Petition for Writ of Certiorari — Turner v. Murray

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APR 24 1985

Orrive OF THE CLERK

IN THE SUPREME COURT, U.S.

eel .

SUPREME COURT OF THE UNITED STATES

October Term, 1984

84 6446

WILLIE LLOYD TURNER,

Petitioner,

Vv.

GARY BASS,

Respondent.

PETITION FOR WRIT OF CERTIORARI

Counsel for Petitioner

J. Lloyd Snook, III

Paxson, Smith, Gilliam & Scott, P.C.

418 E. Water Street

P.O. Box 2737

Charlottesville, Virginia 22902

(804) 296-2161

QUESTIONS PRESENTED

1. Where a capital murder case is being tried in a

rural county in a state where the death penalty has historically

been imposed in a racially discriminatory manner, and where the

death sentence is being sought for a black man who is accused of

killing a white man, must the trial court grant the defendant's

request that the prospective jury members be questioned about

their racial prejudices?

2. Does “death qualification" result in a jury biased

toward the prosecution on the issue of guilt, thereby depriving

a defendant of his right to a fair and impartial jury?

Questions

TABLE OF CONTENTS

Presented

Table of Contents

Table of Authorities

Assignment

Jurisdicti

Constituti

Statutes I

Statement

Statement

Argument

I.

II.

IIl.

Conclusion

Certificat

s of Error

on

onal Provisions Involved

nvolved

of the Case

of Facts

VIRGINIA'S POST-FURMAN DEATH PENALTY

STATUTES HAVE NOT ELIMINATED RACE AS A

PACTOR IN THE JURORS' DECISION TO IMPOSE

DEATE.

THE TRIAL COURT SHOULD HAVE QUESTIONED

PROSPECTIVE JURORS CONCERNING RACIAL

PREJUDICE.

Ristaino vw. Ross Should Not Be Applied

In Jury Sentencing Cases.

Ristaino vy. Ross Should Not Be Applied

In Capital Cases.

APPELLANT WAS DENIED HIS RIGHT TO A

FAIR AND IMPARTIAL JURY, AS GUARANTEED

BY THE SIXTH AND FOURTEENTH AMENDMENTS

OF THE UNITED STATES CONSTITUTION,

BECAUSE THE JURY WAS “DEATH-QUALIFIED,"

RESULTING IN A VENIRE BIASED IN FAVOR

OF THE PROSECUTION.

e€

- ii -

iii,iv

1l

15

17

18

24

26

TABLE OF AUTHORITIES

PAGE

Va + 709 F.2d 1443 (llth Cir.

1983), cert. denied, —— U.S. <a 0 79

L.Ed.2d (1984) >

Wa. Pactida, 430 U.S. 482, 494 n.13,

oy Be ct. 1272, 51 L.Ed.2d (1977) 7

Ve. Commonwealth, 220 Va. 243, 257

S.E. =? (1979), cert. denied, 444 U.S.

(1980) 5

Va Georgia, 408 U.S. 238, 450, 92 &.Ct.

2726, 33 L.Ed.2d (1972) passim

We. Florida, 430 U.S. 349, 97 S.Ct. 1197,

51 L.Ed.2d (1977) 15

We Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 —_

L.Ed.2d (1976) 9, 15, 20

Ya Mabry, _.. F.2d __ss«s (8th Cir. 1985)

(en banc) 23, 24, 25

Ham vy. South Carolina, 409 U.S. 524, 93 S.Ct. 848,

35 L.Ed.2d (1973) 15, 16, 19

Hart v. Commonwealth, 131 Va. 726, 109 S.E. 562 (1921) 21

Wea State, 251 Pla. 398, 306 S.E.2d

645 (1983) 19

Keeten vw. Garrison, 742 F.2d 129 (4th Cir. 1984) 24

Ma Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954,

57 LC Ed.2d (1978) 15, 23

We. Kemp, 753 F.2d 877 (llth Cir. 1985)

(en banc) 9, 24, 25

Powell vy. Alabama, 287 U.S. (1932) 21

Quintana vy. Commonwealth, 224 Va. 127, 295

S.Ed. sta (1982), cert, denied, 460 U.S.

(1983) 5

Reid vy. State, 129 Ga. App. 657, 200 S.E.2d

454 (1973) 19

Bistaine We. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47

L.Ed.2d (1976) passim

vw. United States, 451 U.S. 182, 101

s. cr. 1629, 68 L.Ed.2d (1981) is, 17, 18, 19

Shaw v. Martin, 733 F.2d 304 (4th Cir. 1984) 9

ve. Wainwright, 578 F.2d 582 (Sth Cir.

CDF a denied, 440 U.S. (1979) 9

we. Wainwright, 721 F.2d 316 (lith Cir.

1983) 9

WV. Commonwealth, 220 Va. 260, 256

S.Ed.2d (1979), cert, denied, 445 U.S.

(1980) 5

-iii-

vw. Bass, 753 F.2d 342, 345 (4th Cir.

1985) ; 17

Tuxcner vy. Commonwealth, 221 Va. 513, 273

7. Ea. 2d (1980), cert, denied, 451 U.S.

1011 (1981) 20 30 Se 24

Turner vy. Morris, cert. denied, ___—iU.S.

___» 77 L.eEd.2d (1983) 2

vw. Illinois, 391 U.S. 510, 88 S.Ct.

1770, 20" L.Ed.2d (1968) 4, 23

Woodson v. North Carolina, 428 U.S. 280 (1976) 15

Zant vw. Stephens, _..__—~av«.S. ___, 77 L.Ed.2d (1983) 22

Qther Authorities

H. Bedau, The Death Penalty in America, (1967

rev. ed.) 8

W. Bowers, Executions in America (1974) 8

Bowers, “The Pervasiveness of Arbitrariness and

Discrimination Under Post-Furman Capital

Statutes,” 74 J.Crim.L. & Criminology 1067 (1983) 1i

Bowers & Pieice, "Arbitrariness and Discrimination

Under Post-Furman Capital Statutes," 26 Crime

and Delinquency 563 (1980) 1l

"Capital Punishment In Virginia,” 58 Va. L. Rev.

97 (1972) 6, 7

R. Clark, Crime in America 335 (1970) 8

Gross and ges Pattern; of Death: 4p Analysis

of Racial Disparities in Capital in

Homicide Victimization 9, 11, 13, 14

Hartung, “Trends in the Use of Capital Punishment,"

284 Annals Am. Acad. of Pol. & Soc. Sci. (1952) 8

H. Kalven & H. Zeisel, The American Jury (1966) 17

"Prison Vigil: Street Divides Advocates, Opponents

of Death Penalty,” Richmond News Leader,

October 13, 1984, at 1, col. l. 1l

C. Silberman, Criminal Violence, Criminal Justice,

(1978) 20

"Sorrowful, Satisfied Crowds Greet Briley Execution

in Virginia", Washington Post, October 14, 1984,

at Al, Col. 3, Al2, Col. 3 ll

Wolfgang, Kelly & Nolde, “Comparison of the

Executed and the Commuted Among Admissions

to Death Row," 53 Crim. L. Criminology &

Police Sci. 301 (1962) §

R. Zangrando, The NAACP Crusade Against Lynching,

1909-1950 (1980) 21

-iv-

ASSIGNMENTS OF ERROR

i. The trial court's failure to yoir dire the jury

concerning their racial prejudices denied Petitioner his right to

a fair and impartial jur™, as guaraxteed by the Sixth and

Fourteenth Amendments of the United States Constitution.

2. The process of “death qualification” resulted in a

jury biased in favor of the prosecution on the issue of guilt,

denying Petitioner his right to a fair and impartial jury, as

guaranteed by the Sixth and Fourteenth Amendments to the United

States Constitution.

JURISDICTION

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. § 1257(3), in that Petitioner alleges violations of

rights guaranteed him by the United States Constitution.

CONSTITUTIONAL PROVISIONS INVOLVED

This case presents violations of the Sixth and

Fourteenth Amendments to the United States Constitution, which

are set out, in pertinent part, as follows:

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury...

U.S. CONST. AMEND. VI.

No State shall...deprive any person of life,

liberty, or property, without due process of

Laces

U.S. CONST. AMEND. XIV.

STATUTES INVOLVED

The Virginia death penalty statutes, Ya, Code Ann. §§

18.2-31 and 19.2-264.2 et seg. (1977 Supp.), are set forth in the

appendix attachee to this Petition.

STATEMENT OF THE CASE

Throughout this Petition for Writ of Certiorari, Peti-

tioner will refer to the appellate record in the Fourth Circuit

proceedings with the designation "App."

On July 12, 1978, W. Jack Smith was killed in the Town

of Franklin, in the County of Southampton, Virginia. Petitioner

Willie Lloyd Turner was arrested and charged with capital murder,

robbery, and using a sawed-off shotgun in the commission of a

robbery. Because of prejudicial pre-trial publicity in

Southampton County, the trial was moved to Northampton County, a

thinly populated rural county on Virginia's Eastern Shore. The

trial began on December 3, 1979. On December 4, 1979, the jury

found Petitioner guilty of all charges. On December 6, 1979, the

jury fixed his punishment at death. On February 6, 1980, Judge

Godwin imposed the sentence of death upon Petitioner.

Petitioner's conviction and sentence were affirmed by

the Virginia Supreme Court, Turner y, Commonwealth, 221 Va. 513,

273 S.E.2d 36 (1980), cert. denied, 451 U.S. 1011 (1981).

Petitioner's Petition for Writ of Habeas Corpus in the

Circuit Court for the County of Southampton was denied, without

an evidentiary hearing, and the Virginia Supreme Court refused

the appeal. This Court denied a Petition for Writ of Certiorari.

Turner vw Morris, cert. denied, _ U.S. __, 77 L.Ed.2d 1341

(1983).

On July 27, 1983, Petitioner filed a Petition for writ

of Habeas Corpus in the United States District Court for the

Eastern District of Virginia, Norfolk Division, the Honorable

John A. MacKenzie, presiding. Judge MacKenzie heard argument,

denied Petitioner's motion for an evidentiary hearing, and en-

tered an order dated May 23, 1984, denying relief but granting a

certificate of probable cause, Petitioner then filed a Motion to

Alter or Amend the Judgment, which was denied by order dated July

19, 1984,

The Fourth Circuit Court of Appeals affirmed the

District Court's judgment by order dated January 25, 1985. The

Fourth Circuit also stayed the issuance of the mandate until

March 17, 1985. An application has been made for a stay of

execution pending this Court's disposition of this Petition for

Writ of Certiorari. An execution date has been set by the

Circuit Court for the County of Southampton for May 2, 1985.

STATEMENT OF FACTS

On July 12, 1978, Willie Lloyd Turner, 4 black man,

walked into Smith Jewelers in Franklin, Virginia, in the County

of Southampton. Brandishing a sawed-off shotgun, he demanded

that the proprietor, W. Jack Smith, a white man, fill up some

bags with jewelry. Smith triggered the silent alarm, and moments

later Officer A. D. Bain, Jr., arrived. Officer Bain walked in,

unsuspecting; Turner then disarmed him and told him to stand in

the back of the store with the rest of the customers who had been

in the store at the time that Turner walked in. At Turner's

order Smith began to fill bags with jewelry (App. 647-648), when

Turner apparently became concerned about the possibility that

other police officers would come in the back. He fired a pistol

shot into the back wall of the store (App. 564). Officer Bain

tried to reassure Turner that no police officer was going to come

in the back; Bain testified that, at that point, Turner stated

that “if he saw or heard any more police officers, he was going

to start killing. About that time, I heard a siren go off."

App. 648-649. Turner apparently panicked, and fired Bain's

service revolver at Smith, the shot grazing Smith's scalp (App.

639). Smith fell to the floor.

In the confusion, one customer and one employee were

able to sneak out the front door. Bain tried to talk to Turner,

but Turner merely got angry. He said "I'm going to kill that

nigger for snitching on me." (App. 569), and he shot Smith, who

was lying on the floor, twice through the chest from the back.

The two shots were fired in rapid succession, one right after the

other (App. 652). Either of the two shots to the chest would

have been fatal (App. 642). As Turner turned away from Smith,

Officer Bain attacked him, disarmed him and placed him under

arrest (App. 653).

After indictment, psychiatric evaluation, and a change

of venue to Northampton County, Turner was brought to trial in

December, 1979. The trial court conducted all yoir dire, from

written questions submitted by counsel. Turner's counsel submit-

ted a number of questions (App. 8-9), including the following:

(10) T..e defendant, Willie Lloyd Tu_aer, is a

member of the Negro race. The victim, W.

Jack Smith, Jr., was a white Caucasian. Will

those facts prejudice you against Willie

Lloyd Turner or affect your ability to render

a fair and impartial verdict based solely on

the evidence?

The Court refused to yoir dire the venire on their racial

attitudes, to which refusal counsel objected (App. 495).

During voir dire, defense counsel made repeated motions

for more extensive yoir dire; all such motions were denied. The

defense counsel objected to "death qualifying" the jury (App.

486-488); the objection was overruled, the trial court did

conduct death qualification and three jurors were excluded for

cause under the authority of Witherspoon y. Illinois, 391 U.S.

510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

ARGUMENT

The major issue presented in this case is whether the

trial court in a capital case must, upon timely motion, yoir dire

the jury as to possible racial prejudice.

Petitioner does not here claim that the Virginia death

penalty statutes are unconstitutional because they are discrimi-

natorily applied; the argument is much more narrow. Because the

death sentence has historically been imposed in Virginia in a

racially discriminatory manner, and because the jury's decision

to impose the death sentence is not made merely by applying the

law to the facts but also by acting as the conscience of the

community, the courts must take affirmative steps to prevent the

intrusion of racial prejudice into the decision-making process.

Justice Powell (writing for himself, the Chief Justice, and

Justices Blackmun and Rehnquist) indicated in his dissent in

Furman vy. Georgia, 408 U.S. 238, 450, 92 S.Ct. 2726, 33 L.Ed.2d

346 (1972), that he agreed that the death penalty had in the past

been applied in a discriminatory fashion. However, the dissent

felt that the changes during the 1960's both in criminal proce-

dure and in the extent of segregation made it inappropriate to

strike down all of the statutes in the country on the basis of

data accumulated over many years in a different legal and social

climate.

The 19, . dissent, therefore, impl.-d that the process

by which the death penalty is imposed is constitutional because,

and only because, courts have taken steps to reduce the likeli-

hood that racial prejudice will affect the death decision.

