# Opposition Brief — Cherrix v. Virginia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0590%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1999 - **Citation:** 528 U.S. 873 ## Text Supreme Court, u, FILED “ 9 110 wi 15199 No. __ OFFICE OF THE clerk Iu the Supreme Court of the Hnited States OCTOBER TERM, 1998 BRIAN LEE CHERRIX, PETITIONER V. COMMONWEALTH OF VIRGINIA ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF VIRGINIA PETITION FOR A WRIT OF CERTIORARI Lots G. WILLIAMS Counsel of Record TIMOTHY K. ARMSTRONG JULIE K. BROF JEANNE-MARIE S. RAYMOND JASON D. SMITH HOwREY & SIMON 1299 Pennsylvania Avenue, N.W. Washington, D.C. 20004 (202) 783-0800 Attorneys for Petitioner Brian Lee Cherrix QUESTIONS PRESENTED (CAPITAL CASE) 1. Whether the Virginia state courts improperly allowed the introduction of a statement as a “confession,” even though the defendant denied having confessed, and the statement had not been adopted by the defendant or otherwise authenticated, where the putative confession was the sole ba- sis for his conviction and sentence of death? 2. Whether the Virginia state courts improperly curtailed a criminal defendant’s constitutional right to rebut future dangerousness and to introduce evidence in mitigation? 3. Whether Virginia’s death penalty statute is unconstitu- tional in that it does not provide adequate guidance for juries to determine whether the death penalty is warranted, thereby risking arbitrary imposition of the most drastic penalty al- lowed by law? 4. Whether the Virginia state courts failed to require the jury unanimously to agree on the elements of vileness, thereby permitting the unconstitutional imposition of a death sentence based on less than a unanimous verdict? PARTIES TO THE PROCEEDING Pursuant to Supreme Court Rule 14.1(b), petitioner states that all parties appear in the caption of the case on the cover page. li TABLE OF CONTENTS QUESTIONS PRESENTED .......c-cescocescosssesecesessesesereseseesevesers i PARTIES TO THE PROCEEDING ............ccccccssssececececececeseee il ST cc | SESS ES | CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ............ccccscssssscseseseseseseseesses 2 SUMMARY OF THE ARGUMENT.....0.......ccccscececececsceceeseeee 2 SSATEMENT OF THE CASE ....cccescscccesecsssevecsssessoseeseseeveeesce 3 REASONS FOR GRANTING THE WRIT ...0.0....eecccececesseeees 8 I. THE VIRGINIA COURTS IMPROPERLY ALLOWED THE INTRODUCTION OF AN UNSIGNED REPUDIATED STATEMENT AS A CONFESSION ALTHOUGH IT WAS NOT ADOPTED BY MR. CHERRIX ............cccccccesosececesesesscess 8 Il. THE VIRGINIA COURTS VIOLATED THE EIGHTH AND FOURTEENTH AMENDMENTS BY IMPROPERLY DENYING MR. CHERRIX THE RIGHT TO REBUT FUTURE DANGEROUSNESS AND INTRODUCE RELEVANT MITIGATION EVIDENCE ...............000-... 11 A. The Virginia Courts Violated Mr. Cherrix’s Fourteenth Amendment Right To Due Process By Preventing Him From Rebutting The Prosecution’s Allegation Of Future EE 1] B. The Virginia Courts Violated Mr. Cherrix’s Eighth Amendment Rights By Preventing Him From introducing Relevant Evidence In EAS EA Ce at fil. VIRGINIA’S DEATH PENALTY SENTENCING STATUTE CONFLICTS WITH SETTLED 111 PRECEDENT AND UNDERMINES CORSE FEE UF IGA. FOB revecccrecessoresescoserecosservsvosees 17 A. Virginia’s Capital Sentencing Provision Is Unconstitutional, A Fatal Defect Not Cured By The State’s Refusal To Give Constitutionally Mandatory Limiting I niecceniestessiinnnsisnintinsincnintininminnininnininnnianse 17 B. The Jury Instructions Also Did Not Require Unanimity On The Basis For The Sentence Of SIRI ssissesishinsiesindimecvsitdsituiiteiepibnikledaiiantnadaiaveasubmdicaldiilestalied 24 ITT venisnicuviteiiitiiletieleeaienabinciasiiainbatandsiatianidatidintibe 27 INDEX TO APPENDICES Cherrix v. Commonwealth of Virginia, 257 Va. 292, FES Be ee CO Oe tntcctitnincatininsiiiiaintanniioiinen la Cherrix v. Commonwealth of Virginia, Nos. 981798 & Re Ce FA Fe cecettenrenintnctsntinenniennincnnencan 27a Res Ss MII. SEE ertasincstsienintaiiitinnintsenipabeenieneiminmeaneiie 28a Rech Gis Il SE artornitinsiniecesisnsnchisiawiencnnnniiinbnneaiionmmmngniainen 28a Wee, Ce RR. & CF seccscceieseccincnincivccnntiveintisiceniiniianinn 29a TABLE OF AUTHORITIES Page(s) CASES Briley v. Bass, 584 F. Supp. 807 (E.D. Va.), aff’d, 742 F.2d 155 (4th Cir), cert. denied, 469 U.S. 893 ETOP OD secicionelssccapsenetittsonmsitinibapanilenienacidaciiaiiaaaimianiaeetaciietiaka ida ial 26 California v. Ramos, 463 U.S. 992 (1983)..........ccccsssseseseeees 13 Cherrix v. Commonwealth, 257 Va. 292, 513 S.E.2d Re Ce siccensstanntiinesiimeneicideiinanieesiaeniace 1,9, 13, 15 Clark v. Commonwealth, 257 S.E.2d 784 (Va. 1979), cert. denied, 444 U.S. 1049 (1980).........000.0000... 20, 23, 26 Eddings v. Oklahoma, 455 U.S. 104 (1982)...........:0000. 15, 16 Escobedo v. Illinois, 378 U.S. 478 (1964).........ccccccccssseceeees 10 Espinosa v. Florida, 505 U.S. 1079 (1992)...........c:ccseeeceeeee 23 Furman v. Georgia, 408 U.S. 238 (1972) .........:ccccsseeees 18, 21 Gardner v. Florida, 430 U.S. 349 (1977)...........cccccceeeee 13, 18 Godfrey v. Georgia, 446 U.S. 420 (1980) ............cccec0ee 17, 18 Gregg v. Georgia, 428 U.S. 153 (1976) ............cscceesseees 18, 19 Ben 06 WR, FHT UB. FO C0 Pa cccsvscescinsctsibnieiintcnnicisinaneat 26 Justus v. Commonwealth, 266 S.E.2d 87 (Va. 1980)............ 20 Lankford v. Idaho, 500 U.S. 110 (1991)... cece eeceeereeeeee 21 Le v. State, 947 P.2d 535 (Okla. Crim. App. 1997), cost..demied, LIS S. Ct, ZEZ9 C1DGS) ncccccoccverocccccecesecssosees 27 Lockett v. Ohio, 438 U.S. 586 (1978)..............000000- 3, 7, 15, 16 Richardson v. United States, — U.S. —, 119 S. Ct. SPT (CUO? iviniisteinienndimeaiaaaniamamenl 3, 24, 26, 27 Shell v. Mississippi, 498 U.S. 1 (1990) ............cccccseesseesseeeees 19 Simmons v. South Carolina, 512 U.S. 154 (1994)....11, 13, 21 Skipper v. South Carolina, 476 U.S. 1 (1986)......3, 13, 15, 16 v Smith v. Commonwealth, 248 S.E.2d 135 (Va. 1978), cert. denied, 441 U.S. 967 (1979)............cccccsssesserees 20, 23 Tuggle v. Commonwealth, 323 S.E.2d 539 (Va. 1984), yaceted, 471 U.S. 1GSS CIGBS) cccceccossocececsoesencevccesveccsseese 20 Tuilaepa v. California, 512 U.S. 967 (1994)........ceeeeeeeees 18 Turner v. Williams, 35 F.3d 872 (4th Cir. 1994), cert. Gemmad, FA GB. FEET Cae icicntintdstmaieains 23 United States v. Hall, 93 F.3d 126 (4th Cir. 1996), cert. denied, $19 U.S. 1151 (1997).....ccccccccssvesccccesveceseees 25 Wade v. State, 368 S.E.2d 482 (Ga. 1988)............::cccceeeeeeees 27 Walton v. Arizona, 497 U.S. 639 (1990)............ccccseeeeeceeeseees 19 Wilson v. Zant, 290 S.E.2d 442 (Ga.), cert. denied, GSD U.S. HGS CH ee wricstsansssunticisesiinieiiatiainaeicanias 27 Wong Sun v. United States, 371 U.S. 471 (1963)......... 2,9, 10 Woodson v. North Carolina, 428 U.S. 280 (1976) .....3, 10, 22 STATUTES BB ULB. © Rabe Peltccsessecttstenssesevsientiandnesaiaaanal l Van. Copii Amin: BDI cetsuscssersenevsinnnieietecmaennamineaiin 3 OTHER AUTHORITIES Virginia Model Jury Instruction No. 34.122 (1993 SSDERDORREEE OG.) onresissnsrerssesecinnnsiniibuiaimmnninammiciida 23 vi In the Supreme Court of the United States OCTOBER TERM, 1998 No. BRIAN LEE CHERRIX, PETITIONER, V. COMMONWEALTH OF VIRGINIA ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF VIRGINIA PETITION FOR A WRIT OF CERTIORARI Petitioner Brian Lee Cherrix respectfully petitions for a writ of certiorari to review the judgment of the Supreme Court of Virginia in this case. OPINIONS BELOW The opinion of the Supreme Court of Virginia is officially reported at 257 Va. 292, 513 S.E.2d 642 (1999), and appears in the Appendix to this petition. (Pet. App. 1a). JURISDICTION This petition seeks review of the final judgment of the Supreme Court of Virginia in this matter, entered February 26, 1999, as to which a motion for rehearing was denied on April 16, 1999. The order on rehearing appears in the Appen- dix to this petition. (Pet. App. 27a). This Court has jurisdic- tion under 28 U.S.C. § 1257(a). ats CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The texts of the Eighth and Fourteenth Amendments to the United States Constitution are reprinted in full in the Ap- pendix pursuant to Supreme Court Rule 14.1(f). (Pet. App. 28a). The text of the Virginia Code Section 19.2-264.4 is re- printed in full in the Appendix pursuant to Supreme Court Rule 14.1(f). (Pet. App. 29a). SUMMARY OF THE ARGUMENT Petitioner Brian Lee Cherrix was convicted of capital murder and sentenced to die based solely on an unsigned re- pudiated “confession” allegedly elicited and transcribed by a local police officer, who was under intense pressure to break the case, when no one else was present, and minutes after Mr. Cherrix himself hand-wrote a statement that he was innocent. Absolutely no physical evidence connected Mr. Cherrix to the crime: no DNA, no fingerprints, no footprints, no incrimi- nating blood stains—none of the usual items that crimes of this sort normally leave behind. In fact, the only physical evi- dence—two strands of long, blonde hair not belonging to the victim—pointed to someone other than Mr. Cherrix, who has short brown hair. Mr. Cherrix steadfastly denied that he committed the crime. 1. An unsigned confession that was never adopted by the defendant cannot be admitted against him. Although a con- fession need not be signed, this Court has held that the sub- stance of a confession must be adopted by the defendant in order for it to be admissible against the defendant. Wong Sun v. United States, 371 U.S. 471, 491 (1963). Because the con- viction in this case rests solely on an unsigned statement never adopted by the defendant (and indeed, disputed by iin him), and because this Court has recognized the need for heightened reliability in capital cases, Woodson v. North Carolina, 428 U.S. 280, 305 (1976), this Court should grant certiorari to reverse an inherently unreliable conviction and clarify the quantum of certainty required before the law may Carry out its most severe and irrevocable penalty. 2. Acapital defendant has a constitutional right to pres- ent evidence in mitigation, Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion), or to rebut a prosecutorial ar- gument that the defendant poses a future risk to society. Skip- per v. South Carolina, 476 U.S. 1, 5 n.1 (1986). In this case, however, the state courts severely curtailed a capital defen- dant’s rights to present such evidence. The courts below en- tirely prevented Petitioner from rebutting the prosecution’s future dangerousness argument, and prevented him from in- troducing relevant mitigating evidence. 3. The statutory provision under which Petitioner was sentenced to death, Va. Code Ann. § 19.2-264.4, is unconsti- tutiona!!y vague in that it fails to guide adequately the discre- tion of the sentencing jury. Furthermore, the instructions given to explain this statute were themselves vague and in- consistent, and only served to obfuscate, rather than clarify, the critical issues presented to the jury for resolution. 4. This Court’s recent decision in Richardson v. United States, — U.S. —, 119 S. Ct. 1707 (1999), makes clear that the courts below also erred in not requiring the jury unani- mously to agree which of the statutory elements enumerated in section 19.2-264.4 underlay their finding of “vileness” and formed the basis for their sentence of death. STATEMENT OF THE CASE On the evening of January 27, 1994, Famous Pizza on Chincoteague Island received an order for a pizza delivery to a an address in the Small Piney Island area. (JA 1088).' Tessa Van Hart left Famous pizza around 7:45 p.m. to deliver the pizza (JA 1089), but she never returned. (JA 1083). Shortly after midnight, the police found Mrs. Van Hart’s body in the back seat of her car, which was parked behind a vacant home approximately a mile away from the Small Piney Island area. (JA 1094-1095, 1564). Mrs. Van Hart had died from two gunshot wounds to the head, and there was some evidence that she had been sodomized around the time of her death. (JA 1156). The police found virtually no physical evidence, and such evidence as was discovered did not implicate Mr. Cherrix. There were long, blonde hairs found on the car that did not belong to Mrs. Van Hart or to Mr. Cherrix. (JA 34-35, 1560- 1561). Seminal fluid retrieved from the victim’s body con- tained no sperm, and therefore the Commonwealth’s experts testified that they could not obtain DNA test results. (JA 32- 33, 42, 1134, 1156). The only blood found was consistent with that of the victim. (JA 1159-1160, 1164—1165). The police had no leads, and the crime remained unsolved for two years. Mr. Cherrix’s connection with this investigation seems to have begun when he was spending time in the Accomack County Jail on unrelated charges. (JA 1268). Mr. Cherrix contacted the sheriff and gave the first of several statements all linking his deceased cousin, Robert Birch, III, to the mur- der of Tessa Van Hart. As recounted in the decision of the Supreme Court of Virginia, law enforcement authorities questioned Mr. Cherrix on a number of occasions regarding his knowledge of the crime. The lower court’s opinion gave great emphasis to the minor respects in which Mr. Cherrix’s ' Citations herein are to the Joint Appendix the parties compiled