Commonwealth v. Jerman, 263 Va. 88

Summary

The Supreme Court of Virginia held that the defendant's failure to timely object to the circuit court's response to jury questions about parole barred appellate review under Rule 5:25. The court reversed the Court of Appeals and reinstated the circuit court's judgment on the abduction conviction, concluding that the prospective application of Fishback v. Commonwealth did not override the procedural default rule.

Holdings

1. Jerman's failure to state a timely objection to the circuit court's response to the jury's parole question barred his appellate challenge under Rule 5:25.
2. The fact that Coward was still in effect at the time of trial did not excuse Jerman's failure to object or request a different instruction.
3. Fishback's statement that its new parole-instruction rule applied to cases not yet final on June 9, 2000, did not displace or limit Rule 5:25 and did not require a new sentencing hearing in Jerman's procedurally defaulted case.

Questions Presented

1. Whether Rule 5:25 barred Jerman's challenge to the circuit court's response to the jury's parole-related question because he failed to make a timely objection or request an alternative instruction.
2. Whether the fact that Coward was still controlling at the time of trial, and that Fishback later required parole-abolition instructions in certain pending cases, excused Jerman's failure to preserve the instructional issue.
3. Whether Fishback's limitation to cases not yet final on June 9, 2000, required a new sentencing hearing despite Jerman's procedural default.

Disposition

reversed