Opposition Brief — Cherrix v. Virginia

Suprema @eurt, Ba

HNIGRED

AUG 16 1999

No. 99-110 OERICE OF IH@ BLEAM

In The

Supreme Court of the United States

.

BRIAN LEE CHERRIX,

Petitioner,

COMMONWEALTH OF VIRGINIA,

Respondent.

+

On Petition For A Writ Of Certiorari

To The Supreme Court Of Virginia

¢

RESPONDENT'S BRIEF IN OPPOSITION

*

Mark L. EARLEY

Attorney General of Virginia

*Donatp R. Curry

Senior Assistant Attorney General

Office of the Attorney General

900 East Main Street

Richmond, Virginia 23219

¥ (804) 786-4624

“Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

DEAR Moaeees OF TEE CAGE... cc cccccvccvecceces 1

UUUOE GE DUWEEI 6 hoes dsc en eencoesntccVense 2

REASONS WHY THE WRIT SHOULD BE DENIED... 5

I. PETITIONER’S FEDERAL CLAIM REGARD-

ING THE TRIAL COURT’S PERMITTING A

POLICE OFFICER TO READ PETITIONER’S

CONFESSION INTO EVIDENCE HAS NOT

BEEN PRESERVED FOR REVIEW.......... 5

II. THERE IS NO COMPELLING REASON TO

REVIEW PETITIONER’S EIGHTH AMEND-

MENT CLAIM REGARDING THE EXCLU-

SION OF ALLEGED “MITIGATION”

EVIDENCE, AND HIS DUE PROCESS

CLAIM 1 DBPAULIED qn wc cccccccccvceses 8

Me. SE Saad Desa dedases eee kare vedeens es 8

B. No Compelling Reason................ 11

Sis eS I sda ccadacenedecnrines 14

III. PETITIONER’S CHALLENGE TO VIR-

GINIA’S “VILENESS” AGGRAVATING

FACTOR DOES NOT IMPLICATE THE

CONSTITUTIONALITY OF HIS DEATH

kt Ey peer rr ry rrr ree rrr 17

IV. PETITIONER’S “UNANIMITY” CLAIM

NEVER WAS RAISED IN THE VIRGINIA

~ SUPREME COURT IN ANY FORM........ 21

ED 65 0h4 J 0uashasendewecetexseeceunraers 23

il

TABLE OF AUTHORITIES

Page

Cases

Bennett v. Angelone, 92 F.3d 1336 (4th Cir.), cert.

denied, 519 U.S. 1002 (1996)... ccc cccccscccccsecesess 20

Breard v. Pruett, 134 F.3d 615 (4th Cir.), cert. denied,

S23 US. 371 (906) cc nccvccuaveseseoeedcaeesaceas 20

Buchanan v. Angelone, 522 U.S. 269 (1998)............ 18

Cherrix v. Commonwealth, 513 S.E.2d 642 (Va. 1999). .passim

Clemons v. Missstssippi, 494 U.S. 738 (1990).......... 20

Coppola v. Commonwealth, 220 Va. 243, 257 S.E.2d

797 (1979), cert. denied, 444 U.S. 1103 (1980)....... 12

Frisby v. Schultz, 487 U.S. 474 (1988) ..............-.. 20

George v. Angelone, 100 F.3d 353 (4th Cir. 1996),

cert. denied, 519 U.S. 1103 (1997) ..............005- 19

Godfrey v. Georgia, 446 U.S. 420 (1980)............... 18

Gregg v. Georgia, 426 U.S. 153 (1976) ... 62 cnvecessess 18

Jones v. Murray, 976 F.2d 169 (4th Cir.), cert. denied,

S05 U.S. 1305 (3900 voice cececreces ee eeeeseees 20

Jones v. United States, 119 S.Ct. 2090 (1999).......... 19

Lewis v. jeffers, 497 US. 766 (IGGR) 6 oie ce ctccevesss 22

Lockett v. Ohio, 438 U.S. 586 (1978). , ee res 11, 13

Lowenfield v. Phelps, 484 U.S. 231 (1988) ............. 18

Mansell v. Mansell, 490 U.S. 581 (1989) ............... 5

Maynard v. Cartwright, 486 U.S. 356 (1988)........... 21

McCray v. New York, 461 U.S. 961 (1983) ............ 14

Michigan v. Long, 463 U.S. 1032 (1983)............ 18, 19

ill

TABLE OF AUTHORITIES - Continued

Page

People v. Daniels, 802 P.2d 906 (Cal.), cert. denied,

Se , TE EOUUED vinctcctcccresccecceccsstcecoese 13

People v. Jones, 931 P.2d 960 (Cal.), cert. denied, 522

Pool ce Cunha ha ee ea eee xo oe 13

People v. Thompson, 753 P.2d 37 (Cal.), cert. denied,

i en co ae eee aeeuGaesadauedans 13

Richardson v. United States, 119 S.Ct. 1707

UC Tea) Seuss cuusiase cessed eaaasee 21, 22, 23

Skipper v. South Carolina, 476 U.S. 1 (1986) .......... 15

Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135

(1978), cert. denied, 441 U.S. 967 (1979)............ 20

Stringer v. Black, 503 U.S. 222 (1992) ................ 19

Swann v. Commonwealth, 247 Va. 222, 441 S.E.2d

195, cert. denied, 513 U.S. 889 (1994). .............. 19

Tuggle v. Netherland, 79 F.3d 1386 (4th Cir.), cert.

rr er Cs ces beeeawedseeneseveees 19

Tuilaepa v. California, 512 U.S. 967 (1994) ............ 19

Turner v. Williams, 35 F.3d 872 (4th Cir. 1994), cert.

