Opposition Brief — Williams v. Virginia

i supreme Court, U.S. f

ee FILED

te

MAY 31 1995

No. 94-1862 OFFICE OF THE Cleax

In The

Supreme Court of the United States

October Term, 1994

¢

MICHAEL WAYNE WILLIAMS,

Petitioner,

COMMONWEALTH OF VIRGINIA,

Respondent.

+

On Petition For A Writ Of Certiorari

To The Supreme Court Of Virginia

*

RESPONDENT'S BRIEF IN OPPOSITION

+

James S. Gitmore, III

Attorney General of Virginia

*DonaL_p R. Curry

Senior Assistant Attorney General

Office of the Attorney General

900 East Main Street

Richmond, Virginia 23219

(804) 786-4624

*Counsel of Record

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

OR CALL COLLECT (402) 342-2831

Il.

IT].

QUESTIONS PRESENTED

IS PETITIONER’S CASE AN INAPPROPRIATE

VEHICLE FOR REVIEWING A SIXTH AMEND-

MENT CLAIM THAT THE PROSECUTOR IMPROP-

ERLY COMMENTED ON THE CREDIBILITY OF

THE DEFENDANT'S TESTIMONY:

(a) because petitioner’s claim is barred from

review to the extent it relies upon the pros-

ecutor’s argument to the jury?

(b) because the “conflict” relied upon by peti-

tioner does not exist?

(c) because petitioner admitted in his trial tes-

timony that he shot one of the victims in

the head during the commission of robbery

and rape?

DOES PETITIONER’S CLAIM THAT HE WAS ENTI-

TLED TO INFORM HIS CAPITAL SENTENCING

JURY THAT HE WOULD BE ELIGIBLE FOR

PAROLE IN 25 YEARS RAISE A COGNIZABLE

FEDERAL ISSUE?

DOES PETITIONER’S CHALLENGE TO VIR-

GINIA’S “VILENESS” AGGRAVATING CIRCUM-

STANCE RAISE A COGNIZABLE FEDERAL ISSUE?

**

TABLE OF CONTENTS

Page

CRIESTOLING FRSC GMe nc she kcvtnuacéutueneaess i

TAREE CHP Cee ea bn 6x te edtbaeedascscaeeare ii

TAREE CH Cp Ae v0 sessnerismeceisevaneam iii

eo tk see ree ere re 1

STATEMENT OF TRER CARB. 60s ccctcisecesevdseess 1

STATEMENT OF FACTS... ccsssccuss cocina 2

REASONS WHY THE WRIT SHOULD BE DENIED .. 3

I. PETITIONER’S CASE IS A PARTICULARLY

INAPPROPRIATE VEHICLE FOR REVIEW-

ING A CLAIM THAT A PROSECUTOR VIO-

LATED THE SIXTH AMENDMENT BY

IMPROPERLY COMMENTING ON THE

CREDIBILITY OF A DEFENDANT’S TRIAL

WET so 5 6.5455: eee a ceene eee senedans 3

A. Petitioner’s default below............... 3

PR “I ho ine sy hd er decentaas: 5

C. Petitioner’s admissions at trial.......... 7

II. PETITIONER’S PAROLE ELIGIBILITY CLAIM

DOES NOT RAISE A FEDERAL ISSUE...... 8

Ill. PETITIONER’S CHALLENGE TO VIRGINIA’S

“VILENESS” AGGRAVATING FACTOR DOES

NOT IMPLICATE THE CONSTITU-

TIONALITY OF HIS DEATH SENTENCE.... 11

COMIAIIIN 5 5. sicko eee 15

RESPONDENT'S APPENDIX...............-..-. App. 1

ill

TABLE OF CITATIONS

Page

CASES

Breard v. Virginia, 115 S.Ct. 442 (1994)............... 13

J. Briley v. Commonwealth, 221 Va. 563, 273 S.E.2d

ene ire sk sg 5a do 8nd oad 4 ade bd eo as 8

Brooks v. Tennessee, 406 U.S. 605 (1972) ............... 7

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

cert, memied, 212 SAX. S56 C1992). .. 6... ccc ccc: 14

Cardwell v. Virginia, 115 Va. ___ (1995) ........... 11, 13

Cheng v. Commonwealth, 240 Va. 26, 393 S.E.2d 599

ee eee eas saa as ne kow Cian sae be sss dus 4

Clanton v. Muncy, 845 F.2d 1238 (4th Cir.), cert.

