Petition for Writ of Certiorari — Mu'Min v. Virginia

00-5193

Oo.

N

IN THE SUPREME COURT OF THE UNITED STATES

DAWUD MAJID MU'MIN,

Petitioner,

Vv.

COMMONWEALTH OF VIRGINIA,

Respondent.

WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

PETITION FOR WRIT OF CERTIORARI

Dawud Majid Mu'Min

# 101387

Mecklenburg Correctional Center

RECEIVED P.O. Box 500

Boydton, VA 23917

JUL 18 1990

Ori wet OF THE CLERK

SUPREME COURT, U.S.

— —

Attorney Pro Se

4

U ON N VIEW

Whether the trial court violated the petitioner's

rights under the sixth and fourteenth amendments by

refusing to allow questions on voir dire of potential

jurors regarding what the veniremen had read or heard

about the crime.

Whether the trial court violated the petitioner's sixth

and eighth amendment rights by refusing to allow ques-

tions on voir dire of potential jurors regarding what

the veniremen had read or heard about the crime.

Whether the trial court violated the petitioner's sixth

amendment right by failing to strike for cause two jur-

ors who indicated that their ability to deliberate im-

partially would be hampered.

Whether the petitioner's trial was rendered fundamen-

tally unfair by the prosecutor's repeated use of and

reference to an unrelated conviction of the petition-

er.

Whether the trial court deprived the petitioner of due

process by allowing into evidence statements made by

the petitioner during custodial interrogation.

Whether Virginia's death penalty statute violates the

constitutional prohibition on cruel and unusual punish-

ment.

—

Whether the imposition of the death penalty in this

case is violative of the eighth amendment because it

was imposed under the influence of passion, prejudice

and arbitrary factors.

-ii-

TA N

Page

QUESTIONS PRESENTED ....+ ++ © © © © © © © © © #© # * i

TABLE OF AUTHORITIES ... ++ © «© © © © © © © © © © # @ Vv

OPINION BELOW . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION a ie a a oe ae Se Ge oe oe ae a le ee ee ek 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED... . 2

STATEMENT OF THE CASE ...+ + + © © © © © © © © © #e @ »* 3

REASONS FOR ALLOWING THE WRIT .. «© «© © © © © © © «© © « 15

I. THE PETITIONER WAS DENIED HIS RIGHT

TO AN IMPARTIAL JURY WHEN THE TRIAL

COURT REFUSED TO ALLOW QUESTIONING OF

PROSPECTIVE JURORS CONCERNING WHAT THEY

HAD PREVIOUSLY HEARD OR READ ABOUT

_ ee ee ee ee ee ee ee ee ee 15

II. THE PETITIONER WAS DENIED HIS RIGHT TO

AN IMPARTIAL JURY IN THE SENTENCING

PHASE WHEN TRIAL COURT REFUSED TO ALLOW

QUESTIONING OF PROSPECTIVE JURORS

CONCERNING WHAT THEY HAD PREVIOUSLY

HEARD OR READ ABOUT THE CASE. .. «+ «+ «© «© « + 23

III. THE TRIAL COURT DEPRIVED THE PETITIONER

OF“HIS RIGHT TO AN IMPARTIAL JURY WHEN

IT FAILED TO STRIKE TWO JURORS FOR CAUSE. . . 25

IV. THE TRIAL COURT DEPRIVED THE PETITIONER

OF HIS FUNDAMENTAL RIGHT TO A FAIR TRIAL

BY ALLOWING EVIDENCE OF UNRELATED CRIMES. . . 27

V. THE PETITIONER WAS DEPRIVED OF HIS RIGHT

TO DUE PROCESS WHEN THE TRIAL COURT

ALLOWED INTRODUCTION OF STATEMENTS HE

MADE DURING CUSTODIAL INTERROGATION THAT

WERE INVOLUNTARY. . . «© «© «© © © © © © © © © * 29

-iii-

TABLE OF CONTENTS (CONT'D)

VI. THE PETITIONER'S DEATH SENTENCE MUST

BE REVFRSED BECAUSE VIRGINIA'S DEATH

PENALTY SCHEME IS VIOLATIVE OF THE

EIGHTH AMENDMENT. ... + +6 © © © © © © «© «© » 31

VII. THE IMPOSITION OF THE DEATH SENTENCE

IN THIS CASE IS UNCONSTITUTIONAL

BECAUSE IT WAS THE RESULT OF PASSION,

PREJUDICE AND OTHER ARBITRARY FACTORS. ... . 34

CONCLUS ION . . . . . . . . . . . . . . . . . . . * * . *. 36

APPENDIX

A. Opinion of the Supreme Court of Virginia in-

ii 'Mi a/k/a _ Davi j n

Vv. wealth, 389 S.E.2d 886 (Va. 1990)

B. Supreme Court of Virginia's Denial of a Petition

for Rehearing in Dawud Majid Mu'Min, a/k/a David

Michael Allen, No. 890899 (Va. April 20, 1990)

-iv-

Cases

TABLE OF AUTHORITIES

Ashcroft v. Tennessee, 322 U.S. 143 (1944) .... «2. «© «© « « 29

California v. Brown, 479 U.S. 538 (1987) .... +. +++. 331i

California v. Ramos, 463 U.S. 992 (1983) .....+.+ ++ + 24

orado v. ee ee ere ee

Do Vv — ee ££, ee.

Dowling v. United State, 110 S. Ct. 668 (1990) ....... 28

Foster v. Watkins,

423 F. Supp. 53, 55

(W.D.N.C. 1976), aff'd, 570 F.2d 501 (4th Cir. 1978) .. 28

G Vv. ia,

Ee ee eee eee

in v. wad, 366 U.S. 717 (1961) ...e+.e«e 15, 16, 19, 26

Jordan v. Lippman, 763 F.2d 1265 (11th Cir. 1985) ... . 20, 21

a v. Ww . £68 6. Oi SOE CS «x 66 ce ew ws oS

McDonough Power Equipment v. Greenwood, 464 U.S. 548 (1984) . 17

Mincey v. Arizona,

Murphy v. Florida,

Oa? Gol. SOU CRG). sw 0 6 ce ee ees 6

421 U.S. 794 (1975) o © «© «© « « e 16, 18, 19

atton v. Yount, 467 U.S. 1025 (1984) ......... 16, 18

v SS fe ee: a ee

Dalies vw. Maeria, 466 U.S. 37 (1964) .. «ee ee © « © BR, 33

Ristaino v. Ross, 424 U.S. 589 (1976) . ...+.+-+-+-e+-s 15, 26

Silverthorne v. United States, 400 F.2d 627

a mn “oo % & 6 ie oe ep ete see ee ee OR TR Se

ov wW ye Ll eee ee ee ee er

Swain v. Alabama,

380 U.S. 202 (1965) . «. «© « «© «© © © © © © «© 27

-V~-

A OF .

Cases

Townsend v. Sain, 372 U.S. 293 (1963) . . « «© «© «© «© « «

Turner v. Murray, 476 U.S. 28 (1986) Te a oe oe a a ee

United States ex rel. Bloeth v. Denno, 313 F.2d 364,

372 (2d Cir.), cert. denied, 372 U.S. 978 (1963) °

United States v. Affleck, 776 F.2d 1451

(10th Cir. 1985) . . . . . . . . . . . dl . . ° .

United States v. Davis, 583 F.2d 190 (5th Cir. 1978)

nit s v. Dellinger, 472 F.2d 340

(7th Cir. 1972), cert. denied, 410 U.S. 970 (1973)

Unit Vv , 559 F.2d 31 (D.C. Cir. 1976)

cert. denied, 431 U.S. 933 (1977) — oo oe oe ee

Wainwright v. Witt, 469 U.S. 412 (1985) ....++..-s.

Woo Vv a ina, 428 U.S. 280 (1976) ....

Statutes

Dee, BD. Bete. GOR wc scoters vvseneeseseeoeeenees

U.S. Const. amend. VI Seu unienecee € wee we OS eee

U.S. Const. amend. VIII (as * & 4 2% oe OR ee SE

8. Gepee,. aememG@. BEV .«. «ssc eevee eveveense

Va. Code Ann. § 17-110.1 (1988) ~~... . « «© «© « «© « «

So. Cie tee 8 OB Oe8R CROSS

Va. Code Ann. § 19.2-264.2 (1983) . . «© «© «© «© «© © «© © «

-vi-

the Petitioner having asserted below and herein deprivations of

right secured by the Constitution of the United States.

IN THE SUPREME COURT OF THE UNITED STATES tae

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The fourteenth amendment to the United States Constitution

DAWUD MAJID MU'MIN, states, in pertinent part:

Petitioner, No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

Ve United States; nor shall any state deprive any person

of life, liberty, or property, without due process of

COMMONWEALTH OF VIRGINIA, law; nor deny to any person within its jurisdiction the

equal protections of the law.

Respondent.

The sixth amendment to the United States Constitution

states, in pertinent part:

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the state and district wherein the crime shall

have been committed([. }

The Petitioner, Dawud Majid Mu'Min, respectfully prays that

wee ; The eighth amendment to the United States Constitution

a writ of certiorari issue to review the judgment of the Supreme

states:

Court of Virginia in this case.

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishment in-

flicted.

OPINION BELOW

Va. Code Ann. § 18.2-31 (1988) states, in pertinent part:

Capital murder defined; punishment. -- The following

and may be cited as Mu'Min v. Commonwealth, 389 S.E.2d 886 (Va. | offenses shall constitute capital murder, punishable as

a Class 1 felony:

The opinion of the Supreme Court in this case is reported

1990).

(c) The willful, deliberate and premeditated killing

JURISDICTION of any person by a prisoner confined in a state or

, P local correctional facility as defined in § 53.1-1, or

The judgment sought to be reviewed was entered by the while in the custody of an employee thereof;

6 cee itn em (ad) The willful, deliberate and premeditated killing

Supreme Court of Virginia on March 2, 1990, and a petition to

rehear the case was denied by that court on April 20, 1990. This aZe

Court's jurisdiction is invoked pursuant to 28 U.S.C. § 1257(3),

of any person in the commission of robbery while armed

with a deadly weapon[.]

Va. Code Ann. § 19.2-264.2 (1983) provides as follows:

siti - -- In

assessing the penalty of any person convicted of an

offense for which the death penalty may be imposed, a

sentence of death shall not be imposed unless the court

or jury shall (1) after consideration of the past crim-

inal record of convictions of the defendant, find that

there is a probability that the defendant would commit

criminal acts of violerce that would constitute a con-

tinuing serious threat to society or that his conduct

in committing the offense for which he stands charged

was outrageously or wantonly vile, horrible or inhuman

in that it involved torture, depravity of mind or an

aggravated battery to the victim; and (2) recommend

that the penalty of death be imposed.

: STATEMENT OF THE CASE

The petitioner was indicted by the Grand Jury for the 3lst

Judicial District of Virginia for capital murder in violation of

Va. Code Ann. § 18.2-31 (1988). Trial was held before a jury

from April 17 to April 20, 1989, after which the jury returned a

verdict finding the petitioner guilty of murder while he was

confined in a state correctional facility or in the custody of an

employee thereof, or while in the commission of a robbery while

armed with a deadly weapon (Trans. 4/20/89 at 239). Thereafter a

sentencing hearing was held before the same jury, whereupon the

jury recommended that the punishment be death (Trans. 4/24/89 at

96). On June 12, 1989, after receiving a presentence report, the

trial court fixed the petitioner's punishment as death (Trans.

6/12/89 at 53). Ai appeal was taken to the Supreme Court of Vir-

-3-

ginia, which issued its decision affirming the judgment March 2,

1990 (App. at 1). A petition for rehearing was filed by the

petitioner which was denied by the court on April 20, 1990 (App.

at 36).

On September 22, 1988, Gladys Nopwasky was found bleeding on

the floor cf Dale City Floors, a carpet and flooring business

where she worked, in Ashdale Plaza, Prince William County, Vir-

gGinia (Trans. Vol. I at 222, 264). When police arrived at the

scene she was being attended to by two rescue squad units; the

police also observed that the shop was in disarray (oeune. Vol. I

at 223). The rescue squad personnel found that Mrs. Nopwasky was

not breathing and did not have a pulse, although her heart was

still beating (Trans. Vol. I at 276). Although she was trans-

ported to a hospital, she eventually died. Mrs. Nopwasky's hus-

band, who ran Dale City Floors, testified that on tha* day the

air conditioning unit on the roof serving the shop was being

serviced (Trans. Vol. I at 251).

