Opposition — Joe v. Virginia

Supreme Court, U.S “\ |

FILED \

} FEB 25 1978

MICHAEL RODAK, JR., CLERK

In The

Supreme Court of the Anited States

October Term, 1977

No. 77-809

VERNON LEE JOE,

Petitioner,

v.

COMMONWEALTH OF VIRGINIA,

Respondent.

RESPONDENT’S BRIEF IN OPPOSITION

TO GRANT OF CERTIORARI

MARSHALL COLEMAN

Attorney General of Virginia

Tuomas D. BAGWELL

Assistant Attorney General

Supreme Court Building

Richmond, Virginia 23219

TABLE OF CONTENTS

Page

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TABLE OF CITATIONS

Cases

Bowen v. State, 488 S.W.2d 373 (Tenn. 1972) 2.000000. 4

Gregg v. Georgia, 428 U.S. 153 (1976) 200.0... eee ceeceeeceeeeeeees = 5

Jefferson v. Commonwealth, 214 Va. 747, 204 S.E.2d 58 (1974) ... 3

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Lewis v. Commonwealth, 218 Va. 31 ...... $.E.24 ...... 4. .j eee 3, 4

Roberts v. Louisiana, 428 U.S. 325 (1976)... eee. 2, 4

Rose v. Hodges, 423 U.S. 19, Reh. den. 423 U.S. 1092 (1975) _..3, 4

Smith v. Commonwealth, 134 Va. 589, 113 S.E. 707 (1922) ....... {

Washington v. Commonwealth, 216 Va. 185, 217 S.E.2d 815

(1079) ..... subcidaehtasibeticesbeaieale picsiadiandapsiaidiabendaisienssicemeaaniiadteasaicade 3

In The

Whan v. State, 485 S.W.2d 275 (Tex. 1972) 0000000000... saciid 4 ‘

: Supreme Court of the United States

Williams v. Oklahoma, 428 U.S. 907 (1976) 200000 cen, 2, 4

October Term, 1977

Woodson v. North Carolina, 428 U.S. 280 (1976) 200000000... nd, 4

Statutes

No. 77-809

Virginia Code § 53-251, Code of Virginia (1950), as amended... 3

Article V, § 12, Constitution of Virgimia ..000000000.0000000 cece. 4

VERNON LEE JOE,

Petitioner,

v.

COMMONWEALTH OF VIRGINIA,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION

TO GRANT OF CERTIORARI

OPINION BELOW

There is no reported opinion of the Supreme Court of

Virginia. The order rejecting the petition for writ of cer-

tiorari is set forth in petitioner’s Appendix A.

JURISDICTION

Petitioner claims that jurisdiction is founded upon 28

U.S.C. § 1257(3).

uu

2

QUESTIONS PRESENTED

I. Did The Trial Court Err In Overruling The Petitioner's Motion

To Quash The Indictment At Trial Under Which The letitioner

Was Convicted?

Il. Did The Governor Have The Power To Commute The Petitioner's

Sentence Of Death To Life In The Penitentiary Prior To The

Trial Court’s Pronouncement Of Judgment On The Jury's

Verdict?

STATEMENT OF THE CASE

The respondent accepts the petitioner's statement of the

case.

ARGUMENT AGAINST GRANTING THE

WRIT OF CERTIORARI

I, The Court Did Not Err In Overruling The Petitioner's Motion

To Quash The Indictment.

Petitioner has argued that the trial court should have

quashed the indictment because the statute under which

the petitioner was tried was unconstitutional. The petitioner

states that after the verdict of the jury but prior to peti-

tioner’s sentencing this Court rendered five decisions: Gregg

v. Georgia, 428 U.S. 153 (1976) ; Jurek v. Texas, 428 U.S.

262 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976) ;

Williams v. Oklahoma, 428 U.S. 907 (1976) ; and Woodson

v. North Carolina, 428 U.S. 280 (1976), which hold that

statutes requiring mandatory death penalty for enumerated

offenses are unconstitutional without proper guidelines for

the sentencing authority. However, the respondent states

that the holdings in the above cases did not ipso facto in-

validate the petitioner's sentence nor do the holdings declare

Virginia’s statute unconstitutional. It may be that Virginia’s

statute would have been declared unconstitutional upon ap-

3

plication to the proper court. This was discussed by the

Virginia Supreme Court in Lewis v. Commonwealth, 218

. <p SS Se S.E.20 ...... (1977), when a similar issue

was raised. Under Virginia law at the time this case was

tried the statute in question had been held to be constitu-

tional. See Jefferson v. Commonwealth, 214 Va. 747, 204

S.E.2d 58 (1974), and Washington v. Commonwealth, 216

Va. 185, 217 S.E.2d 815 (1975). Assuming, for the sake of

arguinent only, that the sentencing portion of § 53-251 is

unconstitutional, this was cured by the subsequent com-

mutation of the sentence to life in prison by the governor. At

the time petitioner was tried, the court correctly overruled

the petitioner's motion to quash the indictment.

