COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick,* Judges Benton, Coleman, 

 Moon,** Willis, Elder, Bray, Annunziata and Overton 

Argued at Richmond, Virginia 

VERNON LEROY SHIFFLETT 

 OPINION BY 

v. Record No. 2258-95-2 JUDGE JAMES W. BENTON, JR. 

 DECEMBER 30, 1997 

COMMONWEALTH OF VIRGINIA 

UPON A REHEARING EN BANC 

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY 

Paul M. Peatross, Jr., Judge 

 Scott Goodman for appellant. 

 Richard B. Smith, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Vernon Leroy Shifflett was convicted by a jury of driving 

after having been adjudicated an habitual offender and after 

having been twice convicted of the same offense. The jury 

sentenced him to three years imprisonment. Shifflett contends 

that the trial judge erred in excluding from the jury's 

consideration mitigating evidence relevant to sentencing. A 

panel of this Court, with one judge dissenting, affirmed the 

trial judge's decision. See Shifflett v. Commonwealth, 24 Va. 

App. 538, 484 S.E.2d 134 (1997). For the reasons that follow, 

upon rehearing en banc, we reverse and remand for a new 

 

 *On November 19, 1997, Judge Fitzpatrick succeeded Judge 

Moon as chief judge. 

 **Judge Moon participated in the hearing and decision of this 

case prior to his retirement on November 25, 1997. 
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sentencing proceeding in accordance with the provisions of Code 

§ 19.2-295.1. 

 I. 

 During the guilt phase of Shifflett's trial, State Police 

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 with Roach in the passenger 

seat, 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 Earleysville. 

 When Shifflett left work, Roach was waiting in her truck and 

told Shifflett that she still was not feeling well. While 
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driving home, Roach became dizzy and began to lean forward. 

Shifflett testified that he grabbed the steering wheel and told 

Roach to stop. After Roach drove into a restaurant's parking 

lot, Shifflett obtained food and a drink for her. Shifflett 

testified that after Roach told him that she still did not feel 

better, he drove the truck because their children, ages eleven 

and four, were alone at home. 

 Shifflett testified that he stopped on the way home to buy 

gas for the truck. While Shifflett was pumping the gas, Roach 

went inside the store to pay for the gas. When Shifflett drove 

away from the store, the officer signalled for Shifflett to stop. 

 After the jury found Shifflett guilty of driving after 

having been declared an habitual offender, Shifflett's counsel 

informed the trial judge that he intended to offer mitigating 

testimony about Shifflett's employment, family responsibilities, 

and his motive for committing the offense. The trial judge ruled 

that testimony from Roach about Shifflett's family 

responsibilities was inadmissible. Over Shifflett's objection, 

the trial judge ruled that evidence at the penalty phase would be 

limited to the "range of punishment established by [the] 

legislature, injury to the victim, use of [a] weapon, extent of 

[the] offender's participation, the offense, [the] offender's 

motive in committing the offense, prior record and rehabilitative 

efforts, drug and alcohol use, age, health and education." 

 During the penalty phase, Roach was permitted to testify 
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that she was not feeling well when Shifflett called and told her 

that he needed a ride home. She went for him because he had no 

means of getting home, except by walking. She testified that as 

they were leaving Charlottesville, she became dizzy from vertigo. 

 She further testified that she has had episodes of vertigo for 

twelve years, that she has had three ear surgeries, and that she 

continues to receive treatment. When she did not feel better 

after eating, she asked Shifflett to drive because she was 

concerned about their children being at home alone. 

 Roach's doctor testified that Roach suffers from vertigo. 

He testified that her "vertigo . . . is a . . . dizzy 

condition . . . that's transient, that comes and goes." 

 When Shifflett's counsel sought to question Shifflett's 

employer about Shifflett's employment, the trial judge sustained 

the Commonwealth's objection based on the prior ruling limiting 

the evidence. However, after the jury rendered its verdict on 

the sentence, the trial judge discharged the jury and heard the 

testimony of Shifflett's employer, William Amos Breeden, before 

he imposed the jury's sentence. Breeden testified that Shifflett 

did an "excellent job" as his employee and that Shifflett was 

paid nine dollars per hour. Breeden also testified as follows 

about efforts Shifflett made to get to work: 

 Well, for a couple months or three months, I 

was going to pick [Shifflett] up at his house 

and taking him home and his dad also paints, 

so, I hired his dad a month ago and he brings 

him to my house and we leave from my house 

every morning at 5:30. 
 -5- 

Breeden testified that Shifflett displayed no "indication of any 

alcohol abuse." 
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 II. 

