Petition — Briley v. Director of the Department of Corrections

— —

8 2 = 1 491 Office Supre ie ce. . U..

o

MAR 9 1983

No.

L. STEvAS, |

CLERK j

IN THE

Supreme Cort of the United States

OCTOBER TERM, 1982

|

JAMES DYRAL BRILEY,

Petitioner,

V.

DIRECTOR OF THE DEPARTMENT OF CORRECTIONS,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT

FOR THE COMMONWEALTH OF VIRGINIA

RICHARD J. WERTHEIMER

Counsel of Record

JAMES X. DEMPSEY

Of Counsel: ARNOLD & PORTER

GERALD T. ZERKIN 1200 New Hampshire Ave., N.W.

ZERKIN, WRIGHT & HEAD Washington, D.C. 20036

503-B East Main Street (202) 872-6700

Richmond, Virginia 23219 Attorneys for Petitioner

(804) 788-4412

LEONARD B. SIMON

2000 Central Federal Tower

225 Broadway

San Diego, California 92101

(619) 231-1058

March 9, 1983

WILSON - EPES PRINTING CO.. INC. . 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. In the punishment phase of a capital murder trial,

are sentencing instructions which merely repeat the bare

words of the “aggravating circumstances” provision in

the death penalty statute, and omit any explanation of

“mitigating circumstances,” sufficient to provide the “clear

and objective standards” and “specific and detailed guid-

ance” which are necessary to channel the discretion of

the jury? See Godfrey v. Georgia; Lockett v. Ohio.

2. Is evidence obtained when the police continue to

question the accused after he has requested an attorney

admissible in a capital murder trial? See Edwards v.

Arizona.

3. Should prospective jurors who are uncertain whether

they will vote for or against the death penalty be ex-

cluded from the jury in a capital murder trial? See

Witherspoon v. Illinois.

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED . .——.—.—

r

. ——————7—5vl —

rs ———————————ů———

CONSTITUTIONAL AND STATUTORY PROVI-

e ———————————————ĩ

STATEMENT OF THE CASE

HOW THE FEDERAL QUESTIONS WERE RAISED

3 „%% —

REASONS FOR GRANTING THE WRIT ....................

I.

II.

III.

THE COURT SHOULD CLARIFY THE SEN-

TENCING INSTRUCTIONS REQUIRED IN

„

A. The State and Federal Courts Are in Dis-

B. The Jury Was Unconstitutionally Instrueted

on the Aggravating Circumstances Necessary

for the Death Penalty

C. The Jury Was Unconstitutionally Instructed

on Mitigating Circumstances ..........................

SUMMARY REVERSAL IS REQUIRED BE-

CAUSE A STATEMENT OBTAINED IN VIO-

LATION OF MIRANDA WAS ADMITTED IN

, suplantvocdctrenseusssncisee

SUMMARY REVERSAL IS REQUIRED BE-

CAUSE PROSPECTIVE JURCRS WHO WERE

UNCERTAIN WHETHER THEY WOULD

IMPOSE THE DEATH PENALTY WERE Ex-

CLUDED .........

(iii)

Page

17

19

iv

TABLE OF CONTENTS—Continued

Page

rr, AAA 23

APPENDIX

A. Opinion and Order of the Virginia Supreme

PP VTT———T—TVTTVT—— la

B. Opinions and Orders of the Circuit Court for

1 I (0 ˙ 3a

C. Virginia Death Penalty Stature 10a

D. Sentencing Instructions at Petitioner’s Trial 13a

. Voir Dire of Prospective Jurors Candies and

TT ̃ œv————AA ty tactadad<tiedstlasihutnmidglaneied 16a

v

TABLE OF AUTHORITIES

Cases: Page

Beck v. State, 396 So. 2d 645 (Ala. 1980)............... 9

Boulden v. Holman, 394 U.S. 478 (196999 19

Burrows v. State, 640 P.2d 533 (Okla. Crim. App.

%% 8, 9

Davis v. Georgia, 429 U.S. 122 (1976) 22, 23

Edwards v. Arizona, 451 U.S. 477 (198177 17, 18, 19

Fare v. Michael C., 442 U.S. 707 (1979)... 17

Funicello v. New Jersey, 403 U.S. 948 (1971),

rev’g State v. Forcella, 52 N.J. 263, 245 A.2d

r eed Ar ee oa 21

Godfrey v. Georgia, 446 U.S. 420 (1980) ................ passim

Goodwin v. Balkcom, 684 F.2d 794 ,11th Cir.

I ATE ine eA aA PUR Se Ie Rp 8

Granviel v. Estelle, 655 F.2d 673 (5th Cir. 1981),

cert. denied, 102 S. Ct. 1644 (1982) E 21

Gregg v. Georgia, 428 U.S. 153 (1976) passim

Harris v. Texas, 408 U.S. 947 (1971) 5, 23

Hopkinson v. State, 682 P.2d 79 (Wyo. 1981),

cert. denied, 455 U.S. 922 (1982) 9

Houston v. State, 593 S.W.2d 267 (Tenn. 1980)... 9

King v. State, 553 S.W.2d 105 (Tex. Crim. App.

1977), cert. denied, 484 U.S. 1088 (1978)........ 8

Krier v. State, 249 Ga. 80, 287 S.E.2d 531; cert. de-

SF Me EG. | 8

Lockett v. Ohio, 488 U.S. 586 (1978) ................ 6, 8, 14, 16

Maxwell v. Bishop, 398 U.S. 262 (19700) 21

Miranda v. Arizona, 384 U.S. 436 (1966) 17, 18, 19

Proffitt v. Florida, 428 U.S. 242 (1976) 7,12

Quinones v. State, 592 S.W.2d 933 (Tex. Crim.

App.) (en banc), cert. denied, 449 U.S. 893

ARTIC SN BD) oT 9

Redd v. State, 242 Ga. 876, 252 S.E.2d 383, cert.

denied, 442 U.S. 984 (1979) 9

Roberts v. Louisiana, 428 U.S. 325 (19760) 14, 16

Segura v. Patterson, 408 U.S. 946 (1971), rev’g

402 F.2d 249 (10th Cir. 1968) 21

Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d

r Re ed. ee 13

Spivey v. Zant, 661 F. 2d 464 (5th Cir. 1981), cert.

denied, 102 S. Ct. 3495 (1982) 8

vi

TABLE OF AUTHORITIES—Continued

Page

State v. English, 867 So. 2d 815 (La. 19799 9

State v. Johnson, 298 N.C. 47, 257 S.E.2d 597

TTT eclarecladncaneodink 8,9

State v. Moore, 614 S.W.2d 348 (Tenn.), cert. de-

een, 8

State v. Newlon, 627 S. W. 2d 606 (Mo.) (en banc),

cert. denied, 51 U.S. L. W. 3249 (Oct. 4, 1982). 8

State v. Wood, 648 P. 2d 71 (Utah), cert. denied,

. 9

United States v. Hinckley, 525 F. Supp. 1342

(D. D.C. 1981), aff'd, 672 F.2d 115 (D.C. Cir.

EARLS: Ca A ae ee ae 19

Washington v. State, 361 So. 2d 61 (Miss. 1978),

cert. denied, 441 U.S. 916 (1979977 8,9

Wigglesworth v. Ohio, 403 U.S. 947 (1971) ............ 5, 23

Witherspoon v. Illinois, 391 U.S. 510 (1967)...19, 20, 21,

22, 23

Woodson v. North Carolina, 428 U.S. 280 (1976) 14, 16

Statutes:

Georgia Code § 27-2534.1(b) (7) (1978 11

Virginia Code:

r ———— c — — 4

88 19.2-264.2 19.2264.) 2

r ———c cc ——ꝙ— 15

D 10

ss . 2

,,, cease cea ahalintensbntnpiendeitiannes 2

Miscellaneous:

Dept. of Justice, National Prisoner Statistics No.

46, Capital Punishment 1930-1970, p. 9 (Aug.

c linasbiahansdeueoie 10

J. Greenberg, Capital Punishment as a System, 91

Yale L. J. 908 (1982) 1 ieee 10

United States Constitution:

,,, . 2, 18, 19

1 2, 18

Eighth Amendmentt 2, 13

Fourteenth Amendment 2, 13

IN THE

Supreme Cuurt of the United States

OCTOBER TERM, 1982

No.

JAMES DYRAL BRILEY,

Petitioner,

V.

DIRECTOR OF THE DEPARTMENT OF CORRECTIONS,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT

FOR THE COMMONWEALTH OF VIRGINIA

Petitioner, James Dyral Briley, an inmate on Virginia’s

death row, respectfully prays that a writ of certiorari

issue to review the judgment of the Virginia Supreme

Court, which affirmed the denial of his state habeas cor-

pus petition. The petitioner challenges here the validity of

a death sentence imposed by a basically uninstructed jury.

He also presents two errors so patent as to justify sum-

mary reversal.

OPINIONS BELOW

The unpublished opinion and order of the Virginia

Supreme Court rejecting petitioner’s appeal is attached

as Appendix A. The unpublished opinions and orders of

the Circuit Court of the City of Richmond dismissing the

petition for writ of habeas corpus are attached as Ap-

pendix B.