before the Virginia Supreme Court, and will be rendered as “JA 7 a 2 rendition of the events altered over time with the accretion of additional explanatory details. That court’s assessment, how- ever, fails to recognize that Mr. Cherrix’s statements never wavered on the most critical elements: Mr. Cherrix consis- tently maintained that Birch had killed Van Hart and had sex with the body; that Birch had thereafter disposed of his weapon by throwing it in the creek; and that Birch had con- fessed these events to Mr. Uherrix. Mr. Cherrix’s statements to the authorities uniformly identified Birch as Van Hart’s admitted killer. After questioning Mr. Cherrix repeatedly, and based on what Mr. Cherrix told them about Birch’s statements to him, the police began an underwater search of the creek for the gun. The search was unsuccessful. The police took Mr. Cher- rix to the dive site and asked him to show where Birch had discarded the gun. Mr. Cherrix explained that the location Birch had described was not the location they were searching. Trooper Mark Fowler then drove Mr. Cherrix to another lo- cation that Mr. Cherrix contended Birch had shown him. The dive team relocated to this new site, and eventually recovered a .22-caliber Marlin rifle. (JA 634-636, 1288-1289). The gun’s condition had severely deteriorated after being so long submerged. (JA 1339). Ballistics tests could not determine whether the gun the police found was, in fact, the gun that killed Mrs. Van Hart. (JA 1344). On April 25, 1997, Mr. Cherrix submitted a written re- quest to speak with Assistant Police Chief Edward Lewis, a relative of Mr. Cherrix who had previously interviewed him regarding the investigation. (JA 1445). Lewis spoke with Mr. Cherrix for a few minutes and then left the room, instructing Mr. Cherrix to write down where he was on the night Van Hart was killed. (JA 1474). When Lewis returned, Mr. Cher- rix had written that on that night, he was home on the phone wie with his wife who was in the hospital. (JA 1475). Apparently Lewis found this statement unsatisfactory because Lewis then began a “question and answer” session: Lewis wrote down a question and then wrote down an answer. These questions and answers indicated that Mr. Cherrix had killed and sodomized Ms. Van Hart. (JA 10-14, 1493-1500, 1505- 1507). When he finished, Lewis showed Mr. Cherrix the “statement” and asked him to sign it. Mr. Cherrix refused. (JA 1523-1524). Of all the times Mr. Cherrix recounted the events of Janu- ary 27, 1994, only in Officer Lewis’s uncorroborated state- ment does he allegedly incriminate himself. Furthermore, this version exists only in the form of a “confession” that Officer Lewis wrote without the benefit of a tape recorder (although one was available to Officer Lewis) with neither defense counsel nor any other witness present—a version that the de- fendant refused to sign, repudiated at the time as untrue, and has consistently repudiated since. It bears reemphasizing that Officer Lewis’s written statement was the only evidence identifying Mr. Cherrix as the killer, and forms the sole evi- dentiary basis for his conviction and sentence of death. Mr. Cherrix was indicted for capital murder, forcible sod- omy, using a firearm in the commission of those offenses, and being a felon in possession of a firearm. (JA 46-48). Be- fore trial, Mr. Cherrix filed a motion challenging the consti- tutionality of Virginia’s death penalty statute. Among other things, Mr. Cherrix argued that the “vileness” factor, as writ- ten and as applied, is unconstitutionally vague in that it fails to guide adequately the jury’s discretion in determining whether to impose a sentence of death. (JA 57). That motion was denied. (JA 232). At trial, Mr. Cherrix objected to the “statements” made to Officer Lewis (which had been drafted solely by Officer e Lewis in a script-like question-and-answer fashion) being read to the jury. The trial court overruled the objection, and allowed Lewis to read his notes as if they represented a con- fession by Mr. Cherrix. (JA 1479-1492). At sentencing, Mr. Cherrix sought to rebut the prosecu- tion’s argument that he posed a future danger to society, which formed the basis for the prosecution’s request for a death sentence. Mr. Cherrix sought to present to the jury the testimony of an expert penologist, a sociologist and crimi- nologist, several Virginia correctional officials, and Mr. Melvin Shiflett, an inmate of the Virginia Department of Cor- rections who is currently serving multiple life sentences.” The 2 In his proffer, Mr. Cherrix represented that Mr. Shiflett would testify to | the horrific conditions of life in prison and also the substantial likelihood that Mr. Cherrix would be raped in prison given his unusually small stat- ure and slight build. Concerning the offered testimony of the department of corrections officers, Mr. Cherrix argued that the jury cannot properly assess “future dangerousness” as an aggravating factor unless the jury is also educated as to the conditions that Mr. Cherrix would be subjected if given a sentence of life. In this regard, Mr. Cherrix also sought to present to the jury the testimony of Ronald Angelone, Director of the Virginia Department of Corrections, who would have testified that a principal con- cern would be keeping Mr. Cherrix safe from other inmates, not protect- ing prisoners from any danger that Mr. Cherrix might present. (JA 771, 777). Mr. Cherrix, moreover, requested that an expert penologist, sociolo- gist and criminologist be permitted to offer testimony similar to the prof- fered evidence of Mr. Shiflett and the Virginia corrections officials. The trial court denied Mr. Cherrix’s request to subpoena Mr. Shiflett, characterizing his offered testimony as immaterial and not probative. (JA 298, 769-770). The court also excluded the proffered evidence of the cor- rections officials, reasoning that the expected experiences of Mr. Cherrix, should he be sentenced to life, do not constitute mitigating evidence. Mitigating evidence, however, has been defined broadly, to include “any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opin- ion). The exclusion of these witnesses, accordingly, runs counter to the oe testimony of these witnesses, collectively, would have per- mitted the sentencing body to conclude that, given Mr. Cher- rix’s physical stature and the highly structured prison envi- ronment, Mr. Cherrix would pose no danger to prison society. The trial court, however, denied Mr. Cherrix’s request to pre- sent such evidence. (JA 298, 770-781). On appeal, the Virginia Supreme Court affirmed, reject- ing, inter alia, Mr. Cherrix’s arguments that (1) the putative “confession” was erroneously introduced and inadmissible; (2) Mr. Cherrix was prevented from introducing evidence to rebut the prosecution’s suggestion of future dangerousness and as mitigation; and (3) the governing provisions of the Virginia capital sentencing statute are unconstitutional. Mr. Cherrix respectfully petitions this Court to issue a writ of certiorari to review this decision of the Virginia Supreme Court. REASONS FOR GRANTING THE WRIT I. THE VIRGINIA COURTS IMPROPERLY ALLOWED THE INTRODUCTION OF AN UNSIGNED REPUDIATED STATEMENT AS A CONFESSION ALTHOUGH IT WAS NOT ADOPTED BY MR. CHERRIX ( Brian Cherrix’s conviction rests solely on an unsigned statement, introduced through the testimony of an officer who was under intense pressure to break the case, and who wrote consistent direction of this Court’s Eighth Amendment jurisprudence and mandates reversal and remand for a new sentencing hearing in which all the relevant mitigating evidence is presented to the jury, and Mr. Cherrix is afforded an opportunity to rebut the prosecution’s allegation of future dangerousness. -9- the statement with no witnesses present and no recording de- vices, minutes after Mr. Cherrix had written a statement pro- claiming his innocence. The Supreme Court of Virginia erred in finding that Officer Lewis’s notes constituted an admissi- ble confession by Mr. Cherrix. Mr. Cherrix never adopted the substance of those notes as his own statement; instead, by re- peatedly refusing to sign the statement, and by writing his own contrary statement, he explicitly rejected the substance of Officer Lewis’s notes. Indeed, the only statement adopted by Mr. Cherrix in that interview states that he was at home on the phone with his wife who was in the hospital on the night the murder occurred. If the decision of the Supreme Court of Virginia is allowed to stand, it will permit many persons to be put to death based on the most unreliable evidence, a truth- stretching putative confession crafted by possibly well inten- tioned, but overzealous, law enforcement personnel. In the worst case, the decision below may foster unchecked abuse, leaving an accused with no effective recourse if the state, lacking both evidence or an actual confession by the accused, simply manufactures a confession the defendant never made. Citing Wong Sun v. United States, 371 U.S. 471, 491 (1963), the Supreme Court of Virginia correctly held that a statement does not have to be signed in order to be admitted as a confession. Cherrix, 513 S.E.2d at 650. (Pet. App. 13a). Wong Sun, however, allows admission of an unsigned confes- sion only if the defendant “adopted [the] substance” of the confession. Wong Sun, 371 U.S. at 491. In this case, Mr. Cherrix never adopted the statement or the substance of the statement, and the Supreme Court of Virginia recounted ab- solutely no evidence suggesting that he did. Indeed, far from adopting the statement, Mr. Cherrix’s only handwritten statement denied any involvement in the murder. Because Mr. Cherrix’s own statement denied any involvement and be- - 10- cause he refused to sign the statement written by the officer, Mr. Cherrix never adopted that statement and the statement was not admissible as a confession. This Court has warned that a criminal law enforcement system that relies on confessions is “less reliable and more subject to abuses” than a system that relies on independent investigation. Escobedo v. Illinois, 378 U.S. 478, 489 (1964). This case is the very definition of the feared abuses that result in a denial of due process. Mr. Cherrix’s conviction rests solely on his confession: the Commonwealth introduced ab- solutely no physical evidence or witnesses connecting Mr. Cherrix to the crime. Mr. Cherrix refused to adopt the state- ments written by the officer both by refusing to sign the statement and by writing his own statement proclaiming his innocence. To allow an officer’s written words to be admitted as a confession by the defendant who did not adopt those words or their substance “would be to blast one of the sup- port columns of justice by law.” Wong Sun, 371 U.S. at 480 n.8 (quoting Wrightson v. United States, 222 F.2d 556, 560 (D.C. Cir. 1955)). Allowing the judgment below to stand gives law enforcement officials, convinced in their own sense of right but lacking actual evidence, a consequence-free in- centive to cut corners and devise a “confession” whenever a crime is too difficult to solve, posing intolerable risks to fun- damental fairness and the due process of law. The need to prevent such egregious violations of due pro- cess resulting in an unreliable conviction is especially great here, where the conviction rests squarely on the statement and Mr. Cherrix’s penalty is death. This Court has already ruled that there is a heightened need for reliability when the punishment might include death. Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (because “the penalty of death is qualitatively different from a sentence of imprisonment * * * -iH- there is a corresponding difference in the need for reliability in the determination that death is the appropriate punish- ment”); see also Simmons v. South Carolina, 512 U.S. 154, 172 (1994) (Souter, J., concurring). Here, however, even the normal due process requirements for reliability have been ne- glected, and the Supreme Court of Virginia has declined to remedy this error. Therefore, Mr. Cherrix’s constitutional right to due process was violated. Because Mr. Cherrix’s conviction rests solely on the putative “confession,” the question whether the statement was admissible is squarely presented and dispositive of the case. Accordingly, the case presents an ideal opportunity for the exercise of this Court’s discretionary review on a fundamental and recurring criminal justice problem, and the writ should issue. Il. THE VIRGINIA COURTS VIOLATED THE EIGHTH AND FOURTEENTH AMENDMENTS BY IMPROPERLY DENYING MR. CHERRIX THE RIGHT TO REBUT FUTURE DANGEROUSNESS AND INTRODUCE RELEVANT MITIGATION EVIDENCE A. The Virginia Courts Violated Mr. Cherrix’s Fourteenth Amendment Right To Due Process By Preventing Him From Rebutting The Prosecution’s Allegation Of Future Dangerousness Brian Lee Cherrix’s death sentence was based, in part, on the Commonwealth’s argument, accepted by the sentencing jury, that Mr. Cherrix presented a future danger to society. Seeking to rebut this aggravating factor during the sentencing phase, Mr. Cherrix unsuccessfully sought to present to the jury the testimony of an expert penologist, a sociologist and - #3. criminologist, several Virginia correctional officials, and a current Virginia Department of Corrections inmate. The trial court denied each of these motions. The witnesses Mr. Cherrix sought to introduce would have rebutted the Commonwealth’s suggestion that Mr. Cherrix posed a future danger to society. Mr. Cherrix at- tempted to show that, contrary to the prosecution’s sugges- tion, he would pose no future danger to society if sentenced to life in prison. Mr. Cherrix was able to introduce one aspect of that showing: his appointed mental health expert, Dr. John Bulette, testified that Mr. Cherrix’s psychological propensi- ties permitted him to adapt and conform to a highly struc- tured environment. (See JA 1770). The jury was prevented, however, from hearing the testimony that would have con- nected these psychological propensities to the conclusion that Mr. Cherrix would not pose a future danger. The evidence Mr. Cherrix unsuccessfully sought to introduce for these points included: e Testimony of an expert penologist, soci- ologist, and criminologist, to the effect that the prison environment provided the kind of highly structured environment to which Dr. Bulette had testified Mr. Cherrix was well suited by temperament; and e Testimony of corrections officials, and Mr. Shiflett, to the effect that a person of Mr. Cherrix’s small stature (five feet, five inches) and slight build (150 pounds) (JA 531, 535) would pose no risk to the prison population and, indeed, would need to be shielded from other prisoners. This proffered testimony regarding the highly structured and dangerous conditions of prison life would have provided a » 3. background against which the jury could gauge Mr. Cherrix’s future dangerousness that was far different from the impres- sion the Commonwealth sought to establish. The lower courts, however, denied the jury this necessary contextual in- formation, to Mr. Cherrix’s prejudice, and in violation of his Fourteenth Amendment right to due process. The state courts’ backhanded treatment of Mr. Cherrix’s due process claims exacerbated the prejudice to him and powerfully illustrates the need for the clear statement of the law that only this Court can provide. Notwithstanding his ci- tation to the Fourteenth Amendment and this Court’s due process jurisprudence, the Supreme Court of Virginia entirely ignored Mr. Cherrix’s allegation of a denial of due process, and purported to uphold the trial court’s decision based solely on state law. See Cherrix, 513 S.E.2d at 653 (Pet. App. 18a). An examination of this Court’s relevant precedents, however, confirms that the Virginia courts unconstitutionally restricted a capital defendant’s rights to rebut the prosecution’s allega- tion of future dangerousness. It is, of course, true that a State may rely on a capital de- fendant’s future dangerousness in seeking the ultimate pen- alty of death. See California v. Ramos, 463 U.S. 992, 1002- 1003 (1983). When a State argues to a sentencing jury that future dangerousness is an aggravating sentencing factor, however, “elemental due process” guarantees the capital de- fendant “an opportunity to introduce evidence on this point.” Skipper v. South Carolina, 476 U.S. 1, 5 n.1 (1986) (quoting Gardner v. Florida, 430 U.S. 349, 362 (1977) (plurality opinion)); see Simmons v. South Carolina, 512 U.S. 154, 174 (1994) (plurality opinion) (Ginsburg, J., concurring); see also id. at 176 (O’Connor, J., concurring in the judgment). Indeed, the Due Process Clause guards against the imposition of a death sentence “on the basis of information” that a capital de- me fendant “had no opportunity to deny or explain.” Gardner, 430 U.S. at 362. The state courts did not even attempt to square their re- jection of Mr. Cherrix’s due process claim with these authorities. The resulting decision, however, resulted in an unlawful restriction on a capital defendant’s right to rebut the prosecution’s allegation of future dangerousness. By effec- tively preventing capital defendants from challenging the ba- sis for a sentence of death, the state courts have rendered a judgment wholly at odds with fundamental notions of due process. Because Mr. Cherrix was denied the opportunity to rebut the Commonwealth’s reliance on his purported future dangerousness by presenting relevant evidence in rebuttal, and because the state courts failed even to address the clear constitutional violation presented, the writ should issue. B. The Virginia Courts Violated Mr. Cherrix’s Eighth Amendment Rights By Preventing Him From Introducing Relevant Evidence In Mitigation The decision below, in addition to contravening Peti- tioner’s due process rights, also resulted in the imposition of cruel and unusual punishment in violation of the Eighth Amendment, because the punishment rests on a record de- void of the mitigation evidence Mr. Cherrix consistently strove to introduce. The lower courts’ Eighth Amendment violation constitutes an independent constitutional violation fully warranting this Court’s discretionary review. As noted supra, Mr. Cherrix unsuccessfully sought to present to the sentencing jury the testimony of Mr. Shiflett, several Virginia correctional officials, and other witnesses. This evidence, when taken together with the testimony of the expert penologist, would have permitted the jury to conclude ——————————EE -15- that Mr. Cherrix’s physical and psychological attributes miti- gated the appropriate penalty for the alleged offense and weighed in favor of a sentence of life imprisonment. The ex- clusion of such evidence substantially diminished the reli- ability of the sentencer’s determination to inflict the penalty of death, in contravention of this Court’s Eighth Amendment jurisprudence, as the applicable precedents make clear. Acknowledging that a sentence of death is “qualitatively different” from other forms of State punishment, this Court has held “that the Eighth and Fourteenth Amendments re- quire that the sentencer * * * not be precluded from consid- ering, aS a mitigating factor, any aspect of a defendant’s char- acter or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion); see also Skipper v. South Carolina, 476 U.S. 1, 5 n.1 (1986). This rule, rooted in the principles underlying the Eighth Amendment, “recognizes that ‘justice * * * requires * * * that there be taken into account the circumstances of the offense together with the character and propensities of the of- fender.’” Eddings v. Oklahoma, 455 U.S. 104, 112 (1982) (quoting Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55 (1937)). In this case, the Supreme Court of Virginia incorrectly concluded that the offered testimony was not mitigation evi- dence because it had no “ ‘bearing on the defendant’s charac- ter, prior record, or the circumstances of his offense.’” Cher- rix, 513 S.E.2d at 653 (quoting Lockett, 438 U.S. at 605 n.12) (Pet. App. 20a—21a). On this point, the Virginia high court agreed with the trial court’s conclusion that “none of this evi- dence concerns the history or experience of the defendant.” Ibid. The court distinguished this Court’s decision in Skipper, reasoning that Mr. Cherrix never offered evidence tending to s“. prove his ability to conform to prison life (although that was in fact the import of Dr. Bulette’s testimony). See id. at 653 n.4 (Pet. App. 21a). The state court made no attempt to square its holding with this Court’s express command that a defendant may not be precluded from introducing “any aspect of a defendant’s character or record and any of the circum- stances of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett, 438 U.S. at 604 (em- phasis added). This error violated the Eighth and Fourteenth Amendments by denying the presentation of mitigation evi- dence, thereby compromising the reliability of the jury’s sen- tence of death. In light of the testimony the jury actually heard, appropri- ate mitigation evidence was necessary to prevent the jury from being left with an incomplete appreciation of the facts. Although Dr. Bulette, qualified as an expert in forensic psy- chiatry, testified that Mr. Cherrix’s psychological propensities permitted him to adapt and conform to a highly structured environment, the jury was denied the proffered testimony of the Virginia correctional officials and other witnesses, which would have provided a complete portrait of the prison envi- ronment as one dominated by structure. The proffer of Mr. Shiflett’s testimony elaborated on this theme, and de- scribed how Mr. Cherrix’s physical attributes would prevent him from posing any threat to the other prisoners or officers. Contrary to the Supreme Court of Virginia’s cursory con- clusion, relegated to a footnote, the proffered testimony, con- sistent with Skipper, Eddings, and Lockett, is relevant miti- gating evidence as it relates to aspects of Mr. Cherrix’s psychological and physical character that serve “as a basis for a sentence less than death.” Lockett, 438 U.S. at 604. The ex- clusion of the proffered testimony deprived Mr. Cherrix of his constitutional right to present all relevant mitigation evi- OOOO «17 - dence to the sentencing body. Unless reversed, the decision of the courts below will place in grave jeopardy capital defen- dants’ rights to present a sentencing jury with evidence sup- porting a sentence other than death. Deprived of such infor- mation, juries may readily choose a death sentence even in marginal cases where a fuller presentation would have yielded a different result. The writ should issue to forestall these pernicious consequences of the decision below. Il. VIRGINIA’S DEATH PENALTY SENTENCING STATUTE CONFLICTS WITH SETTLED PRECEDENT AND UNDERMINES CONSTITUTIONAL NORMS Mr. Cherrix was sentenced to death under the provision of Virginia’s capital sentencing statute, Va. Code Ann. § 19.2- 264.4, which authorizes a death sentence if the defendant’s “conduct in committing the offense was outrageously or wantonly vile, horrible, or inhuman, in that it involved tor- ture, depravity of mind or aggravated battery to the victim.” A. Virginia’s Capital Sentencing Provision Is Unconstitutional, A Fatal Defect Not Cured By The State’s Refusal To Give Constitutionally Mandatory Limiting Instructions Virginia’s capital sentencing provision reads precisely the same as the Georgia statute this Court held unconstitutionally vague in Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (plu- rality opinion). In Godfrey, this Court expressly held that, ab- sent adequate clarifying instructions, the critical statutory language common both to Virginia and Georgia’s statutes— “outrageously or wantonly vile, horrible, or inhuman in that it involved torture or depravity of mind, or an aggravated bat- tery to the victim”—was unconstitutionally vague: - 18- There is nothing in these words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence. A person of ordinary sensibil- ity could fairly characterize almost every mur- der as “outrageously wantonly vile, horrible and inhuman.” Godfrey, 446 U.S. at 429. Virginia’s sentencing statute is ex- actly the same as Georgia’s and is unconstitutional on its face for precisely the reasons this Court gave in Godfrey.’ Godfrey reaffirmed that adequate jury instructions may salvage a sentencing statute that would otherwise be uncon- stitutionally vague on its face. Decisions of this Court arising from other States have likewise confirmed that, where ade- quate limiting instructions are given, they may cure any con- Stitutional infirmity in the applicable sentencing provision. > Godfrey rests on the recognition that, to be constitutional, capital sen- tencing provisions must be “carefully drafted” “carefully drafted” to en- sure that “the sentencing authority is given adequate information and guidance.” See Gregg v. Georgia, 428 U.S. 153, 195 (1976). Furman v. Georgia, 408 U.S. 238 (1972), and its progeny make clear that the Con- stitution requires this degree of clarity because vague language impermis- sibly permits imposition of the death sentence in widely disparate circum- stances. Clear boundaries are essential to ensure that “‘any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.’” Godfrey, 446 U.S. at 433 (quoting Gardner v. Florida, 430 U.S. 349, 358 (1977)). Cf. also Tuilaepa v. California, 512 U.S. 967, 971-972 (1994) (valid capital sentencing provision must re- strict death-eligible crimes to those for which capital punishment is ap- propriate by requiring aggravating circumstances applicable only to a “subclass” of otherwise-eligible defendants, must not be unconstitution- ally vague, and must circumscribe imposition of the death penalty via an individualized, ad hoc assessment of the specific crime and related con- siderations); City of Chicago v. Morales, — U.S. —, 119 S. Ct. 1849, 1859 (1999) (criminal statute may be unconstitutionally vague if it “may authorize and even encourage arbitrary and discriminatory enforcement”). -19- For example, this Court’s approval of Georgia’s capital sen- tencing guidelines depended critically on the presence of adequate jury instructions. See Gregg v. Georgia, 428 U.S. 153, 201 (1976). See also, e.g., Shell v. Mississippi, 498 U.S. 1, 3 (1990) (“a limiting instruction can be used to give con- tent to a statutory factor that ‘is itself too vague to provide any guidance to the sentencer,’ only if the limiting instruc- tion’s own ‘definitions are constitutionally sufficient,’ that is, only if the limiting instruction itself ‘provide[s] some guid- ance to the sentencer.’”) (Marshall, J., concurring) (quoting Walton v. Arizona, 497 U.S. 639 (1990)). In Walton, this Court approved Arizona’s common-sense instruction ex- plaining that the term “depraved” in the state’s capital sen- tencing statute meant that the defendant “ ‘relishes the mur- der, evidencing debasement or perversion,’ or ‘shows an indifference to the killing of the victim and evidences a sense of pleasure’ in the killing.” Walton, 497 U.S. at 655. Virginia, however, refuses to guarantee that jurors receive any meaningful guidance beyond the mere words of the stat- ute, which were held unconstitutionally vague in Godfrey. In other words, Virginia’s jury instructions fail to cure the ambi- guity this Court identified in the identically worded Georgia _ statute. Without such saving instructions, the jury is pre- sented with an essentially unguided choice when determining whether to impose the law’s most drastic and irreversible punishment.