Opposition Brief — Turner v. Jabe

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FEB 21 1995

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No. 94-1238

In The

Supreme Court of the United States

October Term, 1994

- S

WILLIE LLOYD TURNER,

Petitioner,

JOHN JABE, WARDEN,

GREENSVILLE CORRECTIONAL CENTER,

Respondent.

— —__—_—__——- @ — —————e

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

$$. @ —_$_—_____—_

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

a — ——

James S. Gimore, III

Attorney General of Virginia

Rospert H. ANperson, III

Assistant Attorney General

Office of the Attorney General

900 East Main Street

Richmond, Virginia 23219

(804) 786-4624

If.

IV.

QUESTIONS PRESENTED

WHETHER PETITIONER’S ARGUMENT AGAINST

THE CONSTITUTIONALITY OF VIRGINIA’S STAT-

UTORY VILENESS PREDICATE IS NOT COGNIZA-

BLE UNDER THE “NEW RULE” DOCTRINE IN

TEAGUE V. LANE, 489 U.S. 288 (1989), AND ITS

PROGENY?

WHETHER PETITIONER’S CHALLENGE TO THE

VILENESS CIRCUMSTANCE OTHERWISE IS NOT

REVIEWABLE BECAUSE IT ONLY RAISES A STATE

LAW CLAIM AND BECAUSE PETITIONER HAS

PROCEDURALLY DEFAULTED ON IT?

WHETHER PETITIONER’S VILENESS ARGUMENT

FAILS TO RAISE A SUBSTANTIAL FEDERAL CON-

STITUTIONAL QUESTION?

WHETHER PETITIONER’S CLAIM THAT TRIAL

COUNSEL WERE INEFFECTIVE IS TOO FACT-

SPECIFIC AND TOO INSUBSTANTIAL TO WAR-

RANT THIS COURT’S DISCRETIONARY REVIEW?

il

TABLE OF CONTENTS

CAJEDI MIG? FREEONES oc bends ncccanecvecaebanes

SABLE OF CARVI BPE: ch cnddescesds aceite

CPG DRAPET 66.556 54000 00s sned eee

CONSTITUTIONAL AND STATUTORY PROVI-

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REASONS FOR DENYING THE WRIT.............

I.

IT.

Il.

IV.

PETITIONER’S ARGUMENT ATTACKING

THE CONSTITUTIONALITY OF VIRGINIA’S

STATUTORY VILENESS FACTOR IS A

NON-REVIEWABLE “NEW RULE” UNDER

TEAGUE V. LANE, 489 U.S. 288 (1989), AND

ty fF |. | re re a

PETITIONER’S VILENESS ARGUMENT

RAISES NO FEDERAL CONSTITUTIONAL

ISSUE AND OTHERWISE IS NOT REVIEW-

ABLE IN LIGHT OF HIS PROCEDURAL

SPE VNRIER cicvdndivdiantg eee eee

VIRGINIA’S STATUTORY VILENESS PREDI-

CATE, BOTH FACIALLY AND AS APPLIED

TO THE FACTS OF THIS CASE, IS CLEARLY

CUPPED LES Wr FORD ko oot. 0 then akan teaoaeees

PETITIONER’S INEFFECTIVE COUNSEL

CLAIM IS TOO FACT-SPECIFIC AND TOO

INSUBSTANTIAL TO WARRANT REVIEW

We BOGee GAPE 60sec cecavcestudereueeeee

COI MIE bby oe 0050 00e 10044

10

15

MPUNOER ois odd eee App. 1

iil

TABLE OF CITATIONS

Page

Cases

Anderson v. Butler, 858 F.2d 16 (1st Cir. 1988)..... Zi, a2

Arave v. Creech, 113 S.Ct. 1534 (1993)..... 17, 18, 19, 20

Boggs v. Bair, 892 F.2d 1193 (4th Cir. 1989), cert.

Me SO OUD sg ow cece es ven ecscecsass 9

Breard v. Virginia, 115 S.Ct. 1442 (1994).............. 10

Briley v. Bass, 750 F.2d 1238 (4th Cir. 1984), cert.

RE a. ee 9

Bunch v. Thompson, 949 F.2d 1354 (4th Cir. 1991),

ee I OP CE OE Re cc ccc ccc ees asevesecs 9

Butler v. McKellar, 494 U.S. 407 (1990)................ 8

California v. Ramos, 463 U.S. 992 (1983)..........-. 11, 12

Cardinale v. Louisiana, 394 U.S. 437 (1969) ........... 13

Caspari v. Bohlen, 114 S.Ct. 948 (1994) ...........--... 8

Clozza v. Murray, 913 F.2d 1092 (4th Cir. 1990), cert.

Cg EE es De) | ee 9

Coleman v. Thompson, 111 S.Ct. 2546 (1991) .......... 15

Coleman v. Thompson, 895 F.2d 139 (4th Cir. 1990) .... 19

Frisby v. Shultz, 487 U.S. 474 (1988) ..............--. 18

George v. Virginia, 112 S.Ct. 1591 (1992)............-. 10

Gilmore v. Taylor, 113 S.Ct. 2112 (1993) ............. 8, 9

Godfrey v. Georgia, 446 U.S. 420 (1980)........ 10, 16, 17

Graham v. Collins, 113 S.Ct. 892 (1993)................ 8

Gray v. Commonwealth, 233 Va. 313, 358 S.E.2d 157,

oo ES OE x 0d ro 10

iV

TABLE OF CITATIONS -— continued

Page

Gregg v. Georgia, 426 US. 155 (i976) «26.6 osc caess 10, 16

Harris v. Reed, 894 F.2d 871 (7th Cir. 1990) .......... 22

Hawks v. Cox, 211 Va. 91, 175 S.E.2d 271 (1970) ..... 15

Hoke v. Commonwealth, 237 Va. 303, 377 S.E.2d 595,

cert. denied, 491 U.S. 910 (1989) ................... 10

Jones v. Murray, 947 F.2d 1106 (4th Cir. 1991), cert.

dented, VIZ. T5911 CARIES os on cre een tien 9, 18, 20

Jones v. Murray, 976 F.2d 169 (4th Cir. 1992).......... 9

juvrek v. Temes, 426 U.S. G62 (I97O) « 2.55. cece seuss. 11, 12

Lewis v. jeffers, 497 US. 766 (IGMO) 6 oc icc sh eiewe save. 19

Lockhart v. Fretwell, 113 S.Ct. 838 (1993) .............. 8

Lowenfield v. Phelps, 484 U.S. 231 (1988).......... 11, 12

Maggio v. Williams, 464 U.S. 46 (1983)............ 10, 20

McAleese v. Mazurkiewicz, 1 F.3d 167 (3rd Cir. 1993) .... 22

Mickens v. Commonwealth, 247 Va. 395, 442 S.E.2d

ree Re i skin 6 ooo eee a oa ee eee ae 9

Mueller v. Commonwealth, 244 Va. 386, 422 S.E.2d

380 (1992), cert. denied, 113 S.Ct. 1880 (1993)....... 9

People v. Ortiz, 224 Ill. App. 3d 1065, 586 N.E.2d

Be Ceo a ee CREE oe eens 22

Progyatt w. Texas, G20 U.S. 202 (IGT GD oc oc nec sccccecec. 13

Sap 0. Parks, GOO UD. See (ae aa bas wake ecscess 8

Satcher v. Virginia, 113 SAL. TST9 (IFRS) «0 2 cca eens 10

Sawyer 0. Satin, S97 UD. 227 CIPI. os ccs cece dnencaee 8

Vv

TABLE OF CITATIONS - continued

Page

Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680

ti, Peeper eo rrrere Tree rece cr tee ra

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

(1978), cert. denied, 441 U.S. 967 (Serer 11

Smith v. Procunier, 769 F.2d 170 (4th Cir. 1985),

aff'd, 477 U.S. 527 | er errr errr er eck )

Spencer v. Commonwealth, 238 Va. 563, 385 S.E.2d

850 (1989), cert. denied, 493 U.S. 1093 (1990).....-. 10

Springfield v. Kibbe, 480 U.S. 257 (1987).......-.-+-:: 13

Stewart v. Commonwealth, 245 Va. 222, 427 S.E.2d

394, cert. denied, 114 S.Ct. 143 (1993)............ 9, 20

Stewart v. Virginia, 114 S.Ct. 143 (1993)........--.+-- 10

Strickland v. Washington, 466 U.S. 668 (1984).. 22, 23, 24

Stringer v. Black, 112 S.Ct. 1130 (1992)........-+.-+-- 13

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

195, cert. denied, 115 S.Ct. 234 (1994)............-. 13

Teague v. Lane, 489 U.S. 288 (1989) ...-..--- 1s eee ee 7

Texas v. Mead, 465 U.S. 1041 (1984)...........---.--- 21

Thomas v. Commonwealth, 244 Va. 1, 419 S.E.2d 606,

cert. denied, 413 SACU. 421 (1992)... 2. cece ec cccace- 20

Tuilaepa v. California, 114 S.Ct. 2630 (1994) ....11, 12, 13 17

Turner v. Bass, 753 F.2d 342 (4th Cir. 1985) ..... 2, 9, 17

Turner v. Commonwealth, 221 Va. 513, 273 S.E.2d 36

CON os kaon cack g eves $0 a ee a ee ed Oe 2

Turner v. Commonwealth, 234 Va. 543, 364 S.E.2d

483 PON oi cao canes weds de kn een eee 4,14

vi

TABLE OF CITATIONS - continued

Page

Target v. Murray, 476 US. 2B (1966)... 6 once cewncen. 3

Turner v. Virginia, 486 U.S. 1017 (1988) ............... 3

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

TRE TEES ad ae ek wes Ts es & 3, 35, 3. 2 2

Turner v. Williams, 812 F. Supp. 1400 (E.D. Va.

ia asses e's uns Gla @ ehirnie ee ed en 4, 6, 15

United States v. Johnston, 268 U.S. 220 (1925)......... 21

United States v. McGill, 11 F.3d 223 (1st Cir. 1993).... 22

United States v. Washington, 840 F. Supp. 562 (N.D.

| ee Peery eee er Serre Se eee ry a eae ier eT 22

Walton v. Arizona, 497 U.S. 639 (1990)............ 18, 19

Washington v. Murray, 952 F.2d 1472 (4th Cir. 1990) ..... 9

OTHER AUTHORITIES

ES PPR OR EEE CTI EPR EE TE REE eee 21

RE UD oad we ssbs keds oeladesaVestsyewead 13

le OE et PEPTPereeTrir erik err 6

No. 94-1238

4

In The

Supreme Court of the United States

October Term, 1994

>

WILLIE LLOYD TURNER,

Petitioner,

JOHN JABE, WARDEN,

GREENSVILLE CORRECTIONAL CENTER,

Respondent.

