COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Overton 

Argued at Richmond, Virginia 

ROBERT MACK WALKER 

 OPINION BY 

v. Record No. 2948-95-2 JUDGE NELSON T. OVERTON 

 JUNE 17, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

James B. Wilkinson, Judge 

 Patricia P. Nagel, Assistant Public Defender 

(David J. Johnson, Public Defender, on 

brief), for appellant. 

 Eugene Murphy, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Robert Mack Walker was convicted by a jury of forgery, 

uttering, grand larceny, and two counts of robbery. He appeals, 

claiming that (1) the evidence is insufficient to support the 

convictions for forgery, uttering, grand larceny, and robbery; 

and (2) he should have been granted a proffered instruction 

informing the jury that parole has been abolished in Virginia. 

I. Facts 

 On August 7, 1995, just before midnight, Mary Person and her 

aunt were stopped at a Race Trac Gas Station off Midlothian 

Turnpike in southside Richmond. When Person was getting back 

into her car and about to shut the door, the door flew open. A 

man later identified by Person as Robert Mack Walker threw his 

shoulder into hers and pushed her over. Walker drew a knife and 

put it in Person's side and asked for all of her money. Person 
 2 

threw her pocketbook and her aunt's pocketbook at Walker. When 

another motorist drove up, Walker fled with Person's wallet. 

 The next day Walker presented two of the checks stolen from 

Person's purse to two tellers at separate First Virginia Bank 

branches. For the first he received $300; the other was refused. 

 He was subsequently indicted for two counts of forgery, two 

counts of uttering, one count of grand larceny, and two counts of 

robbery. 

 At trial, Person testified that her checkbook had been in 

her wallet. She identified checks numbered 525 and 526 as coming 

from the stolen checkbook, and she stated that the signature on 

the checks was not hers. Person later identified Walker from a 

photospread. 

 Lisa Cooper, a teller at First Virginia Bank, testified that 

she handled check 526 on August 8, 1995, the day after the 

robbery, made out to Robert Walker. She identified the teller 

stamp and her handwriting on the back. She testified that the 

identification card she examined bore the photograph of the same 

man who cashed the check. The information that she copied from 

the identification card matched the personal information from 

Walker's identification card. Six photos from the bank's 

security camera corroborated Walker's presence at the bank at the 

time. 

 James Carter, a teller at another First Virginia Branch, 

also testified that Walker gave him a check on August 8, 1995. 
 3 

He copied Walker's personal information from Walker's 

identification onto the back of the check. He also checked 

whether the person presenting the check was the same person as 

the identification card represented. When Carter was handed the 

check to identify at trial, both he and the Commonwealth's 

attorney called it check 526, the same number as the check that 

Cooper had identified. Both checks 525 and 526 were admitted 

into evidence. 

 Walker testified on his own behalf. He stated that he had 

been at the gas station at approximately the time of the robbery. 

 He also admitted receiving one of the checks from an 

acquaintance on August 8, 1995. Walker testified that he had 

done some painting for a woman named Elaine, and he thought the 

check was in return for that work, the E. in Mary E. Person 

standing for Elaine. He took the check to the first bank and 

cashed it. He denied receiving the second check and denied ever 

going to the second branch. 

 At the close of the Commonwealth's evidence, defendant moved 

to strike because of the discrepancy in the check numbers. 

Defendant argued that check 526 was identified by both tellers as 

the check they handled. The court agreed that the Commonwealth's 

attorney handed one of the witnesses the wrong check, but 

overruled the motion to strike. The defendant renewed his motion 

at the close of all evidence and was again overruled. The jury 

found the defendant guilty on all counts. 
 4 

 Before the jury deliberated on sentencing, the defendant 

offered a jury instruction stating that the Commonwealth of 

Virginia has abolished parole for all felonies that were 

committed after January 1, 1995. The judge ruled that, because 

this was not a capital murder case, he was refusing the 

instruction. The jury fixed Walker's sentence at ten years for 

each robbery count, two years for each forgery count, six months 

on each uttering count, and one year for the grand larceny. 

 At the sentencing, Walker rearticulated the argument for the 

previous motion to strike and moved to set aside the verdict. He 

argued that both tellers identified the same check and that 

therefore all the convictions should be set aside. The judge 

agreed that evidence was lacking on one check, although he was 

not sure which. He refused to set aside the convictions on both 

checks, stating that "one of them was obvious" and that the 

Commonwealth merely "made a mistake on the check and gave the 

witness the wrong check." He did set aside the forgery and 

uttering convictions on check number 526. 

 II. Sufficiency of the Evidence 

 A. 

 We hold that the evidence is sufficient to support the 

convictions for forgery, uttering, and grand larceny. "Larceny 

is defined as the wrongful or fraudulent taking of personal goods 

of some intrinsic value, belonging to another, without his 

assent, and with the intention to deprive the owner thereof 
 5 

permanently." Jones v. Commonwealth, 3 Va. App. 295, 300, 349 

S.E.2d 414, 417 (1986). If the goods are valued at $200 or more, 

the offense is grand larceny. See Code § 18.2-95. Walker 

admitted receiving $300 from the bank in return for one of the 

forged checks. The evidence is sufficient for a jury to conclude 

that Walker fraudulently induced the bank to give him this money 

and that he did not intend to return it. All of the elements of 

grand larceny having been established, we affirm this conviction. 

 All of the elements of forgery are also established. 

"Forgery is the false making or materially altering with intent 

to defraud, of any writing which, if genuine, might apparently be 

of legal efficacy, or the foundation of legal liability." Moore 

v. Commonwealth, 207 Va. 838, 841, 153 S.E.2d 231, 233 (1967); 

Bullock v. Commonwealth, 205 Va. 558, 561, 138 S.E.2d 261, 263 

(1964). Person testified that the signature on the checks was 

not her own. By presenting the checks to the bank tellers, 

Walker demonstrated a clear intent to defraud. The checks were 

therefore forged. The evidence does not prove conclusively that 

Walker himself signed Person's name on the checks, but such proof 

is not required. "Possession of a forged check by an accused, 

which he claims as a payee, is prima facie evidence that he 

either forged the instrument or procured it to be forged." 

Fitzgerald v. Commonwealth, 227 Va. 171, 174, 313 S.E.2d 394, 395 

(1984). Walker admitted the possession of one of the two forged 

checks in evidence, whether number 525 or number 526. The jury 
 6 

was therefore entitled to believe beyond a reasonable doubt that 

Walker either forged the check or procured it to be forged. The 

record supports a conviction for forgery. 