forenee, “Gee tec, FOO CISOR). 6... 8 cc eee e cece ens 13

Clark v. Tansy, 882 P.2d 527 (N.M. 1994).............. 9

Clemons v. Mississippi, 494 U.S. 738 (1990)........... 14

Dyson v. United States, 418 A.2d 127 (D.C. 1980)....5, 6

Frisby v. Schultz, 487 U.S. 474 (1988) ................ 14

Godfrey v. Georgia, 446 U.S. 420 (1980)............... 14

Gregg v. Georgia, 428 U.S. 153 (1976) ............. 12, 14

Illinois v. Gates, 462 U.S. 213 (1983) .................. 4

Jenkins v. United States, 374 A.2d 581 (D.C.), cert.

oo ee) es.

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

i Ginn Sas sa pb 06 eens esas eee. 14

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

iV

TABLE OF CITATIONS —- Continued

Page

Maggio v. Williams, 464 U.S. 46 (1983)............... 1]

Michigan v. Long, 463 U.S. 1032 (1983)............ 10, 12

Murray v. State, 781 P.2d 288 (Nev. 1989)............. 5

Romano v. Oklahoma, 114 S.Ct. 2004 (1994)........... 10

Simmons v. South Carolina, 114 S.Ct. 2187 (1994)

(56 Bd AE ON OL RAR eee 8, 9, 10, 11

State v. Rose, 622 A.2d 78 (Me. 1993)...............5, 6

Stringer v. Black, 112 S.Ct. 1130 (I99Z).. wo... ce aes 13

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

Be EY os a va ka read WARE SEN Eee ok wee ax kere 12

Swann v. Virginia, 115 S.Ct. 234 (1994)............5.. 11

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

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

Gemted, BID Ta. TP TIGRE os se rc cnens eekinw ces 13

Williams v. Commonwealth, 248 Va. 528, 450 S.E.2d

ee ENS 5p ec oa Cee eR EEL y Mae ecw bee eRe kee 1

Wrient vw. Vieginia, 115 S.C. . (IGGD). 06. esc eneeas 11

Yee v. Escondido, 112 S.Ct. 1522 (1992)................ 40

Zant v. Stepnens, 462 U.S. 862 (1963) ................ 13

STATUTES

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Boe ae Fe 8 Merc erreer terre te 8, 11

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No. 94-1862

4

In The

Supreme Court of the United States

October Term, 1994

@

MICHAEL WAYNE WILLIAMS,

Petitioner,

COMMONWEALTH OF VIRGINIA,

Respondent.

+

On Petition For A Writ Of Certiorari

To The Supreme Court Of Virginia

*

RESPONDENT'S BRIEF IN OPPOSITION

°

OPINIONS BELOW

The Supreme Court of Virginia’s opinion is pub-

lished. Williams’ v. Commonwealth, 248 Va. 528, 450 S.E.2d

365 (1994). (Pet. App. la-22a). That Court’s order denying

Williams’ petition for rehearing is unpublished but

appears in the petitioner’s appendix at 23a.

*

STATEMENT OF THE CASE

On January 6, 1994, after a four-day trial, a jury in the

Circuit Court of Cumberland County, Virginia, convicted

the petitioner, Michael Wayne Williams, of burglary, rape,

arson, two counts of robbery, two counts of abduction,

and five counts of capital murder. On the non-capital

charges, the jury fixed Williams’ punishment at 20 years

for the burglary, life imprisonment for the rape, 50 years

and a $100,000 fine for the arson, 40 years for each of the

robberies, and 10 vears for each of the abductions. The

trial court imposed these sentences and entered final

judgment on the non-capital charges in an order dated

January 6.

