                     Wilkins v. Commonwealth
                       253 Va. 156 (1997)
_______________________________________________________________

VIRGINIA:

     In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Friday, the 28th day of
February, 1997.


Donald L. Wilkins,                                          Appellant,

   against   Record No. 961235
             Court of Appeals No. 1242-95-4
Commonwealth of Virginia,                                    Appellee.


          Upon an appeal from a judgment rendered by the Court
     of Appeals of Virginia on the 4th day of December, 1995.



     Upon consideration of the record, the briefs, and argument of

counsel, the Court is of opinion that no error exists in the

judgment of the Court of Appeals of Virginia.

     On March 31, 1995, a jury in the Circuit Court for the County

of Fauquier returned a verdict convicting Donald L. Wilkins of

attempted possession of phencyclidine, a controlled substance, in

violation of Code § 18.2-257.   As appears from an order entered by

the trial court, "[w]hereupon the jurors received further evidence

and were instructed by the Court as to punishment and heard evidence

and argument of counsel and were sent back to their room to consider

their verdict as to punishment."   Authorized by the statute to

impose a sentence upon conviction of "not less than one nor more

than ten years," the jury returned its second verdict fixing the

penalty at five years in the penitentiary.    Upon consideration of

the report of a probation officer, the trial court confirmed the two
verdicts and entered final judgment on May 30, 1995.

     In the course of argument made at the penalty phase of the

trial, the prosecutor told the jurors that "you have an opportunity

as the conscience of this community to deal with this person" and

that "in considering what is the appropriate verdict, you can indeed

send the message to Mr. Wilkins . . . [and] to people similarly

situated to Mr. Wilkins that we will not tolerate the sale and

purchase of drugs in this county."   Wilkins objected to those

statements and, in a petition for appeal addressed to the Court of

Appeals of Virginia, challenged the trial court's ruling denying his

motion for a mistrial.
     Holding that "the argument was proper," the Court of Appeals of

Virginia denied the petition, and this Court awarded Wilkins an

appeal limited to consideration of that holding.

     Wilkins notes on brief that "[n]othing should be done or

permitted to . . . obscure the minds of the jurors on the question

of whether or not [the accused] is guilty of the offense charged."

That rule is fully supported by the precedents.    This Court, upon

finding a manifest probability that a deterrence argument by a

prosecutor had been a contributing cause of the defendant's

conviction, has consistently reversed the judgment and remanded the

case to the trial court.   See e.g., Kitze v. Commonwealth, 246 Va.

283, 435 S.E.2d 583 (1993); Hutchins v. Commonwealth, 220 Va. 17,

255 S.E.2d 459 (1979).
     As an element of its rationale in Hutchins, this Court

emphasized the need to avoid confusion between "the use of

punishment and conviction for deterrent purposes," 220 Va. at 20-21,

255 S.E.2d at 461, and, citing Hutchins in Payne v. Commonwealth,

233 Va. 460, 468, 357 S.E.2d 500, 505, cert. denied, 484 U.S. 933

(1987), the Court explained that "while considerations of deterrence

should not be the basis for a finding of guilt of the offense, such

considerations may be argued in connection with the punishment to be

assessed for the crime."
     Here, the deterrence argument in issue was made in the penalty

phase of the bifurcated trial.   The Court finds no merit in the

assignment of error, and the judgment of the Court of Appeals of

Virginia is affirmed.

     Justices Stephenson and Koontz took no part in the

consideration or disposition of this appeal.

     The defendant will pay to the Commonwealth thirty dollars in

damages.

     It is ordered that the said circuit court allow counsel for the

appellant a fee of $725 for services rendered the appellant on this

appeal, in addition to counsel's costs and necessary direct out-of-

pocket expenses.

     The Commonwealth shall recover of the appellant the amount paid

court-appointed counsel to represent him in this proceeding,

counsel's costs and necessary direct out-of-pocket expenses, and the
fees and costs to be assessed by the clerk of this Court and the

clerks of the courts below.
     This order shall be certified to the Court of Appeals of

Virginia and the Circuit Court of the County of Fauquier and shall

be published in the Virginia Reports.

                                   A Copy,

                                        Teste:


                                                 David B. Beach, Clerk




Costs due the Commonwealth
 by appellant in Supreme
 Court of Virginia:

Attorney's fee          $925.00 plus costs and expenses