* Because Virginia’s capital sentencing instruc- tions fail to channel the jury’s deliberations, they fail to cure the constitutional infirmity evident on the face of the Virginia statute. | * This concern is particularly pronounced in jury proceedings, where “it is essential that the jurors be properly instructed regarding all facts of the sentencing process.” Walton v. Arizona, 497 U.S. 639, 653 (1990) (distin- guishing between sentencing by a jury and by a trial judge). - 2) - The Supreme Court of Virginia has made inconsistent statements regarding whether it is necessary at all to instruct the jury on the meaning of the vague terms in the capital sentencing statute. The Virginia courts continue to rely on state court decisions rendered before Godfrey—in other words, before this Court made it pellucidly clear that the vagueness infecting the Virginia statute is unconstitutional unless cured by adequate instructions. Compare Smith v. Commonwealth, 248 S.E.2d 135, 149 (Va. 1978) (attempting to articulate definitions, albeit convoluted ones, of “depravity of mind” and “aggravated battery”), cert. denied, 441 U.S. 967 (1979), with Clark v. Commonwealth, 257 S.E.2d 784, 790-791 (Va. 1979) (“the terms used in the statute are com- monly used and each has an accepted meaning”; not reversi- ble error to refuse to give instructions because jury needed no instructions “to determine whether the conduct of Clark was outrageously or wantonly vile, horrible, or inhuman in that it involved depravity of mind or aggravated battery to the vic- tim”), cert. denied, 444 U.S. 1049 (1980). Virginia has never recognized the impact of Godfrey on its identically worded capital sentencing statute and continues to apply pre-Godfrey precedent to uphold death sentences based on inadequate in- structions, or no instructions at all beyond the unconstitution- ally vague words of the statute itself. See, e.g., Tuggle v. Commonwealth, 323 S.E.2d 539, 552 (Va. 1984), vacated on other grounds, 471 U.S. 1096 (1985) (no instruction beyond words of statute); Justus v. Commonwealth, 266 S.E.2d 87, 92-93 (Va. 1980) (same).° * Virginia juries in capital cases may receive instructions, however insuffi- cient, on at most two out of the three elements—“depravity of mind” or “aggravated battery”—that “define” the vileness factor. No routine jury instruction is given to clarify the meaning of “torture” that warrants the death penalty. 21. Virginia capital defendants thus face great uncertainty, caused by an absence of identifiable and enforceable stan- dards, as to whether, or how, their particular jury may be in- structed on the critical elements underlying a sentence of death. This uncertainty confronting capital defendants in Vir- ginia raises another constitutional concern. The lack of notice as to what, if any, guidance a jury may receive as to whether a defendant’s crime warrants death is inconsistent with the protections of the Fourteenth Amendment. Cf. Simmons v. South Carolina, 512 U.S. 154, 161-162 (1994) (failure to in- form jury that petitioner was ineligible for parole violated right to due process); Lankford v. Idaho, 500 U.S. 110, 127 (1991) (defendant did not receive due process where he had no notice that judge might impose a death sentence). In Lankford, this Court found that the adversarial process, which a sentencing proceeding embodies, cannot function properly without adequate notice. In the absence of such notice, “there is an increased chance of error * * * and with that, the possi- bility of an incorrect result.” Jbid. These concerns apply equally to the Virginia courts’ re- fusal to give a capital defendant notice as to the interpretation of “vileness” against which he will have to mount a defense. Virginia trial courts remain free on a case-by-case basis to de- fine the statutory terms in novel and inconsistent ways. The present situation is flatly incompatible with this Court’s di- rective in Simmons that “[t]he Due Process Clause does not allow the execution of a person ‘on the basis of information which he had no opportunity to deny or explain.’ Simmons, ° This disparity also presents equal protection concerns. As this Court noted in Furman, “[a)ny law which is nondiscriminatory on its face may be applied in such a way as to violate the Equal Protection Clause of the Fourteenth Amendment.” 408 U.S. at 257 (Douglas, J., concurring) (in- ternal citations omitted). -%. 512 U.S. at 161 (quoting Gardner v. Florida, 430 U.S. 349, 362 (1977)). Indeed, such due process considerations are of heightened importance in capital cases such as this one, as this Court has recognized: The penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Be- cause of that qualitative difference, there is a corresponding difference in the need for reli- ability in the determination that death is the appropriate punishment in a specific case. Woodson v. North Carolina, 428 U.S. 280, 305 (1976). This case fully illustrates the uncertain regime with which capital defendants must contend in Virginia given the failure of the Commonwealth’s courts to adhere to this Court’s deci- sion in Godfrey. In this case, the jury instructions merely par- roted the terms of the statute—in other words, simply re- peated the same _ statutory terms this Court held unconstitutionally vague in Godfrey. The instructions stated: Before the penalty can be fixed at death, the Commonwealth must prove beyond a reason- able doubt at least one of the following aggra- vating circumstances * * * [future dangerous- ness] or, two, that his conduct in committing the offense was outrageously or wantonly vile, horrible, or inhuman in that it involved tor- ture, depravity of mind, or aggravated battery to the victim beyond the minimum necessary to accomplish the act of murder. * * * De- pravity of mind is defined as a degree of moral -%3.- turpitude and physical debasement™! surpass- ing that inherent in the definition of ordinary legal malice and premeditation. (JA 1779-1780, 1782). These instructions merely repeated the terms of Virginia’s capital sentencing statute and the pro- foundly unintelligible “depravity of mind” instruction the Supreme Court of Virginia suggested in Smith (but held un- necessary in Clark). The jury’s decision to sentence Mr. Cherrix to death is thus constitutionally invalid, because it relied on a “description so vague as to leave the sentencer without sufficient guidance for determining the presence or absence of [the aggravating circumstance].” Espinosa v. Florida, 505 U.S. 1079, 1081 (1992). The trial court’s in- structions were neither tailored to the case nor consistent with constitutional dictates. Merely providing the jury the Smith depravity of mind instruction not only failed to channel their discretion, it exacerbated their confusion. As many courts have recognized, “[vJague terms do not suddenly become clear when they are defined by reference to other vague terms.” Turner v. Williams, 35 F.3d 872, 881 (4th Cir. 1994) (citing Cartwright v. Maynard, 822 F.2d 1477, 1489 (10th Cir. 1987) (en banc), aff’d, 486 U.S. 356 (1988)), cert. de- nied, 514 U.S. 1017 (1995). “Legal malice” is a term of art ’ These instructions derive from Smith, which refers to “psychical” de- basement. The annotations to Virginia’s Model Jury Instructions, how- ever, refer to “physical” debasement. Instruction No. 34.122, at I-586 (1993 replacement ed.). The written jury instructions in this case referred to “psychical” debasement. (JA 338). The trial transcript states “physical” debasement, and it is unclear whether this is merely a typographic error, a misreading of Smith or the written instruction, or a misguided reliance upon the model instructions. Whatever the rationale for these discrepan- cies, they plainly demonstrate the incoherence of this charge and highlight the absurdity of pretending that these words actually have some discerni- ble content and make sense to lay jurors. -%- that suggests a meaning distinct from any “common-sense” interpretation. The terms “turpitude” and “physical [or psy- chical] debasement,” similarly, cannot be presumed to have any commonly understood content, and the court’s use of these terms could hardly have ameliorated the harm to Mr. Cherrix resulting from the fatal ambiguity in the statutory text. One of the core purposes of judicial review is to eliminate confusion and uncertainty that produce inconsistent out- comes. Only this Court can resolve disparities in Virginia and other states in the application of the death penalty, resulting both from the unconstitutionally vague terms of Virginia’s capital sentencing statute and from Virginia’s refusal to pro- vide consistent and constitutionally sufficient limiting in- structions. Fidelity to the Eighth Amendment’s prohibition on cruel and unusual punishment and notions of due process re- quires no less. This Court’s review is manifestly warranted to supply the clarity the Virginia courts have neglected to estab- lish in this critical area of nationwide concern. B. The Jury Instructions Also Did Not Require Unanimity On The Basis For The Sentence Of Death This Court’s recent decision in Richardson v. United States, — U.S. —, 119 S. Ct. 1707 (1999), highlights an ad- ditional flaw in the proceedings below. Due to the recent vintage of the Richardson decision, which repudiated a line of authorities that previously had governed in the geographi- cal region that included Virginia,’ the Virginia courts have * Richardson resolved a conflict among the Circuits concerning the need for a unanimous jury verdict as to the particular conduct that satisfied the statutory term, “series of violations.” Among the decisions this Court re- jected was one rendered by the Circuit that includes the State of Virginia (and which itself arose from the Eastern District of Virginia), United ss not yet passed on this issue, and Petitioner respectfully sug- gests that the issue may be appropriate for this Court’s GVR procedure. To secure a death sentence in Virginia, the Common- wealth must prove that (1) the defendant’s acts constituted a continuing serious threat to society, or (2) the defendant’s conduct was outrageously or wantonly vile, horrible, or in- human in that it involved (a) torture, (b) depravity of mind, or (c) aggravated battery to the victim. Va. Code Ann. § 19.2- 264.2. The instructions in this case merely parroted these statutory alternatives: [T]here is a probability that [the defendant} would commit criminal acts of violence that would constitute a continuing threat to soci- ety; or * * * that his conduct in committing the offense was outrageously or wantonly vile, horrible and inhuman in that it involved tor- ture, depravity of mind or aggravated battery to the victim beyond the minimum necessary to accomplish the act of murder. (JA 1779-1780). The constitutional difficulty with the Virginia courts’ de- cision, however, is that the courts gave the jury three alterna- tive routes—“torture,” “depravity of mind,” or “aggravated battery”—to reach the conclusion of “vileness” necessary to justify a penalty of death. Putting aside for the moment the inadequate instructions the court gave to explain these statu- tory terms (as described supra), the decision is further flawed because the jury was not required unanimously to agree which route they took to their conclusion. States v. Hall, 93 F.3d 126 (4th Cir. 1996), cert. denied, 519 U.S. 1151 (1997). - 2% - It is, of course, hornbook law that the “prosecution must convince the trier of all the essential elements of guilt” and that “[n]o man should be deprived of his life under the forms of law unless the jurors who try him * * * say that the evi- dence before them is sufficient to show beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged.” Jn re Winship, 397 U.S. 358, 362-363 (1970). Richardson gave content to this requirement in the context of a statute that, like the Virginia capital sentencing provision, allowed the jury to choose from several alterna- tives when defining the criminal conduct at issue. In Richardson, the relevant statute, 18 U.S.C. § 848, criminal- ized the