Opposition — Briley v. Director of the Department of Corrections

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QUESTIONS PRESENTED

I. Whether the Jury was properly instructed concerning

aggravating and mitigating circumstances.

II. Whether a statement of the Petitioner was obtained

by the police in violation of Miranda.

Ill. Whether Jurors were excluded from the Jury Panel

in violation of Witherspoon.

TABLE OF CONTENTS

Page

GUS EREUD PUENTE vcecccvcrcviccsccccccecccses i

BE SEE GRETSERIED oe cccccesioncesencecessecceres ii

PEE | Cee eh db bbccpccncvenvecenscoreceeseces 1

CONSTITUTIONAL AND STATUTORY PROVISIONS

OEE crbohedbacsevesesddrdsretessssveceeres 1

STATEMENT OF THE CASE ......ccccccscccccscccces 1

SEE GF BONED 6 be cenccodccrecccovecscseeess 3

REASONS FOR DENYING THE WRIT ................ 3

I. The Issues Conceriung The Constitutionality Of The Jury

Instructions On Aggravating And Mitigating Circum-

stances Are Not Properly Before This Court; The Jury

Was Properly Instructed Regarding Aggravating And

Mitigating Circumstances ......ccccccccesececcees 3

II. Petitioner’s Constitutional Rights Were Not Violated By

The Police And His Written Statement Was Properly

Admitted Into Evidence ....... cc csccccscscseneves 11

III. The Issue Of Alleged Improper Juror Exclusion Is Not

Properly Before This Court; Jurors Candies And Revere

Were Properly Excluded From The Jury Panel ....... 14

CONGR AII sec cvcccccdecncvccvcccvsevecscvecccces 17

CERTIFICATE .cccccccccccccccvccccccccccecsvccccces 18

TABLE OF CITATIONS

Cases

Beck v. Washington, 369 U.S, 541 (1962) .......ececues 4,7, 15

Boulden v. Holman, 394 U.S. 478 (1969) .....0. cc cee eeee 16

Briley v. Commonwealth, 221 Va. 563, 273

GBB.246 57 (19GO) a ccdcccccscccccscccvcccvcccer 2, 5, 6, 10

Page

Capital City Dairy Co. v. Ohio, 183 U.S. 238 (1902) ...... 4,15

Chapman Vv. California, 386 U.S. 18 (1967) ..........00505 4,14

Eddings v. Oklahoma, —.. U.S. — —_., 71 L.E'.2' 1 (19°2 8

Edwards v. Arizona, 451 U.S. 477 (1981) ........00005. 12,13

Ferguson Vv. Georgia, 365 U.S. 570 (1961) ..........00055 4,15

Godchaux Co. v. Estopinal, 251 U.S. 179 (1919) ........ 4, 7,15

Godfrey v. Georgia, 446 U.S. 420 (1980) ..........04055 5, 6,7

Gregg v. Georgia, 428 U.S. 153 (1976) ...........5. 5, 8,9, 10

Henry v. Mississippi, 397 U.S. 443 (1965) ....... 0.00 c eee 7

Jackson v. Virginia, 443 U.S. 307 (1979) 2.0... 0.066 cc eee 13

Jurek ¥. Texas, 428 U.S. 262 (1976) ....cccccccccccccees 5

Lockett v. Ohio, 438 U.S. 586 (1978) ...... cece eee 7,8

Marshall v. Lonberger, US. (decided

Pe 2 Pe Seas aknCe Pare adureds vabieeserees 13

Milton v. Wainwright, 407 U.S. 371 (1972) ..... ccc cc eeee 14

Miranda v. Arizona, 384 U.S. 436 (1966) ..........0505. 11, 13

Slayton Vv. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974),

cert. denied sub nom Parrigan V. Paderick, 419 U.S. 1108

PEE DeOU ben Meee bdEbcb be CCdN ae eUGesS av eee ee aaes ]

Stanley v. Zant, 697 F.2d 955 (11th Cir. 1983) ............. 5

Stromberg v. California, 283 U.S. 359 (1931) .........0005. 5

Sumner V. Mata, 449 U.S. 539 (1981) ....ccccccscccvcecs 13

Wainwright v. Sykes, 433 U.S. 72 (1977) 0.0... ccc cee eee 7

Williams v. Georgia, 349 U.S. 375 (1955) 2... ccc cece cee 7

Witherspoon Vv. Illinois, 391 U.S. 510 (1967) ........ 14, 15, 16

Statutes

Code of Virginia (1950), as amended

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DEED vnc aun sevens bt CEdaeb eed erasevenses 8

EE Ans Mabe celbus anes Obs ve ben eeeavedneke 10

United States Code

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In The

Supreme Court of the United States

October Term 1982

No. 82-1491

JAMES DYRAL BRILEY,

Petitioner,

v.