2

JURISDICTION

The judgment and opinion of the Virginia Supreme

Court is dated December 9, 1982. This Court’s jurisdiction

is invoked pursuant to 28 U.S.C. § 1257 and 28 U.S.C.

§ 2101.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the Fifth Amendment to the Consti-

tution of the United States, which provides, in relevant

part:

„Nor shall [any person] be compelled in any

criminal case to be a witness against himself. . .”;

the Sixth Amendment to the Constitution of the United

States, which provides, in relevant part:

“In all criminal prosecutions the accused shall en-

joy the right to a speedy and public trial, by an im-

partial jury of the state and district wherein the

crime shall have been committed. .”;

the Eighth Amendment to the Constitution of the United

States, which provides:

“Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments

inflicted” ;

and the Fourteenth Amendment to the Constitution of

the United States, which provides, in relevant part:

„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.”

This case also involves the Virginia death penalty stat-

ute, Virginia Code §§ 19.2-264.2 - 19.2-264.5, which is at-

tached as Appendix C.

STATEMENT OF THE CASE

Petitioner was convicted of two capital and eight non-

capital felonies on January 25, 1980, following a jury

trial in the Circuit Court for the City of Richmond. The

3

jury was selected by excluding for cause two prospective

jurors who were uncertain whether they would or would

not vote for the death penalty.

The testimony against petitioner was obtained princi-

pally from a 16-year-old youth who testified pursuant to

a plea bargain after confessing to the murder of one of

the victims. The youth, who stated at the trial that he had

lied in certain of his earlier accounts of the crime, was

the only witness who purported to describe what happened

inside the house where the crimes took place, and link pe-

titioner to the crimes. Other evidence introduced against

petitioner included a statement he had given on the night

of his arrest in response to police questioning which took

place after he had requested an attorney.

After a brief sentencing proceeding, at which peti-

tioner’s court-appointed attorneys presented only one wit-

ness, and at which the court’s sentencing instructions con-

sisted essentially of a reading of a portion of the Virginia

death penalty statute and the verdict forms, the jury rec-

ommended the death penalty.

On appeal, the Virginia Supreme Court affirmed the

convictions and sentences. 221 Va. 563, 273 S.E.2d 57

(1980). Appointed trial counsel failed to seek certiorari

from this Court and initially failed to pursue state or fed-

eral habeas corpus remedies.

On March 5, 1981 petitioner filed a petition for writ of

habeas corpus in the United States District Court for the

Eastern District of Virginia, raising four claims. On

March 13, 1981, that court denied the petition and also

denied a stay of execution. On March 16, 1981, petitioner

appealed to the United States Court of Appeals for the

Fourth Circuit, and on March 17, 1982, the Court of Ap-

peals stayed execution and the federal proceeding while

petitioner exhausted his state habeas corpus remedies.

Petitioner then filed a petition for writ of habeas cor-

pus in state court. All but two of the asserted grounds for

4

relief were dismissed without a hearing. The remaining

two counts, concerning ineffective assistance of counsel and

the admissibility of a statement obtained from petitioner

on the night of his arrest, were rejected after an eviden-

tiary hearing. A petition for appeal to the Virginia Su-

preme Court was denied on December 9, 1982.

HOW THE FEDERAL QUESTIONS WERE RAISED

AND DECIDED BELOW

1. The inadequacy of the sentencing instructions was

raised by petitioner both on direct appeal and in the

habeas corpus proceeding below. On direct appeal, peti-

tioner relied on Gregg v. Georgia, 428 U.S. 153 (1976),

and Godfrey v. Georgia, 446 U.S. 420 (1980), and argued

that “the [trial] Court, by merely quoting the statutory

language both orally and in writing and by failing to set

forth clear guidelines as to the meaning of those phrases,

allowed an unconstitutional application of the statute by

the jury.” Petitioner’s Brief at 38-39. The Virginia Su-

preme Court expressly rejected the argument, stating,

“ ‘While the terms may have been defined in an instruc-

tion to the jury, in a manner satisfactory to this Court,

the fact that the trial court did not choose to give such a

definitional instruction does not constitute reversible

error.’” 221 Va. 563, 579-80, 273 S.E.2d 57, 67.

The habeas petition challenged the instructions,

Amended Petition at 17-18, and the habeas court dis-

missed the claim without a hearing both on the merits

and on the ground that it should have been raised at trial

or on direct appeal. Opinion Letter of October 2, 1981, :

In addition, as part of Virginia’s death penalty scheme, Vir-

ginia Code § 17-110.1(c) requires the state supreme court to review

all aspects of the sentencing phase, regardless of whether they were

raised at trial or enumerated on appeal, “to determine

[whether the sentence of death was imposed under the influence

of passion, prejudice or any other arbitrary factor... . Thus,

the Virginia Supreme Court was necessarily charged with review

of the adequacy of the sentencing instructions.

5

Opinion and Order of October 29, 1981, Appendix B

hereto. This dismissal was challenged in the petition for

appeal to the Virginia Supreme Court, Petition for Ap-

peal at 39-42, and the Virginia Supreme Court affirmed

the habeas court. Opinion and Order of December 9,

1982, Appendix A hereto.

2. Petitioner’s Miranda claim was not raised on di-

rect appeal, but was raised in the state habeas proceed-

ing. Amended Petition at 33-34. The habeas court re-

jected the Commonwealth’s argument that the claim was

waived, ordered an evidentiary hearing, and ruled on the

merits of this claim. Opinion and Order of January 29,

1982, Appendix B hereto. Petitioner briefed the claim in

his petition for appeal to the Virginia Supreme Court,

Petition for Appeal at 14-18, and the Virginia Supreme

Court affirmed the ruling of the habeas court. Opinion

and Order of December 9, 1982, Appendix A hereto.

8. Petitioner’s Witherspoon claim was not raised at

trial or on direct appeal, but was not thereby waived.

Wigglesworth v. Ohio, 403 U.S. 947 (1971); Harris v.

Texas, 403 U.S. 947 (1971). It was raised in the habeas

proceeding, Amended Petition at 18-19, and was dis-

missed by the habeas court without a hearing both on

the merits and on the ground that it should have been

raised at trial or on appeal. Opinion Letter of October 2,

1981, Opinion and Order of October 29, 1981, Appendix

B hereto. The petitioner challenged this ruling in his pe-

tition for appeal to the Virginia Supreme Court, Petition

for Appeal at 39-42, and the Virginia Supreme Court af-

firmed the habeas court. Opinion and Order of December

9, 1982, Appendix A hereto.

REASONS FOR GRANTING THE WRIT

1. In Godfrey v. Georgia, 446 U.S. 420, 428 (1980),

this Court held that, in a capital murder case, the jury’s

sentencing discretion must be channeled “by ‘clear and

objective standards’ that provide ‘specific and detailed

guidance.’’ Where the jury is left “basically unin-

6

structed,” id. at 429, the jury’s death sentence cannot

stand.

In Lockett v. Ohio, 488 U.S. 586 (1978), the Court held

that a sentencing jury may not be precluded from consid-

ering, as a mitigating factor, any relevant aspect of the

defendant’s character or the circumstances of the crime.

Limitations on the jury’s consideration of mitigating fac-

tors create an “unacceptable” “risk that the death penalty

will be imposed in spite of factors which may call for a

less severe penalty.” 438 U.S. at 605.

Godfrey and Lockett notwithstanding, the state courts

and the lower federal courts are in considerable disarray

on the question of how much guidance is constitutionally

necessary for death sentencing juries. In this case, the

instructions consisted of little more than a reading of a

portion of the statute and the verdict forms. Other states

similarly ignore Godfrey and Lockett and provide no

clarifying or limiting instructions in the application of

their death sentencing statutes. Other courts, however,

require more detailed and careful instructions to guide

juries, although the specific requirements vary widely

from state to state, and from circuit to circuit.

The death penalty is now being imposed in more and

more cases. The writ should be granted because trial

courts need guidance on the instructions they must de-

liver to assure that, in cases where the stakes are highest,

“juries [are] carefully and adequately guided in their

deliberations.” Gregg v. Georgia, 428 U.S. 153, 193

(1976).

2. Two errors at petitioner’s trial are so plain on the

record as to justify granting the writ for the purpose of

summary reversal. The first concerns the admission of a

statement which the police obtained by questioning the

petitioner on the night of his arrest after he had requested

an attorney. The second concerns the exclusion of pros-

pective jurors who expressed uncertainty as to whether

they would impose the death penalty.

7

I. THE COURT SHOULD CLARIFY THE SENTENC-

ING INSTRUCTIONS REQUIRED IN CAPITAL

CASES

A. The State and Federal Courts Are in Disarray

As the plurality emphasized in Gregg v. Georgia, care-

ful and adequate instructions are necessary in order to

channel a sentencing jury’s discretion:

“Juries are invariably given careful instructions on

the law and how to apply it before they are author-

ized to decide the merits of a lawsuit. It would be

virtually unthinkable to follow any other course in

a legal system that has traditionally operated by

following prior precedents and fixed rules of law

. . It is quite simply a hallmark of our legal sys-

tem that juries be careful and adequately guided in

their deliberations.” 428 U.S. at 192 (citations and

footnote omitted).