operation of a continuing criminal enterprise, and re- quired proof that the defendant engaged, inter alia, in “a con- tinuing series of violations” of the federal drug laws. The prosecution submitted evidence of a number of possible nar- cotics violations by the defendant that could constitute the requisite “series of violations,” but the lower courts ruled that the jury did not have to agree unanimously which of these underlay their conclusion that the defendant had engaged in a “series of violations.” This Court reversed, holding that the “tradition of requiring juror unanimity” strongly supported a rule requiring the jury to agree, not only that the defendant had engaged in a “series of violations,” but also to agree which of the several alternatives presented to them collec- tively formed the “series.” See Richardson, 119 S. Ct. at 1710-1713. The courts of Virginia and other states previously have held that the jury need not unanimously agree on which ele- ment of “vileness” underlay a sentence of death. See, e.g., Clark v. Commonwealth, 257 S.E.2d 784, 791 (Va. 1979) (citing authorities principally from Georgia); Briley v. Bass, 584 F. Supp. 807, 838 (E.D. Va.) (this Court “has not held ee 27 « jury unanimity on the sub-determination of aggravation is a consutuuional requirement”), aff’d, 742 F.2d 155 (4th Cir.), sert. denied, 469 U.S. 893 (1984). Other states, although not Virginia, have developed a body of jurisprudence concerning the need for unanimity when a capital sentencing jury is al- lowed to choose from multiple alternatives in finding an ag- gravating circumstance sufficient to support the penalty of death. Cf., e.g., Le v. State, 947 P.2d 535, 552-553 (Okla. Crim. App. 1997), cert. denied, 118 S. Ct. 2329 (1998); Wade v. State, 368 S.E.2d 482, 488 (Ga. 1988); Wilson v. Zant, 290 S.E.2d 442, 453 (Ga.), cert. denied, 459 U.S. 1092 (1982). Richardson calls into doubt the implicit position of the Virginia state courts that a capital sentencing jury need not unanimously agree which of the alternative statutory aggra- vating circumstances underlies their decision to impose a penalty of death. At a minimum, the writ should issue to permit the state courts to clarify whether Virginia practice comports with the constitutional standards this Court recently enunciated in Richardson. CONCLUSION Mr. Cherrix has been convicted of a capital offense on the basis of insufficient and inadmissible evidence, in the context of a statute that is unconstitutionally vague, and has been sentenced to death without the benefit of testimony relevant to mitigation and rebutting future dangerousness, on instruc- tions that did not guarantee a unanimous jury verdict. The decision below effectively uprooted long-settled doctrines and reached an insupportable result. Grave consequences to the administration of justice, not only in the State of Virginia but in the other States whose precedents have mutually sup- ported, and been supported by, the decisions of Virginia courts, will result if the decision below is permitted to stand. - 28 - For these reasons, the petition for a writ of certiorari should be granted. Respectfully submitted. Lois G. Williams Counsel of Record Timothy K. Armstrong Julie K. Brof Jeanne-Marie S. Raymond Jason D. Smith HOWREY & SIMON 1299 Pennsylvania Avenue, N.W. Washington, D.C. 20004 (202) 783-0800 Counsel for Petitioner Brian Lee Cherrix JULY 1999 la BRIAN LEE CHERRIX COMMONWEALTH OF VIRGINIA Record Nos. 981798, 982063 SUPREME COURT OF VIRGINIA 257 Va. 292; 1999 Va. LEXIS 45; 513 S.E.2d 642 February 26, 1999, Decided Charles R. Burke (A. Theresa Bliss, on brief), for appellant. Donald R. Curry, Senior Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee. Present: All the Justices OPINION BY JUSTICE ELIZABETH B. LACY In this appeal, we review the capital murder conviction and death penalty imposed upon Brian Lee Cherrix, along with his convictions for forcible sodomy, two counts of using a firearm in the commission of a felony, and possessing a firearm after being convicted of a felony. 2a I. Facts On the night of January 27, 1994, 23 year-old Tessa Van Hart was working as a pizza delivery person at a pizza deliv- ery restaurant on Chincoteague Island. A man telephoned the restaurant and ordered a pizza to be delivered to an address in the “Small Piney Island” area of Chincoteague. Around 7:45 p.m., Van Hart left the restaurant to deliver the pizza. When Van Hart failed to return from the delivery, the Chincoteague police were notified, and they began a search for Van Hart. Shortly after midnight on January 28, the police found Van Hart’s vehicle behind a vacant home approxi- mately one mile from the Small Piney Island area. Van Hart’s body was found in the back seat. An autopsy revealed that Van Hart died from two gunshot wounds to the head. The autopsy also showed that she had been sodomized and had suffered bruises and abrasions on her forehead, cheek, nose, and mouth sometime around the time of death. In the yard of the house to which Van Hart was to have delivered the pizza on January 27, the police found two bloodstains which DNA typing showed to be consistent with Van Hart’s blood. The murder of Tessa Van Hart remained unsolved for over two years. On June 3, 1996, however, Brian Lee Cher- rix, who was in the Accomack County Jail pending sentenc- ing on unrelated charges, contacted the Accomack County Sheriff, Robert Crockett. Cherrix said that he had information concerning the Van Hart murder that he would share with po- lice in return for leniency on his pending sentencing. Cherrix told Crockett that his cousin, Robert Birch, III, had killed Van Hart. Cherrix claimed that Birch had told him in February 1994 that he, Birch, had lured Van Hart to an unoccupied residence by ordering a pizza, raped and shot her, and then 3a discarded the rifle used in the crime in a nearby creek. Birch died in 1995. The state police began an underwater search of the creek for the murder weapon. When Cherrix was informed that the dive team had not recovered the rifle, he agreed to go to Chincoteague to show the officers the location of the rifle ac- cording to what Birch supposedly had told him. At the search site, Cherrix directed Trooper Mark Fowler to the place he claimed that Birch had told him he had thrown the rifle. Fowler testified at trial that, while Cherrix maintained that he was only relating facts imparted to him by Birch, Cherrix would occasionally lapse into the use of the first person in describing how and where the rifle came to be located in the creek. The divers recovered a .22 caliber Marlin rifle at the location indicated by Cherrix. Later that same day, Cherrix was taken to the City of Chesapeake, where he was interviewed by state police inves- tigator Lloyd Dobbs. After being advised of his Miranda rights and signing a written waiver of those rights, Cherrix gave several differing versions of the story Birch supposedly had told him, all the while using hand and arm gestures to demonstrate how Birch supposedly had disposed of the rifle. Sheriff Crockett then took Cherrix back to Accomack County Jail. Although Birch had died in 1995, the police conducted an investigation of his whereabouts on the night of the murder, and they concluded that he was not a suspect in the Van Hart murder. In August 1996, after having been sentenced on un- related charges to 20 years imprisonment with all but nine years suspended, Cherrix was transferred to the custody of the Virginia Department of Corrections to serve his sentence. 4a On April 16, 1997, Cherrix was returned to Accomack County Jail on charges of uttering and grand larceny. During the drive from Brunswick Correctional Center to the Acco- mack County Jail, Chincoteague Assistant Police Chief Ed- ward Lewis interviewed Cherrix regarding the Van Hart mur- der. After Lewis advised Cherrix of his Miranda rights and Cherrix agreed to discuss the matter, Cherrix told Lewis yet a different version of what he claimed had happened on the night of the murder, still maintaining that Birch had commit- ted the murder. On April 17, 1997, counsel was appointed for Cherrix’s uttering and grand larceny charges. On April 25, 1997, Cher- rix submitted a written request to the Accomack County Jail authorities asking to see Lewis. Lewis went to the jail to see Cherrix. After Lewis advised Cherrix of his Miranda rights and Cherrix reaffirmed that he wanted to speak with Lewis, Cherrix confessed to the murder and sodomy of Van Hart. Cherrix then accompanied Lewis and an Accomack County sheriff’s deputy to Chincoteague, where he directed the offi- cers on a tour of various locations that he had described in his confession. II. Proceedings Cherrix was indicted for capital murder, forcible sodomy, two counts of using a firearm in the commission of those of- fenses, and one count of being a felon in possession of a fire- arm. Code §§ 18.2-31, -67.1, -53.1, and -308.2. At the con- clusion of the guilt stage of a bifurcated jury trial conducted pursuant to Code §§ 19.2-264.3 and -264.4, the jury con- victed Cherrix on all counts. After hearing evidence on the issue of punishment, the jury sentenced Cherrix to death for the capital murder, life imprisonment for the forcible sodomy, a total of eight years Sa for using a firearm in the commission of those offenses, and five years for possessing a firearm after being convicted of a felony. Cherrix’s death sentence was based upon the jury’s finding of both “future dangerousness” and “vileness.” See Code § 19.2-264.4. The trial court reviewed the presentence report and victim impact statements and imposed all of the sentences fixed by the jury. Cherrix appeals his capital murder conviction, Record No. 981798. We have certified Cherrix’s appeal of his non- capital convictions from the Court of Appeals, Record No. 982063, and have consolidated the two appeals. Ill. Issues Previously Decided Cherrix filed a pre-trial motion asking the trial court to declare the Virginia death penalty statutes unconstitutional on a number of grounds. He also filed pre-trial motions asking the trial court to allow the use of a jury questionnaire, to al- low individual sequestered voir dire, and to supplement the trial court’s voir dire with questions submitted by defense counsel in order to ascertain possible juror bias necessary to empanel an impartial jury.' He now appeals the trial court’s denial of those motions, raising issues that we have consid- ered and rejected in previous cases: (1) Virginia’s two statutory aggravating circumstances of “future dangerousness” and “vileness” are not unconstitu- tionally vague. Beck v. Commonwealth, 253 Va. 373, 387, 484 S.E.2d 898, 907, cert. denied, — U.S. —, 118 S. Ct. 608 (1997)(“vileness”); Clagett v. Commonwealth, 252 Va. 79, 86, 472 S.E.2d 263, 267 (1996), cert. denied, 519 U.S. 1122, ' The trial court actually granted Cherrix’s request for individually se- questered voir dire, but limited its inquiry to the issues of “publicity and whether a juror would consider the death penalty.” 6a 136 L. Ed. 2d 856, 117 S. Ct. 972 (1997)(“future dangerousness’”). (2) Virginia’s penalty-stage instructions adequately in- form the jury regarding the concept of “mitigation.” Swann v. Commonwealth, 247 Va. 222, 228, 441 S.E.2d 195, 200, cert. denied, 513 U.S. 889, 130 L. Ed. 2d 158, 115 S. Ct. 234 (1994). (3) The use of unadjudicated conduct to prove “future dangerousness” without proof of such conduct beyond a rea- sonable doubt is not unconstitutional. Goins v. Common- wealth, 251 Va. 442, 453, 470 S.E.2d 114, 122, cert. denied, 519 U.S. 887, 136 L. Ed. 2d 154, 117 S. Ct. 222 (1996). (4) Allowing, but not requiring, a trial judge to reduce a sentence of death to life imprisonment on a showing of “good cause” is not unconstitutional. Breard v. Commonwealth, 248 Va. 68, 76, 445 S.E.2d 670, 675, cert. denied, 513 U.S. 971, 130 L. Ed. 2d 353, 115 S. Ct. 442 (1994). (5) Consideration of hearsay evidence or information in a presentence report during the sentencing phase of a capital murder case is not unconstitutional. Goins, 251 Va. at 453, 470 S.E.2d at 122; O’Dell v. Commonwealth, 234 Va. 672, 701-02, 364 S.E.2d 491, 507-08, cert. denied, 488 U.S. 871 (1988). (6) The review provided by this Court on direct appeal in capital cases is not unconstitutional. Mickens v. Common- wealth, 252 Va. 315, 320, 478 S.E.2d 302, 306 (1996), cert. denied, 520 U.S. 1269, 138 L. Ed. 2d 202, 117 S. Ct. 2442 (1997). (7) Capital murder defendants do not have the constitu- tional right to individual and sequestered voir dire of pro- spective jurors. Stewart v. Commonwealth, 245 Va. 222, 229, 7a 427 S.E.2d 394, 399, cert. denied, 510 U.S. 848, 126 L. Ed. 2d 105, 114 S. Ct. 143 (1993). (8) Capital murder defendants do not have the constitu- tional right to require the trial court to mail a questionnaire to all potential jurors. Strickler v. Commonwealth, 241 Va. 482, 489-90, 404 S.E.2d 227, 232, cert. denied, 502 U.S. 944, 116 L. Ed. 2d 337, 112 S. Ct. 386 (1991). We find nothing in Cherrix’s arguments here that war- rants a change in our previous positions. IV. Pre-Trial Issues A. Failure to Suppress Cherrix's Confession Prior to trial, Cherrix filed a motion asking the trial court to suppress all of his statements to the police “on or after June 7, 1996, in that on each and every occasion the state- ments secured from the defendant, if any, were obtained while the defendant was in custody and denied his right to counsel.” At the suppression hearing, Cherrix testified that he re- quested counsel in the presence of Sheriff Crockett on the return trip from Chesapeake to Accomack on June 7, 1996, and that he invoked his right to counsel when he was being interrogated by Lewis on the trip from Brunswick Correc- tional Center to Accomack County Jail on April 16, 1997. He admitted that he had asked to speak with Lewis on April 25, but he denied that Lewis advised him of his Miranda rights before interrogating him on that date. Sheriff Crockett testified that, while in Chesapeake on June 7, 1996, Cherrix had been advised of his Miranda rights and that he signed a written waiver. He also testified that Cherrix never invoked his right to counsel or his right to re- main silent during the return trip to Accomack. 