Present: All the Justices 

COMMONWEALTH OF VIRGINIA 

v. Record No. 980187 

VERNON LEROY SHIFFLETT 

OPINION BY JUSTICE A. CHRISTIAN COMPTON 

 January 8, 1999 

COMMONWEALTH OF VIRGINIA 

v. Record No. 980188 

EMMITT LARON TAYLOR 

FROM THE COURT OF APPEALS OF VIRGINIA 

 These two criminal appeals, involving findings of guilty in 

noncapital felony prosecutions, present a common issue: Did the 

Court of Appeals of Virginia err in reversing the respective 

circuit courts, which limited evidence the defendants sought to 

introduce during the sentencing proceedings conducted as part of 

the bifurcated jury trials? 

 Code § 19.2-295.1 sets forth the procedure in such cases. 

It provides, in part, that after the prosecution has had the 

opportunity to present evidence of the defendant's prior 

convictions, "the defendant may introduce relevant, admissible 

evidence related to punishment." We are concerned here with the 

meaning of the statutory term "relevant." 

 At the outset, we issue a caveat. We shall adhere strictly 

to the content of the records made in the respective trial 
courts, a practice not followed in either of these cases by the 

Court of Appeals, as we shall demonstrate. 

 In one case, appellee Vernon Leroy Shifflett was found 

guilty by a jury in the Circuit Court of Albemarle County of 

operating a motor vehicle on a public highway in January 1995 

after having been adjudicated an habitual offender, it being a 

second or subsequent offense. 

 Prior to commencement of the sentencing proceeding, the 

trial court and counsel discussed "what's relevant" with 

reference to punishment. The attorney for the defendant 

represented to the court, "I do intend to put on mitigating 

testimony about his employment, his family responsibilities." 

 Responding, the court mentioned "factors" that may be 

relevant to punishment, "range of punishment established by 

legislature, injury to the victim, use of weapon, extent of 

offender's participation, the offense, offender's motive in 

committing the offense, prior record and rehabilitative efforts, 

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

prosecutor then stated, "Why he did it . . . is relevant . . . . 

But not his job responsibilities and his family responsibilities 

and the fact that impliedly the common law wife and the children 

are going to have to make it without him for a while. That has 

no relevance to it." Defense counsel responded, "I think it 

does, I think it does." 

2
 The trial judge then ruled he would limit the defendant's 

evidence to the applicable factors previously mentioned and 

said, "one of them isn't how the family is affected by it." The 

prosecutor and the court then agreed with defense counsel that 

"defendant's motive for committing the offense" was admissible. 

Defendant's girlfriend, and mother of his two small children, 

claimed she had become ill while driving defendant home from 

work, necessitating defendant becoming the operator of the 

vehicle and resulting in his arrest. 

 Continuing, defense counsel argued to the trial court that 

he wished to present evidence of the girlfriend's participation 

in the offense "and what happened that day and the mitigating 

factor that led him to be behind the wheel [and] testimony from 

her about his support of the children, his income -- the income 

that the family has that he brings in and support for her 

position that she did have those spells and the doctor is here 

now to testify on the treatment that she's had, to verify what 

she says and that goes to why he took the wheel, the offender's 

motive for committing the offense." Responding, the court 

stated that evidence of defendant's "motive to commit the 

offense" would be admissible. 

 The prosecutor then stated he did not object to testimony 

from the girlfriend's physician but said, "I do object to her 

getting on the stand and saying I only make so much money and I 

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have to take care of the kids and all those other things." 

Defense counsel answered, "I think that should come in." The 

court ruled, "And that's what I'm ruling is not coming in." 

 During presentation of the evidence during the sentencing 

phase, the court adhered to its prior rulings that were based on 

defendant's arguments presented to the court. The girlfriend 

testified she became dizzy, could no longer operate the vehicle 

safely, and was forced to allow the defendant to drive. The 

girlfriend's physician testified he had been treating her for 

vertigo. The defendant's employer, a painter, testified 

defendant worked for him but the trial court refused to allow 

testimony about "defendant's present employment," the trial 

judge stating he was being consistent with his prior ruling. 

 After the jury retired to deliberate punishment, defense 

counsel stated to the court that "with regard to Mr. Leroy 

Shifflett's employment, Your Honor, that was certainly relevant 

in terms of where he worked, how he got back and forth to work, 

what he made in his employment, credentials and how good a 

worker he was. That's certainly all very relevant." The court 

responded that "employment" was not among the "factors" 

discussed earlier that was relevant to punishment. 