Presuming that courts would give adequate guidance

to death-sentencing juries, the Court in Gregg and Prof-

fitt v. Florida, 428 U.S. 242 (1976), upheld as facially

valid death penalty statutes that otherwise might have

been unconstitutionally vague and overbroad. However,

where this presumption did not hold and the jury was

left “basically uninstructed,” the Court has not hesitated

to strike down the death sentence. Godfrey v. Georgia,

446 U.S. 420 (1980).

As we demonstrate below, the Virginia courts, in apply-

ing a death statute similar to Georgia’s, have failed to

provide the “careful instructions on the law and how to

apply it,” 428 U.S. at 193, that Gregg presumed. Other

state courts and the federal courts have come to widely

varying conclusions as to the extent to which a death-

sentencing jury must be guided in its deliberations.

Some states have held that juries must be informed of

the constitutional limitations on their application of “ag-

gravating circumstan’es” provisions in death penalty

statutes. Other states, however, have joined Virginia in

concluding that instructions explaining “aggravating cir-

cumstances” provisions are not necessary.“

Some state and federal courts have also required de-

tailed instructions on the function of “mitigating circum-

stances” and the jury’s option to recommend against the

death penalty even if “aggravating circumstances” are

found. In Spivey v. Zant, 661 F.2d 464, 471 (5th Cir.

1981), cert. denied, 102 S. Ct. 3495 (1982), for example,

the Fifth Circuit, relying on Gregg and Lockett, held that

jury instructions must not only “not preclude considera-

tion of mitigating factors [but must] also ‘guid[e] and

focu[s] the jury’s objective consideration’ ” of such fac-

tors. Accord, Goodwin v. Balkcom, 684 F.2d 794, 801-02

(11th Cir. 1982). Similarly, the North Carolina Supreme

Court has concluded that specific mention of “mitigating

circumstances” and a full explanation of their signifi-

2 State v. Johnson, 298 N.C. 47, 257 S.E.2d 597, 610, 620-22

(1979) (“[t]horough jury instructions, which incorporate and

reflect the definitions accorded to these criteria . . . must be

given“); Burrows v. State, 640 P.2d 533, 542-45 (Okla. Crim. App.

1982) (jury instructed on definition of “heinous, atrocious and

cruel”). See also State v. Moore, 614 S.W.2d 348, 351 (Tenn.),

cert. denied, 454 U.S. 970 (1981) (instructions must include

statutory definition of any felony relied upon as “aggravating

circumstance”).

3 See, e.g., State v. Newlon, 627 S.W.2d 606 (Mo.) (en banc),

cert. denied, 51 U.S.L.W. 3249 (Oct. 4, 1982) (definition of the

term “depravity of mind” unnecessary with respect to an “aggra-

vating circumstance” provision similar to § (b) (7) in the Georgia

statute) ; Washington v. State, 361 So. 2d 61, 65-66 (Miss. 1978),

cert. denied, 441 U.S. 916 (1979) (jury does not need definition of

“especially heinous, atrocious or cruel”); Krier v. State, 249 Ga.

80, 287 S.E.2d 531, 535-36, cert. denied, 102 S. Ct. 2974 (1982)

(definitional guidelines not necessary for “aggravating circum-

stance” provision). See also King v. State, 553 S.W.2d 105, 107

(Tex. Crim. App. 1977), cert. denied, 434 U.S. 1088 (1978) (no defi-

nitions necessary for application of phrase “probability that the

defendant would commit criminal acts of violzace that would con-

stitute a continuing threat to society”).

9

cance are required in a trial court’s instruction, State v.

Johnson, 298 N.C. 47, 257 S.E.2d 597, 614 (1979), and

other states have concluded that at least some explanatory

instructions are necessary.“ Several other states, how-

ever, have held that the jury need not be instructed in

the meaning or significance of “mitigating circum-

stances.” Still other states, while indicating general dis-

satisfaction with the level of guidance afforded juries,

have left it to the trial courts to devise adequate instruc-

tions. For example, in remanding one case, the Wyoming

Supreme Court, without further discussion, merely stated

that the jury should “have the statutory language more

thoroughly explained to it.” Hopkinson v. State, 632 P.2d

79, 166 (Wyo. 1981), cert. denied, 455 U.S. 922 (1982).

State v. English, 367 So. 2d 815, 819 (La. 1979) (instruction

necessary to explain “mitigating circumstance” of diminished ca-

pacity) ; Beck v. State, 396 So. 2d 645, 663 (Ala. 1980) (court shall

instruct the jury that they must weigh the “aggravating” and miti-

gating” circumstances); Houston v. State, 593 S.W.2d 267, 276

n.2 (Tenn. 1980) (statute requires judge to instruct jury to weigh

and consider “mitigating” and “aggravating” circumstances) ; Bur-

rows v. State, 640 P.2d 533, 542-45 (Okla. Crim. App. 1982) (jury

advised of availability of life imprisonment and instructed that

they should consider any “mitigating circumstances” they find ap-

plicable and weigh them against the “aggravating circumstances“);

State v. Wood, 648 P.2d 71, 83 (Utah), cert. denied, 103 S. Ct.

341 (1982) (prescribing detailed instruction on consideration and

weighing of “mitigating” and “aggravating” circumstances). See

also Washington v. State, 361 So. 2d 61, 64-65 (Miss. 1978), cert.

denied, 441 U.S. 916 (1979) (approving instruction to jury that

they must find one or more “aggravating circumstances” beyond a

reasonable doubt, and then must consider the “mitigating cir-

cumstances” and whether they outweigh the “aggravating cir-

cumstances”).

5 Redd v. State, 242 Ga. 876, 252 S.E.2d 383, 388, cert. denied,

442 U.S. 934 (1979) (“mitigating circumstances” need not be

‘singled out in court’s charge to jury); Quinones v. State, 592

S. W. 2d 933, 947 (Tex. Crim. App.) (en banc), cert. denied, 449

U.S. 893 (1980) (no explanatory instructions necessary concerning

jury’s consideration and weighing of “mitigating circumstances”).

10

We live amidst a capital punishment revival. In the 10-

year period 1961-1970, death sentences were imposed on

an average of 106 people each year; in the 6-year period

1975-1980, the yearly average had doubled to 216 death

sentences. Department of Justice, National Prisoner Sta-

tistics No. 46, Capital Punishment 1930-1970, p. 9 (Aug.

1971) ; J. Greenberg, Capital Punishment as a System, 91

Yale L. J. 908, 936 (1982). In a criminal proceeding

where the stakes could not be higher, it is essential that

clear and complete instr. tions be given the jury on the

manner in which the death sentence can and cannot be

imposed constitutionally. Some courts are now giving

these instructions; others, including, we submit, the trial

court below, are not. We urge that the writ be granted to

bring constitutionality and consistency to that criminal

proceeding where constitutionality and consistency are

most needed.

B. The Jury Was Unconstitutionally Instructed on the

Aggravating Circumstances Necessary for the

Death Penalty

The charge to the jury which sentenced James Briley

to death is set forth in full in Appendix D. It consists es-

sentially of a reading of selected portions of the Virginia

death penalty statute and the verdict forms supplied to

the jury.“

„The “aggravating circumstances” provision in the Virginia

death penalty statute, which was read to the jury, provides:

“The penalty of death shall not be imposed unless the Com-

monwealth shall prove beyond a reasonable doubt that there

is a probability based upon evidence of the prior history of

the defendant or of the circumstances surrounding the com-

mission of the offense of which he is accused that he would

commit criminal acts of violence that would constitute a con-

tinuing serious threat to society, or that his conduct in com-

mitting the offense was outrageously or wantonly vile, horrible

or inhuman, in that it involved torture, depravity of mind or

aggravated battery to the victim.” Code § 19.2-264.4(C).

11

On the application of the second of the two “aggravat-

ing circumstances” in the Virginia statute, the jury was

instructed as follows:

“Before the penalty can be fixed at death, the Com-

monwealth must prove beyond a reasonable doubt

that his conduct in committing the offense was out-

rageous and wantonly vile, horrible, or inhuman

in that it involved torture, depravity of mind, or ag-

gravated battery to the victim beyond the minimum

necessary to accomplish the act of murder.” 3 Trial

Record at 129 (hereafter cited as TR).

This is essentially the language of the statute. No guid-

ance was given to the jury as to the meaning or applica-

tion of this provision. The jury was also denied any in-

struction on the meaning or application of the first “ag-

gravating circumstance” provision, which directs the jury

to consider the future dangerousness of the accused. The

jury found both “aggravating circumstances” and fixed

the penalty at death.

The “instruction” on the “outrageous and wantonly

vile“ standard given to the petitioner's jury is virtually

identical to the one disapproved by this Court in Godfrey

v. Georgia, where an identical “aggravating circum-

stance” provision was in issue.

In Godfrey, the Court considered the application of

Georgia Code § 27-2534.1(b) (7) (1978), which provides

that the jury may impose the death sentence if it finds

that

“The offense of murder . . . was outrageously or wan-

tonly vile, horrible or inhuman in that it involved

torture, depravity of mind, or an aggravated battery

to the victim.”