After a separate day-and-a-half proceeding, the jury

sentenced Williams to death for the capital murders of

both Morris C. Keller, Jr., and his wife, Mary Elizabeth

Keller, finding in both instances that Williams repre-

sented a continuing serious threat to society and that his

offense was outrageously or wantonly vile, horrible or

inhuman in that it involved torture, depravity of mind or

aggravated battery to the victim. See Va. Code

§ 19.2-264.2. The trial court imposed both death sentences

and entered final judgment on February 22, 1994.

Petitioner appealed only his capital murder convic-

tions and death sentences to the Virginia Supreme Court,

which affirmed on November 4, 1994. Williams’ petition

for rehearing was denied on January 13, 1995.

«

STATEMENT OF FACTS

The undisputed evidence established that the peti-

tioner planned and participated in the robbery and

abduction of Mr. and Mrs. Keller that led to the rape of

Mrs. Keller and the execution-style murder of both vic-

tims. It also is undisputed that, at the very least, peti-

tioner fired the first shot into Mr. Keller’s head. All of the

relevant facts are set forth in detail in the Virginia

Supreme Court’s opinion. (Pet. App. 2a-5a).

¢

REASONS WHY THE WRIT SHOULD BE DENIED

I. PETITIONER’S CASE IS A PARTICULARLY INAP-

PROPRIATE VEHICLE FOR REVIEWING A CLAIM

THAT A PROSECUTOR VIOLATED THE SIXTH

AMENDMENT BY IMPROPERLY COMMENTING

ON THE CREDIBILITY OF A DEFENDANT'S

TRIAL TESTIMONY.

Williams contends that the prosecutor violated his

Sixth Amendment right to confront the witnesses against

him and to be present at his trial by asking him questions

on cross-examination and by making arguments to the

jury that emphasized the fact that, by the time petitioner

testified, he already had heard the testimony of all the

other witnesses. This claim is not worthy of review for

several reasons:

A. Petitioner’s default below

Williams’ claim in this Court relies not only upon the

questions the prosecutor asked him on cross-examination

but also on the prosecutor’s jury argument. (Pet. 6, 15). In

the Virginia Supreme Court, however, petitioner’s claim

focused solely on the former and never even mentioned

the latter. (Resp. App. 1-3). And, of course, the Virginia

Supreme Court did not purport to decide any claim other

than Williams’ challenge to the prosecutor’s allegedly

improper cross-examination. (Pet. App. 15a). Indeed, if

petitioner had raised a claim in the court below about the

prosecutor’s jury argument, the claim would have been

doubly barred by his failure to object to the argument at

trial, see Va. S.Ct. Rule 5:25 (requiring contemporaneous

objection), and by Virginia’s firmly-established rule that a

claim of improper jury argument may not be litigated on

appeal absent a request for a curative instruction or a

mistrial. See, e.g., Cheng v. Commonwealth, 240 Va. 26,

38-39, 393 S.E.2d 599, 605-606 (1990).

When petitioner presented his cross-examination

claim to the Virginia Supreme Court, moreover, he cited

none of the cases upon which he presently relies. As the

Supreme Court noted when it rejected the claim, “Wil-

liams cites no case in which such a question has been

held to violate a defendant's constitutional rights, and we

find none.” (Pet. App. 15a). It therefore would be inap-

propriate to grant review of the court below’s decision on

the basis of authority petitioner iiever brought to the

lower court’s attention.

Regardless of whether the rule is couched in terms of

jurisdiction or mere prudence, this Court generally will

not review a constitutional claim that never was raised in

the state court below. See Yee v. Escondido, 112 S.Ct. 1522,

1531 (1992); Illinois v. Gates, 462 U.S. 213, 218-220 (1983). It

is for this reason that a petitioner is required to detail for

the Court how and when his constitutional claim was

raised and decided in state court. Rule 14.1(h).

Petitioner's failure to raise and preserve that aspect

of his claim which relies upon the prosecutor’s jury argu-

ment renders his case unsuitable for certiorari review.