8a Lewis testified that on April 16, 1997, he advised Cherrix of his Miranda rights, and that Cherrix elected to speak to him. He denied that Cherrix, “at any time ... on April 16,” requested counsel or otherwise indicated that he wished to stop answering questions. Finally, Lewis testified that when he went to see Cherrix at the Accomack County Jail on April 25 pursuant to Cherrix’s request, he again advised Cherrix of his Miranda rights, and that Cherrix never indicated on that date that he wished to have counsel present or that he wished to stop answering questions. Following the suppression hearing, the trial court denied Cherrix’s motion to suppress his confession. On appeal, Cherrix claims that he clearly invoked his right to counsel on April 16, that interrogations nevertheless continued without counsel being provided, in violation of his Fifth Amendment rights, and that the statements he made during those interro- gations were thus inadmissible. See Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966); Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981).? Cherrix contends that the trial court’s denial of his motion to suppress the confession therefore constituted re- versible error. We do not agree. Admissibility of a defendant’s statements is an issue to be decided by the trial court, which evaluates the credibility of ? Although Cherrix does not explicitly argue that the admission of his con- fession violated his Sixth Amendment right to counsel, he does make re- peated references to the fact that counsel had been appointed to him on unrelated charges prior to his being interrogated on April 25. However, as the Commonwealth points out, the Sixth Amendment right to counsel is charge-specific and does not “travel with a defendant and attach [itself] to any other crimes .. . .” Eaton v. Commonwealth, 240 Va. 236, 252, 397 S.E.2d 385, 394 (1990), cert. denied, 502 U.S. 824, 116 L. Ed. 2d 60, 112 S. Ct. 88 (1991). 9a the witnesses, resolves any conflicts in the testimony, and weighs the evidence as a whole. Watkins v. Commonwealth, 229 Va. 469, 477, 331 S.E.2d 422, 429 (1985), cert. denied, 475 U.S. 1099, 89 L. Ed. 2d 903, 106 S. Ct. 1503 (1986). Be- fore admitting statements made by a defendant during custo- dial interrogation, the trial court must determine whether the defendant knowingly and intelligently relinquished and aban- doned his rights. See id. The trial court’s determination is the resolution of a question of fact based on the totality of the circumstances, Schneckloth v. Bustamonte, 412 U.S. 218, 226, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973); Watkins, 229 Va. at 477, 331 S.E.2d at 430, and will not be disturbed on appeal unless plainly wrong. Jones v. Commonwealth, 228 Va. 427, 441, 323 S.E.2d 554, 561 (1984), cert. denied, 472 U.S. 1012, 86 L. Ed. 2d 728, 105 S. Ct. 2713 (1985). Here, the record supports the trial court’s admission into evidence of Cherrix’s statements to the police. Lewis testified unequivocally that he read Cherrix his Miranda rights on April 16 and April 25, and that Cherrix never asked for coun- sel on either date. Cherrix testified to the contrary; however, the trial court was in a position to evaluate the credibility of witnesses and its decision to accept Lewis’ testimony and re- ject Cherrix’s testimony is amply supported by the record. See Watkins, 229 Va. at 477, 331 S.E.2d at 430. B. Failure to Disclose Exculpatory Material Prior to trial, the trial court accepted the Common- wealth’s assertion that all discovery requirements had been satisfied and declined to rule on Cherrix’s motion for discov- ery. At that time, the Commonwealth had a written statement from Cherrix’s grandmother asserting that Cherrix was at home on the night of Van Hart’s murder and that he placed a telephone call to his wife “around 8:00 o’clock or so.” The 10a Commonwealth had not disclosed this written statement to Cherrix. At trial, Cherrix’s grandmother testified as an alibi wit- ness for him and stated that Cherrix placed a telephone call to his wife at 8:15 on the night of the murder and that the call went on “a long while.” On cross-examination, she testified that she had been interviewed by a police officer, but that she could not remember what she told the officer. The Common- wealth subsequently called the interviewing officer as a re- buttal witness and asked him to read the statement signed by Cherrix’s grandmother. Cherrix objected to the admission of the statement, asserting that it contained exculpatory material which should have been disclosed by the Commonwealth prior to trial. See Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). The trial court overruled Cher- rix’s objection and admitted the written statement. On appeal, Cherrix asserts that his knowledge of the in- formation contained in the statement does not excuse the Commonwealth’s failure to disclose the statement, but shows a lack of good faith and violates the due process clause under Brady. We disagree. The disclosure requirement imposed by Brady applies to material exculpatory evidence. Exculpatory evidence is mate- rial if there is a reasonable probability that the outcome of the proceeding would have been different had the evidence been disclosed to the defense. United States v. Bagley, 473 U.S. 667, 682, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985); Robinson v. Commonwealth, 231 Va. 142, 151, 341 S.E.2d 159, 164 (1986). In calling his grandmother as an alibi witness, Cher- rix demonstrated that he and his counsel knew about and re- lied upon her testimony regarding his presence at home on the night of the murder and the telephone call he made to his lla wife. The content of her written statement was, as he admits, “reasonably known” and “consistent with the defense case.” The written statement of the grandmother’s testimony did not change the substance of the information known to the de- fense, and the failure to disclose the fact that she had exe- cuted a written version of her testimony did not deprive Cher- rix of material exculpatory information in violation of Brady. See Castillo v. Johnson, 141 F.3d 218, 223 (Sth Cir.), cert. denied, — U.S. —, 119 S. Ct. 28 (1998)(prosecution has no obligation to produce information already known to defense). Accordingly, the trial court did not err in overruling Cherrix’s objection and admitting the statement into evidence. V. Guilt Phase A. Reading and Admission of Statement During the Commonwealth’s direct examination, Lewis related the oral confession Cherrix made during their April 25 conversation. Lewis then testified that he briefly left the room after Cherrix made the oral confession, with the ex- pectation that Cherrix would write out and sign a written con- fession. When Lewis returned, however, Cherrix had not done so. Lewis testified that he then initiated “a question and an- swer session” with Cherrix, in which he asked Cherrix sev- eral questions concerning the murder, wrote down each ques- tion as he had asked it, and then wrote down Cherrix’s response to each question “word for word.” Lewis testified that he then read Cherrix’s answers back to him, and that Cherrix acknowledged the accuracy of each written response before Lewis would proceed to the next question. When all the questions and answers were complete, Lewis asked Cher- rix to sign the document, but Cherrix refused. 12a After Lewis testified about the procedure used in the “question and answer session,” he then proceeded to read each question and answer to the jury. Cherrix objected, taking the position that, because the “question and answer” docu- ment was not signed, it was “nothing more than a continuing oral statement at which time the officer may have taken notes.” Cherrix asserted that since the document was merely Lewis’ notes of the conversation, Lewis should only be per- mitted to refer to it to refresh his recollection, but not to read directly from it. The trial court overruled Cherrix’s objection and permit- ted Lewis to read each question and answer. Cherrix then raised an objection to the admission of the document into evidence as an exhibit, but the trial court deferred ruling until after Lewis finished testifying. The Commonwealth moved to admit the document following Lewis’ direct examination, and the trial court again deferred its ruling pending cross- examination of Lewis by the defense. The record bears no in- dication that the document was thereafter admitted as an ex- hibit; however, the document was made a part of the record because Cherrix attached it to a post-trial motion. On appeal, Cherrix renews his argument that the “ques- tion and answer” document is merely Lewis’ notes. He asserts that a document must be admitted into evidence as an exhibit if it is to be read to the jury by a witness, and that the only exception to this rule is the hearsay exception of “past recol- lection recorded.” Cherrix concludes that, because the Com- monwealth did not meet the foundational requirements for introduction of “past recollection recorded” material, the trial court erred by permitting Lewis to read from the “question and answer’ document. We disagree. Contrary to Cherrix’s assertion that the “question and an- swer” document represented Lewis’ notes, the trial court on wslett Aas a Dal ee anna ae 13a found that the document represented Cherrix’s own state- ments: [I}n all of the other statements that have come in in this case, they have been statements that were oral and that were testified to by the wit- ness primarily from memory with him from time to time referring to notes to refresh his recollection, but in this case it is a very differ- ent set of circumstances. The witness has Stated that he specifically referred—that he specifically wrote out a question. Specifically asked a question. Specifically wrote down word for word the answer and reviewed it with the defendant. .. . (Emphasis added.) As characterized by the trial court, then, the “question and answer” document was elevated to the status of a written confession. There can be no question but that a written confession is admissible into evidence. Confessions, whether oral or writ- ten, are admissible against a criminal defendant under the “party admission exception” to the hearsay rule. Quintana y. Commonwealth, 224 Va. 127, 148, 295 S.E.2d 643, 654 (1982), cert. denied, 460 U.S. 1029, 75 L. Ed. 2d 501, 103 S. Ct. 1280 (1983); Land v. Commonwealth, 211 Va. 223, 229, 176 S.E.2d 586, 590-91 (1970). This is true even if the writ- ten confession is unsigned, as long as the defendant under- stood and adopted its substance. Wong Sun v. United States, 371 U.S. 471, 491, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963)(“The fact that the statement was unsigned, whatever bearing this may have upon its weight and credibility, does not render it inadmissible”). Because the “question and an- swer” document was admissible as a confession, the failure l4a of the Commonwealth to lay a foundation for its admission under the “past recollection recorded” exception is irrelevant. Although the “question and answer” document could have been admitted into evidence as an exhibit and would have been the best evidence of Cherrix’s confession, see McDaniel v. Commonwealth, 183 Va. 481, 32 S.E.2d 667 (1945), Cherrix objected to its admission as an exhibit at trial. Therefore, he cannot now argue that the trial court erred in allowing the confession to be admitted in secondary form—through Lewis’ reading it into evidence. For these rea- sons, there was no error in the trial court’s decision to permit Lewis to read from the “question and answer” document during his testimony. B. Motion to Set Aside the Verdict Cherrix argues that the trial court erred in denying his motion to set aside the verdict as contrary to the law and evi- dence because the Commonwealth failed to prove the corpus delicti beyond a reasonable doubt. We disagree. In every criminal prosecution, the Commonwealth must prove the element of corpus delicti, that is, the fact that the crime charged has been actually perpetrated. Maughs v. City of Charlottesville, 181 Va. 117, 120, 23 S.E.2d 784, 786 (1943). Further, if the accused has fully confessed that he committed the crime, then only slight