 The rule is long standing in Virginia that "[w]ithin the 

limits prescribed by law, the terms of confinement in the state 

correctional facility or in jail and the amount of fine, if any, 

of a person convicted of a criminal offense, shall be ascertained 

by the jury, or by the court in cases tried without a jury." 

Code § 19.2-295. Recently, the legislature established a 

procedure bifurcating the trial and punishment proceedings. In 

pertinent part, the statute states as follows: 

 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. 

Code § 19.2-295.1. This statute vests in juries wide discretion 

in recommending a sentence within the statutory framework. 

 The purpose of Code § 19.2-295.1 is to provide two separate 

phases of a trial. "The procedure assures the jury access to 

'information specific only to sentencing, apart from the 

considerations of guilt or innocence,' thereby promoting a 

punishment appropriate to the circumstances without [prejudicing] 

the initial determination of guilt or innocence." Daye v. 

Commonwealth, 21 Va. App. 688, 689, 467 S.E.2d 287, 288 (1996) 

(citation omitted). "'The sentencing decision . . . is a quest 

for a sentence that best effectuates the criminal justice 
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system's goals of deterrence (general and specific), 

incapacitation, retribution and rehabilitation.'" Gilliam v. 

Commonwealth, 21 Va. App. 519, 524, 465 S.E.2d 592, 594 (1996) 

(citation omitted) (footnote omitted). 

 The general principle is well established that in the 

exercise of its sentencing function, "[a] jury must be allowed to 

consider . . . all relevant evidence." Jurek v. Texas, 428 U.S. 

262, 271 (1976); see Pierce v. Commonwealth, 21 Va. App. 581, 

584-85, 466 S.E.2d 130, 132 (1996). "For the determination of 

sentences, justice generally requires consideration of more than 

the particular acts by which the crime was committed and that 

there be taken into account the circumstances of the offense 

together with the character and propensities of the offender." 

Pennsylvania v. Ashe, 302 U.S. 51, 55 (1937). 

 [W]here sentencing discretion is granted, it 

generally has been agreed that the sentencing 

[jury's] "possession of the fullest 

information possible concerning the 

defendant's life and characteristics" is 

"[h]ighly relevant -- if not essential -- [to 

the] selection of an appropriate sentence 

 . . . ." 

Lockett v. Ohio, 438 U.S. 586, 602-03 (1978) (quoting Williams v. 

New York, 337 U.S. 241, 247 (1949)). Because the circumstances 

of the offense and the character and propensities of the offender 

vary in each case, "the concept of individualized sentencing in 

criminal cases generally, although not constitutionally required, 

has long been accepted in this country." Id. at 602. 

 The employer's testimony regarding Shifflett's success at 
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work and his efforts to maintain a commuting schedule that 

obviated his need to drive reflect on Shifflett's "character and 

propensities." Ashe, 302 U.S. at 55. Moreover, relevant 

sentencing factors traditionally have included an accused's 

habits, lifestyle, mental resources, family, and occupation. See

Bassett v. Commonwealth, 13 Va. App. 580, 581, 414 S.E.2d 419, 

420 (1992); State v. Lemley, 552 N.W.2d 409, 412 (S.D. 1996); 

State v. Morris, 750 S.W.2d 746, 750 (Tenn. Crim. App. 1987). 

Cf. Burkett v. Commonwealth, 248 Va. 596, 615, 450 S.E.2d 124, 

135 (1994); Murphy v. Commonwealth, 246 Va. 136, 141, 431 S.E.2d 

48, 51 (1993); Correll v. Commonwealth, 232 Va. 454, 468, 352 

S.E.2d 352, 360 (1987) (capital murder cases in which the trial 

judge considered issues such as defendant's age, family 

background, and work history in sentencing phase of trial). 

 Although the trial judge did not admit this mitigating 

testimony for the jury to consider, the trial judge obviously was 

aware that testimony concerning Shifflett's employment may have 

had a bearing on the punishment decision. The trial judge 

considered the testimony of Shifflett's employer before he 

imposed the jury's sentence. However, the principle is well 

established that judges "do not weigh the evidence" of mitigation 

for the sentencing jury. Eddings v. Oklahoma, 455 U.S. 104, 117 

(1982). The testimony of Shifflett's employer was relevant, 

admissible, and erroneously excluded from the jury's 

consideration. See Jurek, 428 U.S. at 271 (stating that 
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sentencing juries must be provided with "all relevant evidence"). 