This is particularly true in view of the fact that all but one

of the cases upon which petitioner relies to support his

“conflict” argument are based entirely upon a prosecu-

tor’s allegedly improper jury argument. (See Reason IB,

below).

B. Phantom “conflict”

As many petitioners do, Williams asserts that the

judgment below is at odds with the decisions of other

courts and that the Court should grant review to resolve

the “conflict.” According to Williams, the Virginia

Supreme Court's decision is in conflict with Jenkins v.

United States, 374 A.2d 581 (D.C.), cert. denied, 434 US.

894 (1977); Dyson v. United States, 418 A.2d 127 (D.C.

1980); State v. Rose, 622 A.2d 78 (Me. 1993); and Murray v.

State, 781 P.2d 288 (Nev. 1989). (Pet. 9-11). A review of

these cases, however, demonstrates that there is no true

“conflict.”

As previously noted, all but one of the four cases are

based entirely on the prosecutor’s allegedly improper

argument to the jury. See Jenkins, 374 A.2d at 583-584:

Dyson, 418 A.2d at 131; Rose, 622 A.2d at 78-79 (based

only in part upon prosecutor’s cross-examination); Mur-

ray, 781 P.2d at 290. Petitioner has failed to preserve any

claim with respect to the prosecutor’s jury argument.

Neither Jenkins nor Rose supports petitioner’s “con-

flict” argument because in both cases the court found no

error that warranted reversal. In Jenkins, the prosecutor's

comments were ultimately deemed harmless. Jenkins, 374

A.2d at 584-586. In Rose, the court ruled that the prisoner

had not preserved his claim for review because he had

failed to request a mistrial. Rose, 622 A.2d at 79. Those

cases, therefore, clearly do not conflict with the judgment

in Williams’ case.

Dyson does not support the “conflict” argument

because at no time did the court explicitly rule that the

prosecutor’s comments violated the Constitution. To the

contrary, the court ruled only that it had “repeatedly

expressed disapproval of such tactics.” Dyson, 415 A.2d at

131. Moreover, the court found the comments prejudicial

in Dyson only because the government's case was “entire-

ly ... circumstantial” and “weak” on a critical element of

proof. id. at 132. In petitioner’s case, of course, the evi-

dence of his guilt was both overwhelming and, for the

most part, undisputed. Dyson, therefore, is properly read

as the decision of an appellate court exercising its super-

visory power over a trial court.

Finally, Murray cannot support petitioner’s argument

because, unlike Williams’ Sixth Amendment claim, it is

based upon a violaticn of a defendant’s Fifth Amendment

right to remain silent at the time of his arrest. Murray, 781

P.2d at 290-291. At no time in that case did the prosecutor

question the defendant about or comment upon the fact

that he had heard all of the witnesses testify before he

took the stand.

This Court should not grant certiorari to resolve a

conflict that is not squarely presented. See Rule 10.1.

Clearly, none is squarely presented here.!

C. Petitioner’s admissions at trial

According to Williams, the prosecutor should not

have been permitted to impeach the credibility of his trial

testimony by commenting on the fact that he had had the

advantage of hearing all the witnesses testify before he

took the stand. This contention, however, must be viewed

in light of the fact that, even if the jury had credited

petitioner’s testimony in its entirety, he unquestionably

was guilty of capital murder.

It is undisputed that Mr. and Mrs. Keller were pre-

meditatedly murdered during the course of a robbery in

which petitioner was a full and willing participant. It also

is undisputed that Mrs. Keller was raped. And, as the

Virginia Supreme Court noted, while the testimony of the

petitioner and that of the co-defendant who testified

against him were at odds on some of the details of the

crimes, petitioner admitted before the jury that he was

' In Brooks v. Tennessee, 406 U.S. 605 (1972), the Court held

unconstitutional a state statute requiring that a criminal defen-

dant testify as the first defense witness or not at all. The Court,

however, was careful “not to imply that there may be no risk of a

defendant's coloring his testimony to conform to what has gone

before” and expressly noted that “our adversary system reposes

judgment of the credibility of all witnesses in the jury.” 406 U.S.

