Opposition Brief — Mueller v. Virginia

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ORIGINAL aT

} FILED

MAR 8 18%

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

NO. 92-7507

EVERETT LEE MUELLER

Petitioner,

Vv.

COMMONWEALTH OF VIRGINIA

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

STEPHEN D. ROSENTHAL

Attorney General of Virginia

ROBERT H. ANDERSON, III

Assistant Attorney General

Supreme Court Building

101 North Eighth street

Richmond, Virginia 23219

(804) 786-4624

II.

QUESTIONS PRESENTED

WHETHER PETITIONER’S ATTACK UPON HIS

CONFESSION ADVANCES LITTLE MORE THAN

A STATE LAW, FACT-SPECIFIC ARGUMENT

AND THEREFORE FAILS TO PRESENT A

SUBSTANTIAL FEDERAL CONSTITUTIONAL

QUESTION?

WHETHER PETITIONER’S ARGUMENTS ON THE

MERITS CONCERNING HIS CONFESSION AND

THE VOIR DIRE ARE TOO INSUBSTANTIAL

TO WARRANT REVIEW BY THIS COURT?

PAGE

QUESTIONS PRESENTED ...++-cceeesceceveveee eee ee i

ee ee ee ee es ee ee ee ee ee ee ee ee ee ee 1

CONSTITUTIONAL PROVISIONS INVOLVED ......24.4+64 ++ 88 1

Orntmeees GF TER CASE. 2 ts we we eee ee woe eee ee ee 2

KA ee ee ee ee ee ee ee 2

REASONS FOR DENYING THE WRIT ..... 6 «© © © © © we eee 9

I. PETITIONER’S ARGUMENT ATTACKING THE

ADMISSIBILITY OF HIS CONFESSION RAISES

LITTLE MORE THAN A STATE LAW, FACT-SPECIFIC

CLAIM AND THUS DOES NOT PRESENT A SUBSTANTIAL

FEDERAL CONSTITUTIONAL QUESTION.

II. PETITIONER’S ARGUMENT ATTACKING HIS

CONFESSION LACKS MERIT AND THUS DOES

NOT ADVANCE A SUBSTANTIAL FEDERAL

CONSTITUTIONAL QUESTION.

III. PETITIONEK’S COMPLAINT CONCERNING THE

ADEQUACY OF THE VOIR DIRE DOES NOT RAISE A

SUBSTANTIAL FEDERAL CONSTITUTIONAL ISSUE.

CONCLUSION. 2 0 0 + 6 6 8 6 2 4 6 so & 6.6 & Os. 6 6 6

CERZZPECATE OF GERVICR . 2-2 cece ec eeevseseseeseeeveee eo Bh

ii

Cases

California v. Prysock, 453 U.S. 355 (1981)

Cardinale v. Louisiana, 394 U.S. 437 (1969)

Coleman v. Thompson, 111 S. Ct. 2546 (1991)

Colorado v. Spring, 479 U.S. 564 (1987) .

Connecticut v. Barrett, 479 U.S. 523 (1987)

Delap v. Dugger, 890 F.2d 285 (1ith Cir. 1989),

cert. denied, 110 S. Ct. 2628 (1990)

Duckworth v. Eagan, 492 U.S. 195 (1989)

Fare v. Michael C., 442 U.S. 707 (1979) .

Illinois v. Perkins, 110 S. Ct. 2394 (1990)

James Briley v. Bair, 750 F.2d 1238 (4th Cir.

cert. denied, 470 U.S. 1088 (1985)

Lightbourne v. Dugger, 829 F.2d 1012 (11th Cir.

cert. denied, 488 U.S. 934 (1988)

Miller v. Fenton, 474 U.S. 104 (1985).

Moore v. Dugger, 856 F.2d 129 (11th Cir. 1988)

Morgan v. Illinois, 112 S. Ct. 2222 (1992)

Mueller v. Commonwealth, 244 Va. 386,

422 S.E.2d 380 (1992) .....e.-s

Mu’Min v. Virginia, 111 S. Ct. 1899 (1991)

Norman v. Ducharme, 871 F.2d 1483 (9th Cir.),

cert. denied, 110 S. Ct. 1483 (1989)

Patterson v. Illinois, 487 U.S. 285 (1988)

People v. Thompson, 50 Cal.3d 134, 266 Cal.Rptr.

1984),

1987),

17,

309 (1990).

Pruett v. Commonwealth, 232 Va. 266 351 S.E.2d 1 LSSONP

cert. denied, 482 U.S. 931 (1987)

iii

12

19

Pulley v. Harris, 465 U.S. 37 (1984). .........