At that time, the petitioner was an inmate at Haymarket

Field Unit No. 26 of the Virginia Department of Corrections,

serving a 48-year sentence. The morning of September 22, 1988,

the petitioner was transported to the Dale City headquarters of

the Virginia Department of Transportation, where he was assigned

to a work detail and supervised by a Department of Transportation

employee. The petitioner testified that at that time he had a

screwdriver with a clip that he always carried in his shirt

-4-

pocket to fix his television and glasses (Trans. Vol. III at 267-

68). He broke for lunch at about 11:30 a.m., and began wal’ing

around the grounds there. Eventually he walked over to a wire

fence around the perimeter of the grounds, stepped over it, and

walked along Interstate 95 toward Dale City and Ashdale Plaza

(Trans. Vol. III at 280). At the time, he intended to go to the

plaza to price oriental rugs which he was considering as a birth-

day present for a friend (Trans. Vol. III at 281).

During his walk, the petitioner saw Dale City Floors and

went inside to ask about rugs. When he entered, he saw a woman

sitting at a desk talking on the telephone. After she finished

she came up to the petitioner and asked if she could help hin.

The petitioner started asking her about the price of oriental

rugs and she quoted some prices. The petitioner commented to her

that the prices seemed high, and when she appeared angry at this

he changed the subject (Trans. Vol. III at 288-89). He then

asked about shipping a carpet, and the woman asked him why he

would want it shipped. He told her he could not carry away any-

thing he bought there, and after she looked at his clothes she

determined that he was a prisoner (Trans. Vol. III at 290). She

then began asking the petitioner about what it was like to be

locked up and the sexual aspect; the petitioner responded that he

just didn't think about it (Trans. Vol. III at 291).

She then asked the petitioner about making love with white

women. The petitioner told her to "get the hell out of here,"

-5<

after which she spit in his face.’ He then struck her in the face

with his open hand (Trans. Vol. II at 292). She then began

screaming and calling the petitioner a "nigger," and as she made

another motion toward him he struck her again with the back of

his hand (Trans. Vol. II at 293-94). The woman then kicked him

in the groin and the petitioner fell to the floor, pulling her

down as well. She then kicked herself away from the petitioner

and came back at him with a knife, slashing at him. After ward-

ing her off, the petitioner grabbed the screwdriver from his

shirt pocket and struck her in the chest and neck (Trans. Vol.

III at 298). After she fell, the petitioner noticed blood ccing

from her nose and mouth.

Realizing she was hurt, iden petitioner tried to help her by

checking her pulse and looking through desk drawers and a pocket-

book for something to help her (Trans. Vol. III at 302). He then

went to a bathroom in the back of the store and got a wet wash-

cloth, which he held against the wound on her neck (Trans. Vol.

III at 303-04). The petitioner left the store using the back

door with change he had grabbed from a desk to get some ice

(Trans. Vol. II at 305). After walking around trying to figure

out what to do, he came back to the store and starting wiping up

with a handkerchief the things he could remember touching, and

washed his hands. He then went out the back door and went back

to the highway department grounds (Trans. Vol. III at 309-10).

Once there, he cleaned up, changed shirts, and threw away the

shirt he had been wearing (Trans. Vol. III at 311).

The Commonwealth presented evidence concerning the autopsy

of Mrs. Nopwasky, which showed that she had suffered eight stab

wounds to the thorax and four stab wounds to the neck area

(Trans. Vol. II at 13). It also presented the testimony of Keith

Shifflett, an inmate at the Haymarket Correctional Unit. Shif-

flett stated that on the evening of September 22, 1988 he saw the

petitioner in the shower and noticed blood on his body. Shif-

flett testified that after asking what happened, the petitioner

fell on his knees, started crying and talking about having hurt

and killed somebody (Trans. Vol. II at 235-36). Robert Owens, an

inmate at the Prince William, Virginia, Adult Detention Center,

testified for the Commonwealth that he was in the same cell with

the petitioner after the petitioner was transferred there in late

September 1988. Owens testified that the petitioner told him

about the incident at Dale City Floors and that the petitioner

told him he had been in the store before and that on the day in

question he had gone to the store to rob it. Owens stated that

the petitioner told him he struck and stabbed Mrs. Nopwasky with

a metal spike after she spurned his advances (Trans. Vol. III at

13-14).

Prior to trial, the petitioner submitted a list of questions

to ask members of the jury panel during voir dire. Among them

were questions concerning whether the prospective jurors had read

~~ P

or heard anything about this case from the media, what they had

read, seen, or heard, from whom they acquired this information,

and whether, what, and with whom they had discussed the case

prior to trial. At a pretrial hearing on proposed voir dire

questions, the trial court ruled that the petitioner could not

ask these questions, stating that he could only question the

panel concerning whether they had heard, read or seen anything

about the case and whether that information would affect the

prospective jurors' impartiality (Trans. 4/14/89 at 57, 58-59).

The petitioner objected to this ruling (Trans. 4/14/89 at 58, 59,

74), arguing that he was entitled to ask these questions under

the fifth, sixth, eighth and fourteenth amendments to the federal

Constitution (Trans. 4/14/89 at 39, 74).

During jury selection, the trial court asked the panel the

following question:

Have any of you acquired any information about the

offense, the alleged offense, or the accused from the

news media or from any other source?

(Trans. Vol. I at 16.) Sixteen of the panel members indicated in

the affirmative (Trans. Vol. I at 16-18). The trial court then

asked:

Would the information that you heard, received, or read

from whatever source, would that information affect

your impartiality in this case?

Is there anyone th.at would say what you've read, seen,

heard, or whatever information you may have acquired

from whatever the source would affect your impartiality

so that you could not be impartial?

Have any of you expressed or formed an opinion of the

innocence or guilt of the accused?

Is there any person who has already formed an opinion

as to the innocence or guilt of the accused?

In view of everything that you've seen, heard, or read,

or any information from whatever source that you've

acquired about this case, is there anyone who believes

that you could not become a Juror, enter the Jury box

with an open mind and wait until the entire case is

presented before reaching a fixed opinion or a con-

clusion as to the guilt or innocence of the accused?

(Trans. Vol. I at 18-19.) One of the 16 responded in the affir-

mative to these questions and was dismissed for cause (Trans.

Vol. I at 21). Another person was added to the panel, and addi-

tional voir dire was completed by each party.

The jury panel then left the courtroom in preparation for

additional voir dire in groups of four. After they left, the

petitioner moved to strike for cause all those jurors who had

indicated they had acquired information about the case (Trans.

Vol. I at 51-52). The petitioner asserted that under the fifth,

sixth, eighth, and fourteenth amendments to the United States

Constitution he was entitled to question those jurors who stated

they did have some knowledge of the case specifically about what

it was they knew, and that the fact that they indicated they

could be impartial was not enough to satisfy the constitutional

requirements. The trial court overruled the motion (Trans. Vol.

I at 52-53). The petitioner then submitted in further support of

this motion newspaper articles concerning the case (Trans Vol. I

at 54), and proffered the testimony of Mark Woolverton, a police

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department spokesperson, who would have testified that he made

statements to the press concerning the petitioner at the direc-

tion of the Commonwealth Attorney's office. The court again

denied the motion and the request for Woolverton's testimony

(Trans. Vol. I at 56-57).

Seven of the original 15 on the panel who answered that they

had heard, read, or seen something about the case were eventually

seated on the panel after strikes for cause and peremptory strik-

es (Trans. Vol. I at 16-18, 197).' One other person, Paul Tsou,

who was placed on the panel after a strike for cause and even-

tually chosen as a juror, indicated during questioning that he

had previously heard and discussed the case with someone (Trans.

Vol. I at 25, 197).

On appeal, the Supreme Court of Virginia held that a de-

fendant may not, as a matter of right, question prospective jur-

ors about what they had previously read, heard, or seen about the

case. It ruled that a defendant only has a constitutional right

to know whether a prospective juror, in reliance on the informa-

tion previously obtained, has formed an opinion and whether the

juror can stand indifferent in the cause (App. at 11). A dis-

senting opinion written by Justice Whiting and joined by two

other justices stated that it was manifest error for the trial

court to refuse to allow any questions necessary to establish a

‘These included Carrington Boothe, Albert Runion, Sheila

Walters, John Taylor, Rita Wolfe, Evelyn Thorpe, and Sandra Dame.

-10-

factual and objective basis for assessing juror impartiality,

especially in light of the large amount of pretrial publicity

engendered by this case (App. at 26). The dissent stated that

the defendant had a constitutional right under the sixth and

fourteenth amendments to the United States to address the "con-

tent" questions to the prospective jurors (App. at 29-30). The

petitioner filed a petition for rehearing on this issue before

the Virginia appellate court, which petition was denied (App. at

40).

During voir dire of the panel, the petitioner also moved to

strike Alexandrina Santiago and Gregory Dailey. Ms. Santiago

indicated that she knew the victim personally and was on a first

name basis with her (Trans. Vol. I at 102-03). The petitioner

argued that, despite her statements that she could be objective,

Santiago's relationship with the victim created a substantial

danger she could not deliberate impartially (Trans. Vol. I at

107-08). The trial court summarily denied this motion and the

petitioner excepted (Trans. Vol. I at 109). Dailey stated, in

response to a question of whether jury service would be of any

undue hardship, that he worked for a small company and his ab-

sence would jeopardize its business (Trans. Vol. I at 26). Dai-

ley also stated that his absence would hamper his business finan-

cially and that it would rush and hamper his deliberations

(Trans. Vol. I at 88). The petitioner moved to strike Dailey for

cause, but the trial court refused the motion stating that he did

-Iil-

not hear Dailey state he would be rushed (Trans. Vol. I at 95-

96).

The Virginia Supreme Court found no merit to the assign-

ments of error in failing to strike Santiago and Dailey, ruling

that their responses fully supported the trial court's conclusion

that they were qualified to sit on the jury (App. at 14).

Prior to trial, the petitioner brought a motion in limine to

prevent the Commonwealth from making references to the nature or

number of crimes of which the petitioner had been previously

convicted (Trans. 4/14/89 at 16-17). The trial court denied this

motion, ruling that because the Commonwealth was required to

prove that the petitioner was confined in a state correctional

institution in order to prove the crime charged in the indict-

ment, it could offer proof of nature and number of crimes of

which the petitioner had been convicted (Trans. 4/14/89 at 29-

30). At trial, the Commonwealth was allowed to introduce tes-

timony from a Department of Corrections employee that the peti-

tioner was serving a 48-year sentence for first-degree homicide

at the time of the crime charged (Trans. Vol. II at 99). An

order of conviction for first-degree homicide was also admitted

by the trial court (Trans. Vol. III at 6-7).

On appeal, the Virginia Supreme Court ruled that any error

in admitting the. evide:ce of other crimes was harmless. It held

that because the petitioner had admitted the fact that he was

serving a sentence for homicide in an out-of-court statement made

-12-

to investigators which was admitted at trial, any error in allow-

ing evidence of the prior crime was not reversible error (App. at

16).

The petitioner also made a pretrial motion to suppress two

of his statements made during custodial interrogation on Septenm-

ber 30 and October 1, 1988. At a hearing on this motion, Officer

David Watson, who questioned the petitioner, testified that he

advised the petitioner of his Miranda warnings on each occasion

(Trans. 1/30/89 at 21, 25). He also admitted that he had brought

up the evidence police had obtained a number of times and that

the petitioner did not have an attorney at the time of question-

ing (Trans. 1/30/89 at 27-28). The petitioner testified that

during this questioning he was tired and frustrated, which caused

him to say things during the interview he wouldn't have said

otherwise (Trans. 1/30/89 at 32-33). After this testimony, the

trial court ruled that the petitioner understood what was going

on at the time of the questioning and denied the motion to sup-

press the two statements (Trans. 1/30/89 at 51-52).

The Supreme Court of Virginia upheld this ruling, stating

that the transcript of the police questioning did not reveal any

evidence of coercion, and that the questioning was done after the

petitioner had been given his Miranda rights (App. at 7).

Prior to trial, the petitioner submitted a motion to dismiss

the capital murder indictment on the ground that Virginia's capi-

tal sentencing statute violates the eighth and fourteenth amend-

-13-

ment in that (1) the statutory "vileness" and "future dangerous-

ness" predicates offer no guidance to the jury in determining

whether to impose the death penalty, (2) use of “future danger-

ousness" violates the prohibition on double jeopardy, (3) the

death penalty itself violates the prohibition of cruel and un-

usual —’ and (4) Virginia does not provide meaningful

appellate review of death sentences (Trans. 4/7/89 at 5). The

trial court summarily denied the motion, and the petitioner ex-

cepted (Trans. 4/14/89 at 11). On appeal, the Supreme Court of

Virginia also summarily upheld the constitutionality of the Vir-

ginia statute based upon other cases it had decided (App. at 5).

On appeal, the petitioner argued that the death sentence was

imposed under the influence of passion, prejudice and other ar-

bitrary factors. In addition to what transpired at trial, the

petitioner also pointed out that during argument over the admis-

sibility of evidence at the sentencing hearing, the trial court

made comments questioning the relevancy of certain evidence sub-

mitted by the petitioner (Trans. 4/21/89 at 154). The Virginia

Supreme Court upheld the validity of the death sentence, and held

that the trial court's remark was not prejudicial, because it

might not have been heard by the jury and the evidence was ad-

mitted in any event (App. at 19).