The Court had previously recognized that this provision

was so broad that conceivably it could apply to any mur-

der. Gregg v. Georgia, 428 U.S. at 201. “But,” the Court

had concluded, “this language need not be construed in

12

this way, and there is no reason to assume that the Su-

preme Court of Georgia will adopt such an open-ended

construction.” Jd, Accordingly, in Gregg the Court re-

jected the argument that such a provision would allow

juries to impose the death penalty arbitrarily and ca-

priciously."

In Godfrey, however, the trial court instructed the jury

merely by reading the language of section (b) (7), with-

out explanation or definition. The jury then found that

the offense was “outrageously or wantonly vile, horrible

and inhuman” and imposed the death sentence. This

Court vacated the death sentence, finding that the jury

was “basically uninstructed.” 446 U.S. at 429. The Court

stated:

“There is nothing in these few words [‘outrageously

or wantonly vile, horrible and inhuman'] standing

alone that implies any inherent restraint on the

arbitrary and capricious infliction of the death pen-

alty. A person of ordinary sensibility could fairly

characterize almost every murder as ‘outrageously or

wantonly vile, horrible and inhuman.’ Such a view

may, in fact, have been one to which the members

of the jury in this case subscribed. If so, their pre-

conceptions were not dispelled by the trial judge’s

sentencing instructions. These gave the jury no guid-

ance concerning the meaning of any of § (b) (7)’s

terms. In fact, the jury’s interpretation of § (b) (7)

can only be the subject of sheer speculation.” 446

USS. at 428-29.

The plurality in Godfrey went on to hold that there was

insufficient evidence to support the jury’s finding of the

7 Similarly, in Proffitt v. Florida, 428 U.S. 242, 265 (1976), in con-

sidering a similar “aggravating circumstance” in the Florida death

statute, the Court concluded that the provision, as construed by the

Florida Supreme Court, was not vague or overbroad: “We cannot

say that the provision, as so construed, provides inadequate guid-

ance to those charged with the duty of recommending or imposing

sentences in capital cases.” (Emphasis supplied.)

13

aggravating circumstance and that the Georgia Supreme

Court had failed to perform an adequate review of the

death sentence. It is clear, however, that the inadequate

instruction stands as an independent ground for reversal.

The plurality stated that“ the standardless and unchan-

neled imposition of death sentences in the uncontrolled dis-

cretion of a basically uninstructed jury in this case was in

no way cured... by the Georgia Supreme Court.” 446

U.S. at 429.“

The instructions here were virtually identical to those

rejected in Godfrey“ The Virginia Supreme Court has

adopted a limiting construction of its “outrageous and

wantonly vile” standard, Smith v. Commonwealth, 219

Va. 455, 248 S.E.2d 135, 149 (1978), but on petitioner’s

direct appeal, the Virginia Supreme Court held that a

death-sentencing jury need not be informed of this limit-

ing construction. 221 Va. 563, 579-80, 273 S.E.2d 57, 67

(1980). This ruling is fundamentally at odds with both

Gregg and Godfrey. Where the jury is the sentencing

authority, it is “unthinkable” that it should not be in-

formed of the limitations which control its discretion.

Gregg, 428 U.S. at 198.

The writ should be granted to make clear to all courts

that limiting constructions of a death statute provision

must be disclosed to the jury.

® Justices Marshall and Brennan agreed with the plurality and

created a majority on this issue. 446 U.S. at 435 n.1, 487 (Marshall,

J., concurring in judgment).

The only difference between the instructions here and the “few

words” in Godfrey is that here the phrase “beyond the minimum

necessary to accomplish the act of murder“ was added. These

ten words do not transform this invitation to the jury to set its

own standards into the “specific and detailed guidance” mandated

by the Eighth and Fourteenth Amendments. They do not limit the

open-ended possibilities of interpretation which the Court found

improper in Godfrey.

14

C. The Jury Was Unconstitutionally Instructed on

Mitigating Circumstances

In Roberts v. Louisiana, 428 U.S. 325 (1976) and

Woodson v. North Carolina, 428 U.S. 280 (1976), this

Court held that a death sentencing scheme must afford

“meaningful opportunity for consideration of mitigating

factors presented by the circumstances of the particular

crime or by the attributes of the individual offender.”

Roberts, 428 U.S. at 333-34. Subsequently, in Lockett v.

Ohio, 488 U.S, 586, 605 (1978), the Court emphasized

that the sentencer must not be precluded from “giving

independent mitigating weight to aspects of the defend-

ant’s character and record and to circumstances of the

offense proffered in mitigation.”

Merely providing the jury with the relevant mitigating

information “is not alone sufficient to guarantee that the

information will be properly used in the imposition of

punishment, especially if the sentencing is performed by a

jury.” Gregg, 428 U.S. at 192. Clear jury instructions on

mitigation are necessary. “Since the members of a jury

will have had little, if any, previous experience in sentenc-

ing, they are unlikely to be skilled in dealing with the

information they are given.” Gregg, 428 U.S. at 192. The

instructions should

point to the main circumstances of aggravation and

of mitigation that should be weighed and weighed

against each other when they are presented in a

concrete case.“ . . While such standards are by

necessity somewhat general, they do provide guidance

to the sentencing authority and thereby reduce the

likelihood that it will impose a sentence that fairly

can be called capricious or arbitrary.” 428 U.S. at

193 (citation omitted) (emphasis in original).

Gregg and Lockett were ignored here. While the Vir-

ginia death penalty statute contains a “mitigating cir-

15

cumstances” provision, not even the bare words of this

provision were read to the jury.”

Rather, the jury was instructed that it was required to

return a sentence of death if one of the “aggravating cir-

cumstances” was found, regardless of mitigating factors.

The trial judge instructed the jury:

“If you find from the evidence that the Common-

wealth has proven beyond a reasonable doubt either

of the two [aggravating circumstances] then you

shall fix the punishment of the defendant at death;

or if you believe from all the evidence that the death

penalty is not justified you shall fix the punishment

of the defendant at life inprisonment. If the Com-

monwealth has failed to prove either alternative be-

yond a reasonable doubt, then you shall fix the pun-

ishment of the defendant at life imprisonment.” 3

TR at 129-30 (emphasis added).

The jury could easily have understood this charge to mean

that if it found an “aggravating circumstance” it had

10 The “mitigating circumstances” provision in Virginia’s death

penalty statute reads as follows:

“In cases of trial by jury, evidence may be presented as to

any matter which the court deems relevant to sentence, except

that reports under the provisions of § 19.2-299, or under any

Rule of Court, shall not be admitted into evidence.

Evidence which may be admissible, subject to the rules of

evidence governing admissibility, may include the circum-

stances surrounding the offense, the history and background

of the defendant, and any other facts in mitigation of the

offense. Facts in mitigation may include, but shall not be

limited to, the following: (i) The defendant has no significant

history of prior criminal activity, or (ii) the capital felony

was committed while the defendant was under the influence of

extreme mental or emotional disturbance or (iii) the victim

was a participant in the defendant’s conduct or consented to

the act, or (iv) at the time of the commission of the capital

felony, the capacity of the defendant to appreciate the crimi-

nality of his conduct or to conform his conduct to the require-

ments of law was significantly impaired; or (v) the age of

the defendant at the time of the commission of the capital

offense.” Virginia Code § 19.2-264.4(B).

16

to impose the death sentence, regardless of mitigating

factors. This is apparent from the use of obligatory

language—“shall fix’—and from the “either/or” par-

allel construction of the first and last clauses. (The

last clause correctly requires life imprisonment if no “ag-

gravating circumstance” is found.)

Worse yet, petitioner’s jury received no guidance on

the application of “mitigating circumstances.” The trial

court’s mitigation instructions consisted solely of one

enigmatic comment that “if you believe from all the evi-

dence that the death penalty is not justifed, then you shall

fix the punishment of the defendant at life imprisonment,”

3 TR at 130, and a reading of the verdict forms.“ While

the trial court did read the “aggravating circumstances”

provision of the statute to the jury, it did not even read

the “mitigating circumstances” provision. It provided

no definition of “evidence in mitigation” or any instruc-

tion as to what role “mitigating circumstances” should

play in the jury’s death sentence deliberations.

Such instructions ignore the clear implications of

Lockett, Roberts and Woodson.

* * * *

In short, the jury that sentenced James Briley to death

heard a reading of a portion of the Virginia death sen-

tence statute, but received no instruction from the trial

court as to how that statute should be interpreted, or

whether “mitigating circumstances” might be weighed

against “aggravating circumstances.” It was not even

told what might constitute a “mitigating circumstance.”

This is but one of many cases in which the teachings of

this Court on death penalty instructions are being ignored.

11 The verdict forms recited the possible aggravating factors and

then added: “and having considered the evidence in mitigation of

the offense, unanimously fix his punishment at death,” or, in the

alternative, “having considered all the evidence in aggravation and

mitigation of such offense, fix his punishment at life imprison-

ment.“ 3 TR at 181.

17

II. SUMMARY REVERSAL IS REQUIRED BECAUSE

A STATEMENT OBTAINED IN VIOLATION OF

MIRANDA WAS ADMITTED IN EVIDENCE

In Miranda v. Arizona, 384 U.S. 436, 444-45 (1966),

this Court established a bright-line rule: if an accused

“indicates in any manner and at any state of the process

that he wishes to consult with an attorney before speaking

there can be no questioning.” In Fare v. Michael C.,

442 U.S. 707, 719 (1979), the Court emphasized that

Miranda created a “rigid rule that an accused’s request

for an attorney is a per se invocation of his Fifth Amend-

ment rights requiring that all interrogation cease.” This

principle was most recently reaffirmed in Edwards v.