at 611. If, as Brooks indicates, the fact that the defendant testified

after hearing all the other witnesses testify is a matter the jury

may consider in assessing his credibility, then it also is subject to

fair comment by the prosecution.

the one who initiated the idea of a robbery, that it was his

idea to burn down the victims’ house and, most impor-

tantly, that he shot Mr. Keller in the head after both

victims were marched into the woods behind their home

to be executed. (Pet. App. 4a). Thus, by Williams’ own

admission he was guilty of a premeditated murder dur-

ing the commission of a robbery, subsequent to the com-

mission of a rape and during the same act or transaction

where another premeditated murder occurred. See Va.

Code § 18.2-31(4), (5) and (7).?

Even if the Court hypothetically were inclined to

review the type of Sixth Amendment claim petitioner is

raising, it should do so in a case where the alleged error

clearly affected the outcome of the case, not in a case such

as petitioner’s where the jury would have been required

to find him guilty of capital murder even if the alleged

error had not occurred and the jury fully credited his

version of the crimes. This case simply is not an appropri-

ate vehicle for reviewing Williams’ claim.

Il. PETITIONER’S PAROLE ELIGIBILITY CLAIM

DOES NOT RAISE A FEDERAL ISSUE.

Petitioner relies upon Simmons v. South Carolina, 114

S.Ct. 2187 (1994), and claims that his Eighth and Four-

teenth Amendment rights were violated by the trial

court’s refusal to instruct the penalty-stage jury regarding

* Under Virginia law, to be convicted of capital murder the

defendant must be the “triggerman” in a premeditated killing,

but need only be a principal in the second degree to the predi-

cate felony. See J. Briley v. Commonwealth, 221 Va. 563, 571-573,

273 S.E.2d 57, 62-63 (1980).

his parole eligibility. On appeal, the Virginia Supreme

Court rejected the claim, finding that Simmons is inappli-

cable to capital defendants who, like Williams, are eligi-

ble for parole. (Pet. App. 10a).

At the outset, it is clear that the sole basis for this

Court’s decision in Simmons is the Due Process Clause of

the Fourteenth Amendment. See Simmons, 114 S.Ct. at

2196 (plurality); id. at 2201 (O’Connor, J., concurring).

Thus, Simmons provides no support for Williams’ Eighth

Amendment claim. Indeed, Simmons expressly declined to

reach the prisoner’s Eighth Amendment claim. See 114

S.Ct. at 2193 n.4.5

To the extent petitioner raises a due process claim,

his case clearly is distinguishable from Simmons. Both the

plurality and concurring opinions in Simmons limit the

3 Likewise declining to reach the Eighth Amendment issue

is the only post-Simmons case upon which petitioner relies, Clark

v. Tansy, 882 P.2d 527, 531 (N.M. 1994). Petitioner admits that the

New Mexico case is the only decision extending this Court’s due

process ruling in Simmons to cases where the prisoner is eligible

for parole and that the remainder of the post-Simmons cases

have held, as the Virginia Supreme Court has, that Simmons

does not apply unless the prisoner is ineligible for parole. (Pet.

17). Aside from the obvious fact that a lone, aberrant case hardly

represents the kind of “conflict” necessary to obtain certiorari

review, the New Mexico case cannot constitute a true “conflict”

because it is expressly based upon the fact that the prosecutor in

that case implied to the jury that the defendant could be paroled

in as little as ten years, when in fact he could not have been

paroled until he was at least 86 years old. 882 P.2d at 530, 533. In

petitioner’s case, the prosecutor never mentioned the possi-

bility of parole and by petitioner’s own admission he would

have been eligible for parole in 25 years, i.e., when he was only

51 years old.