-14-

REASONS FOR ALLOWING THE WRIT

I. THE PETITIONER WAS DENIED HIS RIGHT TO AN

IMPARTIAL JURY WHEN THE TRIAL COURT REFUSED

TO ALLOW QUESTIONING OF PROSPECTIVE JURORS

CONCERNING WHAT THEY HAD PREVIOUSLY HEARD OR

READ ABOUT THE CASE.

Despite the petitioner's repeated attempts, the trial court

refused to allow him to question the prospective jurors about

precisely what they had read, seen, or heard about the case prior

to the trial. Instead, during voir dire questions were only

asked about whether the jurors had read, heard, or seen anything

about the case, and if so, whether that would impair their abil-

ity to decide the case impartially. The record shows that eight

of those who were actually seated on the jury that convicted the

petitioner and sentenced to death had read or heard something

about the case, but is silent as to the content of the pretrial

publicity to which they were exposed.

The failure of the trial court to allow the petitioner to

question the prospective jurors about the content of the public-

ity to which they had been exposed deprived him of his sixth

amendment right to an impartial jury, made applicable to the

states by the fourteenth amendment. "In essence, the right to

jury trial guarantees to the criminally accused a fair trial by a

panel of impartial, ‘indifferent' jurors." Irvin v. Dowd, 366

U.S. 717, 722 (1961). The sixth amendment and the due process

clause mandate not only the formality of a jury trial but also

that the jury be impartial. Ristaino v. Ross, 424 U.S. 589, 595

-15-

n.6 (1976). The constitutional standard for jury impartiality is

whether he can lay aside his opinion and render a verdict based

on the evidence presented. Patton v. Yount, 467 U.S. 1025, 1037

n.12 (1984). »

Although the trial court applied this standard in assessing

whether those jurors who had heard, read or seen something about

the case were qualified, still its failure to allow questioning

concerning precisely what they had read or heard frustrated the

petitioner's ability to obtain a fair jury. As pointed out in

Irvin v. Dowd, supra, 366 U.S. at 728, "{n]o doubt each juror was

sincere when he said that he would be fair and impartial to peti-

tioner, but psychological impact requiring such a declaration

before one's fellows is often its father." More recently, this

Court stated that a juror's assurances that he is equal to the

task of being impartial cannot be dispositive of his rights, and

"it remains open to the defendant to demonstrate ‘the actual ex-

istence of such an opinion in the mind of the juror as will raise

the presumption of partiality.'" Murphy v. Florida, 421 U.S.

794, 800 (1975) (quoting Irvin v. Dowd, supra, 366 U.S. at 723).

Thus, the fact that jurors state they would stand impartial

in the cause and not be affected by pretrial publicity cannot be

deemed sufficient to guarantee the defendant's right under the

sixth amendment. The defendant still must be free to show that

the prospective juror possesses information and harbors feelings

that would render him partial. u Vv. ida, supra, 421

-16-

U.S. at 794. The Supreme Court of Virginia's determination that

the defendant does not have a constitutional right to pose ques-

tions that examine precisely what information the prospective

jurors have been exposed to is simply at odds with this Court's

decisions establishing that the defendant is entitled to probing

voir dire to determine "possible biases, both known and unknown,

on the part of potential jurors." McDonou i Vv.

Greenwood, 464 U.S. 548, 554 (1984).

Indeed, this Court's decisions indicate that the questioning

of jurors as to the content of the prejudicial information to

which they have been exposed is not merely desirable but neces-

sary in establishing whether they are impartial or not. In Wain-

wright v. Witt, 469 U.S. 412, 423 (1985), this court clarified

the standard for excluding jurors based upon their views of capi-

tal punishment. It was stated in the course thereof that "[aJjs

with any other trial situation where an adversary wishes to ex-

clude a juror because of bias, then, it is the adversary seeking

exclusion who must demonstrate, through questioning, that the

potential juror lacks impartiality." Id. at 423. Similarly, in

Dobbert v. Florida, 432 U.S. 282, 302-03 (1977), a defendant's

claim that his right to an impartial jury was undermined by the

pretrial publicity of his case was rejected because it rested

solely upon the quantum of media publicity. The opirion noted

that the defendant pointed to no specific portion of the record,

particularly voir dire, which would require a finding that the

-l7<-

method of juror selection or character of the jury was constitu-

tionally unfair. Id. at 303; see also Patton v. Yount, supra,

467 U.S. at 1038 (there must be fair support in the record for

the state court's conclusion that the jurors would be impar-

tial).

These cases demonstrate that establishing either that the

trial itself was impermissibly affected by pretrial publicity or

that individual jurors were prejudiced by their pretrial exposure

to information about the case must be on the basis of specific

voir dire questions and answers appearing on the record. Yet the

trial court in the instant case prevented the petitioner from

establishing such prejudice as to members of the jury panel by

prohibiting questions concerning the content of the information

to which they had been exposed. As noted above, the determina-

tion of a juror's impartiality cannot be made solely on the basis

of prospective juror's assurance that he or she would be impar-

tial. Murphy v. Florida, supra, 421 U.S. at 800. The petitioner

here was entitled to go beyond the trial court's perfunctory

questioning concerning the jurors' pretrial exposure to informa-

tion about the case and ask questions that would allow him to

determine whether the information the jurors obtained rendered

them partial.

The constitutional necessity of the content questions prof-

fered by the petitioner is supported by the decisions of the

lower federal courts. For example, in United States v. Affleck,

-18-

776 F.2d 1451, 1455 (10th Cir. 1985), the court noted that the

determination of whether jurors harbor prejudices against the

defendant is normally accomplished through voir dire, but held

that "[ijt is not .. . enough to ask a juror the stock ques-

tions, ‘have you formed an opinion as to the accused's innocence

or guilt' or ‘will you be able to determine guilt based only on

the evidence presented?'" It then cited Irvin v. Dowd, supra,

and Murphy v. Florida, supra, for the proposition that prospec-

tive jurors' assurances that they are impartial is not enough,

and the defendant must be allowed to show the existence of par-

tiality on their part through an examination of all the cir- _

cumstance. Although the suffictency of the voir dire was upheld

there, this was only after the court found that the prospective

jurors had completed a questionnaire asking detailed questions

about their knowledge of the case's participants and surrounding

events and that the parties were allowed to probe the jurors

about any troublesome matters. United States v. Affleck, supra,

776 F.2d at 1451.

Similarly, in Silverthorne v. United States, 400 F.2d 627

(9th Cir. 1968), the court reversed a conviction where the trial

court had questioned prospective jurors concerning whether they

had heard or read anything about the case but refused to allow

the defendant to question them further about what information

they had been exposed to. The court held that "in the absence of

examination designed to elicit answers which provide an objective

-19-

basis for the court's evaluation, ‘merely going through the form

of obtaining jurors' assurances of impartiality is insufficient

to test that impartiality.'" Id. at 638 (quoting United States

ex rel. Bloeth v. Denno, 313 F.2d 364, 372 (2d Cir.), cert. de-

nied, 372 U.S. 978 (1963)). Although the court conceded that

jurors need not have read or heard nothing about a case, "“whe-

ther a juror can render a verdict based solely on evidence ad-

duced in the courtroom should not be adjudged on the juror's own

assessment of self-righteousness without something more."

Silverthorne v. United States, supra, 400 F.2d at 639 (emphasis

in original). Because the trial court did not determine what

information the prospective jurors had accumulated prior to

trial, it had no way to objectively assess their impartiality,

thereby prejudicing the defendant's right to a fair jury. Id. at

638.

And in Jordan v. Lippman, 763 F.2d 1265 (1llith Cir. 1985),

the court reversed the district court's decision denying Jordan a

writ of habeas corpus, finding that the voir dire at Jordan's

state trial was insufficient to protect his right to an impartial

jury under the sixth amendment. After noting that Jordan's case

had been the subject of much publicity, the court found that the

trial court's denial of individualized voir dire to determine

whether potential jurors were biased by that publicity, and only

asking whether they had previously formed an opinion and could

act impartially, violated Jordan's right to an impartial jury.

-20-

It held that the law requires that jurors must be questioned as

to whether they were exposed to pretrial publicity, and if so,

further inquiry into the nature of the exposure is required. Id.

at 1281. The Jordan court relied in part on the decision in

United States v. Davis, 583 F.2d 190 (5th Cir. 1978), where a

defendant was again prevented by the trial court from questioning

potential jurors about the content of any publicity to which they

were exposed, relying only on responses from the jurors that they

could be impartial. In reversing, the Davis court found such

questioning to be "cursory" and held:

The court should have determined what in particular

each juror had heard or read and how it affected his

attitude toward the trial, and should have determined

for itself whether any juror's impartiality had been

destroyed.

Id. at 196; see also United States v. Deilinger, 472 F.2d 340,

374-75 (7th Cir. 1972), cert. denied, 410 U.S. 970 (1973) (where

there is substantial pretrial publicity concerning a criminal

case, trial court is obligated to conduct individualized voir

dire concerning the impact of the publicity upun the potential

jurors).

The decisions clearly indicate that the kind of perfunctory

voir dire allowed to the petitioner in this case is insufficient

to protect an accused's right to an impartial jury and violates

his sixth amendment rights. As pointed out in the dissenting

opinion below, the record discloses an unusual amount of pretrial

publicity, especially since it involved the killing of a local

-21-

resident allegedly by a convict working outside prison for the

Department of Transportation (App. at 26-27). In light of the

notoriety of the case, it was improper for the trial court here

to rely solely upon the jurors' assertions that they could be im-

partial since "(t]he juror is poorly placed to make a determina-

tion as to his own impartiality." United States v. Davis, supra,

583 F.2d at 197. The petitioner was entitled to voir dire of the

prospective jurors concerning what they had read and heard about

the case, because it is only through such questioning that an

objective determination as to their prejudice, vel _ non, can be

determined. Silverthorne v. United States, supra, 400 F.2d at

638.

Despite the existence of these decisions mandating "content"

questions on voir dire as a matter of a defendant's sixth amend-

ment right, the court below held that such questions did not have

to be asked because the prospective jurors were asked whether

they could stand indifferent in the cause. In support, the Su-

preme Court of Virginia cited only United States v. Haldeman, 559

F.2d 31, 67-68 (D.C. Cir. 1976), cert. denied, 431 U.S. 933

(1977), which held that it was not necessary to ask "content"

questions. However, as pointed out by the dissent below (App. at

34-35), reliance on the Haldeman decision is misplaced. First,

the decision in Haldeman explicitly agreed that certain standards

of criminal justice mandate that veniremen be questioned concern-

ing what they have read and heard about the case and how it has

-22-

affected their attitudes toward the trial. 559 F.2d at 69.

Secondly, that court also stated that it would have been error

for the trial court to rely solely upon the prospective jurors'

assurances that they could be fair, and that the trial court

there asked other questions concerning how close they had fol-

iowed the Watergate case and their sources of information. Id.

at 67 n.51. In this case, the trial court had no objective facts

upon which to assess a juror's bias and did rely solely upon

their statements that they would be fair.

Therefore, the Supreme Court of Virginia erred in relying on

the Haldeman decision and in finding that the petitioner had not

been deprived of his sixth amendment right. That right was vio-

lated by the trial court's refusal to allow questioning of the

prospective jurors concerning what they had been exposed to in

the way of pretrial publicity. The trial court's reliance upon

the jurors' statements of impartiality was constitutionally in-

adequate to assure the petitioner's right to a fair trial and

requires that the petitioner's conviction be reversed.

II. THE PETITIONER WAS DENIED HIS RIGHT TO AN

IMPARTIAL JURY IN THE SENTENCING PHASE WHEN

TRIAL COURT REFUSED TO ALLOW QUESTIONING OF

PROSPECTIVE JURORS CONCERNING WHAT THEY HAD

PREVIOUSLY HEARD OR READ ABOUT THE CASE.

The trial court's error in not allowing questioning of the

prospective juror's about what information they had been exposed

to prior to the trial not only deprived the petitioner of his

-23-

sixth amendment right, but also his eighth amendment right, which

is applicable because this was a capital murder prosecution and

he was sentenced to death. This Court has recognized "that the

qualitative difference of death from all other punishments re-

quires a correspondingly greater degree of scrutiny of the capi-

tal sentencing determination." California v. Ramos, 463 U.S.

992, 998-99 (1983). In this case, that higher degree of scrutiny

should be applied to the selection process of the petitioner's

jury which not only found him guilty of capital murder, but rec-

ommended that the death penalty be imposed. As noted above, the

trial court did not allow the petitioner to question the prospec-

tive jurors about what they had read and heard about the case,

thereby allowing jurors to be seated who were not demonstrably

impartial or free of preconceived notions about the petitioner.