DIRECTOR OF THE DEPARTMENT

OF CORRECTIONS,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE SUPREME COURT OF VIRGINIA

JURISDICTION

The petitioner asserts that the jurisdiction of this Court is

grounded upon 28 U.S.C. § 1257 and 28 U.S.C. § 2101.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The relevant constitutional and statutory provisions in-

volved are set forth in Petition for Writ of Certiorari at 2.

STATEMENT OF THE CASE

The petitioner was convicted by a jury in the Circuit

Court of the City of Richmond on January 25, 1980. He

was convicted of first-degree murder, robbery, rape, two

2

charges of capital murder, and the use of a firearm in each

of those felonies. On the non-capital felonies the jury im-

posed sentences totaling life plus sixty-five years. After a

separate hearing, the jury returned verdicts imposing the

death penalty in both of the capital murder cases. On

March 4, 1980, the trial court affirmed the death sentences

and entered judgment in accordance with the jury verdicts.

All of the convictions were affirmed by the Supreme Court

of Virginia on November 26, 1980. Briley v. Common-

wealth, 221 Va. 563, 273 S.E.2d 57 (1980).

A petition for a writ of habeas corpus filed in the United

States District Court for the Eastern District of Virginia on

March 5, 1981 was denied by that court after a hearing

on March 13, 1981. The petitioner appealed to the United

States Court of Appeals for the Fourth Circuit on March

16, 1981, and on the same date, filed a petition for a

writ of habeas corpus in the Circuit Court of the City of

Richmond. On March 17, 1981, the Court of Appeals

stayed the petitioner’s execution, and on April 23, 1981,

remanded the case to the District Court with orders to retain

jurisdiction and hold the matter in abeyance while petitioner

pursued his state habeas corpus remedies.

After oral argument on respondent’s motion to dismiss,

the Circuit Court of the City of Richmond dismissed all but

two of petitioner’s habeas corpus claims on September 22,

1981. See Petition for Writ of Certiorari at App. B. An

evidentiary hearing on the remaining claims was held on

December 22 and 28, 1981. After that hearing the Circuit

Court dismissed those claims. Jd. On April 28, 1982, pe-

titioner filed a petition for appeal in the Supreme Court of

Virginia. The petition was refused on December 9, 1982.

See Petition for Writ of Certiorari at App. A.

3

STATEMENT OF FACTS

At trial, the evidence of the prosecution demonstrated

that the petitioner, his two brothers, Linwood and Anthony,

and sixteen year old Duncan Meekins were involved in

three murders which occurred at a residence in Richmond

on October 19, 1979. Those four individuals went to the

residence of Harvey Wilkerson to rob him. Once inside they

subdued Wilkerson, his common-law wife, Judy Barton, and

their five year old son. After the adults were bound with

electrical tape, Judy Barton was raped and money was

stolen from the premises. According to Meekins, before

leaving the residence he shot and killed Wilkerson, and the

petitioner shot and killed Judy Barton and the child. Tr.

Vol. II at 52, 62-63, 66-68, 386-387, 407. The medical

evidence revealed that all three of the victims died of gun-

shot wounds to the head, Judy Barton having been shot in

the head four times. Jd. at 10-12, 17, 20-23, 25-26.

REASONS FOR DENYING THE WRIT

I.

The Issues Concerning The Constitutionality Of The Jury

Instructions On Aggravating And Mitigating Circumstances Are

Not Properly Before This Court; The Jury Was Properly Instructed

Regarding Aggravating And Mitigating Circumstances.

The petitioner contends that at the penalty phase of his

trial the jury was not constitutionally instructed regarding

aggravating and mitigating circumstances. The petitioner

raised these issues in his petition for a writ of habeas corpus.