10

due process requirement to those capital cases where the

defendant would be ineligible for parole if he received a

life sentence. See 114 S.Ct. at 2196 (plurality) (“In a State

in which parole is available, how the jury’s knowledge of

parole availability will affect the [sentencing] deci-

sion... is speculative, and we shall not lightly second-

guess a decision whether or not to inform a jury .. . reg-

arding parole. States reasonably may conclude that truth-

ful information regarding the availability of

commutation, pardon, and the like, should be kept from

the jury”); id. at 2200 (O’Connor, J., concurring) (“In a

State in which parole is available, the Constitution does

not require .. . jury consideration of that fact”).4

Williams concedes that, unlike the defendant in Sim-

mons, he would have been eligible for parole in 25 years if

he had received a life sentence. (Pet. at 7 n.3, 16). By

Simmons’ very terms, then, the Virginia Supreme Court's

rejection of Williams’ claim raises only an issue of state

law. See 114 S.Ct. at 2200 (O’Connor, J., concurring) (“The

decision whether or not to inform the jury of the possi-

bility of early release is generally left to the States.”). This

Court, of course, has no jurisdiction to review matters of

state law on certiorari. See generally Michigan v. Long, 463

U.S. 1032, 1038 (1983).

+ To whatever extent Justice O’Connor’s concurring opin-

ion may be narrower than the plurality opinion of Justice Black-

mun, her position (joined by the Chief Justice and Justice

Kennedy) must be deemed controlling. See Romano v. Oklahoma,

114 S.Ct. 2004, 2010 (1994) (controlling effect given to concur-

ring opinion that supplies the necessary fifth vote).

1]

This Court repeatedly has denied certiorari in

post-Simmons cases from Virginia raising the very same

claim Williams is raising. See, e.g., Cardwell v. Virginia, 115

S.Ct. __, No. 94-7930 (May 1, 1995); Wright v. Virginia,

115 S.Ct. __, No. 94-8271 (Apr. 24, 1995); Swann v. Vir-

ginia, 115 S.Ct. 234 (1994). This Court’s repeated denials

of certiorari are “ample evidence” that the Court does not

deem the claim worthy of review. See Maggio v. Williams,

464 U.S. 46, 51-52 (1983).

Ill. PETITIONER’S CHALLENGE TO VIRGINIA‘S

“VILENESS” AGGRAVATING FACTOR DOES

NOT IMPLICATE THE CONSTITUTIONALITY

OF HIS DEATH SENTENCE.

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

ecution must prove not only that the defendant commit-

ted a premeditated murder, but also that the murder was

committed in one of several enumerated aggravating cir-

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

he was convicted of premeditated murder during the

commission of robbery and rape, as well as the premedi-

tated killing of two people as part of the same act or

transaction. See Va. Code § 18.2-31(4), (5) and (7).

At the penaity phase of a Virginia capital murder

trial, moreover, before the defendant even becomes eligi-

ble for a death sentence, the prosecution must prove

beyond a reasonable doubt that “there is a probability

that the defendant would commit criminal acts of vio-

lence that would constitute a continuing serious threat to

society” and/or that his conduct in committing the

offense “was outrageously or wantonly vile, horrible or

12

inhuman in that it involved torture, depravity of mind or

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

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

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

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

and the court’s instructions to impose a life sentence

rather than a death sentence. (Resp. App. 4).

Aggravating factors are not ends unto themselves;

their constitutional function is to narrow the class of

those eligible for a death sentence beyond those who

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

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

accomplished at the guilt stage when the defendant is

convicted of a narrow species of capital murder. Thus,

when petitioner was convicted of three separate species

of premeditated murder, no further narrowing was con-

stitutionally required. See Gregg v. Georgia, 428 U.S. 153,

164 n.9 (1976) (approving constitutionality of state system

where aggravator to be proved at penalty stage is that

murder was committed during rape). Accordingly, even if

petitioner’s claim regarding Virginia’s “vileness”

aggravator had merit — and clearly it does not — it would

raise only a matter of state law and would not affect the

constitutionality of his death sentence. See generally Mich-

igan v. Long, 463 U.S. at 1038 (no jurisdiction to review

state law issues on certiorari).

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

aggravating circumstances do not play a decisive role in

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

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

441 S.E.2d 195, 205, cert. denied, 115 S.Ct. 234 (1994). In

Williams’ case, in addition to finding “vileness,” the jury

13

also found the “future dangerousness” aggravator. (Pet.