That this inadequate voir dire violated the petitioner's

right to be free from an arbitrary and capricious jury decision

to impose the death penalty is demonstrated by this Court's deci-

sion in Turner v. Murray, 476 U.S. 28 (1986). There, a judgment

imposing the death penalty under Virginia's capital sentencing

scheme was overturned where the trial court refused to allow voir

dire questioning of the jury panel concerning their racial preju-

dices, where it was alleged that the black defendant killed a

white person. This Court noted not only that a greater degree of

scrutiny is demanded of cases involving the death penalty, but

also that Virginia's death penalty system gives the jury greater

-24-

discretion than other systems that have been considered by the

Court. Id. at 34. It also was stated that the risk of prejudice

infecting a capital sentencing proceeding “is especially serious

in light of the complete finality of the death sentence." Id. at

35. Although the conviction was not overturned, the death sen-

tence was because of the risk produced by the inadequate voir

dire. Id. at 37-38.

The inadequate voir dire in the instant case, as discussed

in Part I, supra, also requires that at the very least the sen-

tence of death imposed upon the petitioner be reversed. As

pointed out in the Turner decision, the risk of an arbitrary or

capricious imposition of the death penalty is heightened where

the voir dire allowed inadequately screens jurors for prejudice.

This is especially true under Virginia's death penalty scheme

which grants wide discretion to the jury. Because of this unac-

ceptable risk of arbitrary sentencing and the greater degree of

scrutiny applicable here, the sentence imposed should be reversed

because of the trial court's inadequate protection of the peti-

tioner's right to an impartial jury under the sixth, eighth and

fourteenth amendments.

III. THE TRIAL COURT DEPRIVED THE PETITIONER OF

HIS RIGHT TO AN IMPARTIAL JURY WHEN IT FAILED

TO STRIKE TWO JURORS FOR CAUSE.

The principles discussed above relating to the petitioner's

constitutional right to an impartial jury also were violated when

-25-

the trial court refused the petitioner's motions to strike two

jurors for cause. The first, Ms. Santiago, stated that she knew

the victim and patronized her store; indeed, Ms. Santiago re-

ferred to the victim by her first name during voir dire (Trans.

Vol. I at 102-03). The second, Mr. Dailey, indicated that be-

cause of his employment with a small business and the time jury

service would take up, he would be hampered in his deliberations~

and he would feel rushed (Trans Vol. I at 26, 88).

Again, the sixth amendment and the due process clause man-

date not only the formality of a jury trial but also that the

jury be impartial. Ristaino v. Ross, supra, 424 U.S. at 595 n.6.

"In essence, the right to jury trial guarantees to the crim-

inally accused a fair trial by a panel of impartial, ‘indif-

ferent' jurors. The failure to accord an accused a fair hearing

violates even the minimal standards of due process." Irvin v.

Dowd, supra, 366 U.S. at 722. The central inquiry in the deter-

mination of whether a juror should be excused for cause is whe-

ther the juror harbors some feeling that would "prevent or sub-

stantially impair the performance of his duties as a juror in

accordance with his instructions and his oath." Wainwright v.

Witt, supra, 469 U.S. at 424.

In this case, both Santiago and Dailey indicated that their

ability to decide the cause impartially would be hampered, in one

case because of the personal relationship Santiago had with the

victim and in the other Dailey's feeling that he would be rushed

-26-

in deliberating on the case. While neither Santiago nor Dailey

was eventually seated on the jury, the trial court's retention of

them on the jury panel forced the petitioner to use peremptory

challenges that would not otherwise have been used. The right of

peremptory challenges is one of the most important of rights se-

cured to the accused, and a denial or impairment of that right is

reversible error without a showing of prejudice. Swain v. Ala-

bama, 380 U.S. 202, 219 (1965). The trial court's action re-

sulted in an impairment of the petitioner's right to peremptory

challenges and requires that the judgment below be reversed.

IV. THE TRIAL COURT DEPRIVED THE PETITIONER OF

HIS FUNDAMENTAL RIGHT TO A FAIR TRIAL BY

ALLOWING EVIDENCE OF UNRELATED CRIMES.

Despite the petitioner's pretrial motion to prevent the Com-

monwealth from introducing evidence of prior crimes, the Common-

wealth was allowed to make repeated references to the fact that

the petitioner had been convicted of murder in 1973. Even though

the Commonwealth was required to prove that the petitioner was

incarcerated at the time of the crime alleged under Va. Code Ann.

§ 18.2-31(c) (1988), it was possible to prove that the petitioner

was a prisoner without making reference to the fact that he had

previously been convicted of murder. This could have been done

either by records indicating merely the fact of incarceration or

by testimony from correction officials stating that the petition-

er was a prisoner on the date of the alleged offense.

-27-

Because the only relevant inquiry under the offense charged

was whether the petitioner was incarcerated, not the basis for

that incarceration, evidence of the fact that he had been con-

victed of murder was wholly irrelevant and could serve only to

unfairly prejudice him in the eyes of the jury. This Court has

recognized that the introduction of evidence of prior unrelate

crimes by a criminal defendant may be so extremely unfair as to

violate the fundamental conceptions of justice embodied in the

due process clause of the fourteenth amendment. Dowling v.

United States, 110 S. Ct. 668, 674-75 (1990). Where the prosecu-

tion is allowed to introduce such evidence under circumstances

where it is without basis and wholly irrelevant, due process is

violated. Foster v. Watkins, 423 F. Supp. 53, 55 (W.D.N.C.

1976), aff'd, 570 F.2d 501 (4th Cir. 1978).

The circumstances here are of the type that deprived the

petitioner of a fundamentally fair trial. Evidence of his prior

conviction for murder served no real purpose at trial other than

to convey to the jury that he was a bad person or that he had a

character trait that made him prone to violence. That purpose is

clearly irrelevant and improper. See Fed. R. Evid. 404(b) (evi-

dence of other crimes is inadmissible to prove the character of

the person). Evidence of the other crime irreparably and un-

fairly prejudiced the petitioner, and reversal of the conviction

is required.

-28-

V. THE PETITIONER WAS DEPRIVED OF HIS RIGHT TO

DUE PROCESS WHEN THE TRIAL COURT ALLOWED IN-

TRODUCTION OF STATEMENTS HE MADE DURING CUS-

TODIAL INTERROGATION THAT WERE INVOLUNTARY.

Even though the petitioner had been read his Miranda rights

prior to speaking to Officer Watson and did not specifically in-

voke either his right to remain silent or to have an attorney

present, the fact that Miranda warnings were read is not disposi-

tive of the admissibility of custodial statements made by a crim-

inal defendant. It is now well established that a defendant's

statement that is not given as a free and rational choice vio-

lates due process and is inadmissible at trial. fe) ado v. Con-

nelly, 479 U.S. 157 (1986); Townsend v. Sain, 372 U.S. 293

(1963). Even assuming no violation of the prophylactic Miranda

rule is apparent, the statement is still inadmissible if it is

involuntary in that it is not the product of a rational intellect

and a free will. Mincey v. Arizona, 437 U.S. 385, 397-98 (1978).

The hearing on the petitioner's motion to suppress the

statements he gave to Owens shows that those statements were not

the product of the petitioner's free will. The petitioner tes-

tified that he was tired and frustrated at the time of the ques-

tioning and that this caused him to say things he would not have

otherwise said (Trans. 1/30/89 at 32-33). In Vv. n-

nessee, 322 U.S. 143, 153-54 (1944), a defendant's statements

made after he had been held incommunicado and questioned repeat-

edly were not voluntarily given because of the fatigue the de-

fendant was under at the time of the statements. The petitioner

-29-

here was questioned under similar circumstances; he was incar-

cerated at the time of the statements and was tired and subject

to the suggestions of Owens.

Moreover, the transcript of the statements indicates that

Owens played upon the petitioner's fatigue by falsely represent-

ing that he was trying to help the petitioner and that he already

had information proving the petitioner's guilt. In Spano v. New

York, 360 U.S. 315, 323-24 (1959), this Court condemned the po-

lice practice of posing as a false friend of the subject of in-

terrogation merely for the purpose of extracting an incriminat-

ing statement from him. Owens engaged in precisely the kind of

conduct that Spano condemned. When this police overreaching is

combined with the mental and physical state of the petitioner at

the time of his statements, the inescapable conclusion is that

the statements were not the result of a voluntary act. Although

the statements themselves were not incriminating, they were at

variance from his trial testimony and surely prejudicial to the

petitioner's case by indicating that he had lied in the past. As

such, the admission of the statements was prejudicial and the

error in admitting them is cause for reversing the judgment

below.

-30-

VI. THE PETITIONER'S DEATH SENTENCE MUST BE RE-

VERSED BECAUSE VIRGINIA'S DEATH PENALTY

SCHEME IS VIOLATIVE OF THE EIGHTH AMENDMENT.

A fundamental teaching of this Court's decisions involving

death penalty statutes is that the scheme employed by the state

for invoking this ultimate of penalties must not allow a jury to

make the determination without guidance. Sentencers may not be

given unbridled discretion in determining the fate of those

charged with capital crimes, and statutes must be structured to

prevent the penalty from being imposed in an arbitrary and un-

predictable fashion. California v. Brown, 479 U.S. 538, 545

(1987); e v. Ge la, 428 U.S. 153, 197 (1976).

This fundamental tenet is violated by the statutory scheme

under which the petitioner was sentenced. Va. nn. § 19.2-

264.2 (1983) allows the jury to impose the death sentence if it

finds that the defendant's "conduct in committing the offense for

which he stands charged was outrageously or wantonly vile, hor-

rible or inhuman[.]" This "vileness" predicate gives a Virginia

jury essentially no guidance in determining which crimes should

be punished by death. This conclusion is supborted by this

Court's decision in Maynard v. Cartwright, 108 S. Ct. 1853

(1988), where Oklahoma's statutory scheme allowing the imposition

of the death penalty upon a jury finding that the crime was

"especially heinous, atrocious or cruel" was struck down as vio-

lative of the eighth amendment's requirement that jury discretion

be suitably restricted. There is no reasonable distinction be-

-3l1l-

tween the language used in the unconstitutional Oklahoma statute

and the "vileness" predicate of Virginia's statute. In both

cases, there is still the unbridled discretion condemned by the

Constitution, and for that reason the petitioner's death sentence

should be reversed as it was obtained under an unconstitutional

statute.

The same argument applies with respect to the other predi-

cate contained in Va. Code Ann. § 19.2-264.2, “future dangerous-

ness." Nothing in either the statutory or case law of Virginia

provides guidance as to the standard of proof necessary to sup-

port a-finding that a defendant, based upon his prior record,

poses a continuing danger to the community. The jury is given

open-ended discretion in deciding when the proof has risen to a

level necessary to establish the fact of future dangerousness.

Without providing meaning and guidance, the sentencing scheme

allows the jury to arbitrarily and capriciously impose the ul-

timate punishment of death, a result that violates the eighth

amendment and requires reversal of the petitioner's sentence.

The Virginia statutory scheme for imposing the death penalty

also is unconstitutional because it fails to allow for a meaning-

ful avenue of appellate review of the imposition of that penalty.

As pointed out in Pulley v. Harris, 465 U.S. 37, 44 (1984), near-

ly every state that has adopted a death penalty scheme has also

mandated automatic appellate review of a judgment imposing the

death penalty. Indeed, such review is necessary under the eighth

-32-

amendment to assure that the death penalty is not imposed in an

arbitrary manner. e v. Georgia, 428 U.S. 153, 198 (1976).

Virginia law also provides for automatic review of death senten-

ces under Va. Code Ann. § 17-110.1 (1988). The Supreme Court of

Virginia is to review any sentence of death to determine whether

it was “imposed under the influence of passion, prejudice or any

other arbitrary factor," and whether it is “excessive or dispro-

portionate to the penalty imposed in similar cases, considering

both the crime and the defendant." Id., § 17-110.1(C).

However, unlike the appellate review provided for in other

jurisdictions, Virginia's sentencing scheme does not provide for

meaningful review. For example, in Pulley, supra, 465 U.S. at

53, it was noted that there was a requirement that the jury spec-

ify the special circumstance justifying imposition of the death

penalty so that the appellate court could adequately determine

whether the death penalty was actually justified. And in Prof-

fitt v. Florida, 428 U.S. 224, 251 (1976), Florida's death penal-

ty scheme was upheld where meaningful appellate review was made

possible by the requirement that the trial judge justify the im-

position of the death penalty with written findings.

Virginia's scheme provides no such safeguards to assure that

the death penalty was not arbitrarily applied. There is no re-

quirement that the trial court or jury specify precisely which of

the statutory aggravating factors was reiied upon in determining

to impose the death penalty. Absent such a finding, there is no

-33-

way for the Virginia supreme Court to conduct the meaningful re-

view of the sentence mandated by the eighth amendment.

Additionally, the review that is mandated by Va. Code Ann. §

17-110.1 is conducted in a wholly cursory and arbitrary manner.