+

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

— +

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

°

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fourth Circuit is reported at 35 F.3d 872 (4th Cir.

1994). The opinion of the United States District Court for

the Eastern District of Virginia, Alexandria Division, is

reported at 812 F. Supp. 1400 (E.D. Va. 1993).

¢

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The relevant constitutional and statutory provisions

involved are recited in the appendix to the petition at

175-178.

STATEMENT OF THE CASE

Petitioner was indicted by a Southampton County,

Virginia grand jury for the capital murder of W. Jack

Smith, Jr. on July 12, 1978.' After a change of venue, the

trial was held in Northampton County. After a jury trial

in which Turner was convicted on all counts, the trial

court on February 6, 1980 sentenced him to death on the

capital murder conviction.? Thereafter, the Supreme

Court of Virginia affirmed. Turner v. Commonwealth, 221

Va. 513, 273 S.E.2d 36 (1980). After petitioner unsuc-

cessfully sought certiorari in this Court and habeas relief

in the state courts and federal district court in Norfolk, he

appealed to the Fourth Circuit, which affirmed the dis-

trict court’s denial of habeas relief. Turner v. Bass, 753 F.2d

342 (4th Cir. 1985).

1 Turner was charged under former § 18.2-31(d) of the Code

of Virginia with the premeditated killing of Smith in the com-

mission of a robbery while armed with a deadly weapon. Turner

was also indicted for, and convicted of, use of a firearm in the

commission of murder and possession of a sawed-off shotgun in

the commission of robbery.

2 All subsequent references to this trial as well as the direct

appeal and state and federal habeas corpus proceedings stem-

ming from it will hereinafter be designated as “Turner I.”

This Court then granted certiorari. While upholding

Turner’s capital murder conviction, the Court vacated his

death sentence and ordered a new sentencing hearing.

Turner v. Murray, 476 U.S. 28 (1986).

After the return of this case to the Circuit Court of

Southampton County, the court again ordered a change of

venue, this time to Prince Edward County. On January 12,

1987, after a four-day resentencing trial, the jury sen-

tenced petitioner to death. On March 16, 1987, the trial

court upheld the jury’s sentence.* On appeal, the

Supreme Court of Virginia again affirmed. Turner v. Com-

monwealth, 234 Va. 543, 364 S.E.2d 483 (1988). This Court

then denied certiorari. Turner v. Virginia, 486 U.S. 1017

(1988).

Turner then filed a habeas corpus petition in the

Circuit Court of Southampton County. After conducting

oral argument on respondent's motion to dismiss, the

state court dismissed the majority of the allegations but

ordered a plenary hearing on several ineffective counsel

claims. The circuit court conducted the evidentiary hear-

ing on September 11-13, 1989. On July 5, 1990, the circuit

court dismissed the petition in its entirety. On September

5, 1990, the state court denied petitioner’s motion for

leave to amend the habeas petition and to modify the

final order. The Supreme Court of Virginia denied

Turner’s petition for appeal by order dated April 30,

1991.

* Further references to this resentencing proceeding as well

as the direct appeal and state and federal habeas proceedings

arising out of it will be designated as “Turner II.”

Turner next filed a habeas corpus petition in the

United States District Court in Alexandria. After conduct-

ing oral argument on respondent’s motion to dismiss on

August 28, 1992, the district court on February 1, 1993,

entered an order denying the habeas petition. Turner v.

Williams, 812 F. Supp. 1400 (E.D. Va. 1993). On appeal, the

Fourth Circuit affirmed the district court’s ruling. Turner

v. Williams, 35 F.3d 872 (4th Cir. 1994). On October 17,

1994, the Fourth Circuit denied rehearing. On October 24,

1994, the mandate of the Fourth Circuit issued.

STATEMENT OF FACTS

On July 12, 1978, petitioner entered Smith Jewelers

located in Franklin, Virginia at about 11:20 a.m.4 Using a

sawed-off shotgun wrapped in a towel, Turner silently

motioned the various customers and employees to line up

against the counter of one side of the store and then

forced the proprietor, W. Jack Smith, Jr., to stuff money

from the cash register into some jewelry bags.° As he did

this, Smith activated a silent alarm to the police depart-

ment. Then, Mrs. Judith Cosby came into the store.

4 The facts relevant to the capital murder are recited in the

opinion of the Supreme Court of Virginia on direct appeal in

Turner II. Turner v. Commonwealth, 234 Va. at 546, 364 S.E.2d at

484-485.

5 In the resentencing hearing, the Commonwealth read into

evidence the verbatim testimony of the witnesses who had been

present in the jewelry store in the minutes leading up to the

murder of Jack Smith and who later testified in Turner I.

Petitioner likewise motioned her to go to the counter and

kicked her as she did so.

Then, after Officer Alan D. Bain, Jr. came in and

asked Smith why the alarm was on and whether anything

was wrong, Turner forced him to give up ‘his revolver.

Turner put it in his pocket while continuing to hold the

shotgun. Petitioner then made Smith turn the alarm off

and fill up more jewelry bags with store merchandise.

Turner subsequently took the pistol from his pocket

and put it in his right hand, switching the shotgun to his

left hand. As he tossed the pistol, it discharged and the

shot went towards the back of the store. After Bain

assured Turner that no one was coming in the back,

petitioner went to the middle of the room, “just looked at

Mr. Smith and fired the [pistol] at” him, causing him to

“yell like a puppy and [fall] to the floor. .. . ” Smith fell

down behind the counter and began bleeding from a

head wound. While it did not cause Smith’s death, the

shot did injure his brain. Turner was about 12 to 15 feet

from Smith when he “just pointed right at [him] and

fired” without warning or provocation.

At this point, Officer Bain attempted to reason with

Turner and promised to take him out of town if he would

not shoot anyone else. Petitioner replied, however, that

he was “going to kill that nigger for snitching on me.” As

Smith lay helpless and “gurgling” on the floor, Turner

approached him, looked down at him over the counter,

and shot him two times in the chest in a “rapid fire”

manner. These shots caused Smith to jump; he did not

move after that. Medical testimony established that either

of these latter two shots would have been independently

fatal. Thereafter, Bain knocked the firearms away from

petitioner and was able to subdue him until other police

officers came to the scene.

After the Commonwealth rested, the defense pre-

sented no mitigating evidence, based on trial counsel’s

tactical judgment that any such evidence might be sub-

stantially outweighed by aggravating evidence put on in

rebuttal by the Commonwealth. At the conclusion of the

trial, the jury sentenced Turner to death, based solely

upon a finding that the murder had been “vile.” See

§ 19.2-264.4 of the Code of Virginia. On March 16, 1987,

the trial court upheld the jury’s sentence and imposed the

death penalty.

Thereafter, as found by the state habeas circuit court,

trial counsel, two highly experienced and able attorneys,

diligently investigated available lay and expert mitigat-

ing evidence in preparation for the resentencing proceed-

ing.© For example, counsel obtained substantial evidence

as to Turner’s role in the planning and execution of the

escape of six Virginia death row inmates from Mecklen-

burg Correctional Center in May, 1984, and the attempted

escape of Turner and several cther death row prisoners in

November, 1985. Counsel also examined petitioner’s

prison file and mental health records and interviewed

several of Turner’s relatives about his background. Trial

counsel decided not to defend on the basis of any mental

6 The Fourth Circuit’s opinion, which was based upon the

state habeas court’s factual findings as well as its own indepen-

dent review of the record, recites the facts relevant to Turner’s

ineffective counsel claim. Turner v. Williams, 35 F.3d at 895-904.

See also Turner v. Williams, 812 F. Supp. at 1430-1432.

en shine

health disorder; the habeas court found that Turner had

no statutory or non-statutory mental health mitigating

circumstance.

Finally, the state habeas circuit court found that

counsel were prepared to put on both expert and lay

evidence in mitigation. They made an informed decision

to rest, however, without putting on any evidence, based

primarily on their assessment that any evidence they

might present would be overwhelmed by the rebuttal

evidence which the Commonwealth had held back in its

case-in-chief.

REASONS FOR DENYING THE WRIT

I. PETITIONER’S ARGUMENT ATTACKING THE

CONSTITUTIONALITY OF VIRGINIA’S STATU-

TORY VILENESS FACTOR IS A NON-REVIEW-

ABLE “NEW RULE” UNDER TEAGUE V. LANE, 489

U.S. 288 (1989), AND ITS PROGENY.

Petitioner’s challenge to Virginia’s statutory vileness

predicate is not cognizable under the “new rule” doctrine

in Teague v. Lane and its progeny. In Teague, this Court

ruled that new federal constitutional rules do not apply

on federal habeas corpus review to cases which are final

unless either of two narrow exceptions exists. This Court

stated that “a case announces a new rule if the result was

not dictated by precedent existing at the time the defen-

dant’s conviction became final.” 489 U.S. at 301 (emphasis

in original). Subsequently, the Court has stated that while

it has “offered various formulations of what constitutes a

new rule, ‘meaningfully for the majority of cases,’ the

Teague definition of a new rule is the governing test.

