# Opposition — Briley v. Director of the Department of Corrections

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1983
- **Citation:** 461 U.S. 918

## Text

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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
Se deere anehakiae dh ned onees sebacnendees 10
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0592%3A2. Public record. Not legal advice.