II. The Governor Had The Power To Commute The Petitioner's

Sentence Of Death To Life In The Penitentiary Prior To The

Court’s Pronouncement Of Judgment On The Jury’s Verdict.

The petitioner alleges error in the procedure followed by

the trial court and the governor. The jury had convicted

the petitioner of the offenses charged and rendered its ver-

dict of death. The court took motions of the petitioner under

advisement. In the interim the governor commuted the pe-

titioner’s sentence of death to life in prison.

The respondent states that the procedure followed in this

case is purely a matter of State law. It is submitted that this

Court should adhere to its decision in Rose v. Hodges, 423

U.S. 19, reh. den., 423 U.S. 1092 (1975), where the Court

held:

“If Tennessee chooses to allow the governor to reduce

the death penalty to a term of years without resort to

further judicial proceedings, the United States Consti-

tution affords no impediment to that choice.” +23 U.S.

at 22.

4

In Lewis v. Commoawealth, supra, the court upheld the

governor's decision to commute the death sentence of a

convicted murderer in facts almost identical to the case at

bar. The only difference was the trial court had pronounced

judgment on the jury verdict. Whether the court had pro-

nounced judgment on the jury verdict, however, is im-

material under Virginia’s Constitution. In Virginia, the

governors authority to grant commutations arises from

Article V, § 12 of the Constitution of Virginia (1971). The

Governor of Virginia can commute a death sentence after

conviction. The word “conviction” is necessarily given the

“ordinary legal meaning” i.c., “not that judgment has been

entered or sentence pronounced, but only that a verdict of

guilt has been returned.” Smith v. Commonwealth, 134 Va.

589, 595, 113 S.E. 707 (1922).

Texas has also upheld the commutation of a death sen-

tence by a governor under facts similar to those in Rose v.

Hodges, supra. Whan v. State, 485 S.W.2d 275 (Texas

1972), cert. den., 411 U.S. 934 (1973). In Whan, the Texas

court stated that the governor can commute a death sentence

after the conviction, but before sentence has been imposed,

485 S.W.2d at 277 (dictum).

The respondent contends that the petitioner is not under

a sentence of death where the sentence has been commuted

to life in prison by the governor. The petitioner's com-

muted sentence, life in prison, is the only sentence to be

considered. See Bowen v. State, 488 S.W.2d 373, 375-376

(Tenn. 1972). Since the sentence suffered by the petitioner

is not violative of the standards set forth in Roberts, Jurek,

Williams, Woodson, and Gregg, the respondent submits that

the petition for certiorari should be denied.

The respondent states that similar issues to the issues

raised in the case at bar were raised in the petition for

5

certiorari of Edward Alien Gooch, III, Record No. 77-468.

This Court denied the petition on November 28, 1977. See

Appendix A for copy of Court order.

CONCLUSION

For the foregoing reasons, the respondent respectfully sub-

mits that this Honorable Court should deny the petition for

writ of certiorari.

Respectfully submitted,

MARSHALL COLEMAN

Attorney General of Virginia

Tuomas D. BAGWELL

Assistant Attorney General

Supreme Court Building

Richmond, Virginia 23219

CERTIFICATE OF SERVICE

This is to certify that I, Thomas D. Bagwell, Assistant

Attorney General of Virginia, and a member of the Bar of

the Supreme Court of the United States, on the 22nd day of

February, 1978, mailed with first class postage prepaid a

true copy of this Respondent’s Brief in Opposition to Grant

of Certiorari to Richard George Brydges, Esquire, 1369

Laskin Road, Virginia Beach, Virginia, 23451.

Tuomas D. BacweL.

Asststant Attorney General

APPENDIX A

SUPREME CourtT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D.C. 20543

November 28, 1977

ANTHONY F. Troy, Esq.

Attorney General of Virginia

Supreme Court-—Library Bldg.

Richmond, Va. 23219

RE: Edwin Allen Gooch, III

v. Virginia

No. 77-468

Dear Sir:

The Court today denied the petition for a writ of cer-

tiorari in the above-entitled case.

Mr. Justice Blackmun took no part in the consideration

or decision of this petition.

Very truly yours,

Micuaec Ropak, Jr., Clerk

By /s/ Virctn1ia M. Gipson

Assistant Clerk