Geeta, Gh4 US. WIT CIGTS).. oc wcccesccevecvecss 20

Walton v. Arizona, 497 U.S. 639 (1990)............ ys ee

Wong Sun v. United States, 371 U.S. 471 (1963)........ 7

Yee v. Escondido, 503 U.S. 519 (1992)..... 5, 7, 15, 20, 22

Zant v. Stephens, 462 U.S. 862 (1983) ..........-.+.-- 19

iv

TABLE OF AUTHORITIES - Continued

Page

OTHER AUTHORITIES

© 16.2-31, Code OF VICI. «occ cc ccccccccverccscones 17

§ 18.2-31(5), Code of Virginia...................+45. 17

S 19.2-264.2, Code of Virginia........cccccscsccsvees 21

SG 19.2-2664, Code OF ViNGIe. . 2000 -sccccseccesssces 1

& 19.2-266.4(C), Code of Virginia... .....ccccsccccces 17

§ 19.2-264.4(D), Code of Virginia.................... 21

OS. De. CR. TED TEs ce biccckcccckeeesouweesen« 7, 8, 12

OLD. BO. CU TE BG ok ccc vcnvdestovevcceseccees 13

tk ee BS rerrerrrrerT Tir r rie 5

Rule 5:17(c), Rules of the rn Court of Vir-

ON 6 54.696 30) be Ge seer eaheacesalhvastcavenesenaawen 5

Rule 5:17(d), Rules of the Supreme Court of Vir-

ee rere rT Tr ey eT TTT Tory rer tT 5

Rule 5:22(b), Rules of the Supreme Court of Vir-

Sr Peer er err ee TT errr rer rrr rrr errr rer ee 5

Estreicher and Sexton, A Managerial Theory of the

Supreme Court’s Responsibilities: An Empirical

Study, 59 N.Y.U.L. Rev. 677 (1984) ............. 13, 14

STATEMENT OF THE CASE

On February 10, 1998, after a four-day trial, a jury in

the Circuit Court of Accomack County, Virginia, con-

victed the petitioner, Brian Lee Cherrix, of the capital

murder of Tessa Van Hart, forcible sodomy, two counts of

using a firearm in the commission of those offenses, and

one count of possessing a firearm after being convicted of

a felony. On February 11, 1998, after a separate proceed-

ing on the issue of punishment, the jury sentenced Cher-

rix to death for the capital murder, life imprisonment for

the forcible sodomy, a total of eight years for using a

firearm in the commission of those offenses, and five

years for possessing a firearm after being convicted of a

felony. Cherrix’ death sentence was based upon the jury’s

finding of both “future dangerousness” and “vileness.”

See Va. Code § 19.2-264.4.

After receiving a presentence report, the trial court

sentenced Cherrix on March 11, 1998, in accordance with

the jury’s verdicts. Final judgment was entered by order

dated that same day.

On February 26, 1999, the Virginia Supreme Court

unanimously affirmed Cherrix’ convictions and sen-

tences. Cherrix v. Commonwealth, 513 S.E.2d 642 (Va. 1999).

(Ptn. App. 1-26). Cherrix’ petition for rehearing was

denied on April 16, 1999.

STATEMENT OF FACTS!

On the night of January 27, 1994, 23 year-old

Tessa Van Hart was working as a pizza delivery

person at a pizza delivery restaurant on Chin-

coteague Island. A man telephoned the restau-

rant 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 deliv-

ery, 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 fore-

head, 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 Cherrix, who was in the

Accomack County Jail pending sentencing on

unrelated charges, contacted the Accomack

' The facts are taken verbatim from the Virginia Supreme

Court’s opinion. Cherrix, 513 S.E.2d at 645-646. (Ptn. App. 2-4).

County Sheriff, Robert Crockett. Cherrix said

that he had information concerning the Van

Hart murder that he would share with police 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 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 recov-

ered the rifle, he agreed to go to Chincoteague

to show the officers the location of the rifle

according 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 investigator 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 sup-

posedly had told him, all the while using hand

and arm gestures to demonstrate how Birch sup-

posedly had disposed of the rifle. Sheriff Crock-

ett 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 mur-

der. In August 1996, after having been sentenced

on unrelated 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.

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 Accomack

County Jail, Chincoteague Assistant Police Chief

Edward Lewis interviewed Cherrix regarding

the Van Hart murder. After Lewis advised Cher-

rix of his Miranda rights and Cherrix agreed to

discuss the matter, Cherrix told Lewis yet a

different version of what he claimed had hap-

pened on the night of the murder, still maintain-

ing that Birch had committed the murder.

On April 17, 1997, counsel was appointed for

Cherrix’s uttering and grand larceny charges.

On April 25, 1997, Cherrix 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 Mir-

anda 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 officers on a tour of various

locations that he had described in his confes-

sion.

REASONS WHY THE WRIT SHOULD BE DENIED

I. PETITIONER’S FEDERAL CLAIM REGARDING

THE TRIAL COURT’S PERMITTING A POLICE

OFFICER TO READ PETITIONER’S CONFESSION

INTO EVIDENCE HAS NOT BEEN PRESERVED

FOR REVIEW.

Cherrix contends that his federal constitutional right

to “due process” was violated by the trial court’s ruling

permitting a police officer to read petitioner’s confession

into evidence. (Ptn. 8-11). This federal claim, however, is

not properly before this Court because, although Cherrix

challenged the admissibility ruling both at trial and in the

Virginia Supreme Court, he did so solely on state law

grounds. See Yee v. Escondido, 503 U.S. 519, 533 (1992) (this

Court does not consider issues not raised in court below); -

Mansell v. Mansell, 490 U.S. 581, 587 (1989) (this Court has

no jurisdiction over matters of state law); Rule 14.1(g)(i)

(requiring petitioner to specify when and how federal

claim was raised in state court).

On direct appeal, the Virginia Supreme Court will not

review a claim that is not the subject of an “assignment of

error.” See Va. S.Ct. Rule 5:17(c) (“Only errors assigned in

the petition for appeal will be noticed by this Court”);

Rule 5:22(b) (requiring “assignments of error” in capital

cases); Rule 5:22(d) (making Rule 5:17(d) applicable in

capital appeals). In Cherrix’ case, his relevant assignment

of error made no mention of a federal constitutional

challenge to the trial court’s admissibility ruling: “The

trial court erred in allowing the witness Eddie Lewis to

read the statement he says he took down from the appel-

lant.” (Resp. App. 1).

