COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Senior Judge Hodges 

Argued at Norfolk, Virginia 

NATHANIEL DALE PIERCE 

v. Record No. 0145-95-1 OPINION BY 

 JUDGE WILLIAM H. HODGES 

COMMONWEALTH OF VIRGINIA JANUARY 30, 1996 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Robert W. Curran, Judge 

 James S. Ellenson, for appellant. 

 Michael T. Judge, Assistant Attorney General 

(James S. Gilmore, III, Attorney General; 

Richard B. Smith, Assistant Attorney General, 

on brief), for appellee. 

 Nathaniel Dale Pierce (appellant) appeals from a judgment of 

the Circuit Court of the City of Newport News finding him guilty 

of first degree murder, three counts of malicious wounding, and 

four counts of using a firearm in the commission of a felony. 

The sole question in this appeal is whether the trial court erred 

in ruling that Code § 19.2-295.1 barred appellant from 

introducing evidence at the sentencing phase of his jury trial 

because the Commonwealth declined to introduce evidence. We hold 

that the trial court erred; accordingly, we reverse and remand 

for a new sentencing proceeding. 

 After the jury returned its verdicts finding appellant 

guilty of the charged offenses, the prosecutor advised the court 

that he had no evidence to introduce at the sentencing phase to 

be conducted pursuant to Code § 19.2-295.1.1

 Defense counsel 

 

 1When appellant's trial began on January 10, 1995, Code 
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(..continued) 

stated that he intended to call appellant's mother to testify 

that appellant had been a "good upstanding citizen" and a "loyal 

and loving son." During the ensuing argument about whether Code 

§ 19.2-295.1 permitted appellant to introduce evidence under the 

circumstances, appellant's counsel stated, "Well, after you've 

read the statute, it doesn't quite appear that we can, but we'd 

like to." The trial court refused to permit appellant to 

introduce evidence, ruling that Code § 19.2-295.1 allowed a 

defendant to put on evidence only in rebuttal to the 

Commonwealth's evidence. Defense counsel noted his exception to 

this ruling. 

 Appellant argues that the trial court misinterpreted Code 

§ 19.2-295.1 as barring a defendant from introducing evidence at 

the sentencing phase unless the Commonwealth has put on evidence. 

 The Commonwealth contends appellate review of the issue is 

procedurally barred because appellant acquiesced in the trial 

court's ruling. However, the record clearly shows that defense 

counsel placed the issue before the court and excepted to the 

adverse ruling. Counsel's comment concerning the relative 

strength of his position did not constitute an agreement with the 

court's decision. Thus, appellant's argument on appeal is not an 

§ 19.2-295.1 stated that at a sentencing proceeding, "the 

Commonwealth shall present the defendant's prior criminal 

convictions . . . . After the Commonwealth has introduced such 

evidence of prior convictions, the defendant may introduce 

relevant, admissible evidence related to punishment. Nothing in 

this section shall prevent the Commonwealth or the defendant from 

introducing relevant, admissible evidence in rebuttal." 
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attempt to "approbate and reprobate." See Fisher v. 

Commonwealth, 236 Va. 403, 417, 374 S.E.2d 46, 54 (1988), cert. 

denied, 490 U.S. 1028 (1989). Further, we find no merit to the 

Commonwealth's assertion that appellant's brief provides 

insufficient argument to support his position. See Rule 

5A:20(e). Thus, we address on the merits the issue before us. 

 Code § 19.2-295.1 is a procedural statute, governing the 

ascertainment of punishment in a criminal jury trial. Statutes 

regarding criminal procedure generally are construed strictly 

against the Commonwealth. See Bottoms v. Commonwealth, 20 Va. 

App. 466, 469, 457 S.E.2d 796, 797 (1995). See also Gray v. 

Commonwealth, 220 Va. 943, 945, 265 S.E.2d 705, 706 (1980). Even 

so, "[w]here the language of the applicable statute is clear and 

unambiguous, the court 'must take the words as written and give 

them their plain meaning.'" Williams v. Commonwealth, 12 Va. 

App. 912, 920, 407 S.E.2d 319, 325 (1991) (en banc). 

 "After the Commonwealth has introduced such evidence of 

prior convictions, the defendant may introduce relevant, 

admissible evidence related to punishment." Code § 19.2-295.1. 

The Commonwealth construes this sentence to mean that the 

defendant is permitted to introduce evidence only if the 

Commonwealth has done so.2

 Instead of using the phrase "only if" 

 

 2The General Assembly amended Code § 19.2-295.1, effective 

July 1, 1995, to state that a defendant is not precluded from 

introducing evidence even if the Commonwealth introduces no 

evidence. 
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in the statute, however, the General Assembly chose the term 

"after." We presume that the legislature uses a nontechnical 

term such as "after" in its ordinary sense. See Frere v. 

Commonwealth, 19 Va. App. 460, 465, 452 S.E.2d 682, 685 (1995). 

 The word "after" means "later than a particular time or 

period of time." Suggs v. Life Insurance Co., 207 Va. 7, 11 n.*, 

147 S.E.2d 707, 710 n.* (1966). So defined, the statutory 

language in question simply sets forth the order of proof at the 

sentencing proceeding. However, the language does not prohibit 

the defendant from introducing relevant, admissible evidence 

related to punishment if the Commonwealth chooses not to produce 

evidence of the defendant's prior convictions, or if the 

defendant has no criminal record that the Commonwealth can 

introduce. 

 This result is consistent with the sentence in Code 

§ 19.2-295.1 that "[n]othing in this section shall prevent the 

Commonwealth or the defendant from introducing relevant, 

admissible evidence in rebuttal." "Whenever possible, . . . it 

is our duty to interpret the several parts of a statute as a 

consistent and harmonious whole so as to effectuate the 

legislative goal." VEPCO v. Board of Supervisors, 226 Va. 382, 

388, 309 S.E.2d 308, 311 (1983). 

 Following appellant's trial, Code § 19.2-295.1 was amended 

to permit a sentencing proceeding before a different jury if a 

defendant's sentence is reversed on appeal because of error in 
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the original sentencing proceeding. "The general rule is that 

statutes are to be applied prospectively absent an express 

legislative provision to the contrary." Wyatt v. Dep't of Social 

Services, 11 Va. App. 225, 228, 397 S.E.2d 412, 414 (1990). 

Rules of procedure, such as those contained in Code § 19.2-295.1, 

"are not protected from the effect of a repealing statute." Id.

at 229, 397 S.E.2d at 414. Accordingly, we reverse and remand 

the case for a new sentencing proceeding consistent with Code § 

19.2-295.1, as amended. See Evans v. Commonwealth, 228 Va. 468, 

476-77, 323 S.E.2d 114, 119 (1984), cert. denied, 471 U.S. 1025 

(1985) (where defendant's death sentence reversed because of 

error at sentencing proceeding, defendant properly resentenced by 

different jury as permitted by a statute enacted after his first 

trial and conviction). 

 Reversed and remanded.