Reply Brief — Elliott v. Virginia

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; DEC 1- 2004

OFFICE OF THE CLERK |

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No. 04-515

Supreme Court of the Anited States

LARRY BILL ELLIOTT,

Petitioner,

Ve

COMMONWEALTH OF VIRGINIA,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Virginia

REPLY TO BRIEF IN OPPOSITION

DANIEL H. BROMBERG

(Counsel of Record)

EDWIN L. FOUNTAIN

CHRISTIAN G. VERGONIS

THOMAS A. BEDNAR

JONES DAY

51 Louisiana Avenue,

N.W.

Washington, D.C. 20001

December 2004 (202) 879-3939

Counsel for Petitioners

Page

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Page

Cases

Chawla v. Burgerbusters, Inc., 499 S.E.2d 829

(Va. 1998) ....c.sscssscsesesssecssecsssecsesenensnsasasensennsensnsores 3

Ford v. Georgia, 498 U.S. 411 (1991 ).-eseceseeeseseneseerenes 2,3

Godfrey v. Georgia, 446 U.S. 420 (1980) ......eeeeeeeeeee passim

King v. Commonwealth, 570 S.E.2d 863

(Va. 2002) .....sescsssseserererecececesesececesssesnsesesesscsnsenenenoes 3

Lowenfield v. Phelps, 484 U.S. 231 (1988) ..........cccecceeees 4,5

Osborne v. Ohio, 495 U.S. 103 (1990) .......ssscscceercesseenenrees 4

Ring v. Arizona, 536 U.S. 584 (2002)........sssseeceeeeeeeeseeeees 6,7

Stringer v. Black, 503 U.S. 222 (1992).......sscccercesresseseees 5,6

Tuilaepa v. California, 512 U.S. 967 (1994) ...ccceeeeceeeeeee 4,5

Walton v. Arizona, 497 U.S. 639 (1990)....-cesersseeeeseeerees >

Statutes and Rules

Va. Code § 8.01-384(A).......:2eeeeeeee jad a calceeannanabeanenanions 3,4

S. Ct. R. 10(D) ..........scecescsccecsscsececsnsscsecsnssncesssnsenccsnasaoeosssess a

A A a

REPLY TO BRIEF IN OPPOSITION

The petition demonstrated that this case merits review

because (i) the decision below violates Godfrev v. Georgia,

446 U.S. 420 (1980), and conflicts with the decisions of

other courts applying Godfrey, Pet. 13-19; (ii) this case

raises an important and recurring question, which will not be

resolved without this Court’s intervention, Pet. 20-22; and

(iii) this Court has jurisdiction over this case, and this case is

in fact a good vehicle for considering the question presented

because, among other things, petitioner would not have been

eligible for the death penalty had narrowing constructions

adopted by other states been applied, Pet. 22-26.

The Commonwealth has no real answer to these points. It

does not contest most of them. The Commonwealth does not

dispute that the decision below conflicts with decisions of

other state courts. Nor does it deny that this case presents an

important and recurring question, which will not be resolved

unless this Court intervenes. The Commonwealth also does

not dispute that this case raises the question presented clearly

or that petitioner would be ineligible for the death penalty

under the narrowing constructions adopted by other states.

Moreover, the Commonwealth’s responses to the

remaining points made in the petition are unpersuasive.

Although it asserts that the procedural default found below

deprives this Court of jurisdiction, Opp. 7-13, the

Commonwealth does not rebut the petition’s showing that

this default was based on a procedural rule that is novel,

serves no legitimate state interest, and therefore is not

adequate to preclude review of a constitutional challenge.

The Commonwealth also claims that its vileness aggravator

does not violate Godfrey, Opp. 13-18, but it fails to

undermine the petition’s showing that the aggravator directly

conflicts with Godfrey and its progeny. Thus, the

Commonwealth has not cast any doubt upon the petition’s

demonstration that this case warrants review.

2

1. The petition demonstrated that the procedural rule

invoked below, which requires all pretrial motions to be

renewed after a mistrial, is not an adequate state ground for

several reasons: petitioner’s challenge to the constitutionality

of the Commonwealth’s vileness aggravator was plainly and

reasonably raised, the requirement that pretrial motions be

renewed after a mistrial is not a “‘firmly established and

regularly followed state practice,” and that requirement does

not serve any legitimate state interest. Pet. 23-26 (quoting

Ford v. Georgia, 498 U.S. 411, 423-24 (1991)). The

Commonwealth does not dispute the first point, and it fails to

undermine the other two.

a. The Commonwealth does not seriously dispute

that the renewal requirement was novel. For example, it

does not dispute that the decision below is the first case in

Virginia to announce this requirement. Pet. 23. Nor does it

dispute that the requirement contradicts the generally

accepted rule that pretrial motions need not be renewed after

4 mistrial. Pet. 24. Finally, the Commonwealth does not

dispute that the cases cited below in support of the renewal

requirement do not apply that requirement. Id.