Petitioner's brief in the Virginia Supreme Court also

bore no indication that he was raising a federal constitu-

tional claim. To the contrary, Cherrix expressly couched

his complaint as a claim “[u]nder Virginia law.” (Resp.

App. 4). He cited the Virginia Supreme Court to its own

past decisions regarding evidentiary issues related to the

concepts of “present recollection refreshed” and “past

recollection recorded.” (Resp. App. 4-5). And, he relied

upon an authoritative treatise entitled, “The Law of Evi-

dence in Virginia.” (Resp. App. 5).

The Virginia Supreme Court's decision rejecting peti-

tioner’s admissibility claim also bore no indication that

he had raised a federal constitutional claim. To the con-

trary, the state court correctly understood Cherrix’ com-

plaint to be that the prosecution “did not meet the

foundational requirements for introduction of ‘past recol-

lection recorded’ material [and, therefore,] the trial court

erred by permitting [a police officer] to read from the

‘question and answer’ document.” See Cherrix, 513 S.E.2d

at 650. (Ptn. App. 12). The Virginia Supreme Court

rejected this state law claim, affirming the trial judge’s

factual determination that Cherrix had adopted the state-

ments in the document as his own, thus elevating the

document “to the status of a written confession.” Id.

The record thus clearly shows that petitioner’s pre-

sent federal “due process” claim was neither raised in nor

decided by the court below. The claim, therefore, may not

be reviewed on certiorari. See Yee, 503 U.S. at 533.

Even if petitioner’s federal claim had been preserved,

however, there would be no “compelling” reason for

granting certiorari. See Rule 10. Contrary to Cherrix’ con-

tention, Wong Sun v. United States, 371 U.S. 471 (1963),

does not purport to establish a constitutional rule regard-

ing the admissibility of unsigned confessions. (Ptn. 9).

Indeed, Wong Sun states just the opposite: “The fact that

the statement was unsigned, whatever bearing this may

have upon its weight and credibility, does not render it

inadmissible.” Id. at 491. The Court then merely noted

that “Wong Sun understood and adopted [the state-

ment’s] substance, though he could not comprehend the

English words” and that he “has never suggested any

impropriety in the interrogation itself which would

require the exclusion of this statement.” Id.

Finally, even if Wong Sun could be tortured into

establishing a constitutional rule prohibiting the admis-

sion of an unsigned confession unless the defendant had

“adopted the substance of the confession” (Ptn. 9), there

would be no compelling reason for this Court to review

the trial judge’s factual determination, affirmed by the

Virginia Supreme Court, that Cherrix had adopted as his

own the statements contained in the “question and

answer” document written by the officer while he inter-

viewed petitioner.2 See Cherrix, 513 S.E.2d at 650 (Ptn.

2 The state courts’ factual determination is fully supported

by the police officer’s testimony that, after writing down each

question and answer during his interview with Cherrix, he

showed Cherrix what he had written and the petitioner

App. 12-13); see also Rule 10 ("A petition . . . is rarely

granted when the asserted error consists of [allegedly]

erroneous factual findings”).

II. THERE IS NO COMPELLING REASON TO

REVIEW PETITIONER’S EIGHTH AMENDMENT

CLAIM REGARDING THE EXCLUSION OF

ALLEGED “MITIGATION” EVIDENCE, AND HIS

DUE PROCESS CLAIM IS DEFAULTED.

Cherrix contends that the trial court violated both the

Eighth Amendment and the Due Process Clause by

excluding his proffered evidence regarding the “prison

conditions” he would face if sentenced to life imprison-

ment. The Eighth Amendment claim, however, presents

no compelling issue for review and the due process claim

was not raised in the court below:

A. Facts

Prior to trial, Cherrix requested the issuance of a

subpoena for a Virginia prisoner, Melvin Shiflett, and

actually had subpoenas issued for numerous wardens

and other officials in the Virginia Department of Correc-

tions (DOC), including Director Ronald Angelone. The

Commonwealth’s Attorney opposed the subpoena for

Shiflett and moved to quash the subpoenas for the DOC

affirmed that what had been written was accurate. (Resp. App.

5-6).

officials. (App. 293-295).3 The trial court took up both

matters at a hearing on January 26, 1998. (App. 758-781).

With respect to inmate Shiflett, the trial judge asked

for a proffer as to the relevance and materiality of the

“evidence this witness would produce.” (App. 763). In

response, Cherrix represented that Shiflett currently was

“serving three life sentences, plus eighty-five years” and

that the defense intended to have Shiflett “describe what

happens to an inmate in a penitentiary as well as based

upon his experience . . . what he would anticipate hap-

pening to a young man [like Cherrix] that’s five-foot four

and weighs less then a hundred and fifty pounds in the

Virginia penal system.” (App. 763-764). According to

Cherrix’ trial counsel, Shiflett’s testimony would address

“both the issues of what it’s like for [Shiflett] and what it

would be like based upon his experience for . . . Cherrix

should he receive a life sentence.” (App. 764). When the

trial court asked Cherrix if he had “any authority to

support” the admissibility of such testimony, the peti-

tioner admitted that he did not, although he claimed to be

aware of other cases where such testimony had been

admitted. (App. 766).

When the trial court indicated that it was disinclined

to admit such evidence, Cherrix asked to “add to [his]

proffer.” (App. 767-768). He then represented to the court

that Shiflett would testify “[nJot only . . . to the routine

that he and others in prison experience,” but also that a

person like Cherrix of slight stature “is probably going to

3 The “App. __” references are to the Joint Appendix in the

court below.

10

be confronted with some adverse homosexual activity

and ...a life sentence situation is going to be much more

onerous than . . . a death sentence.” (App. 768). The trial

judge then ruled that the proffered evidence from Shiflett

“would not be material or probative” and denied the

request for a subpoena. (App. 298, 769-770).

