Petition — LINWOOD E. E. BRILEY v. VIRGINIA (No. 80-6367)
Supreme Court brief1980
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Li
RECEIV
- 80-6367 OF
He REME COURT, U.S.
* 7 a
IN THE
SUPREME COURT OF THE UNITED a
OCTOBER TERM, 1980 FILED
MAR 17 1981
|
| Alexander L. Stevas, Clerk |
en aucuaiil
NO.
LINWOOD EARL BRILEY, Petitioner,
Vv.
COMMONWEALTH OF VIRGINIA, Respondent.
PETITION FOR A WRIT OF CERTIORARI TO
. THE SUPREME COURT OF VIRGINIA
FRANK N. COWAN
COWAN, OWEN & NANCE
P. O. Box 3205
Richmond, Virginia 23235
DEBORAH S. O'TOOLE
COWAN, OWEN & NANCE
P. O. Box 3205
Richmond, Virginia 23235
March 17, 1981
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980
NO.
LINWOOD EARL BRILEY, Petitioner
COMMONWEALTH OF VIRGINIA, Respondent
PETITION FOR A WRIT OF CERTIORARI TO
THE SUPREME COURT OF VIRGINIA
The petitioner, Linwood Earl Briley, respectfully prays
that a Writ of Certiorari be issued to review the judgment and
opinion of the Supreme Court of Virginia entered in this proceed-
ing on November 26, 1980.
QUESTIONS PRESENTED FOR REVIEW
1. ARE THE VIRGINIA STATUTES WHICH PROVIDE THAT MURDER
WHICH OCCURS DURING THE COMMISSION OF A ROBBERY CAN BE CAPITAL
MURDER OR FIRST DEGREE MURDER AN UNCONSTITUTIONAL VIOLATION OF
A DEFENDANT'S RIGHT TO DUE PROCESS OF LAW BECAUSE THEY FAIL TO
PROVIDE A MEANINGFUL BASIS TO DISTINGUISH BETWEEN THE FEW CASES
IN WHICH CAPITAL PUNISHMENT IS INVOKED AND THE MANY IN WHICH
IT IS NOT?
2. IS THE FAILURE TO GIVE A LESSER INCLUDED OFFENSE INSTRUC-
TION IN A CAPITAL MURDER CASE A VIOLATION OF THE DEFENDANT'S
RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMEND-
MENTS TO THE UNITED STATES CONSTITUTION?
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TABLE OF CONTENTS
QUESTIONS PRESENTED FOR WU Bae 6 0 0 0:6 He DA 0:00 64S OOl8 ae i
TABLE OF AUTHORITIES... cccccccccccccscccscscccesecscsce Aids
OPINION BELOW......... Coe ccccccccces Cocccccccccscccess
JURISDICTION ..ccccccccccccccces eocccccccccces eoccccccs 1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED...... 1-3
STATEMENT OF THE CASE... ccccccccccccccccscscsesecs oscscos OWS
RAISING OF FEDERAL QUESTIONS......ceseeeecscnvvces cose So?
REASONS FOR GRANTING THE WRIT......ceeeeeccsccveccees o. Foes
CONCLUSION.....+.++. eoccccccs ee ccrccsccceces ee e Se
CERTIFICATE OF MAILING.......+.+- ee ee eecevees 15
APPENDIX
A. OPTNION OF SUPREME COURT OF VIRGINIA
B. ORDER AFFIRMING JUDGMENT OF TRIAL COURT
C. ORDER DENYING REHEARING
D. ORDER GRANTING STAY OF EXECUTION OF JUDGMENT
E. PORTIONS OF RECORD FROM TRIAL COURT INCLUDED IN JOINT
APPENDIX ON APPEAL TO SUPREME COURT OF VIRGINIA WHEREIN
FEDERAL QUESTIONS WERE RAISED
F. PETITION FOR REHEARING IN THE SUPREME COURT OF VIRGINIA
G. BRIEF OF APPELLANT FILED IN THE SUPREME COURT OF VIRGINIA
ii
ait
— *
TABLE OF AUTHORITIES
Page
CONSTITUTIONS
U. s. Const. Amend. V o . . . . 7 - . 7 . . . 2 7 . . . nf
perme Gomees Gueene. RIV, Beetion 1. «4... sec een. 1
STATUTES
ee ee Ee 6-05 Gm ete: en wile ese Rice ete OR
Va. Code Ann. §18.2-18 (Cum. Supp. 1980) ........ 2
Va. Code Ann. §18.2-31 (Cum. Supp. 1980) ........ 2
Va. Code Ann. §18.2-32 (Cum. Supp. 1980) ...... oe
Va. Code Ann. §19.2-264.3 (Cum. Supp. 1980). ...... 3
Va. Code Ann. §19.2-264.4 (Cum. Supp. 1980). ...... 10
CASES
Beck v. Alabama,
US , 65 L. Ed. 2a 392, 100 S. Ct. 2382 (1980). 5, a3
Furman v. Georgia,
408 US 230, 33 L.Ed. 2a 266, 92 8. C6. F726 (1972). « 7
Godfrey v. Georgia,
US , 64 L. Ed. 24 398, 100 S. Ct. 1759 (1980). 7, 433
Gregg v. Georgia, ‘
428 US 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (2976) « 7
Jurek v. Texas,
428 US 262, 49 L. Ed. 2d 929, 96 S. Ct. 2950 (1976) . 7
Keeble v. United States,
412 US 205, 36 L. Ed. 2d 844, 93 S. Ct. 1993 (1973) . 14
Profitt v. Florida,
428 US 242, 49 L. Ed. 2d 913, 96 S. Ct. 2960 C976) «4 32
Ball v. Commonwealth,
221 Va. o 273 8.B.28 790 (1981). . . 2. we we ewe 8
Belton v. Commonwealth,
200 va. 5, 9, 104 S.E.2a De eee sk oe « kee «ee
Briley v. Commonwealth,
221 Va. Mia SOOO Os 5 ee 6 ace’ ot Re
Clark v. Commonwealth,
9 Va. 237, 257 S.E.2a 784 (1978). . . . . . . . . o 7
Co la v. Commonwealth,
TO Va. 243, 257 S.E.2da 797 SI . hY tl ks. ee ae, ee a
Haskell, et al v. Commonwealth, :
218 Va. 1033, 243°S.E.2d 477 (1980) ......... «12
Johnson v. Commonwealth,
2 Va. a 273 S.E.2d (1980). . . . . . . . . . 9
iii
CASES
Mason v. Commonwealth,
200 va. 253, 105 S.E.2d 149 (1958)...
Mason v. Commonwealth,
9 Va. ?
McClung v. Commonwealth,
215 Va. 654, 212 S.E.2d 290
Painter v. Commonwealth,
210 Va. 360, 171 S.E.2d 166
Smith v. Commonwealth,
219 Va. 455, 248 S.E.2da 125
Stamper v. Commonwealth,
0 Va. 260, 257 S.E.2d 808
Waye v. Commonwealth,
219 Va. 683, 251 S.E.2d 202
S.E.2d 290 (1975)
(1975).
(1969).
(1978).
(1979).
(1979).
Page
12
12
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OPINION BELOW
The opinion of the Supreme Court of Virginia, 221 Va.
273 S.E.2d 48 (1980) appears in the appendix hereto.
JURISDICTION
The judgment of the Supreme Court of Virginia was entered
on November 26, 1980. A timely petition for rehearing was denied
on January 16, 1981, and this Petition for Certiorari was filed
within sixty (60) days of that date. This Court's jurisdiction
is invoked under 28 USC §1257 (3).
CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
United States Constitution, Amendment Vv.
———SeeeS OS
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land of naval PENG or
in the Militia, when in actual service in time of War or public
danger; nor shall any person be subject for the same offense to
be twice put in jeopardy of life or limb; nor shall be compelled
in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use, without
just compensation.
United States Constitution, Amendment XIV, Section 1.
All persons born or naturalized in the United States, and sub-
ject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall
make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction
the equal protection of the laws.
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Virginia Code Annotated §18.2-31 (Cum. Supp. 1980). Capi-
tal murder, defined; punishment. - The following offenses shall
constitute capital murder, punishable as a Class 1 felony: ...
(a) The willful, deliberate and premeditated killing of
any person in the commission of abduction, as defined in §18.2-48,
when such abduction was committed with the intent to extort money ,
or a pecuniary benefit;
(b) The willful, deliberate and premeditated killing of any
person by another for hire; |
(c) The willful, deliberate and premeditated killing of
any person by an inmate in a penal institution as defined in
§53-19.18, or while in the custody of an employee thereof;
(d) The willful, deliberate and premeditated killing of
any person in the commission of robbery while armed with a deadly
weapon;
(e) The willful, deliberate and premeditated killing of a
person during the commission of, or subsequent to, rape; and
(f) The willful, deliberate and premeditated killing of a
law-enforcement officer as defined in §9-108.1 H when such killing
is for the purpose of interfering with the performance of his
official duties.
Virginia Code Annotated §18.2-32 (Cum. Supp. 1980). First
and second degree murder defined; punishment. - Murder, other
than capital murder, by poison, lying in wait, imprisonment,
starving, or by any willful, deliberate, and premeditated killing
or in the commission of or attempt to commit, arson, rape, rob-
bery, burglary, or abduction, except as provided in §18.2-3l, is
murder of the first degree, punishable as a Class 2 felony...
Virginia Code Annotated §18.2-18 (Cum. Supp. 1980). How
principals in second degree and accessories before the fact
punished. - In the case of every felony, every principal in the
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second degree and every accessory before the fact may be indicted,
tried, convicted and punished in all respects as of a principal
in the first degree; provided, however, that except in the case
of a killing for hire under the provisions of §18.2-31(b) an
accessory before the fact or principal in the second degree to a
capital murder shall be indicted, tried, convicted and punished
as though the offense were murder in the first degree.
STATEMENT OF THE CASE
This case arises out of the death of John Harvey Gallaher
(Gallaher) whose body was discovered in the James River at Mayo
Island on September 16, 1979. He had been shot once in the back.
Mayo Island is located between the north and south banks of the
James River near the 14th Street Bridge in Richmond, Virginia.
On October 22, 1979, Linwood Briley was arrested on infor-
mation supplied by Duncan Eric Meekins (Meekins), a juvenile who
was already in custody after his arrest on another charge.
On December 10, 1979, the grand jury for the Circuit Court
of the City of Richmond, Division II returned indictments against
Linwood Earl Briley (hereinafter referred to as Briley or defen-
dant) charging him with capital murder of John Harvey Gallaher,
robbery, abduction and three counts of use of a firearm in the
commission of a felony. A trial was scheduled for February 198,
1980. Due to procedural problems not relevant here, Briley was
reindicted on February 14, 1980 in the Circuit Court for the
City of Richmond, Division I.
A jury was impanelled and the defendant was tried in that
court on the charges of capital murder of Gallaher (murder
during the commission of a robbery — Code §18.2-31(d)) and the
use of a firearm in the commission of a felony. On February 21,
1980, the jury returned a verdict of guilty against the defendant
on both charges. \
Pursuant to the provisions of §19.2-264.3 of the Code of
Virginia, the second stage of the trial on the capital murder
charge commenced on February 22, 1980. The jury recommended that
the defendant be put to death for the capital murder of Gallaher.
- 3-
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On March 10, 1980, the trial court sentenced the defendant to
be put to death for the capital murder of Gallaher and further
sentenced the defendant to serve one (1) year in the Virginia
State Penitentiary for the conviction of the use of a firearm
in the commission of a felony.
The convictions were appealed to the Supreme Court of
Virginia citing eleven (11) questions of law presented for re-
view by the Court. On November 26, 1980, the appeal was denied
and the judgment and sentence were affirmed. A rehearing was
denied on January 16, 1981.
The defendant denies and denied from the beginning that
he was involved in any way in the murder of John Harvey Gallaher.
However, based upon applicable principles of law that the facts
must be stated in a light most favorable to the prevailing party,
the following statement of fact is presented.
Gallaher was a disc jockey for radio station WXGI in Rich-
mond, Virginia. He also played in a small band at the Log Cabin
nightclub located on Jefferson Davis Highway in Richmond. On
September 14, 1979, Gallaher was playing with the band at the
Log Cabin. At about 11:20 p.m. he went out the back door of the
Log Cabin to relieve himself. He walked over to some bushes
near an alley behind the Log Cabin. Briley, Meekins and Briley's
brothers, James and Anthony, were behind the bushes. Meekins
and Briley came from behind the bushes with a rifle and a sawed-
off shotgun and ordered Gallaher to lie on the ground. Briley
took Gallaher's billfold and car keys and then Meekins and
Briley went to look for Gallaher's car. Anthony Briley stayed
with Gallaher while Linwood Briley and Meekins went to get Galla-
her's car. Briley and Meekins came back without finding the car.