Arizona, 451 U.S. 477 (1981), where the Court stated

that it is inconsistent with Miranda “for the authorities,

at their instance, to reinterrogate an accused in custody if

he has clearly asserted his right to counsel.” The refusal

of the Virginia courts to apply this principle in the present

case warrants summary reversal

The relevant facts were established at the habeas hear-

ing, largely through the testimony of the police officers

who arrested and interrogated petitioner. Officer Gaudet

testified that petitioner was arrested on October 22, 1979

at about 10:30 p.m. at a Richmond police station and im-

mediately given his “Miranda warnings.” Habeas Record

52 (hereafter cited as HR). At that time, according to

Officer Woody, petitioner said to his brother, who was also

being placed under arrest, “Don’t say a... thing to any-

body until you talk to a lawyer.” HR 65. According to

Officer Gaudet, petitioner did not talk about the crimes

and was placed under guard in a room at the police sta-

tion. HR 53.

Once in that room, petitioner testified, he requested an

attorney, HR 72, and he was allowed to call one, Richard

Ballard, Esquire. HR 73. Mr. Ballard testified that peti-

tioner called him that night seeking representation, but he

could not take the case. HR 101-02. In addition, Officer

18

Woody testified that when he was in the room, petitioner

made a telephone call during which he said “that he was

going to get his own attorney.” HR 63-64.

No attorney was obtained for petitioner and he con-

tinued to be held under guard. At 11:45 p.m. on the same

night, Officer Harding, according to his own testimony,

entered the room where petitioner was being held, ad-

vised him again of his rights, and began an interrogation

which resulted in a written statement by petitioner that

was used as evidence against him at trial. HR 675-76;

2 TR 244-45. At no point had petitioner withdrawn his

request for an attorney or initiated discussion of the

crimes with the police.”

Miranda and Edwards were thus violated. “If the in-

dividual states that he wants an attorney, the interroga-

tion must cease until an attorney is present.” Miranda,

884 U.S. at 473. Here the interrogation did not cease.

In responding to petitioner’s claim below, the Common-

wealth contended that petitioner was properly informed of

his rights, that he understood them, and that his written

statement was voluntary. Both the habeas court and the

Virginia Supreme Court confined their analysis to such

questions and ruled that the petitioner voluntarily and

intelligently waived his Fifth and Sixth Amendment

rights.” Both courts ignored petitioner’s request for an

attorney, thereby fundamentaly missing the point of

Edwards:

„Wie now hold that when an accused has invoked

his right to have counsel present during custodial

interrogation, a valid waiver of that right cannot be

established by showing only that he responded to

12 At the habeas corpus hearing, petitioner testified that he

wrote the statement “Because I got tired of them kept on question-

ing me.” HR 82.

48 See Opinion and Order, January 29, 1982 (Appendix B hereto) ;

Opinion and Order, December 9, 1982 (Appendix A hereto).

19

further police-initiated custodial interrogation even

if he has been advised of his rights. We further hold

that an accused, such as Edwards, having expressed

his desire to deal with the police only through coun-

sel, is not subject to further interrogation by the

authorities until counsel has been made available to

him, unless the accused himself initiates further com-

munications, exchanges or conversations with the

police.“ 451 U.S. at 484-85,

A valid waiver of petitioner’s right to counsel cannot

be established by showing, as the Commonwealth admit-

tedly did, that he responded to further police questioning,

for all interrogation should have ceased following peti-

tioner’s request. Edwards, 451 U.S. at 484. Miranda re-

quires that the right to counsel be invoked only once—

thereafter, “it is the responsibility of those charged with

[the accused’s] custody to see to it that he obtains an

attorney.“ United States v. Hinckley, 525 F. Supp. 1842,

1854 (D. D.C. 1981), aff'd, 672 F.2d 115 (D.C. Cir. 1982).

The resumption of interrogation by the police without an

attorney present and the use at trial of the resulting

statement violated petitioner’s Fifth Amendment rights

and requires reversal.

III. SUMMARY REVERSAL IS REQUIRED BECAUSE

PROSPECTIVE JURORS WHO WERE UNCERTAIN

WHETHER THEY WOULD IMPOSE THE DEATH

PENALTY WERE EXCLUDED

“Unless a venireman states unambiguously that he

would automatically vote against the imposition of cap-

ital punishment no matter what the trial might reveal, it

simply cannot be assumed that that is his position.” Wither-

spoon V. Illinois, 391 U.S. 510, 516 n.9 (1967); Boulden

v. Holman, 394 U.S. 478, 482 (1969) (emphasis supplied).

Exclusion under Witherspoon is proper only if the venire-

man’s “irrevocable commitment” to vote against the death

penalty regardless of the facts is “unmistakably clear.”

Witherspoon, 391 U.S. at 522 n.21.

20

Witherspoon was violated here because two prospective

jurors, who were uncertain whether they would or would

not vote to impose capital punishment, were excluded from

the jury.“

Venireman Candies first stated that “I don’t believe

in” the death penalty,” 1 TR at 48, and then was ex-

amined as follows:

“THE COURT: In other words, in any event,

no matter what the evidence, you would not impose

the death penalty?

“MS. CANDIES: (Shaking head negatively) No.

“THE COURT: You would not.

“MS. CANDIES: (Shaking head negatively)

“THE COURT: Then would you hang the jury?

“MS. CANDIES: (Pause) No, I don’t know.

“THE COURT: Well, you have to be more exact.

Would you or would you not?

“MS. CANDIES: I think I would.

“THE COURT: You would?

“MS. CANDIES: Yeah.

* * a” +

„MR. HAYES: Suppose the evidence were that

10 people killed a small child and there is no ques-

tion about the evidence, are you saying you would

not impose the death penalty in that case?

“MS. CANDIES: Hmmm (pause) I don’t know.

“MR, HAYES: You would not?

“MS. CANDIES: I am not sure.

“MR. HAYES: You’re not sure?

“MS. CANDIES: I don’t know.” 1 TR at 48-50.

Such answers do not approach the “unambiguous”

commitment to “automatically” vote against the death

44 The voir dire of the two jurors is set forth in full in Appendix

E hereto.

16 Witherspoon expressly held that prospective jurors may not

be constitutionally excluded for cause “simply because they voiced

general objections to the death penalty or expressed conscientious

or religious scruples against its infliction.” 391 U.S. at 622.

21

penalty required by Witherspoon. Ms. Candies’ answers—

“No, I don’t know,” “I think I would,” “I am not sure,”

don't know”—portray a person who is frankly unsure

whether she would or would not apply the death penalty,

not one who is “irrevocably committed” to vote against

it. This Court has consistently found the exclusion of

veniremen with similar feelings to constitute a Wither-

spoon violation.“

Another prospective juror, Mary Revere, was excluded

on the basis of the following exchange:

“THE COURT: All right. Do you hold any con-

scientious scruples or religious beliefs against the

imposition of the death penalty in the proper case?

“MS. REVERE: I don’t really believe in the

death penalty.

“THE COURT: Is that a religious belief or a

conscientious scruple?

“MS. REVERE: Just conscientious scruple.

“THE COURT: Well, let me put it this way:

The defendant is on trial for capital murder. That

is a two-part trial. Sould the jury find him guilty of

capital murder, you will hear the reputation, the good

and bad, of the defendant, and then you would de-

liberate again, and if it warranted it, that you feel

that the imposition of the death penalty was proper

in this case, would you hang the jury?

“MS. REVERE: I would have to be absolutely

positive,

16 Maxwell v. Bishop, 398 U.S. 262, 264 (1970) (“I think I do”)

(emphasis supplied by the Court); Funicello v. New Jersey, 403

U.S. 948 (1971), rev’g State v. Forcella, 62 N.J. 263, 246 A.2d 181,

195-96 (1968); Segura v. Patterson, 408 U.S. 946 (1971), rev’g

402 F.2d 249 (10th Cir. 1968) (“I don’t think I can bring in the

death penalty”). See also Granviel v. Estelle, 655 F.2d 673, 677

(6th Cir, 1981), cert. denied, 102 8. Ct. 1644 (1982) (“No, I don't

think I could [ever vote for the death penalty!)

22

“THE COURT: Assume for a moment that you

are absolutely positive—and I’m not saying that you

would be. You are absolutely positive. Under those

circumstances, in order to, before you would sur-

render a conscientious scruple, you would hang the

jury?

“MS. REVERE: Yes, sir.

“THE COURT: You would?

“MS. REVERE: Yes, sir.

“THE COURT: All right. I’m going to excuse

her.” 1 TR at 182-34. (Emphasis added.)

The trial court excused Ms. Revere on the basis of these

statements, which were neither “unambiguous” nor de-

monstrative of an “automatic” or “irrevocable” commit-

ment to vote against the death penalty.

The judge’s use of the phrase “hang the jury” was

probably confusing to a layman and it appears that Ms.