 Uttering is an offense separate from forgery. See Bateman 

v. Commonwealth, 205 Va. 595, 599, 139 S.E.2d 102, 105 (1964); 

Johnson v. Commonwealth, 102 Va. 927, 929, 46 S.E. 789, 790 

(1904). "The word 'utter' is defined in Black's Law Dictionary, 

4th ed., page 1716, as meaning 'To put or send [as a forged 

check] into circulation. * * * to utter and publish.' It is an 

assertion by word or action that a writing known to be forged is 

good and valid." Bateman, 205 Va. at 599-600, 139 S.E.2d at 106 

(alteration in original). Walker's possession of the forged 

check allows the inference that Walker knew it to be forged. 

Walker clearly put this forged check into circulation, as 

evidenced by, inter alia, his presence at the bank captured on a 

bank security camera and his own admission. The fact that the 

two check numbers were confused at trial does not alter this 

fact. The conviction for uttering is affirmed. 

 B. 

 Walker attacks his robbery convictions on the ground that 

Person's identification was incredible. Person's testimony is 

clearly not incredible. She chose him from a lineup, and her 

identification was later verified by the fact that Walker 

admitted his presence at the gas station and was found in 

possession of her checks the next morning. The credibility of 
 7 

the witness and the weight accorded her testimony "are matters 

solely for the fact finder, who has the opportunity to see and 

hear that evidence as it is presented." Sandoval v. 

Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995); 

see Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 

736-37 (1985). 

 Furthermore, sufficient evidence was present to prove that 

Walker was the robber, even without the eyewitness 

identification. The jury rejected the defendant's explanation 

for his possession of the check, and in doing so inferred his 

consciousness of guilt from that lie. See Welch v. Commonwealth, 

15 Va. App. 518, 525, 425 S.E.2d 101, 106 (1992). "A defendant's 

false statements are probative to show he is trying to conceal 

his guilt, and thus is evidence of his guilt." Rollston v. 

Commonwealth, 11 Va. App. 535, 548, 399 S.E.2d 823, 831 (1991) 

(citing Carter v. Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 

867 (1982)). Accordingly, the robbery convictions are affirmed. 

III. Jury Instruction 

 Walker next argues that the trial judge erred by refusing an 

instruction informing the jury that Walker was ineligible for 

parole under Virginia law. The proffered instruction read: 

 The Commonwealth of Virginia has abolished 

parole for all felonies that were committed 

after January 1, 1995.1

 

 1We note that this instruction is not entirely accurate as a 

matter of law. Exceptions to this general statement exist in the 

Code. See, e.g., Code § 19.2-311 (granting a discretionary 

exception for persons between the age of eighteen and twenty-one 
 8 

The trial judge ruled that because this was not a capital case, 

he would not instruct the jury about parole considerations, 

adding, "It is none of their business." 

 A. 

 Virginia has a long and honored system of jury sentencing. 

Juries have been empowered to sentence their peers in the 

Commonwealth from as early as 1776. See 9 Laws of Va. 170 

(Hening 1821); see also Note, Jury Sentencing in Virginia, 53 Va. 

L. Rev. 968, 971 (1967). This phenomenon did not arise by 

accident; the General Assembly made a conscious decision to 

depart from the common law, under which the court sentenced the 

defendant. See Mackaboy v. Commonwealth, 4 Va. (2 Va. Cas.) 268, 

271 (1821) (noting that the statute in question was copied from 

an older law, "with this difference only, that by our Law the 

fine as assessed by the jury, and under the English Laws, by the 

Justices"). Our tradition continues today. Only seven other 

states allow the jury to sentence offenders in noncapital cases. 

See Ark. Code Ann. §§ 5-4-103, 16-90-107 (WESTLAW through 1995 

Sess.); Ky. Rev. Stat. Ann. § 532.055(2) (West, WESTLAW through 

1996 Reg. Sess.); Miss. Code Ann. §§ 97-3-67, 97-3-71 (WESTLAW 

through 1996 Reg. Sess.) (limited powers); Mo. Ann. Stat. 

§ 557.036 (Vernon, WESTLAW through 1996 2d Reg. Sess.) (limited 

powers); Okla. Stat. Ann. tit. 22, §§ 926-928 (West, WESTLAW 

 

convicted of a felony not punishable as a Class 1 felony); Code 

§ 53.1-40.01 (allowing petitions for parole from older prisoners 

convicted of a felony other than a Class 1 felony). 
 9 

through 1996 2d Reg. Sess.); Tenn. Code Ann. §§ 40-20-104, 

40-20-107 (WESTLAW through 1996 2d Reg. Sess.); Tex. Code Crim. 

Proc. Ann. art 37.07 (West, WESTLAW through 1995 Reg. Sess.). 

 When juries set sentences, they may consider certain 

information. The Supreme Court of Virginia definitively set 

forth the rule over sixty years ago: 

 These jurors should have been told that it 

was their duty, if they found the accused 

guilty, to impose such sentence as seemed to 

them to be just. What might afterwards 

happen was no concern of theirs. 

Coward v. Commonwealth, 164 Va. 639, 646, 178 S.E. 797, 800 

(1935). Over time the Court has reiterated Virginia's commitment 

to this principle, even while recognizing that other 

jurisdictions may not agree. See Hinton v. Commonwealth, 219 Va. 

492, 495, 247 S.E.2d 704, 706 (1978) (noting the existence of 

contrary cases). As the Supreme Court has stated, the correct 

response when the jury asks about parole is: 

 The only response I can give you on that 

. . . is that it's the function of the jury, 

duty of the jury, to impose such sentence as 

they consider just under the evidence and the 

instructions of the Court. 

 And you should not concern yourself with 

what may thereafter happen. 

Peterson v. Commonwealth, 225 Va. 289, 296-97, 302 S.E.2d 520, 

525 (1983); see also Clagett v. Commonwealth, 252 Va. 79, 94, 472 

S.E.2d 263, 272 (1996); Wansley v. Commonwealth, 205 Va. 412, 

416, 137 S.E.2d 865, 868 (1964); Jones v. Commonwealth, 194 Va. 

273, 274, 72 S.E.2d 693, 694 (1952); Virginia Model Jury 
 10 

Instruction I-25. Our long line of precedents has led this Court 

to remark that "[i]t is well-established in Virginia that a jury 

is not to concern itself with post-sentencing events." Kitze v. 