Roemer v. Maryland Public Works Bd., 426 U.S. 736 (1976)

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

Smith v. Illinois, 469 U.S. 91 (1984) .........

Springfield v. Kibbe, 480 U.S. 257 (1987) ...

Sumner v. Mata, 449 U.S. 539 (1981)...

Texas v. Mead, 465 U.S. 1041 (1984) .........4.

United States v. Bye, 919 F.2d 6 (2d Cir. 1990)

United States v. Anglian, 784 F.2d 765 (6th Cir. Ys

cert. denied, 479 U.S. 841 (1986) ... :

United States v. Cruz, 910 F.2d 1072 (3rd Cir. 1990),

cert. denied, 111 S. Ct. 709 (1991) ......

United States v. D’Antoni, 856 F.2d 975 (7th Cir. 1988)

United States v. Johnston, 268 U.S. 220 (1925).

United States v. Pace, 898 F.2d 1218 (7th Cir.),

cert. denied, 110 S. Ct. 3281 (1990) .....

United States v. Pelton, 835 F.2d 1067 (4th Cir. 1987),

cert. denied, 486 U.S. 1010 (1988) ........

United States v. Thierman, 678 F.2d 1331 (9th Cir. 1982)

Wyrick v. Fields, 459 U.S. 42 (1982) . ‘ee

U.S. Ss. ct. R. 10.1 . . . . . . . . . > > . . aa

U.S. Ss. ct. R. 14.1(h) . + . . . . . . . . . .

Rule 3A:14, Rules of the Supreme Court of Virginia

iv

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11

16

10

10

18

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

NO. 92-7507

EVERETT LEE MUELLER

Petitioner

Vv.

COMMONWEALTH OF VIRGINIA

Respondent,

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

OPINION BELOW

The opinion of the Supreme Court of Virginia is reported at

244 Va. 386, 422 S.E.2d 380 (1992).

The petitioner does not assert the basis for this Court’s

jurisdiction in his petition.

The relevant constitutional provisions involved are recited in

the petition at 2.

ee

—— ae ae

STATEMENT OF THE CASE

Petitioner was convicted by a jury in the Circuit Court of

Chesterfield County, Virginia, on September 11, 1991 of capital

murder in the commission of, or subsequent to, rape and in the

commission of abduction with intent to defile Charity Powers. On

September 12, 1991, Mueller was sentenced to death on the capital

murder conviction. In addition, petitioner was convicted of

abduction and rape and was sentenced to two terms in the

penitentiary of life imprisonment. Thereafter, on December 19,

1991, the trial court sentenced petitioner in accordance with the

verdict of the jury.

Petitioner then appealed his convictions to the Supreme Court

of Virginia. On April 1, 1992, the State Supreme Court

consolidated Mueller’s appeal on the underlying offenses with his

capital murder appeal. In a published opinion, the Supreme Court

of Virginia affirmed in all respects. Mueller v. Commonwealth, 244

Va. 386, 422 S.E.2d 380 (1992).

STATEMENT OF FACTS

After her mother dropped her off at a skating rink in

Chesterfield County on the night of October 5, 1990, Charity

Powers, who was ten years old, disappeared in the early morning

hours of October 6. Her body was recovered in a shallow grave on

February 10, 1991, and petitioner was arrested two days later.

Mueller then confessed to the capital murder, rape, and abduction

of Powers.

A. Suppression Hearing

At the suppression hearing, the Commonwealth introduced

evidence that Powers had last been seen after midnight on October

6, 1990 at a fast food restaurant located 1/4 of a mile from the

skating rink. (App. 117-118).' Witnesses at the restaurant

observed a man who resembled Mueller watching Charity as she sat

outside the restaurant. (App. 120-121).

The Commonwealth’s evidence also showed that Mueller, who was

42 years old, was no novice in the criminal justice system. He had

been arrested three times on criminal charges in the 1970s; each

time petitioner had been advised of his Miranda rights and, after

signing a waiver form, had given a statement to the police. (App.

253-257, 269-275). Moreover, on October 9, 1990, Detectives Wayne

Garber and G. F. Paul, III of the Chesterfield County Police

Department each advised petitioner of his Miranda rights. Mueller

then executed a waiver form and agreed to take a polygraph

examination. Mueller indicated that he understood his rights and

that he had a G.E.D. (App. 153, 184-185, 279-282). After Paul

asked Mueller to sign a consent form for the search of his vehicle,

however, Mueller stated that he wanted to talk with a lawyer before

he took the polygraph examination and wanted to be present during

the search of his car. (App. 188, 283). Mueller then stood up and

‘References to the appendix in the direct appeal in the Supreme

Court of Virginia will be designated as "App. -" Further, the

facts relevant to the present petition are recited in the opinion

of the Supreme Court of Virginia on direct appeal.