Instead, the Commonwealth asserts that Elliott understood

the renewal requirement because he renewed his “pretrial

motions asking for allegedly exculpatory evidence regarding

a Commonwealth’s witness.” Opp. 12. That is simply not

true. After the mistrial, petitioner did not renew his pretrial

motion for disclosure of exculpatory evidence; he moved for

disclosure of additional exculpatory evidence. Petitioner

filed an eleven-page pretrial motion seeking disclosure of all

exculpatory information in the Commonwealth’s possession.

JA 5-11. After the mistrial, he filed two much shorter

motions seeking disclosure of documents that were not

revealed until Rebecca Gragg’s testimony in the first trial.

JA 206-07, 212-14. Thus, as the Commonwealth

acknowledged at the time, far from renewing a pretrial

motion, the motions filed after the mistrial sought

3

“supplemental exculpatory evidence.” JA 232 (emphasis

added).

The Commonwealth also suggests that the first trial was

not part of the record on appeal. Opp. 12. In fact, the trial

court included the entire first trial in the record certified to

the Virginia Supreme Court, JA 361-69, and the appendix

submitted below contained hundreds of pages from the first

trial. JA 1-205.

The Commonwealth suggests as well that Virginia Code

§ 8.01-384(A) only removes the requirement of making a

formal exception “once a contemporaneous objection has

been made.” Opp. 12. That is incorrect. As previously

noted, this provision excuses parties from renewing pretrial

motions at trial. Pet. 22 (citing Chawla v. Burgerbusters,

Inc., 499 S.E.2d 829, 832-33 (Va. 1998); King v.

Commonwealth, 570 S.E.2d 863, 866 (Va. 2002)).

Moreover, the Commonwealth does not — and cannot — point

to anything in this provision that renders it inapplicable after

a mistrial. To the contrary, as the petition demonstrated, Pet.

24, Section 8.01-384(A) excuses parties from renewing any

objection “known to the court.” Va Code § 8.01-384(A).

Thus, the Virginia Supreme Court’s requirement that pretrial

motions be renewed after a mistrial was not only novel; it

was also unforeseeable and therefore cannot bar this Court

from reviewing petitioner’s constitutional challenge. See,

e.g., Ford v. Georgia, 498 U.S. 411, 423-24 (1991).

b. The Commonwealth has not identified any

legitimate state interest in requiring renewal of pretrial

motions after a mistrial. It asserts that the Commonwealth

has a legitimate interest in requiring parties to bring their

objections “to the attention of the trial court during the

trial.” Opp. 13. However, as just noted, parties are not

ordinarily required to renew pretrial challenges at trial. See,

e.g., King, 570 S.E.2d at 866; Chawla, 499 S.E.2d at 832-33.

As a consequence, the question here is not whether the

4

Commonwealth has an interest in requiring renewal of

pretrial motions at trial — as shown above, Section 8.01-

384(A) disclaims any such interest — but rather whether it

has an interest in requiring renewal of such motions when

there has been a mistrial. The Commonwealth does not

identify any such interest. For this reason as well, the

renewal requirement is not an adequate ground for

precluding review of petitioner’s constitutional challenge.

See, e.g., Osborne v. Ohio, 495 U.S. 103, 123-25 (1990).

2. Although the Commonwealth does not dispute that the

instruction given the jury on the vileness aggravator was

essentially identical to the jury instruction given in the

Godfrey case, it nonetheless argues that Godfrey is

distinguishable and that the vileness aggravator employed in

this case was constitutional. Opp. 13-18. Because it is

undisputed that the decision below conflicts with decisions

of other state supreme courts, and that conflict is by itself

sufficient grounds for granting certiorari, see S. Ct. R. 10(b),

it is mot necessary at this stage to address the

Commonwealth’s merits arguments. In any event, those

arguments are meritless.

a. The Commonwealth asserts that Godfrey is

inapplicable here because the vileness aggravator is

“constitutional surplus” under Virginia’s capital sentencing

scheme. Opp. 14. According to the Commonwealth, under

this Court’s decision in Lowenfield v. Phelps, 484 U.S. 231

(1988), Virginia’s definition of capital murder performs the

constitutionally required narrowing function. Opp. 14.

Virginia has, however, chosen to use the vileness aggravator

in the eligibility, not the selection, phase of its capital

sentencing procedures, and it must therefore define the

aggravator in a clear and definite manner. As the petition

pointed out, Pet. at 16 n.4, “the Eighth Amendment requires

both that the class of persons eligible for the death penalty be

narrowed and that the jury’s discretion be channeled through

clear and definite standards.” Tuilaepa v. California, 512

5

U.S. 967. 971-73 (1994); see also Walton v. Arizona, 497

U.S. 639, 665 n.* (1990) (Scalia, J., concurring in part and

concurring in the judgment) (“no matter how narrowly the

crime is defined,” this Court’s decisions “requir[e]

aggravating factors to be specified whenever the sentencer is

given discretion” to determine eligibility for the death

penalty).