Commonwealth, 15 Va. App. 254, 260, 422 S.E.2d 601, 605 (1992), 

rev'd on other grounds, 246 Va. 283, 435 S.E.2d 583 (1993) 

(agreeing that the jury has no right to be advised of 

post-sentencing events); see also Mosby v. Commonwealth, 24 Va. 

App. 284, 482 S.E.2d 72 (1997). 

 The principal rationale underlying our system of sentencing 

is founded in the basic concept of separation of the branches of 

government. The assessment of punishment lies within the purview 

of the judicial branch; the administration of such punishment 

within that of the executive branch. The rule in Virginia aims 

to preserve, as effectively as possible, the separation of these 

functions. See Hinton, 219 Va. at 496, 247 S.E.2d at 706; 

Coward, 164 Va. at 646, 178 S.E. at 799-800; Dingus v. 

Commonwealth, 153 Va. 846, 852, 149 S.E. 414, 415 (1929). The 

jury's duty is to sentence the defendant according to the 

evidence in the trial and within the limits set by the General 

Assembly for the crimes committed. Pardons, parole, credit for 

good behavior, and the like are factors outside of the scope, and 

certainly the control, of the jury. Consideration of these 

possibilities should not hamper the jury's ability to perform its 

duty. 

 Other secondary reasons have been advanced to support 
 11 

Virginia's policy. In Fitzgerald v. Commonwealth, 249 Va. 299, 

455 S.E.2d 506 (1995), cert. denied, 116 S. Ct. 1279 (1996), the 

Supreme Court of Virginia affirmed the refusal of a jury 

instruction which stated: 

 The court instructs the jury that under 

Virginia law any person convicted of three 

separate felony offenses of murder, rape or 

robbery by the presenting of firearms or 

other deadly weapon or any combination of the 

offenses of murder, rape or robbery when such 

offenses were not part of a common act, 

transaction or scheme shall not be eligible 

for parole. 

Id. at 305, 455 S.E.2d at 510. The Court found that, were the 

jury to consider this instruction, it would be determining law 

rather than fact, thus invading the realm of the judge. "The 

question whether an accused is parole eligible in Virginia is a 

question of law that may not be considered by a jury." Id. at 

306, 455 S.E.2d at 510. 

 On a more practical level, consideration of post-sentencing 

events would lead the jury to speculate as to the probable time 

actually served on a sentence. To inform the jury that credit 

for good behavior exists may invite the jury to attempt to 

compensate for the credit, resulting in a sentence longer than 

the jury intended to impose. See Coward, 164 Va. at 642, 178 

S.E. at 798. Similarly, if the jury is informed of credit for 

good behavior, to be fair it should also be informed of the 

workings of the parole system, the possibility of pardons, 

work-release programs, commitments to the Department of Mental 
 12 

Health, and every other alternative method which may affect the 

amount of time the defendant may actually be confined. This 

sheer volume of information would pose a tremendous obstacle to 

efficient and just jury sentencing. 

 B. 

 In the instant case, Walker asserts that Simmons v. South 

Carolina, 512 U.S. 154, 114 S. Ct. 2187 (1994), requires the 

judge to grant an instruction informing the jury that the 

defendant is not eligible for parole. The constitutional 

requirements of Simmons do not apply to noncapital felony cases. 

See Mosby, 24 Va. App. at 290, 482 S.E.2d at 74. Instead, the 

general rule governs. A state may make its own determination 

about what a jury will or will not be told about sentencing. See

California v. Ramos, 463 U.S. 992, 1014 (1983). "[T]he wisdom of 

the decision to permit juror consideration of [post-sentencing 

events] is best left to the States." Id.; see Simmons, 512 U.S. 

at 183, 114 S. Ct. at 2204 (Scalia, J., dissenting). 

 Code § 19.2-295.1 provides, in pertinent 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 

such evidence of prior convictions, or if no 

such evidence is introduced, the defendant 

may introduce relevant, admissible evidence 

related to punishment. 

 The question before us today is whether parole eligibility 

is "relevant to punishment." In the past, the Supreme Court of 
 13 

Virginia has made it abundantly clear that it is not. 

"Information regarding parole eligibility is not relevant 

evidence to be considered by the jury." Eaton v. Commonwealth, 

240 Va. 236, 248, 397 S.E.2d 385, 392 (1990) (citing Spencer v. 

Commonwealth, 240 Va. 78, 85, 393 S.E.2d 609, 613 (1990)); see

Watkins v. Commonwealth, 238 Va. 341, 351, 385 S.E.2d 50, 56 

(1989); Williams v. Commonwealth, 234 Va. 168, 178-80, 360 S.E.2d 

361, 367-68 (1987); Poyner v. Commonwealth, 229 Va. 401, 418-19, 

329 S.E.2d 815, 828 (1985). 

 Walker argues that because the General Assembly has now 

abolished parole for all persons convicted of felonies committed 

after January 1, 1995, that fact has become relevant to 

punishment. We disagree. 

 We doubt not that the jury's beliefs about parole may 

influence, in some cases, a jury's decision on the length of the 

sentence, although Walker does not argue this theory on brief and 

we can find no empirical evidence to support it.2 Merely because 

a fact may influence a jury's decision, however, does not render 

it relevant within the meaning of the statute. 

 Our Supreme Court has found that the jury may consider 

 

 2See generally Virginia Criminal Sentencing Commission 1996 

Annual Report 32 (1996) (noting that "[i]t has been speculated 

that juries may not be fully aware of the implications of parole 

abolition and truth in sentencing and may be inflating their 

sentences"); Robert A. Weninger, Jury Sentencing in Noncapital 

Cases: A Case Study of El Paso County, Texas, 45 J. Urb. & 

Contemp. L. 3, 13 (1994) (asserting without support that "almost 

everyone understood that only rarely would the offender serve the 

entire sentence"). 
 14 

"evidence in mitigation of the offense relevant to the 

defendant's past record and the nature of his conduct in 

committing the crime." Coppola v. Commonwealth, 220 Va. 243, 

254, 257 S.E.2d 797, 805 (1979); see Sheppard v. Commonwealth, 

250 Va. 379, 391, 464 S.E.2d 131, 138 (1995). Additionally, 

victim impact statements are also relevant to punishment, at 

least in capital sentencings. See Weeks v. Commonwealth, 248 Va. 

460, 476, 450 S.E.2d 379, 389 (1994). The specific harm caused 

by the defendant is probative of "'the defendant's moral 

culpability and blameworthiness.'" Weeks, 248 Va. at 476, 450 

S.E.2d at 390 (quoting Payne v. Tennessee, 501 U.S. 808, 835 

(1991)). These factors are relevant to punishment because they 

concern the defendant himself, the nature of the offense, and the 

effects of his offense. See Mosby, 24 Va. App. at 292, 482 

S.E.2d at 75. 