App. 2a). Thus, even if, hypothetically, Virginia’s “vile-

ness” factor were vague, the remaining “future danger-

ousness” factor would be sufficient to sustain his death

sentence.° 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 Zant v. Stephens, 462 U.S. 862,

884-891 (1983); Clanton v. Muncy, 845 F.2d 1238, 1243 (4th

Cir.) (applying Zant to a Virginia capital case), cert. denied,

483 U.S. 1084 (1988).

Petitioner's vagueness challenge, moreover, simply

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

deferential.” Tuilaepa v. California, 114 S.Ct. 2630, 2632

(1994). So long as the aggravating factor has a “common-

sense core of meaning,” it must be upheld. Id. at 2635.

The United States Court of Appeals for the Fourth Circuit

repeatedly has upheld the constitutionality of Virginia’s

“vileness” factor a5 it has been construed, limited and

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

Williams, 35 F.3d 872 (4th Cir. 1994), cert. denied, 115 S.Ct.

> In view of the fact that Virginia accomplishes the constitu-

tionally-required narrowing function at the guilt stage and,

moreover, is a “non-weighing” State, petitioner’s assertion of a

supposed “conflict” with decisions pertaining to aggravaiors in

other States is irrelevant. It is no doubt for this reason that the

Court repeatedly has denied certiorari petitions from Virginia

prisoners raising claims identical to petitioner’s. See, e.g., Card-

well, 115 S.Ct. __, No. 94-7930; Breard v. Virginia, 115 S.Ct. 442

(1994).

14

1359 (1995); Jones v. Murray, 976 F.2d 169, 174-175 (4th

Cir.), cert. denied, 113 S.Ct. 27 (1992); Bunch v. Thompson,

949 F.2d 1354, 1367 (4th Cir. 1991), cert. denied, 112 S.Ct.

3056 (1992). This Court should defer to the Fourth Cir-

cuit’s view. See Frisby v. Schultz, 487 U.S. 474, 482 (1988)

(deference warranted because lower federal courts “bet-

ter schooled in and more able to interpret the laws of

their respective States”).

While conducting its mandatory review of peti-

tioner’s death sentence pursuant to Virginia Code

§ 17-110.1, the Virginia Supreme Court concluded that the

jury’s finding of “vileness” was “amply justifie[d]” by the

evidence. (Pet. App. 21a). When the Virginia Supreme

Court thus applied its limiting construction of the “vile-

ness” circumstance, the Constitution required nothing

more. See Clemons v. Mississippi, 494 U.S. 738, 745 (1990).°®

¢

© Petitioner is simply wrong when he asserts that language

identical to Virginia’s statutory “vileness” factor was held to be

vague in Godfrey v. Georgia, 446 U.S. 420 (1980). Indeed, such

language expressly was upheld against a “vagueness” attack in

Gregg v. Georgia, 428 U.S. at 201, 202 n.54. The problem in Godfrey

was caused, not by the statutory language, but by the fact that

the jury returned a truncated verdict that omitted the “in that it

involved torture, depravity of mind, or an aggravated battery to

the victim” language and by the Georgia Supreme Court's fail-

ure on appeal to cure that defect. See Godfrey, 446 U.S. at 426,

428. Neither defect is present in petitioner’s case.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

James S. Girmore, III

Attorney General of Virginia

Donatp R. Curry

Senior Assistant Attorney General

Office of the Attorney General

900 East Main Street

Richmond, Virginia 23219

RESPONDENT’S APPENDIX

App. 1

VIRGINIA:

IN THE SUPREME COURT

MICHAEL WAYNE WILLIAMS,

Appellant,

Vv. Record No. 940445

COMMONWEALTH OF VIRGINIA,

Appellee.

BRIEF OF APPELLANT

Appellant, Michael Wayne Williams, defendant in the

Circuit Court of the County of Cumberland, respectfully

represents to this Court that he is aggrieved by the judg-

ments of conviction and sentences entered herein on Feb-

ruary 22, 1994.