 The jury fixed defendant's punishment to confinement in the 

penitentiary for three years. After the jury was discharged and 

before the court sentenced defendant, he presented testimony of 

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his employer. He stated that he had employed defendant for four 

months, that defendant was an "excellent" worker, that he (the 

employer) "need[s]" defendant because he had "a lot of . . . 

work lined up in the future," and that defendant had been able 

to find persons to drive him to work. The court sentenced 

defendant in accordance with the verdict in a September 1995 

judgment order. 

 Upon appeal, a three-judge panel of the Court of Appeals, 

one judge dissenting, affirmed the conviction and sentence. 

Shifflett v. Commonwealth, 24 Va. App. 538, 484 S.E.2d 134 

(1997). The court stated that defendant contended on appeal 

"the trial court erred in preventing him from eliciting 

testimony at the sentencing phase of his trial concerning the 

impact of his incarceration upon his family and his employment." 

Id. at 540, 484 S.E.2d at 135 (emphasis added). The court held 

the trial court did not abuse its discretion in refusing to 

allow defendant "to elicit testimony from his girlfriend and 

employer concerning the financial impact his incarceration would 

have on his family and employer." Id. at 543, 484 S.E.2d at 

136. That testimony, the court said, was "not relevant evidence 

related to punishment for consideration by the jury under 

Virginia law." Id., 484 S.E.2d at 137. 

 Upon rehearing en banc, the Court of Appeals, in a 6-3 

decision, reversed the case and remanded it for a new sentencing 

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proceeding. Shifflett v. Commonwealth, 26 Va. App. 254, 261, 

494 S.E.2d 163, 167 (1997). The court stated that the 

"employer's testimony regarding Shifflett's success at work and 

his efforts to maintain a commuting schedule that obviated his 

need to drive reflects on Shifflett's 'character and 

propensities,'" which are relevant to sentencing. Id. at 260, 

494 S.E.2d at 166. The court further stated that the 

girlfriend's testimony "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." Id. at 261, 494 S.E.2d at 166. We 

awarded the Commonwealth this appeal from that judgment of the 

Court of Appeals. 

 In the other case, appellee Emmitt Laron Taylor was found 

guilty by a jury in the Circuit Court of Arlington County of 

conspiring to distribute five or more pounds of marijuana, 

possessing with the intent to distribute the same amount of the 

drug, and transporting the same amount of the drug into Virginia 

with the intent to sell or distribute it. The defendant was 

arrested on October 10, 1995 on the premises of Washington 

National Airport. 

6
 During the sentencing proceeding, the Commonwealth 

presented evidence that defendant, 22 years of age at the time 

of the February 1996 trial, had been convicted in California in 

1990 of armed robbery and in 1994 of a violation of California's 

narcotics laws. 

 Following presentation of this evidence, the defendant took 

the witness stand and was asked by his attorney to "tell the 

jury about your family." After defendant stated he had an older 

brother, an older sister, and a younger brother, and that the 

younger brother had been "killed" because "they had a grudge 

against him," the trial court sustained the prosecutor's 

objection to the testimony. A discussion followed among the 

court and counsel about what evidence was relevant to punishment 

under the applicable statute. 

 Defense counsel argued that "who Emmitt Taylor is is 

certainly a relevant issue." Responding to the court's 

question, "What do you propose to have him testify to," defense 

counsel responded, "About his life." The court interjected, 

"Life story?" and counsel responded, "Yes." 

 The court ruled that evidence "just relating the whole 

story" was inadmissible and not relevant to sentencing. After 

defense counsel said, "Note my objection, Your Honor," the court 

stated: "Now, the statute that permits relevant and admissible 

evidence from the Defendant on the sentencing phase of the case 

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is limited to that, and I don't want to limit you anymore than 

that; but it does not permit just a complete open door telling 

of everything." Defense counsel responded, "All right, Your 

Honor." 

 The sentencing phase continued with the defendant 

testifying that he was 17 years of age at the time of the armed 

robbery conviction and that he pled guilty to the narcotics 

charge because he was told it "was a juvenile matter and would 

be sealed." Responding to further questions, defendant 

testified that he had completed the 11th grade in school, and 

that he had worked as a gardener, a cook, and at a fish market. 

 The jury fixed defendant's punishment to confinement in the 

penitentiary for 18 years on each of the conspiracy and 

distribution charges and to confinement for 20 years and an 

$80,000 fine on the transporting charge. After the jury was 

discharged, the trial court granted defendant's request for a 

presentence report. 

 Six days after the jury had been discharged, the trial 

court granted defendant's request, made the day after trial, to 

have inserted in the record a proffer of testimony. Stating 

that the trial court's ruling on evidence dealing with 

punishment was "overly narrow," defense counsel offered "some 

proof of what my client would have testified to." 