Commonwealth, 244 Va. at 389-392, 422 S.E.2d at 383-385.

3

ended the examination. (App. 188) .’

On October 22, 1990, petitioner again unequivocally ended an

interview after stating that he wanted to leave and then standing

up. (App. 190-191, 220). Subsequently, petitioner only mentioned

an attorney once before his arrest. On November 5, 1990, Mueller

stated that he would contact counsel to determine if the police

“were setting him up." (App. 224). The police asked Mueller at

least four times to obtain counsel and get back with them; Mueller

said several times that he was attempting to retain one, but he

never did and no lawyer ever called the police. (App. 193, 227-

234).

Detective Garber and John Palfi, an FBI special agent, were

the two primary investigators in the Powers case. They questioned

Mueller more than a dozen times in the four months prior to his

arrest. (App. 150-151, 191-192, 221-231). Mueller, who twice

drove to the police department to be interviewed, was questioned in

a variety of locations. (App. 184-185, 189-190, 219). As a result

of their frequent contacts, the police developed a cordial

relationship with Mueller. (App. 193). In fact, when the officers

were late in calling on him, petitioner sometimes stated that he

had been looking for them and had wondered where they were. (App.

194). At the end of some interviews, Mueller indicated that he

wanted to speak with the police further. (App. 235).

The police recovered Charity’s body on February 10, 1991, at

"Later, on February 7, 1991, petitioner unambiguously refused

to take a polygraph test. (App. 237).

a

a site about 900 feet behind Mueller’s home and less than a mile

from the skating rink and fast food restaurant. (App. 1018, 1051-

1056). Garber and Palfi subsequently arrested Mueller on the

morning of February 12, 1991 and took him to the Chesterfield

County Police Department where they interrogated him for

approximately 4-1/2 hours. (App. 149-150). At the outset of the

questioning, Garber again advised Mueller of his Miranda rights and

he agreed to talk to him and Palfi. (App. 151-153, 195-196, 1345-

1346). Neither officer noticed any physic’! or mental condition

indicating that Mueller was not in full control of his faculties.

(App. 198-240). The police provided Mueller with water and

cigarettes and never refused him anything that he requested. (App.

198).

During the first two hours of the interrogation, Mueller

several times stated that he was ready to go to jail or that the

police should take him to jail or put him in jail. (App. 157-158,

170, 180-181, 212-213, 217-218). At no point prior to confessing,

though, did Mueller say that he wished to end the questioning. If

he had, that “would have been the end" of the interrogation. (App.

157). When the officers asked petitioner if he no longer wanted to

talk to them, Mueller said he did not want to speak with anyone

else but did wish to talk to them. (App. 158, 180-182).

Neither officer construed his comments to mean that petitioner

wished to stop the interrogation. Rather, especially in view of

the fact that at the beginning of the interview petitioner had

discussed where and under what circumstances he was going to jail,

the officers viewed these comments as an attempt to avoid

confessing, which they believed he ware about to do. (App. 157,

181, 213). Each officer had previously interrogated other

defendants who had similarly referred to going to jail and who had

the same intent of forestalling a confession. (App. 171, 216).

After about two hours, Palfi left the room. Several minutes

later, Mueller asked Garber whether he thought he needed an

attorney. (App. 153-154). This was Mueller’s sole reference to an

attorney during the interrogation. (App. 199). At this point,

Garber believed that Mueller wanted to give a statement but also

wanted to ensure that an attorney did not have to be present when

he gave it. (App. 155, 199-200). Thus, Garber did not construe

petitioner’s question as a request for counsel. (App. 209).

The officer responded to Mueller’s question by shrugging his

shoulders and stating: "We are talking." (App. 154, 179). While

Garber did not recall shaking his head as he responded, he

testified that if he had also done this his response was aimed at

telling petitioner that he could not advise him on this matter, not

that an attorney was unnecessary. (App. 155-156, 178-179, 200).

Several minutes after this exchange, Mueller told Garber to

bring Palfi back into the room. He then shook each officer’s hand,

congratulated them for their job, and stated that they had the

right man. (App. 201-202). This was the same kind of “unambiguous

conduct" which the officers had seen when Mueller stopped the two

interviews in October. (App. 202). It was, however, unlike

petitioner’s previous conduct during the post~arrest interrogation.