Briley then sent Meekins to search for the car. While Meekins
was gone, Briley took Gallaher's ring and watch. When Meekins
brought Gallaher's car around to where Briley and his brothers
were holding Gallaher, Meekins and Briley put Gallaher into the
back seat of Gallaher's car. Meekins got in with Gallaher, and
Briley got in the front seat and drove the car away. Briley's
brothers got in Anthony's car in which they all had been riding.
After driving around for awhile in two separate cars, Briley's
brothers parked Anthony's car and got into the car with Briley,
Meekins, and Gallaher. Briley drove the car to Mayo Island and
drove behind a paper company located on the island. Briley and
Meekins pulled Gallaher out of the car. As Gallaher was standing
up, Briley shot Gallaher once in the back. Gallaher died in-
stantly. Briley got back into the car and he, Meekins and his
brothers drove away. After driving around for awhile, Briley
parked the car and he, Meekins and his brothers stripped equip-
ment from the car. The Brileys and Meekins divided Gallaher's
money and property between them. Several weeks later while Dun-
can Meekins was being questioned by the police on other criminal
charges, he supplied the evidence which led to Linwood Briley's
arrest and the charge of capital murder being made against Briley.
RAISING OF FEDERAL QUESTIONS
The defendant raised the issue of the constitutionality of
the Virginia statutory scheme for capital punishment by a motion
to quash the capital murder indictment on February 19, 1980,
prior to the trial. [See Trial Transcript (hereinafter cited
as tr. t.) p. 8, 1. 5 through p. 15, 1. 3; Joint Appendix on
Appeal pps. 84-91 (hereinafter cited as Jt. app.)] This motion
was overruled by the trial court and defense counsel objected
to the ruling. (Tr. t. p. 19, 1. 24 through p. 20, 1. 3; Jt.
app. Pp. 95-96) During the trial, defense counsel renewed the
motion. (Tr. t. 748 of Jt. aop. p. 434) Subsequent to the jury's
verdict, defense counsel moved the court to set aside the jury
verdict on constitutional grounds (Tr. t. p. 860, 1. 22 through
861, 1. 7; Jt. app. 465-466) The motion was renewed at the sen-
tencing hearing on p. 4 through 5, 1. 13; Jt. app. 468-469.
Defense counsel again moved the court to set aside the death
sentence on p. 10, 1. 23; Jt. app. 471. The trial court over-
ruled the motion on p. ll, 1. 3; Jt. app., p. 472.
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.
These constitutional issues were raised again on the appeal
to the Supreme Court of Virginia as Assignment of Error number
one (1) which read:
1. The trial court erred in failing to sustain the defen-
dant’s motion dismiss so much of Indictment No. F80-229 as
charged the defendant with capital murder. The defendant's
Motion was based upon the grounds that the applicable Virginia
Statutes violate the Due Process and Equal Protection Clauses
of the Fifth and Fourteenth Amendments of the Constitution of
the United States, and Article One, Section 11 of the Constitu-
tion of Virginia.
The issue was briefed on Appeal to the Supreme Court (See
Brief of Appellant, pps. 7, 34 through 38) and was specifically
rejected by the Virginia Supreme Court in its opinion (which is
attached to this Petition.)
The issue of the constitutionality of the trial court's
failure to give a lesser included offense instruction was raised
by the defendant by a motion to dismiss the capital murder indict-
ment on the grounds that the evidence would Support a first
degree murder charge but not a capital murder charge. (Tr. t.
p.- 671, 1. 22) and the defendant objected to this ruling (Tr. t.
m 696, 2,.6):
The trial court refused the defendant's proffered instruc-
tion on first degree murder (Instruction A, Jt. app. p. 21).
The defendant objected to this ruling (Tr. t. p. 736, 1. 13
through 20; p. 740, 1. 14 through 16; Jt. app. 424, 428).
The defendant further objected to the Court's granting of instruc-
tions number 6 and 10-A and the Form of Verdict given to the
jury. (Tr. t. p. 744, 1. 17 through 747, 1. 3; Jt. app. 430-433).
The issue was raised on appeal to the Supreme Court of Vir-
ginia in Assignments of Error numbered 8, 9 and 12, 14, 15 and
22.
re eee aieinkae ak SAM. ieiki aati. shih amano fa SF Ee rer eer _——7
These issues were briefed on appeal to the Virginia Supreme
Court and specifically denied by the Court in its opinion. (See
opinion attached to this Petition.)
Both of the Questions Presented for Review in this Court
were again raised by the defendant in his Petition for Rehearing
which is also included in the appendix.
REASONS FOR GRANTING THE WRIT
1. THE DECISION OF THE SUPREME COURT OF VIRGINIA UPHOLDING
THE CONSTITUTIONALITY OF THE CAPITAL MURDER STATUTES IS CONTRARY
TO THE DUE PROCESS REQUIREMENTS CONTAINED IN THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION BECAUSE
THEY FAIL TO PROVIDE A MEANINGFUL BASIS FOR DISTINGUISHING BETWEEN
THE FEW CASES IN WHICH CAPITAL PUNISHMENT IS IMPOSED AND THE MANY
CASES IN WHICH IT IS NOT.
The Virginia Supreme Court has continually upheld the
constitutionality of the capital punishment statutes!
Decisions of the United States Supreme Court? culminating
in Godfrey v. Georgia, US 64 L. Ed. 2d 398, 100 S. Ct. 1759. (1980) clear}:
require that the death penalty statutes be given a narrow con-
struction in order to provide a meaningful basis for distinguish-
ing between the few cases in which the death penalty is imposed
| and the many cases in which it is not. Furman v. Georgia, 408
US 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972). This Court has
long recognized that the unchanneled discretion of the sentencer
will result in arbitrary and capricious imposition of the death
. 1coppola v. Commonwealth, 220 Va. 243, 257 S.E.2d 797 (1979);
Mason v. Commonwealth, 219 Va. 1091, 254 S.E.2d 116 (1979);
Stamper v. Commonwealth, 220 Va. 260, 257 S.E.2d 808 (1979);
Waye v. Commonwealth, 219 Va. 683, 251 S.E.2d 202 (1979);
Clark v. Commonwealth, 219 Va. 237, 257 S.E.2d 784 (1978);
Smith v. Commonwealth, 219 Va. 455, 248 S.E.2da 135 (1978).
2Purman v. Georgia, 408 US 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726
; Gre v. Georgia, 428 US 153, 49 L. Ed. 2d 859, 96 S.
Ct. 2909 6); Furek v. Texas, 428 US 262, 49 L. Ed. 2d 929,
96 S. Ct. 2950 (1976); Profitt v. Flordia, 428 US 242, 49 L. Ed.
2d 913, 96 S. Ct. 2960 (1976).
penalty. Strict standards must be established “to insure that
the death penalty is indeed imposed on the basis of reason,
rather than caprice or emotion..." Beck v. Alabama, us
65 L. Ed. 2d 392, 100 S. Ct. 2382 (1980) Beck reemphasized
that "there is a difference between the death penalty and lesser
punishment which is of constitutional magnitude.” Id.
Under the Virginia statutory scheme contained in Code
§18.2-31 and §18.2-32, how do you determine whether a homicide
in the commission of robbery is murder in the first degree or
capital murder? There are no statutory guidelines whereby it can
be determined, whether a murder which occurs during the commis-
sion of a robbery is capital murder or first degree murder. Two
people can commit the same crime and one be tried for capital
murder and be executed and the other be tried for first degree
murder for which execution is not possible. This framework
results in the arbitrary and capricious imposition of the death
penalty which was specifically rejected in Furman, supra. These
same statutes may be applied to result in even more arbitrary
distinctions whereby the defendant's fate turns not on his own
intent but on the property held by his victim at the time of
the crime. An xcellent illustration of this point is contained in
the recent Virginia case of Ball v. Commonwealth, 221 Va. a
273 S.E.2d 790 (1981) wherein the Supreme Court of Virginia
reversed the conviction of the defendant for capital murder
because the killing had occurred in an unsuccessful robbery
attempt.
In this case, Curtis Ball, dressed in women's clothes,
entered the Rex Shopping Center, a store in Washington County
near Abingdon, Virginia. He carried a hand bag containing a
loaded pistol. Ball admitted that he entered the store for the
purpose of committing a robbery. He asked for the manager and
was directed to the clothing department where he found Roger
Roark, the assistant manager of the store. Ball demanded money
and when told by Roark that he had no money, a struggle ensued
during which Roark was shot and killed. The case went to the
jury on a charge of capital murder. Lesser included offense in-
structions were re/used by the court. The jury convicted Ball of
capital murder and sentenced him to life in prison. The trial
court entered judgment on the verdict. The Supreme Court of
Virginia reversed the conviction based on the fact that the
robbery attempt had been unsuccessful and therefore the crime
was first degree murder, rather than capital murder. What the
Virginia Supreme Court has, in effect, said is that if the victim
had had money which Ball could have taken from him, then Ball
would be subject to the loss of his life for his crime. However,
since the victim had no money, Ball could only be guilty of first
degree murder. It is certainly an artificial and arbitrary dis-
tinction which permits one man tc be subject to capital punish-
ment merely on the chance that his victim does or does not have
money Or property which may be turned over to the defendant.
Here the intent of the criminal is the same, but it is the pos-
session of property or the lack of it by the victim which deter-
mines the criminal's fate.
The Virginia statutory scheme for capital punishment makes
a further unwarranted, arbitrary and capricious distinction in
that it permits only the "trigcer man" to be convicted of capital
murder except in the case of a killing for hire under Code
§18.2-31(d). This distinction is contained in Code §18.2-18 which
states how principals inthe second degree and acces*\/ries before
the fact are punished. This provision resulted in the reversal
of conviction of Major Henry Johnson, Jr. who had been convicted
of capital murder? Johnson and his brother went to the office
of the victim who was president of the real estate company
which rented an apartment to the defendant. The brothers went
to Gardner's office to pay overdue rent, but had the joint
purpose of robbing Gardner.
During the commission of the robbery, Gardner was killed.
There were no witnesses other than the brothers and there was
35ohnson v. Commonwealth, 22) Va. , 273 S.E.2a4 784 (1981)
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conflicting evidence as to who fired the fatal shots, both
brothers accusing the other. The Virginia Supreme Court re-
versed Johnson's conviction of capital murder and the resulting
death penalty since there was no finding by the jury that the
defendant had actually pulled the trigger himself. This arbi-
trary distinction could result in a situation whereby two de-
fendants may be involved in a robbery; the first defendant could
torture and abuse the victim while the second defendant merely
looked on and the second defendant could kill the victim with
one shot. Under the Virginia statutory scheme, only the defen-
dant who fired the gun could be coavicted of capital murder and
be subject to the death penalty while the defendant whose conduct
was at least as reprehensible would not be subject to capital
punishment. A criminal whose conduct was "outrageous or wantonly
vile" as required under Code §19.2-264.4, if he did not actually
pull the trigger which killed the victim could not be subject
to capital punishment, while the defendant who committed a —
which was only the minimum necessary to accomplish an act of mur-
der would be subject to the death penalty.
We live in a land which we think of as being unique. At
the éére of this uniqueness is a judicial system which places
reason above emotion, fairness ahead of capriciousness and due
process of law above all else. These principles form the bed-
rock of our society. The great temptation, especially in hard
cases, is to apply reasoning based upon the concept that an ac-
cused "got what he deserved". If our country is in fact unique
in following the principle of due process of law, the standard
is the same whether the case is an easy case or a hard case.
There is no room for arbitrary or capricious actions. To think
otherwise is to deceive ourselves and tarnish our system of
justice. Applying these principles to the instant caes, it is
an inescapable conclusion that the Commonwealth of Virginia's
Statutory framework which determines who can be put to death for
homicide and who cannot is arbitary, capricious and illogical.
-10-
Why should a defendant who killed during a robbery be subject
to execution when a person who commits a homicide while burglar-
izing and invading the sanctity of a person's home can only be
convicted of murder in the first degree? Why should the homi-
cide in the commission or rape constitute capital murder when a
homicide in the commission of sodomy or some like offense is not
even punishable as murder in the first degree unless it is a will-
ful, deliberate and premeditated killing? Why should the execu-
tion of a person turn on whether or not he was successful in com-
mitting rape, robbery or abduction? Under Virginia law a person
who kills in an unsuccessful effort to commit rape, robbery or
abduction cannot be convicted of capital murder, but the success-
ful perpetrator of these crimes can be convicted of capital murdeg.