Gilmore v. Taylor, 113 S.Ct. 2112, 2116 (1993); Butler v.

McKellar, 494 U.S. 407, 412 (1990). Thus, consistent with

principles of comity and finality, the new rule doctrine

“validates reasonable, good-faith interpretations of exist-

ing precedents made by state courts even if they are

shown to be contrary to later decisions.” Butler, 494 U.S.

at 414. See also Saffle v. Parks, 494 U.S. 484, 488 (1990). So

long as a decision “was susceptible to debate among

reasonable minds” at the time the prisoner’s conviction

became final, it constitutes a new rule under Teague.

Graham v. Collins, 113 S.Ct. 892, 902 (1993); Butler, 494 U.S.

at 414.

In resolving “the determinative question [as to]

whether reasonable jurists” who “survey[ed] the legal

landscape as it then existed” at the time the prisoner’s

case became final would have been obligated to accept

his claim, Graham, 113 S.Ct. at 898, 903, this Court has

relied upon the existence of federal and state authority

adverse to the prisoner’s position as a basis for invoking

Teague. See, e.g., Caspari v. Bohlen, 114 S.Ct. 948, 955-956

(1994); Butler, 494 U.S. at 414. This Court even has cited

decisions which were against the weight of authority and

dissenting opinions in its own earlier cases to hold that

Teague barred review of a federal habeas claim. See Sawyer

v. Smith, 497 U.S. 227, 236-241 (1990). Further, even cases

decided after a prisoner’s conviction has become final

bear upon the Teague inquiry, so long as they were

decided adversely to him. See Bohlen, 114 S.Ct. at 956;

Gilmore, 113 S.Ct. at 2117; Graham, 113 S.Ct. at 900. See also

Lockhart v. Fretwell, 113 S.Ct. 838 (1993). Finally, in

considering a challenge to the constitutionality of jury

instructions, this Court has viewed the long-standing

state practice of using such instructions as “strong evi-

dence of the reasonableness of the interpretations given

existing precedent by state courts.” Gilmore, 113 S.Ct. at

2119 n.3.

Particularly in light of Gilmore v. Taylor, petitioner

cannot satisfy Teague’s threshold test. First, in both Turner

I and Turner II, as well as in numerous other cases involv-

ing similar challenges to the statutory vileness predicate

by other Virginia death row prisoners, the Fourth Circuit

regularly has upheld the constitutionality of this factor,

both on its face and/or as applied. See Turner v. Williams,

35 F.3d at 891-894; Turner v. Bass, 753 F.2d at 350-353; Jones

v. Murray, 976 F.2d 169 (4th Cir. 1992); Bunch v. Thompson,

949 F.2d 1354, 1366-1367 (4th Cir. 1991), cert. denied, 113

S.Ct. 20 (1992); Jones v. Murray, 947 F.2d 1106, 1116-1119

(4th Cir. 1991), cert. denied, 112 S.Ct. 1591 (1992); Clozza v.

Murray, 913 F.2d 1092, 1105 (4th Cir. 1990), cert. denied,

111 S.Ct. 1123 (1991); Boggs v. Bair, 892 F.2d 1193,

1196-1197 (4th Cir. 1989), cert. denied, 497 U.S. 1043 (1990);

Smith v. Procunier, 769 F.2d 170, 173-174 (4th Cir. 1985),

aff'd, 477 U.S. 527 (1986); Briley v. Bass, 750 F.2d 1238,

1242-1246 (4th Cir. 1984), cert. denied, 470 U.S. 1088 (1985).

See also Washington v. Murray, 952 F.2d 1472, 1480 (4th Cir.

1990).

Similarly, the Supreme Court of Virginia consistently

has rejected arguments much like Turner’s. See, e.g.,

Mickens v. Commonwealth, 247 Va. 395, 403, 442 S.E.2d 678,

683-684, vacated on other grounds, 115 S.Ct. 307 (1994);

Stewart v. Commonwealth, 245 Va. 222, 229, 427 S.E.2d 394,

399-400, cert. denied, 114 S.Ct. 143 (1993); Mueller v. Com-

monwealth, 244 Va. 386, 393, 422 S.E.2d 380, 385 (1992),

10

cert. denied, 113 S.Ct. 1880 (1993); Spencer v. Common-

wealth, 238 Va. 563, 569, 385 S.E.2d 850, 853-854 (1989),

cert. denied, 493 U.S. 1093 (1990); Hoke v. Commonwealth,

237 Va. 303, 305, 377 S.E.2d 595, 597, cert. denied, 491 U.S.

910 (1989); Gray v. Commonwealth, 233 Va. 313, 320-321,

358 S.E.2d 157, 161, cert. denied, 484 U.S. 873 (1987). This

uninterrupted line of state and federal decisions uphold-

ing the constitutionality of Virginia’s vileness circum-

stance demonstrates the applicability of Teague to this

case.

Finally, less than four months ago, this Court rejected

an almost identical attack upon Virginia’s vileness predi-

cate in Breard v. Virginia, 115 S.Ct. 1442 (1994). Likewise,

this Court regularly has denied review of similar vileness

arguments raised by other Virginia death row prisoners.

See, e.g., Stewart v. Virginia, 114 S.Ct. 143 (1993); Satcher v.

Virginia, 113 S.Ct. 1319 (1993); George v. Virginia, 112 S.Ct.

1591 (1992). Consequently, Teague mandates rejection of

Turner’s petition. See Maggio v. Williams, 464 U.S. 46,

51-52 (1983) (significance of prior denials of certiorari on

same issue).

Il. PETITIONER’S VILENESS ARGUMENT RAISES

NO FEDERAL CONSTITUTIONAL ISSUE AND

OTHERWISE IS NOT REVIEWABLE IN LIGHT OF

HIS PROCEDURAL DEFAULT.

Turner asserts that Virginia’s vileness circumstance is

facially unconstitutional under Gregg v. Georgia, 428 U.S.

153 (1976), and Godfrey v. Georgia, 446 U.S. 420 (1980).

Further, the jury instruction on the “depravity of mind”

component of the vileness factor, which the trial court

EE EEEEeeV7

11

incorporated from the limiting language adopted in Smith

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

denied, 441 U.S. 967 (1979), allegedly was too unclear to

channel the sentencer’s discretion by objective standards

and genuinely to narrow the class of deathteligible mur-

derers. Finally, the Supreme Court of Virginia on direct

appeal in death penalty cases supposedly has com-

pounded these claimed deficiencies by applying the vile-

ness factor in an arbitrary, overly broad fashion.

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

v. California, 114 S.Ct. 2630 (1994), demonstrate that

Turner’s arguments implicate no constitutional guaran-

tees. In Lowenfield, this Court made clear that the only

constitutional significance of statutory aggravating fac-

tors is to narrow the class of death-eligible murderers.

This narrowing function, however, may be accomplished

equally as well in the guilt phase. That is, a state’s defini-

tion of capital murder may be sufficiently restrictive that

its statutory aggravating factors in the penalty phase are

constitutionally superfluous. Thus, in Lowenfield, this

Court upheld a Louisiana death penalty even though the

sole aggravating circumstance found in the sentencing

stage repeated one of the elements of the capital crime.

See also California v. Ramos, 463 U.S. 992, 1000 n.11 (1983);

Zant v. Stephens, 462 U.S. 862, 869 (1983); Jurek v. Texas,

428 U.S. 262, 270-271 (1976).

In Tuilaepa, this Court stated that the Eighth Amend-

ment addresses two primary concerns in capital sentenc-

ing schemes - the “eligibility decision” and the “selection

decision.” 114 S.Ct. at 2634. Turner’s petition deals only

with the former; a defendant constitutionally is eligible

for the death penalty only upon conviction for an offense

12

for which it is an appropriate punishment. Eligibility for

the death penalty requires the trier of fact to “convict the

defendant of murder and find one ‘aggravating circum-

stance’ (or its equivalent) at either the guilt or penalty

phase. The aggravating circumstance may be contained in

the definition of the crime or in a separate sentencing

factor (or in both).” Tuilaepa, 114 S.Ct. at 2634-2635 (cita-

tions omitted). Moreover, the aggravating circumstance

cannot apply to every person convicted of murder but

only to a subclass and, further, it cannot be unconstitu-

tionally vague. 114 S.Ct. at 2635.

Turner was convicted of premeditated murder in the

commission of robbery while armed with a deadly

weapon. Consistent with Lowenfield and Tuilaepa, Turner's

conviction for capital murder, which effectively incorpo-

rated several aggravators, provided the constitutionally

necessary narrowing function, wholly apart from the

findings of the jury in the penalty phase or the Supreme

Court of Virginia on direct appeal.” See California v.

Ramos, 463 at 995 n.1, 1008 (jury’s finding during guilt

phase of capital murder trial of special circumstance that

murder had been committed during robbery was deter-

mination that defendant was eligible for death penalty,

thereby leaving it free to determine whether death was

appropriate punishment). See also Jurek v. Texas, 428 U.S.

at 265-266 n.1 (statutory scheme upheld wherein one of

7 In his petition, Turner virtually concedes as much: “ Every

murder defendant eligible for the death penalty in

Virginia ... has committed a crime that is, by definition, willful,

deliberate and premeditated. Every death-eligible murder is a

crime surpassing other willful, deliberate and cruel acts against

another.” (Pet. at 20; citations omitted; emphasis in original).

Le

13

five capital murders was intentional murder in course of

robbery); Proffitt v. Texas, 428 U.S. 242, 248-249 (1976)

(death penalty scheme constitutional in which one

aggravator was murder committed during robbery).