 In contrast, the Virginia Supreme Court has also ruled on 

several types of information not relevant to punishment. 

"Evidence as to the result of another defendant's trial for the 

same crime is irrelevant to the determination by the jury of the 

appropriate punishment for the defendant whose sentence is being 

weighed." Coppola, 220 Va. at 254, 257 S.E.2d at 805; Sheppard, 

250 Va. at 390-91; 464 S.E.2d at 138. Under the mandated 

statutory review of capital cases, the Supreme Court must compare 

the sentence in a particular case to similar cases, but a jury 

has no such responsibility. See id. The Supreme Court has also 
 15 

held that a jury should not consider "residual doubt" about guilt 

while sentencing, see Stockton v. Commonwealth, 241 Va. 192, 211, 

402 S.E.2d 196, 207 (1991), nor the possibility that 

later-discovered evidence may demonstrate the innocence of the 

defendant. See Frye v. Commonwealth, 231 Va. 370, 393, 345 

S.E.2d 267, 283 (1986). All of these factors might tend to 

influence a jury's decision as to the amount of confinement, but 

they are not "relevant to punishment." 

 Relevant factors concern the defendant's character — his 

past record and moral culpability at time of the offense — and 

the offense itself — the nature of the defendant's behavior and 

the impact on the victim. Those not relevant to sentencing 

concern independent events occurring after the offense — a 

codefendant's trial, residual doubt by the jury, or the 

possibility of new evidence. These factors involve matters over 

which the defendant has no control and for which he has no blame. 

 Whether or not the defendant is eligible for parole falls 

squarely within the second category. This rationale is further 

supported by the fact that all convicted felons are now paroleineligible: that status now has absolutely no dependence on a 

particular defendant's character or culpability. 

 We are not persuaded by the argument that the jury will 

impose a more severe sentence under the false belief that parole 

exists. A jury is charged to fix a sentence within the statutory 

range, commensurate with the nature of the offense. We shall not 
 16 

presume that our juries routinely disobey this charge by 

speculating as to parole possibilities.3

 We note that an instruction informing the jury that parole 

has been abolished may mislead the jury into thinking that the 

defendant will serve all of the time it imposes; under the Code a 

convicted felon is still entitled to accumulate credit for good 

behavior. See Code § 53.1-202.3.4 Additionally, because parole 

has not been absolutely abolished, see note 1, supra, the jury 

would have to make a legal determination that this defendant is 

in fact ineligible for parole: a role reserved for the judge. 

See Fitzgerald v. Commonwealth, 249 Va. 299, 306, 455 S.E.2d 506, 

510 (1995), cert. denied, 116 S. Ct. 1279 (1996). Finally, the 

trial judge, who is aware of the parole laws, has the power to 

modify any jury sentence, within statutory limits. A defendant 

given an extraordinarily harsh sentence, therefore, has recourse. 

"[U]nder the Virginia practice, the punishment as fixed by the 

jury is not final or absolute, since its finding on the proper 

punishment is subject to suspension by the trial judge, in whole 

 

 3The jury in this case was instructed to sentence Walker to 

life imprisonment or a period of not less than five years on each 

of the two robbery charges. The jury fixed the sentence at ten 

years for each charge, leading the trial judge to comment, when 

asked to reduce the sentence, "I really don't see where the 

verdicts are out of line, probably more accurate than the 

sentencing guidelines." 

 4

The Code allows a prisoner convicted of a felony committed 

after January 1, 1995, to earn a maximum credit of four and 

one-half days for each thirty days served. Therefore, a prisoner 

has the potential to serve only 85% of his time, or eight and 

one-half years out of every ten sentenced. 
 17 

or in part, on the basis of any mitigating facts that the 

convicted defendant can marshal." Vines v. Muncy, 553 F.2d 342, 

349 (4th Cir. 1977). While judges in the Commonwealth typically 

respect the jury's recommendation, modification of a jury's 

sentence is not uncommon.5

 Juries in Virginia are neither required nor entitled to 

consider parole eligibility, either by the federal Constitution 

or the law extant in the Commonwealth. This rule is based on the 

separation between the branches of government as well as 

compelling practical considerations. The recent amendment to the 

parole laws does not require us to depart from the rule. We find 

that Walker was not entitled to his requested instruction. 

 For the reasons stated, we affirm the convictions. 

 Affirmed.

 

 5In 1996, judges modified 20% of the total number of jury 

sentences reported to the Virginia Criminal Sentencing 

Commission. See Annual Report at 34. 
 18 

Annunziata, J., concurring. 

 The disposition of this appeal is governed by the recent 

decision of a panel of this Court in Mosby v. Commonwealth, 24 

Va. App. 284, 482 S.E.2d 72 (1997). I write to address further 

the issue whether the abolition of parole in Virginia for all 

felony offenses, under Code § 53.1-165.1, is "relevant . . . 

evidence related to punishment" in a bifurcated sentencing 

proceeding under Code § 19.2-295.1. 

 Under the former unitary trial procedure, before the 

abolition of parole for all felony offenses, the principle was 

well established that "the trial court should not inform the jury 

that its sentence, once imposed and confirmed, may be set aside 

or reduced by some other arm of the State." Hinton v. 

Commonwealth, 219 Va. 492, 495, 247 S.E.2d 704, 706 (1978). Both 

appellant and the dissent argue that the General Assembly ipso 

facto rendered this principle a nullity by making "fundamental 

changes" in felony sentencing procedures, viz., by bifurcating 

the guilt and sentencing aspects of trial, and by abolishing 

parole for all felony offenses. I find their position 

unsupported either in controlling case precedent or by the acts 

of the General Assembly. 

 The bifurcated felony trial was not unknown in the 

Commonwealth prior to the enactment of Code § 19.2-295.1. Such 

was, and continues to be, the trial procedure in the prosecution 

of capital murder offenses. Gilliam v. Commonwealth, 21 Va. App. 
 19 

519, 523, 465 S.E.2d 592, 594 (1996). In the context of 

bifurcated capital murder trials conducted prior to the enactment 

of Code § 19.2-295.1, the Supreme Court consistently applied the 

well established principle that information concerning parole 

eligibility is not relevant evidence to be considered by the 

jury. See Eaton v. Commonwealth, 240 Va. 236, 248, 397 S.E.2d 

385, 392 (1990), cert. denied, 502 U.S. 824 (1991) ("Information 

concerning parole eligibility is not relevant evidence to be 

considered by the jury."); King v. Commonwealth, 243 Va. 353, 

368, 416 S.E.2d 669, 677, cert. denied, 506 U.S. 957 (1992). 

