PRESENT: All the Justices 

JOSEPH BOOKER 

v. Record No. 071626 OPINION BY 

JUSTICE BARBARA MILANO KEENAN 

 June 6, 2008 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 In this appeal, we consider whether the Court of Appeals 

erred in affirming a judgment in a criminal case in which the 

circuit court, in response to a question posed by the jury 

during deliberations in the sentencing phase, instructed the 

jury that the court had the power to reduce but not to increase 

the sentence imposed by the jury. 

 Joseph Booker was tried by a jury in the Circuit Court of 

Amelia County on indictments charging three counts of cocaine 

distribution, in violation of Code § 18.2-248. The jury 

convicted Booker of all three charges. 

 During the sentencing phase of Booker’s trial, the circuit 

court instructed the jury that “[i]n Virginia, which now has no 

parole, the defendant will serve at least 85 percent of any time 

that is ultimately imposed by the [c]ourt.” In addition, the 

jury was informed that it must impose a sentence of between five 

and 40 years’ imprisonment for each charge. 

 After the case was submitted to the jury for sentencing 

deliberations, the jury asked the following question, “Can the 
[j]udge alter the sentence[?]” The circuit court informed the 

parties that it was inclined to tell the jury that the court 

could reduce but could not increase the sentence fixed by the 

jury. Booker objected to this proposed response, arguing that 

it would send the “wrong message,” and that the court simply 

should instruct the jury that it should not be concerned with 

what might occur after the jury determined Booker’s sentence. 

The circuit court provided the following response to the jury 

over Booker’s objection: “[T]he Court has the power to reduce, 

but not increase the sentence. However, you shall not concern 

yourselves with what happens after your verdict is returned.” 

The jury fixed Booker’s sentence at 12 years’ imprisonment 

for each of the three convictions. In accordance with the 

verdict, the circuit court sentenced Booker to three consecutive 

terms of 12 years’ imprisonment. 

The Court of Appeals affirmed Booker’s convictions in an 

unpublished opinion, holding that the circuit court did not err 

in instructing the jury regarding the court’s authority to 

reduce the sentence imposed by the jury. Booker v. 

Commonwealth, Record No. 1754-05-2 (December 19, 2006). The 

Court of Appeals concluded that the failure to provide an 

accurate and direct response “could have both engendered further 

speculation by the jury on whether the trial judge would 

increase or decrease [Booker’s] punishment, and caused the jury 

2
to base [its] determination of [Booker’s] punishment on a 

mistaken belief of the law.” Id., slip op. at 5. The Court of 

Appeals held that the instruction was proper because it “was 

neither misleading or confusing and prevented the jury from 

basing its verdict on a misconception of the law.” Id. We 

awarded Booker this appeal. 

 Booker argues that the Court of Appeals erred in affirming 

the circuit court’s judgment because the circuit court 

improperly informed the jury that the court could reduce but not 

increase the sentence set by the jury. Booker contends that the 

circuit court’s response invited the jury to speculate about 

what action the court might take with regard to the sentence. 

Thus, Booker asserts that the circuit court’s instruction to the 

jury tainted the jury’s decision regarding the appropriate 

punishment for the three offenses. 

 In response, the Commonwealth first maintains that Booker 

did not adequately preserve his objection to the circuit court’s 

proposed answer to the jury’s question. According to the 

Commonwealth, Booker’s argument on appeal is barred by Rule 5:25 

because Booker did not argue to the circuit court that the 

court’s proposed answer permitted the jury to speculate 

regarding what action might be taken after the jury made its 

sentencing determination. 

3
 Addressing the merits of the circuit court’s response, the 

Commonwealth contends that the court’s response was a correct 

statement of the law, and was appropriate because the answer was 

given accurately without reference to inappropriate matters such 

as executive clemency. The Commonwealth also argues that the 

circuit court’s response likely would have reduced the jury’s 

inclination to speculate about the court’s role in determining 

the final sentence, especially in light of the fact that the 

jury already had been informed that Booker would serve at least 

85 percent of any sentence “ultimately imposed by the [c]ourt.” 

Finally, the Commonwealth maintains that because the circuit 

court also instructed the jury not to be concerned with what 

would happen after the jury returned its verdict, the circuit 

court effectively precluded the jury’s further consideration of 

future action the circuit court might take regarding Booker’s 

sentence. We disagree with the Commonwealth’s arguments. 

 Initially, we conclude that Booker preserved his objection 

to the circuit court’s response to the jury’s question. 

Although Booker did not argue in the circuit court that the 

court’s response would encourage the jury to speculate about 

future actions the court might take regarding Booker’s sentence, 

the objection nevertheless informed the court that Booker viewed 

the court’s response as providing improper information to the 

jury. Thus, because the circuit court was informed with 

4
reasonable certainty of Booker’s concern, the court had the 

ability to evaluate the merits of the objection and to make an 

intelligent decision regarding the potential effect of the 

instruction on the jury’s deliberation process. See Rule 5:25. 