An examination of Virginia Supreme Court cases conducting this

statutory review usually state in only a vague and general manner

that the sentence was neither imposed under passion or prejudice

or based upon other arbitrary factors. This certainly is not the

kind of in-depth, meaningful review contemplated by the eighth

amendment.

For these reasons, Virginia's death penalty scheme is uncon-

stitutional and the petitioner's sentence under that scheme

should be reversed.

V a. THE IMPOSITION OF THE DEATH SENTENCE IN THIS

CASE IS UNCONSTITUTIONAL BECAUSE IT WAS THE

RESULT OF PASSION, PREJUDICE, AND OTHER AR-

BITRARY FACTORS.

The petitioner's sentence of death in this case also should

be reversed because its imposition was the result of arbitrary

factors. As pointed out in parts I and II, supra, there was ex-

tensive pretrial publicity resulting in prejudice to the peti-

tioner and a trial filled with passion against him. This preju-

dice was not weeded out by the trial court and, in light of the

greater scrutiny applicable to death sentences, mandates reversal

of the petitioner's sentence.

-34-

Additionally, the sentencing phase of the trial was infected

by the court's comments upon relevant evidence submitted by the

petitioner in opposition to the death penalty. The trial court

derided the relevancy of a Virginia Department of Transportation

regulation offered by the petitioner, which effectively conveyed

to the jury that the petitioner's case in opposition to the death

penalty was not worthy of respect. Although the Supreme Court of

Virginia indicated that the comment was harmless because it might

not have been heard by the jury, there is nothing in the trans-

cript indicating that the comment was not made in open court for

all therein to hear. The qualitative difference in the death

penalty and the corresponding need for greater reliability in the

decision-making process cannot tolerate the kind of prejudice

injected into the proceedings by the trial court. Woodson v.

ort Olina, 428 U.S. 280, 305 (1976). Therefore, the death

penalty imposed upon the petitioner here must be reversed.

-35-

CONCLUSION

For the foregoing reasons, the petitoner, Dawud Majid

Mu'Min, respectfully requests that a writ of certiorari issue to

review the judgment of the Supreme Court of Virginia convicting

him of murder and sentencing him to death.

Respectfully Submitted,

# 101387

Mecklenburg Correctional Center

Post Office Box 500

Boydton, VA 23917

Attorney Pro Se

-36-

VIRGINIA:

’ y y y

& Che Supers PPLa £ “e vA ‘ St 4, a ehh hcdel ad Che Sart te Pra /, wre hulle ng 47 Vhs

| (ily f fudhime nd or *riday 4“, 20th way of April, 1990.

Dawud Majid Mu'Min, e¢/k/a, etc., Appellant,

against Record No. 890899

Circuit Court No. 23103

Commonwealth of Virginia, Appellee.

Upon a retition tor Rehearing

On considexation of the petition of the appellant to set

aside the judgment rendered herein on tre 2nd day of March, 1990 a-4

APPENDIX grant a rehearing th:reof, the prayer of the said petition is

denied.

A Copy,

Teste:

; NOVO36

VIRGINIA:

In 7 Sugpreme A curd f Iiginia 4edd al lhe Suprrem V cured Building an lhe

Vly f Hlechone nd « ad Fr iday lhe 2nd day f March, 1390 .

Dawud Majid Mu'Min,

a/k/a David Michael Allen, Appellant,

against Record No. 890899

Circuit Court No. 23103

Commonwealth of Virginia, Appellee.

Upon an appeal of right from

a judgment rendered by the Circuit

Court of Prince William County on

the 12th day of June, 1989.

For reasons stated in writing and filed with the record,

the Court is of opinion that there is no error in the judgment

appealed from. Accordingly, the judgment is affirmed.

It is ordered that the said circuit court allow counsel

for the appellant on the merits and on the issue of ineffective

assistance of counsel, each a fee of $1,550 for services rendered

the appellant on this appeal, in addition to counsel's costs and

necessary direct out-of-pocket expenses.

This order shall be certified to the said circuit court.

A Copy,

Teste:

pps

Clerk

Yresent: Carrico, C.J., Compton, Stephenson, Russell, Whiting,

and Hassell, JJ., and Poff, Senior Justice

DAWUD MAJID MU'MIN A/K/A

DAVID MICHAEL ALLEN

OPINION BY SENIOR JUSTICE RICHARD H. POFF

v. Record No. 890899 March 2, 1990

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY

H. Selwyn Smith, Judge

Dawud Majid Mu'Min, also known as David Michael Allen, was

tried by a jury on an indictment charging capital murder.

Invoking the three grounds defined in subsections (c), (da), and

(e) of Code § 18.2-31 (Repl. Vol. 1988) (now, subsections (3),

(4), and (5) of § 18.2-31), the indictment alleged that the

killing had been committed while the accused “was a prisoner

confined in a State or local correctional facility or while in

the custody of an employee thereof, or while in the commission

of robbery, while armed with a deadly weapon, or during the

commission of or subsequent to rape”.

The verdict form submitted to the jury in the first phase

of the bifurcated trial quoted the three grounds alleged in the

indictment and instructed the jury to "strike out" any ground

"that you do not find beyond a reasonable doubt."

The jury marked through the third ground and returned a guilty

verdict based upon the first and second grounds.

The verdict form submitted to the jury in the penalty phase

of the trial quoted the language of Code § 19.2-264.4(C)

defining the "dangerousness" and the "vileness" predicates and

instructed che jury to strike out the language of either

predicate "if either you do not unanimously find." The jury,

"having considered the evidence in mitigation of the offense,"

returned the form unaltered and "unanimously fix[ed) .

punis™ment at death." After reviewing the probation report

required by Code § 19.2-264.5, the trial court entered judgment

confirming the conviction and imposing the penalty fixed by the

jury. We have consolidated the defendant's appeal of the

conviction with the automatic review of the sentence, Code

§ 17-110.1(A) and (F), and accorded both priority on our docket,

Code § 17.2-110.2.

I. THE EVIDENCE

Most of the facts and circumstances related to the attack

which led to the victim's death are drawn from the defendant's

testimony at trial. Convicted in 1973 of first degree murder

and sentenced to a term of 48 years, the defendant was an inmate

at Haymarket Field Unit #26. On the morning of September 22,

1988, he and five other prisoners were transported to the

Virginia Department of Transportation's Dale City Headquarters

(VDOT) where they were assigned to a work detail supervised by a

VDOT employee.

During the course of his work that morning, the defendant

damaged the point of a screwdriver which he repaired with the

use of a bench grinder. At the same time he used the grinder to

sharpen a short piece of metal (sometimes referred to as a

"highway spike") into the shape of a screwdriver, added a wooden

handle, and attached the*device to his shirt pocket with a

holder Fashioned from a paper clip. When the work crew

suspended operations for lunch, the defendant crossed the

perimeter fence and walked along Interstate Route 95 a distance

of approximately a mile to Ashdale Plaza, a shopping center.

There, he entered Dale City Floors, a retail carpet store, and

inguired of the operator, Mrs. Gladys Napwasky, about oriental

carpets.

The defendant challenged the prices she quoted, and a

heated argument ensued. ! According to the defendant, she

"started screaming . . . nigger this and nigger that" and “spit

in [his] face." The defendant slapped her with his open hand,

and she kicked him in the genitals. As the defendant fell to

the floor, he “caught the top part of her pants" and pulled them

"down right .. . by the thighs." Mrs. Napwasky "slashed" at

him with a steak knife. The defendant "pushed her off and.

went straight for the shirt pocket and. . . came up and hit her

in the chest and hit her up in the neck." "Blood was coming

from the nose and mouth and... a trickle of blood... from

the neck." The defendant "checked her pulse to make sure she

was okay", placed a wet washcloth on the neck wound, and "took

the sleeve of [his] shirt and. . . wiped her face." While

searching for a first aid kit, the defendant found four dollars

in coins. He explained that he left the store intending to use

the coins to purchase ice from a vending machine located in the

lother evidence showed, however, that Dale City Floors had

not stocked oriental carpets for eleven years.

shopping center to apply to his victim's wounds. Changing his

mind, he re-entered the store and "started wiping all the things

that [he] could remember that [he] had touched." When he

returned to the VDOT, he washed blood from his shoes, took off

his bloody shirt, "put it in the trash bag and threw it in the

trash can." He discarded the weapon used in the attack along

the highway. The defendant testified that he had not raped his

victim.

A customer of the carpet store found Mrs. Napwasky lying on

the floor and called a rescue squad. A paramedic testified that

he had found her "face up on her back on the floor in a pool of

blood that was around her head and upper body"; that she was

naked below the waist and her blouse and brassiere had been

pulled above her breasts; that although her heart was beating,

"she was breathless and pulseless" because there was "no .

fluid for it to actually pump." The autopsy report identified

16 cuts and puncture wounds on the face, neck, chest, and left

arm. A neck wound, three inches deep, severed the jugular vein.

A wound four inches deep in the left chest cavity penetrated the

left lung. Evidence of numerous "blunt-force trauma injuries"

was found on her face and forehead. The victim's genital area

was undisturbed.

The Commonwealth introduced the testimony of several of the

defendant's fellow inmates concerning his conduct following

arrest. One witness testified that the defendant had fallen to

his knees, crying and saying that he had killed somebody.

Another said that the defendant had told him that he had

murdered and robbed his victim. A third prisoner testified that

the defendant had conceived an escape plan involving the use of

violence. In a search of the defendant's cell while he was

awaiting trial, the authorities found a piece of metal taken

from a typewriter page stand and an ear bracket from a pair of

spectacles. Both appeared to have been sharpened.

Il. PRE-TRIAL ISSUES

A. Constitutional Challenges

The defendant filed a motion to dismiss the indictment on

the ground that the capital murder statutes are

unconstitutional. The trial court rejected the several

challenges articulated in a detailed memorandum. The defendant

incorporated the memorandum in his brief filed in this Court.

All the arguments urged by the defendant have been considered

and rejected. See the decisions cited in Spencer v.

Commonwealth, 238 Va. 563, 568-69, 385 S.E.2d 850, 853-54

(1989); Watkins v. Commonwealth, 238 Va. ~~ , 385 S.E.2d

50, 56-7 (1989); Buchanan v. Commonwealth, 238 Va. 389, 412-13,

384 S.E.2d 757, 771 (1989), cert. denied, U.S. , 58

U.S.L.W. 3468 (1990); and Pope v. Commonwealth, 234 Va. 114,

121-22, 360 S.E.2a 352, 357 (1987), cert. denied, 485 U.S. 1015

(1988). We reaffirm our decisions in those cases.

B. Motion to Suppress

The trial court overruled the defendant's motion to

suppress statements he had made to an officer in two interviews

conducted prior to his arrest. Initially, he stated that, upon

hearing a scream, he had entered the carpet store to find "a

white guy" with "long blond hair" whko was "bending over" with

“his pants pulled down" and a "lady . . . laying on the floor"

alive but “bleeding through her mouth [and] nose". The white

man fled, Mu'Min said, and the defendant "went out the [back]

door." Abandoning that account later, the defendant

acknowledged that he had entered the store to inquire about an

oriental rug and had struck Mrs. Napwasky twice during a bitter

quarrel over prices. In sigthificant respects, Mu'Min's two

statements were irreconcilably inconsistent. They were no more

incriminating than his testimony at trial.

Attacking the trial court's ruling permitting selective

portions of his extra-judicial statements to be read into

evidence, the defendant contends that his statements were not

voluntary because, he says, they were made while he was

“incarcerated on a prior charge", while he "was -tired and

scared", and at a time when he was given no “opportunity to

speak with legal counsel." He declares on brief that he “merely

said what the Investigator wanted him to say in the misguided

belief that the Investigator was going to help him."

Admissibility of a defendant's

statements is an issue to be decided by the

[trial] court, which evaluates the

credibility of the witnesses, resolves any

conflicts in the testimony, and weighs the

evidence as a whole. The court must decide

whether the defendant knowingly and

intelligently relinquished and abandoned his

rights. The court's determination is a

question of fact based upon the totality of

the circumstances. This factual finding

will not be disturbed on appeal unless

plainly wrong.

Watkins v. Commonwealth, 229 Va. 469, 477, 331 S.E.2d 422,

429-30 (1985) (citations omitted), cert. deniec 475 u.s. 1099

(1986).

A review of the transcript of a tape recording of the

testimony at the suppression hearing discloses no evidence of

coercion. The two interviews were conducted at appropriate

hours by a single investigator, the officer fully, definitively,

and repeatedly advise® Mu'Min of each of his Miranda rights, and

the defendant expressly waived those rights.

The defendant was qualified, both by training and

experience, to make a knowing and voluntary waiver. Mu'Min, a

graduate of a private "prep" school, had earned a college degree

in business administration and was literate in four languages.