 When enacting Code § 19.2-295.1, the General Assembly did 

not identify the specific evidence related to punishment that it 

considered "relevant" for the jury's consideration during the 

sentencing phase of a bifurcated felony trial. Pursuant to 

established principles of statutory construction, however, this 

Court has repeatedly interpreted the legislature's decision to 

expand the bifurcated trial procedure to all felony jury trials 

in light of the principles developed in the context of capital 

murder trials. See Gilliam, 21 Va. App. at 522-23, 465 S.E.2d at 

594; Bunn v. Commonwealth, 21 Va. App. 593, 598, 466 S.E.2d 744, 

746 (1996). Applying the same principles here, the conclusion 

follows that evidence regarding parole is not relevant evidence 

related to punishment under Code § 19.2-295.1. 

 Both appellant and the dissent argue that such analysis is 

no longer controlling in light of the United States Supreme 
 20 

Court's decision in Simmons v. South Carolina, 512 U.S. 154, 114 

S. Ct. 2187 (1994), which "substantially abrogated" the principle 

that information concerning parole is not relevant evidence 

related to punishment in capital cases. Simmons, however, has no 

bearing on the question whether the General Assembly's extension 

of the bifurcated sentencing proceeding from capital trials to 

all felony trials requires that the jury be provided information 

concerning parole. The rule of Simmons is "that where the State 

puts the defendant's future dangerousness in issue, and the only 

available alternative sentence to death is life imprisonment 

without parole, due process entitles the defendant to inform the 

capital sentencing jury . . . that he is parole ineligible." 

Mueller v. Murray, 252 Va. 356, 362, 478 S.E.2d 542, 546-47 

(1996). The due process rationale of Simmons applies only when 

each of the following predicates is met, viz., (1) future 

dangerousness is at issue; (2) the jury is faced with a choice 

between death and life imprisonment; and (3) the defendant is, in 

fact, parole ineligible. See Roach v. Commonwealth, 251 Va. 324, 

346, 468 S.E.2d 98, 111, cert. denied, __ U.S. __, 117 S. Ct. 365 

(1996); Mosby, 24 Va. App. at 290, 482 S.E.2d at 74. Where the 

aforementioned predicates are met, parole ineligibility is 

relevant for the jury's consideration: the issue is whether a 

defendant who will never be released from incarceration actually 

poses a future danger to society.6

 It simply does not follow, 

 

 6While future dangerousness was arguably at issue in the 
 21 

however, that parole ineligibility is relevant for the jury's 

consideration in every case simply because a bifurcated 

sentencing proceeding is undertaken.7

 Moreover, the enactment of Code § 53.1-165.1 is not the 

first act of the General Assembly to abolish parole in Virginia. 

 In July 1982, the General Assembly abolished parole for threetime felony offenders. See Code § 53.1-151(B)(1). In that 

context, the arguments now raised for instructing the jury on the 

abolition of parole were rejected. See Peterson v. Commonwealth, 

225 Va. 289, 296-97, 302 S.E.2d 520, 525, cert. denied, 464 U.S. 

865 (1983); Williams v. Commonwealth, 234 Va. 168, 178-80, 360 

 

present case, Simmons does not apply here because the jury was 

not faced with a choice between death and life imprisonment. See

Mosby, 24 Va. App. at 290, 482 S.E.2d at 74. 

 7Indeed, the rationale of Simmons would not obtain even in a 

capital sentencing proceeding where a sentence of death was 

predicated on "vileness" rather than "future dangerousness," 

notwithstanding the bifurcated nature of the proceeding and the 

fact that the defendant was parole ineligible. See Cardwell v. 

Commonwealth, 248 Va. 501, 515, 450 S.E.2d 146, 155 (1994), cert. 

denied, __ U.S. __, 115 S. Ct. 1826 (1995) (suggesting Simmons

not applicable where punishment fixed upon "vileness" predicate). 

 The fact of parole ineligibility bears no relation to the 

vileness of the crime. 
 22 

S.E.2d 361, 368 (1987), cert. denied, 484 U.S. 1020 (1988).8

 

Peterson compels the conclusion that there is no basis for 

finding that, by abolishing parole for all convicted felons, the 

General Assembly intended to override the principle enunciated 

time and again by the Virginia Supreme Court that information 

concerning parole eligibility or ineligibility is not relevant 

for the jury's consideration. 

 The United States Supreme Court's decision in Simmons does 

 

 8In Peterson, the Supreme Court of Virginia considered two 

questions. First, the propriety of an instruction similar to the 

one at issue in this case given in response to a jury question 

regarding parole eligibility and, second, whether the 

legislature's amendment to Code § 53.1-151(B)(1), which made a 

person convicted of three separate offenses of armed robbery 

ineligible for parole, required an instruction to that effect. 

Turning aside the failure of Peterson to object when the trial 

court declined to instruct the jury about his parole 

ineligibility and gave instead the instruction approved in 

Clanton v. Commonwealth, 223 Va. 41, 54-55, 286 S.E.2d 172, 

179-80 (1980), and Hinton v. Commonwealth, 219 Va. 492, 247 

S.E.2d 704 (1978), that the jury "should not concern [itself] 

with what may thereafter happen," the Supreme Court addressed the 

second question regarding the effect of the legislative amendment 

on the Court's prior holding. It stated: "We need not consider 

the effect of this statutory amendment [which followed Clanton

and Hinton] because we rely upon and reaffirm the principle 

enunciated in [those two prior cases] that it is improper to 

inform the jury as to the possibility of parole." Peterson, 225 

Va. at 297, 302 S.E.2d at 525. 
 23 

not affect such an analysis. Simmons does not support the 

proposition that the fact of parole ineligibility alone requires 

that the jury be so informed. See Roach, 251 Va. at 346, 468 

S.E.2d at 111; Mosby, 24 Va. App. at 290, 482 S.E.2d at 74. 

