Tywon W. Briscoe v. Commonwealth of Virginia , 26 Va. App. 415 ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Bumgardner
Argued at Alexandria, Virginia
TYWON W. BRISCOE
OPINION BY
v. Record No. 1963-96-4 JUDGE JERE M. H. WILLIS, JR.
JANUARY 27, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Arthur B. Vieregg, Jr., Judge
Steven D. Briglia (Briglia & Hundley, P.C.,
on brief), for appellant.
Richard B. Smith, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
On appeal from his conviction for aggravated malicious
wounding and the use of a firearm in the commission of a felony,
Tywon W. Briscoe contends that the trial court erred in failing
to instruct the jury that he would be ineligible for parole. We
affirm the judgment of the trial court.
On August 7, 1995, Briscoe shot Luis Glaize. A jury
convicted Briscoe of aggravated malicious wounding and use of a
firearm in the commission of a felony. The trial court
instructed the jury that the penalty range for aggravated
malicious wounding is twenty years to "imprisonment for life."
During deliberations, the jury sent the trial court a note
asking:
(1) Please provide definition (in number of
years) of "Imprisonment for life"?
(2) When is the eligibility of parole for a
20 year sentence?
In response to the first question, the trial court replied:
"'Imprisonment for life' means the plain, common definition of
those words." As to the second question, the trial court
replied:
You should impose such punishment as you
think is just under the evidence and within
the instructions of the Court. You are not
to concern yourselves with what may happen
afterwards.
The jury fixed Briscoe's punishment at thirty-two years in
prison for aggravated malicious wounding and three years for use
of a firearm in the commission of a felony. By final order, the
trial court imposed these sentences.
Our decision in this case is controlled by Mosby v.
Commonwealth, 24 Va. App. 284, 482 S.E.2d 72 (1997). In Mosby,
we held that a trial court is not required to instruct the jury
on a defendant's eligibility for parole in non-capital cases.
Id. at 286, 482 S.E.2d at 72. "Parole ineligibility" is not
based upon a defendant's character, culpability, or the nature of
the offense, and is not, therefore, relevant to punishment.
Walker v. Commonwealth, 25 Va. App. 50, 66, 486 S.E.2d 126, 134
(1997).
The trial court instructed the jurors that "imprisonment for
life" is self-explanatory and that they should not concern
themselves with what might occur in the future. These responses
to the jury's inquiries were proper. See Clagett v.
Commonwealth, 252 Va. 79, 94, 472 S.E.2d 263, 272 (1996); Clark
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v. Commonwealth, 220 Va. 201, 214, 257 S.E.2d 784, 792 (1979);
Hinton v. Commonwealth, 219 Va. 492, 247 S.E.2d 704 (1978).
Accordingly, we affirm the judgment of the trial court.
Affirmed.
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