In his testimony at the suppression hearing, he acknowledged

that, in response to questions propounded to him by the

investigator, he had agreed that he understood each element of

the Miranda warnings, that he knew the interviews were being

recorded, and that, because he had been represented by an

attorney appointed to defend him at his 1973 murder trial, he

was already aware that he was entitled to the advice of counsel.

Nevertheless, he readily assented to the question whether he was

"willing to talk . . . without consulting a lawyer or having a

lawyer present."

We hold that the record completely supports the trial

court's ruling denying the defendant's motion to suppress his

extra-judicial statements.

CC. Discovery

Prior to trial, Mu'Min filed a motion to require the

Commonwealth to disclose “the factual basis" for a claim of

future dangerousness, one of the statutory predicates for the

death penalty. Specifically, he requested detailed information

concerning evidence of prior convictions, unadjudicated criminal

charges, psychological evaluations, and any threatening

statements made by the defendant which the Commonwealth intended

to introduce at the penalty trial. Defense counsel claimed

that, without such information, "the possibility arises of trial

by ambush".

; The trial court granted the motion, and the Commonwealth

complied with the defendant's request. The Commonwealth then

moved for disclosure of those “facts in mitigation defendant

intends to introduce at the penalty phase". The Commonwealth's

Attorney explained that “we are merely asking for the same thing

as defense asked of the Commonwealth". Granting the

Commonwealth's motion, the court stated that the purpose of

discovery is “to prevent total surprise” and that discovery

“runs [in] both directions".

On appeal, Mu'Min contends that the trial court infringed

his due process rights by not limiting the Commonwealth's

discovery rights to those granted expressly by Rule 3A:1l(c) and

2 t is of no consequence that both Mu'Min and the

Commonwealth labelled their pleadings as motions for bills of

particulars. The titles are irrelevant; judged by their

substance, the two pleadings are motions for discovery.

Code § 19.2-264.3:1(D).> Assuming without deciding that. as

Mu'Min argues, the trial court erred in granting the

Commonwealth's motion, and assuming further that the error was

not invited as the Attorney General contends, we hold that any

such error was harmless beyond a reasonable doubt. 4

The information the defendant disclosed was couched in

broad generalizations. Indeed, Mu'Min's response to the

discovery order contained little more than a routine recitation

of the mitigating factors enumerated in Code § 19.2-264.4(B) and

a reference to a "history of psychiatric evaluations". It did

not contain the names of any potential witnesses or any other

evidence Mu'Min intended to offer. Moreover, the transcript of

proceedings at the penalty trial shows that the Commonwealth

offered no evidence to rebut the testimony Mu'Min adduced as

evidence in mitigation. The defendant cannot logically claim

that he was prejudiced by a pre-trial order granting the

Commonwealth's discovery motion when his response disclosed

nothing which gave the Commonwealth an unfair advantage at

trial.

3r¢ Mu'Min's argument can be read as a claim to a right to

surprise or “ambush” the Commonwealth, we reaffirm our recent

holding that no such right exists. Bennett v. Commonwealth, 236

Va. 448, 459, 374 S.E.2d 303, 311 (1988), cert. denied, _—iU.S.

, 109 S.ct. 1765 (1989). ee ry. aaa

4

Although a mere violation of Rule 3A:1l(c) or Code

§ 19.2-264.3:1(D) would not require this “more stringent

standard" of harmless error review, see Dowling v. United

States, U.S. P , 110 S.Ct. 668, 671 (1990), we have

applied that standard here because Mu'Min frames the issue in

constitutional terms.

D. Jury Selection

1. Content Questions

In advance of trial, defense counsel submitted for approval

a list of questions designed, in part, to determine what a

prospective juror had seen, read, or heard about the case. Such

questions are of a type characterized at bar as "content

questions". The trial court refused to allow counsel to

propound such questions, and Mu'Min argues on appeal that the

court's refusal constituted "a denial of due process of law" and

a violation of his right to “trial by an impartial jury".

Sixteen of the 20 members of the jury panel had indicated

on voir dire that they had acquired some information from the

news media or from conversations with acquaintances. In reply

to questions propounded, both by the court and by counsel during

the course of an examination that consumed 172 pages of the

Mu'Min also argues that the court's ruling "violated the

express mandate of Code § 8.01-358". The defendant refers to

the secend paragraph of that statute which directs "[a) juror,

knowing anything relative to a fact in issue, [to] disclose the

same in open court." Construing that statute, we have said:

A party has no right, statutory or

otherwise, to propound any question he

wishes, or to extend voir dire questioning

ad infinitum. The court must afford a party

a full and fair opportunity to ascertain

whether prospective jurors “stand

indifferent in the cause," but the trial

judge retains the discretion to determine

whether the parties have had sufficient

opportunity to do so.

LeVasseur v. Commonwealth, 225 Va. 564, 581, 304 S.E.2d 644, 653

(1983), cert. denied, 464 U.S. 1063 (1984).

10

tcanscript, all members of the panel attested, collectively and

in groups of four, that they had not formed any opinion based

upon the information they had acquired, were not sensible of any

bias or prejudice, could enter the jury box with an open mind,

and were able to render a fair and impartial verdict based upon

the law and the evidence admitted at trial.

We agree with the Attorney General that an oppoitunity to

pose the kind of “content questions" the defendant proposed is

not a matter of right. See United States v. Haldeman, 559 F.2d

31, 67-8 (D.C. Cir 1976) (en banc), cert. denied, 431 U.S. 933

(1977) (affirming trial court's rejection of “content questions"

on voir dire related to pre-trial publicity). The information a

person acquires about a case from others may or may not prove to

be the facts of the case as developed by evidence admitted at

trial. Such information may or may not induce a person to form

an opinion before trial. Any opinion formed before trial may Or

may not affect a person's ability as a juror to reach a

different conclugion at trial.

Of course, parties litigant may properly inquire whether a

prospective juror has acquired information about the case before

trial. It does not follow that litigants have a constitutional

right to know what that information is. They are entitled to

know only whether the prospective juror, in reliance upon the

information acquired, has formed an opinion and, if so, whether

the juror can yet "stand indifferent in the cause". Code

§ 8.01-358; L.E. Briley v. Commonwealth, 222 Va. 180, 184-87,

279 S.E.2d 151, 154-55 (1981).

11

To hold that the mere existence of any

preconceived notion as to the guilt or

innocence of an accused, without more, is

sufficient to rebut the presumption of a

prospective juror's impartiality would be to

establish an impossible standard. It is

sufficient if the juror can lay aside his

impression or opinion and render a verdict '

based on the evidence presented in court.

Irvin v. Dowd, 366 U.S. 717, 723 (1961) (citations omitted).

Quoting and applying this rule in a later case, the Supreme

Court upheld the seating of a juror who had said on voir dire,

"My experience of [the accused] is such that right now I would

find him guilty." Murphy v. Florida, 421 U.S. 794, 802 n.5

(1975).

Here, none of the members seated on the panel had formed an

opinion based upon the information acquired before trial, and

all had affirmed on oath that they could stand indifferent in

the cause. We hold, therefore, that the trial court did not err

in disallowing the content questions proposed by the defendant.

2. Seating Two Jurors

Renewing objescions raised during voir dire, Mu'Min moved

to strike two jurors tor cause. On appeal, he contends that the

trial court erred in overruling his motions to strike Alexandria

Santiago, a prospective alternate, and Gregory Dailey. He

argues that Ms. Santiago was not impartial because, he says, she

"had patronized Dale City Floors" and referred during voir dire

to Mrs. Napwasky “by her first name".

The transcript shows that Ms. Santiago had said that she

"knew Gladys", that their relationship had been "friendly", but

that “we weren't friends." In reply to questions put by defense

12

counsel, she affirmed that her contacts with the victim did not

"cause [her] to form an opinion", that she was not “aware of any

bias or prejudice", and that she was “able to render a fair and

impartial verdict and set aside [her] knowledge of Mrs.

Napwasky".

Mu'Min challenges the seating of Mr. Dailey on the ground

that "his deliberations would [have been] hampered and rushed by

the financial hardship caused by jury service in a lengthy

case." According to the record before us, Mr. Dailey made no

plea of personal financial hardship. Asked what hardship his

service on the jury would cause, he said, “I'm doing telephone

communications, and the company I work for is very small and it

would jeopardize their business right now." This, he believed,

could make him feel "rushed" and “could somewhat hamper" his

ability as a juror to deliberate.

Under Code § 8.01-341.2, a person's duty to serve on a jury

may be deferred or limited “if serving on a jury . . . would

cause such a person a particular occupational inconvenience."

The privilege, one the statute makes available at the discretion

of the trial court, is purely personal to the prospective juror

and altogether unrelated to the inconvenience suffered by the

person's employer.

We find no merit in these assignments of error. Every

question contemplated by Code § 8.01-358 and required by Rule

3A:14 was addressed to these prospective jurors by court and

counsel. Every response Santiago and Dailey made fully supports

13

the trial judge's conclusion that both were qualified to sit on

the jury, and we will uphold his rulings.”

III. GUILT TRIAL ISSUES

A. Evidentiary Rulings

One of the elements of one of the forms of the offense

charged in the indictment was the status of the accused at the

time the offense was committed, i.e., that he was then "a

prisoner confined in a state or local correctional facility". ’

Code § 18.2-31(c). As proof of Mu'Min's status, the

Commonwealth offered in evidence at the guilt trial a copy of

Son brief, Mu'Min also complains generally that "[t)Jhe

trial court's voir dire .. . was essentially limited to inquiry

whether a juror's views [concerning capital punishment] would

prevent, not substantially impair, choosing one punishment or

the other." Although the defendant had raised an objection on

this ground during voir dire, he failed to object to the seating

of any juror on that ground. Applying Rule 5:25 in a similar

procedural context, we have refused to consider a challenge to a

death-qualifying question. “If a party objects to rulings made

during the voir dire of a prospective juror, but subsequently

fails to object to the seating of that juror, the party has

waived the voir dire objections." Spencer v. Commonwealth, 238

Va. 295, 306, 384 S.E.2d 785, 793 (1989). We apply that rule to

Mu'Min's complaint.

"Defining this term, the trial court instructed the jury as |

follows:

An inmate of a state correctional facility

remains an inmate at all times until he is

released from that status by the proper

State authority. An inmate who escapes from

custody retains the status of inmate during

the entire course of such an unauthorized

absence.

This is a correct statement of the law in this

Commonwealth. See Ruffin v. Commonwealth, 62 Va. (21 Gratt)

790, 793-94 (1871); see also Jefferson v. Commonwealth, 214 Va.

747, 752, 204 S.E.2d 258, 262 (1974).

14

the order of conviction of first degree murder entered against

Mu'Min in 1973. In keeping with its ruling against a motion

that defense counsel had made in limine, the trial court

admitted the order over the defendant's objection. On appeal,

the defendant argues that evidence of prior crimes is inevitably

prejudicial and that references the Commonwealth's Attorney made

in the presence of the jury to the facts disclosed by that order

compounded the prejudice. Accordingly, the defendant maintains

that the trial court's rulings constituted reversible error. We

do not agree.

A transcript of Mu'Min's interview with the investigator in

which, eventually, he confessed his assault upon Mrs. Napwasky

was read to the jury. As the following excerpt reveals, the

defendant initiated several references to his prior conviction

and to the sentence imposed.

WATSON: You tried to wipe off your

fingerprints?

MU'MIN: Wipe my fingerprints off.

WATSON: Why did you do that?

MU'MIN: Because I'm a convicted murderer.

* * *

WATSON: Why didn't you come forward with

this story earlier?

MU'MIN: Because I'm a convicted murderer.

* * +

MU'MIN: I know what you're -- it's the same

thing back in '73 .. . . When I got this

murder charge I was sitting home. My aunt

and my uncle both in the house, testified

that I was home when a shot was fired, but

because of certain physical evidence that

15

they picked up, they had similarities and

someone who said that he thought he saw me

by the way someone walked, I've been sitting

in the penitentiary since this, since this

'73 incident, the last 15 years

* & x

MU'MIN: I mean how can it -- that look, you

know, how can that look good for me? I'ma

convicted murderer.

WATSON: Think about it.

MU'MIN: Serving a 48 year sentence.

These several references, integral parts of a confession we

have found to be -voluntary, were competent evidence. See Boggs

v. Commonwealth, 229 Va. 501, 517, 331 S.E.2d 407, 419 (1985),

cert. denied 475 U.S. 1031 (1986); Bowman v. Commonwealth, 174

Va. 461, 463, 5 S.E.2d 497, 498-99 (1939). We hold, therefore,

that error, if any, resulting from the trial court's rulings

concerning the 1973 order of conviction was rendered harmless by

the defendant's own account of the same facts disclosed by that

order. See Schindel v. Commonwealth, 219 Va. 814, 817, 252

S.E.2d 302, 304 (1979) (hearsay error rendered harmless by

defendant's “own testimony corroborating the factual details").

