# Opposition Brief — Cherrix v. Virginia

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 873

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0590%3A2. Public record. Not legal advice.