corroboration of the confession is required to establish corpus delicti beyond a reasonable doubt. Jackson v. Commonwealth, 255 Va. 625, 646, 499 S.E.2d 538, 551 (1998). Cherrix was charged with capital murder, forcible sod- omy, use of a firearm in the commission of those offenses, and being a felon in possession of a firearm. Cherrix fully confessed to having committed these crimes, and the record 15a reveals that the Commonwealth produced considerably more than slight evidence to corroborate Cherrix’s confession. As discussed above, Van Hart’s dead body was found with two .22 caliber gunshot wounds to the head. The autopsy revealed recent penetration of the anus and signs of blunt force trauma to the head shortly before death. This evi- dence sufficiently corroborates Cherrix’s statements that he sodomized Van Hart and shot her to death. Furthermore, Christopher Fox, an acquaintance of Cher- rix, identified the .22 caliber rifle found by the police, at the exact location indicated by Cherrix, as the rifle Fox had sold to Cherrix. Cherrix’s former wife also identified the rifle as one Cherrix once owned. The Commonwealth also estab- lished that Cherrix was a convicted felon at the time of the offense. This evidence sufficiently corroborates the commis- sion of the firearm offenses. Accordingly, the trial court did not err in denying Cherrix’s motion to set aside the verdict. _ C. Jury Instructions At the conclusion of the guilt stage of the trial, Cherrix proffered the following jury instruction: If you believe that Brian Lee Cherrix did not freely and voluntarily give a statement to law enforcement officers concerning his alleged involvement in the sodomy and murder of Tessa Van Hart, then you may give any such statement as much or as little credibility as you deem appropriate. The credibility and weight of any statements presented to the jury as having been made by the defendant are submitted for your consid- eration along with all the other evidence. The 16a weight, the credibility, the sufficiency are questions for determination by you the jury. The trial court granted the second paragraph of the instruc- tion but refused to grant the first paragraph on the ground that there was no evidence to support a conclusion by the jury that Cherrix’s statements to police were involuntary. The trial court also granted a “general” instruction, advising the jury of its role in assessing the credibility of witnesses and the weight of evidence. On appeal, Cherrix claims that a general instruction on credibility was insufficient to properly inform the jury of their role in assessing the voluntariness of Cherrix’s confession, and that, therefore, the trial court erred in refusing his in- struction regarding the voluntariness of his statements to po- lice. After reviewing the record, however, we find no error in the trial court’s denial of Cherrix’s proffered instruction. While it is true that the trial court’s pre-trial determina- tion that a defendant’s statements are admissible in evidence does not preclude the defendant from proving at trial that those statements were made involuntarily, see Jackson v. Commonwealth, 193 Va. 664, 674, 70 S.E.2d 322, 328 (1952)(“Admissibility of confession is for trial court but its weight and value are for the jury.”), it is also well established that a defendant is not entitled to a jury instruction unless it is supported by more than a scintilla of evidence. Common- wealth vy. Donkor, 256 Va. 443, 445, 507 S.E.2d 75, 76 (1998). Cherrix testified at a pre-trial suppression hearing that the police had violated his Miranda rights; however, he elected not to testify at trial, and the evidence presented to the jury was undisputed that Cherrix’s statements to police were pre- ceded by voluntary and intelligent waivers of those rights. 17a Furthermore, the trial court not only gave a “general” in- struction on the jury’s role in assessing credibility, but also granted the instruction contained in the second paragraph above, which specifically relates to the weight and credibility of statements “having been made by the defendant.” Ac- cordingly, we conclude that the jury was adequately apprised of its role, and that the trial court properly refused Cherrix’s proffered instruction. VI. Sentencing Phase A. Mental Health Expert Cherrix argues that the trial court erred in denying him an adequate and competent mental health expert, as required by Code § 19.2-264.3:1. That statute provides, in relevant part: The mental health expert appointed pursuant to this section shall be (i) a psychiatrist, . . . who has successfully completed forensic evaluation training as approved by the Com- missioner of Mental Health, Mental Retarda- tion and Substance Abuse Services and (ii) qualified by specialized training and experi- ence to perform forensic evaluations. The de- fendant shall not be entitled to a mental health expert of the defendant’s own choosing... . Code § 19.2-264.3:1(A). Cherrix claims that Dr. John Bulette, the expert appointed by the trial court, did not pos- sess the qualifications required by the statute. Because the re- cord shows that Dr. Bulette was qualified under the statute, however, we find no error in the trial court’s appointment.? > On appeal, Cherrix implies that the trial court’s action denied him rights under the United States Constitution. See Ake v. Oklahoma, 470 U.S. 68, 84 L. Ed. 2d 53, 105 S. Ct. 1087 (1985). To the extent that he attempts to 18a Cherrix filed a motion, pursuant to the statute, requesting the appointment of a defense expert to assist him in the capi- tal sentencing phase of the trial. At a subsequent hearing, Cherrix informed the trial court that he had inquired into available experts, that he had “selected” Dr. Leigh Hagan of Chesterfield County, and that he wanted the trial court to ap- point Dr. Hagan. The trial court subsequently informed counsel by tele- phone that it had decided not to appoint Dr. Hagan because of the distance between Chesterfield County and Accomack County, and that it would instead appoint a local psychiatrist, Dr. John Bulette. Without any objection, the trial court then entered an order appointing Dr. Bulette. Two days later, Cherrix filed a motion to reconsider the matter and to appoint Dr. Hagan rather than Dr. Bulette, which motion the trial court denied. At the hearing on that motion, Cherrix conceded that Dr. Bulette was a psychiatrist who had successfully completed his forensic evaluation training. He contended, however, as he does now on appeal, that because Dr. Bulette had never before been involved in a capital murder case, he was not “qualified by specialized training and experience to perform forensic evaluations,” as required by the statute. Contrary to Cherrix’s interpretation of Code § 19.2- 264.3:1(A)(ii), however, the statute does not require experi- ence in capital murder cases as a qualification for an ap- pointed expert. The relevant part of that statute simply re- quires specialized training and experience to perform forensic evaluations. The trial court was familiar with Dr. Bulette’s make this argument, however, it is defaulted because he did not object to Dr. Bulette’s appointment on any constitutional basis at trial. Rule 5:25. Therefore, we address only his statutory argument. i 19a background and specifically found that Dr. Bulette had “sub- stantial experience” in such evaluations. Cherrix does not ar- gue that Dr. Bulette lacked the training and experience ex- pressly required by the statute, and we decline his invitation to graft onto the statute the additional requirement of experi- ence in capital murder cases. Accordingly, we find no error in the trial coust’s appointment of Dr. Bulette. B. Corrections Expert and Witnesses Cherrix sought to present evidence regarding prison life and its effect on his “future dangerousness” through the tes- timony of an expert penologist, several Virginia corrections officials, a criminologist, a sociologist, and an individual serving a life sentence in the custody of the Virginia Depart- ment of Corrections. The trial court initially granted Cher- rix’s motion for the appointment of an expert penologist pending submission of a report and cost estimate. The Com- monwealth objected to the issuance of a subpoena for the in- mate and moved to quash the subpoenas issued for the cor- rections officials, criminologist, and sociologist. Following a hearing at which Cherrix proffered the testi- mony of these witnesses, the trial court determined that Cher- rix’s evidence was immaterial as mitigation evidence and therefore refused to compel the witnesses’ attendance through subpoenas. The trial court vacated its prior order granting Cherrix’s motion for appointment of an expert on the basis that the report was not timely filed, the cost estimate was high, and the proffered testimony of the expert, like the prof- fered testimony of the other witnesses sought, was immate- nial. Cherrix argues that the trial court erred because Code § 19.2-264.4 allows presentation of mitigating evidence. He contends that exclusion of his proffered “mitigation evi- 20a dence” was an abuse of discretion and violated his federal constitutional rights as established in Skipper v. South Caro- lina, 476 U.S. 1, 90 L. Ed. 2d 1, 106 S. Ct. 1669 (1986), and Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982). We disagree. Although the United States Constitution guarantees the defendant in a capital case a right to present mitigating evi- dence to the sentencing authority, it does not limit “the tradi- tional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant’s character, prior record, or the circumstances of his offense.” Lockett v. Ohio, 438 U.S. 586, 605 n.12, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978). Code § 19.2-264.4(B) vests the trial court with the discretion to de- termine, subject to the rules of evidence governing admissi- bility, the evidence which may be adduced in mitigation of the offense. Coppola v. Commonwealth, 220 Va. 243, 253, 257 S.E.2d 797, 804 (1979), cert. denied, 444 U.S. 1103, 62 L. Ed. 2d 788, 100 S. Ct. 1069 (1980). The record shows that the evidence Cherrix sought to in- troduce involved the general nature of prison life. The in- mate’s proffered testimony sought to establish, based on the inmate’s personal prison experience, what prison life would be like for Cherrix if he received a life sentence. The officials from the Department of Corrections would have testified re- garding the ability of the penal system to contain Cherrix and the cost to the taxpayers of an inmate’s life sentence. Cher- rix’s counsel stated that the testimony of the expert penolo- gist, the sociologist, and the criminologist would be similar to that of the inmate and corrections officials. As the trial court observed, none of this evidence concerns the history or 2la experience of the defendant.* We agree with the conclusion of the trial court that “what a person may expect in the penal system” is not relevant mitigation evidence. Accordingly, we will affirm the judgment of the trial court excluding this evi- dence. C. Post Trial-Offense Convictions Cherrix filed a pre-trial motion to exclude from the sen- tencing phase of the trial evidence of crimes he committed after he committed the capital offense in January of 1994. The trial court declined to rule on the motion because it was premature. During the sentencing phase, the Commonwealth offered as evidence two convictions that Cherrix received after January 1994. We have already stated on two prior occa- sions that evidence of_“prior history” to establish future dangerousness under Code § 19.2-264.4(C) encompasses the time after which the subject offense was committed, Joseph v. Commonwealth, 249 Va. 78, 88-89, 452 S.E.2d 862, 869, cert. denied, 516 U.S. 876, 133 L. Ed. 2d 137, 116 S. Ct. 204 (1995), and includes a defendant’s most recent history, Saun- ders v. Commonwealth, 242 Va. 107, 117, 406 S.E.2d 39, 45, cert. denied, 502 U.S. 944, 116 L. Ed. 2d 337, 112 S. Ct. 386 (1991). Accordingly, the trial court’s admission of this evi- dence was proper. D. Failure to Properly Advise Jury on Parole Eligibility Cherrix contends that the trial court erred in failing to properly advise the jury of his eligibility, or lack thereof, for parole. He claims that, because “future dangerousness” was relevant to his sentencing, the trial court erred in failing to in- * Contrary to Cherrix’s assertion, none of the evidence proffered at trial addressed Cherrix’s ability to conform or his experience in conforming to prison life, as the defendant's evidence did in Skipper, 476 U.S. at 4. ar 22a form the jury that Cherrix “would effectively never be pa- roled.” The record reveals, however, that Cherrix has waived this argument for failure to object in the trial court. Rule Kae At the sentencing phase of the trial, Cherrix did not offer a parole eligibility instruction. The issue of parole eligibility did not arise until the jury foreman inquired of the trial court, during deliberations, whether a life sentence would include the possibility of parole. The trial court then suggested to counsel that it should “instruct the jury that they are to have no concern with parole.” When the trial court then asked Cherrix for his position on the matter, Cherrix responded, “lI would suggest that the court instruct the jury as you have in- dicated. [The jury] should not be concerned with parole... .” The trial court subsequently instructed the jury that it “must decide whether to impose a life sentence or the death penalty based upon the evidence and the instructions that you have received and you are to give no consideration to the issue of parole.” Cherrix’s failure to proffer a parole eligibility in- struction and his failure to object to the trial court’s instruc- tion in response to the jury’s inquiry mentioned above pre- cludes us from addressing the merits of this assignment of error. E. Aggravating Factors A penalty of death may be imposed only if the Common- wealth proves, beyond a reasonable doubt, that the defendant would commit criminal acts of violence that would be a con- tinuing serious threat to society or that his conduct in com- mitting the offense was outrageously or wantonly vile, horri- ble or inhuman in that it involved torture, depravity of mind, or aggravated battery. Code § 19.2-264.4(C). In this case, the Commonwealth sought the death penalty based on both of the aggravating factors, future dangerousness and vileness. The 23a jury returned a sentencing verdict making the required find- ings under both factors. Cherrix contends that the death pen- alty should not have been imposed because it was “unreason- able” for the jury to conclude that Cherrix would be a continuing serious threat to society, and because the Com- monwealth failed to prove that his actions in committing the crime were outrageously or wantonly vile, horrible, or inhu- man as that term is defined by the statute. We disagree. 