Because the premeditated murder during the armed rob-

bery which Turner was found to have committed applied

only to a subclass of murderers and because this category

of capital murder clearly was not vague, any constitu-

tional imperatives concerning the eligibility decision

were satisfied. Tuilaepa, 114 S.Ct. at 2635.°

Further, even if Turner’s vileness claim raised a fed-

eral constitutional question, it is fundamental that this

Court will not review a claim which the petitioner failed

to preserve in the state courts. See Springfield v. Kibbe, 480

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

See also U.S.S.Ct. R. 14.1(h) (petitioner must demonstrate

that federal question “was timely and properly raised so

as to give this Court jurisdiction to review the judg-

ment.”).

8 Furthermore, even if Virginia’s vileness factor were

unconstitutional, because Virginia is a non-weighing State, see

Swann v. Commonwealth, 247 Va. 222, 236-237, 441 S.E.2d 195,

205, cert. denied, 115 S.Ct. 234 (1994), Turner would not be enti-

tled to relief. That is, the aggravators found when he was con-

victed of capital murder during the commission of an armed

robbery render this issue academic. See Stringer v. Black, 112

S Ct. 1130, 1137 (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 appro-

priate penalty.”). See also Tuilaepa, 114 S.Ct. at 2642 (in non-

weighing State, “we have not subjected aggravating circum-

stances to a vagueness analysis.”). (Blackmun, J., dissenting).

—

14

At the resentencing, Turner did not object to Instruc-

tions 10 and 11, which repeated verbatim the Supreme

Court of Virginia’s limiting definitions of “aggravated

battery” and “depravity of mind.” Thereafter, on direct

appeal in Turner II, Turner did not attack the vileness

factor as facially unconstitutional? or challenge the limit-

ing construction of the aggravated battery and depravity

of mind components of the vileness circumstance. (App.

1-17). Concerning the latter component, Turner asserted

only that depravity of mind should be construed to mean

“a degree of moral turpitude and psychical debasement

that far surpasses that inherent in the definition of legal

malice and premeditation.” (App. 12). (Emphasis in origi-

nal). Petitioner expressly conceded that Virginia’s limit-

ing construction of depravity of mind could potentially

provide principled differentiation between capital and

non-capital cases. (App. 11).

Finally, on direct appeal, Turner presented virtually

no argument that the scope of proportionality review by

the Supreme Court of Virginia in death penalty cases is

generally inadequate. Nor did petitioner, upon the State

Supreme Court’s decision in Turner II, seek a rehearing

challenging the review of his own death sentence.

Instead, Turner argued that his conduct did not amount

to depravity of mind or aggravated battery within the

meaning of the vileness predicate. (App. 8-11). Turner

relied upon the brutality reflected in other Virginia death

penalty cases to argue that the facts here were not equally

“vile.” (App. 9-16).

9 In fact, the Supreme Court of Virginia noted as much in

Turner II. See 234 Va. at 552, 364 S.E.2d at 488.

aE

15

When petitioner raised the present claims in his state

habeas appeal, the Supreme Court of Virginia dismissed

them as partly repetitive of his arguments on direct

appeal, and thus not reviewable under Hawks v. Cox, 211

Va. 91, 175 S.E.2d 271 (1970), and partly new, and thus

defaulted under Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d

680 (1974). (App. 18-19). See also Turner v. Williams, 812 F.

Supp. at 1411-1414. The State Supreme Court’s dismissal

order corresponded, without exception, to respondent's

arguments in his brief in opposition concerning which

grounds were repetitious, which were defaulted, and

which were a mixture of the two. Thus, no less than in

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

Court of Virginia unambiguously found the present claim

defaulted. Accordingly, this Court should not review

petitioner’s defaulted claim.

III. VIRGINIA’S STATUTORY VILENESS PREDI-

CATE, BOTH FACIALLY AND AS APPLIED TO

THE FACTS OF THIS CASE, IS CLEARLY CON-

STITUTIONAL.

Petitioner’s challenge to the vileness circumstance,

even if reviewable, has no merit. Instruction No. 1

informed the jury in Turner II that for it to sentence

Turner to death, it must find beyond a reasonable doubt

at least one of the two statutory aggravating factors,

including that petitioner’s conduct “in committing the

offense was outrageously or wantonly vile, horrible or

inhuman, in that it involved depravity of mind or aggra-

vated battery to the victim.” Turner v. Williams, 812 F.

Supp. at 1400 n.25. Incorporating the Supreme Court of

Virginia’s limiting construction of the vileness factor,

16

Instruction No. 10, without objection, defined an aggra-

vated battery as one “which qualitatively and quan-

titatively is more culpable than the minimum necessary

to accomplish an act of murder.” Turner v. Williams, 35

F.3d at 891. Likewise, Instruction No. 11, again without

objection, 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.” Id. The jury sentenced Turner to

death based on its finding that the murder was “outra-

geously and wantonly vile, horrible, and inhuman in that

it involved depravity of mind or aggravated battery to

the victim beyond the minimum necessary to accomplish

the murder... . ” (App. 20).

Turner first asserts that, consistent with Gregg v. Geor-

gia, Virginia’s vileness circumstance is facially vague and

must be suitably limited by jury instructions and appel-

late review to pass constitutional muster. In upholding

Georgia’s identical vileness criterion in Gregg, however,

this Court stated: “[T]here is no reason to think that juries

will not be able to understand” this phrase. 428 U.S. at

202 n.54.

Petitioner’s reliance upon Godfrey is equally baseless.

There, the prosecution specifically conceded the absence

of “torture” and “aggravated battery,” and the jury

merely found “that the offense of murder was outra-

geously or wantonly horrible and inhuman.” 466 U.S. at

428. There was “nothing in these words, standing alone,

that implies any inherent restraint on the arbitrary and

capricious infliction of the death sentence.” Godfrey, 446

U.S. at 428. Moreover, on direct appeal, the Georgia

Supreme Court did not apply its own previous limiting

17

construction of the Georgia vileness factor. 446 U.S. at

429-432. Under these attendant circumstances, this Court

held that the State Supreme Court had construed the

vileness criterion too broadly. 446 U.S. at 432. See also

Turner v. Bass, 753 F.2d at 350-353.

This Court made clear in Tuilaepa that “our vagueness

review is quite deferential. . . . [A] factor is not uncon-

stitutional if it has some ‘common-sense core of mean-

ing. . . . that criminal juries should be capable of

understanding. ...’” 114 S.Ct. at 2635-2636. This Court’s

holding in Arave v. Creech, 113 S.Ct. 1534 (1993), reflects

this deferential approach. In Creech, the trial court found

as an aggravating factor that the petitioner had “by the

murder... exhibited utter disregard for human life.” 113

S.Ct. at 1539. On direct appeal, the Idaho Supreme Court

affirmed this finding after applying its limiting construc-

tion of “utter disregard” to include “acts or circumstances

surrounding the crime which exhibit the highest, the

utmost, callous disregard for human life, i.e., the cold-

blooded, pitiless slayer.” 113 S.Ct. at 1539. This Court

concluded that this limiting language adequately nar-

rowed the class of murderers eligible for the death pen-

alty.1°

Consistent with Tuilaepa and Creech, the definition of

“depravity of mind” given to the jury in Turner II was

constitutionally sufficient. The State Supreme Court's

10 It is important to note that in sharp contrast to the case at

bar, Idaho defined capital murder very broadly. 113 S.Ct. at

1542-1543. Thus, the aggravator at issue in Creech had overrid-

ing constitutional significance, unlike the vileness factor in

Turner II.

18

limiting construction of this term stressed the aspects of a

defendant’s state of mind that distinguish him from an

“ordinary murderer” in terms of malice and premedita-

tion. This concept of extreme moral turpitude and

debasement, like Arizona’s “depraved” factor, Walton v.

Arizona, 497 U.S. 639, 655 (1990) (“relishes the murder,

evidencing debasement or perversion”), and Idaho’s

“utter disregard” circumstance, Creech, 113 S.Ct. at 1541

(“cold blooded” and “pitiless”), adequately guides the

sentencer even though the definition may be not “suscep-

tible to mathematical precision.” Walton, 497 U.S. at 655.

As in Creech, the depravity of mind component focused

on the objective issue of Turner’s state of mind rather

than the “pejorative adjectives . . . that describe[d his]

crime as a whole... .” 113 S.Ct. at 1541. Viewing this

term in conjunction with the specific and narrow “tor-

ture” and “aggravated battery” components, the jury in

Turner II clearly understood that it did not have unfet-

tered discretion to impose the death penalty.

In Jones v. Murray, 947 F.2d 1106 (4th Cir. 1991), the

Fourth Circuit specifically rejected the death row pris-

oner’s argument that the Smith limiting construction of

“depravity of mind” was unintelligible to an average

juror. 947 F.2d at 1119. This Court should not second

guess the Fourth Circuit’s conclusion. See Frisby v.

Schultz, 487 U.S. 474, 482 (1988) (deference warranted

because lower federal courts “are better schooled in and

more able to interpret the law of their respective States”).

Moreover, wholly apart from the adequacy of the jury

instructions on the vileness factor, the State Supreme

Court’s review of Turner’s death sentence in Turner II

served to accomplish the narrowing of the death-eligible

19

class of murderers. See Walton v. Arizona, 497 U.S. at

653-655; Coleman v. Thompson, 895 F.2d 139, 146-147 (4th

Cir. 1990). The State Supreme Court’s findings concerning

the vileness predicate were rational and supported by the

evidence. See Lewis v. Jeffers, 497 U.S. 764, 780-783 (1990).

Turner’s complaints concerning the appellate review

undertaken by the Supreme Court of Virginia, both in this

case and in death penalty cases generally, is belied by his

own prior characterization of such review. In the Fourth

Circuit, Turner argued that the facts of this case bore “no

resemblance to the remarkably violent behavior typical in

death penalty cases under the [Virginia] vileness factor”

or “the pattern of extraordinary brutality typical of vile-

ness cases....” (App. 21-25). The Fourth Circuit noted as

much in rejecting Turner’s claim that Virginia imposes

the death penalty arbitrarily and capriciously. Turner v.

