COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Elder and 

 Senior Judge Coleman 

Argued at Salem, Virginia 

GEORGE LINCOLN HOPKINS, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 0208-02-3 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 APRIL 22, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRY COUNTY 

David V. Williams, Judge 

 S. Jane Chitton, Appellate Defender (Public 

Defender Commission, on briefs), for 

appellant. 

 Michael T. Judge, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General, on 

brief), for appellee. 

 A jury convicted George Lincoln Hopkins, Jr. (appellant) of 

second-degree murder in violation of Code § 18.2-32. The trial 

court sentenced appellant to forty years' imprisonment, in 

accordance with the jury verdict. On appeal, appellant contends 

the trial court erred in its response to a jury question about the 

possibility of parole. For the reasons that follow, we affirm. 

 Under familiar principles of appellate review, we examine 

the evidence in the light most favorable to the Commonwealth, 

granting to it all reasonable inferences fairly deducible 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 

493 S.E.2d 677, 678 (1997). So viewed the evidence proved that 

on the night of March 19, 2001 after an argument, appellant 

killed his drinking companion, Larry Bennett. Appellant did not 

dispute the killing, but argued only that the Commonwealth could 

not prove the premeditation necessary to support a conviction 

for first-degree murder. 

 At trial, neither the Commonwealth nor appellant requested 

a jury instruction about the possibility of parole. While the 

jury deliberated on the issue of guilt, it sent two questions to 

the trial court. The jury questions were: (1) "What is the 

sentence for 2nd [sic] degree murder?" and (2) "What is the 

possibility of parole for 2nd [sic] degree murder?" After 

conferring with both the Commonwealth's Attorney and appellant's 

counsel, the trial court instructed the jury that the sentence 

for second-degree murder was five to forty years. On the parole 

question, the trial court met in chambers with both counsel 

before answering the jury. During that meeting, the 

Commonwealth's Attorney suggested an instruction, and appellant 

agreed. The discussion between counsel was as follows: 

COMMONWEALTH: I think [the jury] ought to 

be told what the sentencing range for murder 

two is—and the parole. 

DEFENSE COUNSEL: I don't argue with that. 

COURT: Okay. Let's see. What is it—five 

to forty? 

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COMMONWEALTH: It is five to forty—easy; no 

fine. Parole possibility: is eligible for 

parole after eighty five percent. 

DEFENSE COUNSEL: I agree. 

After all the parties agreed to the information to be given to 

the jury, the trial court sent the following written answer to 

the jury: "Parole has been abolished in Virginia. The 

defendant will have to serve at least 85% of any sentence he may 

receive." The jury convicted appellant of second-degree murder 

and recommended a sentence of forty years. 

 The sole question presented on appeal is whether the trial 

court's answer to the jury question about parole was error.1 

Appellant contends that the trial court had an affirmative duty 

to give the jury an answer that comported with the rule set 

forth in Fishback v. Commonwealth, 260 Va. 104, 532 S.E.2d 629 

(2000). The Commonwealth responds that appellant waived any 

complaint about the answer the trial court gave when he failed 

to object or proffer a correct statement of the law. We agree 

with the Commonwealth and hold that appellant's assignment of 

error is waived. See Rule 5A:18. The ends of justice do not 

compel a different result. 

 The instant case is indistinguishable from, and therefore 

controlled by, Commonwealth v. Jerman, 263 Va. 88, 556 S.E.2d 

754 (2002). In Jerman, the instruction complained of was given 

 1

 Appellant never proffered what he believed to be a correct 

answer either at trial or on appeal. 

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by "agreement of the court, the Commonwealth's attorney, and 

counsel for Jerman." Id. at 90, 556 S.E.2d at 755. The Supreme 

Court held that Jerman's failure to "state a timely objection to 

the circuit court's instruction" barred him from challenging the 

instruction on appeal. Id. at 94, 556 S.E.2d at 757. The same 

situation presents itself here. Appellant neither objected to 

the response the trial court gave the jury nor offered an 

alternative response for the trial court to consider. Indeed, 

the record shows that appellant agreed with the Commonwealth's 

proposed answer, which is the one the trial court adopted. 

 "[Appellant's] failure to proffer a parole eligibility 

instruction and his failure to object to the trial court's 

instruction in response to the jury's inquiry mentioned above 

precludes us from addressing the merits of this assignment of 

error." Cherrix v. Commonwealth, 257 Va. 292, 311, 513 S.E.2d 

642, 654 (1999). "[Appellant's] counsel was required to state 

any objection to the circuit court's instruction and to ask the 

court for any other instruction on the subject that he deemed 

necessary." Jerman, 263 Va. at 94, 556 S.E.2d at 757-58. 

Appellant failed to make any objection or to offer an 

alternative or additional instruction. To the contrary, 

appellant affirmatively accepted the answer the trial court 

gave. Accordingly, the judgment of the trial court is affirmed. 

Affirmed.

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