Revere did not understand the questions using that

phrase.“ Such confusing questions, and the answers elic-

ited, obviously cannot satisfy Witherspoon’s requirement

of “unmistakable clarity.” “The critical question, of

course, is not how the phrases employed in this area have

been construed by courts and commentators. What mat-

ters is how they might be understood—or misunderstood

—by prospective jurors.” Witherspoon, 391 U.S. at 516

n. 9.

More importantly, Ms. Revere did not indicate that she

would automatically vote against the death penalty. Her

voir dire, taken as a whole, indicates that she was willing

* After Ms. Revere had been excluded, both the prosecutor and

defense counsel urged the judge not to make further use of the

phrase hang the jury“ precisely because it was misleading and

because, as defense counsel argued, “a layman may not understand”

it. 1 TR at 184-36.

18 See Davis v. Georgia, 429 U.S. 122, 124 (1976) (“the defect

[was] a failure to question sufficiently”). In the case of venireman

Revere, sufficient questions were not asked nor were sufficiently

unambiguous answers obtained.

23

to “consider” the death penalty, which is “the most that

can be demanded of a venireman in this regard.” Wither-

spoon, 391 U.S. at 522 n.21.

The improper exclusion of even one venireman on

grounds such as these precludes the imposition of the

death penalty and requires summary reversal of the

judgment below insofar as it upheld the death sentences.

Davis v. Georgia, 429 U.S. 122 (1976).

CONCLUSION

For the reasons stated herein, the writ of certiorari

to the Virginia Supreme Court should be granted and the

decision below reversed.

Respectfully submitted,

RICHARD J. WERTHEIMER

Counsel of Record

JAMES X. DEMPSEY

Of Counsel: ARNOLD & PORTER

GERALD T. ZERKIN 1200 New Hampshire Ave., N.W.

ZERKIN, WRIGHT & HEAD Washington, D.C. 20036

503-B East Main Street (202) 872-6700

Richmond, Virginia 23219 Attorneys for Petitioner

(804) 788-4412

LEONARD B. SIMON

2000 Central Federal Tower

225 Broadway

San Diego, California 92101

(619) 281-1058

March 9, 1983

19 The Court has summarily reversed even in cases where the

claim was assertedly waived because it was not raised at trial.

Wigglesworth v. Ohio, 403 U.S. 947 (1971); Harris v. Texas, 403

U.S. 947 (1971).

la

APPENDIX A

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme

Court Building in the City of Richmond on Thursday

the 9th day of December, 1982.

Record No. 820753

Circuit Court No. F-81-487 (H.C.)

JAMES DYRAL BRILEY,

Appellant,

against

TERRELL DON HUTTO, SUPERINTENDENT,

VIRGINIA STATE PENITENTIARY (Director

of the Department of Corrections,

Substituted Respondent),

Appellee.

From the Circuit Court of the City of Richmond,

Division I

Upon review of the record in this case and considera-

tion of the argument submitted in support of and in

opposition to the granting of an appeal, the court is of

opinion that the trial court did not err in applying the

rule in Hawks v. Cow, 211 Va. 91, 175 S.E.2d 271 (1970),

to appellant’s allegations I, VII, VIII, IX and XI; the

rule in Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680

(1974), cert. denied sub nom Parrigan v. Paderick, 419

U.S. 1108 (1975), to appellant’s allegations, II, III, IV,

V, VI, XV, XVI and XVII and by further finding that

allegation III has been authoritatively decided by Clark v.

Commonwealth, 220 Va. 201, 257 S.E.2d 784 (1979), and

allegation VI has been authoritatively decided by Whalen

v. United States, 445 U.S. 684 (1980), and Harrison v.

Commonwealth, 220 Va. 188, 257 S.E.2d 777 (1979), and

allegation XVI has been authoritatively decided by In Re

Remmler, 186 U.S. 436 (1890), and Martin v. Common-

wealth, 221 Va. 436, 271 S.E.2d 128 (1980), and allega-

tion XVII has been addressed on appellant’s direct appeal

of the conviction, Briley v. Commonwealth, 221 Va. 563,

273 S.E.2d 57 (1980); and by applying the mandate of

Code § 8.01-654(B) (2) to allegations raised during the

plenary hearing and not specified in the original petition

or amended petition.

And the court is of the opinion there is no reversible

error in the judgment dismissing appellant’s allegations

X, XII, XIII, XIX, XX and XXI upon a review of the

record without taking additional evidence, Arey v. Peyton,

209 Va. 370, 164 S.E.2d 691 (1968); the court did not

err in finding from the record that the rule in Wither-

spoon v. Illinois, 390 U.S. 510 (1968) had been complied

with (See appellant’s allegation IV).

And the court is of the further opinion that the trial

court did not error in dismissing appellant’s allegation

XIV after a review of the record and the taking of evi-

dence ore tenus and applying the rule in Marzullo v.

Maryland, 61 F.2d 540 (4th Cir. 1977) cert. denied 435

U.S. 1011 (1978) ; the trial court did not err in dismiss-

ing appellant’s allegation XVIII finding, from a review

of the record and taking evidence ore tenus, that appel-

lant was properly advised of his 5th and 6th amendment

rights and thereafter with a full understanding, volun-

tarily and intelligently waived these rights and made a

statement to police. See, Edwards v. Arizona, 451 U.S.

477 (1981). Applying the mandate of Code § 8.01-654

(B) (2) the court will not recognize and does hereby dis-

miss other complaints raised for the first time in appel-

lant’s petition for appeal.

Finding no reversible error in the judgment complained

of, the court refuses the petition for appeal.

APPENDIX B

VIRGINIA:

IN THE CIRCUIT COURT

OF THE CITY OF RICHMOND

DIVISION I

F-81-487

JAMES DYRAL BRILEY, #101090,

Petitioner,

V.

TERRELL DoN HUTTO, SUPERINTENDENT,

VIRGINIA STATE PENITENTIARY,

SPRING STREET, RICHMOND, VIRGINIA,

Respondent.

OPINION AND ORDER

This proceeding came on to be heard on December 22

and 28, 1981, upon the petition of James Dyral Briley

for a writ of habeas corpus, the petitioner appearing in

person and by his attorneys, Leonard B. Simon, Richard

J. Wertheimer, James X. Dempsey and Gerald T. Zerkin,

and the respondent appearing by Robert E. Bradenham,

II, Assistant Attorney General. Whereupon this Court

heard evidence and argument of counsel for petitioner

and respondent, and after complete review of the tran-

scripts and the records pertaining to the matters now be-

fore the Court, this Court is of the opinion that peti-

tioner’s allegations XIV (ineffectiveness of counsel) and

XVIII (improper admission at trial of a statement made

by petitioner the night of arrest), enumerated in peti-

tioner’s amended petition for a writ of habeas corpus,

are without substantiation and merit for the reasons

stated in this order and from the bench at the conclusion

of the plenary hearing on December 28, 1981.

4a

This Court further finds that petitioner’s trial attor-

neys, Halford I. Hayes and Richard A. Turner, com-

petently prepared and investigated petitioner’s defense,

and made tactical trial decisions, motions and objections,

based on informed, professional deliberation in regard to

these allegations. This Court finds that the petitioner

was provided a fair and impartial trial and the repre-

sentation afforded him by his trial attorneys was within

the range of competence demanded of attorneys in crim-

inal cases as enunciated in Marzullo v. Maryland, 561

F.2d 540 (4th Cir. 1977), cert. denied, 485 U.S. 1011

(1978).

This Court finds that the trial attorneys competently

examined the jury veniremen for any prejudice and their

attitudes on the death penalty and the selection procedure

complied with the requirements for capital cases as enun-

ciated in Witherspoon v. Illinois, 391 U.S. 510 (1968).

This Court also finds that petitioner’s written state-

ment to Detective Harding was voluntarily and intelli-

gently made after he was properly advised of his consti-

tutional rights and that, with full understanding, he

voluntarily waived said rights.

Further, the allegations raised during the plenary

hearing and not specified in the original petition or

amended petition are denied because of petitioner’s fail-

ure to comply with § 8.01-654(B) (2), Code of Virginia

(1950), as amended.

It is further ADJUDGED and ORDERED that the

record of the proceedings resulting in convictions on

March 4, 1980, including all transcripts, be made a part

of the record herein, and the petition for a writ of

habeas corpus be, and is hereby, denied and dismissed as

to the aforesaid allegations, to which action of this Court,

petitioner’s exceptions are noted.

Petitioner’s remaining allegations raised in his amended

petition for a writ of habeas corpus were previously dis-

missed by this Court in an Opinion and Order of Octo-

ber 29, 1981.

The Clerk is directed to forward a certified copy of

this order to the petitioner, the respondent, Leonard B.

Simon, Esquire, counsel for petitioner, and to Robert E.

Bradenham, II, Assistant Attorney General.

Enter this 29 day of January, 1982.

Judge

6a

VIRGINIA:

IN THE CIRCUIT COURT

OF THE CITY OF RICHMOND

DIVISION I

F-81-487

JAMES DyRAL BRILEY, #101090,

Petitioner,

v.

TERRELL DON HuTTO, SUPERINTENDENT,

VIRGINIA STATE PENITENTIARY,

SPRING STREET, RICHMOND, VIRGINIA,

Respondent.