Nor do the decisions cited by the Commonwealth suggest

otherwise. Lowenfield did not consider a vagueness

challenge; the question before the Court in that case was

whether an individual may be sentenced based on an

aggravating circumstance that duplicates an element of the

underlying crime. See 484 U.S. at 241-46. Moreover, far

from supporting the Commonwealth’s reliance on

Lowenfield, the Court’s decision in Stringer v. Black, 503

U.S. 222 (1992), observed that “Lowenfield did not involve a

claim that a statutory aggravator was ambiguous, and its

relevance to Godfrey . . . is slight at best.” 503 U.S. at 236.

b. The Commonwealth argues that Godfrey is

essentially limited to its facts. As the Commonwealth would

have it, Godfrey held the vileness aggravator applied in that

case unconstitutional because the sentence there was based

“on nothing more than a finding that the offense was

‘outrageously or wantonly vile, horrible, and inhuman.’”

Opp. 16-17 (quoting Godfrey, 446 U.S. at 428 (plurality

op.)). That is wrong. Godfrey did not rest upon infirmities

in the jury verdict; to the contrary, in finding that Georgia’s

vileness aggravator was unconstitutionally vague as applied,

Godfrey held that the Georgia Supreme Court had failed to

apply a constitutional construction of the depravity prong of

the aggravator. See 446 U.S. at 429-33 (plurality op.); see

also id. at 434 (Marshall, J., concurring in the judgment)

(joining the Court’s conclusion that “no. . . narrowing

construction was read to the jury or applied by the Georgia

Supreme Court on appeal”). Accordingly, numerous

subsequent decisions, both from this Court and from other

6

states with vileness aggravators, have recognized that

Godfrey announced a principle extending far beyond its

particular facts. Pet. 14-15; see also Stringer, 503 U.S. at

228-29 (recognizing that “it would be a mistake to conclude

that the vagueness ruling of Godfrey was limited to the

precise language before us in that case”).

The Commonwealth asserts as well that petitioner’s

conduct “clearly involved” depravity of mind and that “the

case for aggravated battery was beyond dispute.” Opp. 15-

16. The petition, however, showed that the evidence

presented below would not have been sufficient to make

petitioner eligible for the death penalty under narrowing

constructions applied by other states with vileness

aggravators. Pet. 26 (noting that there was no evidence that

petitioner acted for the sheer pleasure of killing as required

by New Jersey’s depravity prong); id. (noting no evidence of

intent to inflict unnecessary pain and suffering as required by

South Dakota’s aggravated battery prong); id. (noting no

evidence of a battery separate and distinct from the conduct

causing death as _ required by Georgia). The

Commonwealth’s brief does not dispute this showing.

The Commonwealth also asserts the “jury’s finding that

his capital murder of Dana Thrall also constituted torture” is

unchallenged. Opp. Br. 13 n.2. In fact, the Commonwealth

did not even ask the jury to find torture, App. 62a-67a, and

the jury entered a general verdict that does not indicate any

such finding. App. 45a. Furthermore, as previously pointed

out, because the jury entered a general verdict, petitioner’s

sentence is tainted if any one of the prongs of the vileness

aggravator is unconstitutionally vague. Pet. 15-16.

Finally, the Commonwealth asserts that the Virginia

Supreme Court has “narrowly defined” the vileness

aggravator. Opp. 16. This assertion is meritless. In the first

place, the Virginia Supreme Court’s construction was not

provided to the jury and is therefore irrelevant. See Ring v.

7

Arizona, 536 U.S. 584 (2002). Furthermore, as the petition

showed, Virginia’s construction of its vileness aggravator is

far broader and vaguer than the constructions adopted by

other states with similar aggravators. Pet. 19; see also Pet.

16 (noting that the aggravated battery instruction below

made that term “even more ambiguous and confusing’”’). In

fact, as amici point out, the Virginia Supreme Court has

given such an elastic meaning to the aggravated battery and

depravity prongs of the Commonwealth’s _ vileness

aggravator that these prongs “act effectively as catch-alls,

sweeping within their potential scope almost any fact

scenario.” Brief of Amici Nat’! Ass’n of Criminal Defense

Lawyers and Virginia Ass’n of Criminal Defense Lawyers at

7-8. Indeed, the murder in Godfrey could have been found

vile under Virginia’s aggravator for any number of reasons.

See id. at 8-9. Thus, like the Virginia Supreme Court for the

last twenty years, the Commonwealth fails to reconcile its

vileness aggravator with Godfrey.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

DANIEL H. BROMBERG

(Counsel of Record)

EDWIN L. FOUNTAIN

CHRISTIAN G. VERGONIS

THOMAS A. BEDNAR

JONES DAY

51 Louisiana Avenue, N.W.

Washington, D.C. 20001

(202) 879-3939

Counsel for Petitioners

December 2004