With respect to the subpoenas for the DOC officials,

Cherrix asserted that the issue of his “future dangerous-

ness” must be assessed “in the arena in which the defen-

dant is going to find himself . . . if he is given a life

sentence” and proffered that Director Angelone “would

testify that he’s ready, willing and able to do his job and

that if . . . Cherrix were . . . committed to one of his

institutions for life, he would keep him there and [given

Cherrix’] size, his biggest problem may be keeping .. .

Cherrix safe as opposed to the [prison] society. ... ”

(App. 770-771). When the trial court indicated it was not

inclined to admit such testimony, Cherrix again

attempted to supplement his proffer. According to Cher-

rix, Mr. Angelone “would also be able to testify not only

as to the ability of the prison system to retain . . . Cherrix

and what his potential future dangerousness would be in

the penal institution, he can also testify as to the cost that

the taxpayers are going to have to pay as the result of a

life sentence.”4 (App. 777).

4 Cherrix also represented that he intended to call “experts

from Old Dominion University [who would testify] as to the

cost of a death penalty situation.” (App. 777). No such witnesses

ever were produced or offered by Cherrix at trial, and his

certiorari petition raises no issue with respect to the exclusion of

such evidence.

11

The trial court then granted the Commonwealth’s

motion to quash, but did so in very careful language. The

judge ruled that he would not permit any evidence

“about the penal system, its costs or the experiences of

inmates in the penal system.” (App. 778). The court found

no authority for admitting testimony as “to what this

defendant could be expected to experience should he be

incarcerated” and ruled that such testimony “is not

within the category of mitigating evidence.” (App. 779).

The judge then specifically informed the defense, how-

ever, that if “any of the witnesses that we’re talking

about . . . have evidence other than what a given individ-

ual could expect . . . in the penal system. .. . the court will

be glad to hear a proffer . . . but the financial aspects of

what it costs to keep an inmate, that sort of thing, are not

mitigating evidence. ...” (App. 780). Cherrix made no

additional proffer. (App. 780).

B. No Compelling Reason

When petitioner raised his Eighth Amendment claim

below, the Virginia Supreme Court made the following

fact-specific ruling:

Although the United States Constitution guar-

antees the defendant in a capital case a right to

present mitigating evidence to the sentencing

authority, it does not limit “the traditional

authority of a court to exclude, as irrelevant,

evidence not bearing on the defendant's charac-

ter, prior record, or the circumstances of his

offense.” Lockett v. Ohio, 438 U.S. 586, 605 n.12,

98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Code

12

§ 19.2-264.4(B) vests the trial court with the dis-

cretion to determine, subject to the rules of evi-

dence governing admissibility, 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, 100 S.Ct. 1069, 62 L.Ed.2d 788 (1980).

The record shows that the evidence Cherrix

sought to introduce involved the general nature

of prison life. The . . . proffered testimony

sought to establish, based on [inmate Shiflett’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 regarding the

ability of the penal system to contain Cherrix

and the cost to the taxpayers of an inmate’s life

sentence. Cherrix’s counsel stated that the testi-

mony of the expert penologist, 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 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 evidence.

Cherrix, 513 S.E.2d at 653 (footnote omitted). (Ptn. App.

20-21). The court below thus correctly stated the Eighth

Amendment standard established by this Court in Lockett

and faithfully applied it to the particular facts of Cherrix’

case. Such a routine fact-bound decision clearly does not

warrant this Court’s review. See Rule 10 (“A petition

. . is rarely granted when the asserted error consists of

13

erroneous factual findings or the misapplication of a

properly stated rule of law”).

Petitioner, moreover, has cited no authority holding

that the exclusion of such “prison conditions” evidence at

the penalty-stage of a capital murder trial violates the

Eighth Amendment. (Ptn. 14-17). To the contrary, to the

limited extent the issue has been litigated at all, the

courts have been unanimous in concluding that specula-

tive evidence about what conditions a defendant likely

would face while serving a life sentence simply has no

“bearing on the defendant’s character, prior record or the

circumstances of his offense.” See Lockett, 438 U.S. at 605,

n.12; see also People v. Jones, 931 P.2d 960, 1004 (Cal.) (“the

conditions of confinement during a life sentence do not

constitute mitigating circumstances”), cert. denied, 522

U.S. 955 (1997); People v. Daniels, 802 P.2d 906, 938 (Cal.)

(“videotape of defendant’s future prison routine would

not depict an aspect of his character or record, and would

not be admissible”), cert. denied, 502 U.S. 846 (1991); Peo-

ple v. Thompson, 753 P.2d 37, 70 (Cal.) (“Describing future

conditions of confinement for a person serving life with-

out possibility of parole involves speculation as to what

future officials in another branch of government will or

will not do”), cert. denied, 488 U.S. 960 (1988).

The unanimity of the few courts that have decided

the issue is a clear signal that the issue is unworthy of

this Court’s review. See Rule 10(b) (establishing “conflict”

between decision below and decision of another state

court of last resort or federal court of appeals as a pri-

mary consideration in whether to grant certiorari);

Estreicher and Sexton, A Managerial Theory of the Supreme

Court's Responsibilities: An Empirical Study, 59 N.Y.U.L.

14

Rev. 677, 719 (1984) (“[t]he occurrence of a conflict acts as

a signaling device to help the Court identify important

issues”); see also McCray v. New York, 461 U.S. 961, 962

(1983) (Stevens, J., respecting denial of certiorari) (recog-

nizing wisdom of allowing lower courts “to serve as

laboratories” before an issue “is addressed by this

Court”).

C. Not Raised Below

Petitioner’s relevant assignment of error in the Vir-

ginia Supreme Court referenced neither the Eighth

Amendment, the Due Process Clause, nor even the Con-

stitution generally: “The trial court erred in denying...

witnesses on [the] issue of corrections environment and

an expert to testify as to corrections, life imprisonment

conditions.” (Resp. App. 1). His brief in the Virginia

Supreme Court, however, primarily raised an Eighth

Amendment claim premised upon an alleged denial of his

right to present “mitigation evidence.” (Resp. App. 2-3).

Although Cherrix made perfunctory references to “due

process” at the conclusion of his argument on brief, he

clearly did not raise the same “due process” claim he has

raised in his certiorari petition.