(App. 200-201, 241-242). Mueller then confessed to the abduction,

rape, and murder of Charity Powers. (App. 202). Petitioner told

the officers that he had talked because "it was eating at him. It

was driving him crazy, and he had not been able to get any sleep."

(App. 201, 244).

The trial court, in denying petitioner’s motion to suppress

his confession, found as fact that: petitioner knew how to ask for

the assistance of counsel and had done so on October 9, 1990;

Mueller was advised at the outset of the interview on February 12,

1991 of hiS Miranda rights and understood them; his ability to

exercise his free will to invoke his rights was not thereafter

overborne; petitioner’s reference to an attorney in his question to

Garber was not an expression of his desire for the assistance of

counsel; and petitioner had been advised of and understood his

Miranda rights before his arrest. (App. 71-75).

B. The Guilt Phase

The Commonwealth’s evidence established that as a result of

their ongoing investigation, the police began to search for

Charity’s body near Mueller’s home in February, 1991. On February

8, searchers uncovered Charity’s remains in a wooded area near

Mueller’s home. (App. 1017-1018, 1023-1027). The police then

recovered a knife about 174 feet from Charity’s grave as well as a

hole about 120 feet from the burial site. (App. 1029-1033, 1048).

The prosecution also introduced Mueller’s confession, in which

he stated that he had offered Powers a ride home from the

restaurant. Petitioner, however, then drove her to his home and

7

took her into the woods where he had intercourse with her. He

admitted having had a knife nearby,—but asserted that he had not

used it. Because Mueller was concerned that Charity would turn him

in, he said that he then strangled her to death. The next morning,

petitioner tried to dig a grave in one place, and then buried

Powers a few feet away near a pond.

The prosecution also adduced evidence that after confessing,

Mueller helped the police to locate the clothing and personal

effects of Charity which he had burned. Without Mueller’s help,

the police "would never have found" these items because the area

was a dumping ground. (App. 1080). Mueller also showed them the

location where he had lost his knife; it was in the same area where

the knife had been found. (App. 1082). Petitioner also indicated

that the place where the knife had been recovered was about 15 feet

from where Mueller had intercourse with Powers. (App. 1083).

Finally, the Commonwealth introduced forensic evidence

establishing the identity of the body as Charity. (App. 1097-

1112). Concerning the cause of death, the medical examiner

testified that “irregular holes in the area where each nipple would

be" had been found and opined that these were injuries. (App.

1139, 1141). The medical examiner further testified that there was

disproportionately greater decomposition in Charity’s neck area,

thus indicatine that she had probably suffered a neck injury.

(1146-1147). Finally, the examiner testified that the cause of

death was “acute neck injury" and that Charity had bled before her

death. (App. 1147-1153, 1160-1166).

Cc. The Penalty Phase

The Commonwealth introduced evidence detailing Mueller’s long

history of abductions and sexual assaults at knifepoint, including

the rape of petitioner’s own sister. (App. 1184-1221). Both

parties also introduced expert testimony by clinical psychologists;

each expert agreed that petitioner suffered from a "severe" or

“pervasive life-long" anti-social personality disorder. (App.

1226-1229, 1273). Finally, testifying in his own behalf,

petitioner acknowledged that he had not felt remorse after raping

several women and conceded that after one victim had finished

testifying in this case, he had called her "a lying bitch." (App.

1305-1307). Mueller also asserted that he had confessed to the

capital murder charge only to help his girlfriend get off from a

drunk driving charge. (App. 1323-1324).

REASONS FOR DENYING THE WRIT

I. Petitioner’s Argument Attacking The

Admissibility Of His Confession Raises

Little More Than A State Law, Fact-Specific

Claim And Thus Does Not Present A Substantial

Federal Constitutional Question.

Petitioner challenges his confession, based on the failure of

the police to cease questioning after he referred several times

about being ready to go to jail and then asked Detective Garber if

he needed an attorney. That is, Mueller asserts that he invoked

his right to silence and the officers thereby committed a Miranda

violation by continuing the interrogation. Further, petitioner

contends that he would have requested counsel but for Garber’s

9

a are

reply and that the officer effectively undercut the Miranda

warnings he had previously given.

Mueller’s argument, though ultimately couched in

constitutional terms, in large measure raises nothing more than a

state law claim, resolution of which is merely dependent upon the

facts in this case. That is, petitioner acknowledges the "bright

line" test in Virginia, which requires a suspect to unambiguously

invoke his right to counsel or right to remain silent, but says

that Garber’s response dissuaded Mueller from making such an

unambiguous request. (Pet. at 14). The very fact that the present

petition is almost entirely devoted to distinguishing other

Virginia decisions illustrates its limited dimensions. (Pet. at

11-15).

