# Petition — LINWOOD E. E. BRILEY v. VIRGINIA (No. 80-6367) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1858%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 ## Text 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? = ee be teal » ’ . ie 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 RN NS TR Rn reer Seamer ae pn eet eee open Re = 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. — ~~ ae ap ee ee ~~ = res ne ee eae ce e .* ’ 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 ~ re a Oe ae ae ee | POPE RR re te a = ae mn ere ne een ny wenee 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- — sah aditiaeaanaaaimnamees ames aanndaeentio neh daake neaieaneienmemetetinmemtemtnime meiaheannnenatinemmmemeane. Tee Pern: 7 ‘ 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. - 5 - a Saas ~ —o — eye oF > ° ‘ 4 > ) - . 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) -9- i omasiendianemame a 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 - 12 - | 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 " 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 CRANE - SNEAD & ASSOCIATES, INC. COURT REPORTERS 908 N. THOMPSON STREET RICHMOND. VIRGINIA PHONE 355-4335 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 | eet CRANE - SNEAD 4& ASSOCIATES, INC. COURT REPORTERS 908 N. THOMPSON STREET RICHMOND. VIRGINIA PHONE 355-4335 3 Rk: S&B &B& SES 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 CRANE - SNEAD & ASSOCIATES, INC. COURT REPORTERS 908 N. THOMPSON STREET RICHMOND. VIRGINIA PHONE 355-4335 10. 19 21 24 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 ns CRANE - SNEAD & ASSOCIATES, INC. COURT REPORTERS 908 N. THOMPSON STREET RICHMOND. VIRGINIA PHONE 355-4335 11 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’ —_—_—_—— CRANE - SNEAD & ASSOCIATES, INC. COURT REPORTERS 908 N. THOMPSON STREET ric v 1A PHONE 355-4335 12. 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 CRANE - SNEAD & ASSOCIATES, INC. COURT REPORTERS 908 N. THOMPSON STREET RICHMOND, VIRGINIA PHONE 355-4335 13. 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 “et CRANE - SNEAD & ASSOCIATES, INC. COURT REPORTERS 908 N. THOMPSON STREET RICHMOND. VIRGINIA PHONE 335-4335 14, 24 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 CRANE - SNEAD & ASSOCIATES, INC. COURT REPORTERS 908 N. THOMPSON STREET RICHMOND. VIRGINIA PHONE 355-4335 15. 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. ~ CRANE - SNEAD & ASSOCIATES, INC. COURT REPORTERS 908 N. THOMPSON STREET RICHMOND, VIRGINIA PHONE 355-4335 16. 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 CRANE - SNEAD & ASSOCIATES, INC. COURT REPORTERS 908 N. THOMPSON STREET RICHMOND, VIRGINIA PHONE 355-4335 19. 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 , spit» _f.. CRANE - SNEAD & ASSOCIATES, INC. COURT REPORTERS 906 N. THOMPSON STREET RICHMOND, VIRGINIA PHONE 355-4335 29, 23 24 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 CRANE - SNEAD & ASSOCIATES, INC. COURT REPORTERS 908 N. THOMPSON STREET RICHMOND. VIRGINIA PHONE 355-4335 24 : 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 CRANE - SNEAD & ASSOCIATES, INC. COURT REPORTERS 908 N. THOMPSON STREET ric .v A PHONE 355-4335 24 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 CRANE - SNEAD & ASSOCIATES, INC. COURT REPORTERS 908 N. THOMPSON STREET ric o. A v . PHONE 355-4335 10 ll 19 21 24 \ 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 ‘ 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 CRANE - SNEAD & ASSOCIATES, INC. COURT REPORTERS 908 N. THOMPSON STREET RICHMOND. VIRGINIA PHONE 355-4335 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 CRANE - SNEAD & ASSOCIATES, INC. COURT REPORTERS . 908:/N,. THOMPSON STREET RICHMOND. VIRGINIA PHONE 355-4335 10. 24 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 aa CRANE - SNEAD & ASSOCIATES, INC. , : o0e w. THOMPSON STREET * “ouewe sen-eess 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 CRANE - SNEAD & ASSOCIATES, INC. COURT REPORTERS 908 N. THOMPSON STREET RICHMOND. VIRGINIA PHONE 355-4335 671. 24 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 _ CRANE - SNEAD & ASSOCIATES, INC. COURT REPORTERS 908 N. THOMPSON STREET RICHMOND. VIRGINIA PHONE 355-4335 672. 10 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 CRANE - SNEAD & ASSOCIATES, INC. COURT REPORTERS 908 N. THOMPSON STREET RICHMOND. VIRGINIA PHONE 355-4335 673. 24 : 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 CRANE - SNEAD & ASSOCIATES, INC. COURT REPORTERS ; 908 N. THOMPSON STREET RICHMOND, VIRGINIA PHONE 355-4335 299 674, 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 " CRANE - SNEAD & ASSOCIATES, INC. COURT REPORTERS 908 N. THOMPSON STREET RICHMOND, VIRGINIA PHONE 395-4335 736. 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 CRANE - SNEAD & ASSOCIATES, INC. COURT REPORTERS 008 WN. THOMPSON STREET RICHMOND. VIRGINIA PHONE 355-4335 740. 24 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 " “CRANE - GNEAD 4&4 ASSOCIATES, INC. COURT REPORTERS 908 N. THOMPSON STREET RICHMOND. VIRGINIA PHONE 355-4338 744. 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 CRANE - SNEAD & ASSOCIATES, INC. COURT REPORTERS 908 WN. THOMPSON STREET RICHMOND. VIRGINIA PHONE.355-4335 ‘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 CRANE - SNEAD & ASSOCIATES, INC. COURT REPORTERS 908 N. THOMPSON STREET RICHMOND. VIRGINIA PHONE 355-4335 746. 24 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 CRANE - SNEAD & ASSOCIATES, INC. COURT REPORTERS 908 N. THOMPSON STREET RICHMOND, VIRGINIA PHONE 355-4335 747. ue IN CHAMBERS : gi 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 ——_ -_ —- — --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1858%3A1. Public record. Not legal advice.