Opposition Brief — Mu'Min v. Virginia

Supreme Court, U.S.

FILED

16 $y

No. 90-5193 AUG It .

JOSEPH F. SPANIOL, JR.

IN THE CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1990

DAWUD MAJID MU'MIN,

Petitioner,

Vv.

COMMONWEALTH OF VIRGINIA,

Respondent.

On Petition For A Writ Of Certiorari To The

Supreme Court Of Virginia

RESPONDENT'S BRIEF IN OPPOSITION

MARY SUE TERRY

A) Attorney General of Virginia

*Thomas C. Daniel

Assistant Attorney General

Office of the Attorney General

Supreme Court Building

101 North Eighth Street

Richmond, Virginia 23219

(804) 786-4624

Counsel of Record

TABLE OF CONTENTS

Page

QUESTIONS NE i i ic ice wees bgbsknt ees beeecuen eeeeneecetes

TABLE OF CITATIONS. Se eae eeeeese eee ee 8 Cee. @e@ 8 eee eS *“e wn #eweeee### # *# @# iii

OPINION BELOW. eee<eeweweneenewte#eenrente#e#ee#e#e#e#e#e###e#e#e#e# ®# Sa @2 ea ees ee oeeegeeTc€& eee eo & F *-. l

JURISDICTION. en eoeaee@e@eseegeeeoeo@dct@e@eP@éesteese @&e See eaeeseee2c 8eee eeeces &@ee & *e © l

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED....+--eeeeeee2

STATEMENT OF THE CASE... ccccccccccccsccccccvecsccccsccescseesee

STATEMENT OF FACTS ..cccccccccccccccccccceseccccsccceseeseeeseed

REASONS FOR DENYING THE WRIT... .cccccccccccccccccseeessseseseed

I. PETITIONER'S CLAIM CONCERNING THE SCOPE

OF VOIR DIRE DOES NOT WARRANT CERTIORARI

3 gl eee ee a es oe eo a a ae a ce a FS 2? 2 Ee

vu)

II. PETITIONER'S CLAIM RE THE IMPARTIALITY OF

CERTAIN JURORS DOES NOT WARRANT

CERTIORARI REVIEW... cccccccccccccccccccsvcceeeseil

III. THE ADMISSION OF EVIDENCE OF OTHER CRIMES

DOES NOT RAISE A FEDERAL

6) Ee ea ee ee ee ee ee ee ee *eenee#ee# wey eS

IV. PETITIONER'S VOLUNTARINESS CLAIM DOES NOT

WARRANT CERTIORARI REVIEW. ccccccccccccccccceseene

V. THE VIRGINIA STATUTORY SCHEME FOR

IMPOSITION OF THE DEATH PENALTY

SUFFICIENTLY BRIDLES THE JURY'S

Ss eee ee ReneS CSO OCE SSO CCC CORS

VI. THE SENTENCE WAS NOT THE RESULT OF

PASSION, PREJUDICE, OR OTHER ARBITRARY

aah oe eee hed £66.68 666

ER Se eo er Ee Se ee ee ee eT eT

CERTIFICATE OF SERVICE... cccccccccccccccccccccsesccccscceceeld

oad

ie

IIl.

VI.

QUESTIONS PRESENTED

WHETHER PETITIONER'S CLAIM PERTAINING TO

THE SCOPE OF VOIR DIRE WARRANTS

CERTIORARI REVIEW.

WHETHER THE FACT-BOUND ISSUE CONCERNING

THE IMPARTIALITY OF TWO JURORS WARRANTS

CERTIORARI REVIEW.

WHETHER PETITIONER'S CLAIM CONCERNING

ADMISSIBILITY OF EVIDENCE OF ANOTHER

CRIME RAISES A FEDERAL ISSUE.

WHETHER PETITIONER'S VOLUNTARINESS CLAIM

WARRANTS CERTIORARI REVIEW.

. WHETHER VIRGINIA'S DEATH PENALTY STATUTE

VIOLATES THE EIGHTH AMENDMENT.