1. Future Dangerousness Cherrix argues that because the jury was fully informed of Cherrix's sentences for other crimes, it “could reasonably expect” that Cherrix had “at best” a “remote” chance of ever being released. Thus, asserts Cherrix, any danger Cherrix might pose would be to the society within the prison, and a “five-foot-four inch, small framed, light weight man does not represent a danger to fellow inmates or guards.” Not only is this argument based primarily on speculation, it ignores the substantial evidence in the record of Cherrix’s continuing assaultive behavior for which he expressed little remorse. Cherrix had a lengthy record of criminal convictions including assault and battery, malicious wounding, and use of a firearm. Furthermore, after the murder of Van Hart, Cherrix shot his half-brother and, according to his own mental health expert, had no remorse for the shooting. Cherrix had a similar lack of remorse after he broke his mother-in-law’s arm with a pool cue. Cherrix told his mental health expert that he “would say anything to obtain his goals.” His expert testified that Cherrix had an anti-social personality, was “angry with women,” and acted out this anger by assaulting them. Finally, there is nothing in the record regarding Cherrix’s ability to conform to prison life and work productively in that envi- ronment. 24a Our review of the record fully supports the jury’s deter- mination that Cherrix would constitute a continuing serious danger to society. 2. Vileness The jury verdict found Cherrix’s conduct in committing the crime “outrageously or wantonly vile, horrible or inhu- man in that it involved torture or depravity of mind... .” Cherrix argues that the record fails to support this finding be- cause there was no showing of depravity of mind beyond that inherent in ordinary legal malice and premeditation, and be- cause there was no torture in that Van Hart died almost in- stantaneously. Again we disagree. The events surrounding the murder show that Cherrix carefully planned his crime and lured his victim to a remote area. According to the defendant’s recitation of events, after forcing her at gun point to partially disrobe and lie on the ground, he forcibly sodomized her whiie holding a rifle to the back of her head. Even though she “begged [him] not to kill her” and promised that she would “act like this never hap- pened,” he stood over her and shot her in the head for fear that “she was going to tell on [him].” Not sure that the first shot killed her, he “shot her again to make sure.” After the murder, Cherrix drove around with the victim’s body in the car, considered going to a restaurant for a beer, and ultimately abandoned the car and victim at a deserted site and tossed the murder weapon in a creek. He then went home and called his wife at the hospital “like nothing ever hap- pened.”” Cherrix visited the funeral home to view his victim’s body and told the police that she looked “beautiful.” This evidence supports the jury’s determination that Cherrix’s conduct in committing the sodomy and murder constituted torture of Van Hart or reflected depravity of mind. 25a VII. Statutory Review Code § 17.1-313(C) requires this Court to consider whether the sentence of death was imposed “under the influ- ence of passion, prejudice or any other arbitrary factor,” and whether such sentence is excessive or disproportionate to penalties imposed in similar cases, “considering both the crime and the defendant.” As to our first consideration, Cher- rix asserts that the death penalty was imposed under the in- fluence of passion, prejudice, or some other arbitrary factor because the jury improperly found the aggravating factors of future dangerousness and vileness. However, we have already determined that these jury findings were supported by the re- cord. Our review of the record reveals no support for the proposition that the jury imposed the death sentence as a re- sult of passion, prejudice, or any other arbitrary factor. In considering whether the sentence imposed in this case is excessive or disproportionate to other sentences imposed for similar crimes, we compare the record in this case with records in other capital murder cases, including those in which life sentences have been imposed. Since the jury based its death sentence on both the future dangerousness and vile- ness predicates, we give particular consideration to other capital murder cases in which the death penalty was sought based on both predicates. When considering the penalty for convictions of capital murder based on premeditated murder and rape/forcible sod- omy, juries in this Commonwealth have generally, although not without exception, imposed the death sentence. Barnabei v. Commonwealth, 252 Va. 161, 477 S.E.2d 270 (1996), cert. denied, 520 U.S. 1224, 137 L. Ed. 2d 845, 117 S. Ct. 1724 (1997); Clozza v. Commonwealth, 228 Va. 124, 321 S.E.2d 273 (1984), cert. denied, 469 U.S. 1230, 84 L. Ed. 2d 370, 105 S. Ct. 1233 (1985); Coleman v. Commonwealth, 226 Va. 26a 31, 307 S.E.2d 864 (1983), cert. denied, 465 U.S. 1109, 80 L. Ed. 2d 145, 104 S. Ct. 1617 (1984); Waye v. Commonwealth, 219 Va. 683, 251 S.E.2d 202, cert. denied, 442 U.S. 924, 61 L. Ed. 2d 292, 99 S. Ct. 2850 (1979). The death sentence has been imposed in cases where the victim, like the victim in this case, was killed solely to assure her silence. Hedrick v. Commonwealth, 257 Va. —, 513 S.E.2d 634 (1999) (this day decided); Justus v. Commonwealth, 220 Va. 971, 266 S.E.2d 87 (1980), cert. denied, 455 U.S. 983, 71 L. Ed. 2d 693, 102 S. Ct. 1491 (1982); Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978), cert. denied, 441 U.S. 967 (1979). Based on this review, we conclude that Cherrix’s death sen- tence is neither excessive nor disproportionate to penalties imposed by other sentencing bodies in the Commonwealth for similar and comparable crimes. VIII. Conclusion We find no reversible error in the issues presented in this case. After reviewing Cherrix’s death sentence pursuant to Code § 17-110.1, we decline to commute the sentence of death. Therefore, we will affirm the judgment of the trial court. Record No. 981798—Affirmed. Record No. 982063—Affirmed. 27a In the Supreme Court of Virginia held at the Supreme Court Building in the City of Richmond on Friday the 16th day of April, 1999. Brian Lee Cherrix, Appellant, against Record Nos. 981798 and 982063 Circuit Court No. 97CR134 Commonwealth of Virginia, Appellee. Upon a Petition for Rehearing On consideration of the petition of the appellate to set aside the judgments rendered herein on the 26th day of Feb- ruary, 1999 and grant a rehearing thereof, the prayer of the said petitioner is denied. A Copy, Teste: /s/ Clerk 28a AMENDMENT VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. AMENDMENT XIV Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 2. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, exclud- ing Indians not taxed. But when the right to vote at any elec- tion for the choice of electors for President and Vice Presi- dent of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabi- tants of such state, being twenty-one years of age, and citi- zens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of repre- sentation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state. Section 3. No person shall be a Senator or Representa- tive in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a EEL Wo Ne RRR ee te ee 29a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or ju- dicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for pay- ment of pensions and bounties for services in suppressing in- surrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or eman- cipation of any slave; but all such debts, obligations and claims shall be held illegal and void. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. CODE OF VIRGINIA § 19.2-264.4. Sentence proceeding A. Upon a finding that the defendant is guilty of an of- fense which may be punishable by death, a proceeding shall be held which shall be limited to a determination as to whether the defendant shall be sentenced to death or life im- prisonment. In case of trial by jury, where a sentence of death is not recommended, the defendant shall be sentenced to imprisonment for life. A1.In any proceeding conducted pursuant to this section, the court shall permit the victim, as defined in § 19.2-11.01, upon the motion of the attorney for the Commonwealth, and 30a with the consent of the victim, to testify in the presence of the accused regarding the impact of the offense upon the victim. The court shall limit the victim's testimony to the factors set forth in clauses (i) through (vi) of subsection A of § 19.2- 299.1. B. In cases of trial by jury, evidence may be presented as to any matter which the court deems relevant to sentence, ex- cept that reports under the provisions of § 19.2-299, or under any rule of court, shall not be admitted into evidence. Evidence which may be admissible, subject to the rules of evidence governing admissibility, may include the circum- stances surrounding the offense, the history and background of the defendant, and any other facts in mitigation of the of- fense. Facts in mitigation may include, but shall not be lim- ited to, the following: (i) The defendant has no significant history of prior criminal activity, (ii) the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance, (iii) the victim was a participant in the defendant’s conduct or consented to the act, (iv) at the time of the commission of the capital felony, the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was significantly impaired, (v) the age of the defendant at the time of the commission of the capital offense or (vi) mental retardation of the defendant. C. The penalty of death shall not be imposed unless the Commonwealth shall prove beyond a reasonable doubt that there is a probability based upon evidence of the prior history of the defendant or of the circumstances surrounding the Commission of the offense of which he is accused that he would commit criminal acts of violence that would constitute a continuing serious threat to society, or that his conduct in committing the offense was outrageously or wantonly vile, 3la horrible or inhuman, in that it involved torture, depravity of mind or aggravated battery to the victim. D. The verdict of the jury shall be in writing, and in one of the following forms: (1) “We, the jury, on the issue joined, having found the defendant guilty of (here set out statutory language of the offense charged) and that (after consideration of his prior history that there is a probability that he would com- mit criminal acts of violence that would con- stitute a continuing serious threat to society) or his conduct in committing the offense is outrageously or wantonly vile, horrible or in- human in that it involved (torture) (depravity of mind) (aggravated battery to the victim), and having considered the evidence in mitiga- tion of the offense, unanimously fix his pun- ishment at death. man” or (2) “We, the jury, on the issue joined, having found the defendant guilty of (here set out statutory language of the offense charged) and having considered all of the evidence in ag- gravation and mitigation of such offense, fix his punishment at imprisonment for life. E. In the event the jury cannot agree as to the penalty, the court shall dismiss the jury, and impose a sentence of impris- onment for life. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0590%3A1. Public record. Not legal advice.