To the minor extent Cherrix even mentioned “due

process” in the court below, he argued only that he had a

right to present evidence that would “deny or explain”

the prosecution’s evidence of “future dangerousness.”

(Resp. App. 3). In his certiorari petition, however, Cherrix

for the first time claims that the excluded evidence

“would have connected” the testimony of his own mental

health expert “to the conclusion that [petitioner] would

15

not pose a future danger.” (Ptn. 12). «© such claim was

raised either at trial or in the court below and, therefore,

is not properly before the Court. See Yee, 503 U.S. at 533.

Even if Cherrix’ present claim were properly pre-

served, however, there would be no compelling reason to

review the Virginia Supreme Court’s fact-specific applica-

tion of this Court’s well-established precedent. As the

court below noted, “none of the evidence proffered at

trial addressed Cherrix’s ability to conform or his experi-

ence in conforming to prison life... .” See Cherrix, 513

S.E.2d at 653, n.4, citing Skipper v. South Carolina, 476 U.S.

1, 4 (1986). (Ptn. App. 21).

Finally, petitioner’s newly-found claim is based upon

a mischaracterization of the record. Contrary to Cherrix’

assertion, his mental health expert did not testify that

petitioner’s “psychological propensities permitted him to

adapt and conform to a highly structured environment”

or that he “was well suited by temperament” to life in

prison. (Ptn. 12). When asked whether Cherrix “would be

able to live within a highly-structured society,” the expert

merely replied, “I think that’s the only one he would

survive in. Unstructured would be very vulnerable to

repeat.”5 (Resp. App. 6). Indeed, when the Virginia

Supreme Court reviewed the evidence of petitioner’s

5 When petitioner’s expert specifically was asked whether

the petitioner “would have any difficulty living within a prison

environment,” the witness expressly disavowed any expertise

on the matter and offered only his “impression” that Cherrix

“probably could adapt to the prison.” (Resp. App. 6).

16

“future dangerousness,” it specifically referenced the tes-

timony of his mental health expert which had under-

scored, rather than rebutted, the conclusion that Cherrix

is dangerous:

Cherrix argues that because the jury was fully \

informed of Cherrix’s sentences for other y

crimes, it “could reasonably expect” that Cher- ‘

rix had “at best” a “remote” chance of ever

being released. Thus, asserts Cherrix, any dan-

ger Cherrix might pose would be to the society

within the prison, and a “five-foot-four inch,

small framed, light weight man does not repre-

sent 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 convic-

tions 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 pro-

ductively in that environment.

wa + & «

Cherrix, 513 S.E.2d at 654-655 (emphasis added). (Ptn.

App. 23). Thus, even if petitioner’s present “due process”

17

claim were properly before this Court, it necessarily

would fail because its underlying factual premise is false.

III. PETITIONER’S CHALLENGE TO VIRGINIA’S

“VILENESS” AGGRAVATING FACTOR DOES

NOT IMPLICATE THE CONSTITUTIONALITY

OF HIS DEATH SENTENCE.

At the guilt stage of a Virginia capital trial, the pros-

ecution must prove not only that the defendant commit-

ted a premeditated murder, but also that the murder was

committed in one of several enumerated aggravating cir-

cumstances. See Va. Code § 18.2-31. In petitioner’s case,

he was convicted of premeditated murder during the

commission of, or subsequent to, forcible sodomy. See Va.

Code § 18.2-31(5).

At the penalty phase of a Virginia capital murder

trial, moreover, before the defendant even becomes eligi-

ble for a death sentence, the prosecution must prove

beyond a reasonable doubt that “there is a probability

that the defendant would commit criminal acts of vio-

lence that would constitute a continuing serious threat to

society” and/or that his conduct in committing the

offense “was outrageously or wantonly vile, horrible or

inhuman in that it involved torture, depravity of mind or

any aggravated battery to the victim.” See Va. Code

§ 19.2-264.4(C). In petitioner’s case, the jury found the

existence of both “future dangerousness” and “vileness,”

the latter finding being based upon a conclusion that

Cherrix’ offense constituted “torture or depravity of

mind.” See Cherrix, 513 S.E.2d at 655. (Ptn. App. 24). Even

then, however, the jury was free under Virginia law and

18

the court’s instructions to impose a life sentence rather

than a death sentence. (Resp. App. 7-8). See Buchanan v.

Angelone, 522 U.S. 269, 277 (1998).

Aggravating factors are not ends unto themselves;

their constitutional function is to narrow the class of

those eligible for a death sentence beyond those who

commit any murder. Lowenfield v. Phelps, 484 U.S. 231,

244-246 (1988). In Virginia, this limiting function is

accomplished at the guilt stage when the defendant is

convicted of a narrow species of capital murder. Thus,

when petitioner was convicted of premeditated murder

during the commission of, or subsequent to, forcible sod-

omy, no further narrowing was constitutionally required.

See Gregg v. Georgia, 428 U.S. 153, 164 n.9 (1976) (approv-

ing constitutionality of state system where aggravator to

be proved at penalty stage is that murder was committed

during rape). Accordingly, even if petitioner’s claim

regarding Virginia’s “vileness” aggravator had merit -

and clearly it does not® — it would raise only a matter of

state law and would not affect the constitutionality of his

death sentence. See generally Michigan v. Long, 463 U.S.

6 Petitioner is simply wrong when he asserts (Ptn. 17-18)

that language identical to Virginia’s statutory “vileness” factor

was held to be vague in Godfrey v. Georgia, 446 U.S. 420 (1980).

Indeed, such language expressly was upheld against a

“vagueness” attack in Gregg v. Georgia, 428 U.S. at 201, 202 n.54

(1976). The problem in Godfrey was caused, not by the statutory

language, but by the fact that the jury returned a truncated

verdict that omitted the “in that it involved torture, depravity of

mind, or an aggravated battery to the victim” language and by

the Georgia Supreme Court’s failure on appeal to cure that

defect. See Godfrey, 446 U.S. at 426, 428. Neither defect is present

in petitioner’s case.