8
 During the post-trial hearing, defendant testified, for 

example, that when he was age nine, his father was robbed and 

killed; that he had no "male role models growing up"; that his 

mother is a heavy drug user; that his younger half-brother was 

killed by gunshots after an argument with his assailants; that 

he had no fixed home prior to coming to Virginia; and that he 

received no "instruction as to discipline" from his family. 

 Following argument of counsel, the trial court made two 

rulings in denying what it treated as a motion to "reopen the 

case" to permit presentation of additional evidence. First, the 

court ruled that the proffer was untimely. The court stated 

that "the proffer should be made at the moment of the exclusion 

in order to give the trial court the opportunity to admit the 

evidence in the event its ruling to exclude would be deemed to 

be in error." The court continued: "However, here, the motion 

that is being made now is not timely. And that is one of the 

reasons . . . assigned for its denial." Second, the trial court 

ruled the evidence presented in the proffer was not relevant to 

sentencing. 

 In judgments of conviction entered in June 1996, the trial 

court suspended execution of the conspiracy and distribution 

sentences and imposed the transporting sentence. 

 Upon appeal, a panel of the Court of Appeals, in an 

unpublished opinion dated the same day as the Shifflett en banc

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opinion, reversed the trial court judgments and remanded for a 

resentencing hearing. Reciting only the facts presented during 

the proffer, ruled untimely by the trial court, the Court of 

Appeals said the case was controlled by the Shifflett en banc

decision. The court held: "The excluded evidence in this case 

clearly was relevant to appellant's background and family 

situation at the time of the earlier conviction and was also 

probative of his current situation." We awarded the 

Commonwealth this appeal from that judgment of the Court of 

Appeals. 

 The crucial question in these appeals is what did the 

General Assembly mean when it provided in Code § 19.2-295.1 that 

during the punishment phase of a bifurcated noncapital jury 

trial, where the defendant has been found guilty, "the defendant 

may introduce relevant . . . evidence related to punishment"? 

This statute was enacted in 1994 when Virginia changed the 

procedure in such cases from unitary to bifurcated trials. See

Acts 1994, ch. 828, 860, 881. 

 The law extant in the Commonwealth in 1994 relating to 

punishment in felony cases included the provisions of Code 

§ 19.2-264.4(B), dealing with capital murder cases, and the 

decision in Coppola v. Commonwealth, 220 Va. 243, 257 S.E.2d 797 

(1979), interpreting that statute. When Coppola was decided, as 

now, the statute provided that in capital murder cases tried by 

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jury, "evidence may be presented as to any matter which the 

court deems relevant to sentence." The statute goes on to 

provide that evidence that may be "admissible, subject to the 

rules of evidence governing admissibility," may include certain 

facts. Those are "circumstances surrounding the offense, the 

history and background of the defendant, and any other facts in 

mitigation of the offense." 

 Continuing, the statute provided that facts in mitigation 

may include, but shall not be limited to, the following: "(i) 

The defendant has no significant history of prior criminal 

activity, or (ii) the capital felony was committed while the 

defendant was under the influence of extreme mental or emotional 

disturbance or (iii) the victim was a participant in the 

defendant's conduct or consented to the act, or (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; or (v) the age of the defendant at the time of the 

commission of the capital offense." 

 In Coppola, a capital murder prosecution tried by jury, the 

defendant complained the trial court erroneously excluded the 

proffered testimony of his former wife about the adverse effect 

upon their two young sons of defendant's arrest and prosecution. 

In finding no error, the Court said "discretion is vested in the 

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trial court to determine, subject to the rules of evidence 

governing admissibility, the evidence which may be adduced in 

mitigation of the offense." Coppola, 220 Va. at 253, 257 S.E.2d 

at 804. 

 The Court stated that the proffered evidence "is irrelevant 

on the issue of mitigation. It is not analogous to any of the 

evidence specifically approved in the statute. The kind of 

evidence therein contemplated bears upon the record of the 

defendant and the atrociousness of his crime. Evidence of a 

good previous record, and extenuating circumstances tending to 

explain, but not excuse, his commission of the crime, is 

admissible mitigating evidence . . . . But the effect of his 

incarceration upon relatives is not a mitigating circumstance 

for the jury to consider." Id. at 253-54, 257 S.E.2d at 804. 