OPINION AND ORDER

After argument of counsel on September 22, 1981, and

mature consideration of the petition of James Dyral

Briley for a writ of habeas corpus and the motion of

the respondent and the authorities cited therein, this

Court does find for the reasons stated in the Opinion

letter of October 2, 1981 and the Motion to Dismiss of

the respondent, which is adopted and incorporated into

this order, that the petitioner is not entitled to the re-

lief sought as to allegations I through XIII, XV through

XVII, and XIX through XXI, enumerated in petitioner’s

amended petition for a writ of habeas corpus.

For the foregoing reasons, this Court is of the opinion

that the petition for a writ of habeas corpus should be

denied and dismissed as to the aforesaid allegations. It

is, therefore, ADJUDGED and ORDERED that the rec-

ord and transcripts of the proceedings resulting in con-

victions on March 4, 1980, be made a part of the record

herein, and the petition for a writ of habeas corpus be,

and is hereby, denied and dismissed as to the aforesaid

allegations, to which action of this Court, petitioner’s ex-

ceptions are noted.

a

As to allegations XIV (ineffectiveness of counsel) and

XVIII (improper admission at trial of a statement made

by petitioner the night of arrest), this Court orders an

evidentiary hearing to resolve these issues.

The Clerk is directed to forward a certified copy of

this order to the petitioner, petitioner’s attorneys, the

respondent, and to Robert E. Bradenham, II, Assistant

Attorney General.

Enter this 29 day of October, 1981.

8a

CIRCUIT COURT OF THE CITY OF RICHMOND

JAMES M. LUMPKIN John Marshall Courts Building

Judge 800 East Marshall Street

Richmond, Virginia 23219

October 2, 1981

Robert E. Brandenham, III, Esquire

Assistant Attorney General

800 Fidelity Building

830 East Main Street

Richmond, Virginia 23219

Gerald T. Zerkin, Esquire

Ginter Professional Building

1001 West Brookland Park Boulevard

Richmond, Virginia 23220

Leondard B. Simon, Esquire

1200 New Hampshire Avenue, N.W.

Washington, D.C. 20036

Re: James Dyral Briley v. Edward C. Morris,

Warden, Mecklenburg Correctional Center

Gentlemen:

The amended petition for writ of habeas corpus will be

dismissed, except as regards the claims of (1) ineffective-

ness of counsel and (2) improper admission at trial of a

statement made by petitioner the night of arrest.

Petitioner cites twenty-one principal “Grounds of II-

legality of Defendant’s Death Sentence” in his amended

petition. In the main, answers to each ground may be

found in one or more of the following categories:

(1) trial transcript;

(2) raised on direct appeal to the Supreme Court of

Virginia, or directly addressed in that Court’s

written opinion of November 26, 1980; or both;

9a

(3) should have been raised at trial or on appeal and

not here as a substitute for appeal or writ of

error; or

(4) had been covered in prior decisions of the United

States Supreme Court or the Supreme Court of

Virginia.

Specifically, Grounds I, VII, VIII, IX and XI fall into

the second category above; Grounds II through VI and

XV through XVII fall into third and fourth categories.

(see also, James Briley v. Commonwealth, 221 Va. 563,

at 577; Grounds X, XII and XIII are answered in the

trial transcript and shown therein to lack foundation.

These are further addressed in Turner v. Commonwealth,

211 Va. at page 527, f.n. 12, and the James Briley ap-

peal at page 577. As to Grounds number XIX, XX and

XXI the court concurs with the statements and conclu-

sions in motions to dismiss filed by the respondent and

cases cited therein.

The discovery motions will be denied. Rule 4:1. Wit-

nesses regarding the claim of ineffectiveness of counsel

are not shown to be other than readily and equally avail-

able to either side. The same applies to alleged improper

admission of petitioner’s statement. Rakes v. Fulcher, 210

Va. 542.

The Attorney General should prepare and present an

appropriate endorsed order and consult with petitioner’s

counsel as to an available date for the plenary hearing.

Very truly yours,

/s/ James M. Lumpkin

JAMES M. LUMPKIN

10a

APPENDIX C

Virginia Death Penalty Statute

§ 19.2-264.2. Conditions for imposition of death sen-

tence.—In assessing the penalty of any person convicted of

an offense for which the death penalty may be imposed,

a sentence of death shall not be imposed unless the court

or jury shall (1) after consideration of the past criminal

record of convictions of the defendant, find that there is

a probability that the defendant would commit criminal

acts of violence that would constitute a continuing seri-

ous threat to society or that his conduct in committing the

offense for which he stands charged was outrageously or

wantonly vile, horrible or inhuman in that it involved

torture, depravity of mind or an aggravated battery to

the victim; and (2) recommend that the penalty of death

be imposed.

§ 19.2-264.8. Procedure for trial by jury.—A. In any

case in which the offense may be punishable by death

which is tried before a jury the court shall first submit

to the jury the issue of guilt or innocence of the defend-

ant of the offense charged in the indictment, or any other

offense supported by the evidence for which a lesser pun-

ishment is provided by law and the penalties therefor.

B. If the jury finds the defendant guilty of an offense

for which the death penalty may not be imposed, it shall

fix the punishment for such offense as provided by law.

C. If the jury finds the defendant guilty of an offense

which may be punishable by death, then a separate pro-

ceeding before the same jury shall be held as soon as is

practicable on the issue of the penalty, which shall be

fixed as is provided in § 19.2-264.4.

§ 19.2-264.4. Sentence proceeding.— A. Upon a find-

ing that the defendant is guilty of an offense which may

be punishable by death, a proceeding shall be held which

shall be limited to a determination as to whether the

defendant shall be sentenced to death or life imprison-

ment. In case of trial by jury, “here a sentence of death

lla

is not recommended, the defendant shall be sentenced to

imprisonment for life.

B. In cases of trial by jury, evidence may be presented

as to any matter which the court deems relevant to sen-

tence, except that reports under the provisions of § 19.2-

299, or under any Rule of Court, shall not be admitted

into evidence.

Evidence which may be admissible, subject to the rules

of evidence governing admissibility, may include the cir-

cumstances surrounding the offense, the history and back-

ground of the defendant, and any other facts in mitiga-

tion of the offense. Facts in mitigation may include, but

shall not be limited to, the following: (i) The defendant

has no significant history of prior criminal activity, or

(ii) the capital felony was committed while the defendant

was under the influence of extreme mental or emotional

disturbance or (iii) the victim was a participant in the

defendant’s conduct or consented to the act, or (iv) at

the time of the commission of the capital felony, the

capacity of the defendant to appreciate the criminality

of his conduct or to conform his conduct to the require-

ments of law was significantly impaired; or (v) the age

of the defendant at the time of the commission of the

capital offense.

C. The penalty of death shall not be imposed unless

the Commonwealth shall prove beyond a reasonable doubt

that there is a probability based upon evidence of the

prior history of the defendant or of the circumstances

surrounding the commission of the offense of which he is

accused that he would commit criminal acts of violence

that would constitute a continuing serious threat to soci-

ety, or that his conduct in committing the offense was

outrageously or wantonly vile, horrible or inhuman, in

that it involved torture, depravity of mind or aggravated

battery to the victim.

D. The verdict of the jury shall be in writing, and in

one of the following forms:

12a

(1) We, the jury, on the issue joined, having found

the defendant guilty of (here set out statutory language

of the offense charged) and that (after consideration of

his prior history [1980 amendment, after petitioner's

trial, substituted “prior history” for “past criminal rec-

ord”) that there is a probability that he would commit

criminal acts of violence that would constitute a continu-

ing serious threat to society) or his conduct in commit-

ting the offense is outrageously or wantonly vile, horrible

or inhuman in that it involved (torture) (depravity of

mind) (aggravated battery to the victim), and having

considered the evidence in mitigation of the offense, unan-

imously fix his punishment at death.

or

(2) “We, the jury, on the issue joined, having found

the defendant guilty of (here set out statutory language

of the offense charged) and having considered all of the

evidence in aggravation and mitigation of such offense,

fix his punishment at imprisonment for life.

E. In the event the jury cannot agree as to the penalty,

the court shall dismiss the jury, and impose a sentence of

imprisonment for life.

§ 19.2-264.5. Post sentence reports——When the pun-

ishment of any person has been fixed at death, the court

shall, before imposing sentence, direct a probation offi-

cer of the court to thoroughly investigate upon the history

of the defendant and any and all other relevant facts, to

the end that the court may be fully advised as to whether

the sentence of death is appropriate and just. Reports

shall be made, presented and filed as provided in § 19.2-

299. After consideration of the report, and upon good

cause shown, the court may set aside the sentence of

death and impose a sentence of imprisonment for life.

18a

APPENDIX D

Sentencing Instructions at Petitioner’s Trial

THE COURT: Ladies and gentlemen of the jury, the

Court will now instruct you as to the punishment aspect

of the case. You have convicted the defendant of an

offense which may be punishable 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 Common-

wealth must prove beyond a reasonable doubt at least one

of the following two alternatives: One, that, after con-

sideration of his past criminal record, there is a probabil-

ity that he would commit criminal acts of violence that

would constitute a continuing, serious threat to society;

or, two, that his conduct in committing the offense was

outrageous and 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 evi-

dence that the Commonwealth has proven beyond a rea-

sonable doubt either of the two alternatives, then you

shall 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 reason-

able doubt, then you shall fix the punishment of the de-

fendant at life imprisonment.