It is settled that this Court does "not grant certiorari to

review evidence and discuss specific facts." United States v.

Johnston, 268 U.S. 220, 227 (1925). See also Texas v. Mead, 465

U.S. 1041 (1984) (Stevens, J.). Likewise, this Court does not sit

simply to review procedures of state courts or to review mere state

law questions. See Ross v. Moffitt, 417 U.S. 600, 616-617 (1974);

Pulley v. Harris, 465 U.S. 37 (1984). See also U.S. S. Ct. R. 10.1

(writ “will be granted only when there are special and important

reasons therefor."); Rule 14.1(h) (petitioner must demonstrate that

federal question "was timely and properly raised so as to give this

Court jurisdiction to review the judgment.")

Petitioner’s argument fails these threshold requirements.

Adjudication of this issue is simply a function of applying

10

Virginia’s “bright line" rule to the record in this case. This

Court’s resources should be directed to other, more substantial

issues.

II. Petitioner’s Argument Attacking His

Confession Lacks Merit And Thus Does

Not Advance A Substantial Federal

Constitutional Question.

On the merits, Mueller’s attack upon the admissibility of his

confession is far too insubstantial to justify review by this

Court. It is important to note that Mueller does not challenge the

adequacy of his Miranda warnings at the outset of his interrogation

or the validity of his Miranda waiver. Also, petitioner raises no

Sixth Amendment right to counsel issue; his arguments arise solely

under the Fifth Amendment.

Finally, petitioner does not challenge the factual findings of

the trial court and the Supreme Court of Virginia. While the

admissibility of a confession is ultimately a legal question, the

subsidiary factual findings are presumptively correct in this

Court. See Miller v. Fenton, 474 U.S. 104 (1985). See also Sumner

v. Mata, 449 U.S. 539 (1981); Roemer v. Maryland Public Works Bd.,

426 U.S. 736, 758 (1976). The trial court found that petitioner

was familiar with his Miranda rights and had previously invoked

them, was advised of and understood his rights at the start of the

interrogation, did not mean by his question to Garber to seek the

assistance of counsel, and did not have his ability to exercise his

free will to invoke his rights overborne. (App. 71-75). The State

Supreme Court on direct appeal also found that petitioner’s

11

statements during his interrogation about going to jail “were

simply impatient gestures {rather than] an invocation of his right"

to remain silent, that he was aware of the consequences of talking

to the police, that his question to Garber was not a request for

counsel, and that “Garber did not ... respond to Mueller’s question

by answering ‘No.’ Rather, he replied, while shrugging and shaking

his head slightly from side to side, ‘You’re just talking to us.’"

244 Va. at 395-396, 422 S.E.2d at 386-387. Accordingly, the State

Supreme Court held that petitioner never invoked his right to

remain silent or right to counsel and that Garber’s response to

Mueller did not vitiate his earlier Miranda waiver. 244 Va. at

396-397, 422 S.E.2d at 387.

The record in this case reflects the correctness of these

rulings. During the first two hours of petitioner’s interrogation,

he said several times that he was ready to go to jail. Mueller,

however, had already been arrested and brought up the conditions of

his pending incarceration several times (for example, whether he

would be placed in a segregated cell). Significantly, about 75

minutes into the interview, Palfi asked if Mueller would be more

comfortable talking with other officers. Petitioner responded that

he did not mind talking to him and Garber. "I’ve been talking to

you for four months. I’ve established a pretty good relationship

with you guys.” Cf. People _v. Thompson, 50 Cal.3d 134, 266

Cal.Rptr. 309, 325 (1990). At no point after his references to

being put in jail did petitioner stand up or in some other way

clearly manifest his desire to end the questioning. This sharply

12

contrasted with his termination of two prior interviews in October,

1990 and refusal to take a polygraph test on February 7, 1991.

(App. 188-191, 220, 237). See Smith v. Illinois, 469 U.S. 91, 98

(1984) (events prior to statement may render it ambiguous).

Moreover, numerous other courts have upheld confessions after

the suspect had made comments much like Mueller’s. See e.g., Delap

v. Dugger. 890 F.2d 285, 292-293 (lith Cir. 1989), cert. denied,

110 S. Ct. 2628 (1990) (defendant asked several times how much

longer he would be detained and stated "that he wanted to go");

United States v. D’Antoni, 856 F.2d 975, 980-981 (7th Cir. 1988)

(defendant told police that he had provided all of the information

he had); Moore v. Dugger, 856 F.2d 129, 134 (11th Cir. 1988) ("When

will you all let me go home?"); Lightbourne v. Dugger, 829 F.2d

1012 (11th Cir. 1987), cert. denied, 488 U.S. 934 (1988) (defendant

asked whether he had to continue with interrogation); United States

v. Thierman, 678 F.2d 1331, 1335-1336 (9th Cir. 1982) ("Can we talk

about it tomorrow?"). See also Fare v. Michael C., 442 U.S. 707,

724 (1979) (juvenile’s request to speak with probation officer was

not per se request to remain silent).