19

1032, 1038 (1983) (no jurisdiction to review state law

issues on certiorari).

Moreover, Virginia is a “non-weighing” State where

aggravating circumstances do not play a decisive role in

the jury’s determination whether to impose a death sen-

tence. See Swann v. Commonwealth, 247 Va. 222, 236-237,

441 S.E.2d 195, 205, cert. denied, 513 U.S. 889 (1994); Tuggle

v. Netherland, 79 F.3d 1386, 1389 (4th Cir.), cert. denied, 519

U.S. 894 (1996). In petitioner’s case, in addition to finding

“vileness,” the jury also found the “future dangerous-

ness” aggravator. See Cherrix, 513 S.E.2d at 654. (Ptn. App.

22-23). Thus, even if, hypothetically, Virginia’s “vileness”

factor were vague, the remaining “future dangerousness”

factor would be sufficient to sustain his death sentence.

See Stringer v. Black, 503 U.S. 222, 232 (1992) (“In a non-

weighing State, so long as the sentencing body finds at

least one valid aggravating factor, the fact that it also

finds an invalid aggravating factor does not infect the

formal process of deciding whether death is an appropri-

ate penalty.”); see also Zant v. Stephens, 462 U.S. 862,

884-891 (1983); George v. Angelone, 100 F.3d 353, 362-363

(4th Cir. 1996) (applying the principle in Virginia case),

cert. denied, 519 U.S. 1103 (1997).

Petitioner’s vagueness challenge, moreover, simply

has no merit. Vagueness review is required to be “quite

deferential.” Jones v. United States, 119 S.Ct. 2090, ___

(1999); Tuilaepa v. California, 512 U.S. 967, 973 (1994). So

long as the aggravating factor has a “common-sense core

of meaning,” it must be upheld. Tuilaepa, 512 U.S. at 975.

The United States Court of Appeals for the Fourth Circuit

repeatedly has upheld the constitutionality of Virginia’s

“vileness” factor as it has been construed, limited and

20

applied by the Virginia Supreme Court. See, e.g., Breard v.

Pruett, 134 F.3d 615, 621 (4th Cir.), cert. denied, 523 U.S.

371 (1998); Bennett v. Angelone, 92 F.3d 1336, 1345 (4th

Cir.), cert. denied, 519 U.S. 1002 (1996); Turner v. Williams,

35 F.3d 872 (4th Cir. 1994), cert. denied, 514 U.S. 1017

(1995); Jones v. Murray, 976 F.2d 169, 174-175 (4th Cir.),

cert. denied, 505 U.S. 1245. (1992). This Court should defer

to the Fourth Circuit’s view. See Frisby v. Schultz, 487 U.S.

474, 482 (1988) (deference warranted because lower fed-

eral courts “better schooled in and more able to interpret

the laws of their respective States”).

While conducting its review of petitioner’s death

sentence, the Virginia Supreme Court concluded that the

jury’s finding of “vileness” was supported by the evi-

dence. See Cherrix, 513 S.E.2d at 655. (Ptn. App. 24). When

the Virginia Supreme Court thus applied its limiting con-

struction of the “vileness” circumstance, the Constitution

required nothing more. See Clemons v. Mississippi, 494 U.S.

738, 745 (1990).7

7 Petitioner’s claim that he did not have “notice” of

Virginia’s construction of the “vileness” aggravator (Ptn. 21) is

not properly before the Court because it was not raised in the

court below. See Yee, 503 U.S. at 533. It also has no merit because,

twenty years prior to Cherrix’ trial, the Virginia Supreme Court

defined “depravity of mind” as “a degree of moral turpitude

and psychical debasement surpassing that inherent in the

definition of ordinary legal malice and premeditation.” Smith v.

Commonwealth, 219 Va. 455, 478, 248 S.E.2d 135, 149 (1978), cert.

denied, 441 U.S. 967 (1979). Although the Constitution did not

require it, this limiting construction was given to the jury in

petitioner’s case. (Resp. App. 8). As for the “torture” component

of the “vileness” aggravator, this Court clearly has indicated

that the concept of “torture” needs no limiting construction in

21

IV. PETITIONER’S “UNANIMITY” CLAIM NEVER

WAS RAISED IN THE VIRGINIA SUPREME

COURT IN ANY FORM.

Under Virginia law, the “vileness” aggravating cir-

cumstance has three independent component parts: “tor-

ture,” “depravity of mind” and “aggravated battery to

the victim.” See Va. Code § 19.2-264.2. Cherrix contends

that it somehow violated the Constitution because the

penalty-stage verdict form in his case did not require that

the jury be unanimous as to which component or compo-

nents formed the basis for its “vileness” finding. Accord-

ing to petitioner, this Court’s recent decision in Richardson

v. United States, 119 S.Ct. 1707 (1999), “highlights an

additional flaw” in his death sentence. (Ptn. 24).

The insurmountable problem with this argument,

however, is that Cherrix never raised it at trial or, more

importantly, in the Virginia Supreme Court. Prior to trial,

petitioner raised a number of general challenges to Vir-

ginia’s death penalty statutes, but none pertained to Vir-

ginia’s statutorily-prescribed verdict forms. See Va. Code

§ 19.2-264.4(D). Nor did Cherrix voice any objection to

the particular verdict forms-that were submitted to the

sentencing jury in his case.

order to survive a “vagueness” challenge. See Walton v. Arizona,

497 U.S. 639, 654 (1990) (noting that in Maynard v. Cartwright,

486 U.S. 356, 364-365 (1988), this Court approved a construction

of an aggravating circumstance which limited it to murders

involving “some kind of torture or physical abuse”).

Seah ae eal eet aria

22

On appeal in the Virginia Supreme Court, none of

petitioner’s assignments of error challenged the “una- |

nimity” of the penalty-stage verdict. (Resp. App. 1-2). :

And, his Virginia Supreme Court brief raised only the :

same general constitutional challenges to the death pen-

alty statutes that he had raised in the trial court. Finally,

the Virginia Supreme Court’s listing of the challenges it

rejected bore no indication that Cherrix had raised a

“unanimity” claim. See Cherrix, 513 S.E.2d at 647-648.