In his subsequent petition for appeal to the Supreme Court

of Virginia, however, petitioner raised these issues only in

the context of an allegation that the Circuit Court had

erred by dismissing these claims without a hearing. See

4

Assignments of Error from Petition for Appeal appended

to this brief at App. A. Respondent asserts, therefore, that

the claims are being raised in this Court in a completely

different context than that in which they were raised in the

Supreme Court of Virginia. Thus the issues are not prop-

erly before this Court. Beck v. Washington, 369 U.S. 541,

550 (1962); Ferguson v. Georgia, 365 U.S. 570, 572

(1961); Godchaux Co. v. Estopinal, 251 U.S. 179, 181

(1919); Capital City Dairy Co. v. Ohio, 183 U.S. 238,

248 (1902).

As to the claim concerning the constitutionality of the

jury instructions on aggravating circumstances, the peti-

tioner concedes that the jury found that both aggravating

circumstances had been established beyond a reasonable

doubt. See Petition for Writ of Certiorari at 11, and App. C.

Petitioner raised the issue of the adequacy of the jury in-

structions regarding aggravating circumstances in the peti-

tion for a writ of habeas corpus appeal, but he did so only in

the context of an allegation concerning the “outrageously

or wantonly vile...” aggravating circumstance. At no time

in the original petition or the petition for appeal to the

Supreme Court of Virginia did petitioner raise a claim chal-

lenging the adequacy of the jury instructions concerning

the “future dangerousness” aggravating circumstance. Re-

spondent asserts, therefore, that this latter claim is not

properly before this Court. Beck, supra; Godchaux, supra.

Since the claim regarding the “future dangerousness”

aggravating circumstance is not properly before this Court,

even if, arguendo, the jury instruction regarding the “out-

rageously or wantonly vile...” aggravating circumstance

were constitutionally inadequate, such error would be harm-

less beyond a reasonable doubt. Chapman v. California, 386

USS. 18 (1967). This is so because the jury found the ex-

5

istence of both aggravating circumstances. See Stromberg

v. California, 283 U.S. 359, 367-368 (1931).

The respondent submits, nevertheless, that the jury was

constitutionally instructed concerning the “future danger-

ousness” aggravating circumstance. The “future dangerous-

ness” standard is not unconstitutionally vague and does not

require specific definition of its meaning. Jurek v. Texas,

428 U.S. 262, 274-275 (1976). See also, Gregg v. Georgia,

428 U.S. 153, 183 n.28 (1976).

The petitioner alleges that the jury instructions con-

cerning the “outrageously and wantonly vile...” aggravat-

ing circumstance were inadequate because they were “vir-

tually identical to those rejected in” Godfrey v. Georgia,

446 U.S. 420 (1980). On that basis, he claims that the

Supreme Court of Virginia erred when it ruled in Briley,

supra at 579-580; 67, that the jury need not be informed of

the limiting construction which the Court has placed upon

this statutory phrase. See Petition for Writ of Certiorari at

13. Petitioner concedes, however, that the “outrageously

or wantonly vile. . .” standard is not unconstitutional on its

face. See Gregg, supra at 201.

The respondent asserts that the facts of this case make it

readily distinguishable from Godfrey, supra. In Godfrey,

the Court did not decide that the jury instructions, which

“quoted to the jury the statutory language of the. . .ag-

gravating circumstance in its entirety,” were per se un-

constitutional. See 446 U.S. at 426. Nor did the Court

decide that the jury must be informed of the limiting con-

struction which has been placed upon the “outrageously or

wantonly vile...” standard. See Stanley v. Zant, 697 F.2d

955, 971 (11th Cir. 1983). Rather, the Court ruled that,

based upon the particular facts of that case, the Georgia

Supreme Court had adopted such a broad and vague con-

6

struction of the aggravating circumstance that it violated

the Eighth and Fourteenth Amendments. 446 U.S. at 423,

432.

The defendant in Godfrey, experiencing serious domestic

problems with his wife and mother-in-law, went to a trailer

where the two women were. He shot his wife in the head

through a window and killed her instantly. He then entered

the trailer and shot and killed his mother-in-law instantly.

The accused then reported the crimes to the police, ac-

cepted full responsibility, and described his deeds as a

“hideous crime.” At trial he asserted the defense of tem-

porary insanity. See 446 U.S. at 426.

This Court found that Godfrey’s crimes did not indicate

that, for purposes of imposing the death penalty, he was

any more “depraved” than any other murderer. The Court

emphasized the evidence of “extreme emotional trauma,”

and the fact that Godfrey acknowledged his responsibility

for the crimes almost immediately. Jd. at 433.