Where are the standards? Where are the reasons, and where are thd@
justifications for executing one and not the other? There are
none.
2. THE DECISION OF THE SUPREME COURT OF VIRGINIA UPHOLDING
THE TRIAL COURT'S FAILURE TO GIVE LESSER INCLUDED OFFENSE INSTRUC-
TIONS IS A VIOLATION OF THE DEFENDANT'S RIGHT TO DUE PROCESS OF
LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION.
The trial court's failure to grant lesser included offense
instructions, in particular, a first degree murder instruction
violated the defendant's right to due process of law in two ways:
A. Under the Virginia statutory framework, a limited number
of homicides are punishable as capital offenses. A homicide
in the commission of robbery is one such offense. Many homicides
grievous in nature, are punishable as murder in the first degree
and not capital murder. Therefore, whether the murder of Gallahef
is punishable as capital murder turns not upon the atrociousness
of the crime, but whether or not it occurred during the commissiog
of a robbery. Under the evidence in the Briley case, the jury
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|
could have found that Briley killed Gallaher but that the killing
did not occur during the commission of a robbery and would there-
fore be first degree rather than capital murder.
In Virginia, a defendant is entitled to a lesser included
offense instruction where there is any credible evidence to sup-
port such a theory. McClung v. Commonwealth, 215 Va. 654, 212
S.E.2d 290 (1975), Painter v. Commonwealth, 210 Va. 360, 171
S.E.2d 166 (1969). In addition, the Virginia Supreme Court has
said that:
"The jury is not required to accept, in
toto, either the theory of the Commonwealth
or that of an accused. They have the right
to reject that part of the evidence believed
by them to be untrue and to accept that found
by them to be true. In so doing, they have
broad discretion in applying the law to the
facts and in fixing the degree of guilt, if
any, Of a person charged with a crime."
Belton v. Commonwealth, 200 Va. 5, 9, 104
S.E.2d 1, 4 (1958)
In the Briley case, the trial court refused to grant a less-
er included offense instruction on first degree murder ruling
that, as a matter of law the homicide occurred during the commis-
sion of a robbery. In its opinion the Supreme Court of Virginia
stated that the trial court ruling was that, as a matter of law,
the robbery of Gallaher continued until his death on Mayo Island.
Briley v. Commonwealth, 221 Va. , 273 S.E.2d 48 (1980). The
opinion of the Virginia Supreme Court then assumed the role of
the fact finder and weighed the credibility of the evidence rather
than evaluating the existence of any credible evidence to support
a lesser included offense instruction. The Court used a felony/
murder rationale as stated in Haskell v. Commonwealth, 218 Va.
1033, 243, S.E.2d 477 (1978), Haskell held that where a question
exists as to the termination of an underlying felony in advance
of a homicide, the determination of this issue should be for the
trier of fact. In the Briley opinion the Virginia Supreme Court
expanded this ruling to state that the issue of termination of
the underlying felony could be decided as a matter of law. Both
the trial court and the Supreme Court for Virginia applied "fel-
ony/murder doctrine" to a capital murder issue.
- 12 -
We submit that such a liberal "catch-all" interpretation is not
permissible in a capital murder case. Godfrey v. Georgia, supra.
and cases cited on page 7, at footnote 2.
Under the facts in this case, as indicated in the Statement
of Facts, the defendant and his accomplices robbed Gallaher of
his watch, money, ring and car at the Log Cabin Restaurant.
This robbery, i.e. the taking of Gallaher's property from his
person or presence against his will by force or intimidation
[Mason v. Commonwealth, 202 Va. 253, 105 S.E.2d 149 (1958)] was
then complete. Briley, his brothers and Meekins then abducted
Gallaher in his own car, drove around for awhile, arriving at
Mayo Island some twenty to thirty minutes after the robbery had
occurred. Gallaher was then murdered.
The jury might reasonably have concluded that although
Gallaher was robbed and murdered, he was not murdered in the
commission of a robbery. By its failure to submit the case to
the jury under the lesser included offense instruction of first
degree murder, the trial court assured Briley's conviction of
capital murder. This was a constitutionally intolerable "enhance
ment" of the risk of an unwarranted conviction which was struck
down by this Court in Beck v. Siebens. US p05 L. Ed. 2d
293, 100 S. Ct. 2382 (1989).
B. Under the argument advanced in Reason for Granting the
Writ Number 1, murder occurring during the commission of a rob-
bery could be capital murder under §18.1-3l(d) or first degree
murder under Code §18. 2-32. Simply stated, the facts which
would establish murder during the commission of a robbery in
§18.2-31(d), would also establish the lesser included offense
of first degree murder contained in §18.2-32. Under the Virginia
statutes first degree murder is a lesser offense which is
necessarily included in any capital murder case involving a mur-
der which occurs during the commission of a robbery. By refus-
ing to give a first degree murder instruction, the trial court
insured the defendant's conviction of capital murder.
- 13 «
a
|
Are the rights of an accused any more damaged: any more
threatened; or any more disregarded by a statutory rule of law
which constituted denial of due process of law than by a judicial
decision which denied the accused the same relief? In Beck,
supra.,this Court held that it was a denial of due process of law
for a statute to prohibit the giving of a lesser included offense
instruction in a capital murder case. Is a defendant entitled
to any less protection from judicial rulings which wrongfully
refuse the giving of a lesser included offense instruction in a
capital murder case? What rationale supports the premise that it
is a denial of due process for a legislative body to prohibit
the giving of a lesser included offense instruction in a capital
murder case, but it is not a denial of due process of law for a
trial judge to refuse the giving of such instruction in a capital
murder case? The answer is that there is no reasonable basis
‘upon which such a distinction can be drawn. The sole question is
whether or not there is evidence to support such instruction.
Beck established the standard upon which to make this determina-
tion.
As this Court has said in Beck, "where the evidence estab-
lishes that the defendant is obviously guilty of a serious and
violent offense, but there is some doubt as to the degree of the
offense, failure to give a lesser included offense instruction
may enhance the risk of an unwarranted conviction." This Court
has termed such a risk "intolerable" where the defendant's life
is at stake. Beck, supra., 65 L. Ed. 2d at 403. An “intolerable
enhancement" of the risk of an unwarranted conviction occurred
in the Briley case as a direct result of the trial court's refusal
to give a lesser included offense instruction. See also Keeble
v. United States, 412 US 205, 36 L. Ed. 2d 844, 93 S. Ct. 1993
(1973).
This Court has not yet given an answer to the recurring
problem of whether the failure to give a lesser included offense
instruction in capital cases where the giving of such instruction
a *
Mak
Off <<
{
|
RECEIVED
MAR 19 198]
OFFICE OF THE CLERK
SUPREME COURT, U.S,
IN THE SUPREME COURT OF THE UNITED STATES
LINWOOD EARL BRILEY,
Vv.
COMMONWEALTH OF VIRGINIA,
APPENDIX
A. OPINION OF SUPREME COURT OF VIRGINIA
B. ORDER AFFIRMING JUDGMENT OF TRIAL COURT
C. ORDER DENYING REHEARING
D. ORDER GRANTING STAY OF EXECUTION OF JUDGMENT
E. PORTIONS OF RECORD FROM TRIAL COURT INCLUDED
Petitioner,
Respondent.
IN JOINT
APPENDIX ON APPEAL TO SUPREME COURT OF VIRGINIA WHEREIN
FEDERAL QUESTIONS WERE RAISED
F. PETITION FOR REHEARING IN THE SUPREME COURT OF VIRGINIA
G. BRIEF OF APPELLANT FILED IN THE SUPREME COURT OF VIRGINIA
; bank on Mayo Island in the James River.
Present: All the Justices
LINWOOD EARL BRILEY
OPINION BY JUSTICE HARRY L. CARRICO
Vv. Record No. 800690 Novemb?r 26, 1980
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND, DIVISION I
William E. Spain, Judge
In a two-stage jury trial conducted in accordance with
Code §§ 19.2-264.3 and -264.4, the defendant, Linwood Earl Briley,
was convicted of capital murder for a willful, deliberate, and
premeditated killing occurring in the commission of rebbery while
armed with a deadly weapon, Code § 18.2-31(d), and his punishment
was fixed at death. After receipt of a post-sentence report of
a probation officer, Code § 19.2-264.5,-the trial court imposed
upon the defendant the sentence fixed by the jury. Pursuant to
Code § 17-110.1(A) and -110.1(F), the defendant is here for
automatic review of his death sentence, consolidated with his
appeal from his conviction.
The victim in the case, John Harvey Gallaher, was a disc
jockey for a Richmond radio station and a member of a small
"musical combo." On the evening of September 14, 1979, Gallaher
was playing with the "combo" at the Log Cabin, a southside
Richmond restaurant. During an intermission, Gallaher left the
restaurant by a rear door. He never returned. Two days later,
his bullet-torn body was found, half-submerged, at the foot of a
On October 22, 1979, Duncan Meekins was arrested and
charged in connection with the robbery and murder of Gallaher.
Subsequently, Meekins implicated the defendant in the offenses.
Ithe defendant was convicted also of using a firearm in the com-
mission of murder. This conviction, however, is not involved in,
or pertinent to, this appeal.
—_——— — <=
“ _ > <r eeymanas came ——— ee ee
agen es eee - ° F ptt! deo cee oe Mewes oat °
Record No.
800690
Meekins was the Commonwealth's principal witness at the
defendant's trial. In his testimony, Meekins stated that, on the
evening in question, he was with the defendant and the latter's
two brothers, Anthony and James, when the foursome decided to
|jlook for "somebody to mug." The group had a sawed-off shotgun
‘jand a high-caliber rifle in their car as they drove up and down
| Jefferson-Davis Highway in southside Richmond looking for a likely
victim. Unsuccessful in their quest, they parked near the Log
Cabin "to see if [a possible victim] was going to come out.”
Exiting their car, they hid behind some bushes at the rear of the
Log Cabin, with the defendant carrying the rifle and Meekins the
shotgun. . |
| According to Meekins' further testimony, Gallaher came
out the rear door of the Log Cabin and walked over to the bushes
where the waiting gunmen were hiding. The defendant accosted
Gallaher, ordered him to lie face-down on the ground, and removed
his wallet and keys. At the defendant's direction, Meekins went
to look for Gallaher's automobile. When Meekins returned with the.
car, a Lincoln Continental, he and the defendant forced Gallaher
to lie on the rear floorboard. With Meekins in the back seat
guarding Gallaher, the defendant drove the car away. Anthony and
James drove off in the automobile in which they had arrived at
the Log Cabin; sometime later, Anthony and James peutied their car
and joined the defendant and Meekins in Gallaher's automobile.
Continuing with his testimony, Meekins stated that the
defendant drove to Mayo Island in the James River and parked on
the grounds of a paper company located there. The defendant and
Meekins forced Gallaher from the car. When Gallaher "started
struggling like to stand up," the defendant "came up with the
rifle and shot him." | |
Concluding his testimony, Meekins said that 15 to 20
o 9 ~@
= st,
minutes elapsed from the time Gallaher was seized at the Log
Cabin until he was shot on Mayo Island. After the shooting, ‘the :
assailants left the murder scene and drove around the city in
Gallaher's car; When the "tank ... almost ... was on empty," the
culprits parked the car and stripped it of parts.
3 Testifying in his own behalf as his only witness, the
defendant. denied all complicity in the robbery and murder of
| Gallaher. ‘The defendant stated that, on the evening in question,
Iie gave Meekins a ride to the home of Meekins' uncle in southside
Richmond. ° After Meekins left the vehicle, the defendant proceeded
| toward a fried chicken restaurant to see a girl who worked there;
en route, his car broke down, and he tried unsuccessfully to re-
start it. Sometime later, Meekins drove up in a Lincoln automobil
and gave the defendant a-ride home. The defendant: admitted that a
and Meekins stripped the Lincoln of parts. |
Other testimony below showed that the defendant's finger-
prints were found in Gallaher's car. When arrested, the defendant
was wearing Gallaher's ring; Gallaher's watch was found in the
defendant's home. The defendant told the arresting officer that
he bought the ring and watch from a person known as "A.C." In
his testimony, however, the defendant stated he purchased the items}
from Meekins.