WHETHER PETITIONER'S CLAIM CONCERNING THE

VIRGINIA SUPREME COURT'S STATUTORILY

MANDATED SENTENCE REVIEW RAISES A FEDERAL

QUESTION.

il

TABLE OF CITATIONS

Cases

Page

Boggs v. Bair, 892 F.2d 1193, cert. denied,

110 S.Ct. 2193 (1990)..... Pwrerrperreyerrr rrr rT TT.

Irvin v. Dowd, 366 U.S. 717 (1961l).ceeeeveeeees peceeceseseusauene

Lowenfield v. Phelps, 482 U.S. 231 CLOGOD eo cvccccccesccaseseseeeas

Miller Ve. Fenton, 474 i 2 104 et). }xeeeererrrrrrri ce et

Moore Vv. Illinois, 408 - 786 (1972)... *ensee pvesteuseeeneeuuene

Mu'Min v. Commonwealth, 239 Va. 433,

389 S.E.2d 886 L1O9O) occccccccccceceseesccececescoseeseens 16

Patton v. Yount, 457 U.S. 1025 (1984)..-.--eee- sceceoeweeeeeeeua

Ristaino v. Ross, 424 U.S. 589 (1976J..-ceeeees c6eeneeueuseesene

Ross v. Moffitt, 417 U.S. 600 (1974)......-. rrr i seucsedee seeeue

Stockton v. Commonwealth, 852 F.2d 740

(4th Cir. 1988)... ceeeee PerereTrrerry TT rr ee 12

Turner v. Murray, 476 U.S. 28 (1986)......ee-- WeTTTLT LT ssetae

United States v. Dowling, U.S. ’

110 BeGte 668 (1990) -cccccces *e ©# ff © eA S&S Fw Fe SG . “enereneeeeee#neeee @ cna

Wainwright v. Witt, 469 U.S. 412 (1985).......- TYETTrT. sie bs

Walton v. Arizona, U.S. ’

140 §.Ct. (No. 88-7351, June 27, 1990)...... errr ery i.

OTHER AUTHORITIES

28 U.S.C. § 1257(3).---ee- MTPTTTTTTT CTT TTT ee Tt

Rule 10.1, Rules of the Supreme

Court of the United StateS..ceeereeeeeceess TeTTTT covccehkhde 27

Section 17-110.1, Code of Virginia......eseeuees seeeeneeseeseesue

Section 17-110.1(C)(1), Code of Virginia....... ceebeeeeseee 22-16

Section 18.2-31, Code Of Virginia... cece eeeeeeeseeveseres coees dG

Section 18.2-3l(c), Code of Virginia........--- stneeeees cecece 12

iii

Section 19.2-264.2, Code of Virginia..

iv

seaoue

S.E.2d 886 (1990).

No. 90-5193

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1990

DAWUD MAJID MU'MIN,

Petitioner,

COMMONWEALTH OF VIRGINIA,

Respondent.

On Petition For A Writ Of Certiorari To The

Supreme Court Of Virginia

RESPONDENT'S BRIEF IN OPPOSITION

OPINION BELOW

The judgment of the Supreme Court of Virginia is a published

opinion reported as Mu'Min v. Commonwealth, 239 Va. 433, 389

Petition for a Writ of Certiorari as Appendix A.

JURISDICTION

The jurisdiction of this Court to issue the writ of

certiorari is grounded upon 28 U.S.C. § 1257(3).

A copy of the opinion is attached to the

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The relevant constitutional and statutory provisions are set

forth in the Petition at pages 1-3.

Rule 10.1 of the Rules of the Supreme Court of the United

States provides in pertinent part that "(a] review on writ of

certiorari is not a matter of right, but of judicial discretion.

A petition for a writ of certiorari will be granted only when

there are special and important reasons therefor."

STATEMENT OF THE CASE

On April 20, 1989 a jury in the Circuit Court of Prince

William County convicted Dawud Majid Mu'Min of capital murder.

On April 24, 1989, after a sentencing hearing, the jury fixed his

punishment at death. The trial court entered final judgment on

June 12, 1989, imposing the penalty fixed by the jury.

An automatic appeal was taken to the Supreme Court of

Virginia, which affirmed the judgment and sentence on March 2,

1990. Petitioner's petition to set aside the judgment and grant

a rehearing was denied on April 20, 1990.

