.App. 622, 624, 472 S.E.2d 285, 287 (1996). We find no abuse of discretion in the trial court's refusal to permit appellant's counsel to argue to the jury that, instead of waiting for appellant to drive the vehicle, it would have been "just as easy" for Trooper Davis to have warned appellant not to drive. Based on the principles discussed in the preceding section, we find such argument is not relevant to the determination of an appropriate sentence.

The appellant's conviction and sentence are accordingly affirmed.

Affirmed.

BENTON, Judge, dissenting.

Because I believe the trial judge erred in excluding from the jury's consideration mitigating evidence relevant to sentencing, I dissent.

I.

During the jury trial, Trooper Bob Davis testified for the Commonwealth that he passed a service station and saw Shifflett pumping gas into Norma Roach's truck. Trooper Davis recognized Shifflett as an habitual offender whom he had arrested a year earlier. Trooper Davis waited at a place that he knew Shifflett would have to pass to get home. When Shifflett drove by, Trooper Davis signalled for Shifflett to stop.

In Shifflett's defense, a friend and co-worker testified that he drove Shifflett to work on the date of the offense and was to drive Shifflett home that evening. However, when the friend learned in the middle of the day that he had to work late, he told Shifflett to find another ride home.

Shifflett testified that he contacted Norma Kim Roach, the woman with whom he lives and who is the mother of his children, and asked her to come for him. However, Roach said that she did not feel well. Shifflett told Roach that if she was not at his place of employment at the end of his work shift he would attempt to find a ride with someone or walk if necessary. He worked in Charlottesville but lived in Earlysville.

When Shifflett left work, Roach...