In a pretrial motion, the defendant sought dismissa) of
his capital murder indictment on the ground that Virginia's death
penalty statutes are unconstitutional. The trial court denied the
motion. On appeal, the defendant states that he is familiar with
the constitutional arguments advanced against the death penalty
statutes in earlier cases before this court,” and he recognizes
“The defendant cites: Stamper v. Commonwealth, 220 Va. 260, 257
Coppole v. Commonwealth, 220 Va, 223, 257 5.E.2d 797 (1979), cert.
tataee 444° U.S. I103 (1980); Clark v. Commonwealth, 220 Va. Z0I,
: ° *. ‘ ~ 3 ¥. % _
S.E.2d 808 (1979), cert. denied, U.S. » 100 S.Ct. 16660920) ;!]-
eee 4 oe: BS
that the rulings in those cases are adverse to his position.
The defendant says, ‘ghecefers; that, while he wishes to preserve
the points, he need not repeat the arguments. Further, the
defendant raises purportedly novel arguments against the validity
of the death penalty statutes. These arguments, however, are —
mere variations of the themes previously argued and ruled meritlesg.
We need not repeat the rulings; we reaffirm them and, accordingly,
reject all the defendant’ S arguments concerning the waaseity of
the death penalty statutes. |
‘In another pretrial motion, the defendant sought a
change of venue. based upon a claim of prejudicial publicity. The
trial court ‘denied the motion. On the morning of trial, the
defendant renewed the motion; the court again denied the request.
_In support’ of his change-of-venue motion, the defendant .
submitted affidavits from members of the community, scripts of
broadcasts by local television stations, and a notebook con-
taining approximately 70 articles from local newspapers. These |
materials showed that, in the months preceding the defendant's
trial for the present offenses, he and his brothers had been
tried in the Richmond area on numerous charges of rape, robbery,
and murder, all of which had been given extensive media coverage.
In the opinion of the affiants in the several affidavits, the
defendant could not "receive a fair trial by an unbiased and in-
partial jury in the City of Richmond." -.: -
Although acknowledging that the question whether to
change venue generally is left to the sound discretion of the
trial court, the defendant contends that the “unusual circumstances
257 S.E.2d 784 (1979), cert. denied, 444 U.S. 1049 (1980); Mason
v. Commonwealth, 219 Va. 1091, 275% $.E.2d 116, cert. denied, 444
u.s. 9519 (1979) ; Waye v. Commonwealth, 219 Va. 683, 251 S.E.2d
202, cert. denied, 2 U.S. 924 (1979) ;. and Smith v. Commonwealth,
71978). 455, 248 S.E.2d "iss 978), cert. denied, 441 U.S. 967
. x 4 Zz
le tl
‘
f this case and the resulting extensive media coverage" con-
exning his present and earlier crimes oh, ag the granting of
is motion to change venue. Citing a number of our prior decisions
3 the defendant argues that,
nvolving change-of-venue questions,
resolving the issue in this case, we should consider (1) the- -
ime elapsed between the commission of the crimes charged and
rial, (2) the community interest in the case, and (3) the dif-
ieulty encountered in selecting a fair and impartial jury.
‘The defendant says that the publicity Sonctennng his
urrent and earlier crimes continued "right up to the time" of _
rial of the present charges. He states further that community
nterest in the case was aroused by the publicity to the extent
hat his name became “almost synonymous with ‘brutal killings.'"
inally, he asserts that the selection of a jury in his case
roved difficult, the process consuming over ten hours and re-
quiring examination of 55 prospective jurors. .
There are fatal weaknesses, however, in the defendant's
position, He does not claim that any of the publicity about
which he complains was either inaccurate or intemperate. Green-
either has he demonstrated "such a widespread feeling of prejudice
m the part of the citizenry as [would have been] reasonably
ertain to prevent a fair and impartial trial." Coppola v. Common-
alth, supra note 2, 220 Va: at 248, 257 S.E.2d at 801. . Nor nas.
directed us to specific portions of the record “which would
equire a finding of constitutional unfairness as to the method of
ury selection or as to the character of the jurors actually
elected.” Dobbert v. Florida, 432 U.S. 282, 303 (1977).
The defendant cites: Newcomer v, Commonwealth, 220 Va. 64, 255
-.E.2d 485 (1979); Poindexter v. Commonwealth, 218 Va. 314, 237
.E.2d 139 (1977); ‘Lewis v. Commonwealt h, 718 Va. 31, 235 $.E.2d
20 (1977); Foster v. Commonwealth, 209 Va. 297, 163 S.E.2d 565
(1968); and Rees v. Commonwealth, 203 Va. 850, 127 S.E.2d 406
(1962), cert. és hied, bay v. Ss. 964 —-
field v. Commonwealth, 214 Va. 710, 717, 204 S.E.2d 414, 419 (1974).
: Sla
aS by
In this latter connection, the defendant cites the voir
dire examination of two prospective jurors, Barbara Smith and -
William Slaughter. The defendant argues that these prospective
jurors should have been excluded for cause since widespread media
coverage had influenced them to the extent that they had formed --.- }-.
opinions concerning his guilt and, therefore, they could not
stand indifferent in the case,
The record shows clearly, however, that while these two
prospective jurors had read accounts or listened to broadcasts
concerning the criminal activities of the defendant, neither .
venireman had formed an opinion concerning the defendant's guilt.
Furthermore, both prospective jurors stated unequivocally that
they would determine the case solely upon the evidence presented
in court. Their exposure to media coverage, therefore, did not
disqualify them from service on the defendant's jury.” Irvin v.
Dowd, 366 U.S. 717, 723 (1961).
The defendant's complaint concerning pretrial publicity
is no more than a claim that the sheer volume of the media ovvendal
of his and his brothers‘ many crimes required a change in the
location of his trial. Such a claim, standing alone, does not
suffice to require a change of.venue. Dobbert v. Florida, supra,
432 U.S. at 303; Smith v. Commonwealth, supra note 2, 219 Va. at
248 S.E.2d at 140.
- The defendant's next contention involves an incident
occurring during the guilt stage of his trial. When chief prose-
cution witness Duncan Meekins was under cross-examination, defense
counsel began to question him concerning a plea agreement he had
made with the Commonwealth. Meekins stated that, in return for
his truthful testimony, the Commonwealth had promised he would
“Barbara Smith actually served on the defendant's jury. William
= agg Phar excluded by the exercise of a peremptory challenge
the defense. . <
; . : Pu | ot , , a —
‘i
*
“get no more time than anybody else in this case." Asked whether
this was “the extent of the agreement,” Meekins replied, “[fJor
this case, yeah.” At this point, the prosecutor asked the court
to confer with counsel out of the hearing of the jury. _
In the conference, it was revealed that the plea agree-
t encompassed not only the present case but also a number of
other cases. in which Meekins was charged along with the defendant
and his brothers. In one of these prosecutions, Meekins himself
was subject to the death penalty. The plea agreement provided
that, in return for Meekins’ testimony against the Brileys in
each case involving them, the Commonwealth would not seek the
death penalty against Meekins and he would not receive any sen-
tence greater than was imposed upon his accomplices in the various
cases.
Defense counsel proposed to inquire fully into the plea
agreement and the other crimes with which Meekins was charged.
Defense counsel desired to show the “pressure brought to bear”
Meekins and to demonstrate that he was testifying against the a
defendant in return for the Commonwealth's promise that “he [would]
not get the chair."
The trial court ruled that, if defense counsel examined
Meekins concerning the other crimes, the Commonwealth would be
permitted to question the witness with respect to the defendant's
participation in the same offenses. Defense counsel elected not
to pursue the matter further.
The defendant argues that “there was no basis upon which
the trial court [could] have made [its] ruling”; the defendant's
involvement in the other crimes was irrelevant to Meekins’
tivation for testifying on behalf of the Commonwealth. In im-
sing a condition upon further cross-examination, the defendant
intains, the trial court denied his constitutional right to
sey
confront his accusers and limited his ability t to denonstrate a
is for bias or prejudice on Meekins' part. : .
The defendant relies upon our decisions in Woody v.
Commonwealth, 214 Va. 296, 199 S.E.2d 529 (1973), and Deavers v.
|Commonwealth, 220 Va. 14, 255 S.E.2d 458 (1979), as simeert fet
ihis argument. Both cases, however, are inapposite. In Woody, w
jreversed the trial. court's refusal to permit the accused to eres
lexamine accomplices concerning their participation in other crimes,
jnot involving the accused. We said the cross-examination was
iproper to show the witnesses were testifying falsely in the hope
lof obtaining leniency in the other snout. In Deavers, we held
ithat the trial court had erred in denying the accused permission
ito cross-examine an accomplice concerning whether the latter had
been offered leniency in exchange for his testimony.
In both Woody and Deavers, the denial of the right of
cross-examination was absolute with respect to the particular
point involved. Here, there was no denial of any right. The
|defendant had shown the jury that Meekins was testifying pursuant
les a plea agreement and had brought out what the agreement provided
concerning the present case. The trial court merely warned
|defense counsel of the consequences that would flow from inquiry
linto the other crimes with which Meekins was charged.
We do not believe the trial court erred in its ruling.
The Ghietinee here is identical with that addressed in United Stat
v. Barrentine, 591 F.2d 1069 (5th Cir.), cert. denied, 444 U.S.
| 990 (1979). There, in a gambling prosecution, the government's
star witness, an accomplice of the appellants, was cross-examined
concerning his prior arrests on other charges. On redirect exami-
nation, the prosecution was permitted to slow by the witness that
one of his prior arrests involved ar: tacident where he had picked
up marijuana at the request of one of the appellants.
Record No.
- 800690 |
: As in the present case, the trial judge in Barrentine had warned -
here. and dispositive of the question under discussion.
la defense instruction which would have permitted the jury to find
.|jCabin, then, as a matter of law, the robbery continued until
~
Ildefense counsel that questioning the witness concerning other
crimes would open the door to redirect . testimony of the eppellaneéll
involvement in those crimes.. The Fifth Circuit affirmed, stating:
' Cross-examination on a part of a transaction
enables the opposing party to elicit evidence
on redirect examination of the whole transaction
at least to the extent that it relates to the
sate subject
591 F.2d : 1081. We adopt the quoted language as applicable
This brings us to the defendant's major contention.
Here, the defendant argues that the trial court erred in refusing’
that the robbery of Gallaher terminated at the Log Cabin restaurant
and, therefore, that the defendant was guilty only of the non-
capital offense of first degree murder in the subsequent killing
of Gallaher. As a corollary, the defendant argues that the court
erred further in refusing to permit defense counsel to argue the
first-degree-murder theory before the jury.
At this point, it is important to clarify what the trial
court ruled and what it did not rule. Contrary to the indication
in the defendant's brief, the court did not rule as a matter of
law that the killing of Gallaher occurred in the commission of
robbery. Out of the hearing of the jury, the court did rule that,
if the jury believed the defendant robbed Gallaher at the Log se
Gallaher‘s subsequent death on Mayo Island. The record does not
reveal, however, that this ruling was ever communicated to the
jury. Further, contrary to what the defendant suggests, the *”
lower court did not prohibit counsel from arguing to the jury — :
that the killing did not occur in the commission of robbery.
ees
’
. .
es | De eee Ot
The record shows the cases court granted Instruction 6,
which told the jury that- the burden was’ ‘upon the Commonwealth to
prove, inter alia, the ‘killing. of. Gallaher canine during the
commission of robbery and that, in the failure of this burden of
|[proof, the jury should find the defendant not guilty of capital
murder. The court also granted Instruction. 10A, which defined
the offense of robbery. And, in the discussion between court
and counsel concerning instructions, the trial judge made clear
defense counsel could argue to the jury that the Commonwealth had
failed to prove "the elements of the crime" of capital murder,
including the element “that the killing occurred during the com-
mission of robbery.” The court only prohibited defense counsel |
from arguing that the robbery, if it occurred, terminated with the
‘oaape rma of the events at the Log Cabin restaurant.
| moe With this clarification, it is obvious that the trial
court took the position that the jury should be permitted only
two options, viz., to find the defendant guilty of capital murder
jjor to acquit him. Relying upon Beck v. Alabama, U.S. __,
100 S.Ct, 2382 (1980), the defendant argues that the jury should
have been given a third alternative, viz., to convict him of the
lesser included offense of first degree murder on the theory that
the robbery of Gallaher had terminated well in advance of the
murder.