STATEMENT OF FACTS+

On September 22, 1988 the defendant was an inmate at

Virginia's Haymarket Correctional Unit serving a forty-eight (48)

year sentence for a 1973 first degree murder conviction. (Tr.

4/17/89 at 97, 99). That morning, Mu'Min and five other inmates

lphese facts are derived trom Virginia Supreme Court

Opinion, 239 Va. at 437-338, 389 S.E.2d at 889-890.

were transported to the Department of Transportation's “Dale City

Headquarters" as part of their work assignment. (Tr. 4/17/89 at

99, 193, 195). There “they were put to work ... basically

painting equipment, working on equipment." (Tr. 4/17/89 at 195).

Late that morning the defendant was seen "grinding" a metal spike

on one of the grinders in the "shop." (Tr. 4/18/89 at 177-179).

Around noon, the defendant "“walk{ed] away ... ina

suspicious type manner" down a pathway "around the highway

department's salt dome." (Tr. 4/18/89 at 180, 221). The

defendant then went over a perimeter fence and headed along

Interstate 95 in the direction of the Ashdale Plaza shopping

center, located approximately one mile away. (Tr. 4/18/89 at

222; Tr. 4/19/89 at 25, 42-43, 116, 280).

When Mu'Min arrived at the shopping center he entered Dale

City Floors, a retail carpet and flooring store, and repeatedly

attacked the owner, Gladys Nopwasky, with a "sharp instrument."

(Tr. 4/17/89 at 19-20, 224-244; 4/18/89 at 284; 4/19/89 at ll-

15). He took all of the money from the desk drawer near the

victim's body, amounting to approximately four doliars; "tried to

... wipe [his] fingerprints off" “everything that {he had]

touched;" and then returned to his prison work crew at the

highway department. (Tr. 4/19/89 at 50, 96-97, 154-155, 310;

4/20/89 at 3l, 46).

A few minutes after the attack, a customer discovered the

victim's body on the floor in the back of the store:

[S]he had no clothes on from the waist down and her

face was bloodied and the entire area was

completely -- well, there was papers strewn

everywhere and blood everywhere. And her face was

so badly beaten or whatever that she would have

been unrecognizable.

(Tr. 4/17/89 at 264).

The customer called the rescue sruad, which arrived a few

minutes later. (Tr. 4/17/89 at 265, 272). The paramedic found

the victim “laying [sic] face up on her back on the floor ina

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

unclothed below the waist and her blouse and brassiere had been

pulled up, exposing her breasts. (Tr. 4/17/89 at 273, 282). The

contents of her wallet had been “scattered on the floor." (Tr.

4/17/89 at 274). The victim "was breathless and pulseless," but

the "EKG machine showed an electrical rhythm," indicating that

her heart was functional but there was no blood for it to pump.

(Tr. 4/17/89 at 276-277).

The autopsy revealed that the victim's face, neck, chest and

left arm had been stabbed or cut sixteen times with a sharp

instrument. (Tr. 4/18/89 at 13-25). Two of these wounds, one

“on the lower neck" and the other “on the left upper chest," were

fatal. (Tr. 4/18/89 at 25). The one to the lower neck was three

inches deep and severed the jugular vein. (Tr. 4/18/89 at 22).

The one to the left upper chest penetrated four inches, “injured

che pulmonary artery," “went into the left chest cavity" and

injured the left lung. (Tr. 4/18/89 at 14, 24). The autopsy

also revealed that the victim had suffered numerous "blunt-force

trauma injuries," consistent with blows from a fist, causing a

laceration on her forehead and bruises over a large portion of

her face. (Tr. 4/18/89 at 13, 17, 18, 24).

d-

REASONS WHY THE WRIT SHOULD BE DENIED

I. PETITIONER'S CLAIM CONCERNING THE SCOPE

OF VOIR DIRE DOES NOT WARRANT CERTIORARI

REVIEW.

Petitioner contends that he was denied his right to an

impartial jury by the trial court's refusal to permit questioning

of prospective jurors about what they had heard or read about the

case.