 We review the circuit court’s response to the jury’s 

question in the context of the sentencing function performed by 

juries in criminal trials. When a defendant is found guilty by 

a jury of a felony charge or a Class 1 misdemeanor, a separate 

sentencing proceeding is held before the same jury to determine 

the punishment the defendant should receive for those 

convictions. Code § 19.2-295.1. The jury is charged with the 

duty of determining just and proper punishment under the 

evidence and within the penalty limits provided by statute. 

After the jury fixes a sentence, the circuit court may suspend 

that sentence, in whole or in part. Code § 19.2-303. 

 As a general rule, in determining a defendant’s sentence, a 

jury is not permitted to consider what may happen to a defendant 

after the jury reaches its verdict. See Yarbrough v. 

Commonwealth, 258 Va. 347, 370, 519 S.E.2d 602, 614 (1999); 

Jones v. Commonwealth, 194 Va. 273, 275, 72 S.E.2d 693, 694 

(1952); Coward v. Commonwealth, 164 Va. 639, 646, 178 S.E. 797, 

800 (1935). We recognized an exception to this general rule, 

however, in our holding in Fishback v. Commonwealth, 260 Va. 

104, 532 S.E.2d 629 (2000). 

5
 There, we considered the issue whether a defendant 

convicted of a felony that was not a capital offense was 

entitled to have the jury instructed that parole has been 

abolished in Virginia for offenses committed after January 1, 

1995. Id. at 108, 532 S.E.2d at 630. We held that the 

defendant was entitled to such an instruction, and also 

concluded that, when applicable, a jury also shall be instructed 

that a defendant could be eligible for a geriatric release as 

permitted by statute, which determination involves “essentially 

a mathematical calculation.” Id. at 115, 532 S.E.2d at 634. 

 At the same time, we held that juries should not be 

instructed on the issue of earned sentencing credits that a 

prisoner may obtain under Code § 53.1-202.2 through –202.4, 

thereby reducing his period of incarceration, because obtaining 

these credits depends on a prisoner’s conduct while 

incarcerated, on his participation in certain programs 

established by the Department of Corrections, and on the 

executive branch’s subjective assessment of the prisoner’s 

progress. Id. We observed that a jury would be required to 

speculate in order to consider as part of its sentencing 

determination the possibility that a defendant could earn such 

future credits. Id. Thus, we held that juries are not to be 

instructed about the possibility that a defendant will obtain 

this type of future credit. Id. at 116, 532 S.E.2d at 634. 

6
 These separate holdings in Fishback illustrate an important 

distinction between instructions that properly further the goal 

of “truth in sentencing” by removing the possibility that a jury 

will act upon misconceptions, and those instructions that have 

the improper effect of inviting the jury to speculate concerning 

the likelihood of future actions that may ultimately affect the 

length of a defendant’s incarceration. See Bell v. 

Commonwealth, 264 Va. 172, 207-08, 563 S.E.2d 695, 718 (2002). 

A jury instruction regarding a defendant’s ineligibility for 

parole is proper, because it serves to eliminate a common 

misconception that a defendant may only serve a small portion of 

a jury’s sentence. See Fishback, 260 Va. at 113, 532 S.E.2d at 

633. In contrast, a jury instruction that a defendant may be 

eligible for earned sentencing credits once incarcerated is 

improper, because the jury cannot employ this information in its 

sentencing determination without resorting to speculation about 

the defendant’s future behavior while incarcerated. See Bell, 

264 Va. at 206-07, 563 S.E.2d at 718; Fishback, 260 Va. at 116, 

532 S.E.2d at 634. 

 Based on this distinction between instructions that do not 

allow speculation by the jury and those that effectively permit 

such speculation, we conclude that the challenged instruction in 

the present case was improper. The instruction should not have 

been given because it effectively permitted the jury to consider 

7
as part of its sentencing determination the speculative factor 

whether the circuit court later would reduce Booker’s sentence 

given the nature of his crimes, the other evidence in the case, 

or factors unknown to the jury at the time it imposed its 

sentence. Speculation of this nature also could have resulted 

in the jury incorrectly concluding that its role in the 

sentencing process was minimal and, thus, have yielded a result 

“inconsistent with a fair trial both to the defendant and the 

Commonwealth.” Fishback, 260 Va. at 115, 532 S.E.2d at 634; 

accord Bell, 264 Va. at 207-08, 563 S.E.2d at 718. 

 We disagree with the Commonwealth’s assertion that the jury 

nevertheless was instructed properly because it also was told 

that it should not concern itself with what might happen after 

returning its verdict. There is no assurance that the jury 

understood the circuit court’s general admonition against 

considering what might occur afterwards as negating the jury’s 

ability to consider the information directly provided by the 

court that the judge could reduce the sentence imposed by the 

jury. Therefore, we hold that the circuit court’s action giving 

the improper instruction requires reversal of this case, and 

that the Court of Appeals erred in reaching a contrary 

conclusion. 

 For these reasons, we will reverse the Court of Appeals’ 

judgment, vacate Booker’s sentences, and remand the case to the 

8
9

Court of Appeals for further remand to the circuit court for a 

new sentencing hearing conducted before a new jury pursuant to 

Code § 19.2-295.1. 

Reversed and remanded.