The record also establishes that petitioner did not invoke his

right to counsel. First, petitioner effectively concedes that his

question to Garber, standing alone, was insufficient to trigger his

right to counsel. For example, Mueller repeatedly asserts that he

was “contemplating” or "considering" a request for an attorney.

(Pet. at 12-14). Further, he says that but for Garber’s reply, he

might have unambiguously sought counsel. Finally, Mueller states

13

that Garber could have remained silent when petitioner asked his

question. (Pet. at 15). Beyond this, the state courts’

‘unchallenged factual finding that Mueller’s question was not a

request for counsel necessarily resolves this issue. See also

Connecticut v. Barrett, 479 U.S. 523, 528 (1987) (Miranda does not

require police “to ignore the tenor or sense of a defendant’s

response" to warnings); Norman v. Ducharme, 871 F.2d 1483, 1486

(9th Cir.), cert. denied, 110 S. Ct. 1483 (1989); United States v.

Pelton, 835 F.2d 1067, 1072 (4th Cir. 1987), cert. denied, 486 U.S.

1010 (1988).

Finally, petitioner’s argument that Garber’s response

dissuaded him from clearly requesting counsel and vitiated the

prior Miranda warnings is not well taken factually or legally.

First, as the state courts found, Garber merely shrugged his

shoulders and shook his head slightly from side to side, thus

indicating that he could not answer Mueller’s question. Because

the officer did not give “an unambiguously negative reply," the

Virginia Supreme Court rightly held that his response did not

undercut the prior Miranda warnings. 244 Va. at 396, 422 S.E.2d at

387. See also Duckworth v. Eagan, 492 U.S. 195 (1989) (warnings in

their totality satisfied Miranda; Court rejected petitioner’s

argument that phrase “if and when you go to court" misled him

concerning the right to appointed counsel before questioning) ;

California v. Prysock, 453 U.S. 355 (1981) (clarity of warnings

conveyed to defendant his right to appointed counsel prior to

questioning).

14

Further, Garber’s fragmentary response could not possibly have

confused Mueller as to the nature of his Miranda rights or the

ramifications of making an inculpatory statement to the police.

See generally Illinois v. Perkins, 110 S. Ct. 2394, 2397 (1990)

(coercion determined from viewpoint of suspect). At the time of

the confession, Mueller was 42 years old and had obtained a G.E.D.

(App. 1281, 1287-1288). Petitioner had often been advised of his

Miranda rights in connection with serious criminal charges and had

either exercised or waived then. In the four months between

Charity’s disappearance and Mueller’s arrest, the police informed

him of his rights at least two times and he twice unambiguously

stopped police interrogations. (App. 153, 184-185, 188-191, 253-

257, 269-283).

At the outset of the post-arrest interrogation, Mueller was

fully advised of his rights. Thereafter, prior to confessing,

petitioner stated that he was concerned about being in jail, given

the seriousness of the case. About 100 minutes into the interview,

Palfi said in so many words: “Anything you tell us, we can get on

the stand and tell the jury. You know that, or you should." Then,

after Mueller confessed, he told the police that he had wanted "to

get it off his chest." (App. 244).

It is therefore wholly untenable for Mueller to assert that

Garber’s statement misled him or caused him to confess. Given

Mueller’s background, his clear Miranda warnings at the start of

his interrogation simply reinforced petitioner’s understanding of

his rights. See Colorado vy. Spring, 479 U.S. 564, 577 (1987)

15

("broad and explicit" Miranda warnings conveyed to defendant nature

of his “constitutional privilege and the consequences of abandoning

it"). See also Patterson v. Illinois, 487 U.S. 285, 292-297 (1988)

(defendant’s Miranda warnings also served to apprise him of his

Sixth Amendment right to counsel) ; Wyrick v. Fields, 459 U.S. 42,

47 (1982) ("circumstances [had not} changed so seriously" that

defendant’s waiver of counsel during polygraph test did not extend

to post-test questioning). In sum, Mueller’s knowledgeable

background and explicit warnings at the start of the questioning

overrode any arguable ambiguity in Garber’s response. Cf. United

States v. Cruz, 910 F.2d 1072, 1077-1079 (3rd Cir. 1990), cert.

denied, 111 S. Ct. 709 (1991); United States v. Anglian, 784 F.2d

765, 768-769 (6th Cir.), cert. denied, 479 U.S. 841 (1986).