The trial court, however, directed several questions to

the jurors to determine whether they had received any information

about the case and, if so, whether it would affect their

impartiality:

THE COURT: Have any of you acquired any

information about ... the alleged offense, or the

accused from the news media or from any other

source?

kk

THE COURT: ... Would the information that you

heard, received, or read from whatever source,

would that information affect your impartiality in

this case?

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THE COURT: Considering what the ladies and

gentlemen who have answered in the affirmative have

heard or read about this case, do you believe that

you can enter the jury box with an open mind and

wait until the entire case is presented before

reaching a fixed opinion or conclusion as to the

guilt or innocence of the accused?

zx *& &

THE COURT: I'll repeat it in a different fashion.

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 ... 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? -

(Tr. 4/17/89 at 16, 18-19).

Other questions posed by the court also would have revealed

disqualifying effects from exposure to pre-trial publicity:

THE COURT: Are any of you sensible to any bias or

prejudice against either the Commonwealth or the

accused?

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THE COURT: ... Have any of you expressed or formed

an opinion of the innocence or guilt of the

accused?

(Tr. 4/17/89 at 13, 19).

Furthermore, defense counsel was permitted to ask additional

questions on this issue. In fact, the trial court had to prompt

defense counsel to ask questions concerning pre-trial publicity.

THE COURT: ... Next question.

MS. ROLLISON [DEFENSE COUNSEL]: Nothing further.

THE COURT: Excuse me. That's not all. I'll pick

them up for you. You're missing one about the --

MS. ROLLISON: That's correct, Your Honor.

THE COURT: All right. Go ahead.

MS. ROLLISON: Have you discussed this case -~- we

did ask that one, Your Honor.

THE COURT: But I am not sure that some of these

persons may not have read something about it. I'll

give you an opportunity.

Have any of you read anything in the newspaper

concerning this case at all?

MR. TAYLOR: (Indicating).

MR. SMITH: (Indicating).

MS. HAINES: (Indicating).

THE COURT: Now go with that.

MS. ROLLISON: On the basis of what you've read in

the newspapers, have you reached an opinion in this

matter?

THE JURY PANEL: (Shaking heads).

MS. ROLLISON: Are any of you sensible to any bias

Or prejudice after what you've read in the papers

in this case?

THE JURY PANEL: (No response).

MS. ROLLISON: Would all of you be able to reach a

fair and impartial verdict after reading what

you've read in the papers?

x & &

THE COURT: All right. Are you satisfied, Ms.

Rollison?

MS. ROLLISON: Yes, Your Honor.

(Tr. 4/17/89 at 81-83).

Similarly, defense counsel was permitted to ask questions

concerning informatio: the jurors may have heard from others

about the case, as demonstrated by the extensive questioning of

Juror Walters on this issue:

MS. ROLLISON [DEFENSE COUNSEL]: Have you discussed

this case with anyone?

MS. WALTERS: I discussed it with my Lieutenant.

She lived on the same block as the victim.

MS. ROLLISON: The fact that you discussed this

case with your Lieutenant, has that caused you to

have an opinion in this matter?

MS. WALTERS: No.

MS. ROLLISON: Are you sensible of any bias or

prejudice because of that discussion?

MS. WALTERS: Not consciously.

MS. ROLLISON: But maybe unconsciously?

MS. WALTERS: (Nodding head).

MS. ROLLISON: Would you be able to listen to the

law and the evidence as presented here today, and

would you be able to follow that in light of your

discussion with your Lieutenant in order to deliver

a fair and impartial verdict in this matter?

MS. WALTERS: I think so.

MS. ROLLISON: So you think you would be able to

control your unconscious?

MS. WALTERS: Well, I would hope so. I would try

to --

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THE COURT: I need to be a little more specific.

You've said you're not conscious of it, you're not

sure, and those sorts of things?

MS. WALTERS: I find that very hard to say, what

you can keep coming in and out of your mind on what

you've had in past discussions with someone.

THE COURT: I guess it comes down to this question

for you, Ms. Rollison. I'm looking right at the

one that's been approved.

Considering what you've heard in your discussions

in that case with your Lieutenant who lived on the

street with the lady that was killed, do you

believe that you can enter the Jury box with an

open mind and wait until the entire case is

presented before reaching a fixed opinion or

conclusion as to the guilt or innocence of this

accused?

MS. WALTERS: Yes, I think so.