(Ptn. App. 5-7).

The record, then, is clear that petitioner never raised

his present claim in the court below. Indeed, he does not

even suggest otherwise. The claim, therefore, cannot be

reviewed on certiorari. See Yee, 503 U.S. at 533.

Even if Cherrix had preserved his claim, however,

Richardson would provide no support for the proposition

that his death sentence is unconstitutional. First and fore-

most, Richardson is a case of statutory interpretation, not

constitutional mandate. See Richardson, 119 S.Ct. at 1710

(“In this case, we must decide whether the statute’s

phrase ‘series of violations’ refers to one element... or

whether those words create several elements ... .”).

Second, at issue in Richardson was the language of a

federal statue that created the elements of a criminal

offense, not an aggravating circumstance that must be

found to exist before a certain sentence may be imposed.

See Walton v. Arizona, 497 U.S. 639, 649 (1990) (Constitu-

tion does not require that aggravating circumstances be

regarded same as elements of offense); Lewis v. Jeffers, 497

U.S. 764, 782 (1990) (“aggravating circumstances are not

‘elements’ of any offense” and are subject to federal

review only for evidentiary sufficiency). Finally, to the

0 EE

23

extent Richardson even references the Constitution, it

expressly recognizes that a jury “need not always decide

unanimously which of several possible sets of underlying

brute facts make up a particular element, say, which of

several possible means the defendant used to commit an

element of the crime.” See Richardson, 119 S.Ct. at 1710.

In short, Richardson provides no support for Cherrix’

unpreserved claim. The jury’s sentencing verdict, more-

over, not only unanimously found the existence of both of

Virginia’s statutory aggravating circumstances, but also

unanimously agreed upon petitioner’s death sentence.

(Resp. App. 8-9). Even if Cherrix had preserved his claim,

the Constitution would have required no greater degree

of unanimity.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Commonwealth of Virginia

Dona_tp R. Curry

Senior Assistant Attorney General

Office of the Attorney General

900 East Main Street

Richmond, Virginia 23219

(804) 786-4624

App. 1

RESPONDENT’S APPENDIX

Assignments of Error in Virginia Supreme Court:

1. The trial court erred in denying Appellant’s Motion

to suppress statements of Appellant.

2. The trial court erred in refusing to grant the Appel-

lant’s motion to declare the Virginia death penalty

unconstitutional.

3. The trial court erred in denying Appellant’s Motion

to Adopt Procedures for Conducting voir dire exam-

ination of prospective jurors and use of jury ques-

tionnaire.

4. The trial court erred in denying Appellant’s motion

to limit Commonwealth’s evidence to criminal

offenses prior to the charged murder.

5. The trial court erred in denying Appellant adequate,

competent, mental health expert.

6. The trial court erred in denying Appellant witnesses

on issue of corrections environment and an expert to

testify as to corrections, life imprisonment condi-

tions.

7. The trial court erred in failing to give “voluntary”

instruction requested by the defense.

8. Trial Court erred in allowing Appellant’s mother’s

note to police to be admitted in that same had not

been previously provided to the Appellant in viola-

tion of Brady v. Maryland, 373 U.S. 83 (1963).

9. The trial court erred in allowing the witness Eddie

Lewis to read the statement he says he took down

from the Appellant.

10. The trial court erred in denying the Appellant’s

motion to set aside the verdict as contrary to the law

and evidence.

App. 2

11. The trial court erred by failing to properly advise the

jury of appellant’s eligibility for parole.

12. The sentence of death was imposed under the influ-

ence of passion, prejudice or other arbitrary factors

and is excessive or disproportionate to the penalty

imposed in similar cases.

Excerpts from Petitioner’s Virginia Supreme Court

brief:

[p. 31]

The United States Supreme Court held in

Eddings v. Oklahoma, 455 U.S. 104 (1982) that in

capital cases, the sentencer “can not be pre-

cluded from considering, as a mitigating factor,

any aspect of the defendant’s character or

record and any of the circumstances of the

offense that defendant proffers as a basis for a

sentence less than death.” Eddings, supra, at 110

(quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978)

(plurality opinion of Burger, C.J.)).

The Court later stated in McKoy v. North Caro-

lina, 494 U.S. 433 (1990) that a state may not cut

off in an absolute manner the presentation of

mitigating evidence, either by statute or judicial

instruction, or by limiting the inquiries to which

it is relevant so severely that the evidence could

never be part of the sentencing decision at all.”

McKoy, supra at 456 (Kennedy, J., concurring in

judgment).

[pp. 32-33]

Therefore, information relevant to a person’s

anticipated or potential future, his future dan-

gerousness, his living conditions, the ability for

App. 3

him to be dangerous in a life in a prison situa-

tion is considered to be mitigating and the

denial of this evidence by the court constitutes

an abuse of discretion and plain error.

The Eighth Amendment requires that the jury be

able to consider and give effect to all relevant

mitigating evidence offered by the defendant. In

this case, Cherrix proffered evidence regarding

correctional facilities and life in prison to dem-

onstrate to the sentencer the impact such a life

would have on Cherrix and his potential for

future dangerousness. This evidence constituted

mitigating evidence demonstrating that Cherrix

posed no undue danger to jailers or fellow pris-

oners, thus rebutting future dangerousness and

serving “as a basis for a sentence less than

death.” The court summarily denied admittance

of this evidence that thus denied Cherrix his

right to have compulsory process for witnesses

in his favor and to thereby offer that mitigating

evidence. (App. 778). Simmons v. South Carolina,

512 U.S. 154 (1994); Johnson v. Texas, 509 U.S. 350

(1993). “Where the prosecution specifically

relies on a prediction of future dangerousness in

asking for the death penalty, it is not only the

rule of Lockett and Eddings that requires that

the defendant be afforded an opportunity to

introduce evidence on this point; it is also the

elemental due process requirement that a defen-

dant not be sentenced to death ‘on the basis of

information which he had no opportunity to

deny or explain.’ ” Skipper, supra at 5 n.1 (quot-

ing Gardner, supra, at 362).