Williams, 35 F.3d at 893 n.20.

Moreover, this Court made clear in Creech that the

type of complaints advanced by Turner against the

Supreme Court of Virginia’s appellate review of death

sentences is inapposite. There, this Court stated:

That the Idaho courts may find first-degree mur-

derers to be ‘cold-blooded’ and ‘pitiless’ in a

wide range of circumstances is unsurprising. It

is also irrelevant. . . . We did not undertake a

comparative analysis of state court decisions in

Walton. . . . Under our precedents, a federal

court may consider state court formulations of a

limiting construction to ensure that they are

consistent. But our decisions do not authorize

review of state court cases to determine whether

20

a limiting construction has been applied consis-

tently.

113 S.Ct. at 1543, 1544 (emphasis in original).

No less than the Idaho Supreme Court in Creech, the

Supreme Court of Virginia consistently has invoked and

applied the limiting construction of “depravity of mind”

in death penalty cases. See, e.g., Stewart v. Commonwealth,

245 Va. 222, 245-247, 427 S.E.2d 394, 409, cert. denied, 114

S.Ct. 143 (1993); Thomas v. Commonwealth, 244 Va. 1, 25,

419 S.E.2d 606, 619-620, cert. denied, 113 S.Ct. 421 (1992).

The Supreme Court of Virginia’s determination in Turner

II that the Commonwealth’s evidence proved the deprav-

ity of mind component of the vileness factor under the

Smith limiting definition was entirely consistent with its

approach in death penalty cases generally. In this regard,

the Fourth Circuit specifically upheld the adequacy of the

appellate review undertaken by the State Supreme Court

in Turner II]. See also Jones v. Murray, 947 F.2d at 1118.

Finally, this Court regularly has denied certiorari

review on almost identical attacks upon Virginia’s vile-

ness circumstance. (See page 10 of this Brief). Thus, as in

Maggio v. Williams, where this Court refused to stay an

execution in Louisiana to consider a proportionality

review argument much like those unsuccessfully raised

by other Louisiana prisoners, this Court’s previous

denials of certiorari are “ample evidence that [it does] not

believe” that the present petition justifies the granting of

certiorari. 464 U.S. at 51-52.

21

IV. PETITIONER’S INEFFECTIVE COUNSEL CLAIM

IS TOO FACT-SPECIFIC AND TOO INSUBSTAN-

TIAL TO WARRANT REVIEW BY THIS COURT.

Petitioner complains that trial counsel, unreasonably

chose not to present mitigating evidence at the resentenc-

ing proceeding which he had promised the jury in his

opening statement. Further, Turner attacks this failure, in

part, as the product of trial counsel’s allegedly inade-

quate pretrial investigation and challenges counsel's fail-

ure to introduce a case in mitigation as unreasonably

foregoing “[clompelling” mitigating evidence. (Pet. at

24).

This argument clearly is inadequate to warrant this

Court’s discretionary review. Certainly, Turner offers no

special or important reasons for the granting of certiorari.

Moreover, the Court does “not grant certiorari to review

evidence and discuss specific facts.” United States v. John-

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

U.S. 1041 (1984) (Stevens, J.); U.S.S.Ct. R. 10.1. Thus,

petitioner’s complaints against counsel, which focus

upon the adequacy of their pretrial investigation and

reasonableness of their decision to rest without putting

on mitigating evidence, are too fact-specific to justify the

granting of certiorari.

Further, Turner’s contention that certiorari is appro-

priate to resolve an alleged contlict between various cir-

cuits concerning whether the failure to present evidence

recited in the opening statement is per se ineffective repre-

sentation has no merit. Petitioner’s reliance upon Ander-

son v. Butler, 858 F.2d 16 (1st Cir. 1988), is misplaced. (Pet.

fe

at 23-24).'1! As the Fourth Circuit pointed out in Turner v.

Williams, 35 F.3d at 903-904, the First Circuit in United

States v. McGill, 11 F.3d 223 (1st Cir. 1993), clarified its |

prior holding in Anderson, holding that “the determina-

tion of inefficacy [concerning counsel’s failure to present '

a promised witness] is necessarily fact-based.” 11 F.3d at

227. Thus, the alleged conflict between the lower courts

concerning the impact of an attorney’s failure to present

promised evidence is non-existent. !2

11 A cursory review of the other cases cited by Turner

readily establishes that none of them dispensed with the two-

pronged test for determining an ineffective counsel claim estab-

lished in Strickland v. Washington, 466 U.S. 668 (1984). For exam-

ple, in Harris v. Reed, 894 F.2d 871 (7th Cir. 1990), the Seventh

Circuit applied Strickland and concluded that “[uJnder the cir-

cumstances” counsel’s “overall performance” was constitu-

tionally ineffective representation. 894 F.2d at 878. See also

McAleese v. Mazurkiewicz, 1 F.3d 159, 167 (3rd Cir. 1993) (failure

to produce evidence promised in opening statement was “not

necessarily ineffective”); United States v. Washington, 840 F.

Supp. 562, 576 (N.D. II]. 1993) (“based on the facts,” counsel’s

failure to present witness mentioned in opening statement was

not ineffective under either prong of Strickland); People v. Ortiz, |

224 Ill. App. 3d 1065, 1072, 586 N.E.2d 1384, 1389 (1992) (defense

counsel’s failure to present promised witness, which resulted in

part from his misunderstanding concerning proper scope of

cross-examination and redirect examination, was ineffective

under Strickland test).

12 Even if Anderson still was the First Circuit’s view on this

issue, it would be too slender a reed to warrant the granting of

certiorari. As then-Judge Breyer noted in his dissent in Ander-

son, the majority holding which presumed prejudice as a matter

of law cannot be reconciled with Strickland’s fact-based inquiry.

858 F.2d at 22 (Breyer, J., dissenting).

23

Finally, both the Fourth Circuit and the district court

carefully reviewed the state record, including the lengthy

findings of fact of the state habeas circuit court, and

concluded that defense counsel’s pretrial irivestigation of

mitigating evidence had been effective and that their

decision to rest at the resentencing without putting on a

case in mitigation had been reasonable. 35 F.3d at 894-904;

812 F. Supp. at 1428-1432. Likewise, both lower courts

properly concluded that Turner had not been prejudiced

under Strickland by counsel’s actions. 35 F.3d at 896-898;

812 F. Supp. at 1429-1432. The record overwhelmingly

establishes the thoroughness of defense counsel’s pretrial

investigation as well as the reasonableness of their deci-

sion to rest without formally introducing mitigating evi-

dence; thus Turner has provided no justification for this

Court’s review of his unremarkable Strickland claim.

4

24

CONCLUSION

Petitioner’s arguments against the vileness circum-

stance raise no federal constitutional issue, are not cogni-

zable under the new rule and procedural default

doctrines, and otherwise advance no significant federal

constitutional question. Likewise, petitioner’s garden-

variety ineffective counsel contention raises nothing more

than a routine Strickland claim. Accordingly, the petition

for a writ of certiorari should be denied.

Respectfully submitted,

James S. Gitmore, III

Attorney General of Virginia

Rospert H. ANperson, III

Assistant Attorney General

Office of the Attorney General

900 East Main Street

Richmond, Virginia 23219

(804) 786-4624

App. 1

APPENDIX

IN THE

Supreme Court of Virginia

AT RICHMOND

RECORD NO. 870554

WILLIE LLOYD TURNER,

Appellant,

V.

COMMONWEALTH OF VIRGINIA,

Appellee.

BRIEF OF APPELLANT

J. Lloyd Snook, III

108 Fifth Street, S.E.

Suite 201

Charlottesville, VA 22901

(804) 293-8185

Counsel for Appellant

App. 2

QUESTIONS PRESENTED

1. Is the Virginia death penalty statute unconstitu-

tionally vague and overbroad, in violation of the Eighth

and Fourteenth Amendments to the United States Consti-

tution?

2. Was the trial court permitted to sentence Appel-

lant Willie Lloyd Turner to death after remand for penalty

phase error?

3. Does this Court provide adequate appellate

review of death sentences?

4. Is Virginia’s death penalty statute applied in a

racially discriminatory fashion against blacks who have

killed whites?

5. Did the trial court err in refusing to exclude juror

Samuel Lambert for cause?

6. Should the trial court have allowed evidence,

argument or instruction concerning parole eligibility?

7. Should the trial court have instructed the jury as

to the “vileness” aggravating circumstance, or as to the

“aggravated battery” or “depravity of mind” prongs of

that aggravating circumstance?

8. Did the trial court err in refusing Appellant's

proposed instructions 1A, 1B, 1C, 1D and 1E?

9. Should the trial court have allowed Appellant to

argue to the jury that the Appellant would be sentenced

to die in the electric chair, after the prosecution had

referred to electrocution both in voir dire and earlier in its

own argument?

App. 3

10. Is the death sentence in this case disproportio-

nate, Or was it imposed under the influence of passion or

prejudice?

ASSIGNMENTS OF ERROR

1. The trial court erred in denying Appellant’s

Motion for a Life Sentence, which motion was based

upon the following allegations:

a. That the Virginia death penalty statute is

unconstitutionally vague and overbroad in its definition

of aggravating circumstances, in violation of the Eighth

and Fourteenth Amendments to the United States Consti-

tution.

b. That the trial court could not resentence

Turner to death, according to this Court’s decision in

William Patterson v. Commonwealth.

c. That the failure of the Virginia courts to

afford adequate appellate review of death sentences

means that death sentences are being imposed in Virginia

in an arbitrary and capricious manner, in violation of the

Eighth and Fourteenth Amendments to the United States

Constitution.

d. The Virginia death penalty statute is applied

in a racially discriminatory fashion against people like

Appellant, a black man who killed a white man.