THE COURT: Is there any question in your mind

about it?

MS. WALTERS: No, sir. There's no question in my

mind about it.

THE COURT: Let me say this. The Jury is going to

be given -- that is the ultimate Jury is going to

be given an oath to try the case based upon the law

and the evidence.

The law, as I said, is what I have to tell you is

the law. The evidence will be what you hear. And

that oath is going to be taken, so you'll be bound

by that oath if you're a Juror.

With that in mind, can you reach a fair and

impartial verdict based upon the law and the

evidence?

MS. WALTERS: Yes, Sir.

THE COURT: Are you sensible of any bias or

prejudice as a result of having discussed this with

a neighbor who I presume must have known the lady

that was killed?

MS. WALTCORS: Not as a good friend but knew who she

was, yes.

THE COURT: Are you sensible of any bias or

prejudice as a result of that?

MS. WALTERS: No, Sir.

THE COURT: Al right. Go ahead, Ms. Rollison.

MS. ROLLISON: Mrs. Walters, you indicated that you

were the only one of the four of you that has

discussed this case with anyone else.

Did they express an opinion to you?

MS. WALTERS: No. It was just a case of she was

very sorry this happened, and she knew the person.

MS. ROLLISON: Thank you.

(De. 4/17/89 at 69-72).

Thus, the full voir dire of the jurors amply demonstrates

that they were sufficiently questioned to determine their

impartiality.

Of the sixteen jurors who had previously heard something

about the case, only juror Syphrett had formed any opinion as to

the petitioner's guilt or innocence, and he was excluded for that

reason. (Tr. 4/17/89 at 18-21). Of course, even the existence

of “preconceived notion{s] of the guilt or innocence of an

accused" based upon pre-trial publicity, is not the test for

Suitability for jury service. Irvin v. Dowd, 366 U.S. 717, 722-

723 (1961). “It is sufficient if the juror can lay aside his

impression or opinion and render a verdict based on the evidence

presented in court." Id. The jurors in question, however, had

not even formed any such opinions which had to be set aside.

(Tr. 4/17/89 at 19). Thus, nothing that they had heard about the

case could possibly have left a disqualifying impression upon

them. Moreover, as demonstrated, all the jurors who were seated

on the panel of 20 indicated that nothing that they had heard

about the case would affect their impartiality and that they

could "enter the Jury box with an open mind." (Tr. 4/17/89 at

18-19).

The issue of juror impartiality is essentially a fact-bound

question, Wainwright v. Witt, 469 U.S. 412 (1985), and in this

case both the trial judge and the Virginia Supreme Court have

found that the jurors who sat on petitioner's case were

impartial. These factual determinations are entitled to great

deference, even on direct appeal. Witt, 469 U.S. at 428-429.

Moreover, the constitutional standards regarding the scope

of voir dire are clearly established. See Ristaino v. Ross, 424

U.S. 589 (1976); Turner v. Murray, 476 U.S. 28 (1986). This

Court has repeatedly recognized that the primary responsibility

for impaneling an impartial jury is the trial judge's and that

the scope of voir dire is largely within the judge's

discretion. Ristaino, 424 U.S. at 598; Turner, 476 U.S. at P

106 S.Ct. at 1689 n. 12. Petitioner's claim is nothing more than

that the trial judge and the Virginia Supreme Court erred in

applying that standard in his case. This Court, however, does

not grant certiorari merely to review claims of perceived

error. Ross v. Moffitt, 417 U.S. 600, 617 (1974). Petitioner

has shown no "special and important reason" which would warrant

certiorari review of this claim. Rule 10.1.

II. PETITIONER'S CLAIM RE THE IMPARTIALITY OF

CERTAIN JURORS DOES NOT WARRANT

CERTIORARI REVIEW.

"The partiality or impartiality of an individual juror is a

factual issue best determined by the trial court." Patton v.

Yount, 467 U.S. 1025 (1984) ("whether jurors have opinions which

disqualify them" is not a mixed question of law and fact but

solely a fe ual question). Great deference is paid to the trial

court's resolution of such questions, even on direct appeal.

Witt, 469 U.S. at 428-429.