It is important to keep in mind the facts of this case,

and to recognize that, when this case is compared with other

capital murder cases, it would be characterized as a "mid-range

aggravation” case, the type of case in which statistical studies

indicate that racial prejudice is most likely to have an effect.

This case is not a particularly heinous case -- it is basically a

bungled robbery. In many jurisdictions in Virginia, a prosecutor

would in all likelihood not even charge the crime as capital

murder, and in any event would not_seek the death aiiaiies,”

I. VIRGINIA'S POST-FURMAN DEATH PENALTY STATUTES

HAVE NOT ELIMINATED RACE AS A FACTOR IN’ THE

JURORS’ DECISION WHETHER TO IMPOSE DEATE.

Petitioner is a black man; his victim, W. Jack Smith,

was a white man. The jury became aware of Mr. Smith's race when

the Commonwealth introduced, through the medical examiner, a

photograph (Commonwealth's Exhibit 10) of an entrance wound in

Mr. Smith's head, a photograph (Commonweaith's Exhibit 11) of the

exit wound from Mr. Smith's head, anda photograph (Common-

wealth's Exhibit 12) of Mr. Smith's chest, showing two entrance

aianiies At trial, Petitioner requested the court to ask the

prospective jurors the following question:

1

This statement is based upon simple observation,

conversations with various prosecutors, and a comparison of the

instant case with the other capital murders cases in which death

was imposed. A review of those cases shows that the death

penalty is not returned in Virginia in a case of murder in the

course of a robbery unless there is more than one victim, see

Stamper vy. Commonwealth, 220 Va. 260, 256 S.E.2d 808 (1979),

cert. denied, 445 U.S. 972 (1980); the robbery involves entry

into a residence, see Quintana vy. Commonwealth, 224 Va. 127, 295

S.E.2d 643 (1982), cert. denied, 460 U.S. 1029 (1983), or the

method of killing was particularly gruesome or horrifying, see

Coppola wv. Commonwealth, 220 Va. 243, 257 S.E.2d 643 (1979),

cert. denied, 444 U.S. 1103 (1980).

2

The defense objected to the photographs on the ground that

they would inflame or prejudice the jury, but that objection was

overruled. The Virginia Supreme Court affirmed. Turner Was

Commonwealth, 221 Va. 513, 531, 273 S.E.2d 36 (1980), cert.

denied, 451 U.S. 1011 (1981).

The d.endant, Willie Lloyd Turn.., is a

member of the Negro race. The victim, W.

Jack Smith, Jr., was a white Caucasian. will

those facts prejudice you against Willie

Lloyd Turner or affect your ability to render

a fair and impartial verdict based solely on

the evidence?

The court refused to question the venire panel about

racial prejudice.

A. Reath Penalty Has Historically Been

Applied Zp & Discriminatory Fashion In

Virginia,

There can be little question that, before Furman y.

Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2¢ 346 (1972), the

death sentence was being applied in Virginia in a racially

discriminatory fashion.

Before the Civil War, the Virginia Code provided for

different punishment for whites, free blacks and slaves.

Virginia law at the outbreak of

the Civil War divided criminals into three

classes. For whites, the law authorized

Capital punishment only for murder, treason,

and arson. Pree Negroes could receive the

Geath penalty for these three offenses plus

rape and attempted rape, if the victim were

white. In addition, the state could execute

Slaves for burglary, armed robbery, kidnap-

ping and any other offense which was punish-

able by imprisonment for more than three -

years if committed by a free man.

Note, “Capital Punishment In Virginia,” 58 Va. L. Rev. 97, 104-

3

105 (1972).

Pollowing the Civil War andthe enactment of the

Pourteenth Amendment, the Virginia General Assembly abolished the

clear race-dependent differences, added burglary, armed robbery,

3

The Virginia General Assembly in the 1800's considered

the "death worthiness” of certain cases be a function not only of

the race of the offender but also of the race of the victim.

The statutes governing rape offenses were

atypical, because there was a specific

Statute dealing with the rape of a white

woman by a black man. This law provided that

if a slave or free Negro raped a white woman

he was to be punished with death. The

Original penalty for the attempted rape of a

white woman by a black man was castration,

but later the legislature extended the death

penalty to cover that crime also. In

contrast, the law offered little protection

rape and (in i894) attempted rape to the list of capital

offenses, and controlled jury selection to guarantee all white

juries.

Since the legislature apparently felt it

impolitic to distinguish penalties by race,

they made the death penalty discretionary for

these crimes, and placed their trust in the

judgment of white judges and white juries.

Id. at 106.

In 1908, Virginia executions were centralized in the

Virginia State Penitentiary, and the Department of Corrections

has kept records of those who have been executed since then. (No

authoritative data exists for pre-1908 executions.) Between 1908

and 1962, 236 people were executed in Virginia; 202 were black.

Porty-one blacks were executed for rape, fourteen blacks executed

for attempted rape, and five blacks executed for armed robbery.

No whites were executed for those three offenses. Id. at 142.

When all Virginia death sentences were nullified in

1972 in Burman v. Georgia, there were eight men on Virginia's

Geath row; five were black and three were white. Six were on

Geath row for murder, and two (both black) were on death row for

rape. Id. at 113 n.107.

Even more striking are the statistics correlating the

imposition of the death sentence with the race of the victim.

Between 1908 and 1972, no one was executed for a crime against a

black victim.

In sum, therefore, the disparity on the basis of race

of the offender or race of the victim in the imposition of the

death sentence in Virginia before Furman vy, Georgia was “suffi-

ciently large” that “it is unlikely that it is due solely to

chance or accident,” Casteneda vy. Partida, 430 U.S. 482, 494

3

(Cont. )

to a black woman raped by a white man. The

maximum penalty was only a term of

imprisonment, and Negroes were incompetent by

statute to testify against a white criminal

defendant. Without the testimony of the

victim, proving such essential elements of

the crime of rape as force and penetration

would obviously present certain practical

difficulties.

Id. at 104.

n.13, 97 S.Ct. 272, 51 L.Ed.2d 498 (1977) This statistical

disparity, combined with the history of racial discrimination in

Virginia's courts, fully supports a conclusion that, at least

before 1972, racial prejudice was an important factor in deter-

mining who was sentenced to death in Virginia.

When this Court struck down capital sentencing pro-

cedures in Furman vy. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33

L.Ed.2d 346 (1972), five justices addressed race discrimination

in their individual opinions. See 408 U.S. at 249-52 (Douglas,

J«, concurring); id. at 309-10 (Stewart, J., concurring); id. at

364-66 (Marshall, J., concurring); id. at 389-90 n.12 (Burger,

C.J., dissenting); id. at 449 (Powell, J., dissenting).

The thrust of the argument to this Court in 1972 was

that the death penalty was being imposed on the basis of race;

this conclusion was supported by many statistical studies. See,

S.G., H. Bedau, The Death Penalty in America (1967 rev. ed.);

Hartung, “Trends in the Use of Capital Punishment," 284 Annals

Am. Acad. of Pol. & Soc. Sci. (1952); R. Clark, Crime in America

335 (1970); Wolfgang, Kelly & Nolde, “Comparison of the Executed

and the Commuted Among Admissions to Death Row," 53 J. Crim. L.

Criminology & Police Sci. 301 (1962). Justice Marshall

summarized the statistics as follows:

It is immediately apparent that Negroes were

executed far more often than whites in pro-

portion to their percentage of the popula-

tion. Studies indicate that while the higher

rate of execution among Negroes is partially

due to a higher rate of crime, there is

evidence of racial discrimination.

408 U.S. at 364. See also W. Bowers, Executions in America (1974).

Even the dissenters in Furman apparently conceded that

the death sentence had historically been imposed pursuant to a

racially discriminatory pattern. Justice Powell, writing for

himself, Chief Justice Burger, Justice Blackmun, and Justice

Rehnquist, called the "discriminatory application of the death

penalty inthe past admittedly indefensible." 408 U.S. at 450.

Cc. Although Post-Furman Statutes Better

Channel Jury Discretion, They Have Not Elimi-

mated Racial Prejudice From The Minds Of

Jurers.

In 1976, this Court approved: new statutes that guided

the discretion of the jury so as to eliminate the arbitrary and

capricious manner in which death was being imposed. Gregg Wa

Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).

Since Gregg, many statistical studies have correlated

death sentences with the race of the victim and the race of the

offender. The lower federal courts have rejected these claims on

their merits, McCleskey vy. Kemp, 753 F.2d 877 (llth Cir. 1985)

(en banc); Shaw vy. Martin, 733 F.2d 304 (4th Cir. 1984); Sullivan

ve. Wainwright, 721 F.2d 316 (llth Cir. 1983); petition for stay

of execution denied, U.S. ____, 78 L.Ed.2d 210 (1983); Adams

ve. Wainwright, 709 F.2d 1443 (llth Cir. 1983), cert, denied, __

U.S. cu» 79 L.Ed.2d 203 (1984); Spinkellink v. Wainwright, 578

P.2d 582 (Sth Cir. 1978), cert, denied, 440 U.S. 976 (1979).

These decisions have been based in part upon doubts

about the sufficiency of the evidence to support a conclusion of

Gisparate impact, McCleskey. supra, at 896; Sullivan, supra, at

213, and in part upon a holding that a death-sentenced inmate

must show an actual intent to discriminate or “evidence of

disparate impact...so strong that that the only permissible

eens 1 is one of intentional discrimination.” Adams. supra,

at 1449; see McCleskey,. Supra, at 892.

In all of these cases, the courts have received evi-

dence of statistically significant disparities in the imposition

of the death sentence, showing that, for what ever reason,

blacks are more likely to receive the death penalty than whites,

and those who kill whites are more likely to receive the death

4

penalty than blacks.

4

In the proceedings thus far, Petitioner has introduced two

studies tending to show that the death penalty is being imposed

discriminatorily upon blacks, and in particular on blacks who

kill whites. At trial, Petitioner introduced a study by Bowers

and Pierce (Defendant's Exnibit 1) (App. 954-980); after having

been denied an evidentiary hearing on this issue, Petitioner

introduced as an exhibit to his Motion to Alter or Amend Judgment

the study by Gross and Mauro, Patterns of Death: An Analysis of

Racial ia Victimiza-

Disparities Capital Sentencing in Homicide

fion 15-32 (unpublished study) (October, 1983) (App. 377-433).

However, Petitioner's argument here is not that the

death penalty must be abolished because of the existence of

racial discrimination, but rather that states must recognize the

potential for racial discrimination, and must take reasonable

steps to prevent it from affecting the capital trial.

In 1972, Justice Powell, writing for himself, Chief

Justice Burger, Justice Blackmun, and Justice Rehnquist, wrote

that

-.-discriminatory application of the death

penalty in the past, admittedly indefens-

ible, is no justification for holding today

that capital punishment is invalid in all

cases in which sentences were handed out to

members of the class discriminated

yf against....

A final comment on the racial discrimination

problems seems appropriate. The possibility

of racial bias in the trial and sentencing

process has diminished in recent years. The

segregation of our society in decades past,

which contributed substantially to the

severity of punishment for inter-racial

crimes, is now no longer prevalent in this

country. Likewise, the days past when juries

do not represent the minority group elements

of the community. The assurance of fair

trials for all citizens is greater today than

at any previous time in our history. Because

standards of criminal justice have "evolved"

in a manner favorable to the accused,

discriminatory imposition of capital

punishment is far less likely today than in

the past.

408 U.S. at 450. Four members of the court were saying, in

essence, that procedural guarantees may be relied upon to prevent

racial prejudice from infecting a trial to the extent that it had

in years past.

Justice Powell was obviously correct in stating that

the level of segregation has declined in recent years, as blacks

and whites have broken down the barriers of segregation. This

Court's rulings in the area of school desegregation have,

themselves, probably done more than anything else to bring about

a change in the attitudes of prospective jurors.

However, no one can seriously contend that the desegre-

gation of our schools, or of our juries, has eliminated racial

prejudice from our society or from the minds of those who are

called to serve on our juries. Neither this Court's decision in

Purmap nor the statutes enacted in response abolished racism.

10

Had there been any doubt that racial prejudice con-

tinues to affect people's perceptions of the validity of the

death ‘penalty ina given case, those doubts should have been

dispelled by recent events in Virginia. On October 12, 1984,

Linwood Briley was executed in Richmond, Virginia, as hundreds of

whites stood outside the Virginia State Penitentiary waving Con-

federate flags and nooses, chanting "Burn, Briley, burn," and

"Fry, nigger, fry." The Richmond News Leader reported:

But race was an issue for some who came out

last night. Two women carried signs that

said "Kill the Negro." A white youth spiced

his screams of "Fry ‘em" with racial epithets

and obscenities.

"Prison Vigil: Street Divides Advocates, Opponents of Death

Penalty,” Richmond News Leader, October 13, 1984, at l, col. 1.

The Washington Post reported:

Ron Doggett, 23, a landscaper, waved a

Confederate flag over his head. "We want to

return to the days in Richmond when this flag

flew proudly,” he said.

"Sorrowful, satisfied Crowds Greet Briley Execution in Va.",

Washington Post, October 14, 1984, at Al, col.3, Al2, col.3. At

the execution of James Briley on April 18, 1985, the same crowd

gathered, wearing Nazi armbands and shouting "White power" and

"Sieg Heil.”

Recognizing that there are such people in Virginia, all

that Petitioner asks is that he be entitled to learn whether

those people have been called for jury duty when he goes to

trial.

The revision of death sentence statutes after Furman has

not ended race discrimination. The evidence is clear that the

same racially discriminatory application is occurring post-

Burman. Bowers & Pierce, “Arbitrariness and Discrimination under

Post-Furman Capital Statutes," 26 Crime and Delinquency 563

(1980); See, @sga, Bowers, "The Pervasiveness of Arbitrariness

and Discrimination under Post-Eurman Capital Statutes," 74 J.

Crim. L. & Criminology 1067 (1983); Gross & Mauro, Patterns of

Death: An Analysis of Racial Disparities in Capital Sentencing

1l

in Homicide Victimization 15-32 (unpublished study) (October,

1983) (introduced as an exhibit to Motion to Alter or Amend

Judgment, App. 377-433).