2. The trial Court’s refusal to exclude juror Samuel

Lambert for cause violated Appellant’s rights under the

Sixth, Eighth and Fourteenth Amendments to the United

States Constitution to have an impartial jury capable of

App. 4

deciding whether to impose the death sentence free of

any arbitrary or prejudicial factors.

3. The trial court erred in refusing to allow evidence

or argument concerning parole eligibility, resulting in

arbitrary and capricious infliction of the death sentence,

in violation of Appellant’s Eighth and Fourteenth

Amendment rights.

4. The trial court erred in refusing to grant Defen-

dant’s proposed instructions 1A, 1B, 1C, 1D and 1E, as a

result of which the death setnence [sic] was imposed

against Appellant in an arbitrary and capricious manner,

in violation of the Eighth and Fourteenth Amendments to

the United States Constitution.

5. The trial court erred in refusing to allow Appel-

lant to make argument concerning the fact that the

Appellant would be sentenced to die in the electric chair,

a restriction which, after the prosecution had referred to

electrocution both in voir dire and earlier in argument,

violated due process and resulted in the death sentence

being imposed arbitrarily and capriciously, in violation of

the Eighth and Fourteenth Amendments to the United

States Constitution.

6. The trial court erred in allowing the jury to be

instructed on the issue of aggravated battery, depravity of

mind or the “vileness” criterion.

7. The death sentence in this case is disproportio-

nate, and constitutes cruel and unusual punishment, in

violation of the Eighth and Fourteenth Amendments to

the United States Constitution.

+ * *

a

App. 5

Il.

THE MURDER OF JACK SMITH WAS NOT “VILE”

WITHIN ANY CONSTITUTIONAL MEANING OF THE

VIRGINIA CAPITAL SENTENCING STATUTE.

The jury on resentencing based the imposition of the

death sentence only on the vileness of the crime, and did

not make a finding of future dangerousness. Judge God-

win had instructed the jury on both aggravating circum-

stances, over the objection of the defense,2 and had

instructed the jury as to both the aggravated battery and

the depravity of mind prongs of the vileness test.

* This argument encompasses four objections:

1. The Virginia death penalty statute in general, and the

“vileness” criterion in particular, are unconstitutionally vague

and overbroad in that they do not channel the jury’s discretion,

in violation of the Eighth and Fourteenth Amendments to the

United States Constitution.

2. The application of the Virginia death penalty statute to

the facts of this case to support the imposition of this death

sentence renders the statute unconstitutional as applied.

3. Under this Court’s precedents, Willie Turner cannot be

sentenced to death for the reasons given by the jury.

4. If this Court fails to reverse the jury’s verdict, the Court

will have failed to provide adequate appellate review of the

propriety of the death sentence.

These issues are very closely interrelated, and will not be

argued in separate, numbered paragraphs or arguments.

App. 6

A. The Language Of The “Vileness” Criterion Is

Intrinsically Vague And Overbroad, And Can Be

Constitutional Only If The State Appellate Court

Restricts Its Application To Cases “At The Core.”

Virginia’s “vileness” criterion is identical to Geor-

gia’s §27-2534.1(b)(7), which was approved by the United

States Supreme Court in Gregg v. Georgia, 428 U.S. 153, 96

S.Ct. 2909, 49 L.Ed.2d 859 (1976). The Court there rejected

the argument that §(b)(7) was so overbroad that it could

support the death penalty in any murder case.

It is, of course, arguable that any murder

involves depravity of mind or an aggravated

battery. But this language need not be construed

in this way, and there is no reason to assume

that the Supreme Court of Georgia will adopt

such an open-ended construction. In only one

case has it upheld a jury’s decision to sentence a

defendant to death when the only statutory

aggravating circumstance found was that of

[§(b)(7)], see McCorquodale v. State, 233 Ga. 369,

211 S.E.2d 577 (1974), and that homicide was a

horrifying torture-murder.

428 U.S. at 201 (Stewart, Powell, and Stevens, JJ.) The

Court went on to praise the Georgia Supreme Court for

the careful review that it was giving to death sentences,

noting that that court had held that §27-2534.1(b)(1) was

impermissibly vague, see Arnold v. State, 236 Ga. 534, 224

S.E.2d 386 (1976), and that the Georgia Supreme Court

had reversed a jury’s finding that the defendant had

created a “great risk of death to more than one person”

when the victim had simply been kidnapped in a parking

lot. Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975).

App. 7

Four years later, the United States Supreme Court

reviewed the performance of the Georgia Supreme Court

in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64

L.Ed.2d 398 (1980). In response to defense claims that the

Georgia courts’ application of §(b)(7) to Godfrey’s case

invalidated the entire statutory scheme, the United States

Supreme Court instead reiterated its support for the

Georgia Supreme Court’s narrowing constructions, but

found that the failure of the court to apply those narrow-

ing constructions to Godfrey’s case required that the

death sentence be set aside.

In past cases the State Supreme Court has

apparently understood this obligation as carry-

ing with it the responsibility to keep §(b)(7)

within constitutional bounds. Recognizing that

“there is a possibility of abuse of [the §(b)(7)]

Statutory aggravating circumstance,” the court

has emphasized that it will not permit the lan-

guage of that subsection simply to become a

“catchall” for cases which do not fit within any

other statutory aggravating circumstance. Harris

v. State, 237 Ga. 718, 732, 230 S.E.2d 1, 10 (1976).

Thus, in exercising its function of death sen-

tence review, the court has said that it will

restrict its “approval of the death penalty under

this statutory aggravating circumstance to those

cases that lie at the core.” Id., at 733, 230 S.E.2d,

at 11.

446 U.S. at 429.

Godfrey is cited in support of many different proposi-

tions, many of them not supported by a close reading of

the case. For example, Godfrey does not stand for the

App. 8

proposition that one who kills his victims instan-

taneously, with one gunshot, can never be sentenced to

death under Virginia’s vileness criterion; Godfrey says

only that such a crime is not vile under Georgia law, and

that the failure of the Georgia courts to apply Georgia law

can constitute a violation of the Eighth Amendment.

Likewise, we do not argue here that Godfrey requires

this Court to conclude that Turner’s crime was not vile.

The significance of Godfrey is that it reiterates the impor-

tance of clear jury instructions and critical appellate

review to make sure that such an intrinsically vague test

as that in the “vileness” test does not become an unprin-

cipled “catchall.” Virginia is not constitutionally required

to construe the “aggravated battery,” “depravity of

mind,” and “torture” prongs in pari materia, as did the

Georgia courts, but Virginia is constitutionally required

to restrict the use of its vileness test to cases that “lie at

the core.”

B. Turner’s Case Does Not “Lie At The Core” Of

Death Penalty Cases.

1. This is not a case involving depravity of

mind.

When this Court reviewed Turner’s death sentence in

1980, the Court found that the aggravated battery crite-

rion was supported, but did not approve the finding of

depravity of mind. Turner v. Commonwealth, 221 Va. 513,

527, 273 S.E.2d 36 (1980). No additional evidence concern-

ing the crime was adduced at this hearing, so the trial

court should have been bound by this Court's earlier

App. 9

opinion on the subject. Turner’s mental state exhibited a

degree of psychical debasement equal to that inherent in

any capital murder under Virginia law, but the degree of

“psychical debasement” did not surpass that present in

any malice murder. There was no evidence that Turner

had planned the murder; he just wanted to rob the store.

That distinguishes Turner from, for example, Linwood

Briley, of whom it can be said that not only the robbery

but also the murder had been thought out ahead of time.

L. E. Briley v. Commonwealth, 221 Va. 532, 273 S.E.2d 48

(1980). He did not kill Jack Smith on his way out of the

store, his purpose having been achieved. Watkins v. Com-

monwealth, 229 Va. 469, 331 S.E.2d 422 (1985). He did not

obtain sexual gratification from what he had done. Bunch

v. Commonwealth, 225 Va. 423, 304 S.E.2d 271 (1983).

In this Court’s other “depravity of mind” cases, the

depravity of mind and malice far transcend that found in

the case of the frustrated jewelry store robbery. These are

cases in which the jury could logically conclude that the

defendant had formed the intent to kill before he began

his criminal activity - cases in which the act of robbery

was complete and the getaway sure, but where the defen-

dant took the time to make sure that he killed the victim.

See, e.g., L. E. Briley v. Commonwealth, 221 Va. 532, 273

S.E.2d 48 (1980); Watkins v. Commonwealth, 229 Va. 469,

331 S.E.2d 422 (1985).

There is no evidence in this case that Turner planned,

with a malice surpassing that inherent in the ordinary

legal definition of murder, to kill Jack Smith. The evi-

dence is that he killed Jack Smith out of panic and anger

and frustration, a situational response rather than a long-

thought-out response. He clearly premeditated, and with

App. 10

malice intended to kill Jack Smith, but that was a decision

made with police sirens wailing in the background in the

middle of the robbery, rather than a decision made before

the robbery started, or after it was essentially complete.

It was error to instruct the jury on depravity of mind.

2. Although this case appears to meet the stan-

dards set forth in earlier case law for aggra-

vated battery, those standards should be

tightened.

Under the precedents of this Court, Turner’s crime

would seem to constitute an “aggravated battery”. The

1980 opinion of this Court seems to base the finding of

aggravated battery on the number of gunshots and the

fact that Jack Smith did not die instantaneously. 221 Va. at

527; see also Watkins, supra, 331 S.E.2d at 437.