The applicable constitutional standards regarding juror

impartiality are thus abundantly clear and nothing could be

gained by granting certiorari in this case. This Court does not

gQrant certiorari merely to review perceived errors. Ross v.

Moffit, 417 U.S. at 617. Petitioner has shown no special or

important reason. Rule 10.1.

III. THE ADMISSION OF EVIDENCE OF OTHER CRIMES

DOES NOT RAISE A FEDERAL ISSUE.

The petitioner contends that the trial court erred in

admitting evidence of the nature of the crime for which he was

imprisoned when he committed the instant offense. This

contention is without merit because the petitioner's prior

conviction was relevant proof of an element of his capital

offense. Moreover, the claim clearly fails to state a federal

issue.

One of the grounds for the capital murder indictment was

that Mu'Min committed the murder "while ... [he] was a prisoner

in a state or local correctional facility or while in the custody

of an employee thereof." See Va. Code § 18.2-3l(c). In order to

prove the defendant's status as a prisoner under this theory, it

was certainly relevant for the Commonwealth to introduce the

conviction order which made Mu'Min a lawful prisoner of the

state.

The admissibility of evidence is a question of state law.

Moore v. Illinois, 408 U.S. 786 (1972). More particularly,

admissibility of evidence of another crime to prove an el. aent of

a capital offense does not raise a federal issue. Stockton v.

Commonwealth, 852 F.2d 740, 748 (4th Cir. 1988). This Court

Cannot grant certiorari to review a matter which is governed by

Virginia law. See also United States v. Dowling, U.S. ’

110 S.Ct. 668, 674 (1990) (evidence of other crimes does not

violate Constitution).

IV. PETITIONER'S VOLUNTARINESS CLAIM DOES NOT

WARRANT CERTIORARI REVIEW.

Petitioner contends that his statements to Investigator

Watson on September 30, 1988 and on October 1, 1988 were

involuntary.

12

The test for voluntariness of a confession, of course, is | anything or threaten him in any way in return for his statement."

well established. See Miller v. Fenton, 474 U.S. 104, 117 (Tr. 1/30/89 at 23).

(1985). -The trial court's resolution of all factual issues Petitioner also conceded the voluntariness of his confession

surrounding a confession is binding on appeal. Id. Both the when he testified at the pretrial suppression hearing:

trial court and the Virginia Supreme Court, 239 Va. at 441, 389

S.E.2d at 891, resolved all of the facts against petitioner and Q. [PROSECUTOR]: Now Investigator Watson told you

he had a microphone there and he told you this is a

found that his confession was voluntary. This conclusion is Miranda form, he says here, "You have the right to

: remain silent;" did he not?

clearly supported by the record and therefore is binding on this

A. [MU'MIN]: Yes, he did.

Court.

Q. And he said, "Do you understand that?"

The "totality of the circumstances" in the present case,

Yes.

includes the facts that the defendant had graduated from a

. And your reply was what?

private "prep" school, had received a college degree in business

- Yes.

administration, and spoke four languages, including English as

his "native" language. (Tr. 1/30/89 at 34-35, 44). He had had

- No, that's no lie.

A

Q

ry

Q. Was that a lie?

A

prior experience with the criminal justice system including the

Q

- You told the truth.

1973 first degree murder conviction for which he was imprisoned

He also told you, "Anything you can say can and

at the time of the present offense. will be used against you in court," and he said,

: "Do you understand that?"

Investigator Watson was the only person who questioned the

Do you recall your reply?

defendant on both occasions. (Tr. 1/30/89 at 21, 24). The

A. Yes, I do.

conversations did not take place at an "unusual" hour (3:45 p.m.

Q. And that was yes; was it not?

and 7:45 p.m.). (Tr. 1/30/89 at 21, 23). Both times, as

A. Yes.

evidenced by the tape recording of this conversation, Watson

Q. He said, "You have the right to consult with a

fully advised Mu'Min of his Miranda rights, and both times Mu'Min lawyer before answering any questions and to have a

lawyer with you during any questioning; do you

waived those rights. (Tr. 1/30/89 at 21-23, 25-26). There was understand that?"

nothing “unusual" about Mu'Min's condition, he was "(c]oherent, A. Yes.

sober, awake," and “seemed to understand everything that [Watson] Q. And that was correct, you understood it?

said to him." (Tr. 1/30/89 at 23). Watson did not “promise him A. Yes, I understood it.