Indeed, while acknowledging the Simmons holding in cases in which 

the defendant was parole eligible (or had simply failed to 

establish parole ineligibility) and thus was not entitled to the 

instruction, the Virginia Supreme Court has persisted in noting 

its "consistent[] reject[ion of] efforts to permit jurors to 

consider a defendant's parole eligibility or ineligibility." See

Clagett v. Commonwealth, 252 Va. 79, 94, 472 S.E.2d 263, 272 

(1996), cert. denied, __ U.S. __, 117 S. Ct. 972 (1997); Joseph 

v. Commonwealth, 249 Va. 78, 83-84, 452 S.E.2d 862, 866, cert. 

denied, __ U.S. __, 116 S. Ct. 204 (1995) (citing the pre-Simmons

cases of King v. Commonwealth, 243 Va. 353, 368, 416 S.E.2d 669, 

677, cert. denied, 506 U.S. 957 (1992), and Yeatts v. 

Commonwealth, 242 Va. 121, 127, 410 S.E.2d 254, 258 (1991), cert. 

denied, 503 U.S. 371 (1992), for the same principle). 

 In sum, I find no support in the controlling jurisprudence 

of this Commonwealth for the proposition that either the fact of 

bifurcation or the fact of parole abolition renders a defendant's 

status as parole ineligible relevant evidence for the jury's 

consideration at sentencing. It does not follow that the General 

Assembly ipso facto rendered this jurisprudence a nullity by 

expanding the bifurcated procedure to all felony trials and by 
 24 

abolishing parole for all convicted felons. 

 To the contrary, nothing in the express language of either 

of the applicable Code sections compels the conclusion that the 

abolition of parole is relevant evidence for the jury's 

consideration. Furthermore, as discussed above, when enacting 

Code §§ 19.2-295.1 and 53.1-165.1 the General Assembly was acting 

in an area in which the Virginia Supreme Court had already 

spoken. As such, the General Assembly "is presumed to [have] 

know[n] the law as the Court has stated it and to [have] 

acquiesce[d] therein.'" Gilliam, 21 Va. App. at 524, 465 S.E.2d 

at 595 (quoting McFadden v. Commonwealth, 3 Va. App. 226, 230, 

348 S.E.2d 847, 849 (1986)). 

 Finally, and perhaps most telling, in 1996 the General 

Assembly failed to approve a bill which would have amended Code 

§ 19.2-295.1 to read as follows: 

 Upon request of the Commonwealth or the 

defendant, the court shall instruct the jury 

that parole has been abolished for felony 

offenses occurring on or after January 1, 

1995, and on the law regarding the 

defendant's eligibility for release. 

Senate Bill No. 477 (Offered January 22, 1996).9

 

 9The merit of the recommendations made by the Sentencing 

Commission to the General Assembly to which the dissent alludes 

are not at issue. The issue is how, if at all, the General 

Assembly has responded to those recommendations in light of the 

established jurisprudence in the Commonwealth. Furthermore, 
 25 

 

Benton, J., dissenting. 

 By statute, the General Assembly has mandated that "[a]ny 

person sentenced to a term of incarceration for a felony offense 

committed on or after January 1, 1995, shall not be eligible for 

parole upon that offense." Code § 53.1-165.1. I would hold that 

the trial judge erred in denying Walker's proposed instruction, 

which would have informed the jury that parole has been abolished 

in Virginia.10 I therefore dissent. 

 I. 

 The majority opinion essentially relies upon this Court's 

while I agree that important values are at stake in this case, 

not the least of which is the value the judicial system places on 

informed decision-making by both judge and jury alike, I believe 

that, in light of the established law of the Commonwealth, the 

issue is one properly left to the General Assembly. In its 1996 

Session, the General Assembly plainly rejected a bill which would 

have required that juries be instructed with respect to the 

abolition of parole. Although the issue was again raised by the 

Virginia Criminal Sentencing Commission's 1996 Annual Report, the 

General Assembly took no action on the issue in its 1997 Session. 

 10"The essence of parole is release from prison, before the 

completion of sentence, on the condition that the prisoner abide 

by certain rules during the balance of the sentence." Morrissey 

v. Brewer, 408 U.S. 471, 477 (1972). 
 26 

recent decision in Mosby v. Commonwealth, 24 Va. App. 284, 482 

S.E.2d 72 (1997), and cases decided upon proceedings that arose 

under recently abandoned sentencing procedures and before parole 

was abolished.11 Although this Court in Mosby held "that in 

 11Citing several capital murder cases in which the jury was 

not instructed on parole before the jury imposed the death 

penalty, see, e.g., Joseph v. Commonwealth, 249 Va. 78, 83-84, 

452 S.E.2d 862, 866, cert. denied, ___ U.S. ___, 116 S. Ct. 204 

(1995), the concurring opinion posits that the Supreme Court has 

"consistently applied the well-established principle that 

information concerning parole eligibility is not relevant." That 

analysis ignores the holding in Simmons v. South Carolina, 512 

U.S. 154, 171, 114 S. Ct. 2187, 2198 (1994), that when future 

dangerousness is at issue a parole ineligible defendant is 

entitled as a matter of due process to an instruction on the 

unavailability of parole in a capital case. Moreover, the Court 

ruled in Joseph that the defendant was eligible for parole. See

249 Va. at 84, 452 S.E.2d at 866; see also Clagett v. 

Commonwealth, 252 Va. 79, 94, 472 S.E.2d 263, 272 (1996), cert.

denied, ___ U.S. ___, 117 S. Ct. 204 (1997) (finding that 

Clagett, who sought a parole ineligibility instruction for the 

sentencing of a non-capital charge, failed to prove he was parole 

ineligible). The other death penalty cases cited in the 

concurring opinion, King v. Commonwealth, 243 Va. 353, 416 S.E.2d 

669 (1992); Eaton v. Commonwealth, 240 Va. 236, 397 S.E.2d 385 
 27 

noncapital felony cases a trial judge is not required to instruct 

the jury that the defendant, if convicted, will be ineligible for 

parole," id. at 286, 482 S.E.2d at 72, I believe that decision 

fails to take into account the effect of the significant 

statutory changes in Virginia law. 

 In addition to abolishing parole, the General Assembly 

revised jury sentencing procedures to provide for bifurcated jury 

trials in non-capital felony prosecutions. See Code 

§ 19.2-295.1. Code § 19.2-295.1 fundamentally changed the nature 

of sentencing proceedings in non-capital jury trials. As a 

result, the concerns that previously justified depriving the jury 

of information concerning parole no longer exist.12 

 

(1990); and Williams v. Commonwealth, 234 Va. 168, 360 S.E.2d 361 

(1987), were all decided before Simmons. The holding in Simmons

now renders the former Virginia rule invalid as to all capital 

cases where future dangerousness is an issue. Thus, the formerly 

"well-established principle" has been substantially abrogated by 

the United States Supreme Court. 