Challenging another evidentiary ruling, Mu'Min argues that

the trial court erred in excluding from the evidence a copy of a

VDOT departmental regulation. The defendant offered the

document to show that a VDOT employee assigned to supervise his

work crew had not taken an oath as a peace officer as required

by the regulation and, hence, that at the time the victim was

killed, he was not “a prisoner . . . in the custody of an

16

employee [of a correctional facility)" within the contemplation

of Code § 18.2-31i(c).

We need not consider this issue. The jury finding in the

language of § 18.2-31(c) was only one of the bases for the

guilty verdict. The jury also rested its verdict upon its

finding in the language of § 18.2-31(d) that Mu'Min committed

the killing "during the commission of robbery while ... armed

with a deadly weapon." Consequently, the issue raised on appeal

is moot. Cf. Zant v. Stephens, 462 U.S. 862 (1983) (death

penalty upheld although one of three statutory aggravating

circumstances subsequently declared invalid); accord Poyner v.

Commonwealth, 229 Va. 401, 427, 329 S.E.2d 815, 830, cert.

denied, 474 U.S. 888 (1985); Tuggle v. Commonwealth, 230 Va. 99,

110, 334 S.E.2d 838, 845 (1985), cert. denied 478 U.S. 1010

(1986); Stout v. Commonwealth, 237 Va. 126, 134, 376 S.E.2d 288,

292, cert. denied, __—iU.S. , 109 S.Ct. 3263 (1989).

B. Jury Instructions

The defendarc assigns error to the trial judge's rulings

refusing four instructions relating to Mu'Min's contention that

he was not a prisoner within the intendment of Code § 18.2-3l(c)

and his ruling granting the Commonwealth's instruction to the

contrary (see footnote 5 supra). For the reason just stated, we

need not address these assignments of error.

Mu'Min also questions another ruling on another instruction

granted by the trial court. Instruction number 1 defined

Capital murder in terms of the three statutory definitions

charged in the indictment and the elements of the

17

lesser-included offenses of first and second degree murder and

voluntary manslaughter. The defendant believes that the

instruction defined first degree murder and the standard of

proof incorrectly and that the trial court erred in refusing his

substitute draft.

In pertinent part, instruction number 1 told the jury that

if they failed to find any of the three predicates for capital

murder,

but find that the Commonwealth has proved

beyond a reasonable doubt:

(1) That the defendant killed Gladys

Napwasky; and

(2) That the killing was malicious; and

(3) That the killing was willful,

deliberate and premeditated,

then you shall find him guilty of first

degree murder.

We find no error in this instruction. Indeed, we see no

material difference between this definition and that of the

substitute draft, and we reject the defendant's complaint.

IV. PENALTY TRIAL ISSUES

A. Passion or Prejudice

Whenever the death penalty is imposed, this Court is

required to review the record to determine "[w]hether the

sentence of death was imposed under the influence of passion,

prejudice or any other arbitrary factor". Code

§ 17-110.1(C)(1). The defendant claims that the trial court

committed error by refusing the jury's request for a definition

of the particulars of a life sentence. We disagree. Rejecting

18

a similar claim in an earlier capital case. we said that the

jury's question actually "tends to show that the jury's

deliberations were dispassionate, unprejudiced, and guided by

earnest consideration of every factor relevant to the portentous

decision they were required to make." Delong v. Commonwealth,

234 Va. 357, 370, 362 S.E.2d 669, 676 (1987), cert. denied, 485

U.S. 929 (1988).

The defendant also suggests that the jury's penalty

decision was the result of some "other arbitrary factor". The

defendant offered in evidence at the penalty trial a copy of a

departmental regulation providing that "[a]) prisoner ... shall

not be left without supervision at any time." In response to

the Commonwealth's objection, the trial judge said, "I question

the relevancy ... ." The defendant urges us to commute the

sentence of death on the ground that the judge's comment

influenced the jury “to disregard a major component of the

Gefendant's evidence in mitigation."

For two reasons, we decline to do so. First, the

transcript shows that the judge's comment was made to the

attorneys in a side-bar conference. Having in mind the purpose

of such a conference, we think it is unlikely that the comment

was heard by the jury. Second, even if the comment was

overheard, the trial court's decision to overrule the

Commonwealth's objection and admit the document for the jury's

consideration cured any prejudice the comment may have caused.

Having conducted a thorough review of the voluminous record

of both phases of the trial, we find nothing to show that the

19

~~

penalty imposed by the jury and confirmed by the trial court was

the product of passion, prejudice, or other arbitrary factor.

B. Propriety of the Sentence

As required by Code § 17-110.1(C)(2), we must now determine

“whether the sentence of death is excessive or disproportionate

to the penalty imposed in similar cases, considering both the

crime and the defendant."

1. Excessiveness

A death penalty is inherently excessive unless it is based

upon what has come to be known as the "dangerousness predicate"

or the “vileness predicate". Code § 19.2-264.4(C) provides:

The penalty of death shall not be

imposed unless the Commonwealth shall prove

beyond a reasonable doubt that there is a

probability based upon evidence of the prior

history of the defendant or of the

circumstances surrounding the commission of

the offense of which he is accused that he

would commit criminal acts of violence that

would constitute a continuing serious threat

to society, or that his conduct in

committing the offense was outrageously or

wantonly vile, horrible or inhuman, in that

it involved torture, depravity of mind or

aggravated battery to the victim.

Tracking the language of the statute as incorporated in the

court's instruction number 1, the jury's verdict based the death

penalty upon both predicates.

The defendant challenges the jury's finding of the vileness

predicate because, he says, the Commonwealth's Attorney failed

"to include torture in his bill of particulars" and "the

—_ —

20

. did not establish torture."® We think the

evidence .

evidence of the multiple, grievous wounds inflicted upon Mrs.

Napwasky was sufficient to prove torture, see Tuggle v.

Commonwealth, 228 Va. 493, 516, 323 S.E.2da 539, 553 (1984),

vacated and remanded on other grounds, 471 U.S. 1096 (1985)

("torture"” correctly included in vileness instruction where

evidence was sufficient to show victim, "[w])hile still alive,

- was severely bruised and bitten on her breast"). However,

it is immaterial that the jury instruction and the jury's

verdict contained the word "torture" when the bill of

particulars did not. It is immaterial because, as defined in

Code §§ 19.2-264.2 and -264.4(C), “the term ‘vileness' includes

three separate and distinct factors, with proof of any one

factor being sufficient to support a finding of vileness and

hence a sentence of death.” Bunch v. Commonwealth, 225 Va. 423,

442, 304 S.E.2da 271, 282, cert. denied, 464 U.S. 977 (1983).

The autopsy report identified 16 cuts and puncture wounds

on the victim's face, neck, chest, and left arm and numerous

blunt-force injuries to the face and forehead. Clearly, the

evidence was sufficient to prove an “aggravated battery", i.e.,

“a battery which, qualitatively and quantitatively, is more

Bin another argument advanced on brief, Mu'Min says that

"the sentence of death is excessive" because, had the government

“exercised rudimentary care in supervision of the defendant,

this crime would not have been committed." In effect, the

defendant argues that an escapee who commits murder is entitled

to immunity from the death penalty for his intrepidity in

escaping supervision. We are unpersuaded.

21

culpable than the minimum necessary to accomplish an act of

murder.” M. Smith v. Commonwealth, 219 Va. 455, 478, 248 S.E.2d

135, 149 (1978), cert. denied, 441 U.S. 967 (1979). Indeed, a

single stab wound may, under certain circumstances, be

sufficient to satisfy this definition. See, e.g., Stout v.

Commonwealth, 237 Va. at 132-33, 376 S.E.2d at 291-92; Edmonds

v. Commonwealth, 229 Va. 303, 313, 329 S.E.2a 807, 814, cert.

denied, 474 U.S. 975 (1985).

In light of the “evidence of the prior history of the

defendant [and] of the circumstances surrounding the commission

of the offense", Code § 19.2-264.4(C), we think the jury was

entirely justified in finding that the defendant "would

constitute a continuing serious threat to society", id. We need

not recite the details of that evidence. It is enough that we

have found proof of the vileness predicate sufficient to support

the imposition of the death penalty. “When a jury makes

separate findings of specific statutory aggravating

circumstances, any of which could support a sentence of death,

and one of the circumstances subseq ently is invalidated, the

remaining valid circumstance, or circumstances, will support the

sentence." Tuggle v. Commonwealth, 230 Va. at 110, 334 S.E.2d

at 845, quoted with approval in, Stout v. Commonwealth, 237 Va.

at 134, 376 S.E.2d at 292.

2. Disproportionality

Code § 17-110.1(C)(2) requires us to compare the case under

review with “similar cases" in making our determination whether

“the sentence of death is excessive or disproportionate”. To

22

facilitate that comparison as directed in § 17-110.1(E), we have

accumulated the records in all capital murder cases to come

before this Court (including those in which the penalty imposed

was a life sentence) and stored and indexed those records apart

from those in all other criminal cases. In selecting cases from

that inventory for purposes of our comparison, we give special

attention to those in which the death penalty was based upon the

same statutory predicate (or predicates) as that underlying the

penalty under review.

The cases in which the death penalty was based, as it was

here, upon both the "future dangerousness" predicate and the

"yileness" predicate are collected and annotated in our recent

opinion in Spencer v. Commonwealth, 238 Va. 295, 319-20, 384

S.E.2da 785, 799-800 (1989). See also R. Smith v. Commonwealth,

239 Va. , S.E.2d ___ (1990). We have compared the

‘

records in those cases with that in the case at bar, and we are

satisfied that "juries in this jurisdiction generally approve

the supreme penalty for comparable or similar crimes." Stamper

v. Commonwealth, 220 Va. 260, 284, 257 S.E.2d 808, 824 (1979),

cert. denied, 445 U.S. 972 (1980).

V. INEFFECTIVE ASSISTANCE OF COUNSEL

By counsel appointed specially, Mu'Min charges that his

trial lawyer was ineffective because he failed at the penalty

trial to submit certain instructions and to object to several

instructions as well as to the verdict form approved by the

trial court. These failures, he says, are patently prejudicial

and unjustifiable by any acceptable explanation. In Beaver v.

23

Commonwealth, 232 Va. 521, 352 S.E.2d 342, cert. denied, 483

U.S. 1033 (1987), we rejected just such a claim.

Defendant complains of errors of omission

committed by his trial counsel. Yet the

record contains no testimony from trial

counsel concerning his alleged acts of

omission. Were we to attempt to dispose of

defendant's contentions on this record, we

would be called upon to declare the work of

an attorney to be ineffective without that

attorney having an opportunity to explain

his conduct. [citation omitted. }

The defendant argues, however, that

though the record does not contain

everything that relates to the question of

ineffective assistance of counsel, it

contains enough to establish that trial

counsel failed to do things that obviously

should have been done and for which there

can be no acceptable explanation. However,

[Code § 19.2-317.1] does not say that we can

proceed where there is partial evidence of

ineffectiveness. The statute presupposes a

full record on the very issue that is the

basis for the claim of ineffective

assistance of counsel. We conclude,

therefore, that defendant's claim of

ineffective assistance of trial counsel

cannot be raised in this appeal.

Id. at 537-38, 352 S.E.2d at 351-52.

Applying the qualifying language of Code § 19.2-317.1," we

remain committed to our previous rulings. Trial counsel will

not be exposed to the possibility of professional disgrace

without “an opportunity to defend himself on the record by

9code § 19.2-317.1 provides:

A claim of ineffective assistance of counsel

may be raised on direct appeal if assigned

as error and if all matters relating to such

issue are fully contained within the record

of the trial.

24

giving the rationale for his challenged acts of omission or

commission". Correll v. Commonwealth, 232 Va. 454, 470, 352

S.E.2d 352, 362, cert. denied, 482 U.S. 931 (1987); accord Frye

vy. Commonwealth, 231 Va. 370, 400, 345 S.E.2d 267, 287-88

(1986). See R. Smith, 239 Va. at ___n. 6, ___ S.E.2d at ___ in.

6. Mu'Min's claim of ineffective assistance of counsel cannot

be considered in this appeal.

VI. CONCLUSION

Finding no reversible error in the conduct of either phase

of the bifurcated trial and no cause to commute the death

sentence, we will affirm the judgment confirming the jury's two

verdicts.

Affirmed.

Justice Whiting, with whom Justice Stephenson and Justice

Hassell join, dissenting.

25

DAVID MAJID MU'MIN A/K/A

DAVID MICHAEL ALLEN

v. Record No. 890899

COMMONWEALTH OF VIRGINIA

Justice Whiting, with whom Justices Stephenson and Hassell

join, dissenting.

I cannot agree that the trial court correctly excluded

all of the questions intended for the 16 prospective jurors

who said they had acquired pretrial information about the

A trial court's assessment of prospective jurors'

offensé.

potential for bias is presumptively correct, Patton v.