Q. And, "If you cannot afford a lawyer one will be

provided to you free of cost if you want one; do

you understand that?"

Your reply was yes, is that right?

A. Yes.

Q. And, "Do you understand your rights as I have

explained them?" And your answer was yes, is that

right?

A. That's right.

Q. And he also said, "Are you willing to talk with

me without consulting a lawyer or having a lawyer

present with you?" And your reply was yes, isn't

that right?

A. Yes, it was.

Q. So ... you were able to understand what he said

to you in plain English; is that correct?

A. Yes, sir.

x k

Q. And the words that he gave you here, there's

nothing in there that you didn't understand and

there's nothing in there to indicate that he in any

way made you say yes; isn't that correct?

A. That's correct.

zx kk

Q. ... [¥YJou know lawyers are there for your

benefit if you want them; isn't that right?

A. Yes.

zx ke &

Q. ... [O]n these occasions you had your right to a

lawyer and you wanted to go ahead without one?

A. Yes, I did.

1/30/89 at 35-37, 39-40).

V. THE VIRGINIA STATUTORY SCHEME FOR

IMPOSITION OF THE DEATH PENALTY

SUFFICIENTLY BRIDLES THE JURY'S

DISCRETION.

Section 19.2-264.2 "bridles" the sentencer in requiring that

either "vileness" or “future dangerousness" be found beyond a

reasonable doubt. It also does so at the guilt phase by narrowly

defining capital murder. Virginia Code § 18.2-3l. See

Lowenfield v. Phelps, 482 U.S. 231, 244-246 (1988). No further

narrowing is required. Nevertheless, the Virginia Supreme Court

clearly accomplishes the constitutionally required narrowing

function when it reviews every death sentence, including

petitioner's, 239 Va. at 449-451, 389 S.E.2d at 896-898, and

applies a narrowing construction to both the vileness and future

dangerousness factors. See Virginia Code § 17-110.1. Both

reviews were made by the Virginia Supreme Court. 239 Va. at 449-

451, 389 S.E.2d at 896-898. The Court of Appeals for the Fourth

Circuit, which is intimately familiar with Virginia Lae, has

repeatedly upheld the constitutionality of Virginia's death

penalty statute. See e.g. Boggs v. Bair, 892 F.2d 1193, 1196-

1198, cert. denied, 110 S.Ct. 2193 (1990).

VI. THE SENTENCE WAS NOT THE RESULT OF

PASSION, PREJUDICE, OR OTHER ARBITRARY

FACTORS.

The Supreme Court of Virginia, as mandated by § 17-110.1

(C)(1), reviewed the record for the influence of passion,

prejudice or any other arbitrary factor. 239 Va. at 448-449, 389

S.E.2d at 896. It found none, and the record reflects none.

This Court has recently held that it will not look behind such

good faith reviews of death sentences by a state's highest

court. See Walton v. Arizona, U.S. _, 110 S.Ct. (No.

88-7351, June 27, 1990).

CONCLUSION

‘N

A writ of certiorari is not a matter of right, but of

judicial discretion. It will be "granted only when there are

special and important reasons therefor." Rule 10.1, Rules of the

Supreme Court of the United States. Petitioner has failed to

raise any claim which has any significance beyond the parameters

of his case. Under these circumstances, the petition for a writ

of certiorari should be denied.

Respectfully submitted,

MARY SUE TERRY

Attorney General of Virginia

By: ¥ / 4 ° prea. : ZA i-s * .

Thomas C. Daniel

Assistant Attorney General

OFFICE OF THE ATTORNEY GENERAL

Commonwealth of Virginia

Supreme Court Building

101 North Eighth Street

Richmond, Virginia 23219

CERTIFICATE OF SERVICE

I, Thomas C. Daniel, a member of the Bar of this Court and

counsel of record for respondent, hereby certify that I have this

16th day of August, 1990, served this Brief upon the petitioner

by causing three copies of such document to be mailed first-class

mail, with postage prepaid, to Dawud Majid Mu'Min, No. 101387,

Post Office Box 500, Mecklenburg Correctional Center, Boydton,

Virginia 23917.