 In addition, the testimony of Roach was not offered merely 

to prove the family's apparent need for his income. Her 

testimony would have proved that Shifflett was a responsible 

father who worked earnestly to provide for his children. 

Certainly, evidence that a defendant has contributed positively 

to his family situation is a relevant circumstance. 

 Shifflett's evidence reflected upon his habits, character, 

and family circumstances and was therefore relevant to 

determining an appropriate punishment. We therefore hold that 

the trial judge erred in excluding the evidence from the jury's 

consideration. Accord State v. Lee, 600 So.2d 796, 799 (La. Ct. 

App. 1992) (stating that when sentencing a defendant, 

"[i]mportant elements to be considered are the convict's personal 

history (age, family ties, marital status, health, employment 

record), prior criminal record or absence thereof, [the] 

seriousness of the particular offense, and the likelihood of 

recidivism or rehabilitation"); People v. Andrade, 664 N.E.2d 

256, 266 (Ill. App. Ct. 1996) (stating that when sentencing a 

defendant, "[r]elevant factors include . . . defendant's 

credibility, demeanor, general moral character, mentality, social 

environment, habits, age, and criminal history"). See generally

People v. Whalin, 885 P.2d 293, 298 (Colo. Ct. App. 1994) 

(stating that when sentencing a defendant, "[r]elevant factors to 

be considered include . . . the character of the offender"); 
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Commonwealth v. Cotter, 612 N.E.2d 1145, 1148 (Mass. 1993) 

(stating that when sentencing a defendant, the "defendant's 

character and propensity for rehabilitation are relevant . . . 

considerations"). 

 Accordingly, we reverse and remand the case for a new 

sentencing proceeding consistent with this ruling. 

 Reversed and remanded.
 -11- 

Annunziata, J., with whom Coleman and Overton, JJ., join, 

 dissenting. 

 Because I believe the trial court did not abuse its 

discretion in excluding appellant's evidence of the impact of his 

incarceration on his family and employment, I respectfully 

dissent. 

 Under Code § 19.2-295.1, detailing the sentencing proceeding 

in bifurcated felony jury trials, a "defendant may introduce 

relevant, admissible evidence related to punishment." The 

question before this Court is whether the trial court abused its 

discretion in determining that the evidence appellant sought to 

introduce did not fall within the scope of "relevant . . . 

evidence related to punishment" under Code § 19.2-295.1. See

Coppola v. Commonwealth, 220 Va. 243, 253, 257 S.E.2d 797, 804 

(1979) ("[D]iscretion 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."). 

 Three well-accepted principles should guide our analysis of 

this issue. First, pursuant to the principles of statutory 

construction, the sentencing provisions of Code § 19.2-295.1 may 

be validly analogized 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, this Court must look to the 

"declared purposes of punishment for criminal conduct," including 
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"`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 Third, Virginia law has historically maintained a 

clear distinction between the roles played by judge and jury in 

criminal sentencing. The trial judge, rather than the jury, "is 

vested with the responsibility of considering mitigating 

circumstances and pronouncing sentence." Bruce v. Commonwealth, 

9 Va. App. 298, 303, 387 S.E.2d 279, 281 (1990) (citing Duncan v. 

Commonwealth, 2 Va. App. 342, 345, 343 S.E.2d 392, 394 (1986)); 

see also Vines v. Muncy, 553 F.2d 342, 349 (4th Cir. 1977); 

Allard v. Commonwealth, 24 Va. App. 57, 67-68, 480 S.E.2d 139, 

144 (1997); Duncan, 2 Va. App. at 345-46, 343 S.E.2d at 394-95. 

 Under Code § 19.2-264.4, the statutory provisions applicable 

to the sentencing phase of bifurcated capital murder trials, 

"[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). Evidence considered relevant 

to jury sentencing and in mitigation of punishment in capital 

murder sentencing is specifically addressed under Code 

 

 1"Recognized `[t]heories of punishment' include prevention, 

restraint, rehabilitation, deterrence, education, and 

retribution." Gilliam, 21 Va. App. at 524 n.3, 465 S.E.2d at 594 

n.3 (quoting Wayne R. LaFave & Austin W. Scott, Jr., Substantive 

Criminal Law § 1.5 (1986)). 
 -13- 

§ 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 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, 

 

 2Code § 19.2-264.4(B) provides: 

 In cases of trial by jury, evidence may 

be presented as to any matter which the court 

deems relevant to sentence, except that 

reports under the provisions of § 19.2-299, 

or under any rule of court, shall not be 

admitted into evidence. 