Finally, even if Garber’s statement were deemed to contradict

Mueller’s Miranda warnings, the record in its entirety reflects

that the statement did not induce his confession. See United

States v. Pace, 898 F.2d 1218, 1246 (7th Cir.), cert. denied, 110

S. Ct. 3281 (1990) (even if police told defendant that his

statements were “confidential” and that he was not a target of

federal investigation, record established that such promises did

not induce his statements). Cf. United States v. Bye, 919 F.2d 6

(2d Cir. 1990) (mere mention of possible benefits accruing from

defendant’s cooperation does not make statement involuntary) .’

*If the present petition is also deemed to argue that Mueller’s

confession was inadmissible under the Fifth Amendment’s “totality

of the circumstances" test, such a fact-specific claim is clearly

an inadequate basis for this Court’s review. Further, Mueller was

a reasonably intelligent individual, who understood his rights and

16

III. Petitioner’s Complaint Concerning The

Adequacy Of The Voir Dire Does Not Raise A

Substantial Federal Constitutional Issue.

Mueller complains that the voir dire was inadequate because he

did not have the same latitude to ask whether anything would

prohibit prospective jurors from giving a life sentence that the

Commonwealth had in questioning veniremen whether anything would

prohibit them from imposing the death penalty. Mueller further

asserts that throughout the trial the judge and prosecutors asked

leading questions which were "designed to box the jury in" and

which did not effectively examine jurors concerning their fitness

to serve in the penalty phase. (Pet. at 17).

First, the record establishes that petitioner may properly

advance this argument only as to juror Max Zoeckler. The venire

consisted of 47 persons. Twenty-three jurors were struck for

cause. Petitioner objected to the trial court’s qualification of

ten of the remaining twenty-four veniremen. Mueller v.

Commonwealth, 244 Va. at 399, 422 S.E.2d at 389. Petitioner

challenged only two jurors, Ruby Moschler and Zoeckler, on the

basis that they were “death prone." Id. Because the trial court

did not refuse any question of Mueller’s concerning Moschler’s

fitness to mete out a life sentence, the Supreme Court of Virginia

found procedurally barred any attack upon the scope of her voir

dire. 244 Va. at 399-400, 422 S.E.2d at 389. Thus, the adequacy

had previously exhibited a willingness to exercise them. The

officers observed no physicat or mental impairment during

petitioner’s confession. (App. 240, 298). Thus, any such Fifth

Amendment claim does not present a substantial federal

constitutional question.

17

ie

of the voir dire of Moschler or any other juror other than Zoeckler

cannot warrant review by this Court. See Springfield v. Kibbe, 480

U.S. 257 (1987); Cardinale v. Louisiana, 394 U.S. 437 (1969). See

also Coleman v. Thompson, 111 S. Ct. 2546 (1991) .‘

Petitioner’s argument concerning the voir dire of Zoeckler

breaks no new legal ground and hardly justifies this Court’s

review. Furthermore, his examination clearly comported with

constitutional standards. First, the trial court made prefatory

comments about the case and propounded questions about the jurors’

possible bias or interest to groups of fourteen veniremen. (App.

383-416). See Rule 3A:14 of the Rules of the Supreme Court of

Virginia. Then, the trial court questioned Zoeckler and other

jurors individually concerning the extent, if any, of their

exposure to pretrial publicity, ability to follow the principles of

proof beyond a reasonable doubt and presumption of innocence, and

ability to consider imposing either death or life imprisonment in

the penalty phase. (App. 518-522). Then, each side was permitted

to ask follow-up questions.

During Zoeckler’s examination, the trial court sustained

objections to two questions propounded by defense counsel

concerning his possible "“death-proneness." See Mueller _v.

Commonwealth, 244 Va. at 400, 422 S.E.2d at 389. The trial court’s

rulings were proper because Mueller’s questions did not provide an

‘similarly, Mueller’s failure to object to the trial court’s

ruling that juror Theresa Gryder was qualified to sit on the jury

bars any attack in this Court on her inclusion. See Mueller v.

Commonwealth, 244 Va. at 402 n.4, 422 S.E.2d at 390-391.

18

a ee ee ae ee ee

adequate context for determining Zoeckler’s fitness to serve in the

penalty phase. That is, because the questions referred only to the

nature of the aggravating evidence, and not the mitigating

evidence, Zoeckler was forced to answer these questions in a

vacuun. Further, these questions were offered “against the

backdrop of the worst possible scenario ...." Pruett v.