FOE

Thomas C. Daniel

Assistant Attorney General

Criminal Litigation Section

Phelan;

vi.

f

f 8. S

o i a

Staak che

ae K Marshall Cook

Deputy Attorney Genera!

Finance & Transportation Division

COMMONWEALTH of VIRGINIA R Clare Guthre

Mary Sue Terry

Attorney Genera ’ Deputy Attorney Genera!

Office of the Attorney General Human & Natura! Resources Division

H. Lane Kneedier

Crmet Deputy Attorney Genera Gail Starling Marshal!

Deputy Attorney Genera

Deborah Love-Bryant Judicial Affairs Divisior

Crvet-ot-Stat

Rosenthal

August 16, i990 RECEIVED t=:

AUG 20 1990

Crewe or init CLERK

SUPREME COURT, U.S.

The Honorabie Joseph F. Spanioi, Clerk

Uniteu States Supreme Court

One First Street, N.w.

Supreme Court Building

Washington, D.C. 20543

Re: Dawud Majiu Nuthin v. Commonweaith of Virginia

Recoiu No. 90-5193

Dear Mr. Spaniol:

Please find encloseu an veriginal anc eieven copies ot the

Responagent's Brief in Opposition, to be filea with the other

paypeis in the above-ieferenceu Case.

Thank you for your consideration in this matter.

Very truly yours,

| . .

‘1 owt. futes

Thomas C. Daniel

Assistant Attorney Generai

Criminal Litigation Section

3:50/234

Enciosures

Supreme Court Buildings 101 North Eighth Streets Ricnmond Virginia 23219°804 - 786-2071°804 - 371-8946 (V/TDD

CERTIFICATE OF SERVICE

I hereby certify that on the SLOft aay of July, 1990, a

true copy of the foregoing Motion for Leaving to Proceed In

Forma Pauperis, and Affidavit in Support of Motion to Proceed

on Writ of Certiorari In Forma Pauperis, and Petition for Writ

of Certiorari to the Suprem: Court of Virginia, all of which

are being filed pro se, were mailed to the Honorable Joseph

F. Spaniol, Jr., Clerk of the Supreme Court of the United States,

One First Street, Northeast, Washington, DC 20543, and to the

Honorable Mary Sue Terry, Attorney General of Virginia, 101

North Eighth Street, Richmond, Virginia 23219.

—f! Ms5—_

YS. M OMERY

f Pi

larry S. Montgomery

Attorney at Law

P. O. Box 653

220 S Mecklenburg Ave.

South Hill, Virginia 23970

. RECEIVED

Harry S. MONTGOMERY JUL 169 1990 ?

ATTORNEY aT Law Cr=ic. CF THE CLERK

220 Soutw Mecxvensurc Avenue SUPRIME COURT, U.S.

EES EE GTS eee Or ee SouTH HILL, VIRGINIA 23970 wien

July 17, 1990

The Honorable Joseph F. Spaniol, Jr., Clerk

The Supreme Court of the United States PRO SE

One First Street, Northeast eee a

Washington, DC 20543

RE: DAWUD MU'MIN vs. CCOMMONWEALTH OF VIRGINIA

Dear Mr. Spaniol:

I am inmate counsel at Mecklenburg Correcitonal Center,

Boydton, Virginia, appointed pursuant to Section 53.1-40 of

the Code of Virginia.

The above named individual, Dawud Mu‘'Min, is hereby filing

a Motion for Leave to Proceed In Forma Pauperis, and Affidavit

in Support of Motion to Proceed on Writ of Certiorari In Forma

Pauperis, and a Petition for Writ of Certiorari to the Supreme

Court of Virginia, all of which are being filed pro se.

Also enclosed you will find a copy of an order by the

Supreme Court of Virginia dated April 20, 1990, denying a

Petition for Rehearing.

I am today filing a copy of the motion, the affidavit,

and the petition with the Honorable Mary Sue Terry Attorney

General of the Commonwealth of Virginia in Richmond, Virginia.

Thank you very much.

Sincerely yours,

io: ded

ali o- ttc /

bg

Enclosures