# Opposition Brief — Mu'Min v. Virginia

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 500 U.S. 415

## Text

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?

x & &

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?

x ke

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 --

zx kk

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0115%3A3. Public record. Not legal advice.