You have, you have really found him guilty of two

capital murders. This one instruction will take care of

both capital murders. That’s what you must find.

Then I give you the forms of your verdict, which read:

We, the jury, on the issues joined, having found the

defendant guilty of capital murder of Judy Diane Barton,

the commission of robbery while armed with a deadly

144

weapon, and having found that, now you will have to

scratch out what you do not find. In other words, you will

use your pencil or pen and just scratch that out.

One, after consideration of his past criminal record,

that there is a probability that he would commit criminal

acts of violence that would constitute a continuing, seri-

ous threat to society and/or you can find both or one.

His conduct in committing the offense is outrageously

or wantonly vile, horrible, or inhuman in that it in-

volved torture, depravity of mind, aggravated battery to

the victim beyond the minimum necessary to accomplish

the act of murder, and having considered the evidence

in mitigation of the offense, unanimously fix his punish-

ment at death; or, we, the jury, on the issues joined,

having found the defendant guilty of capital murder of

Judy Diane Barton during the commission of robbery

while armed with a deadly weapon and having considered

all the evidence in aggravation and mitigation of such

offense, fix his punishment at imprisonment for life. In

any event, your foreperson will find that verdict.

You will also have another verdict on Harvey Wayne

Barton, which is, and won’t cross out the same thing:

We, the jury, on the issues joined, having found the

defendant guilty of capital murder of Harvey Wayne

Barton during the commission of robbery while armed

with a deady weapon and having found that, then you

must find one of these two things, or both. After consid-

eration of his past criminal record, that there is a proba-

bility that he will commit criminal acts of violence that

will constitute a continuing, serious threat to society or,

and/or his conduct in committing the offense is out-

rageously or wantonly vile, horrible, or inhuman in that

it involved torture, and that means depravity of mind,

aggravated battery to the victim beyond a minimum

necessary to accomplish the act of murder, and having

considered the evidence in mitigation of the offense, unani-

mously fix his punishment at death; or, we, the jury, on

15a

the issues joined, having found the defendant guilty of

capital murder of Harvey Wayne Barton during the

commission of robbery while armed with a deadly weapon

and having considered all the evidence in aggravation and

mitigation of such offense, fix his punishment at impris-

onment for life. In any event, your foreperson will sign

that verdict.

All right, gentlemen, do you wish to argue your case?

16a

APPENDIX E

Voir Dire of Prospective Jurors Candies and Revere

THE COURT: All right, call the next one.

THE CLERK: Joyce Candies.

NOTE: At this point Ms. Candies was duly sworn

by the Clerk.

THE COURT: All right, Miss Candies, the Court is

going to ask you some questions. I will assume your

answers are correct unless you indicate to the contrary.

These cases involve allegations against the defendant

relative to the alleged crimes that took place on Barton

Avenue on October 19th, 1979, and where the defendant

stands charged with murder, rape, and robbery, and

other matters. I will ask you some questions, and please

make your answers loud and clear so we can understand

them.

Do you hold any conscientious or religious belief against

the imposition of the death penalty in the proper case?

MS. CANDIES: I don’t believe in it (shaking head

negatively).

THE COURT: You don’t believe in it?

MS. CANDIES: (Shaking head negatively)

THE COURT: Is it a religious or just a conscien-

tious belief?

MS. CANDIES: It's just my belief.

THE COURT: Just your belief?

; MS. CANDIES: (Nodding head affirmatively) Uh-

uh.

THE COURT: All right. In the event that it was a

proper case, would your belief be so strong so as the jury

verdict to be not unanimous?

MS. CANDIES: (Pause)

THE COURT: In other words, in any event, no mat-

ter what the evidence, you would not impose the death

penalty?

17a

MS. CANDIES: (Shaking head negatively) No.

THE COURT: You would not?

MS. CANDIES: (Shaking head negatively)

THE COURT: Then you would hang the jury?

MS. CANDIES: (Pause) No, I don’t know.

THE COURT: Well, you have to be more exact.

Would you or would you not?

MS. CANDIES: I think I would.

THE COURT: You would?

MS. CANDIES: Yeah.

THE COURT: Gentlemen, I’m going 9 excuse her

for cause.

MR. HAYES: Your Honor, we would like the oppor-

tunity to ask her one or two questions before you do that.

THE COURT: Well, she’s already said that, but you

can ask her the questions. She’s already said she could

hang the jury. Go ahead and ask her.

MR. HAYES: All right, sir.

Miss Candies, are you saying that, under no circum-

stances, no matter what the evidence is, that you couldn’t

impose the death penalty?

MS. CANDIES: This is the way I feel right now.

MR. HAYES: Suppose the evidence were that ten

people killed a small child and there’s no question about

the evidence, are you saying that you couldn‘t impose

the death penalty in that case?

MS. CANDIES: Hmmm (pause), I don’t know.

MR. HAYES: Lou could not?

MS. CANDIES: I’m not sure.

MR. HAYES: Yov’re not sure?

MS. CANDIES: I don’t know.

MR. HAYSE: In other words, if the evidence was so

overwhelming, no matter what you know, it just stacked

up high as the sky—

MS. CANDIES: Uh-huh.

MR. HAYES: —are you saying that even where that

situation exists, you could not impose the death penalty?

MS. CANDIES: I don’t think I could.

18a

MR. HAYES: We have no objection, Your Honor.

THE COURT: All right, you may be excused.

NOTE: At this point, Ms. Candies was excused from

the courtroom.

* * * „

THE CLERK: Mary Revere, No. 122.

NOTE: At this point Ms. Revere was duly sworn by

the Clerk.

THE COURT: All right, have a seat, please, ma'am.

I’m going to ask you some questions, and please make

your answers loud enough so we can all hear you.

These crimes, alleged crimes, took place on October

the 19th, 1979, on Barton Avenue in the City of Rich-

mond, Virginia. They entail murder, rape, and robbery,

and other related felonies. James D. Briley is the de-

fendant in this particular case.

Have you seen, heard, or read anything about either

the facts on this case or any trial involving the alleged

crimes on this case, or anything about James Briley be-

ing involved in the case?

MS. REVERE: No, sir.

THE COURT: All right. Have you heard any of

these crimes discussed by any of your friends, relatives,

or anything?

MS. REVERE: Just mentioned, not in any detail.

THE COURT: All right. Have you discussed them

in any way?

MS. REVERE: No.

THE COURT: All right, based on your discussion,

have you formed or do you have an opinion as to the

guilt or innocence of the accused in these cases?

MS. REVERE: No.

THE COURT: All right. Is there any member of

your family, immediate family, involved in law enforce-

ment, such as a police officer?

MS. REVERE: No.

THE COURT: All right. I’m going to list some

names, and listen carefully, now, and I would like to

19a

know if you are acquainted with, were acquainted with,

or are related by blood or marriage to any of the parties:

Mr. Rice, Mr. Von Schuch, Mr. Hayes, Mr. Turner, James

D. Briley, Judy Diane Barton, Harvey Wayne Barton,

and Harvey W. Wilkerson.

MS. REVERE: No.

THE COURT: All right. Do you hold any conscien-

tious scruples or religious beliefs against the imposition

of the death penalty in the proper case?

MS. REVERE: I don’t really believe in the death

penalty.

THE COURT: Is that a religious belief or a conscien-

tious seruple?

MS. REVERE: Just conscientious scruple.

THE COURT: All right. If the facts warrant it—

I’m not talking about this case—but in a case where the

facts warrant it—and that’s what I mean by a proper

case—would you automatically vote for a life sentence

and hang the jury?

MS. REVERE: (Pause)

THE COURT: Well, let me put it this way: The

defendant is on trial for capital murder. That is a two-

part trial. Should the jury find him guilty of capital

murder, you will hear the reputation, the good and bad,

of the defendant, and then you would deliberate again,

and if it warranted it, that you feel that the imposition

of the death penalty was proper in this case, would you

hang the jury?

MS. REVERE: I would have to be absolutely positive.

THE COURT: Assume for a moment that you are ab-

solutely positive—and I’m not saying that you would be.

You are absolutely positive. Under those circumstances,

in order to, before you would surrender a conscientious

scruple, you would hang the jury?

MS. REVERE: Yes, sir.

THE COURT: You would?

MS. REVERE: Yes, sir.

THE COURT: All right.

I’m going to excuse her.

MR. HAYES: May I ask her a question?

THE COURT: Yes, sir, but I’m going to excuse her.

MR. HAYES: Mrs. Revere, are you saying that no

matter how bad or how gross a particular case was, that

there is no way you could impose a death sentence?

MS. REVERE: Well, I say rather than the death

sentence, I don’t say turn him out, but punish him.

MR. HAYES: That’s not what I asked you.

THE COURT: Well, she’s answering the same way

she answered me: She would hang the jury.

I’m going to excuse her, Mr. Hayes.

MR. HAYES: All right, sir.

NOTE: At this point Ms. Revere was excused from

the courtroom.

* * a *