 Against this background, which delineated the types of 

factors considered "relevant" in capital cases, the General 

Assembly crafted the statute in issue dealing with noncapital 

cases. The same standard, relevant admissible evidence related 

to punishment, was included. We perceive no sound reason why 

the factors that may be considered by a jury in capital murder 

cases should not likewise be available for consideration by a 

jury in noncapital cases under § 19.2-295.1. The goal of having 

an informed jury assess appropriate punishment should be no less 

essential merely because a noncapital offense is involved. 

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 But this is not a one-way street extending only in the 

defendant's direction. The statute also permits the 

Commonwealth to introduce "relevant, admissible evidence in 

rebuttal" to that offered by the defendant. 

 Therefore, we hold that a trial court, in determining what 

evidence is relevant to punishment under Code § 19.2-295.1 may 

be guided in the exercise of its discretion, subject to the 

rules of evidence governing admissibility, by the factors set 

forth in Code § 19.2-264.4(B), as interpreted in Coppola. The 

kind of evidence contemplated by § 19.2-295.1 bears upon the 

record of the defendant and the nature of his crime. Evidence 

of a good previous record, and extenuating circumstances tending 

to explain, but not excuse, the commission of the noncapital 

crime is admissible mitigating evidence.* And, a trial court's 

discretionary ruling on this issue should not be disturbed on 

appeal absent a clear abuse of discretion. Coe v. Commonwealth, 

231 Va. 83, 87, 340 S.E.2d 820, 823 (1986). 

 

* In support of his contention that § 19.2-295.1 should be 

interpreted in a restrictive manner, the Attorney General has 

advised us that the 1995 General Assembly refused to enact House 

Bill No. 2212, which would have added language to the statute 

specifically permitting introduction of evidence about "the 

history and background of the defendant and any other facts in 

mitigation or aggravation of the offense." We are not persuaded 

by this information; the legislature may well have determined 

that such amendment was unnecessary because the statutory and 

case law already so provided. 

13
 We shall now apply the foregoing principles to the present 

cases. Initially, we observe that an appellate court ought to 

decide cases based on the record made in the court below. The 

appellate court, in fairness to the trial judge, should not 

recast the evidence and put a different twist on a question that 

is at odds with the question presented to the trial court. 

Shifflett is an example of this incorrect technique. The 

issue presented to the trial court by the defendant, as we have 

demonstrated in our summary of the record, was whether he was 

entitled to adduce testimony concerning the impact of his 

incarceration upon his family and his employment. Yet, the 

Court of Appeals said the girlfriend's testimony was offered to 

prove "that Shifflett was a responsible father who worked 

earnestly to provide for his children." Shifflett, 26 Va. App. 

at 261, 494 S.E.2d at 166. Also, the Court of Appeals said the 

employer's testimony was offered to show defendant's "character 

and propensities." Id. at 260, 494 S.E.2d at 166. Neither of 

these bases for admission of the girlfriend's and the employer's 

testimony was urged upon the trial court prior to submission of 

the case to the jury to assess punishment, and we shall not use 

those grounds to decide this appeal. 

 Instead, we hold that the trial court, consistent with 

Coppola, did not clearly abuse its discretion by refusing to 

allow evidence concerning the impact of defendant's 

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incarceration upon his family and his employment, and the Court 

of Appeals erred in ruling to the contrary. 

 The Court of Appeals' decision in Taylor presents a similar 

problem. It addressed exclusively the facts presented in the 

proffer, which the trial court explicitly refused to consider 

because it was untimely. The fact that the trial court, in an 

alternative ruling, may have erred by deciding the proffered 

material was not relevant is beside the point. The record made 

in the trial court, before defendant's sentencing was presented 

to the jury, was a request by defendant to adduce evidence about 

his "life story" that amounted to "a complete open door telling 

of everything." 

 Yet, the Court of Appeals did not address this request made 

by defendant before the jury retired. Rather, the appellate 

court said the proffered evidence "clearly was relevant to 

appellant's background and family situation." We shall not use 

the proffered evidence to decide this appeal. 

 We cannot say that the trial court clearly abused its 

discretion by refusing to admit evidence about the defendant's 

life history when the defendant made a broad, unrestricted, and 

nonparticularized request for "just relating the whole story" 

and for "just a complete open door telling of everything," and 

the Court of Appeals erred in ruling to the contrary. 

15
 Consequently, we will reverse the judgment of the Court of 

Appeals in Shifflett, and will enter final judgment here 

reinstating the sentencing order of the Circuit Court of 

Albemarle County. Likewise, we will reverse the judgment of the 

Court of Appeals in Taylor, and will enter final judgment here 

reinstating the sentencing orders of the Circuit Court of 

Arlington County. 

Record No. 980187 — Reversed and final judgment. 

Record No. 980188 — Reversed and final judgment.

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