At trial, Petitioner introduced a study by Bowers and

Pierce (Defendant's Exhibit 1) (App. 954-980), showing the dis-

criminatory manner in which the death sentence was being imposed

in Georgia, Florida, Texas, Alabama and Ohio. In those five

states, the probability of receiving the death sentence for

homicide between the effective date of the various states’ post-

Furman statutes through December, 1977, was correlated with the

race of the victim and of the offender. For example, the death

sentence was imposed in 377 of 9,094 cases in which a white was

killed, or 4.15% of the cases. The offender received the death

sentence in\ 53 of 9,850 cases in which the death sentence was

imposed, or .54% of the cases. In short, if someone kills a

white, he is eight times more likely to receive the death

sentence than if he kills a black. Similar aggregate totals may

be computed for each of the offender/victim racial combinations:

Estimated Persons Probability

Number of Sentenced of a Death

Offenders to Death Sentence

Black kills White 1,131 165 14.59%

White kills White 7,963 212 2.66%

Total -- White Victim 9,094 377 4.15%

Black kills Black 9,451 51 54%

White kills Black 399 2 ~50%

Total -- Black Victim 9,850 53 54%

Total -- All Victims 18,944 430 2.31%

The numbers are similar if the class of cases is

narrowed somewhat to include only felony-type murders.

Estimated Persons Probability

Number of Sentenced of a Death

Offenders to Death Sentence

Black kills White 443 100 22.57%

White kills White 857 123 14.35%

Total -- White Victim 1,300 233 17.15%

Black kills Black 441 17 3.85%

White kills Black 50 2 4.00%

Total -- Black Victim 491 19 3.87%

Total -- All Victims 1,791 242 13.47%

12

This data reveals a very stronc likelihood that the

race of the offender and the race of the victim (and, in particu-

lar, the combination of those two variables) will have a very

large effect upon whether a particular defendant receives the

death sentence. This is true across the country, as the survey

data from Georgia, Florida, Texas, Alabama and Ohio shows.

Bowers & Pierce did not study Virginia death sentences.

However, Gross & Mauro did study the Virginia death sentences in

nineteen cases, as compared to 1,389 homicides. The results, in

rough statistical terms, show that one who kills a white is four

times more likely to receive the death sentence than one who

kills a black (2.3% to 0.5%). If a black kills a white, he has

an 8.2% chance of receiving the death penalty; if a white kills a

white, he has a 1.3% chance of receiving the death penalty; if a

black kills a black, he has a 0.6% chance of receiving a death

penalty; and no white has received the death penalty for killing

a black since Virginia's new statute was enacted in 1977.

Because the death penalty had been imposed in only 19

cases during the time period under study, Gross and Mauro were

not able to label their data for Virginia statistically

significant. However, Gross and Mauro found that Virginia's

data was consistent with the data from other states - an observa-

tion which is also consistent with the observation that

Virginians (despite their occasional protestations to the

contrary) are basically the same kind of people, with the same

kinds of prejudices, as other Americans. The fact that the data

for Virginia is not statistically significant because of the

small sample size is therefore not relevant - our claim is depen-

dent upon human nature, not a particular statute. The sample

size for all of Gross and Mauro's studies, as for all of Bowers

and Pierce's studies, is more than adequate to show the disparate

impact.

In any event, because we are not asking this Court to

invalidate the Virginia death penalty statute, but rather only to

5

James Briley's execution on April 18, 1985, marks the

first time in Virginia that anyone had been executed for murder

of a black.

13

recognize that ..ere are still people in thi. world who regard

the death penalty as more appropriate for blacks who kill whites

than for other combinations of offenders and victims, there is

nothing about this argument that statute-specific or state-

specific. There is nothing about the Virginia death penalty

statute, as opposed to the statutes of North Carolina, South

Carolina or any other state, which make it more or less likely

that racial prejudice will motivate a juror to return a verdict

of death. Nor can it seriously be suggested that the ethos of

the citizenry of Virginia is significantly different of that of

any other southern diate.”

All of the data, taken together, show clearly that

those who kill whites are far more likely to receive the death

penalty than those who kill blacks.

There are currently 27 men on Virginia's death row;

four have died while on death row (three by execution). Of those

31 men, 18 are black, one is Asian, one was Mexican and 1l are

white.

The statistics just mentioned are admittedly not con-

Clusive in Virginia to justify the drastic step of declaring the

Virginia system to be unconstitutional. However, the data clear-

ly indicate a tendency that courts must take active measures to

counter. Courts must be vigilant to potential racial influences

in atrial, and these influences must be eliminated wherever

possible.

All of the evidence indicates, in virtually every sam-

ple of any size, that the death penalty is imposed disproportion-

ately upon those who kill whites. Most analyses show that blacks

are more likely to receive the death penalty than whites. See

Gross & Mauro at 91-98. (App. 419-433.)

6

Or thet of most other states across the country. Racism

has long been a particular problem in the South, but is by no

means unique to the South. The data offered at trial from

Professors Bowers and Pierce (gee App. 954) shows that racially

discriminatory application was suggested in Ohio as well as in

four southern states.

14

II. THE TRIAL COURT SHOULD HAVE QUESTIONED PRO-

SPECTIVE JURORS CONCERNING RACIAL PREJUDICE.

This Court's decision in Gregg vy. Georgia, 428 U.S.

153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), together with the

other cases decided that day, may be interpreted as saying, in

essence, that the death penalty is permissible because, and only

because, the newly redrafted statutes effectively channel the

discretion of the jury. This Court assumed in Gregg that the

state trial and appellate courts would exercise stricter review

of the jury-imposed death sentences; that review would be more

searching than usual, and would be particularly attuned to

suggestions of arbitrariness or prejudice.

The extra solicitude shown in capital cases was

highlighted in Gardner vy. FElorida, 430 U.S. 349, 97 S.Ct. 1197,

51 L.Ed.2d 393 (1977), and Lockett vs Ohio, 438 U.S. 586, 604, 98

S.Ct. 2954, 57 L.Ed.2d 793 (1978):

‘The penalty of death is qualitively differ-

ent' from any other sentence. [Woodson Va

North Carolina, 428 U.S. 280, 305 (1976)].

We are satisfied that this qualitative dif-

ference between death and other penalties

calls for a greater degree of reliability

when the death sentence is imposed.

While the extra degree of reliability sought does not translate

into any difference in substantive standards, it implies that

courts will take greater procedural precautions. Where there is

a way to avoid prejudice, it should be taken. If the “extra

degree of reliability" means anything, it means that the courts

should bend over backwards to make sure that possible elements of

prejudice or discrimination are eliminated.

This Court has held that a defendant has a constitu-

tional right to have veniremen examined on racial prejudice when

there is some “special circumstance” about the trial that makes

it likely that racial attitudes will be relevant. In Ham We

South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973),

this Court reversed a conviction of a black civil rights worker

in South Carolina who had been charged with possession of mari-

juana. His defense was that he had been framed in retaliation

for his civil rights activities. He had asked that the jury be

15

examined on raciai attitudes, and that requesc was denied. The

Court unanimously agreed that yoir dire on racial prejudice was

constitutionally required in this case but rejected the notion

that voir dire should have been required on whether the jurors

were biases against people who wore beards. The Court obviously

did not regard the possibility of prejudice against those wearing

beards to be a matter of constitutional significance; the Court

referred to the history of racial discrimination and the protec-

tion given by the Fourteenth Amendment to blacks in particular

in drawing the distinction.

In Bistaino yv. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47

L.Ed.2d (1976), the Court held that voir dire on racial prejudice

was not constitutionally required, where the only factor that

seemed to call for such yoir dire was the fact that it involved a

black defendant charged with armed robbery and assault upon a

white security guard. The Court interpreted Ham as follows:

By its terms Ham did not announce a require-

ment of universal applicability. Rather, it

reflected an assessment of whether under all

of the circumstances presented there was a

constitutionally significant likelihood, ab-

sent questioning about racial prejudice, that

the jurors would not be as ‘indifferent as

[they stand] unsworne.'

424 U.S. at 596.

The last decision by this Court of relevance is

Bosales-Lopez vy. United States, 451 U.S. 182, 101 S.Ct. 1629, 68

L.Ed.2d 22 (1981), in which this Court held, as a matter of its

supervisory powers over federal courts, that

[fJederal trial courts must make such an

inguiry when requested by a defendant accused

of a violent crime where the defendant and

the victim are members of different racial or

ethnic groups.

451 U.S. at 192. The court rejected the notion that there was a

constitutional requirement for yoir dire on racial attitude in

that case, which involved a Mexican who was helping other

Mexicans to illegally enter the United States.

Only when there are more substantial indica-

tions of the likelihood of racial or ethnic

prejudice affecting the jurors in a particu-

lar case does the trial court's denial of a

defendant's request to examine the jurors’

ability to deal impartially with [racial

prejudice] amount to an unconstitutional

abuse of discretion.

16

451 U.S. at 190.

The question, therefore, is whether there is any

"special circumstance” that makes it likely that racial prejudice

will be an issue in this case.

The Pourth Circuit rejected this contention:

There must exist some special circumstance in

the facts surrounding a particular case

before such voir dire is constitutionally

required. We are of opinion that the nature

of the crime or punishment itself is not a

special circumstance. Nor is the fact that

the victim is white and the defendant black,

as Ristaino specifically so held. We are

also of opinion that the fact that a larger

percentage of white victims' assailants are

executed than are other races is not a

special circumstance. "There is no

constitutional presumption of juror bias for

Or against members of any particular racial

ethnic groups."

Turuer Ys. Bass, 753 F.2d 342, 345 (4th Cir. 1985) (citing

Rosales-Lopez, supra, 451 U.S. at 190.)

Judge Phillips noted in his concurrence that he agreed

with the ruling of the Fourth Circuit, though he would make clear

that particularized data relating specifically to jury prejudice

at the time and place of trial might well constitute grounds for

voir dire~on that issue.

A. Ristaino yw. Ross Should Not Be Applied In

dury Sentencing Cases,

Massachusetts, the state where Ristaino vy. Ross origi-

nated, is not a jury sentencing state. A Massachusetts jury

determines only guilt or innocence, Only a handful of states,

Virginia among them, retains jury sentencing in non-capital

cases; all of the states with death penalties provide for at

least a recommendation of sentence by a jury. In Virginia, a

jury's recommendation can only be reduced; it cannot be in-

creased.

Jurors perceive blacks and whites differently. In

their classic study, Kalven & Zeisel noted that jurors tend to be

less sympathetic to black defendants than to white defendants;

less sympathetic jurors are more likely to convict, and are more

likely to impose the death sentence. H. Kalven and H. Zeisel,

The American Jury 210 (1966). Jury sentencing trials necessari-

17

ly involve as. ig the jurors to act as the conscience of the

community in imposing punishment. They are not only applying

facts to issues of law in determining guilt; they are also, toa

certain extent, defining the law of punishment. When a jury is

faced with a range of punishment from one day to ten years in

jail, there are no strict legal standards governing their

decisions. Whether the jury recommends one day in jail or id

years in jail is a function of purely subjective impresisions of

whether the jurors like, respect, trust, excuse, emphathize with,

or take pity on a defendant. They are shaping very rough sub-

jective standards into a collective community standard -- the

conscience of the community. If that conscience reflects racial

octane” there is an unacceptably greater chance that the

black defendant will be more harshly treated.

The Supreme Court has noted, see Gregg vy. Georgia, 428

U.S. 151, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), that a sentencing

jury must weigh retribution, deterrence, and other matters of

social policy. These are proper concerns for a sentencing jury,

and are irrelevant to any other decision that any other jury

would be called upon to make. Ristaino vy. Ross should not be

applied to jury sentencing cases.

B. Ristaino yv. Ross Should Not Be Applied in

Capital Cases,

Petitioner has suggested above that a black defendant

accused of a violent crime against a white should be allowed to

voir dire the jurors on racial prejudice in any case in which the

jury can recommend sentence. That argument is admittedly based

upon abstractions of theory rather than statistics.

However, if this Court does not wish to go that far,

the intermediate is simply to extend the guarantee of a fair jury

to all those charge with capital murder.

This Court, in Rosales-Lopez, 451 U.S. at 190, held

that

an alleged criminal confrontation between 4

black assailant and a white victim...did not

create a need of "constitutional dimensions”

8

Of course, racial prejudice is no more permissible in a

juror merely because it is an attitude widely held in the

community.

18

to question the jury concerning racial

prejudice. There is no constitutional

presumption of juror bias for or against

members of any particular racial or ethnic

groups.

Prom the tone of this Court's opinion in Rosales-Lopez

v. United States, it appears likely that the defendant there made

no attempt to introduce evidence to establish the likelihood of

racial prejudice. In the absence of any evidence, and there

being no presumption of racial prejudice, there was no basis in

the record for any finding that the defendant was entitled to

such yoir dire.

Here, however, we are not asking the courts to indulge

in a “presumption" of the prejudice; we ask only that actual

evidence offered be considered. It appears from this Court's

Opinions in Rosales-Lopez and Ristaingo that no evidentiary

showing was made in support of “the presumption of juror bias."

We do not ask this Court to assume anything, or to presume any-

thing. We ask only that this Court look at the fact. We have

introduced evidence in support of our claim, evidence that is

credible, reliable, and unchallenged. No evidentiary hearing has

yet been held on this issue. This case is therefore not

governed by Ristaino and Rosales-Lopez.

Appellant prays this Court to fashion one of three

rules:

1. That voir dire on racial attitudes is always to be

granted in cases in which the jury sets sentence, upon proper

request from the defendant and where the defendant and the victim

were of different races; or

2. That voir dire on racial attitudes is always to be

granted in capital cases upon proper request from the defendant

where the defendant and the victim were of different races; . or

3. In this particular case, where a black has been

accused of killing a white in a small rural community, with a

trial to be held in a small rural community, and with enough

9

The Georgia Supreme Court apparently already regards this

as its constitutional obligation. See Henderson y. State, 251 Ga.

398, 306 S.E.2d 645 (1583), siting Ham, supra, and Reid v. State,

129 Ga. App. 657, 200 S.E.2d 454, 455 (1973).

19

passion involved in the case that one change of venue has already

been required, yoir dire on racial prejudice on timely motion

should have been permitted.

In either event, Appellant's conviction and sentence

must be reversed, and this case must be remanded for a new trial.