 12The concurring opinion states that "the arguments now 

raised for instructing the jury on the abolition of parole were 

rejected" in Peterson v. Commonwealth, 225 Va. 289, 296-97, 302 

S.E.2d 520, 525 (1983). However, the Supreme Court stated that 

it "need not consider the effect of [the 1982] . . . statutory 

amendment" abolishing parole for repeat offenders. Id. at 297, 
 28 

 Under the previous sentencing scheme, juries in non-capital 

cases would both determine guilt and impose a sentence after a 

single, unitary trial. The only criteria juries could consider 

in sentencing were the range of punishment for the offense and 

the facts germane to the commission of the offense. "The theory 

of our [previous] unitary jury trial [procedure was] that the 

jury [was] to sentence the offense rather than the offender." 

Smith v. Commonwealth, 223 Va. 721, 725-26, 292 S.E.2d 362, 365 

(1982) (Russell, J., dissenting). Thus, evidence of aggravating 

and mitigating factors was not admissible before the jury at the 

trial of a non-capital criminal offense. See Weeks v. 

Commonwealth, 248 Va. 460, 476, 450 S.E.2d 379, 389-90 (1994); 

Duncan v. Commonwealth, 2 Va. App. 342, 345-47, 343 S.E.2d 392, 

394-95 (1986). By contrast, under the new procedure, at the 

separate sentencing hearing, "the Commonwealth shall present the 

defendant's prior criminal convictions," Code § 19.2-295.1, and 

the defendant may introduce relevant mitigating evidence. See

Pierce v. Commonwealth, 21 Va. App. 581, 466 S.E.2d 130 (1996). 

The new bifurcated procedure therefore permits an inquiry that is 

significantly broader in scope.13

 

302 S.E.2d at 525. Moreover, the Court held that Peterson failed 

to object and the judge correctly declined to raise the issue sua

sponte. See id.

 13The concurring opinion compares today's bifurcated 
 29 

 In addition, within the context of the former unitary trial 

procedure, the Supreme Court enunciated the rule that in a 

non-capital jury sentencing "the trial [judge] should not inform 

the jury that its sentence, once imposed and confirmed, may be 

set aside or reduced by some other arm of the State." Hinton v. 

Commonwealth, 219 Va. 492, 495, 247 S.E.2d 704, 706 (1978). 

Significantly, the Supreme Court noted that "[t]he aim of the 

rule . . . [was] to preserve, as effectively as possible, the 

separation of . . . [the] functions [of the judicial and 

executive branches] during the process when the jury is fixing 

the penalty, in full recognition of the fact that the average 

juror is aware that some type of further consideration will 

usually be given to the sentence imposed." Id. at 496, 247 

S.E.2d at 706. In crafting the new sentencing scheme, however, 

the General Assembly eliminated parole -- the mechanism used by 

 

sentencing scheme, in which parole is undoubtedly unavailable, to 

the bifurcated capital murder proceedings that pre-dated the new 

law abolishing parole. It is true that juries are given broad 

discretion under both schemes. However, the important 

distinction is that today juries may be exercising their 

discretion under the misconception that parole is still 

available. Under the prior capital murder sentence scheme, 

juries were correct in their belief that parole was available 

and, thus, were not as likely to abuse their discretion. 
 30 

the executive branch to reduce jury sentences. Thus, the need to 

separate the sentencing function of the judiciary from the role 

of the executive branch in granting parole is no longer a 

consideration.14 

 The Supreme Court also reasoned in Jones v. Commonwealth, 

194 Va. 273, 72 S.E.2d 693 (1952), that a jury should not be 

informed of parole eligibility because "[s]uch a practice would 

permit punishments to be based on speculative elements, rather 

 

 14I disagree with the conclusion reached in the concurring 

opinion that the General Assembly has somehow acquiesced in the 

court-made rule announced in Hinton. When the General Assembly 

abolished parole and revised the jury sentencing procedure, the 

General Assembly ipso facto rendered the Hinton rule a nullity. 

The rule was judicially created "to preserve, as effectively as 

possible, the separation of . . . [the] functions [of the 

judicial and executive branches] during the process when the jury 

is fixing the penalty, in full recognition of the fact that the 

average juror is aware that some type of further consideration 

will usually be given to the sentence imposed." 219 Va. at 496, 

247 S.E.2d at 706. Now that the General Assembly has rendered 

moot the concern about separation of powers, the judiciary has 

complete power to modify the rule that the judiciary itself 

created. Changed circumstances and the imperative to avoid 

misleading juries require judicial action. 
 31 

than on the relevant facts of the case, and would lead inevitably 

to unjust verdicts." Id. at 279, 72 S.E.2d at 697. However, 

because the law today is unambiguous -- parole is completely 

unavailable to all convicted felons -- the jury's consideration 

of that fact would not be speculative. On the contrary, 

informing the jury of the now-certain fact that parole has been 

abolished would eliminate the very speculation that previously 

concerned the Supreme Court. 

 In view of the legislature's abolition of the long standing 

tradition of parole and the new bifurcated jury sentencing 

procedure, we mislead jurors and prejudice defendants when we 

fail to inform jurors that parole is no longer available. 

 II. 

 The overriding purpose of jury instructions is to inform the 

jury of the applicable law. See Cooper v. Commonwealth, 2 Va. 

App. 497, 500, 345 S.E.2d 775, 777 (1986). To that end, the 

trial judge must instruct the jury in a manner that will aid the 

jury in reaching a proper verdict and that will avoid misleading 

the jury. See id.; see also 75A Am. Jur. 2d Trial § 1077 (1991). 

 "[W]hen a principle of law is vital to a defendant in a criminal 

case, a trial court has an affirmative duty properly to instruct 

a jury about the matter." Jimenez v. Commonwealth, 241 Va. 244, 

250, 402 S.E.2d 678, 681 (1991). It is error not to instruct the 

jury when the jury may make findings based upon a mistaken belief 

of the law. See Martin v. Commonwealth, 218 Va. 4, 7, 235 S.E.2d 
 32 

 

304, 305 (1977) (per curiam). 

 Walker's proffered instruction was necessary because the 

unavailability of parole was a relevant factor to consider in 

determining the proper length of his sentence. The 

Commonwealth's attorney argued to the jury the concept of future 

dangerousness when he asserted: 

 The defendant's behavior in this case was 

more than wrong. It is scary and it is 

dangerous. It is life threatening. This 

defendant is dangerous and needs to be kept 

off the street for a very long time. I am 

asking you all to consider the facts in this 

case and sentence him accordingly. 