Commonwealth, 232 Va. 266, 281, 351 S.E.2d 1, 10 (1986), cert.

denied, 482 U.S. 931 (1987). See also James Briley v. Bair, 750

F.2d 1238, 1247 (4th Cir. 1984), cert. denied, 470 U.S. 1088 (1985)

("(Wje attach little weight to [the juror’s} attitude in an

exaggerated hypothetical situation.").

Beyond this, the remainder of the voir dire amply explored

Zoeckler’s fitness to serve in the penalty phase. At the outset of

his examination, the trial judge explained to him the nature of the

bifurcated proceedings and the sentencing options of death and life

imprisonment. (App. 519-520). Zoeckler twice said that he would

“consider” life imprisonment if given this as a sentencing choice

(App. 520-521). Then, during the prosecutor’s examination Zoeckler

answered affirmatively when asked whether he could consider both

the death penalty and life imprisonment and whether he would not

automatically vote to-impose a death sentence upon a finding of

guilt. (App. 523-524). After defense counsel questioned Zoeckler

concerning his potential "death-proneness" in the penalty phase,

the prosecutor concluded by asking him a series of questions aimed

at determining his ability to weigh both sentencing options. (App.

537-540).

19

iad

Consistent with Morgan v. Illinois, 112 S. Ct. 2222 (199)

the Supreme Court of Virginia correctly upheld the adequacy of this

voir dire. 244 Va. at 400-402, 422 S.E.2d at 389-390. In Morgan

this Court held that the state trial court denied the defendant due

process in a capital murder trial by refusing to ask prospective

jurors whether they would "‘automatically’ vote to impose the deat?

penalty no matter what the facts" were. 112 S. Ct. at 2226. Thi

Court concluded that this question had been necessary in order tc

reasonably determine whether the jurors could fairly carry out

their duty to consider both the aggravating and mitigating evidenc:

in the penalty phase of the trial. Because the voir dire did not

make it clear that the jury was impartial, this Court reversed

Morgan’s conviction. 112 S. Ct. at 2235.

No such doubt exists in the present case. Zoeckler, like the

other veniremen, was specifically questioned at length concernins

his ability to consider both sentencing options if the case reached

the sentencing stage. Particularly considering this Court's

reaffirmation in Morgan that the Constitution "does not dictate

ey

catechism for yoir dire" and that due process requires only those

questions which are not just helpful but necessary to the fairness

of a trial, 112 S. Ct. at 2230, the voir dire in the case at ber

passed constitutional muster. See also Mu’Min v. Virginia, 111

ct. 1899 (1991).

For the foregoing reasons, certiorari should not be granted ir

20

)

this case. Petitioner raises little more than state law arguments;

the scope of any constitutional argument is extremely narrow.

Moreover, petitioner points to no issue the disposition of which

would materially aid other courts. Likewise, Mueller has not

demonstrated that the trial court’s rulings were incorrect. Thus,

he has not shown any substantial federal constitutional question on

any of the issues he advances. Accordingly, respondent prays that

this Court deny the petition for certiorari.

Respectfully submitted,

COMMONWEALTH OF VIRGINIA

eg Ae

Counsel

Robert H. Anderson, III

Assistant Attorney General

Supreme Court Building

101 North Eighth Street

Richmond, Virginia 23219

CERTIFICATE OF SERVICE

I hereby certify that on the 8th day of March, 1993, a copy of

this Brief in Opposition To Petition For a Writ of Certiorari was

mailed to Everett Lee Mueller, No. 190275, Mecklenburg Correctional

Center, P. 0. Box 500, Boydton, Virginia 23917, petitioner pro se.

ee

Robert H. Anderson, III

Assistant Attorney General

21

wee |e

COMMONWEALTH of VIRGINIA

— ae Office of the Attomey General

oats ¢ Richmond 23219

Virgima 2

March 8, 1993

MAR 10 1993

OFFICE OF THE CLERK

: . Suter, Clerk

The Honorable William K. S ' SUPREME COURT, U.S.

Supreme Court of the United States

One First Street, N.E.

Washington, D.C. 20543

Re:

No. 92-7507

Dear Mr. Suter:

i Petition For A

Enclosed please find a Brief In Opposition To .

Writ Of Cortierer’ to be filed on behalf of respondent in the

above-styled matter.

Thank you very much for your assistance in this matter.

Sincerely,

flelad M CMa a

Robert H. Anderson, III

Assistant Attorney General

7:11\360

RECEIVED |":

Supreme Court Buriding

101 North Eighth Street

3219

on?

1