In a Capital case, in which the jury imposes the sen-

tence, the decision to impose the death sentence is intended to

be, and in fact becomes, an effort to gauge the communal sense of

retribution. A majority of the justices of this Court have

agreed that retribution is a valid penological purpose served by

the death penalty. See Furman vy. Georgia, 408 U.S. at 453

(Powell, J., dissenting) (joined by Burger, C.J., Blackmun,

Rehnquist, JJ.); Gregg vy. Georgia, 428 U.S. 153, 183, 96 S.Ct.

2909, 49 L.Ed.2d 859 (1976) (Stewart, Powell, Stevens, J.J.,

concurring).

Virginia's “vileness" criterion is expressly intended

to address the question of retribution. Whether the defendant's

conduct was “outrageously or wantonly vile, horrible or inhuman”

is a question that is intended to, and does in fact, focus the

jury's deliberations on the degree of horror and revulsion which

they feel about the crime and the defendant.

All across the South, blacks accused of crimes against

whites have known all too often the power of racially motivated

retribution. Within the legal system, this disproportionate

sense of retribution has led to a wide disparity in sentencing,

as jurors have valued white lives more than black alee Outside

the court system, blacks all across the south were often lynched

10

The statistics cited in Argument I, Supra, are

disturbing as indicators of prejudice, but they to a certain

extent obscure the rabid feelings held by some, Perhaps the

Classic statement of how racial prejudice affects the criminal

justice system is provided by Raymond Fosdick, a student of

southern police methods inthe early 1900's. One Southern

policeman told Fosdick that "if a nigger kills a white man,

that's murder. If a white man kills a nigger, that's justifiable

homicide. If a nigger kills a nigger, that's one less nigger."

C. Silberman, Criminal Violence, Criminal Justice 124 (1978).

20

upon a mere accusation of murder, rape, or — crimes of

varying degrees of severity against white victims.

The analogy to lynching is not mere rhetorical excess;

Justice Stewart suggested, in essence, that the death penalty,

imposed by government, was a substitute for lynching:

In part, capital punishment is an expression

of society's moral outrage in particularly

offensive conduct. This function may be

unappealing to many, but it is essential in

an ordered society that asks its citizens to

rely on legal processes rather than self-help

to vindicate their wrongs.

"The instinct for retribution is

part of the nature of man, and

channeling that instinct in the

administration of criminal justice

serves an important purpose in

promoting the stability of a

society governed by law. When

people believe that organized

society is unwilling cr unable to

impose upon criminal defenders the

punishment they ‘deserve,’ then

there are sown the seeds of anarchy

- of self-help, vigilante justice,

and lynch law."

Gregg. Supra, at 183, quoting Furman vy. Georgia, supra, at 308

(Stewart, J., concurring). The Virginia Supreme Court justified

the death penalty for attempted rape (it will be remembered that

only blacks have been executed in Virginia for attempted rape) by

using the same analysis:

The likelihood of the resort to lynch law,

unless there is a prompt conviction and a

severe penalty imposed, and thus a resultant

grave shock to the peace and dignity of the

Commonwealth, is well known to exist, almost,

if not quite equally, inthe case of an

attempted as of a consummated rape.

Hart vw. Commonwealth, 131 Va. 726, 747, 109 S.E. 582 (1921).

In the normal criminal trial, in which the judge sets

the sentence, the jury has no cause to address itself specific-

ally to the issue of retribution. In Bistaine vy. Ross, the jury

was only making a finding of guilt; they were not imposing sen-

tence. They were asked to apply the law to the facts; their job

ll

Of 4,733 lynchings recorded in the United States between

1882 and 1968, 72.7% of the lynchings were of blacks. In

Virginia, 83 of 100 lynching victims were black. R. Zangrando,

The NAACP Crusade Against Lynching. 1909-1950 5 (1980). As

Zangrando notes, the statistics do not include “legal lynchings”

in which the trial was a sham and a mere prelude to the foregone

conclusion of execution. See Powell y. Alabama, 287 U.S. 45

(1932).

21

did not call for expressing retribution or declaring social or

penological policy.

The jury is called upon in capital trials to make two

essentially unreviewable and subjective judgments. First, the

jury is asked to determine whether the “vileness" criterion is

met, a determination not susceptible of precision. Second, even

if the jury decides that either the "“vileness" or the “future

dangerousness”" criteria has been met, the jury must then decide

whether to impose the death sentence. In Virginia, the jury is

given no guidance as to how it should weigh aggravating circum-

stances, mitigating circumstances, and simple mercy.

This Court sanctioned the necessity of turning a jury

loose in a case in which an aggravating circumstance has been

found; this Court held in Zant vy. Stephens, U.S. U, 77

L.Ed.2d 235 (1983), that unguided discretion by a jury in cases

that reach the top layer of the conceptual pyramid implicates no

constitutional rights. With the candid acknowledgement that

courts can only control what cases reach the top layer, without

reviewing the decision-making within that top layer, this Court

has recognized that death penalty juries are ultimately unre-

strained in their weighing of retribution and other emotional

factors. It is this ultimate weighing that results ina large

number of blacks being given the death sentence. The courts, at

trial and on appeal, can review every decision but that ultimate

decision; courts can reverse for prejudicial error at every step

but the last.

{t is precisely this inability to know after verdict

whether the verdict was the product of prejudice that makes it 80

imperative that capital juries be screened before on. This

Court has called for a “greater degree of reliability” in capital

cases because the punishment of death is unique in its finality.

12

The jurors were asked whether they knew “of any reason

whatsoever why they could not try the case fairly and

impartially"; but this cannot reasonably be argued to have been

sufficient to ferret out prejudice resulting from racial

prejudice. Since at the time the questions were asked the jurors

had no idea of the race of Jack Smith, the general question would

obviously be ineffective to prod the jury into asking themselves

whether the race of the victim and the race of the offender would

affect their judgment.

22

Lockett ys Qhio, 438 U.S. 586, 604-605, 98 S.Ct. 2954, 57 L.Ed.2d

793 (1978). If the “greater degree of reliabili

ty" means

anything, it means that easy steps that can be taken to eliminate

racial prejudice should be taken, particularly where counsel was

sufficiently concerned about the possibility to request the voir

13

III. APPELLANT WAS DENIED HIS RIGHT TO A

PAIR AND IMPARTIAL JURY, AS GUARANTEED

BY THE SIXTH AND FOURTEENTH AMENDMENTS

OF THE UNITED STATES CONSTITUTION,

BECAUSE THE JURY WAS “DEATH-QUALIFIED,"

RESULTING IN A VENIRE BIASED IN FAVOR

OF THE PROSECUTION.

The process of “death qualification" was sanctioned by

the United States Supreme Court in Witherspoon Y. Illinois, 391

U.S. 510,

88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

However,

Witherspoon did not purport to dispose of all objections to death

qualificat

391 U.S. a

ion.

The data adduced by the Petitioner, however,

are too tentative and fragmentary to

establish that jurors not opposed to the

death penalty tend to favor the prosecution

in the determination of guilt. We simply

cannot conclude, either on the basis of the

record now before us or as a matter of

judicial notice, that the exclusion of jurors

opposed to capital punishment results in an

unrepresentative jury on the issue of guilt

or substantially increases the risk of

conviction. In light of the presently

available information, we are not prepared to

announce a per se constitutional rule

reguiring reversal of every conviction

returned by a jury selected as this one was.

t 517-518; see also id. at n. ll.

Accordingly, the issue of “prosecution

proneness”

remains open. This issue has recently been litigated in

Grigsby vy. Mabry, _ F.2d ____ (8th Cir. 1985) (en banc) aff'g.

569 F. Supp 1273 (E.D. Ark. 1983), where the Eighth Circuit held

that deat

h qualification does result in a jury panel

that is

biased in favor of the prosecution on the issue of guilt, as well

as sentenc

13

This Court has recognized that counsel's contemporaneous

assessment of the need for a particular kind of questioning is

relevant to an evaluation of the adequacy of a voir °

Wainwright vw. Witt, _._ U.S. __, 83 L.Ed.2d 841, 858 (1985).

23

The Fourth Circuit has concluded to the contrary.

Turner vs. Bass, 753 F.2d 342, 347 (1985), Keeten vy. Garrison, 742

F.2d 129 (4th Cir. 1984). In Keeten, the Fourth Circuit had

reversed the district court finding that death qualification

results in a guilt-prone jury, and the reversal was accomplished

with virtually no discussion of the voluminous facts found by the

United States District Court for the Western District of North

Carolina. When Petitioner was in the District Court, Petitioner

asked that he be permitted to prove his claim by presenting the

record from Keeten vy. Garrison in the District Court, and

supplementing it with similar studies correlating the data to the

Virginia experience. The court denied all requests for an

evidentiary hearing.

At this juncture, Petitioner is in .he posture of

riding on the back of Grigsby vy. Mabry. If this Court grants

certiorari to review the Eighth Circuit's ep banc opinion in

Grigsby vy. Mabry (on the assumption that the state of Arkansas

intends to file a Petition for Writ of Certiorari), then Peti-

tioner would simply ask this Court to hold his Petition for

consideration at the same time as consideration is given to the

Petition in Grigsby vy. Mabry. Th issue presented is the same,

and the issue is surely going to be fully and adequately pre-

sented, with a full record, in that case.

Accordingly, Petitioner would ask that this Court sim-

ply hold his Petition pending disposition of the Petition that is

sure to come from the State of Arkansas in Grigsby vy. Mabry.

CONCLUSION

This case is coming to this Court at almost exactly the

same time as two other major death penalty cases, both of which

involve factual records that are important to Petitioner's

Claims. Both of the claims that Petitioner has asserted in this

Petitioner have as their predicate the facts that make up the

record in these other cases. The first such case is McCleskey y.

Zant, 753 F.2d 877 (llth Cir. 1985) (en banc), decided January

29, 1985. In McCleskey, the death-sentenced inmates offered

extensive statistical evidence to establish the disparate impact

24

of the death sentence, in the hope that the federal courts would

rule Georgia's death penalty statutes unconstitutional.

As noted above, Petitioner is not here arguing that the

Virginia death penalty statute's disparate impact is sufficient

to rule out all possibilities other than racial discrimination,

and therefore does not argue that the Virginia death penalty

Statute must be declared to be unconstitutional; rather, Peti-

tioner seeks only to have the court recognize that race may, in

“mid-level aggravation" cases, affect the decision to impose the

Geath sentence. McCleskey, supra, at o87. Such a racial

influence should be a subject for yoir dire. Turner, therefore,

does not go as far as the petitioners in McCleskey y,. Zant,

though Turner relies on much the same data base.

The second case is Grigsby vy. Mabry, _ F.2d ___s (8th

Cir. 1985) (en banc), decided January 31, 1985, presenting the

Geath-qualification issue. If this Court is to review the Eighth

Circuit's ruling in Grigsby vy. Mabry, then this Court should

consider the arguments and facts advanced on behalf of the death-

sentence inmates in that case, and apply them in this case as

well. Turner is very frankly riding on the back of the efforts

of the habeas petitioners inmates in Grigsby vy. Mabry, and there-

fore requests that his case not be decided adversely to him

unless and until a disposition has been made of the Petition for

Writ of Cectiorari surely being filed by the state of Arkansas.

Petitioner Willie Lloyd Turner prays this Court to

grant his Writ of Certiorari, and to reverse his conviction and

death sentence.

14

According to the statistical studies done by Professors

Baldus ana Woodworth:

[T]he results showed a 6% racial effect sys-

temwide for white victim, black defendant

cases with an increase to 20 & in the mid-

range of cases.

McCleskey, supra, at 887.

25

WILLIE LLOYD TURNER

By counsel

fo / £4

J., Lloyd Snook, III

Paxson, Smith, Gilliam & Scott, P.C.

418 E. Water Street

P.O. Box 2737

Charlottesville, VA 22902

CERTIFICATE

I J. Lloyd Snook, III, a member of the bar of this

Court, do hereby certify that I sent one copy of this Petition

for Writ of Babeee-Gerpus to this Court on April 24, 1985, and

that I sent another copy of this Petition to Robert H. Anderson,

III, Assistant Attorney General, 101 N. Eighth St., - Richmond, —

Virginia 2321S.

/ ’

Lee irr “2

J. Lloyd Snook, III

|

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| COMMONWEALTH of V rginia ' : ‘

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342

4,600 pounds of marijuana. This sentence

was within the limits set by Congress

After a consideration of all of the appel

lant’s arguments

court is affirmed

AFFIRMEI

the decision of the trial!

Willie Lioyd TURNER, Appellant,

~" ,

Gary BASS, Superintendent, Appellee.

No. 84-4004

nited States Court of Appeais

Fourth reuit

Argued Uct. 2, 1984

i Jan. 25, 1985

A pethor was filed seeking a wnt of

habeas The United States District

y ryinia

Jenied the

tlaxen The Court

orpus

Court for the Eastern District of

J Me Aerie

hn A

huef Judge

peubon, and appeal was

Widener

Appeais

that

Circuit Judge, heid

vor dire OM Fraciai prejudice was

not constituuonalliy mandated wm the pet

Woner § Capita! Murder prosecuuon a) we

State mia: court s determination that a jur

r was absolutely opposed Ww the death

penalty was supported by the evidence ;

ne petrooners unsel’s perfurmance

,

' andiiny © poycr r ef « during We

7 a “4 ade ihe Ulal Was reason

able under prevailing professional norms

anc (4) Whe use of Whe vileness critenon as

. has been limited by the Virginia Supreme

-

Ourt was or

Affirmed

James Dickson Ph

concurred specially with opimn«

753 FEDERAL REPORTER, 24 SERIES

1. Jury 13116) "

Defendant's constitutional right wi®

tried by impartial jury does not entitle

fendant to examine jurors on voir,

about every matter that may prejudices : -

or against defendant U5S.C.A. Fiabeas Corpus

Amends. 6, 14 D

y, State trial

conciudec

in toto, th

on of deat

tance. 25

trict court

tuary hearin,

8 claim that

2. Jury €131(6)

Where

~~

circumstances |

specia.

criminal defendant may have consututiog =m

mght to have veniremen questioned oa - wr

USCA. § 2

cial prejucice. U.S.(

A. Const. Amendat

14 a6

3. Jury €131(6) > ,

When habeas

Fact that black petitioner was ch

ch, if proved, w

with capita! murder was not in and of

ral court can

speciai circumstance which would grve

n US.C

voner constitutional mght to have . =

men questioned on racial prejudice 1 Habeas Corpu+

A. Const Amends. 6, 14 Evidenuary hea

> ~

‘ . . DU

proceeding

@ petitioner estai

ted critena

L. Habeas Corpus

4. Jury © 131(6)

Fact that black petitioner was

with capita! murder of white vicum was “ _

sufficent special circumstance to give pr

noner consttutiona!l mght wo have m-~ No hearing s

men questioned on racial prejudice. VU. pes petition if fact

U.A. Const Amends. 6, 14 assumed lo be

5. Jury 13116) $ Sapport a claim

State court, in prosecution of bisa 512 Criminal Law

petioner for capital murder of white e+; In capital murd

um, did not commit consttutional ms attorney's acts

refusing to ask prospective jurors whet ; 0 tesumon)y

fact that victim was white and petitic e reasonable ur

was black would prejudice them sional norms and

petitioner or affect their ability to res ffective assistar

fair and impartial verdict based solely af me Const Amend 6

evidence S.C._A. Const Amends. 6 14 12. Homicide 35.