Virginia case law since 1977 has many cases of vile-

ness that are truly “at the core,” to use the phrase sanc-

tioned by the United States Supreme Court. See, e.g.,

Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978)

(rape-murder where victim was choked, stabbed and

drowned); Waye v. Commonwealth, 219 Va. 683, 251 S.E.2d

202 (1979) (rape-murder, 42 stab wounds and victim

beaten beyond recognition); Mason v. Commonwealth, 219

Va. 1091, 254 S.E.2d 116 (1979) (rape-murder, victim hit in

head, abdomen with axe, sexually abused with axe,

nailed to chair and set afire); Fitzgerald v. Commonwealth,

223 Va. 615, 292 S.E.2d 798 (1982) (rape-robbery-murder,

victim cut at least 184 times); Pruett v. Commonwealth, 232

Va. 266, 351 S.E.2d 1 (1986) (rape-murder with at least 29

stab wounds).

App. 11

In each of the above cases, and other cases that are

truly “at the core,” the physical abuse to the victim was

far beyond the minimum necessary to accomplish a mur-

der - enough so that a jury could reasonably conclude

that the defendant enjoyed what he was doing.

3. This Court must adopt stricter standards for

defining and applying the vileness aggrava-

ting circumstance.

This Court has made a start to complying with Gregg

and Godfrey by formulating standards that could afford a

“principled way to distinguish this case, in which the

death penalty was imposed, from the many cases in

which it was not.” 446 U.S. at 433. The definitions of

“aggravated battery” and “depravity of mind” enunci-

ated in Smith can, if strictly applied, provide that princi-

pled distinction. The important factor in applying either

definition is the degree to which an aggravated battery

must exceed the minimum battery necessary to kill, or the

degree to which the killer’s mind must exceed that malice

inherent in first-degree murder. The United States

Supreme Court has suggested that, to deserve the death

penalty for vileness alone, the killer should display a

consciousness materially more depraved than that of any

person guilty of murder. Godfrey, supra, at 432. A bright-

line rule that one gunshot means a life sentence but two

gunshot wounds means a death sentence trivializes the

decision. Two gunshots do not necessarily “reflect a con-

sciousness materially more ‘depraved’ than” the use of a

single bullet. Godfrey, supra, at 432.

App. 12

This Court should make clear that an aggravated

battery must be one which, qualitatively and quan-

titatively, is much more vile than the minimum necessary to

accomplish the act of murder, and that “depravity of

mind” is a degree of moral turpitude and psychical

debasement that far surpasses that inherent in the defini-

tion of legal malice and premeditation.

* * *

VIII.

IMPOSITION OF THE DEATH SENTENCE IN THIS

CASE WOULD BE DISPROPORTIONATE TO THE

CRIME, IN VIOLATION OF THE EIGHTH AMEND-

MENT, AND WOULD BE EVIDENCE OF PASSION OR

PREJUDICE.

The jury did not find that Willie Turner would be

dangerous in the future, though they found that the crime

was outrageously or wantonly vile, horrible and inhuman

in that it involved depravity of mind and aggravated

battery. When last this Court considered the propor-

tionality of a death sentence on Willie Turner, it had both

aggravating circumstances to consider. Now the question

is whether juries in Virginia typically impose the death

sentence on a person like Willie Turner.

The starting point for the analysis must be a compari-

son with other cases in which only vileness was found.

It is obvious, after reviewing the cases, that Turner’s

crime was by far the least vile of any “vileness only”

cases to come to this Court.

App. 13

1. Waye v. Commonwealth, 219 Va. 683, 251 S.E.2d

202, cert. denied, 444 U.S. 924 (1979) (rape-murder, 42 stab

wounds, victim beaten beyond recognition).

2. Clark v. Commonwealth, 220 Va. 201, 257 S.E.2d 784

(1979), cert. denied, 444 U.S. 1049 (1980) (murder for hire,

victim shot five times with hollow-point bullets at close

range, murder planned for days, celebrated murder with

girlfriend).

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

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

murder, defendant choked victim, slammed her head

against floor with such force that five teeth were scat-

tered around the house).

4. Justus v. Commonwealth, 222 Va. 667, 283 S.E.2d

905 (1981), cert. denied, 455 U.S. 983 (1982) (rape-murder

of pregnant woman, victim shot twice in the face and

once in the back of the head at close range).

5. Whitley v. Commonwealth, 223 Va. 66, 286 S.E.2d

162, cert. denied, 459 U.S. 882 (1982) (robbery-murder,

death caused either by stabbing or strangulation with

rope, which was followed by jamming umbrellas into

rectum and vagina).

6. Fitzgerald v. Commonwealth, 223 Va. 615, 292

S.E.2d 798 (1982), cert. denied, 459 U.S. 1228 (1983) (rape-

robbery-murder, victim cut with both machete and knife,

at least 184 times).

7. Bunch v. Commonwealth, 225 Va. 423, 304 S.E.2d

271, cert. denied, 464 U.S. 977 (1983) (robbery-murder,

murder and robbery planned days in advance, defendant

shot victim in head, had sexual orgasm, watched her die

App. 14

on the floor while he drank her wine and listened to

music, garrotted her and then hanged her from doorknob

with scarf).

8. LeVasseur v. Commonwealth, 225 Va. 564, 304

S.E.2d 644 (1983), cert. denied, 464 U.S. 1063 (1984)

(robbery-murder, victim stabbed at least 43 times with ice

pick and carving fork, back of head crushed, defendant

tried to burn body).

9. Jones v. Commonwealth, 228 Va. 427, 323 S.E.2d 554

(1984), cert. denied, 472 U.S. 1012 (1985) (double robbery-

murder, one victim killed with one shot at close range to

head, other victim tied up, shot at point-blank range in

face, doused with accelerant, set afire, locked in closet,

death from smoke inhalation).

10. Washington v. Commonwealth, 228 Va. 535, 323

S.E.2d 577 (1984) (rape-murder, victim raped, stabbed 38

times, left to bleed to death, all in the presence of her two

children).

11. Boggs v. Commonwealth, 229 Va. 501, 331 S.E.2d

407 (1985) (robbery-murder, victim hit with heavy metal

bar six times in head, several times in neck, death caused

by repeated stabs, one of which finally punctured the

heart).

12. Wise v. Commonwealth, 230 Va. 322, 337 S.E.2d

715 (1985) (robbery-murder, victim beaten, skull fracture,

three fingers broken, flesh torn from face, gunshot to

head, shotgun blast to chest, death .ume from drowning

in outdoor toilet).

App. 15

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

(1986) (rape-robbery-murder, victim tied up, stabbed 29

times).

14. Correll v. Commonwealth, 232 Va. 454, 352 S.E.2d

352 (1987) (robbery-murder, victim choked ‘into uncon-

sciousness, put in trunk of car, driven around, pulled out,

kicked in face, defendant then threw knife deep into

victim’s chest twice).

The only case in the above list that is even close to

Turner in the nature of the battery is Clark (where five

hollow-point bullets were used), but Clark’s depravity of

mind was far greater - his was a murder for hire.

It is useful to narrow down even further the class of

comparable cases to robbery-murders where only vile-

ness was found. That class of cases consists of Whitley,

Bunch, LeVasseur, Boggs, Wise, and Correll, all of which are

cases that show a true desire to torture — the defendant

went out of his way to mutilate the body. Interestingly,

none of the robbery-murders where only vileness was

found is a case in which the victim was a store operator.

Only in Correll, where the defendant told a friend that

they had “killed a faggot for the car,” does robbery or

larceny seem_to have been the primary motive; in each of

the other five, it seems apparent that the primary motive

was murder, and the fact that property was taken was

secondary.

The standard “holdup and murder” cases apparently

receive the death sentence only if both aggravating cir-

cumstances are found, and usually only if more than one

person is killed. Stamper v. Commonwealth, 220 Va. 260, 257

S.E.2d 808 (1979); Edmonds v. Commonwealth, 229 Va. 303,

App. 16

329 S.E.2d 807 (1985); Poyner v. Commonwealth, 229 Va.

401, 329 S.E.2d 815 (1985); Watkins v. Commonwealth, 229

Va. 469, 331 S.E.2d 422 (1985).

It appears that Virginia juries draw a distinction

between the street robbery and the robbery in the home.

Robberies in the home are much more readily punished

by death, wehreas [sic] robberies from stores are not.

Perhaps the case that is the closest to Turner on its

facts is Ball v. Commonwealth, 221 Va. 754, 273 S.E.2d 790

(1981), in which Ball’s conviction was reversed because

he committed only an attempted robbery. Ball tried to

hold up a store, but the Assistant Manager refused to

give him any money. A struggle ensued, during which

three or four shots were fired from Ball’s pistol. The

Assistant Manager died of his wounds. Ball testified that

he had gone to the store intending to rob, but not to kill.

The jury gave Ball a life sentence.

Another robbery-murder resulted in a capital murder

conviction and a life sentence. in [sic] Simpson v. Common-

wealth, 227 Va. 557, 318 S.E.2d 386 (1984), the jury sen-

tenced Simpson to life for robbing and fatally stabbing a

cab driver. Again, money, not murder, seemed to be the

motive; Simpson had been armed with a sawed-off shot-

gun (like Turner had been), but used a knife instead as he

stole the driver’s money.

Virginia juries do not customarily return a death

sentence for a robbery-murder such as the one at issue

here. Willie Turner’s death sentence should be over-

turned as disproportionate to the crime.

ee ee ee

App. 17

CONCLUSION

For the reasons stated above, Willie Turner’s death

sentence should be vacated.

WILLIE LLOYD TURNER

By Counsel

/s/ J. Lloyd Snook, III

J. Lloyd Snook, [I

Counsel for Appellant

P.O. Box 2486

Charlottesville, Virginia 22902

804-293-8185

App. 18

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme

Court Building in the City of Richmond, on Tuesday the

30th day of April, 1991.

Willie Lloyd Turner, Appellant,

against Record No. 901335

Circuit Court No. CL-141-88 (H.C.)

David Williams, Warden,

Powhatan Correctional Center, Appellee.