In marked contrast to the facts in Godfrey, the facts in

petitioner’s case reflect “a consciousness materially more

‘depraved’ than that of any person guilty of murder.” /d.

The evidence demonstrated that during the commission

of robbery and rape, the petitioner executed a five year old

boy and his mother by shooting them in the head. The

mother was shot in the head four times and her skull was

almost broken in half. Tr. Vol. II at 20-21.

The accused in Godfrey was emotionally distraught and

he killed his victims instantly and without warning. Peti-

tioner, however, killed his victims in a cool, calculated

manner, and only after they were forced to wait for what

they must have known was certain death. See Briley, supra at

579; 67. The woman was raped before she was killed, and

the child was forced to witness the murder of both his

7

parents. The accused in Godfrey notified the police and ac-

cepted responsibility for his crimes. The petitioner, on the

other hand, fled from the scene with his accomplices carry-

ing the proceeds of the robbery.

Respondent asserts that the facts of this case amply

demonstrate that the Supreme Court of Virginia has not

adopted an unconstitutionally broad or vague construction

of the “outrageously or wantonly vile. . .” standard. There-

fore, petitioner’s claim is without merit.

Petitioner’s claim concerning the alleged inadequacy of

the jury instructions on mitigating circumstances was not

raised at trial or on direct appeal. Petitioner did raise the

claim in his petition for a writ of habeas corpus, but the

Circuit Court denied relief on the grounds that the claim

could have been raised at trial and on appeal. See Petition

for Writ of Certiorari at App. B. In refusing the petition

for appeal, the Supreme Court of Virginia specifically stated

that the Circuit Court had not erred by applying the pro-

cedural default rule. See Petition for Writ of Certiorari at

App. A. See also, Slayton v. Parrigan, 215 Va. 27, 205

S.E.2d 680 (1974), cert. denied sub nom Parrigan v. Pad-

erick, 419 U.S. 1108 (1975).

Respondent asserts that this claim is not properly before

this Court. Beck, supra; Godchaux, supra. A state pro-

cedural rule which prohibits the raising of federal claims

at late stages in a case is a valid exercise of state power.

See Wainwright v. Sykes, 433 U.S. 72 (1977); Williams v.

Georgia, 349 U.S. 375, 382-383 (1955). See also, Henry v.

Mississippi, 397 U.S. 443, 446 (1965).

As to the merits of this claim, petitioner’s reliance upon

Lockett v. Ohio, 438 U.S. 586 (1978), is misplaced. In

Lockett, this Court declared unconstitutional a state statute

which severely restricted the number and type of mitigating

circumstances which could be considered by the sentencing

authority in a death penalty case. The Court stated, “To

meet constitutional requirements, a death penalty statute

must not preclude consideration of relevant mitigating fac-

tors.” 438 U.S. at 608. See also, Eddings v. Oklahoma,

—— U.S. .__., 71 L.Ed.2d 1 (1982).

In the present case, the petitioner does not, and could

not reasonably contend ‘hat Virginia’s death penalty statute

in any way restricts the consideration of mitigating factors

by the jury. The relevant statute reads: “Facts in mitigation

may include, but shall not be limited to, the following:

[i through v].” See 19.2-264.4(B), Code of Virginia, set

forth in Petition for Writ of Certiorari at App. C. (Empha-

sis added.) Thus the Virginia statute permits the jury to

consider any evidence proffered by the defendant in mitiga-

tion, and clearly meets the requirements of Lockett, supra.

The petitioner’s reliance on Gregg v. Georgia, 428 U.S.

153 (1976), is also misplaced. In Eddings, supra at 9, the

Court discussed the statute involved in Gregg as it related

to the issue of mitigating circumstances. The Court stated:

By its requirement that the jury find one of the aggra-

vating circumstances listed in the death penalty statute,

and by its direction to the jury to consider “any miti-

gating circumstances,” the Georgia statute properly

confined and directed the jury’s attention to the circum-

stances of the particular crime and to the characteristics

of the person who committed the crime. .. .” (quoting

428 U.S. at 197).

Thus, contrary to petitioner’s assertion, Gregg does not

require that the mitigating evidence which may be consid-

ered by the jury be defined or explained. To the contrary,

any effort to delineate mitigating factors for the jury could

run afoul of Lockett, supra. If the Constitution requires

9

that the jury not be precluded from considering any evi-

dence in mitigation, there can be no constitutional require-

ment to inform the jury of the specific types of mitigating

evidence which may be considered.