6. Jury 108 : -s In state capits

State court's determination that -” * ‘ample evidence

me finding dangerous:

‘wating factor US

4; Va.Code, § 19

spective juror in capita! murder prosecuua | /

the death penab * >

surike jurmr >

supported by the record ‘

wus

4dsOlulely opposed i

y suDpOrt Of Its decwion k

for cause was Ze ~ 14. Homicide 3

7. Jury e108 ad . Vileness criter

. 2 r statute wi

Even if Court of Appeals, in renewing : ~ awe _

¢ f netitinn far hab 3 t require not or

jenia f petitx r habeas corpus, Was a

required to make de m review of pres -°" 1. Turner was ind

spe e jurors quaification to serve @ Virginia. A mor

TURNER v. BASS 343

Cite as 753 F.2d 442 (1985)

tonly vile, horrible

also that conduct

or inhuman conduct, but

involved either torture,

i

Sou, ory, state trial judge could reasonably

ight to be ng > have concluded, considering jurors re

entitle 4 ponse: in toto, that he could not consider aggravated battery of vicum or perpetra

i sosition of death penalty in the proper tors depravity of mind, was satisfied

d been convicted prevr

where peuuoner ha

voir —

: , - 9 cc 979° \

ejudice ju — 28 U.S.C.A § 2254(d) /

To . . yusly us )

-A. Const. <i K.4 Habeas Corpus 59 ary 0 oa ) maiming, — unlaw

9s ae ul wounding, malicious woundin ana sec

ei, District courts determination that no ' B . 5° g

' ; onddegree murder four offenses occur

gvidentiary hearing wa required on peu —

, ; ¢ ring while he was © prison. U.S. A

ner’s claim that he received ineffecuve .

Const.Amends. 8, 14 Va.Code, § 19.2-204

nees exist.ai s

‘assistance of counse! during penalty pnase

7 4, subd. c

»nstitutional

ioned on Fi’ e. capital murder prosecudor was proper

_Amends. 6 ~ 4 po 2 .US.C.A § 2254id); US.C.A. Const 15. Homicide 311

>. amend. 6 In state capital murder prosecution, it

was not necessary instruct jury on each

ircumstances at sen

US.C.A. Const

aa 9, Habeas Corpus 59

term in aggravaung ©

tencing stage of tral. Us

- eee When habeas peuioner presents facts

was charged ipa ws?)

and of itself mg which, if proves would enutle him to relief : ;

ald give peti Fumemik. federal court can receive that evidence at Amends. 8, 14; Va-Code § 19.2-264.4,

ae me Tee bearing. 28 USCA § 2254(d) =

sjudice. US iieow 16. Habeas Corpus 59 16. Criminal Law €°863(1)

federal habeas In sentencing phase of state capital

uuioner was not en

murder prosecution, pe

Pye Evidentiary hearing on

titled, in response to jury's request ip

“J ae corpus proceeding © required only if habe

delib

F iris petitioner establishes one or more of

r was charged 5 se “specified criteria. 2 US.C.A. § 2254(d) erations a3 what life impmsonment en

ricum was not 7am : tafled, to instruction on subject of parole

re to give pets iL Hebens Corpus ae 1).S.C.A. Const.Amends. 5, 14

> have venire: = No hearing 6 required on habeas cor-

rejudice. U petiuon if facts alleged by peutoner

- pane assumed to be true are insufficient to J. Lioyd Snook, Ill, Charlottesville Va

i fe support claim. 28 US.C.A 2254(d). (Paxson, Smith, Gilliam & Scott, Charlottes

ation of black Pit Criminal Law @641.13(2) ville, Va., on brief), for appetiant

: Robert H. Anderson, Ill, Asst Atty

(Gerald L. Bahies

Loe” In capital murder prosecution, pevuor

pers attorney's acuons with respect to psy

y offered im mitigavon

Gen., Richmond, Va

r of white vic

ational error ing

Atty. Gen. of Va,R

ichmond, Va., on bnef)

jurors whether: m&echiatric vestimon

: and petitioner , 4 “was reasonable under prevailing profes for appeliee

e them ag m. > siona) norms and, thus, did not amount to 7

bility to render? ime. ineffective assistance of counsel. U.S.C.A Sos WIDENER, HALL and PHIL

based solely om Se Const. Amend. 6 LIPS, Cireuit Judges

Amends. 6, 14 —— "

2 4 i Homicide 354 WIDENER, Circuit Juage

J = ts ra nits } sec on ‘

: In state capital murder prosecutor tn December 1979 Willie Loyd Turner

supported jury $ veraict

uPP albeit 7 was tried by a jury Northampton

nation that pro : ample evidence

urder prosecutoa = , . , finding dangerousness criter pum aggra vy Virginia and found guilty of capital

the death penak 37 m vanng factor. U.5- A Const.Amends. 5 nies Pursuant to Va.Code 6 192

yn to strike juror - . ete Va.Code, 3 2-264.4, subd. ¢ 964.4, the jury sentenced Turner to Geat

i by the record ¢ = 14. Homicide e3yi Turner unsuccessfully appealed his convic

“ a Vileness criterion of Virginia’s capita! tion and sentence the Virginia Supreme

> -gurder statute which has Deer nstrued srt. Turner? Commonweallh 221 Va

r wal ' 273 S.E.2a J L9sv ine ite

als, in renewing

: to require not ony yutrageous!y

beas corpus, 78s “aa,

review of prosam + - L Turner was incick 4 in Southampton ‘ yunty granted and |

suon Ww serve oD . = Virgina A nm

r a change of *

.

Northampton Coun

*

344

States Supreme Court denied Turner's peti-

ton for a writ of certiorari. 45] U.S. 1011,

101 S.Ct. 2347, 68 L.Ed.2d 863 (1981)

Turner then filed a petition for a writ of

habeas corpus in the circuit court of South-

ampton County, Virginia. That petition

was denied. The Virginia Supreme Court

affirmed that denial. The United States

Supreme Court once again denied Turner's

petition for a writ of certiorari ——~ US

——, 103 S.Ct 2465, 77 LEd2d 1341

(1983).

Turner next sought relief in the federa!

courts. On July 27, 1983, he filed a pet-

ton for a writ of habeas corpus in the

United States District Court for the East-

ern District of Virginis, raising numerous

consUtutional issues. That petition was

amended on March 20, 1984. The petition

was initially denied on May 23, 1984, and a

motion to alter or amend that Judgment

was denied July 19, 1984 The district

court issued a certificate of probable cause.

thus allowing Turner to appeal the denia!

of habeas corpus relief. This denis] serves

as the basis of the present appeal’ We

affirm.

A brief summary of the facts leading to

Turner's conviction are necessary for an

understanding of the issues presented. On

July 12, 1978, Turner entered Smith Jewel-

ers in Franklin, Virginia, armed with a

sawed-off shotgun, and demanded that the

store owner W. Jack Smith give him money

and jewelry. A store employee and a cus-

tomer were also present in the store at the

ume. Another customer entered during

the robbery. Smith set off the store's si-

‘ent alarm, and momentarily police officer

A.D. Bain arrived on the scene and in-

quired about the activation of the alarm

Bain’s pistol was taken by Turner. Turner

2 Turner has exhausted his state remedies as

required by Rose v. Lundy, 455 US. $09 102

S.Ct. 1198, 71 L.Ed.2d 379 (1982)

3. Turner's execution date was set for September

19, 1984. On August 28, 1984. this court entered

@ Slay pending further order of this court

4. Turner's counse/ requested that the jurors be

asked the following

753 FEDERAL REPORTER, 2d SERIES

then told Smith to turn the alarm offaae

keep filling bags with jewelry. S

or |

Turner soon became concerned that as

police officers would respond to the alaru

He then fired a pistol shot into the t 7

the store. Officer Bain tried to ‘ass -

Turner that no other policemen would |

answering the alarm. Without any-wa

ing and with no provocation, Turner thi

shot store owner, Smith, in the head. . The

shot in the head did not kill Smi

passed through his scalp, but

not through the skull. It caused b

on the coverings of the brain and b

the brain's surface. Smith slumped f

then fell helplessly to the floor. Of “

Bain pleaded with Turner not to shoot *

one else, and offered to take Turner-am

where that he wanted to go. Turner the

stated that he was “going to kill

{Smith} for snitechmg on {him].” He tha

shot Smith, who was then still living,”

less and “gurgling,” twice in the ¢

One of these shots was in the lungs, ‘¢

the heart Officer Bain was then ab

disarm and subdue Turner. Smith died ys

the wounds in his chest.

+

>

ae

I vl

We turn now to the several issues rEg

on appeal. First, Turner contends that &

district court erred in upholding the. a

court’s refusal to permit examination of fi

jury on vow dire concerning racial 1

dice. He contends that because he is b

and the murder victim was white thé &

court should have questioned jurors .

tie existence of racial prejudice, and tm

his constitutional rights to a fair trial om

violated by the court's refusal.‘ ly

uaa ‘

(1,2) A criminal defendant such ut >

defendant here has a constitutional rei

shou!

wm black aga,

SRR @ holding.

The defendant, Willie Lloyd Turner, isa

ber of the Negro race. The victim. W. 4

t was @ white Caucasian. Will ¢

facts prejudice you against Willie Lioyd

er or aifect your ability to render a fair ad

impartial verdict based solely on the

Jence a vv

~ > a

eo

.

,

‘

~

,

a

a

, >.

ON

bie =. .

» 687, 96 S.

too broad

cific situa

“nextrica

the tria!

that the

white and

Ikely to

TURNER ¥. BASS -

345

Cite as 753 F 2d 342 (1985)

the Sixth and Fourteenth Amend

ts to ow Constitution to be tried by an

." Duncan v. Louisiana, 391

fgUS. 145, 88 S.Ct 1444, 20 LEd.2d 491

’ This does not entitle the defendant,

. to examine jurors on voir dire

every matter that may prejudice a

Serer against the defendant. But, where

Tepecia) circumstances exist, a criminal de

Rfendant may have a constitutional right to

* veniremen questioned on racia] preju-

ice: Ristaino v. Ross, 424 U.S. 589, 96

BCu 31017, 47 LEd.2¢ 258 (1976).

id b : Supreme Court found such special

Wercumstances in Ham v. South Carolina,

Sao US. 524, 93 S.Ct 848, 35 LEd2d 46

shoot ar 1 Ham, a black man, was convicted

a a South Carolina court of possession of

sag MET) His defense at trial was that

' us ie was framed by law enforcement offi-

= because of his civil nghts activites.

was known throughout the communr

— tr for his civil rights work. The trial court

1gs, one "4 d to question the jurors about possi

en able ble ‘racial prejudice against Ham. The

ith died of dy found a due process violation in the

court's failure to interrogate the jur-

, Ler on the issue of racial bias

. Mt Three years after its decision in Ham,

rd ‘a7 |Sapreme Court refused to create a per

is that th es Srule requiring voir dire on racial preju-

g the trial! im any case where the defendant is ofa

nal 4 fferent race from the victim. Aistaimo v

cial supra. Ross, a black male, was tned

he is b tim: a Massachusetts court for armed rob-

, assault and battery with a dangerous

e the 0 n and assault and battery with the

— sistent to commit murder. The victim was a

be wh security guard. The Court rejected

the court of appeals’ decision that such vow

should be required because the case

uch aa thet . sd a violent crime committed by a

ional righ B black against a white security guard. Such

a = s holding, the Court said, interpreted Ham

o, 55e5 7 to broadly. Ham represented a fact spe-

*

im, W Jack? > : ' :

will a Ba _ afc situation in which racia! issues were

Lioyd Sume . » » “nextricably bound up with the conduct of

or a fair and Me the trial.” Aistaino, supra, 424 U.S. at

oe 697,96 S.Ct. at 1021. The Court concluded

~ that the mere fact that the victim was

+ white and the defendant was black was jess

Lc Mkely to distort the trial than were the

on the wt 4

~

special factors present in Ham. “The cir

cumstances did not suggest a significant

likelihood that racial prejudice might infect

Ross’ trial.” 424 U.S. at 598, 96 S.Ct at

1022. Thus, voir dire on racial prejudice

was not constitutionally mandated

Turner contends that his case involves

special circumstances requiring voir dire on

racial prejudice because he is charged with

capital murder aud that in and of itself is a

special circumstance. He also contends

that defendants who murcer whites are

more likely to be sentenced to death and

therefore a special circumstance is created

by this likelihood.

(3,4) We reject both contentions.