In Beck, a capital case involving robbery and murder of |
the victim by the accused and an accomplice, the trial court oy
refused the defense a first-degree-murder instruction. Noting
that the accused had admitted participation in the robbery but
had denied killing the victim or intending his death, the Supreme
Court reversed, stating that the defense was entitled to the
instruction. |
Beck, however, is inapposite. Unlike the accused there,
: = 26
—— —we £ ee
this defendant ihe all namheaans in both the robbery and the.
killing of the victim. Furthermore, ‘tn Beck, an Alabama statute pe
forbade the granting of - lesser- included-offensé. instructions Sr
in capital cases. Virginia has no similar statute or - other rule:
of law requiring the same result. In this state, such serene:
are proper, but only when supported by evidence. Clark v. Com-_
monwealth, supra note 2, 220 Va. at 209, 257.S.E.2d at 789; ‘
Painter v. Commonwealth, 210 Va. 360, 367, 171 S.E.2d 166, 171
(1969). ‘Beck did not affect this rule. Indeed, the holding in
Beck was "responsive to this question:
_"May. a sentence of death constitutionally be ©
imposed after a jury verdict of guilt of a
-capital offense, when the jury was not per-
mitted to consider a verdict of guilt of a lesser
included non-capital offense, and when the evi-
dence would have supported such a verdict?”
(Emphasis added. )
___ U.S, at ___, 100 S.Ct. at 2384. The question becomes, there-
fore, whether there was any basis in the present case for per-
mitting the jury to consider a verdict of guilt of a lesser-
included non-~-capital offense.
In this connection, both the defendant and the Attorney
General cite our decision in Haskell, et al. v. Commonwealth, 218
Va. 1033, 243 S.E.2d 477 (1978). There, the three appellants and
a fourth assailant named Gaynor attacked a sailor pursuant to a
predesigned plan to rob him, When the robbers found no money on
the victim,-they tried to get into their car and drive away.-- The
victim attempted to prevent their escape, and Gaynor shot and a
killed him. Convicted of attempted robbery and murder, the ap-
pellants contended on appeal that the evidence did not sustain
their convictions under the felony-murder doctrine because the
attempted robbery had been abandoned before the victim was shot.
Rejecting this contention after an examination of numerous .
authorities, we said that, under the prevailing rule:
2 one
=
[T]he Seki ocabtion statute applies where the
‘initial felony and:the homicide were parts of
- one continuous transaction, and were closely
related in point of time, place, and causal
connection, as where the killing was done in
flight from the scene of the crime to prevent
; detection or promote escape.
218 Va. at 1041, 243 S.E.2d at 482.
a We stated further:
The rule which we adopt, theater, consistent
with the weight of authority elsewhere, is that
the felony-murder statute applies where the
killing is so closely related to the felony in
time; place, and causal connection as to make
_ .°it a part of the same criminal enterprise.
218 Va. at 1043-44, 243 S.E.2d at 483.
' ‘The defendant here relies upon the portion of the
Haskell opinion wherein we observed that "(i]t was for the fact
finder to determine ... whether the attempted robbery had been
terminated within the purview of the [felony-murder] statute."
218 Va. at 1043, 243 S.E.2d at 483. . But, in Haskell, the finding
concerning the termination of the attempted robbery actually had
been made by the trier-of-fact; we were not called upon to decide
whether the determination properly might have been made as a
matter of law. As the Attorney General points out, Haskell does
not require that the trier-of-fact always determine whether an
initial felony has terminated in advance of a homicide. Indeed,
the Haskell opinion indicates clearly that, in an appropriate case,
the issue properly may be decided as a matter of law. 218 Va. at
1044, 243 S.E.2d at 484, | Cire mae
The defendant maintains, however, that, in refusing to
permit the jury in this case to determine whether the robbery of
Gallaher terminated before the killing, the trial court improperly
applied a liberal interpretation of the felony-murder doctrine.
A capital murder case differs from the typical felony-murder |
situation, the defendant escerts, ant the decisions of the United
States ee goeone By Court. require a more restrictive sacenypeteesen of
» 29's
pees senney: principles in ‘asniei penalty cases.” ;
Even giving applicable principles strict icksensansttinain
Wwe believe the trial court did not err in refusing a first-degree-
der instruction and in ruling that, if a robbery occurred in
this case, it did not terminate with the conclusion of the events
at the Log Cabin écevierent. Uncontradicted evidence supported
the trial court's holding concerning the continuation of the
robbery; no evidence supported granting the instruction.
si | The distinctive elements of robbery are (1) the use of
violence, or ‘the threat thereof, against the victim, and (2) the
theft of property from his person or in his presence. Theft of
property is a trespass upon the rights of the owner therein for
as long as he is deprived of the use thereof; he retains legal
possession of. the goods stolen even when they are in the actual
possession of the thief. Dunlavey v. Commonwealth, 184 Va. 521,
525-26, 35 S.E.2d 763, 765 (1945). In a robbery prosecution,
where the violence against the victim and the trespass to his
property combine in a continuing, unbroken sequence of events, the
robbery itself continues as well for the same period of time.
Here, obviously, the jury believed a robbery occurred.
It is equally obvious that Gallaher's automobile was a fruit of
the robbery. Uncontradicted testimony submitted by the Common-
alth showed conclusively that the violence against Gallaher and
he trespass to his automobile combined and continued unabated
rom the time of the initial taking of the car at the Log Cabin
til Gallaher was killed on Mayo Island only 15 to 20 minutes
ater. Thus, borrowing and adapting the language of Haskell, we
old that the killing involved here was so closely related in time,
,
om
Sf
'
3
=
F
;
2
+
4
7
“al
The defendant cites: Godfrey v. Georgia, » 100 S.Ct.
1759 (1980); Jurek v.: Texas, 428 U.S. 55 (1976); S orotFite v.
lorida, 428 U.S. 242 (1976); Gregg v. Geor ia, 428 U.S. 153 or
urman v. Georgia, byte U.S. 238 (1972).
= cat “die.
= RBS se -J. . Pi itlg th ae
Record No. . place, and causal connection as to.make the killing, as a matter
800690 - ! ae, oe .
bie
of law, a part of the same criminal enterprise. Cf. Doane Fo.54
~ . | Commonwealth, 218 Va. 500, 237 S.E.2d 797 (1977) (where no causal
relationship or nexus shown between antecedent felony and killing,
accused not guilty of felony-murder).
One defense argument remains in this phase of the case.
The defendant maintains that he cannot be convicted of capital
murder for a robbery involving the theft of Gallaher's car because
there was no evidence that the entinian: or his accomplices
“intended to take [the car] permanently." We reject this argument
out of hand. We can conceive of no more conclusive evidence of
the intent to deprive an owner of his car permanently than the
testimony presented in this case that the car was stolen con-
temporaneously with the murder of its owner and later abandoned
and stripped of parts.
The defendant's riext contention concerns the trial
court's refusal, in the penalty stage of the trial, to grant
defense Instruction A2, This instruction would have told the jury;
The Court instructs the jury that even
though you may believe that the Commonwealth has
proven, beyond a reasonable doubt, the elements
necessary for you to recommend that Linwood E.
Briley be put to death, you are not required by
law to recommend the death penalty and you may
fix Linwood Earl Briley's punishment at imprison-
ment for life.
The defendant argues this instruction was necessary to .
inform the jury clearly that it was not bound to recommend the
death sentence in any event. In Instruction 1A, however, the
trial court told the jury:
You have convicted the defendant of an of-
fense which may be punished by death. You must
decide whether the defendant shall be sentenced
to death or to life imprisonment. Before the
- penalty can be fixed at death, the Commonwealth
must prove beyond a reasonable doubt at least
one of the following two alternatives:
: : ¥ 1 4 as
I
Record No.
°.
(1) That, after consideration of his past
800690 - criminal ‘record,: there is a probability that he -
re - would commit criminal acts of violence that would
- constitute a continuing. serious threat to society;
ae 3 .
(2) That his conduct in committing the of-
fense was outrageously or wantonly vile, horrible
or inhuman, in that it involved torture, depravity
of mind or aggravated battery to the victim beyond |
the minimum necessary to accomplish the act of
murder.
If you find from the evidence that the Con- .
monwealth has proven beyond a reasonable doubt
either of the two alternatives, then you may fix
the punishment of the defendant at death or if
- you believe from all the evidence that the death
' penalty is not justified, then you shall fix the
punishment of the defendant at life imprisonment.
* If the Commonwealth has failed to prove either
alternative beyond a reasonable doubt, then you
shall fix the punishment of the defendant at life
imprisonment. (Emphasis added.)
In our opinion, this last-quoted instruction clearly and
sufficiently informed the jury of its option to fix the defen-
dant‘s punishment at life imprisonment, even though it also found
the existence of the aggravating circumstances permitting a
recommendation of the death penalty. Defense Instruction A2,
therefore, was unnecessary. Smith v. Commonwealth, supra note 2,
219 Va, at 479-80, 248 S.E.2d at 149-50.
In his final assignment of error, the defendant contends
that his sentence of death was imposed under the influence of
assion, prejudice, or other arbitrary factor and that the sen-
ence is excessive or disproportionate to the penalty imposed in
imilar cases. Our examination of this record, however, convinces
s that the defendant's sentence was not, influenced by passion,
rejudice, or other arbitrary factor. With respect to excessive-
ess or disproportionality, we have examined the records in two
ther death penalty cases decided today® and in cases decided
James Dyral Briley v. Commonwealth, Va. » ___ &.E.2d
(Record No. ; Turner v. Commonwealth, Va. 4 “SLE:
'd (Record No. 800375). bs Me No
| i cy soe: 2 a a Sag c-
+
ES
Record No.
~ 800690
previously’ in which death sentences were upheld. ;- From this
examination, we conclude that the defendant's sentence is not
excessive or disproportionate.
Finding neither error in the judgment ‘eliailied from nor
othr: j reason to disturb the death sentence imposed in this omnes im
we will affirm the defendant's ;- conviction and sentence.
Affirmed.
‘The cases decided previously are listed at the end of the ae
in James Dyral- Briley v. Commonwealth, supra note 6. i
= 16 -
|
-
“VIRGINIA:
Gu the Supreme Gaurt of Yaginis held atthe Sepoome Cat ing in
“iy of Bent Wednesday «Me 26th . day of November, 1980. ‘3 :
Linwood Earl seaSiies | pe, tes Ks Co ie
against Record No. 800690
Circuit Court No. F-80-229
Commonwealth of Virginia, | Appellee.
Upon an appeal from a judgment
rendered by the Circuit Court of the
City of Richmond, Division I, on the
10th day of March, 1980.
For reasons stated in writing and filed with the record, the
court is of opinion that there is no error in the judgment appealed from.
Accordingly, the judgment is affirmed.
It is ordered that the said circuit court allow counsel for the
appellant a fee of $550 for services rendered the appellant on this appeal,
in addition to counsel's costs and necessary direct out-of-pocket expenses.
This order shall be forthwith certified to the said circuit
court.
A Copy,
Teste:
ciao >
" ose
aS ae aa ae Fe Te ee eT ae, Ee eS ae
VIRGINIA: |
City of Richmond on | Friday he 16th day f January, 1981.
Linwood Earl Briley, Appellant,
against Record No. 800690
Circuit Court No. F-80-229
Commonwealth of Virginia,. Appellee.
Upon a Petition for Rehearing
On consideration of the petition of the appellant to set
aside the judgment rendered herein on the 26th day of November,
1980, and grant a rehearing thereof, the prayer of the said petition
is denied.
A Copy,
Teste:
Ko KZ
cl
-_ ss
- VIRGINIA: . So igi a
AS. SIE ale ities Count of Vi boginia hela the Sepoome fant ang te i
by of Richmond on —— | the 17th a A February, 1981. : et. ee: ie
8
Ae nd ‘Vv
eo
Pre bee
ie gar] Briley,’ Rs os Eyed a ey Poem a | “Appeldane,
against — Record No. 800690
Circuit Court No. F-80-229
Commonwealth of Virginia, pe Appellee.
ORDER SYAYING EXECUTION OF JUDGMENT
Upon consideration of the “pplication of the appellant, by
counsel, praying for a stay of execution of the judgment rendered herein
on November 26, 1980, and January 16, 1981, in order that he may have
reasonable time and opportunity to present to the Supreme Court of the
United States a petition for a writ of certiorari to review the judgment
of this court, it is now ordered that the execution and enforcement of
the judgment of this court in the above-styled case rendered on November
26, 1980, and January 26, 1981, be, and the same is hereby, stayed, to
and including the 16th day of April, 1981, on the expiration of which
time the same may be enforced, unless the case has been before that time
docketed in the Supreme Court of the United States, in which event
enforcement thereof shall be stayed until the final determination of the
case by that court,
The above stay, however, is not to discharge the petitioner
from custody, if in custody, or to release his bond if out on bail.
A Copy,
Teste:
lowe
Cler
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this Court was returned February the 14th, all
of those matters have been before the Court, been
argued, and they just this morning have been made
a part of the record. So I will overrule your
motion for a continuance,
MR. RICE: If Your Honor please, before
Mr. Cowan moves on to the next motion, I would
also like the record to reflect that not only
was the Court correct in that the language in those
indictments in Division I and II are the same, but .