The Virginia death penalty sentencing procedures, like

those of Georgia considered by the Court in Gregg, permit

the jury to consider any evidence in mitigation of the of-

fense, and require that the jury must find and identify at

least one statutory aggravating circumstance before it can

impose the death penalty. “In this way the jury’s discretion

is channeled” in a constitutionally acceptable manner. 428

U.S. at 206.

In the present case, petitioner was not restricted in any

way from presenting mitigating evidence to the jury, and

what mitigating evidence there was, was presented. Habeas

Transcript (hereinafter cited as H.Tr.) at 92-93. The trial

court correctly instructed the jury that before it could

impose the death penalty it was required to find that the

prosecution had established beyond a reasonable doubt at

least one of the two statutory aggravating circumstances.

See instructions from sentencing phase set forth in Petition

for Writ of Certiorari at App. D. The trial court also

correctly instructed the jury that, even if one or both of

the aggravating factors had been established beyond a

reasonable doubt, the jury should fix the punishment at life

imprisonment if it believed “from all the evidence that the

death penalty is not justified... .” Id. After the jury was

so instructed, counsel for petitioner were permitted to

argue to the jury at length that because of the mitigating

evidence it should impose a sentence of life imprisonment

rather than death. Tr. Vol. III at 136-144. Furthermore,

the verdicts returned by the jury affirmatively stated that

before fixing the petitioner’s punishment at death, the jury

10

had found that both statutory aggravating circumstances

had been established and that the jury had “considered the

evidence in mitigation of the offense... .” Jd. at 147-148.

After the verdicts, the trial court directed a probation

officer “to thoroughly investigate. ..the history of the de-

fendant and any and all other relevant facts [so that the

court would be] fully advised as to whether the sentence

of death is appropriate and just.” See § 19.2-264.5, Code

of Virginia, set forth in Petition for Writ of Certiorari at

App. C. After receiving and reviewing the probation offi-

cer’s report, the trial court affirmed the jury’s verdicts. Tr.

March 4, 1980 at 20-21. On appeal, the Supreme Court of

Virginia, following the mandates of § 17-110.1(C), Code

of Virginia, reviewed the death sentences and found that

they had not been “imposed under the influences of passion,

prejudice, or any other arbitrary factor,” and were not

“excessive or disproportionate to the penalty imposed in

similar cases, considering both the crime and the defendant.”

Briley, supra at 580-581; 68-69. This type of review “affords

additional assurance” that the death sentences were im-

posed upon petitioner with due regard for all the mitigating

evidence. See Gregg, supra at 207.

Respondent submits that in view of the statutory sen-

tencing procedures that were employed in this case, and

the instructions that were given to the jury on the issue of

punishment, it is clear that the sentences of death were

imposed upon petitioner in a constitutional manner.

11

Il.

Petitioner’s Constitutional Rights Were Not Violated By The

Police And His Written Statement Was Properly

Admitted Into Evidence.

In his petition for a writ of habeas corpus, the petitioner

alleged that the trial court improperly admitted into evi-

dence a handwritten statement given by the petitioner to the

police on the night of his arrest. Petitioner did not object

to the admission of the statement at trial or on direct

appeal. The substance of the statement set forth an alibi

defense and did not implicate the petitioner in the offenses

of which the petitioner was accused. Tr. Vol. II at 244.

According to petitioner’s trial counsel, the defense did not

object to the admission of the statement because it allowed

the defense to introduce evidence of alibi, albeit uncor-

roborated, without the petitioner testifying and being sub-

ject to cross-examination and impeachment on the basis of

his prior felony convictions. H.Tr. at 361-362, 581-582.

Despite the fact that this issue had not been raised at

trial or on direct appeal, the Circuit Court of the City of

Richmond conducted on evidentiary hearing to resolve the

merits of the claim. On the basis of the evidence adduced

at that hearing, the Circuit Court found that the petitioner

had been properly advised of his constitutional rights and

that he had voluntarily and intelligently waived those rights

before he made his written statement to the police. See

Petition for Writ of Certiorari at App. B. In refusing a

petition for appeal, the Supreme Court of Virginia affirmed

the ruling of the Circuit Court. See Petition for Writ of

Certiorari at App. A.