 Evidence which may be admissible, 

subject to the rules of evidence governing 

admissibility, may include the circumstances 

surrounding the offense, the history and 

background of the defendant, and any other 

facts in mitigation of the offense. Facts in 

mitigation may include, but shall not be 

limited to, the following: (i) The defendant 

has no significant history of prior criminal 

activity, (ii) the capital felony was 

committed while the defendant was under the 

influence of extreme mental or emotional 

disturbance, (iii) the victim was a 

participant in the defendant's conduct or 

consented to the act, (iv) at the time of the 

commission of the capital felony, the 

capacity of the defendant to appreciate the 

criminality of his conduct or to conform his 

conduct to the requirements of law was 

significantly impaired, (v) the age of the 

defendant at the time of the commission of 

the capital offense or (vi) mental 

retardation of the defendant. 
 -14- 

but not excuse, [the] commission of the crime.'" Correll v. 

Commonwealth, 232 Va. 454, 468, 352 S.E.2d 352, 360 (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); Murphy v. Commonwealth, 246 Va. 136, 142, 431 S.E.2d 48, 

52 (1993). 

 Applying these principles, I would find the trial court did 

not abuse its discretion. During the sentencing phase, appellant 

sought to elicit testimony from his girlfriend and employer 

concerning the financial impact of his incarceration on his 

family and employer. Unlike the fact that appellant resided with 

his family and that he was employed, evidence of which was before 

the jury during the guilt phase of the trial, the testimony in 

question did not relate to appellant himself or the circumstances 

surrounding the crime. The evidence was, therefore, not relevant 

evidence related to punishment under Virginia law. See Code 

§ 19.2-264.4; Coppola, 220 Va. at 253-54, 257 S.E.2d at 804 

(holding that the effect of incarceration upon relatives is not a 

mitigating circumstance "analogous to any of the evidence 

specifically approved in the statute"). Nor was the evidence in 

question offered to explain the commission of the crime. 

 Furthermore, the relevance of appellant's proffered evidence 

in this case, as it relates to the purposes of sentencing, must 

be viewed, not in the abstract, but in the context of the jury's 

sentencing role under Virginia law. See Duncan, 2 Va. App. at 
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345-46, 343 S.E.2d at 394-95. The declared purposes of 

punishment for criminal conduct relate to: (1) the defendant 

(specific deterrence, incapacitation and rehabilitation); (2) the 

victim (retribution); or (3) the public at large (general 

deterrence). See Gilliam, 21 Va. App. at 524, 465 S.E.2d at 594 

(citing Morris, 837 F. Supp. at 729). However, the jury's role 

and its relationship to these sentencing purposes have been 

limited by Virginia law. Specifically, in non-capital cases, 

Virginia law confines the jury to determining the appropriate 

range of incarceration, with the exception that a judge may add a 

suspended sentence to the jury's recommendation to ensure postrelease supervision. Allard, 24 Va. App. at 68, 480 S.E.2d at 

144; Bruce, 9 Va. App. at 303, 387 S.E.2d at 281 (citing Duncan, 

2 Va. App. at 345, 343 S.E.2d at 394). Neither retribution nor 

rehabilitation through means other than incarceration comes 

within the purview of the sentencing jury. 

 Recent amendments to the statutory scheme have not 

eviscerated the distinction Virginia law has historically 

maintained between the respective roles of judge and jury, a 

distinction the majority opinion fails to reflect. See Allard, 

24 Va. App. at 68, 480 S.E.2d at 144. Most of the cases the 

majority relies upon arise not in the context of jury sentencing, 

but rather in the context of sentencing by the judge;3

 the 

 

 3See Eddings v. Oklahoma, 455 U.S. 104, 112-13 (1982) 

(holding that the sentencing judge erroneously failed to consider 

evidence of mitigation); Lockett v. Ohio, 438 U.S. 586, 602-03 

(1978) (addressing the "sentencing judge's 'possession of the 
 -16- 

remainder do not address the question of what evidence a 

defendant is entitled to present to a sentencing jury.4

 The only authority cited by the majority which addresses 

mitigation evidence in the context of jury sentencing is Jurek v. 