I would also likw to let the record note that the
trial dates are also the same, having been set for
the 19th.
THE COURT: That is correct,
MR. COWAN: If Your Honor please, for the
record, I would like to state our objection to the
ruling of the Court and state that even though
this man was indicted in Division II, and even
though the trial date was set for today, in fact,
the trial on those canes is not being pursued,
It is a new indictment in a new Division of the
Circuit Court in the City of Richmond. And ve
respectfully submit that the defendant is entitled
to additional time to consider the consequences of
the change in the site of the trial on the new
83
Oe Serre
Pi
indictment or any incidences thereto. That is the
basis for it. We would like that to be in the
record as our grounds for the objection to the
denial of the Court of our motion for a continuance.
Judge, we would respectfully move the
Court to dismiss the capital murder indictment as
to the defendant on the grounds that under our
system in Virginia, Section 13.2-13 of the Code
of Virginia provides that only a principal in the
first degree can be convicted of capital zurder
except a principal in the second degree for murder
for hire can be convicted of capital murder.
Our position is that under the facts that
the Commonwealth will seek to prove in this case,
that this alleged homicide took place with several
parties participating, as the Commonwealth's
evidence will show. And we respectfully submit that
a statute or a statutory setup which says that only
the person actually ultimately pulling the trigger
or doing whatever act is necessary to consummate
the homicide can be guilty of capital murder is,
in fact, a denial of equal protection under the
law to that person.
As I understand our law, I believe this
is the only case in our law where a principal in 84
|
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the second degree is treated differently than a
principal in the first degree as to punishment,
and we respectfully submit that the capital
murder indictment, so much of it as charges
capital murder, should be quashed and that the
trial should go forward as to this defendant,
Linwood Earl Briley, only on the grounds of first
degree murder because he is being denied equal
protection under the law by virtue of our
statutory setup.
MR. RICE: Your Honor, the Commonwealth's
position would be it is not a denial of equal
protection in that the defendant does not stand in
the same relationship as do the other codefandants
in this case. That the legislature, the General
Assembly, draw a line between those who actually
perpetrated the crime and those who were present.
He is not in the same degree and classification and
he is not denied equal protection under the law,
under Virginia law.
THE COURT: Hasn't that case been passed on,
the whole statutory scheme of our capital cases?
MR. RICE: Yes, sir, Michael Marnell Smith..
THE COURT: Michael Marnell Smith is the
case in Judge Carneal's court. «85
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21
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MR. COWAN: If Your Honor please, that is
different. In that case you have one individual
who, under the Commonwealth's case, was the sole
perpetrator of the crime. In this case, you have
several people that the Commonwealth would attempt
to show were involved.
So we respectfully submit that neither our
Supreme Court nor the Supreme Court of the United
States -—— our Supreme Court being the Virginia
Supreme Court -— neither has passed on the issue
we are raising.
MR. RICE: If Your Honor please, just a
brief response: I submit to the Court that this
actual situation is the same as in Commonwealth
versus Stamper and also in Camp (ph.) versus the
Commonwealth, in which case there were several
participants and only one triggerman.
THE COURT: The statutory scheme, as I
understand it, the imposition of the death penalty
has been moved to the triggerman, whoever he may
be. And I think the legislature in its wisdom
can do that.
It may be that you start out as a principal
in the second degree, but somewhere along the line
you become the man who pulls the trigger, and they
86
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have said that is the point we mast focus on.
Por that reason, I do not deem it a denial
of due process and will not strike the capital
murder provision of the indictment.
MR. COWAN: If Your Honor please, we would
like for the record to note our objection for the
reasons heretofore Stated. And I refer the Common-
wealth to the equal protection clause of the
Fourteenth Amendment. I would also like to say
it is in violation of due process.
Yes, sir.
: Your Honor,
fully move the Court to dismiss that part which
would purport to charge capital murder as being
unconstitutional on the grounds that under our
Statutory scheme of homicides in Virginia, the
distinction between murder in the first degree and
capital murder is arbitrary and capricious in that
murder in the first degree can be by poison, lying
in wait, imprisonment, starvation, or any other
willful and premeditated killing.
And if Your Honor please, we respectfully
submit that someone convicted under that section of
murder or that framework of murder is not subject
to being put to death. We respectfully submit that 8’
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is an arbitrary and capricious delineation by a
legislature of someone in its denial of equal
protection of law and due process. Someone could
be convicted under any of that and just be convicted
of first degree murder, and to attempt to convict
this defendant of capital murder is a denial of
equal protection and due process.
May I say one other grounds? wWe would
further say that this same statute, 18.2-31 of the
Code of Virginia, gives the Commonwealth apparently
the election to prosecute a homicide in the commis-
sion of robbery either as first degree or as
capital murder. We say further that that is a
denial of equal protection and due process of the
law
MR. RICE: If Your Honor please, as to the
first part of Mr. Cowan's argument, I submit that
the issue of the distinction between first degree
under 18,2-32 and 2-31 of the Code had been rightfully
stated and is discretionary. And second, that the
Commonwealth has any election — I submit that the
Commonwealth is entitled to proceed on as many
different theories of the murder as the evidence
may Or may not bear. And there is some theory that
the first degree would be included as a lesser-
—— ee ee ees ss
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included one, and the Commonwealth has a right to
proceed on either or all.
THE COURT: Wouldn't the Commonwealth have
the right to proceed on capital murder and not on
the death penalty?
MR. RICE: Yes, sir.
THE COURT: As I see it, the legislature has
laid out six grounds of capital murder in which
death may be the penalty. I understand probably
that the House passed a seventh, multiple murder,
but that isn’t a question here. I think they have
delineated which of all the choices.
(To Mr. Cowan) -I get your point. Any other
willful murder could include anything including
the six that may carry the death penalty. Sut on
the other hand, to say that it gives the Commonwealth
an election as to whether it will try some people on
a capital case and some on a first degree case is
less sound reasoning in view of the fact that they
may indict on the capital case and never ask for the
death penalty.
MR. RICE: Just again briefly, going to the
discretion of the prosecutors to determine who
would be indicted on capital and who for first, I
submit that was litigated in Roberts versus Louisiana
89
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in the United States Supreme Court in which the
majority said somewhere along the line just maybe,
in light of the prosecuting attorney's office, it
is discretionary as to how to proceed.
MR. COWAN: Judge, I am in favor of Roberts
versus Louisiana, I think that the Supreme Court
has, in the past, made some distinction and rules
in the past to the effect that the prosecutor
does have some discretion as to how he is going to
proceed.
Our point, and what I want the record to
reflect, is that there is no significant difference
as far as the gravity of the offense between the
crimes set out in 18.2-31 as the capital murder
statute and that part of 18.2-31 of the Code of
Virginia which says that first degree murder can
be any murder by poison, lying in wait, imprison-
ment, starving, or by any willful, deliberate, and
premeditated killing.
So what I am saying. is that the distinction,
that is, by our legislature of what is capital
murder and what is first degree murder is arbitrary,
is capricious, is denial of equal protection of the
law. And it is denial of this defendant, Linwood zZarl
Briley, in that he can be placed on trial for a
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murder when someone that has committed the
grievous acts referred to in 18.2-32.3 can only
be placed on trial for first degree murder.
We would respectfully ask that the record
reflect our position on this point.
COURT: It will, but the.
over
MR. COWAN: If Your donor please, I have
two other Constitutional motions that I would lixe
to make. We respectfully nove the Court to dismiss
the capital murder indictment or so much thereof
as would try this defendant on the charge of
capital murder on the grounds that in Section
19.2-264.2 of the Code of Virginia, the jury is
permitted to give the death penalty or recommend
the death penalty if they find the Commonwealth
has proven beyond a reasonable doubt that there
is a probability that the defendant would commit
criminal acts of violence that would constitute
a continuing serious threat to society or that his
conduct in committing the offense for which he
stands charged was outrageous or inhumane.
We respectfully submit, if Your Honor
please, that those provisions are so vague that
the statute is unconstitutional on its face. ~
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1 If Your Honor please, we are familiar with
“ the two Virginia cases, or one in particular, in
3 which that issue has been submitted. The Smith
4 case was submitted and I believe our Court, the
5 Virginia Supreme Court, refused to sustain the
6 challenge on the constitutionality as to the
7 grounds I just set forth.
8 And as an officer of the Court, I feel
9 compelled to say we are familiar with the case.
10 We understand that. But for our record here today,
ll we respecfully submit that the Supreme Court of
12 the United States has not passed on those issues as
13 they pertain to the Virginia Statute, and I would
14 like to preserve that point.
15 MR. RICE: If Your Honor please, my
16 response would be that both May (ph.) and Smith
17 were confirmed by the Supreme Court, and that area
18 was decided.
19 And I would also point out to the Court that
20 the Virginia framework is in line with Gregg versus
21 Georgia and Jurek versus Texas. I think both were
ve basically constitutional.
23 THE COURT: They break those cases into
24 about three groups, don't they?
25
MR. RICE: Yes, sir. : 92
. OF Mee re. hy tm
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because we know that over a period of many years
is required to show in order to carry its burden
of showing that there is a likelihood. of course,
nothing is certain in this world but perhaps death
and taxes,
I think I see a very good reason for it
that many people who were executed never committed
a crime before in their lives. They had led ex-
emplary lives, and they weren't allowed to show
that to the jury. I notice in the Beatty (ph.) case
that -- he was a Chesterfield man. Of course, he was
himself a rich man, a man twenty-seven years old, had
led a perfectly exemplary life until he blew his wife's
head off with a shotgun. And at that point, he wasn't
allowed to show his previous good behavior. Converse-
ly, if his record had been very bad, the Commonwealth
couldn't show that.
So many people who went through death row
and were executed had much going in their favor if
they had been allowed to show it. It is something
like giving the Judge a presentence report, giving him
at least an educated guess about who he is dealing
with once he has arrived at the question of guilt.
Motion is overruled. You may state your
objection,
95
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MR. COWANs We respectfully ask that the
record reflect our objections for the reasons hereto-
fore stated,
If Your Honor please, we would move for a
separate voir dire as to each prospective juro
THE COURT: Well, I first propose bring
twent mn and go through the general estions, then
send them t and let counsel or te Clerk call
them back one a tine,
MR. COWAN: atAs satisfactory with us,
MR. RICE: t agreeable with the
Commonwealth, sj{2,.
ORT: All right.
« COWAN: When it comes to e individual
vo dire, we have one question that we would like
for the Court to ask, May we take that up at is
time?
THE COURT: Does that complete your motions?
MR. COWAN: Yes, sir, if Your Honor please,
THE COURT: That is in addition to the
number that you have filled before.
MR. COWAN: Yes, sir. I would, for the
record, if Your Honor ———— like to renew -- I
don't think it is necessary -—— the change of venue
motion that we filed in the Circuit Court of the.
96
373
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:
MR, COWAN: Judge, I understand that the
Commonwealth has another witness that they are
going to call, and then I believe the Court is
going to charge the jury and submit the case for
arguaent. I wanted to make sure the record
would be clear that I can renew my motion to strike
at this time as opposed to the conclusion of the
rebuttal witness's testimony. ,
THE COURT: Yes.
MR. COWANs And also renew at this time
all of the previous constitutional arguments that
I have made, if Your Honor please.
THE COURT: Cartainly.
MR. COWANs And that I do not have to
remake them after the rebuttal argument.
THE COURT: Sure.
MR. RICE: After the Commonwealth's witnes
en the Court is going to immediately ch the
jury. bring to the Court's att on that
neither side mace any ests as far as the
length of argument the Court want to take
that up at s time or argue e case as the
ev ce would bear.
THE COURT: I would like to, if poss
e, 34
(vy, Se
4 sthnnieagineess ..
“_
486
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s
on behalf of the Commonwealth, your services are
appreciated, and I would have told you that s
g no matter what your verdict had been,
You are now discharged from f con-
sideration of this case.
| heriff, will you see that #hey get back
to the hotel and feed them their/lunch, those who
want lunch. ome may want leave. But if
others want lun you may Mave your lunch, and
then discharge then the hotel after you have
checked them out.
(To the defendant\and defense counsel)
All right. You all may be seated,
THE SHERIFF: (To the ) Do you all
want to come and get your things?
NOTE: Members of the jury wha have left
pergonal articles in the jury room ret to the
room briefly and then leave the courtroom.
