# Opposition Brief — Turner v. Jabe

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 514 U.S. 1017

## Text

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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

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SABLE OF CARVI BPE: ch cnddescesds aceite
CPG DRAPET 66.556 54000 00s sned eee

CONSTITUTIONAL AND STATUTORY PROVI-
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SIAL CMeeIes GP Wee CAGE ois cede ce cenedetesssone
SEARmmemres GH PARES orc so ceccavtecadd eae
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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1160%3A3. Public record. Not legal advice.