Texas, 428 U.S. 262, 271 (1976). The analysis of the United 

fullest information possible concerning the defendant's life and 

characteristics'" (quoting Williams v. New York, 337 U.S. 241, 

247 (1949))); Williams, 337 U.S. at 247 (explaining that the 

sentencing judge needs "the fullest information possible"); 

People v. Whalin, 885 P.2d 293, 298 (Colo. Ct. App. 1994) 

(holding that sentencing court did not abuse its discretion in 

sentencing defendant to sixteen years for sexual assault on a 

child); People v. Andrade, 664 N.E.2d 256, 266 (Ill. Ct. App.) 

(holding that sentencing court did not abuse its discretion in 

sentencing defendant to nine years for delivery of controlled 

substance), appeal denied, 671 N.E.2d 735 (Ill. 1996); State v. 

Lee, 600 So. 2d 796, 799 (La. Ct. App. 1992) (holding that 

sentencing judge adequately considered statutory factors); 

Commonwealth v. Cotter, 612 N.E.2d 1145, 1148 (Mass. 1993) 

(holding that sentencing court was justified in refusing to 

suspend sentence where defendant indicated he would not accept 

the conditions of probation); State v. Lemley, 552 N.W.2d 409, 

411-12 (S.D. 1996) (holding that sentencing court's sentence of 

350 years did not impose cruel and unusual punishment); State v. 

Morris, 750 S.W.2d 746, 750 (Tenn. Ct. Crim. App. 1987) (holding 

that trial judge properly considered evidence relating to 

statutory factors); Burket, 248 Va. at 615, 450 S.E.2d at 135 

(holding that the sentencing judge adequately considered the 

mitigation evidence); Murphy, 246 Va. at 141-42, 431 S.E.2d at 

360 (holding that the sentencing judge considered all of the 

evidence in mitigation); Correll, 232 Va. at 468, 352 S.E.2d at 

360 (holding that the sentencing judge did not disregard 

mitigation evidence); Bassett v. Commonwealth, 13 Va. App. 580, 

582-83, 414 S.E.2d 419, 420-21 (1992) (holding that the 

sentencing judge adequately considered mitigating factors). 

 4See Pierce v. Commonwealth, 21 Va. App. 581, 583, 466 

S.E.2d 130, 131 (1996) (holding that Code § 19.2-295.1 does not 

bar a defendant from introducing evidence at the sentencing phase 

of a jury trial because the Commonwealth does not introduce 

evidence); Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55 

(1937) (holding that a state may provide that a person convicted 

of breaking out of a penitentiary serve an additional period not 

exceeding the original sentence). 
 -17- 

States Supreme Court in Jurek, however, highlights the 

distinction between judge and jury sentencing in Virginia. The 

Texas statute at issue in Jurek provided that the jury's 

resolution of three statutory questions determined whether the 

death penalty would be imposed; the judge had no role to play in 

determining the sentence. Id. at 269. In contrast, Virginia 

sentencing procedure grants to the judge final authority over the 

sentence. Duncan, 2 Va. App. at 345, 343 S.E.2d at 394 (citing 

Vines v. Muncy, 553 F.2d 342, 349 (4th Cir. 1977)). Precisely 

because the judge bears the ultimate responsibility for imposing 

sentence, "the consideration of mitigating circumstances [is for] 

the court." Id. at 345, 343 S.E.2d at 394. 

 Finally, the majority's approach is foreclosed in large part 

by the Virginia Supreme Court's decision in Coppola, 220 Va. 243, 

257 S.E.2d 797. In Coppola, the trial court excluded evidence of 

the impact of the defendant's prosecution on his young children. 

 In upholding the trial court's ruling, the Supreme Court held 

that "the effect of [the defendant's] incarceration upon 

relatives is not a mitigating circumstance for the jury to 

consider." Id. at 254, 257 S.E.2d at 804. The effect of 

appellant's incarceration upon his family, or, by analogy, his 

employer, likewise "is not a mitigating circumstance for the jury 

to consider." Id. I would hold that the trial court did not 

abuse its discretion, and would affirm appellant's conviction. 

 For these reasons, I respectfully dissent.