The jury leaves the courtroom at 1:20 o'clock \p.m.,
whereupon the hearing resumes, viz:
RY OUT
MR. COWAN: If Your Honor please, on behalf
of the defendant, I respectfully move the Court to
set aside the verdict, the finding of the jury on
all the constitutional grounds which I have 465
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ll
19
21
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\
JURY OUT -
previously raised and also based on all objections
and motions that I have previously mace, all of
which I can't remember, and I think by our previous
agreement I don't have to cite them all now.
THE COURT: You do not, that is correct,
sir.
Mr. Cowan, I think that you and Mr.
Robinson, Mr. Beard, and Ms. O'Toole have done t}
best you could with what has been a hard case/ a
hard case.
As I heard it explained, you g into this
type of se and it feels like a al wave is
coming in o u. And I an you all felt that
way at times yesterday.
It has been, fiftgtn years since I was at
the bar, and I have secuted cases and defended
cases previously which e ceath sentence was
returned, and *t is no happy ‘qvent. I am not
trying to facetious when I sa\ that.
ut we have lived with this ‘<ase since
10: o'clock Tuesday morning. It is now 1:21
iday afternoon, and = have not only lived with
it all day, I have lived with it all night ea
day.
46
ee ee ee cee en
4.
Investigation, something about an arrest in
for robbery and attempted murder in North Caro
says that that is incorrect.
Under all of the circumstances this case
and the rd, I would think we respectfully
ask the Co to disregard that
THz C : What ¢ the NG stand for?
MR. COWAN: th "not guilty,” Your
Honor.
THE COURT; Not ty, that is all I can
make out of it, too. And a robbery and
attempted r, released to 1 authorities. on
the Virginia warrants,
Well, if he disputes that, I am $qing te x
it out. If he was found not guilty on one
and not prosecuted on the other, I don't think t
it should be considered.
MR. COWAN: If Your Honor please, in order
that the record may be clear, we would respectfully
again ask the Court to set aside the jury's verdict
for all of the reasons ~-‘-> vere stated, all of
our motions, and all of ur objections which are,
in fact, on the record.
THE COURT: Yes, sir.
MR. COWAN: And we would ask the Court, in
168
Se
at the same time reraise for the record all of the
addition, to set aside the jury's verdict and grant
the defendant a new trial on all issues, — upon --
under the totality of the case and the circumstances,
he was denied due process of law, We would also
constitutional issues that we raised.
Judge, the jury heard the evidence. The
Court heard the evidence. I don't possess the
wisdom at this time to try to talk the Court into
not entering or following the jury's verdict. The
Court heard all of the evidence. We ask the
Court not to impose the death sentence and we leave
it with the Court in that regard.
One other point that I would like, Judge:
It is my understanding that the transcript of e
1 trial will be a part of the record
THE COURT: I have a note ofthat already,
to do that, e it a part of record.
MR. And lso would like, as
part of the record, transcript of the venue
hearing which was heard on~south side and the
transcript the hearing which heard on
the 13th or the léth, that when the
sues were raised by the Commonwealth as whether
er not the defendant would waive venve on
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nothing gained by postponin until
‘ tomorrow morn
? MR. COWAN: » Judge.
. THE : But I wante be sure that
S co was making the conscious choice~
6 MR. COWAN: I understand, Judge.
U THE COURT: In having reviewed this,
8 frankly, I think the jury was right in finding you
9 guilty under both of the Statutory requirements
10 necessary in order to impose the death sentence.
u Your record of breaking and enterings goes back to
12 1974, and petty larceny goes back to '72. I see
1s nothing in this record that would indicate that
M you would ever be rehabilitated. And I note that
” you had some nine violations while in prison wnbies
* the 1974 conviction, including the possession of
1 contraband.
18 Therefore, the Court affirms the sentencing
19 of death imposed upon you on February 22nd, 1980,
20 by a jury, and the Court orders that the transcript
” of all proceedings in this case, whether heard in
= this. Division or previously in Division II, which
” have heretofore been made a part of the record in
+. the proceeding, be made a part of the record here.
ek Et pes ME. CISYK;—towant-the-transcript of ail 470)
nen i E
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proceedings any time, any stage, made a part of
the record in this case.
THE CLERK: Yes, sir.
THE COURT: Whether made by the dcefensc
atto s or the Commonwealth's Attorneys.
CLERK: Yes, sir. ,
COURT: And the Court Affirming the
Judge's sen e of Pebruary 22rd, 1980, it is
further the ordek and sentengs of this Court that
on or about May 29,\1980, u be transferred to
the State Peniten t Richmond, Virginia, and
that there, on Pridsy, Jhne 13th, 1980, that you
be electrocuted the r prescribed by law
until you are dead.
Now/ if in the meantime you file a petition
for a wr of error, execution of said sentence
shall suspended and remain suspended until the
Su Court shall an acted on your tion
da the appeal provided by law.
Gentlemen, unless there is something
further the Commonwealth can think of, the Court
will stand adjourned.
MR. COWAN: Judge, just for the record,
so that the record will be absolutely clear, we
again move the Court to set aside the sentence
471
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ll.
—
: which the Court just rendered, for all of the
. reasons and all of the grounds heretofore stated.
. THE COURT: Motion is overruled. !
. The Court will appoint counsel who
s represented the defendant faithfully, and agains
6 what I might call a massive, overwhelming case
‘ the Cormonwealth, to ouehiaien to represe him
8 in Ris appeal.
9 MR. COWAN: We will do that, Your Honor
10 please,
E ll N : Court is adjourned at 10:16
2 o’clock a.m.
13
14
15
16
17
18
19
20
21
22 ,
23
U 24
“3 4a?
i
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ouT
JURY OUT
evidence? The evidence is that they went out
looking for somebody to rob and they did rob him.
And there is a difference, I recognize, between
felony murder and capital murder. But I think
that this robbery was so interwoven in point of
time, continuous action, that there was no break-
off. There was never -- I would Say maybe per-
haps if one broke off and walked away and came
back, say, got completely out of sight and the
defandant could move somewhere in another direc-
~tion and he came back later, that it might not
be during the course of a robbery. But there
was never a break-off in this whole thing. -—-
And I would think it would be a travesty
to let a defendant say, you didn't catch me firing
a shot — I am not saying that this is what this
defendant says, but any defendant -- with one hand
- in the pocket of the victim and then, bang, all at
- the same time, you have got to get the picture of
ma doing them both.
I overrule the motion. ~
MR. COWAN: We respectfully object for the
reasons. stated. I would also like to say, Judge,
that I don't think that my argument goes to that 363 .
rr
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ll
24
JURY OUT
extreme. But we have made the point and we
respectfully object.
THE COURT; Sure. You have got the point
saved and if the Supreme Court says — if it
should ever get there and they say I was wrong,
then we will know what the law is. But I think
that the robbery is so interwoven that it is all a
part and parcel of the same plan: the robbery, the
abduction and the murder, They may not have
planned the murder originally, but being armed
with these guns didn't look like they were out for
celebrating Halloween.
MR. COWANs Our position is, and I have
stated for the record and I don't want to repeat
it, I would say that the robbery turned to an
abduction which the Commonwealth could have pursued
and they did not.
One other thing and I will be quiet. The
evidence is that Mr. Gallaher died instantly, and
so whatever taking of the car there was, in our
judgment, it would not support a robbery.
THE COURT: Then you go back to the same
thing, during the course of a robbery, but you
mean one hand in the pocket and one hand firing
364
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:
OUT .
the gun.. You can't shoot the man first and then
rob him,
| MR. COWAN; I think that is first, if you
shoot the man, you can convict him of homicide
but not capital murder,
Could we have a short recess?
MR. RICE: Could I make one brief state-
ment? }
THE COURT: Are you all trying the case
with each other?
MR. RICE: Wo, but if Your Honor please,
for the record, the.cases,I cited stood for the
proposition when an offense occurred, not the
felony murder.
MR. COWAN: They were related to the
felony murder,
THE COURT: That is correct. The felony
murder doctrine was just to cover situations like
' you have got right here, I think, but it May not
be. You can never convince me that this statute
doesn’t mean you cannot kill a person, whether |
you did it with a bludgeon, a rapier, or by poison
or lying in wait or any other way, and then go
through his pockets and rob him, that you aren't
365
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1 | gory our
. guilty under this statute.
3 MR. COWAN: We would also like to
. reiterate for the record all the other constitution-
5 al arguments we have made, restate them at this
6 time.
7 THE COURT: Yes, sir. Court will recess,
8 NOTE: At this point, 11:15 o'clock a.m,
3 recess is had until 11:43 o'clock a.m., whereupon
10 hearing resumes, viz:
i MR. COWAN: May I get my co-coynsel, if
12 Your 3 please? .. . si
13 COURT: (Nodding affi¢matively)
14 NOTE: + Cowan leayds the courtroom
- momentarily and r rns w Mr. Robinson and
6 Mr, Beard,
17 MR, COWAN: /Judga, before proceeding with
18 the defense of the matter, there are certain points
19 that I think Should go on the tecord so it will be
2 - complete far as the procedural matters are
a concesried.
22 This defendant has two brothers, James -
23 riley and Anthony Briley, each of which is ‘charged
ad in this case, not with capital murder but with
25
crimes associated with this case. Obviously er
vt
ve INSTRUCTION NO. A
The Court instructs the jury that if you believe that the Commonwealth has
failed to prove, beyond a reasonable doubt, all of the elements necessary to
convict the defendant of capital murder, then you cannot find the defendant
guilty of capital murder. However, if you believe the Commonwealth has proven
beyond a reasonable doubt that the Cnaindeats has proven that the defendant
wilfully, deliberately, premeditatedly and: maliciously killed. Johnny Gallaher,
4% you shall find him guilty of murder in the first degree and fix his punishment
| by confinement in the penitentiary for life, or for any term not less than 20
years.
boas yx & kid A
8%
21
"
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IN CHAMBERS
thinking somebody would come out drunk and they
could rob them. And from there on and until
Gallaher was killed on Mayo Island, there was one
continuous and continuing act which was an ongoing
robbery. And with the idea of keeping any living
witness from identifying them, to aid in their
escape, thoy killed the man. And that is my view,
Frank. I am sorry. \
MR. COWAN: . Judge -=
THE COURT: I don't want any more on that.
You take your exception.
MR. COWAN: Oh, I am not going to argue
any more, but I need to clarify something. We
respectfully object for all of the reasons stated
to the Court not submitting the theory, previously
outlined, to the jury and not giving the jury
instructions covering the issues raised by the
defendant. We respectfully object to the ruling
of the Court.
Now, Judge, I would like to raise another
‘ question. It would be my intention to argue
before the jury that the Commonwealth has not proved
a homicide during the commission of a robbery. And
I would make, in essence, the same arguments that I
st
34
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IN CHAMBERS
said that it never happened and Meekins said that
the victim was in their custody and under their
control from the minute they jumped over the
bushes and accosted him while he was relieving
himself at the Log Cabin until he was dragged out
of the car and shot. Now, if they are the facts,
you and I didn't make them.
MR. COWAN: But are you ruling as a matter
of law?
THE COURT: That the robbery doesn't get
over with under those circumstances, right,
period.
MR. COWAN: We respectfully object to the
ruling of the Court for all of the reasons I have
stated.
THE COURT: Sure.
MR. COWAN: Not only now, but on the motion
to strike, And, Judge, I am not going to argue
to the jury contrary to the instructions of the
Court. I would have argued contrary; I am not
going to do that now, I think that is highly
prejudicial to my client, but I don't have any
choice.
RE wold} urt —
ancl 428
hella ne tt
INSTRUCTION NO c
The defendant is charged with the crime of capital murder.
The Commonwealth must prove beyond a reasonable doubt each of the
following elements of that crime:
(1) That the defendant killed John Harvey
Gallagher; and 7
(2) That the killing was willful, deliberate
and premeditated;
(3) That the killing occurred during the
commission of robbery while the defendant
was armed with a deadly weapon.
If you find from the evidence that the Commonwealth has
proven beyond a reasonable doubt each of the above elements of the
offense as charged, then you shall find the defendant guilty and
shall not fix the punishment until your verdict has been returned
and further evidence is heard by you.
If you find the Commonwealth has failed to prove any one or
more of the elements of the offense beyond a reasonable doubt, then
you shall find the defendant not guilty of capital murder.
"
—s
AmoTnUuCc Tien tw. f &. rat
Robbery is an element of the offense of Capital
Murder for which the defendant is charged. The Commonwealth
must prove beyond a reasonable doubt each of the following
elements of that crime:
1. That the defendant intended to steal;
and
2. That United States currency and property
was taken; and
3. That the taking was from John Harvey
Gallagher or in is presence; and
4. That the taking was against the will of
‘the owner or possessor; and
5. That the taking was accomplished by violence
or threat of bodily harm.