From the Circuit Court of Southampton County

Upon review of the record and consideration of the

petition for appeal filed herein, the brief in opposition

and the appellant’s reply brief filed in response thereto,

the Court finds there is no reversible error in the judg-

ment appealed from. Applying the rule in Slayton v. Parri-

gan, 215 Va. 27, 205 S.E.2d 680 (1974), to petitioner’s

allegations numbered IV, VI, X, and XII in his petition for

writ of habeas corpus, and to the extent allegations

numbered VII, VIII, XIV, XV, and XVI in his petition for

writ of habeas corpus advance matters not asserted on

directed appeal; and, applying the rule in Hawks v. Cox,

211 Va. 91, 175 S.E.2d 271 (1970), to allegations numbered

VIL, VIII, XIV, XV, end XVI in his petition for writ of

habeas corpus to the extent that they advance matters

asserted on direct appeal, the petition for appeal is

denied for reasons of procedural default. Harris v. Reed,

389 [sic] U.S. 255 (1989).

Finding no meritin petitioner’s allegations of ineffec-

tive assistance of counsel, the Court refuses the petition

for appeal as to those allegations. Strickland v. Washington,

App. 19

466 U.S. 668 (1984). The petitioner’s remaining allegations

are dismissed as meritless.

The said circuit court shall allow court-appointed

counsel a total fee of $300 plus their costs and necessary

direct out-of-pocket expenses.

A Copy,

Teste:

David B. Beach, Clerk

By: /s/ Illegible

Deputy Clerk

App. 20

*+ + +

THE CLERK: “We, the jury on the issues joined, the

defendant having been found guilty of capital murder in

the commission of a robbery, having unanimously found

that the conduct in committing the offense is outrageous

and wantonly vile, horrible, and inhuman in that it

involved depravity of mind or aggravated battery to the

victim beyond the minimum necessary to accomplish the

murder, [p. 550] and having considered the evidence in

mitigation of the offense, unanimously fix the punish-

ment at death.” Signed by the foreman, William Powers,

Ill.

App. 21

IN THE

United States Court of Appeals

FOR THE FOURTH CIRCUIT

RECORD NO. 93-4001

WILLIE LLOYD TURNER,

Petitioner/Appellant,

v.

DAVID A. WILLIAMS,

Warden, Powhatan Correctional Center,

Respondent/Appellee.

BRIEF OF APPELLANT

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

Wm. Bradford Reynolds

(Counsel of Record)

Walter J. Walvick

DICKSTEIN, SHAPIRO & MORIN

2101 L Street, N.W.

Washington, DC 20037-1526

(202) 785-9700

Counsel for Appellant

App. 22

which was considerably more violent than the crime in

Petitioner’s sentencing. Yet each of these defendants was

sentenced to life imprisonment while Petitioner received

a capital sentence solely on the basis of the vileness of the

crime. In fact, there is no legitimate basis for distinguish-

ing Petitioner’s case from those in which the defendants

received the lesser sentence.

Furthermore, the Commonwealth cannot justify the

imposition of the death penalty on the basis that Petitioner’s

case resembles other crimes for which Virginia juries gener-

ally approve capital punishment. The crime in this case bears

no resemblance to the remarkably violent behavior typical in

death penalty cases under the vileness factor.!9 In fact, the

19 To date, approximately 42 capital cases in Virginia have

involved the vileness aggravating factor. The vast majority of

these cases have involved fact patterns demonstrating signifi-

cantly greater brutality than Petitioner’s actions. See, e.g., George

v. Commonwealth, 242 Va. 264, 411 S.E.2d 12 (1991), cert. denied,

112 S. Ct. 1591 (1992) (defendant sodomized child victim and

used stun gun on victim’s penis); Strickler v. Commonwealth, 241

Va. 482, 404 S.E.2d 227, cert. denied, 112 S. Ct. 386 (1991) (defen-

dant abducted victim, stripped her, beat her, and sexually

assaulted her before killing her by crushing her head in four

places with large rock); Stockton v. Commonwealth, 241 Va. 192,

402 S.E.2d 196, cert. denied, 112 S. Ct. 280 (1991) (defendant shot

victim and-cut off his hands at the wrists while victim still

alive); Bennett v. Commonwealth, 236 Va. 448, 374 S.E.2d 303

(1988), cert. denied, 490 U.S. 1028 (1989) (over extended period,

bound victim suffered repeated blows to head and face, was

stabbed four times and strangled); Correll v. Commonwealth, 232

Va. 454, 352 S.E.2d 352, cert. denied, 482 U.S. 931 (1987) (defen-

dant choked victim, robbed him, kicked him in face several

times and used unconscious body as target for knife-throwing);

Wise v. Commonwealth, 230 Va. 322, 337 S.E.2d 715 (1985), cert.

denied, 475 U.S. 1112 (1986) (defendant struck victim’s head

App. 23

Virginia Supreme Court acknowledged this fact when

reviewing Petitioner’s case. 364 S.E.2d at 490.

repeatedly, broke three of victim’s fingers, tore flesh from nose

and forehead, shot victim in eyeball, threw victim in outdoor

toilet and fired shotgun in victim’s chest); Poyner v. Common-

wealth, 229 Va. 401, 329 S.E.2d 815, cert. denied, 474 U.S. 865

(1985) (defendant tortured one victim before shooting her in

back of head after he ordered her to walk away from him and

defendant stripped second victim, raped her, shot her in head

and flung her nude body into parking lot); Jones v. Common-

wealth, 228 Va. 427, 323 S.E.2d 554 (1984), cert. denied, 472 U.S.

1012 (1985) (defendant tied one victim’s hands behind her,

stuffed sock down her throat, tape mouth and neck, forced her

in closet, shot her point blank, doused her with accelerant and

set her on fire, and left her still alive and breathing to die of

smoke inhalation; attempted to incinerate second victim); Clozza

v. Commonwealth, 228 Va. 124, 321 S.E.2d 273 (1984); cert. denied,

469 U.S. 1230 (1985) (defendant beat 13-year-old victim for over

two hours, raped her and penetrated her vagina with twigs and

large cylindrical object before internal bleeding suffocated her);

Fitzgerald v. Commonwealth, 223 Va. 615, 292 S.E.2d 798 (1982),

cert. denied, 459 U.S. 1228 (1983) (defendant inflicted 184 stab

wounds with machete and knife, all sustained before victim’s

death); LeVasseur v. Commonwealth, 225 Va. 564, 304 S.E.2d 644

(1983), cert. denied, 464 U.S. 1063 (1984) (victim sustained at least

43 wounds and lacerations; back of head crushed by blows with

blunt instrument; ice pick and two-pronged carving fork found

protruding from victim’s back; victim’s ankles bound together;

liquid bleach poured over body; and attempt to incinerate

body); Whitley v. Commonwealth, 223 Va. 66, 286 S.E.2d 162, cert.

denied, 459 U.S. 882 (1982) (defendant confessed to choking 63-

year-old widow with bare hands, strangling her with rope, and

cutting her throat; victim was found with one umbrella inserted

into her vagina and another in her rectum); Briley v. Common-

wealth, 221 Va. 563, 273 S.E.2d 57 (1980) (defendant raped

woman in front of husband and child, after which woman was

shot in head four times while family watched, husband was

then shot in front of child, and finally child was shot); Mason v.

App. 24

Furthermore, though defendant need not prove that

his case is better than the least vile scenario yet encoun-

tered, Petitioner meets even that standard. Focusing

solely on the few fact patterns which deviate from the

pattern of extraordinary brutality typical of vileness

cases, Petitioner’s crime still does not compare with those

in other death penalty cases. See Barnes v. Commonwealth,

234 Va. 130, 360 S.E.2d 196 (1987) (defendant shot 73-

year-old victim twice, then shot another victim point

blank, killing him, before returning to shoot first victim

in neck; reviewing court relied upon Petitioner’s case to

state that defendant’s actions were more vile than the

minimum standard), cert. denied, 484 U.S. 1036 (1988);

Watkins v. Commonwealth, 229 Va. 469, 331 S.E.2d 422

(1985) (defendant shot one victim twice, then later leaned

over counter to fire two more shots into victim’s body,

cert. denied, 475 U.S. 1099 (1986); a week later, defendant

repeated crime with another victim, firing twice and then

returning to shoot victim twice more); Clark v. Common-

wealth, 220 Va. 201, 257 S.E.2d 784 (1979) (willful, deliber-

ate and premeditated murder for hire with elaborate

planning in which defendant ate and drank while waiting

for victim to arrive, thereafter shot victim five times with

hollow bullets, took food from victim’s home, and hosted

party to celebrate that “[t]he beast is deceased”), cert.

denied, 444 U.S. 1049 (1980).2°

Commonwealth, 219 Va. 1091, 254 S.E.2d 116, cert. denied, 444 U.S.

919 (1979) (defendant raped 71-year-old woman, struck her sev-

eral times in head and body with an ax, shoved ax handle into

her rectum, drove a nail into her wrist, and set her on fire while

still alive).

20 The only other case which the Virginia Supreme Court

cited as comparable to Petitioner’s did not indicate that the jury

App. 25

Because Petitioner’s case is clearly distinguishable

from the core of vileness cases, because his crime is less

brutal than even the least vile cases in which the death

penalty has been imposed in Virginia, and because the

fact pattern in this case is considerably less violent than

those present in many cases in which defendants received

life sentences, subjecting Petitioner to the death penalty

can only be described as arbitrary. Because there is no

meaningful basis for justifying the imposition of capital

punishment in this case, the sentence is unconstitutional.

* * *

relied on the vileness factor for its recommendation of capital

punishment. See Briley v. Commonwealth, 221 Va. 532, 273 S.E.2d

48 (1980), cert. denied, 451 U.S. 1031 (1981). Because the record is

unclear and at best might support an argument that both future

dangerousness and vileness figured in the jury’s verdict, the

case is inapposite to Petitioner’s, in which the jury relied solely

on vileness.