The trial court thus erred (App. 298, 778) in

denying Cherrix’s witnesses on the issue of the

corrections environment, and in denying an

App. 4

at Nn nl RN AeA hace

expert to testify as to corrections life imprison- )

ment conditions. Therefore, the determinations |

by the court amount to a denial of Due Process

under the Sixth and Fourteenth Amendments to

the United States Constitution and a new sen-

tence hearing before a new jury is requested.

[p. 36]

The trial court erred in allowing the witness

Eddie Lewis to read the statement to the court

he claims he took down from Cherrix. (App.

1478-1491).

Under Virginia law, a document must be admit-

ted as an exhibit into evidence if it is to be read

to the court by a witness. To be admitted, the

document must be properly authenticated, sat-

isfy the Best Evidence Rule, and fall under a

non-hearsay category or a hearsay exception.

However as an exception, a document may be

read to the court by a witness under the Past

Recollection Recorded premise, regardless of

whether the document is admitted or even

admissible, if the requirements of Past Recollec-

tion Recorded are met.

[p. 37]

Past Recollection Recorded allows a witness

who has no present independent recollection of

an incident to testify directly from notes or

reports, including the witness reading the notes

verbatim into the record. Officer Lewis, the wit-

ness in this situation is not testifying from inde-

pendent memory.

The Supreme Court of Virginia has established

four requirements for Past Recollection

App. 5

Recorded. First, the witness must have had first-

hand knowledge of the event; second, the writ-

ing must be an original memorandum made at

or near the time of the event when the witness

had a clear and accurate memory of it; third, the

witness must lack a present recollection of the

event; and fourth, the witness must vouch for

the accuracy of the writing. 1 Charles E. Friend,

The Law of Evidence in Virginia § 3-7 (4th ed.

1993) (citing Scott v. Greater Richmond Transit Co.,

241 Va. 300, 402 S.E.2d 214 (1991).

Excerpts from Trial Record:

[direct testimony of Officer Eddie Lewis]

Q. When you asked a question did you write it

down?

A. Yes, sir.

Q. And after you wrote the question down,

what would occur at that point?

A. He would give me an answer and I would

write that down.

Q. Did you write it down word for word?

A. Yes, sir.

Q. And did you have occasion to have to slow

him down or whatever to complete the

written answer?

A. Yes, sir. He would get talking fast and I

would tell him to slow up and I would

write it and I would read it back to him.

You would read it back to him?

A. Yes, sir.

©

Q.

A.

App. 6

And after you read it back to him would

you go on to the next question?

Yes, sir.

Now, when you would read it back to him,

would he acknowledge what you had writ-

ten?

He said that’s correct.

And then what would you do?

I would write down the next question. Read

it to him. Same procedure.

[re-direct testimony of Dr. John Bullette]

Q.

Is there any reason to think that he would

have difficulty living within a prison envi-

ronment authority?

I’m not an expert on that by any means, but

my impression is that Brian probably could

adapt to the prison. He certainly had some

experience with that and I think - I’m not

exactly sure what you’re asking, but - are

you asking if I think he would survive in

prison?

Well, I’m asking you to evaluate whether or

not he would be able to live within a

highly-structured society and if -

I think that’s the only one he would survive

him. Unstructured would be very vulner-

able to repeat.

App. 7

[penalty stage jury instructions]

INSTRUCTION NO. 16

THE COURT INSTRUCTS THE JURY:

You have convicted the defendant of an offense

which may be punished by death. You must

decide whether the defendant shall be sentenced

to death or to imprisonment for life or to

imprisonment for life and a fine of a specific

amount, but not more than $100,000.00. Before

the penalty can be fixed at death, the Common-

wealth must prove beyond a reasonable doubt

at least one of the following aggravating circum-

stances:

(1) That, after consideration of his history and

background, there is a probability that he

would commit criminal acts of violence that

would constitute a continuing serious

threat to society; or

(2) That his conduct in committing the offense

was outrageously or wantonly vile, horrible

or inhuman in that it involved torture,

depravity of mind or aggravated battery to

the victim beyond the minimum necessary

to accomplish the fact of murder.

If you find from the evidence that the Common-

wealth has proved beyond a reasonable doubt

both of these circumstances then you may fix

the punishment of the defendant at death. But if

you believe from all the evidence that the death

penalty is not justified, then you shall fix the

punishment of the defendant at:

(1) Imprisonment for life; or

App. 8

ee ee ee ney See

(2) Imprisonment for life and a fine of a speci-

fic amount, but not more than $100,000.

If you find from the evidence that the Common-

wealth have proved beyond a reasonable doubt

either of these circumstances, then you may fix

the punishment of the defendant at death. But if

you believe from all the evidence that the death

penalty is not justified, then you shall fix the

punishment of the defendant at:

(1) Imprisonment for life; or

(2) Imprisonment for life and a fine of a speci-

fic amount, but not more than $100,000.

If the Commonwealth has failed to prove

beyond a reasonable doubt at least one of these

circumstances, then you shall fix the punish-

ment at:

(1) Imprisonment for life, or

(2) Imprisonment for life and a fine of a speci-

fic amount, but not more than $100,000.

Any decision you make regarding punishment

must be unanimous.

INSTRUCTION NO. 18

THE COURT INSTRUCTS THE JURY:

“Depravity of mind” is defined as “a degree of

moral turpitude and psychical debasement sur-

passing that inherent in the definition of ordi-

nary legal malice and premeditation”.

App. 9

[penalty-stage verdict]

We, the jury, on the issue joined having found

the defendant guilty of capital murder and hav-

ing unanimously found after consideration of

his history and background that there is a prob-

ability that he would commit criminal acts of

violence that would constitute a continuous

threat to society, and having unanimously found

that his conduct in committing the offense is

outrageously or wantonly vile, horrible or inhu-

man in that it involved torture or depravity of

mind and having considered the evidence in

mitigation of the offense, unanimously fix his

punishment at death. Leon Pledger, Foreman.