If you find from the evidence that the Commonwealth
has proven beyond a reasonable doubt each of the above elements
of the offense of robbery, then you shall find that a robbery
did occur.
18
Tere
»
'
cared edi || eal
form of verdicts in this case is as follows:
INSTRUCTION NO. / [ |
The Court further instructs the jury that the proper
(1) GUILTY OF CAPITAL MURDER
We, the jury, find the defendant, Lynwood Earl Briley,
guilty of the capital murder of John Harvey Gallagher, during
the commission of a robbery, while armed with a deadly weapon,
as charged in the indictment.
_ Uealea f Lib. 2 20-90
oreman
We, the jury, find the defendant not guilty.
(2) NOT GUILTY
Foreman
"
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Rk BB FB BES
Im CHAMBERS
these
THE COURT: You have got plenty of room on
e These are the only three you want?
MR, COWAN: Excuse me one more second,
THES COURT; Oh, excuse me,
MR. COWAM: On that same No. 1, I object
to the instruction as the Court proposes to give
it on the basis that it does not include a
provision which says the burden is upon the
Commonwealth to exclude every reasonable hypothesis
of innocence. :
THE COURT: I will not give that under any
circumstances. I never give that one using the
word “hypothesis* for the good reason that I have
had some recent jurors come back and say, what
does a hypothesis mean?
MR. COHAN: We respectfully object to that.
SSS-couRe tes str. wid
MR. COWAN;: If Your Honor please, I object
to Instruction No. 6 on the same theory that I
have previously advanced, that there should be a
provision for lesser-included or a lesser~included
offense.
Judge, I object to Instruction Yo. 10
on the basis that it is confusing. I think it is
430
— --
‘
tt Ml
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‘745. me.
1 | Ia CHAMBERS
2 not a proper definition of robbery.
3 THE COURT: (Handing an instructio
. Mr. Cowan) See, that time. I told
5 ch other one you wanted here.
6 MR. COWAN: 10-A, I think instead of com-
7 menting, I think the instruction of the Court should
8 simply define robbery which, under Mason versus
9 Commonwealth -- I think it is in 212 Virginia --
10 the essence of it is that robbery is the taking
u of personal property from another or in his
12 presence with the intent to steal by force or
13 intimidation. |
14 I think that Instruction 10-A -—- I object
6 to it for the same reasons that it does not reflect
16 the theory of the defendant as to lesser-included
17 offenses.
18 Judge, I object to the form of verdict on
19 the basis that it does not reflect the theory that
20 we previously advanced about lesser-included
2 offenses.
22 Judge, I don't feel that the Commonwealth
23 has given an adequate burden of proof instruction
2 and I would submit my burden of proof instruction.
% THE COURT: Which is the old one?
431
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IN CHAMBERS
MR. COWAN: Out of Judge Doubles’ book.
THE COURT: I got beat over the head with
that when I came on the bench worse than any other
Judge in the state because I succeeded him and
the book was new.
MR. COWAN: I don't see where the Common-
wealth has really got a burden of proof instruction.
MR. VON SCHUCH: It is combined.
THE COURT: (Referring to instruction)
You will find the defendant not guilty unless the
Commonwealth has proved beyond a reasonable doubt
each of the elements of the offense.
MR. COWAN: Judge, we respectfully —
THE COURT: Wait a minute. Let me see —
A, B, C, D. (Referring to instructions) All
right.
MR. COWAN: We respectfully object to the
refusal to give Instructions A, B, C and D for
the reasons stated. And I have one more on the
presumption of innocence.
THE COURT: (Reading instruction) The
defendant is presumed to be innocent of the offense
with which he is charged and this presumption of
innocence goes with him through the entire case
zoe
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and applies at every stage thereof -- All right.
That is refused.
; MR. COWAN: Judge, I would like to tender
this instruction. (Handing another instruction
to the Court) Let me make one change. The reason
I tender Instruction No. Fis that it specifically
refers to the Commonwealth having to prove the
commission of robbery and then it specifically
refers to a proposed instruction which would
Gefine robbery.
THE COURT: Which would get back to your
theory that the robbery was completed?
MR. COWAN: That is correct. May I ask
one other favor and I will leave you alone. I had
dictated a simple robbery definition.
THE COURT: Do you want to offer it later?
MR. COWAN: I will offer it later. All I
am going to do is take it right out of the book.
Before the jury comes in, would you let
me make what few motions I have to make in Court?
THE COURT: Yes,
NOTE: At this point, the Court an e
return toc the Upon the hearing
res ; | 433
= OE ae
a a ere remap
mip IN THE
SUPREME COURT OF VIRGINIA
AT RICHMOND
Record No. 800690
COMMONWEALTH OF VIRGINIA, : Appellee,
v.
LINWOOD EARL BRILEY, Appellant.
ASSIGNMENTS OF ERROR
Comes now the defendant, by counsel, and makes the following Assignments of
Error regarding the matters involved herein:
1. The trial court erred in failing to sustain the defendant's motion to
dismiss so much of Indictment No. F80-229 as charged the defendant with capital
murder. The defendant's Motion was based upon the grounds that the applicable
Virginia Statutes violate the Due Process and Equal Protection Clauses of the Fifth
and Fourteenth Amendments of the Constitution of the United States, and Article One,
Section 11 of the Constitution of Virginia.
2. The trial court erred in refusing to grant the motion of the defendant to
continue the trial of the case.
3. The trial court erred in refusing to grant the defendant's motion for a
change of venue.
4. The trial court erred in failing to strike for cause veniremen who testified
on voir dire that they had formed opinions.
5. The trial court erred in refusing to grant the defendant's motion for change
of venue after it was apparent that a substantial number of the veniremen had read in
newspapers and seen on television accounts of multiple trial and charges against the
defendant and his brothers. 51’
a —--
6. The Court erred in striking for cause venireman Leroy A. Richardson.
~7, The trial court erred in failing to sustain the motion of the defendant
to dismiss the indictment on the grounds that the exclusive jurisdiction for the
trial of the charges involved rests with the Circuit Court of the City of
Richmond, Division Il.
8. The trial court erred in failing to rule as a matter of law, as requested
by the defendant, that the Commonwealth had failed to prove the charge against the
defendant of capital murder, and in refusing to submit to the jury, as requested
by the defendant, only the issue of whether the defendant was guilty of murder in
the first degree.
9. The trial court erred in ruling as a matter of law that the homicide in
question occurred during the commission of robbery, in refusing to permit counsel
for the defendant to argue to the jury that the homicide in question did not occur
in the commission of robbery and in refusing to submit to the jury the defendant's
theory that the homicide in question did not occur in the commission of the offense
of robbery.
10. The trial court erred in ruling that counsel for the defendant could not
fully cross examine Duncan Meekins about his plea agreement with the Commonwealth
without opening the door for the Commonwealth to prove facts relative to other
crimes, charges and convictions pertaining to the defendant.
11. The trial court erred in failing to sustain the defendant's position that
to permit the Commonwealth to prove cumulative felony convictions by the defendant
was a denial of due process of law.
-2-
S2
12. The trial court erred when it instructed the jury (Instructions number
6 and 10A) that the jury must find the defendant guilty of capital murder or acquit
him. The instructions to the jury should have contained, as requested by the
defendant, a lesser included offense theory whereby the jury could have found the
defendant not guilty of capital murder but guilty of first degree murder,
13.
14. The
15. The
16. The
defendant.
17. The
defendant.
18. The
defendant.
19. The
defendant.
20.
defendant.
The
21. The
defendant.
trial
trial
trial
trial
trial
trial
trial
trial
court erred
court erred
court erred
court erred
court erred
court erred
court erred
court erred
in
in
in
in
in
in
in
in
The trial court erred in giving Instruction number 1.
giving Instruction number 10.
refusing
refusing
refusing
refusing
refusing
refusing
refusing
Instruction
Instruction
Instruction
Instruction
Instruction
Instruction
Instruction
A tendered by the defendant.
number B tendered by the
number C tendered by the
number D tendered by the
number E tendered by the
number F tendered by the
number G tendered by the
33
22. The trial court erred in giving the jury a verdict form which failed to
permit the jury to find the defendant guilty of first degree murder and not capital
murder.
23. The trial court erred in refusing to give Instruction number A-1 offered
by the defendant.
24. The trial court erred in refusing to give Instruction number A-2 offered
by the defendant.
25. The trial court erred in permitting the Commonwealth to prove and submit
to the jury for consideration in the punishment phase of the case, fourteen felony
_convictions which were on appeal to the Virginia Supreme Court.
26. The trial court erred in refusing to permit counsel for the defendant to
argue to the jury that fourteen felony convictions of the defendant were on appeal
to the Virginia Supreme Court and that the jury should consider this in its
deliberations.
27. The trial court erred in permitting the Commonwealth to cross examine the
defendant on fourteen felony convictions that are on appeal to the Virginia Supreme
Court and in instructing the jury that such convictions were a verity until reversed
by another court.
28. The trial court erred in failing to set aside the jury verdict and grant
the defendant a new trial on the grounds that under the totality of the circumstances
the defendant was denied due process of law.
ae
29. The death sentence was imposed upon the influence of passion, prejudice
or other arbitrary factor, and the sentence was excessive or disproportionate to
the penalty imposed in similar cases.
LINWOOD EARL BRILEY
Frank N. Cowan
COWAN, OWEN & NANCE
1901 Huguenot Road
P. 0. Box 3347
Richmond, Virginia .23235
Charles L. Beard
200 North 4th Street
Richmond, Virginia 23219
Bruce E. Robinson
1308 Hull Street
Richmond, Virginia 23224
CERTIFICATE
I hereby certify that a true and exact copy of the foregoing Assignments of
Error was mailed, postage prepaid, to Mr. Terrell Don Hutto, Director, Department
of Corrections, 22 East Cary Street, Richmond, Virginia 23219; The Honorable
Marshall Coleman, Attorney General of Virginia, Supreme Court Building, 1107 East
Broad Street, Richmond, Virginia 23219, this 19th day of May, 1980.
Re DOP fen,
: Frank N. Cowan
95
eee
1}
| RECEIVED
MAR 19 198]
OFFsCe OF THE CLERK
‘ IN THE SUPREME COURT, U.S.
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980
NO.
LINWOOD EARL BRILEY, Petitioner
COMMONWEALTH OF VIRGINIA
MOTION FOR LEAVE TO PROCEED
IN FORMA PAUPERIS
The petitioner, Linwood Earl Briley, who is now held ina
Virginia State Penitentiary, asks leave to file the attached Pe-
tition for a Writ of Certiorari to the Supreme Court of the
United States without prepayment of costs and to proceed in
forma pauperis pursuant to Rule 46.
The petitioner's affidavit in Support of this motion is
ee
Frank N. Cowan
Counsel for Petitioner
COW?.N, OWEN & NANCE
P. O. Box 3205
Richmond, Virginia 23235
attached hereto.
MAR 19 1981
es OF RK
OFFICE OF THE CLE
SUPREME COURT, U.S
g0 - 6367
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980
NO.
LINWOOD EARL BRILEY, Petitioner
COMMONWEALTH OF VIRGINIA
AFFIDAVIT
I, Linwood Earl Briley, being first duly sworn according to
law, depose and say, in Support of my motion for leave to pro-
ceed without being required to prepay costs or fees: 1. I am
the petitioner in the above-entitled case. 2. Because of my po-
verty I am unable to pay the costs of said cause. 3. I am unable
to give security for the same. 4. I believe that I am entitled
to the redress I seek in‘ said case. 5. The nature of said cause
is briefly stated as follows:
I was sentenced to death by the Circuit Court of the City of
Richmond, Division I, on a charge of capital murder. This sen-
tence was affirmed by the Supreme Court of Virginia. The present
proceeding was commenced on a petition to vacate the sentence,
as permitted by 28 U.S.C.§1257 (3), on the ground that the Vir-
ginia capital punishment statutes are unconstitutional; and that
the trial court violated my rights to due process of law in
limiting the cross-examination of the chief witness against me;
,
®y
refusing to instruct on lesser included offenses and failing to
grant a change of venue.
ood Earl Briley
STATE OF VIRGINIA
AT LARGE, to-wit:
I, the undersigned, a Notary Public in and for the juris-
diction aforesaid, do hereby certify that Linwood Earl Briley,
whose name is signed to the foregoing Affidavit dated Lbraay (b
228/ , has acknowledged the same before me in my jurisdiction
aforesaid.
Given under my hand on this 48 day of Dba L£t/ °
My Commission expires: @-yy-yy 42 22 a
" l
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