There must exist some special circum-

stance in the facts surrounding a particular

case before such voir dire is constitutional-

ly required. We are of opinion that the

nature of the crime or punishment itself is

not a special circumstance. Nor is the fact

that the victim is white and the defendant

black, as Ristaino specifically so held. We

are also of opinion that the fact that s

larger percentage of white victims’ assail-

ants are executed than are other races is

not a special circumstance. “There is no

constitutiona! presumption of juror bias for

or against members of any parucular racial

or ethnic groups.” Rosales-Lopez, infra,

451 U.S. at 190, 101 S.Ce at 1635.

An even more recent pronouncement

from the Supreme Court involving a Mex

can defendant confirms that “[ojnly when

there are more substantia! indications (than

a victim of one race and the defendant of

another or a defendant of any particular

race] of the likelihood of racial or ethnic

prejudice affecting the jurors in a particu:

lar case does the trial court’s denial of a

defendant's request to examine the jurors

ability to deal impartially with the subject

amount to an unconstitutional abuse of dis

cretion.” Rosales-Lopez v. United States,

451 U.S. 182, 190, 101 S.Ct. 1629, 1635, 68

L.Ed.2d 22 (1981)

{5} The broad inquiry in each case must

be whether under all of the circum

stances presented there was a consututon-

346

ally significant likelihood that, absent ques-

tioning about racial prejudice, the jurors

would not be ‘indifferent as [they stand]

unsworne.’" Ristaino, 424 U.S. at p. 596,

96 S.Ct at p. 1021. An examination of ali

of the circumstances presented here does

not indicate there was a constitutionally

significant likelihood that absent question-

ing about racial prejudice the jurors would

not be indifferent as they stood unsworn

. As Turner concedes, there is nothing spe

: cial in the facta surrounding this case to

, suggest racial antagonism. That being

true, the trial court did not commit consti-

tutional error by refusing to ask the jurors

the question copied in footnote 4 in the

margin

I]

Turner next contends that the exclusion

of juror Samuel Cypress for cause violated

his Sixth and Fourteenth Amendment

rights. Cypress was struck for cause over

defense objections after the following collo-

quy:

Now, Mr. Cypress, do you have any reli-

gious or conscientious scruples or objec-

tions against the imposition of the death

penalty’

Mr. Cypress: Well, really, I don’t go for

the death penalty

The Court: Can you say yes or no to that

question?

Mr. Cypress: No.

The Court: Or yes?

Mr. Cypress: Do I have any objection’

The Court: Yes

Mr. Cypress: Yes

The Court: Is your objection to the death

penalty absolute’

Mr. Cypress: Well, I would say yes

The Court: Could you in a proper case

impose the death penalty”

Mr. Cypress: Didn't hear

The Court: Could you in a proper case

impose the death penalty’

5S. The trial court's finding was specifically af

firmed by the Virginia Supreme Court. 273

753 FEDERAL REPORTER, 2d SERIES

Mr. Cypress: Well, I can’t see where it erence” sho

helps any eS the trial co

Turner argues that Cypress’ responses “BY juror in que

do not show that he was irrevocably com- ee 2 x Spite some x

mitted. before trial to vote against the -@ - here. “Juror

death penalty. In particular, Turner chal- = 4 variabiy to e

lenges the Virginia court's interpretation of > 7 even consist

Cypress’ response that he did not see that “3@. stands this, a

it helped any when quered about whether t . judge who |

he could impose the death penalty "¥ competency

In Witherspoon v. /llinow, 391 U.S. 510, am-> 104 S.Ct at 2

88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and <pm. The quest:

again in Adams v. Teras, 448 U.S. 38, 100 *;; is whether

J

S.Ct. 2521, 65 L.Ed.2d 581 (1980), the Court *

held that the State may strike for cause

jurors whose opposition to the death penai-

’ record for th:

< Cypress’ opp

=“ was absolut.

ty would prevent them from considering all : supports that

the penalties provided by state law. That that he opn

opposition must be such as to lead the jur-r Zye-- pensity. Fo

to either ignore the law or violate his oath AR Cypress said :

as.a juror. The fact that a juror may be J > lute. While

opposed to the death penalty does not pro > : judge’s last qu

vide grounds to strike him for cause as #@%™ yous such an

long as he could consider imposition of the & Fy the trial judg

death penalty in an appropriate case. Wi. such question

[6] In this case, the state trial judge, @—ye: appeal, to spe:

after questioning Cypress and observing ™- S.Ct at 2892

his demeanor, determined that cause exist- AME" proper questic

ed to strike him from the jury panel. The <aam and Adama. }

district court refused to disturb the trial F observe Gypre

judge’s findings, and we agree SA Re during voir dir

Under 28 U.S.C. § 2254(d), factual find- 3 decision that |

ings such as those of a state trial court **{] death penalty

are presumed to be correct in a habeas } {7] Wedo:

corpus action in federal court unless, rison, 742 F 2

among other things not applicable here, >

those determinations are not fairly sup

»

require us to

Cypress’ qualif

ported by the record. That standard ap-# as Turner arg

plies to our consideration of Cypress’ quali-« Consistent witt

fication to serve on the jury. In Patton v.« guendo Turner

et am On 104 S.Ct. 2885, 81 { our holding w:

L.Ed.2d 847 (1984) a case involving the judge could ha

‘

partiality of a juror, much the same ques-” Be

: ; ter considering

tion as that presented here, the Court de *

that he could n:

cided that, on habeas corpus review, when death penalty

the question was whether or not a juror and we think }

could set aside an opinion, the presumption the record

of § 2254(d) applied, and that “special def-

S.E.2d at p. 43

As Turner nx

recent opinion

“erence” should be given to the finding of

the trial court. The Court held that the

juror in question was properly seated de-

cably com- ° - spite some ambiguous answers, much as

gainst the ..geee. bere. “Jurors thus cannot be expected in-

urner chal “Sams. variably to express themselves carefully or

pretation of = y even consistently. Every trial judge under-

ot see that ~2am * stands this, and under our system it is that

ut whether 4 ‘ judge who is best situated to determine

_ ieee .competency to serve impartially.” at ——,

47 4

ewhereit ¢

a)

responses ~“T

ity , (aa -

91 US. 510, ns 104 S.Ct. at 2893

(1968), and ! ~ >. The question we must address therefore

U.S. 38, 100 is whether there is fair support in the

)), the Court * ey ‘record for the trial court’s conclusion that

e for cause ra! Cypress’ opposition to the death penalty

death penal- .was absolute. We hold that the record

nsidering all . = supports that conclusion. Cypress stated

e law. That ~ 8: *.:that he opposed imposition of the death

; te. penalty. Following further questioning,

late his oath ~ 2 Cypress said that this opposition was abso

While his response to the tnal

ead the juror

uror may be Rd Le. ‘lute.

does not pro... ame .: judge’s last question may have been ambig

for cause a8 “IRE: uous, such ambiguity has been resolved by

osition of the es the trial judge whose “ resolution of

te case. . such questions is entitled, even on direct

appeal, to special deference.” at ——, 104

=> S.Ct. at 2892. The trial judge asked the

o z ‘proper questions required by Witherspoon

7a and Adams. He was in the best position to

"*&.- observe Cypress’ demeanor and intonation

3: during voir dire. We refuse to disturb his

~"-. decision that Cypress’ opposition to the

~« death penalty was absolute

e trial judge,

nd observing

it cause exist

‘+y panel The

turb the trial

oe

), factual find-

te trial court * t ;

tina habeas Dim {7} We do not construe Keeten v. Gar-

court - unless, YJ * vison, 742 F.2d 129 (4th Cir., 1984), to

pplicable here, 5 ‘> require us to make a de novo review of

ot fairly sup -- %? Cypress’ qualification to serve on the jury,

it standard ap *- as Turner argues. Rather, we think it is

Cypress’ quali 3 ‘= consistent with Patton. But, assuming ar-

In Paiton v. “aif®’*eguendo Turner's construction of Keeten,

S.Ct. 2885, 81 9“ our bolding would be the same. The trial

e involving the /—* judge could have reasonably concluded, af

the same ques- ter considering Cypress’ responses in toto

e, the Court de *, that he could not consider imposition of the

is review, when -“@r- - death penalty in the proper circumstance,

and we think his finding is supported by

the record

or not a juror ~- t,

the presumption

hat “special det

Ill

As Turner notes in his brief, this court's

recent opinion in Aeeten precludes his ar

TURNER +. BASS

Cite as 753 F.2d 342 (1985) f

Me

347

gument that his cesetitetional right to an

impartial jury was weed because a death

qualified jury is claimed to be biased in

favor of the prosecution. KAeeten was re

cently reaffirmed by this court in Briley v

Booker, (1984)

IV a

{8}. Turner claims error in the district

court’s denial of an evidentary hearing on

his claim that he was denied effective as-

sistance of counsel at the penalty phase of ne

his trial He does not claim ineffective o..

assistance at the stage of the trial ascer- ‘

taining guilt or innocence. The district

court found that Turner’s trial was not a

case in which counse! had failed to present

any evidence, or only evidence of marginal

value, and concluded that Turner’s attor-

neys had presented evidence of his psycho

logical history and menta! state at the ime

of the murder, which are matters in mitiga-

tion specifically included in Virginia Code er?

§ 19.2-264.4. It concluded that counsel ,

had complied with the standard set out in

Martullo v. Maryland, 56i F.2d 540 (4th 3

Cir.1977), cert. den. 435 U.S. 1011, 98 S.Ct a

1885, 56 LEd.2d 394 (1978), and that no ri

evidentiary hearing was required) We

agree

{911} When a habeas petitioner

presents facts which, if proved, would en-

title him to habeas corpus relief, a federal

court can receive that evidence at a hear-

ing. Townsend v. Sain, 372 US. 293, 312,

83 S.Ct. 745, 756, 9 L.Ed. 2d 770 (1963). An ~}

evidentiary hearing in a federa! habeas cor- .

pus proceeding is required only if the habe-

as petitioner establishes one or more of the

enumerated criteria of 28 U.S.C. § 2254(d)

or in Townsend, supra, at 312-318, 83 S.Ct

at 756-759. Shaw v. Martin, 733 F.2d 304

(4th Cir.1984). Where a state court has

decided the merits of a claim but made no

express findings of fact, the distnct court

may be able to reconstruct those findings

without a hearing

required if the facts alleged by the petiuon

er and assumed to be true are insufficient

to support a claim

Of course no hearing is

On appeal, Turner confines himself whol-

ly to the defense attorneys’ treatment of

the psychological evidence at the penalty

stage of the trial, if we include the side

claim that the attorneys did not produce

“the corroborating evidence necessary to

make credible a psychological or miugating

defense.” To place this contention in prop

er perspective, a brief review of the claim

is in order. Following Turner's conviction,

he employed other counsel to prosecute his

appeal. These are the same attorneys who

are presently in the case. They have repre

sented Turner at least since May 1980, the

date of filing of Turner's brief in the Su

preme Court of Virginia in the appeal of

the criminal conviction.

Following affirmance of Turner's convic-

tion, he filed a petition for habeas corpus in

the state court So far as concerns us

here, the only pertunent contention there

made was that “counsel failed to develop

and present adequately the psychiatric ev:

dence sufficient to support a finding of the

presence of mitigating mental abnormal

ties.” That petition was dismissed and no

written elucidation or explanation of the

contention was ever brought to the atten

uon of the tral court prior to its order of

February 10, 1982 dismissing the petition

On April 6, 1982, however, Turner's attor

neys filed a paper with the trial court giv-

ing their version of the statement of facts

including what toox place at the heanng

The Commonwealth did likewise. On June

3, 1982, the tral judge signed a statement

of facts which included the fact that at ora!

argument pettioneré attorneys had prof

fered that the defense attorneys had not

consulted any psychiatmst other than Dr

Bransfield and that the defense attorneys

had not adequately researched capita! mur

der statutes in other jursdictions regard

ing the definition and application of the

mitigating factors set forth in Virginia

Code § 19.2-2644B. This latter finding

however, does not concern us here in view

of the course the trial and this appeal have

taken. The Virg nia Supreme Court denied

a petition for appeal from the tria! court's

dismissal of the habeas corpus petition or

January 1983. In that order it relied

753 FEDERAL REPORTER, 2d SERIES

McMann v,. Richardson, 397 U.S. 759, 90

S.Ct. 1441, 25 L.Ed.2d 763 (1970), and Mar

zullo, supra. The Supreme Court of the

United States denied certiorari — U.S

—, 103 S.Ct. 2465, 77 LEd2d 1341

(1983)

Next, Turner applied for federal habeas

corpus relief in the district court in ihe

Eastern District of Virginia in the case at

hand. In his petition, the allegations quot

ed above from the petition in the state

court were copied im Aaec verba That

petition was likewise dismissed. The first

ume that any mention was ever made in

this case of any missing witness with re

spect to the sentencing phase of the case

or failure to .onsult another psychiatrist

or any other failure with respect to the

treat:nent of the psychiatric evidence, was

when a motion was made on Juiy 2, 1984 to

alter or amend the judgment of the distrnct

court. At that Ome it was claimed that the

defense attorneys should have called Turn

er's younger sister, his uncle, and two peo

ple who would say that they were willing

to back Turner in opening a barber shor

after release from prison. Also, Turner

then filed his affidavit seeking to explain

the circumstances surrounding his earlier

crimes, together with some ducuments cor

roborating some good incidents im nis ca

reer while impmsoned

‘The proper measure of attorney per

formance remains simply reasonableness ~

under prevailing professional norms

Stnekland v. Washington, — US. —

——, 104 S.Ct 2052, 2065, 80 L.Ed.2d 674

1984). It is by that standard that Turner's

attorneys are lo De measured

{12] So, we examine the a rneys a

tions 4 respe he psy iatr €

y. To begin w the

urt that they be perm ec Ww ¢€ :

private psychiatrist ¢t examine re

ihe court instead appointed a certain Ur

Ww iJ Daughtre y. Jr a generai practil

exa 4 eva 4 srner a

ane a re r wr Z ne urta

4 r ry rua e w ‘

ective 4 2-169 of the ¢ € Virg .

e:

he be

of the

peys (

ed fur

dered

empio,

ter exa

cholog

PhD ar

submit

effect

tal

that Tu

Oopinior

nose T

He ala

of stre

but tha

psychos

had an

under a

the mur

At u

one of |

him, Dr

mis cou

Officer

he atr

foal na

allied Turr

tw .