Petitioner contends that the facts adduced at the eviden-

tiary hearing demonstrate that his constitutional rights as

set forth in Miranda v. Arizona, 384 U.S. 436 (1966), and

12

Edwards v. Arizona, 451 U.S. 477 (1981), were violated

by the police, and that therefore the written statement was

improperly admitted into evidence by the trial court. Pe-

titioner focuses upon his own testimony at the evidentiary

hearing that immediately after being arrested and advised

of his constitutional rights he invoked his right to counsel.

Petitioner alleges that both the Circuit Court and the

Supreme Court of Virginia “ignored petitioner’s request for

an attorney, thereby fundamentally missing the point of

Edwards... .” See Petition for Writ of Certiorari at 18.

Although the petitioner testified at the evidentiary hearing

that after his arrest he requested an attorney, that testi-

mony was completely contradicted by the testimony of the

police officers involved in petitioner’s arrest and interroga-

tion. The police officers testified that at no time during the

arrest or interrogation did petitioner invoke his right to

counsel or his right to remain silent. H.Tr. 61, 67-70, 666,

669-670, 673-677. Petitioner’s testimony was also signifi-

cantly impeached by that of his trial attorneys who testified

that at no time during the preparation for trial or during

the trial itself did the petitioner tell them that he had in-

voked his right to counsel before making his written state-

ment to the police. H.Tr. 148, 434-435. Although the

evidence indicated that after his arrest the petitioner was

permitted to make a telephone call and that he called an

attorney, there was no evidence that the police knew or

should have known whom the petitioner called. H.Tr. 66.

In resolving the conflicts in the testimony, the Circuit

Court, as the trier of fact, resolved all issues of credibility

adversely to the petitioner. The court stated:

As to the claim under Miranda, the word that first

comes to mind is contrived, contrived by this defendant

for this hearing. The Court specifically rejects the testi-

13

mony of the defendant and accepts the testimony of

[the police officers] and the others who testified con-

trary to the defendant’s statements in that regard.

(H.Tr. 760.)

The issue of the credibility of the witnesses is one that is

properly resolved by the trier of fact. See Jackson v. Vir-

ginia, 443 U.S. 307, 319 (1979). Since the Circuit Court,

as the trier of fact, decided the credibility issue adversely

to the petitioner, this Court, like the Supreme Court of

Virginia, must reject the petitioner’s claim that he invoked

his right to counsel before making his written statement to

the police. See Marshail v. Lonberger, ___. U.S. —___. (de-

cided February 22, 1983); Sumner v. Mata, 449 U.S. 539

(1981). When the evidence is viewed in this light, Edwards,

supra, which involved continued police questioning after the

accused asserted his right to counsel, is clearly inapposite.

The testimony of the police officers, which was expressly

accepted by the irier of fact, was certainly sufficient to

support the finding that petitioner’s written statement was

obtained in full compliance with Miranda, supra. Further-

more, the petitioner himself admitted that he was fully

advised of his Miranda rights, that he fully understood

those rights, including the right to counsel, that he had

considerable previous experience with the criminal justice

sys.em, and that he wrote the statement in his own hand-

writing after signing a written waiver form. H.Tr. 78-81.

See copy of waiver form appended to this brief at App. B.

Under these circumstances, any rational trier of fact could

have made the finding that the petitioner’s constitutional

rights were not violated by the police and that his written

statement was therefore admissible. Jackson, supra.

Respondent asserts in the alternative that, since the writ-

ten statement did not implicate the petitioner in the offenses

14

of which he was accused, and since petitioner was convicted

primarily upon the independent testimony of an accomplice,

Duncan Meekins, if any error was committed in the admis-

sion of the written statement, it was harmless beyond a

reasonable doubt. Chapman, supra. See Milton v. Wain-

wright, 407 U.S. 371 (1972).

iil.

The Issue Of Alleged Improper Juror Exclusion Is Not

Properly Before This Court; Jurors Candies And Revere Were

Properly Excluded From The ury Panel.

As petitioner concedes, the claim that two jurors were

improperly excluded from the jury panel was not raised at

trial or on direct appeal. See Petition for Writ of Certiorari

at 5. The claim was raised in the petition for a writ of

habeas corpus filed in the Circuit Court, and that court

dismissed the claim both on the merits and because it should

have been raised at trial and on appeal. See Petition for

Writ of Certiorari at App. B.