That argument highlights the relevancy of the duration of the 

sentence that the jury was asked to levy. The unavailability of 

parole is unquestionably relevant to the jury's determination of 

a proper sentence because it reflects the Commonwealth's policy 

that the defendant will actually serve a sentence of 

approximately the same length as the sentence levied by the 

jury.15

 15The role and effect of parole on a jury's determination of 

punishment is demonstrated by the numerous cases cited by the 

majority in which a jury asked the trial judge for information 

about parole. See Clagett v. Commonwealth, 252 Va. 79, 94, 472 

S.E.2d 263, 272 (1996), cert. denied, ___ U.S. ___, 117 S. Ct. 

972 (1997); Peterson v. Commonwealth, 225 Va. 289, 296-97, 302 

S.E.2d 520, 525 (1983); Hinton v. Commonwealth, 219 Va. 492, 493, 

247 S.E.2d 704, 705 (1978); Jones v. Commonwealth, 194 Va. 273, 
 33 

 As a practical matter, it is well known that "[f]or much of 

our country's history, parole was a mainstay of state and federal 

sentencing regimes, and every term (whether a term of life or a 

term of years) in practice was understood to be shorter than the 

stated term." Simmons v. South Carolina, 512 U.S. 154, 169, 114 

S. Ct. 2187, 2197 (1994) (plurality opinion). No great leap in 

logic is required to conclude that because of that history, the 

jury reasonably could have concluded that Walker's sentence 

should be increased beyond the appropriate duration to counteract 

the effect of his likely early parole release. 

 Moreover, the jurors were most likely misinformed about the 

current state of Virginia law on parole eligibility. The 

abolition of parole in Virginia is a recent change in the law. 

Indeed, the Virginia Criminal Sentencing Commission, which was 

created by the General Assembly for the purpose, inter alia, of 

"[m]onitor[ing] sentencing practices in felony cases . . . and 

maintain[ing] a database containing the information obtained," 

Code § 17-235(7), has reported as follows: 

 Many judges have argued that parole 

ineligibility information should be provided 

so that jurors can make more informed 

sentence decisions. It is felt by some that 

most jurors are not aware of the impact of 

the new legislation and may be setting long 

prison terms in the mistaken belief that only 

 

275, 72 S.E.2d 693, 694 (1952); Coward v. Commonwealth, 164 Va. 

639, 642, 178 S.E. 797, 798 (1935); Mosby v. Commonwealth, 24 Va. 

App. 284, 482 S.E.2d 72 (1997). 
 34 

a small portion will actually be served, as 

occurred under the old parole system. 

Va. Crim. Sentencing Comm'n Ann. Rep. 65 (1995) [Hereinafter 1995 

Rep.]. The Commission's 1996 Annual Report notes that "[i]t has 

been speculated that jurors may not be fully aware of the 

implications of parole abolition and truth in sentencing and may 

be inflating their sentences." Va. Crim. Sentencing Comm'n Ann. 

Rep. 32 (1996). Similarly, a study in Texas, a state that also 

traditionally has had jury sentencing, found that among jurors 

"almost everyone understood that only rarely would the offender 

serve the entire sentence." Robert A. Weninger, Jury Sentencing 

in Noncapital Cases: A Case Study of El Paso County, Texas, 45 

Wash. U. J. Urb. & Contemp. L. 3, 13 (1994). In light of the 

prevalent misconception, the Virginia Criminal Sentencing 

Commission recommended that the law be changed to allow for "jury 

instructions on the abolition of parole and the 85% minimum time 

served requirement for offenders sentenced under the new truth in 

sentencing system." 1995 Rep. at 64. 

 Adding to jurors' misconception about parole eligibility, 

under the new sentencing procedures the jury is now given copies 

of the defendant's prior record of conviction. See Gilliam v. 

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

many instances a jury will have evidence that the defendant was 

previously released on parole before completing an earlier 

imposed sentence. See id. at 525-26, 465 S.E.2d at 595 (holding 

that information regarding the defendant's prior sentences may be 
 35 

included in the record of conviction submitted to the jury). 

From this evidence, a jury will likely infer that its sentence 

may be tempered by early release on parole. 

 The courts should not permit jurors to sentence based upon 

the erroneous belief that parole still exists. "The promise of a 

community judgment about proper punishment is merely an illusion 

if those acting on behalf of the community do not know what the 

sentence they impose actually will mean . . . ." Governor's 

Comm'n on Parole Abolition & Sentencing Reform Final Rep. 25 

(1994). Indeed, when we give "full recognition [to] the fact 

that the average juror [believes] . . . that some type of further 

consideration will usually be given to the sentence imposed," 

Hinton, 219 Va. at 496, 247 S.E.2d at 706, the imperative to give 

the jury an easy to understand and legally accurate instruction 

that parole has been abolished is manifest. The failure to 

inform the jury in effect ensures that the jury will be misled. 

"[A] juror with misconceptions about the operation of the parole 

laws could easily infect the other jurors with these 

misconceptions and thereby cause the assessment of a sentence [to 

be] based on erroneous beliefs as to when the defendant will 

really 'get out.'" Note, Jury Sentencing in Virginia, 53 Va. L. 

Rev. 968, 984 (1967). 

 Obviously, if the jury is uncertain about the defendant's 

parole eligibility, the jury's recourse is to impose a lengthier 

sentence for the purpose of ensuring the defendant actually 
 36 

serves a sentence of the desired duration. To fail to inform the 

jury that parole has been abolished is to risk "subvert[ing] the 

will of the legislature by [allowing a jury to impose] a longer 

sentence than is warranted simply in order to ensure that the 

defendant's actual period of confinement corresponds to what [the 

jury] feels is the defendant's due."16 Id. The prejudice to the 

defendant is manifest. 

 I dissent. 

 

 16The inescapable conclusion to be drawn from the majority 

opinion is that a certain degree of jury ignorance can be 

tolerated. When parole was available, the jury was not 

instructed on parole issues because parole was not a judicial 

matter. Furthermore, the harm of jury ignorance was outweighed 

by compelling concerns about the separation of the judicial and 

executive functions and the possibility of jury speculation. 

With the abolition of parole, the reasons for depriving the jury 

of complete and accurate information about the state of the law 

no longer exist. With no compelling reason to withhold relevant 

information from the jury, the majority opinion cites Mosby and 

merely adopts the ruling of prior Supreme Court cases that were 

decided in a different statutory context. The effect of so doing 

is to unnecessarily countenance ignorance in the administration 

of justice.