ere w ng

irber r

© expla

Dr. Daughtrey reported that in his oninion

Turner was mentally competent to stand

trial. Being of opinion, however, that more

extensive examination, evaluation and ob

servauon was desirable, the court then

committed Turner to Centra! State Hospi

tal, a mentai! hospital, for additiona! exami-

navon, evaluation and observation. The

hospital was ordered to report to the court

anc to the atiorneys, which it did. While

there, Turner underwent psychiatric psy

chological and sociological! evaluation by

the staff. The report from Centra! State

Hospital was that Turner suffered from

personality disorders and anti-socia! per

sonality, each mild. It recommended that

he be returned to the court for disposition

of the pending charges. Turner's attor-

neys persisted, however, that Turner need

ed further examination, and the court or

werec that the attorneys be permitted to

employ Dr. Bransfield* Dr. Bransfield. af

ter examination of Turner and after psy

chological tesung by Dr. Erwin F. Sacks

PhD and one of Dr. Bransfieid’s associates

submitted a long and detailed report to the

effect that Turner was competent to stand

trai. While Dr. Bransfield did not fee

that Turner had schizophrenia, he was of

opumuon that a few psychiatrists would diag

nose Turner as having latent schizophrenia

He also was of opinion that Turner in times

of stress might display paranoid tendenc:es

but that Turner had not shown a paranoid

psychosis. He also thought that Turner

had an anti-social! personality and was n

uncer an irresisuDie impulse at the time of

the murder

At the sentencing phase, Turner called

one of the psychiatrists who had examined

him, Dr. Bransfield, as well as his mother

ms cousin and his sunt me aist alliec

aa

fficer Bain and the police chief. The off

Pers were obviousiy calied t& prove that

Turner was placed in a position of stress

he find g at (hat the silent alarn 4

ee’ set ff ang upon the appearance

& We nove that the orders for the v- —4S DSY

al naminatnx Turner were entere

c Genera ist be eT cr wa

ed gina e Genera

he Sua urse of gs Das a

TURNER ¥v. BASS

Cite as 753 F 2d 342 (1985)

349

Officer Bain. The family witnesses. of

course, had good things to say about Turn-

er, how he was good to his family and had

had a very disadvantaged childhood His

mother also testified, in corroboration of

Dr. Bransfield, that at or about the time of

the shooting she had had to call the local

police about an incident at home and that

she had told the police that Turner needed

treatment for his mind. She said that he

had been in a daze and that she was afraid

that he might hurt somebody if they would

push him. Dr. Bransfield had testified that

if Turner believed he was cornered he

might react in a violent way and he felt

that if Turner had had treatment at the

ume of the shooting that Smith would not

have been killed

Dr. Bransfield, al) in. all, was quite a

good witness for Turner. The gist of his

testmony is contained in one of his an

Swers on cross--xaminabton

He had psychotic symptoms which were

present for at least three weeks before

July 12th [the day of the murder I

could list what those symptoms are

They seemed to influence his behavior. |

could not prove—there was no evidence

that | could show that his shooting Mr

smith was fu.ly and completely a psy

chotic act; however, | do fee! that he was

affected by psychotic problems which im-

paired his ability to perform in a rational

manner and the symptoms that he had. |

could list

Earlier, the conclusion of Dr. Bransfield’s

jirect examinavon was as follows

w L/}0 you have an opimon with

reasonabdie medica! certainty as to wh

er s crime was commnutted while Willie

Turner was under the influence ex

treme menta r emovuona listurdance

ave a

WY ny what is a c sir

asxccrta c ause ® je © whether a

. me tx a gra

are c genera

350

A That! feel he was under the influ-

ence of menta! disturbance while he was

committung the cmme

Thus, Dr. Bransfield’s testimony tended

to show one of the facts which may tend to

show mitigation specifically mentioned in

the Virginia statute, “the influence of ex

treme mental or emotional disturbance,”

and also touched upon another like statuto

ry factor, “the capacity of the defendant to

appreciate the criminality of his conduct or

to conform his conduct to the requirements

of law.” See VacCode § 19.2-2644 In

view of Dr. Bransfield’s testimony, it is

seen that the contention in both petitions

for habeas corpus, that the attorneys

“failed to develop and present adequately

the psychiatric evidence sufficient to sup

port a finding of the presence of mitigating

mental abnormalities,” is little better than

frivolous. The evidence was there for the

jury to consider. The jury simply chose

not to found its verdict upon that mitigat-

ing circumstance

The claim now made on appeal is that

Turner's attorneys “mishandi[ed}’ “the

psychiatric testimony and mitigating evi-

dence” which was “essentially a product of

ignorance.” The claim goes that the attor-

neys “did not know the diagnostic implica

Hons or the potential dangers from cross

examunation of a diagnosis of anti-social

personality;” they “had not discussed with

Dr. Bransfield the definitions of the mit)

gaung and aggravaung circumstances on

which he would be expected to comment;”

and “did not acquire the degree of exper-

use in peychiatric matters necessary to ful

ly develop the psycmatric defense

The record belies the charges. The at

torneys had caused three examinations of

Turner, the preliminary examination by a

genera! practiuoner and two by psychiatrx

experts. While we are not told what are

the diagnostic implications or potential dan

gers from cross examination of a diagnosis

of an anti-social personality, the attorneys

were obviously prepared ¢ pre thar

7. With respect to the « orneys

should have shopped ar d >SyCi

airist. we have ecaciuded Marfieid

753 FEDERAL REPORTFR, 24 SERIES

on. psychiatrist testify, for they so advised

the court in the record. Dr. Bransfield’s

testumony was as good as it could have

been. We cin": Turner's attorneys, in han-

dling the psy-niatric defense, did a profes-

sional job ir, every sense of the word

They had a good witness who testified as

favorably in Turner's behalf as could have

been wantea. Their examination of the

witness was conducted in a skiliful and

knowledgeable manner. We are thus of

opinion that their perfor mance in Turner's

behalf was reasonable under prevailing

professional norms. Turner's present re

lance on other possible theones of defense

are nothing more than afterthoughts, we

think, brought into play after the best de

fense, that of direct evidence on the direct

question involved, had been tried but found

wanting through no fault of the attorneys

The question of Turner's state of mind and

the degree of his responsibility for his acts

at the ume of the shooting was purely a

jury question. By its verdict the jury sim-

ply found that the mitigating factors were

insufficient, a matter entirely within its

province. No fault of any kind can he laid

to the attorneys for this result.’

Vv

Turner challenges the use of the vileness

emterion in this case as being violative of

hus mghts under the Eighth and Fourteenth

Amendments to the Constitution

Under Virginia law the death penalty

may be wnposed upon a defendant if the

jury finds 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 commis

sion of the offense of which he is accused

that he would commit criminal acts of vio

ence that would constitute a continuing

serious threat to society the dangerous

ness criterion; or that his nduct in com

mitting the offense was outrageously or

wantoniy i, herribie r

’

ved torture

aggravated b.

ness criterior

phasis added

The Virgin

strued the v

264.4C to in

tinct features

ty of mind or

of only one of

support a se

Commonwea.

S.E.2d 271 (19

the Virginia |

construction [

ness cmterion

construed to :

pitude and p!

that inherent

legal malice a

ted battery is

ly and quant

the minimur

act of murder

219 Va 455

{13] The ;

form setting

ing factors

connected by

The jury una

of death,* ret

out striking e

Thus, this cas

742 F.2d 155

struck the »«

found both a

the court did

consututuona!

on of § 19.2-2

& The jury ver

“We. the

found the

of W. Jack

ment, and

after consid

that there

mat cremur

Mitute a «

his conduc

rageous.,)

man im th.

mind, agg

yone ife

the act '

0 advised

ansfield’s

uld have

S, in han

a profes-

1 word

ufied as

uld have

1 of the

ful and

thus of

Turner's

evailing

sent re

defense

nts, we

best de

e direct

it found

lorneys

ind and

nis acts

urely a

ry sim

8 were

hin its

be laid

ileness

uve of

teernt}

enalty

if the

am that

idence

<A

- struck

TURNER v. BASS

351

Cite as 753 Fld 342 (1985)

‘aggravated battery to the victim” (the vile

ness criterion) Va.Code § 19.2-264 4C (em-

phasis added)

The Virginia Supreme Court has con-

strued the vileness component of § 19.2-

264.4C to include three separate and dis-

Unct features, those being torture, depravi-

ty of mind or aggravated battery. Proof

* of only one of these factors is sufficient to

sentence of death. Bunch y

Commonwealth, 225 Va. 423, 432 304

S.E.2d 271 (1983). Even more importantly,

the Virginia Court has also given a limiting

construction to two components of the vile-

ness criterion. Depravity of mind has been

support a

‘ construed to mean “a degree of moral tur-

pitude and physica] debasement surpassing

that inherent in the definition of ordinary

legal malice and premeditation.” Aggrava-

ted battery is “a battery which qualitative

ly and quantitatively is more culpable than

the minimum necessary to accomplish an

act of murder.” Smith v Commonwealth,

219 Va 455, 248 S.E.2d 185, 149 (1978)

(13] The jury here was given a verdict

form setting out both Statutory aggravat

ing factors (dangerousness and vileness

connectea by the conjunctive “and/or”

The jury unanimousiy umposed a sentence

of death,’ returning the verdict form with-

out striking either the “and” or the “or” *®

Thus, this case differs from Briley v. Bass,

742 F.2d 155 (4th Cir.1984), where the jury

the word “or” and unanimously

found both aggravaung factors. There

t the court did not need to consider & similar

consUtuuonal attack on the vileness cnten

on of § 19.2-264.4C because the dangerous-

& The jury verdict read as follows

“We, the Jury, on the issue joined, having

found the defe dant guilty of Capital Murder

of W. Jack Smith, IJr., as charged in the Indict

ment, and having found that

after consideration of his past criminal record

that there is a probability that he would com

mul criminal acts of violence that would con

Situle & Continuing serious threat to society

and/or

his conduct in committing the offense is out

rageousiy or wantonly vile, horrible or inbu

man in that it involved torture depravity of

ning, aggravated battery 1 he victim be

yond the minimum necessary to accomplish

the act of murder

ness criterion was sufficient. Briley at pp

165-166. Because we cannot be sure which

factor the jury relied upon in awarding the

death sentence in this case. we consider

Turner’s attacks on the vileness criterion.'*

{14} Turner does not attack the consti-

tutionality of this aggravating factor on its

face, as that issue has been disposed of in

Gregg v. Georgia, 428 US. 153, 96 S.Ct

2909, 49 L.Ed.2d 859 (1976). Instead. he

attacks its constitutionality as applied to

him, relying upon Godfrey » Georgia, 446

U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398

(1980) (plurality opinion)

In Godfrey the Supreme Court reversed

the imposition of the death penalty in a

capital murder case because the Georgia

vueness criterion was unconstitutionally

applied to the defendant. Godfrey had

been having marital problems with his wife

of 28 years. He hada history of a drinking

problem and violent behavior toward his

wife. Godfrey's wife had left him and had

filed suit for divorce. His attempts at rec-

onciliation were rebuffed. Mrs Godfrey

moved in with her mother, who. Godfrey

felt encouraged the separation

One evening immediately after arguing

with his wife over the telephone Godfrey

took his shotgun and walked a short way to

his mother-in-law’s home He peered

through the window and saw his wife, his

11 year old daughter, and his mother-in-

law. He immediately shot his wife in the

forehead, killing her instantly. He then

entered the trailer and struck and injured

his daughter. He then fired one shot at his

and having considered the evidence in muga

tion of the offense, unanimously fix his pun

ishmment at death

9. We agree with the Virginia Supreme Court

that the better practice woulda be for the trial

court to poll the jury as to which aggravating

actor they found. Jurner, supra, 273 SE 2d ai

45 n. 12

10. Turner does not challenge the dangerousness

critenon There is ample evidence in the

record to support such a verdix Turner. supra

7 E20 at 44 mn. 11 and 273 S.E2d at 45

Ce

a

-

>

a

, ~~.

: CRY ee

‘ _

eae

352

mother-in-law, hitting her in the head and

killing her instantly. Godfrey immediately

called the police, surrendered and confess-

ed to the murders. 446 U.S. 424-426, 100

S.Ct. 1763-1764

Godfrey was found guilty of two counts

of murder and one count of aggravated

assault. He was sentenced to death under

Georgia's statute Providing as aggravating

curcumstances that the offense was “outra-

geously or wantonly vile, horrible or inhu-

man in that it involved torture, depravity of

mind, or an aggravated battery to the vic-

Gm.” " At the sentencing stage of trial,

the prosecutor conceded that the case did

not involve torture or aggravated battery

The jury found that “the offense of murder

was outrageously or wantonly vile, horrible

or inhuman.” The Georgia Supreme Court

affirmed the imposition of the death penal-

ty ‘

The Supreme Court reversed. The Court

first noted that a State's sentencing

scheme must provide “a meaningful basis

for distinguishing the few cases in which

[the death penalty) is imposed from the

many cases in which it is not.”’ Id. at 427

100 S.Ct at 1764 quoting Furman y»

Georgia, 408 U.S. 228, 313, 92 S.Ct. 2796

2764, 33 L.Ed.2d 346 (White, J concurning)

The sentencer must be given clear and

objective standards to follow in the applica

Gon of the death penaity. Those “specific

and detailed” guidelines enable the courts

to rationally review the sentence imposed

The Court found no such guidance

present in Godfrey Nothing in the words

“outrageously or wantonly vile, horrible or

inhuman” alone distinguished this murder

from others not eligible for the death pen

alty. The Court reached this conclusion

after reviewing Georgia case law giving

the phrase a limited construction that re

quired a demonstration that the offense

involved torture, depravity of min

gravated battery

d or ag

Depravity of mind had

been defined in Georgia to mean the state

of mind leading to torture or aggravated

Dattery. But in Godfrey's case the prose

cutiun had conceded that no torture or ag

il. This ‘anguage is identical to that of Va Code

753 FEDERAL REPORTER, 2d SERIES

gravated battery was present. Thus, the

murders did not fit within the limiting crite

ria set out by the Georgia Supreme Court

The Court held in Godfrey that the

phrase “outrageously or wantonly vile, hor-

rible or inhuman” in and of itself had not

been given a constitutiona! construction by

the Georgia Supreme Court. The Court

concluded that “{t}he petitioner's cmmes

cannot be said to have reflected a con-

sciousness materially more ‘depraved’ than

that of any person guilty of murder. His

vicums were killed instantaneously. They

were members of his family who were

causing him extreme emotional trauma

Shortly after the killings, he acknowledged

his responsibility and the heinous

his crimes.”

at 1767

nature of

Id. 446 U.S. at 433 100 S.Ct

On direct appeal, the Virginia Supreme

Court rejected Turner's argument that

Godfrey required reversa| of his death sen

tence. It construed the Statute to require

not only outrageously or wantonly vile,

horrible or inhuman conduct, but also that

such conduct involve either torture

gravated battery of the

perpetrator's depravity of mind The

Court then found applying its limiting

precedent of Smith ; Commonwealth.

that the evidence established an aggrava-

ted battery which is a “ battery which,

qualitatively and quantitatively

an ag

vicum, or the

is more

culpable than the minimum necessary to

accomplish the act of murder 248

S.E.2d at 149; 273s E.2d at 45. The court

then found that. in ail events, the danger

ousness criterion of the statute had been

met. Turner had been convicted previously

of malicious maiming, escape, unlawfy!

wounding, malicious wounding, and second

degree murder four of the offenses occur

ring while he was in prison. The validity

of this finding IS Not questioned on appeal!