Yount, 467 U.S. 1025, 1036 (1984); Pope v. Commonwealth, 234

Va. 114, 124, 360 S.E.2d 352, 358 (1987), absent manifest

error, Patton, 467 U.S. at 1031-32 n.7; Irvin v. Dowd, 366

U.S. 717, 723 (1961); Pope, 234 Va. at 124, 360 S.E.2d at

358. In this case, however, I believe there was “manifest

Ee

error” in refusing to permit any of the questions necessary

a

to establish a factual and objective basis for assessing

juror impartiality.

The, record discloses ap unusual amount of pretrial

publicity. The charge involved the alleged capital murder

of a local resident by a convict who was serving a part of

his sentence for first degree murder as a member of a road

gang. After this murder, county officials and local

citizens publicly expressed surprise, outrage, and fear for

the safety of local residm@»«s upon discovery that prisoners

like Mu'Min, who had been convicted of violent crimes, were

permitted to work in such close contact with the public.

-_— es a

‘\

Rare done

-

When the prospective jurors were assembled, 16 of them

responded affirmatively to the question of whether they had

“acquired any information from the news media or from any

other source" regarding the offense. The trial court then

asked:

Would the information that you heard, received, or

read from whatever source, would that information

affect your impartiality in this case?

Is there anyone that would say what you've read,

seen, heard, or whatever information you may have

acquired from whatever the source would affect

your impartiality so that you could not be

impartial?

In view of everything that you've seen, heard, or

read, or any information from whatever source that

you've acquired in this case, is there anyone who

believes that you could not become a Juror, enter

the Jury box with an open mind and wait until the

entire case is presented before reaching a fixed

opinion or a conclusion as to the guilt or

innocence of the accused?

Only one prospective juror responded to these

inquiries; the balance remained silent. That prospective

juror was excused for cause when he said he could not be

impartial.

Because of the trial court's ruling, we do not know

what the prospective jurors had read or heard about the case

before trial. We do know, however, that the following

information regarding the accused, not a part of the

evidence at the guilt phase of trial, was published in the

local papers:

1. His suspected assault upon a fellow prisoner,

resulting in a broken nose.

2. His citation for 23 prison violations and his

rejection for parole on six previous applications.

3. His 1973 conviction for the murder and robbery of a

Grayson County cab driver, with some details of the crime

and a statement from the Grayson County prosecutor that the

death penalty was not available when the accused was

convicted.

4. His juvenile record in New York and Virginia.

5. His alleged commission of a burglary and engagement

in "Peeping Tom" activities while a prisoner.

Also, there were indications that a rape may also have been.

involved in the commission of this murder.

An accused has statutory and constitutional rights to

trial by an impartial jury. I do not believe that defense

counsel was afforded a meaningful voir dire examination of

prospective jurors, as mandated by Code § 8.01-358. The

majority disposes of this contention in a footnote (n.3%) by

relying upon LeVasseur v. Commonwealth, where we said that

"“Ca] party has no right, statutory or otherwise, to propound

any question he wishes, or to extend voir dire questioning

ad infinitum." 225 Va. at 581, 304 S.E.2d at 653. Nothing

in the record in the present case, however, suggests that

defense counsel sought to “propound any question he

wishe(d], or to extend voir dire questioning ad infinitum."

Code § 8.01-358 mandates that “counsel for either party

shall have the right to examine under oath any person who is

called as a juror . . . and shall have the right to ask such

person . . directly any relevant question to ascertain

=3-

——— a +

whether he . . . is sensible of any bias or prejudice.” The

section further provides that "({a] juror, knowing anything

relative to a fact in issue, shall disclose the same in open

court." Code § 8.01-358. Moreover, as we said in

LeVasseur, "(t]he court must afford a party a full and fair

opportunity to ascertain whether prospective jurors ‘stand

indifferent in the cause.'" 225 Va. at 581, 304 S.E.2d at

653.

In enacting Code § 8.01-358, the General Assembly

intended to provide counsel a meaningful voir dire

examination. Clearly, questions pertaining to what a

prospective juror had seen, read, or heard about the case

are "relevant... to ascertain whether he... is

sensible of any bias or prejudice." Therefore, the court

violated Mu'Min's statutory right to trial by an impartial

jury.

Additionally, "“(u]nder the Federal and State

Constitutions, U.S. Const. amends. VI and XIV; Va. Const.

art. 1, § 8, an accused has a right to trial by an

‘impartial jury.'" Wm. Patterson v. Commonwealth, 222 Va.

653, 658, 283 S.E.2d 212, 215 (1981). As illustrated by the

majority opinion, __ Va. at __, we frequently apply

federal decisions construing the Sixth Amendment right to an

impartial jury in construing this same right under art. l, §

8 of the Virginia Constitution. See also, Mackall v.

Commonwealth, 236 Va. 240, 251, 372 S.E.2d 759, 766 (1988),

cert. denied, 109 S. Ct. 3261 (1989).

—_-a-eeew ec aeomenre + ++ =

An accused's right to trial by an impartial jury is

violated if jurors are impanelled after an inadequate voir

dire examination. See, e-.g., Turner v. Murray, 476 U.S. l

(1986). If the examination is inadequate, the accused's

right is prejudiced in two respects; he is unable to

exercise effectively his right of challenge, United States

v. Dellinger, 472 F.2d 340, 368 (7th Cir. 1972), cert.

denied, 410 U.S. 970 (1973), and the trial court is unable

to assess fairly the prospective jurors’ impartiality.

United States v. Davis, 583 F.2d 190, 197-98 (Sth Cir.

1978).

Thus, when there has been unusual pretrial publicity in

a criminal case, the Supreme Court has said that there must

be "fair support in the record for the state courts'

conclusion that the jurors . . . would be impartial."

Patton, 467 U.S. at 1038. Moreover, where prospective

jurors have indicated that they were exposed to pretrial

publicity in response to questions similar to those posed in

this case, we have warned: "(T]he proof that {a prospective

juror] is impartial and fair, should come from him and not

be based on his mere assent to persuasive suggestions."

Breeden v. Commonwealth, 217 Va. 297, 300, 227 S.E.2d 734,

736 (1976) (emphasis added) (citations omitted).

In other words, “in the absence of an examination

designed to elicit answers which provide an objective basis

for the court's evaluation, ‘merely going through the form

of obtaining jurors’ assurances of impartiality is

insufficient . _'" Silverthorne v. United States, 400

oS-

U.S. 627, 638 (9th Cir. 1968) (emphasis added) (citations

omitted). In at least two of our cases involving pretrial

publicity, we have said that a trial court should have

rejected such subjective assurances. Justus v.

Commonwealth, 220 Va. 971, 977, 266 S.E.2d 87, 91 (1980);

Breeden, 217 Va. at 298-300, 227 S.E.2d at 736-37.

"C(H]owever willing the juror might be to trust himself, the

law will not trust him." Breeden, 217 Va. at 298, 227

S.E.2d at 735 (citations omitted).

Accordingly, whether a juror can impartially render a

verdict "should not be [based] on that juror's [subjective]. ~

assessment of self-righteousness without something more."

Silverthorne, 400 F.2d at 639. Instead, a trial court must

objectively and independently assess each prospective

juror's state of mind.

When a juror is exposed to potentially prejudicial

pretrial publicity, it is necessary to determine

whether the juror can lay aside any impression or

opinion due to the exposure. The juror is poorly

placed to make a determination as to his own

impartiality. Instead, the trial court should

make this determination.

Jordan v. Lippman, 763 F.2d 1265, 1274 (llth Cir. 1985)

(emphasis added) (citation omitted). "The issue of who is,

or is not, a competent juror is one for the trial court to

decide," Justus, 220 Va. at 976, 266 S.E.2d at 91, not the

juror himself.

Furthermore, I believe the questions in this case were

deficient in that the prospective jurors could simply remain

silent as an implied indication of’a lack of bias or

prejudice. This gave the trial court no effective

@£-

——— se eo on

opportunity to assess the demeanor of each prospective juror

in disclaiming bias. Moreover, even if the court had

required an express affirmation of each prospective juror,

such an affirmation would have required an admission of bias

or prejudice before the assembled panel. "No doubt each

juror was sincere when he said that he would be fair and

impartial to the [accused], but the psychological impact

requiring such a declaration before one's fellows is often

its father." Irvin, 366 U.S. at 728.

Apparently, we have never addressed the necessity of

such questions at voir dire, where panel members have been .-

exposed to unusual pretrial publicity. However, we have

ample precedent for such questions. In Greenfield v.

Commonwealth, 214 Va. 710, 204 S.E.2d 414 (1974), the trial

court sought a description of what was actually remembered

by those prospective jurors who had been subjected to

pretrial publicity. There, we sustained the trial court's

objective findings regarding the impartiality of those

prospective jurors, who we noted had remembered few of the

details of such publicity. Id. at 717, 204 S.E.2d at 420.

Although not the subject of our discussion, an inspection of

the appendices in the following cases indicates that

"content" questions were likewise asked of prospective

jurors exposed to pretrial publicity. Mackall v.

Commonwealth, 236 Va. 240, 372 S.E.2d 759 (1988); LeVasseur

vy. Commonwealth, 225 Va. 564, 304 S.E.2d 644 (1983), cert.

denied, 464 U.S. 1063 (1984); Bassett v. Commonwealth, 222

Va. 844, 284 S.E.2d 844 (1981), cert. denied, 456 U.S. 938

Feo

(1982); Justus, 220 Va. 971, 266 S.E.2d 87; Breeden, 217 Va.

297, 227 S.E.2d 734; Greenfield, 214 Va. 710, 204 S.E.2d

414.

1

The questions proffered by the accused, and refused by

the court, were clearly designed to provide a factual and

é Some

objective basis for assessing the potential for bias.

prospective jurors may honestly have felt that the publicity

had not affected their impartiality; however, a disclosure

of what was actually remembered could lead an impartial

observer to conclude that there was a bias of which the

potential juror was unaware, as in Justus and Breeden.

"Yoir dire examination serves to protect {the right to a

fair trial] by exposing possible biases, both known and

unknown, on the part of potential jurors." McDonough Power

Equipment v. Greenwood, 464 U.S. 548, 554 (1984).

lithe tenor of the proffered questions was: What have

you seen, read or heard about this case; from whom did you

get this information; when and where did you get this

information; have you discussed this case with anyone; with

whom; when and where; what did you discuss; if an opinion

had been formed, what is it; has anyone expressed an opinion

about this case-to you; who; what; when; and where?

2without necessarily approving each of the proffered

questions, if the trial court permits no questions regarding

the source and extent of exposure of pretrial questions,

and, therefore, content questions are necessary, at minimum,

I believe each prospective juror subjected to pretrial

publicity should have been asked what information he

recalled and when it was received. Moreover, the risk of

"tainting" the other prospective jurors could have been

minimized by excluding the others from the courtroom during

each examination, or by examining them in smaller groups, as

the court did.

I believe that the majority's citation of United States

v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976), for the

proposition that the opportunity to ask "content questions"

is "not a matter of right," misconstrues the essence of that

holding. The Haldeman Court explicitly agreed that a

certain ABA Standard "mandate[d] an inquiry into the sources

and intensity of a venireman's exposure to pretrial

publicity, not an inquiry into his recollection of the

content of that publicity.“ Id., at 69 (emphasis added).

Moreover, emphasizing that the voir dire in that defendant's

case permitted counsel to determine the nature and intensity

of the exposure to pretrial publicity, the Court stated:

We agree that it would have been reversible error

for the Court to accept jurors simply because they

said they would be fair... . In this case,

however, the Court had before it and acted on not

only the jurors' subjective assurances but also

obiective information relating how closely they

had followed Watergate and their sources of

information.

Id., at 67 n.51 (citations omitted) (emphasis added). In

addition, Haldeman distinguished Dellinger and Silverthorne,

two cases involving constitutionally inadequate voir dire,

on the ground that the trial courts in those cases failed to

permit any questions concerning the source and intensity of

exposure to pretrial publicity. See id. at 69.

As in Dellinger and Silverthorne, the trial court in

this case rejected all voir dire questions aimed at

determining the source and intensity of exposure to pretrial

publicity, as well as "content" questions. In my view, it

-9-

oo e+ eee ee ee

was not necessarily error to preclude some or even all of

the "content" questions; however, the trial court's conduct

of voir dire was constitutionally inadequate, even under

Haldeman, in its blanket refusal to permit any questions

aimed at determining the sources and intensity of exposure

to guotrial publicity (e.g., where did you hear about this

case; how many times did you hear about it; and when did you

hear about it).

In my opinion, under the circumstances of this case,

the refusal to permit any questions regarding the source and

intensity of knowledge regarding pretrial publicity violated

the accused's statutory and constitutional right to trial by

an impartial jury. Although I agree with the majority

opinion in all other respects, I would reverse the judgment

of the trial court and remand the case for a new trial at

which appropriate voir dire questions should be asked.

-10-