In the petition for appeal to the Supreme Court of

Virginia, however, the claim was raised solely in the con-

text of an allegation that the Circuit Court erred by dis-

missing the claim without a hearing. See Assignments of

Error from Petition for Appeal appended to this brief at

App. A. When the Supreme Court of Virginia refused the

petition for appeal, it stated that “the court did not err in

finding from the record that the rule in Witherspoon v.

Illinois, ... had been complied with... .” See Petition for

Writ of Certiorari at App. A. (Emphasis added.) By ruling

that the Circuit Court did not err by making the finding

“from the record,” the Court, in effect, ruled that the Circuit

Court did not err by refusing to conduct a hearing on this

claim.

15

Petitioner has asked this Court to decide the merits of

the claim even though the Supreme Court of Virginia was

only asked to decide whether the Circuit Court had erred

by refusing to conduct a hearing on the claim. For this rea-

son, respondent asserts that the claim is not properly before

this Court. It is a jurisdictional requirement that the federal

question which this Court is asked to consider must have

been presented to the state’s highest court. Beck v. Wash-

ington, 369 U.S. 541, 550 (1962); Ferguson v. Georgia,

365 U.S. 570, 572 (1961); Godchaux Co. v. Estopinal,

251 U.S. 179, 181 (1919); Capital City Dairy Co. v. Ohio,

183 U.S. 238, 248 (1902).

As to the merits of the claim, petitioner contends that the

voir dire of jurors Candies and Revere does not demon-

state the degree of opposition to the imposition of the death

penalty required for exclusion under Witherspoon v. Illinois,

391 U.S. 510 (1967). Witherspoon prohibits the exclusion

of venireman “simply because they voiced general objec-

tions to the death peualty or expressed conscientious or

religious scruples against its infliction.” 391 U.S. at 522.

A prospective juror may be excluded, however, if he is

“irrevocably committed...to vote against the penalty of

death regardless of the facts and circumstances that might

emerge in the course of the proceedings.” Jd. at n. 21.

A review of the entire voir dire of jurors Candies and

Revere reveals that. they were properly excluded for cause

under the Witherspoon standard. See Petition for Writ of

Certiorari at App. E. During voir dire the following ex-

change occurred between the trial judge and juror Candies:

THE COURT: In other words, in any event, no matter

what the evidence, you would not impose the death

penalty?

16

MS. CANDIES: (Shaking head negatively) No.

THE COURT: You would not?

MS. CANDIES: (Shaking head negatively)

(Tr. Vol. I at 48-49.)

When asked by defense counsel if she meant “that, under

no circumstances, no matter what the evidence is, that you

couldn’t impose the death penalty?” Candies responded,

“This is the way I feel right now.” Tr. Vol.I at 49. Even

when defense counsel cited an extremely aggravated ex-

ample, and asked Ms. Candies if she could not impose the

death penalty even if the evidence was “so overwhelming”

and “stacked up high as the sky,” she responded, “I don’t

think I could.”

During the voir dire of juror Revere, after she had indi-

cated to the trial judge that her opposition to the death

penalty would cause her to “hang the jury” rather than

vote to impose the death penalty (Tr. Vol.I at 133), the

following exchange occurred between defense counsel and

the prospective juror:

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 sen-

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

(Tr. Vol.I at 134.)

Respondent asserts that the record amply demonstrates

that Candies and Revere were excluded for cause only after

they made it “unmistakably clear” that they would not vote

to impose the death penalty under any circumstances.

Witherspoon, supra at 522 n.21. See also, Boulden v. Hol-

man, 394 U.S. 478, 482 n.6 (1969). For this reason, peti-

17

tioner’s claim that the jurors were improperly excluded

from the jury panel is without merit.

CONCLUSION

For the reasons stated, the Petition for a Writ of Cer-

tiorari should be denied.