We agree with the analysis by the Vir

ginia Supreme Court. The fatal weakness

in Godfrey was the Vnconsututionally

broad construction given he vileness crite

rion in the absence of woth torture and

§ 19.2-264 4¢

7)

aggravai.

preme |

present }

has give:

ness crite

struction

We als

are not «

which the

Srey. It

cold-blood

element

present iy

Smith for

lay alive

Bain plead

Smith's c}

going to k

companso:

of Godfre

murder pr:

Turner's «

80 vile as {

The case

limited cor

on establi

Court, and

death pena

ally applied

{15} On

constitution

given to the

the trial.

propriate r

4, and the

the limiting

tery as

judge care

“{wyhere th:

interpretatx

position of t

with the in

you should

which is ¢

ex

i2 The Virg

applied the

mmon wealth

img the dex

weaith, 227

gravated ba

v. Common

(1983

ake

ent. Thus, the

1 limiting crite.

supreme Court

ifrey that the

ntonly vile, hor

" itself had not

sonstruction by

t The Court

joner’s crimes

flected a con

Jepraved’ than

murder. His

‘eously. They

ly who were

tonal trauma

acknowledged

ous nature of

433, 100 S.Ct

Inia Supreme

gument that

us death sen

te to require

antonly vile

Dut also that

rture, an ag

the

The

its limiting

monwealth,

an aggrava

tery which

um or

mind

y, % more

ecessary to

er.”" 248

The court

the danger

® had been

previously

unlawful

and second

ses occur

he validity

On appea!

y the Vir

weakness

ituuionally

ness cnte

rture and

ay

Sggravated battery by the

Preme Court That Weakness is not

present here. The Virginia Supreme Court

has given a limited construction to the vile

ness criterion and applied that limited con-

struction here

é<' We also note that the facts of this case

are not even similar facts to those upon

which the Supreme Court relied in God

frey. In contrast, the murder here was

cold-blooded and calculated,

s element of emotiona!

Present in Godfrey

* Smith for no reason at all) While Smith

fw lay alive but helpless and while Officer

"> Bain pleaded, Turner fired two shots into

~\ Smith's chest after stating that

Cite ae 733

involving no

this case. We reject

R s* Turner's contention that his ~-me was not

7 0 vile as to Justify the IMpos.tion of death

>The case fits within the constitutionally

¢ limited construction Of the vileness criter;

00 established bv the Virginia Supreme

aT Court, and we are of opinion Virginia's

*death penalty Provisions were constitutici

Rally applied

-78(15) On a related subject

* donstitutiona! deficiency

oy

we find no

in the instructions

given to the jury at the Sentencing stage of

s', the trial. The instructions set out the ap

ge propriate mitigating factors of § 19.2-264

oe — 4,'and the jury was also instructed as to

es x “the limiting definition of aggravated bat

Ry, ry as expressed in Smith. The tria!

: / Judge carefully instructed the jury that

~ er «Twyhere the evidence is susceptible to two

VERY. Mterpretations, one consistent with the im

x a5 position of the death penalty, and the other

> With the imposition of life

*=you. should not adopt that

bi which is consistent with

impmsonment

interpretation

imposition of the

c\° Ih. The Virginia Supreme Count has consistent!y

re Ps’ > epplied the limiting provisions of Srmtth y

. t. y Monwealth, supra, in its review of cases

“ZN ing the death Penalty. Stockton v. Common

wealth, 227 Va 124, 314 SE2¢d 371 (1984 ag

@avated batiery and Gepravity of mind): Bunch

¥. Commonwealth, 225 Va. 423, 304 S B94 97

(1983) battery deprav f

Lom

Invoty

(aggravated

and

TURNER ¥. BASS

Georgia Su.

F.2d 342 (1985)

death penalty.” We do not think that God.

Srey requires that Jury be instructed on

each term in the aggravating circumstance.

es. We see no reason why this jury should

not have understood the terms

Structions given Cape vy

F.2d 1287 (ith Cir 1984)

The constitutional flaw of Godfrey, the

Georgia Court's failure to give a constitu-

Uona! construction to the vileness criterion,

iS not present here. The Virginia Court

has limited the breadth of the ernterion in

such a manner that its application here was

neither arbitrary nor capricious.'? The

Jury was properly instructed Nothing else

was constitutionally required

VI

{16} While deliberating on the sentence

to be imposed

“ary returned and asked

the judge what life impmsonment entailed

The judge responded that the jury must

consider only the tyo alte’natives set out

in the instructions those

impnsonment

being death or life

Turner contends that the due process

requires that the jury be instructed that a

prisoner may be entitled to parole and that

the parole board is permitted to grant pa

rule only after finding that the prisoner's

release will serve his nterests and the in

terests of society

It is settled that such an instruction is

not permissible under Virginia

v. Commonwealth supra; Hin

monwealth 492

(1978)

aw. Clark

ton v. Com

219 Va 247 S.E.2d 704

In California »

Ramos, 463 US 992

103 S.Ct. 3446. 77

L.Ed.2d 1171 (1983) the

Court upheld as constitutional!

law requiring that a jury

be instructe

a California

In &@ capital case

ad of the governor's power

sentence of life

wo

commute a the

without

Commonwealth, 223 Va. 66

(1982 aggravated

mmonwea 22

@ggravated +

‘ ere

257 S E.2d 7@4 779

battery

Va. 563

attery and

mrnon wealth

epray

353

354

possibility of parole. The Court made clear

that while such disclosure is consututional-

ly permissible it is not constitutionally re

quired. It also upheld the failure or refus-

al of the trial court to instruct the jury on

the governor's power to commute a death

sentence. In arriving at its decision, the

Court noted: “fojur conclusion is not in-

tended to overnde the contrary judgment

of state legislatures tnat capita! sentencing

jurnes in their state should not be permitted

to consider the governor's power to com-

mute a sentence.™’ In footnote 30 the

Court stated that “[mjany state courts

have held it improper for the jury to con

sider or to be informed—through argument

or instruction—of the possibility of commu-

tation, pardon or parole.” Id. at -——, 103

S.Ct. at 3459. While not exactly on point,

we think Ramos indicates that the Court

would decide that while it is constitutional-

ly permissible to instruct the jury on the

subject of paroie, such an instruction is not

constitutionally required. We so hold. Ac

cord O'Bryan v. Estelle, 714 F.2d 365, esp

389 (Sth Cir.1983)

We have considered each of the issues

raised by Turner in his appeal and find that

he had a constitutionally fair tnal

Our stay of the state court's order to

impose its sentence is hereby dissolved

The judgment of the distnct court is

AFFIRMED

JAMES DICKSON PHILLIPS

Judge, specially concurru.g

Cirewit

| concur in the judgment and in all of the

opimion except that part dealing with the

claim of due process denia/ in refusing to

quesuon prospective jurors about the poss!

bility of raciai bias. On that point | believe

the majornty opimon puts too restrictive a

reading on the circumstances that may et

title a criminal defendant, as a matter of

due process, to have prospective jurors so

questioned. But because | further believe

that the circumstances giving mse to the

mgnht were not demonstrated here under a

proper application of the principle, | concur

in the courts conciusion that no due pro

cees denial was established

753 FEDERAL REPORTER, 24 SERIES

»

As I read Rosales-Lopez v. United

States, 451 U.S. 182, 101 S.Ct. 1629, 68

L.Ed.2d 22 (1981); Ristaino v. Ross, 424

U.S. 589, 96 S.Ct. 1017, 47 LEd.2d 258

(1976); and Ham v. South Carolina, 409

U.S. 524, 93 S.Ct. 848, 35 L_.Ed.2d 46 (1973),

in conjunction, they yield the following

principles

The fact alone that defendant is of a

different race than the crime victim is not a

circumstance giving mse to the due process

right, Ristaino, 424 US. at 596, 597, 96

S.Ct. at 1021, 1022; nor is this altered by

the nature of the crime charged or the

punishment possible, see Ristaino, 424 U.S.

at 596 n. 8, 96 S.Ct at 1021 n. 8 (generally

rejecting per se approach based upon non-

case-specific factors such as violent nature

of crime). But special circumstances giv-

ing mse to the mght may be present in a

case in which racia! issues are “inextricably

bound up with the conduct of the trial.”

id. at 597, 96 S.Ct. at 1021 (so interpreting

basis of right recognized in Ham where

racial prejudice against defendant was

raised as defense on the merits). And,

aside from specific tna! issues, “more sub-

stantial indications [than race differences

alone} of the likelihood of racial] or ethnic

prejudice affecting the jurors in a particu-

lar case’’ may uigger the nght. Aosales-

Lopez, 451 U.S. at 190, 101 S.Ct at 1635

(dicta: constituQonal test stated in apply-

ing broader supervisory rule for federal

courts); see also Ristaino, 424 US. at 598,

96 S.Ct. at 1022 (constitutional right might

arise not only from specific trial issues but

from “racial factors of comparable sig-

nificance’)

But as | read the majority opinion, it

reads these decisions more restrictively in

holding that only ‘special circumstances in

the facts surrounding a particular tral

the constitutional mght, and that

the fact that a larger percentage of white

vicums

invoke

assailants are executed’ may not

If by this

the majority is saying that only when Ham

be such a speciai circumstance

type racial

merits of a

issues are bound up in the

crmina

tmai can the due pro

lime Vie 4

cess rig!

ly, if thy

factors r

tudes in

particala

onstrauo

ways be

But, a

thontat

the mgt

heve tha

the part

lihood

“particu

issues, 7

And | w

out as

demons‘

ly sounc

munity

formanc:

ble case

~ But t

ty was s

ucular

evidence

content

cussed

upon tt

particu!

the ev

That ev

ing

apez v. United

11 S.Ct. 1629, 68

mo v. Ross, 424

47 LEd.2d 258

th Carolina, 409

L.Ed.2d 46 (1973),

q

ad the following

efendant is of a

me victim is nota .=

) the due process =

at 596, 597, 96

8 this altered by

charged or the.

istaino, 424 U.S

‘ln. 8 (generally ~

based upon non- «

as Violent nature .

rcumstances giv-

be present in a —«

are “inextricably ¢

ct of the trial.” .3i

(80 interpreting ‘4

in Ham where «4

$

defendant

merits)

was

And,

ues, “more sub

race differences

racial or ethnic >

Ss in @ particu-

mght. Rosales-

1 S.Ct at 1635

stated in apply-.

ule for federal : "

424 U.S. at 598, <8

ma! mght might

trai wsues but

comparable sig-

~#

wity opinion, it

restrictively in “5

reumstances in <

articular trial” *

“ght, and that

entage of white

uted” may not %

nee. If by ths ™

nly when Ham- ~

the ©

wm the due pro 5

4

ind up in

: Fm sufficiently likely to af

ao 0

ce

rsithe evidence here advanced

>.

7 at evidence consisted only of the

S

cess right arise, | cannot agree. Obvious

i> ly, if this were correct, it would follow that

, factors related solely to likely juror atti

_ tudes independent of specific issues in a

“+ particular case—including statistica] dem

*onstrations of jury propensities—would a!

. . Ways be irrelevant

.* But, as indicated, I do not read the au

“* thoritative Supreme Court decisions to limit

the right to Ham -type situations. I be

<<lieve that not only specific racial issues in

Ea “the particular case but a demonstrated like

7 lihood of raciai prejudice affecting the

“ “particular” jury, irrespective of specific

»: Bsues, may invoke the constitutiona! nght

And I would not be prepared flatly to rule

out as possible means, among others, of

s* demonstrating such a likelihood scientifica)

mS ly sound statistica! evidence related to com

fy munity attitudes as reflected in jury per

"formance in sufficient samples of compara

ble cases

Fe Bat to demonstrate that such a propensi

flict the par

2 Geular”’ case, | think the

srevidence offered—whatever its source and

sontent—would have to be much more fo

“@ssed in time and geographical

the very community

Particular jury venire is

jury im a given

terms

from which

than

" T

DY irner

the

irawn was

follow

r*(1) A study by Bowers and Pierce of

post-Furman v. Georgia data

ough December 1977 from

collected

Veorwia

~ 1 >% Flonda Texas, Alabama and Ohio, wh

wreveaied that 14.59% of blacks killing

; %- whites received the death penalty

me-pared to 2.66% of

ites Killing whites

ip.) SA% of blacks killing blacks, and 0.50

"aot whites killing Diacks

> 2s, (2) a 1983 study by Gross and Maur

"of data through 1980 from klahorna

AB

@ North Carolina, Mississipp Virginia ar

hy-Arkansas

The Virginia data focused o1

> 19 cases out of 1389 criminal homicides

y these cases being chosen | ontr

>: attitude: about the Jegree of atrax

> a involved in the homicide The sta 4

{analysis of Virginia data showed &

UNITED STATES v. HAWKES

> Cite as 753 F.2d 355 (1985)

a

blacks killing whites receiving the death

sentence compared to |

killing whites and 0.60%

blacks

3% of the whites

of blacks killing

No white had received the death

penalty for killing a black under Virgin

ia’s 1977 capital punishment statute

This evidence, whatever its genera! statisti

cal reliability as a measure of community

attitudes over the wide expanses of area

and Ume covered, is simply to

its depiction of likely community, hence

juror, attitudes in this particular case to

invoke the right. But I am not prepared to

hold, as I think the majority opinion im

the

diffused in

ples, the requisite likelihood, hence

the du “cess mght, can never be shown

by staty..ally sound evidence of particular ? .

community atutudes as reflected

ciently contemporary

parable situations

ns ef Ve

jury

verdicts in com

UNITED STATES of America Appellee

David Thomas HAWKES. Appellant

UNITED STATES of America. Appellee

¥

Sylvia Ines HAWKES, Appellant

Nos. 84-5125 1 84-5126

ted States Court of Appeals

rourth Circuit

Argued N m4

‘ + 4 29 al

ete lants were nvicted in the Ur

ed Altes | r r t our

r f We 4 4 B

t aver aw

Knowing|y i £ i £

at g t acture. gr

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