Opinion
Record No. 0649-93-1
Decided: February 7, 1995
FROM THE CIRCUIT COURT OF MATHEWS COUNTY, John M. Folkes, Judge
Dawne I. Alexander for appellant.
Richard B. Smith, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Baker, Koontz and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
In this appeal, the record reveals that the Circuit Court of Mathews County (trial court) gave the jury a written instruction that if they found Cheryl Lynn Boeskool (appellant) guilty of voluntary manslaughter they were to impose a specific prison sentence of not less than one year nor more than ten years. The jury initially returned a guilty verdict fixing punishment "at five (5) to ten (10) years"; whereupon, the trial court then, erroneously, orally instructed the jury that they must reconsider their verdict and fix punishment at "either five years or ten years." Upon reconsideration, the jury imposed a ten-year sentence. We hold that the error was so substantial that, even though appellant failed to make a specific contemporaneous objection, the judgment of the trial court must be reversed.
"In his instructions the trial judge should inform the jury as to the law of the case applicable to the facts in such a manner that they may not be misled." Cooper v. Commonwealth, 2 Va. App. 497, 500, 345 S.E.2d 775, 777 (1986) (citation omitted).
Accordingly, we reverse and remand this case to the trial court for such further proceeding as the Commonwealth may be advised.
Reversed and remanded.