Respectfully submitted,

DIRECTOR OF THE DEPARTMENT

OF CORRECTIONS, Respondent

By:

Counsel

GERALD L. BALILES

Attorney General of Virginia

JACQUELINE G. Epps

Senior Assistant Attorney General

DONALD R. CuRRY

Assistant Attorney General

Supreme Court Building

101 North Eighth Street

Richmond, Virginia 23219

18

CERTIFICATE OF SERVICE

I, Jacqueline G. Epps, Senior Assistant Attorney Gen-

eral of Virginia, Counsel of Record for the Respondent in

the captioned matter and a member of the Bar of the Su-

preme Court of the United States, do hereby certify that

on or before the 13th day of April, 1983, three copies of

the foregoing Brief in Opposition to the grant of a Writ of

Certiorari were mailed, first-class postage prepaid, to Rich-

ard J. Wertheimer, Arnold & Porter, 1200 New Hampshire

Avenue, N.W., Washington, D.C. 20036, Counsel of Record

for Petitioner.

JACQUELINE G. Epps

Senior Assistant Attorney General

APPENDIX A

IN THE

SUPREME COURT OF VIRGINIA

AT RICHMOND

Record No. ......

JAMES DYRAL BRILEY,

Petitioner,

Vv.

DIRECTOR OF THE DEPARTMENT

OF CORRECTIONS,

Respondent.

PETITION FOR APPEAL

LEONARD B. SIMON

JAMES X. DEMPSEY

ARNOLD & PORTER

1200 New Hampshire Ave., N.W.

Washington, D.C. 20036

GERALD T. ZERKIN

1001 West Brookland Park Blvd.

Richmond, Virginia 23220

Counsel for Petitioner

Of Counsel:

RICHARD J. WERTHEIMER

1200 New Hampshire Ave., N.W.

Washington, D.C. 20036

TABLE OF CONTENTS

Page

ASSIGNMENTS OF ERROR ..............0.0eseeeeees 2

STATEMENT OF THE PROCEEDINGS ................ 3

STATEMENT OF THE FACTS ............0.0eeseeuees 5

EE DEINE oc vdscvarwessvccccsssceecs 13

EE eh eis saay bc aucea hehe deionsbar ens ee 14

1. Petitioner’s Fifth Amendment Rights Were Violated by

the Introduction of a Statement Made by Petitioner in

Response to Custodial Questioning After He Had Re-

quested GR ANGERS ooo ccccccccccccccccccccecccces 14

2. The Errors and Omissions of Trial Counsel Deprived

Petitioner of Effective Assistance of Counsel .......... 18

3. The Circuit Court Erred in Dismissing Petitioner’s Other

Claims Without a Hearing ..........:ceeeceeeceees 39

a. The Circuit Court Erred in Ruling that Petitioner Waived

Certain Claims Which Trial Counsel, Through Error

and Omission, Failed To Raise at Trial or on Direct

b. This Court Should Reconsider the Constitutionality of

the Death Penalty and Other Issues Addressed on Direct

CONCLUSION ..ccccccccccccvccvcsecsevevecesseeeees 46

2

* * *

ASSIGNMENTS OF ERROR

1. The Court erred in ruling that the trial judge had

properly admitted a statement obtained from the petitioner

on the night of his arrest after he had requested the pres-

ence of an attorney.

2. The Court erred in ruling that petitioner was afforded

effective assistance of counsel despite numerous serious

errors and omissions by his trial counsel.

3. The Court erred in dismissing petitioner’s other claims

without a hearing. The Court erred (a) in ruling that pe-

titioner had waived certain claims which trial counsel,

through error and omission, failed to raise at trial or on

direct appeal; and (b) in failing to reconsider the constitu-

tionality of the death penalty and other issues raised on

direct appeal.

APPENDIX B

BUREAU OF POLICE

RICHMOND, VIRGINIA

Date: 10-22-79

Time: 1145 2345

Name of Accused: James Dyral Briley

I am Detective Sgt. N. A. Harding of the Richmond,

Virginia, Bureau of Police.

1. You are being interviewed in connection with the

alleged commission of the crime of murders of Harvey

Wilkerson, Jr., Dianne Barton & Harvey Barton. 3 Fire-

arms charges

2. You have an absolute right to remain silent and make

no statement to me and your silence will be guarded by the

police.

3. Any statement you make without counsel can be used

as evidence against you.

4. You have a right to the presence of an attorney during

this or any future interview the police might have with

you. The attorney may be one of your own choosing which

you retain, or if you are without funds to employ counsel,

the court will appoint one for you.

Do you understand the rights that have been explained

to you? Yes J.B.

You may voluntarily waive the above rights that have

been explained to you and make a statement if you so

desire.

James Briley

Signature of Accused