+ * +

ASSIGNMENTS OF ERROR

* * *

25. The trial court erred in overruling Defendant's

objection to the Commonwealth’s question to the Defen-

dant on cross-examination that he was the only witness

who had sat through the trial and heard the testimony of

every witness.

* * *

QUESTIONS PRESENTED

* * *

26. Whether the trial court erred in overruling

Defendant's objection to the Commonwealth’s question to

App. 2

the Defendant on cross-examination that he was the only

witness who had sat through the trial and heard the

testimony of every witness.

ARGUMENT

XXI. THE TRIAL COURT ERRED WHEN, OVER WIL-

LIAMS’ OBJECTION, IT PERMITTED THE COM-

MONWEALTH TO ATTEMPT TO IMPEACH

WILLIAMS’ TESTIMONY BY REFERENCE TO

WILLIAMS’ EXERCISE OF HIS CONSTITU-

TIONAL RIGHT TO BE PRESENT AND TO CON-

FRONT WITNESSES.

The trial court erred when, over Williams’ objection,

it permitted the Commonwealth to attempt to impeach

Williams’ testimony by reference to the fact that he was

the only person permitted to observe the testimony of all

witnesses. (App. 1212-14). The trial court’s error imper-

missibly burdened Williams’ exercise of his right to con-

front his accusers, to be present at all times during his

trial, to present evidence in his favor and to compel

process. U. S. Const., Amends. V, VI and XIV; Va. Const

Art. I, § 8; Va. Code Ann. § 19.2-259, 1950, as amended;

Rock v. Arkansas, 483 U.S. 44, 52 (1987); Cox v. Common-

wealth, 227 Va. 324, 315 S.E.2d 228 (1984); Faretta v. Com-

monwealth, 422 U.S. 806, 819 (1975); Harris v. New York, 401

U.S. 222, 250 (1971).

The Commonwealth’s attempts to impeach Williams

on the grounds that he had heard the testimony of other

witnesses is the functional equivalent of an attempt to

require him to testify first or not at all, which is an

App. 3

impermissible burden on his exercise of his constitutional

rights. See Brooks v. Tennessee, 406 U.S. 605 (1972). Further,

the Commonwealth’s action was of the type condemned

by the United States Supreme Court in Griffin v. Califor-

nia, 380 U.S. 609 (1965). In Griffin, the Court concluded

that comments by the court or prosecutor regarding the

defendant's failure to take the witness stand were consti-

tutionally impermissible. The Court characterized com-

ment on the defendant’s silence as “a penalty imposed by

courts for exercising a constitutional privilege” in that it

“cuts down on the privilege by making its assertion

costly.” Id. at 613.

The exercise of the right to present a defense may be

burdened when a defendant elects to testify. He is

exposed to proper cross-examination, which may

impeach his credibility. The very existence of the right,

however, may not properly be used to impeach him. The

prosecution in this case used the mere presence of Mr.

Williams as evidence with which to impeach him. The

Court of Appeals, in a case involving a guaranteed right,

has held that the courts may not permit a defendant's

constitutional right not to be compelled to give evidence

against himself to be used against him. Farmer v. Common-

wealth, 10 Va. App. 175, 390 S.E.2d 775, 781 (1990).

In the instant case, the error can in no sense be seen

as harmless. Important issues of guilt and punishment

rested on the relative credibility of Williams and the co-

defendant, Jeffrey Allen Cruse. The Commonwealth had

plainly vouched for the credibility of Cruse. It cannot be

said that its attempt to impeach Williams by his exercise

of his constitutional right to be present and to present a

defense was harmless.

App. 4

PENALTY-STAGE INSTRUCTION

You have convicted the defendant of an offense

which may be punished by death. You must decide

whether the defendant shall be sentenced to death or to

life imprisonment. Before the penalty can be fixed at

death, the Commonwealth must prove beyond a reason-

able doubt at least one of the following two alternatives:

(1) That, after consideration of his past crimi-

nal record, there is a probability that he

would commit criminal acts of violence that

would constitute a continuing serious

threat to society; or

(2) That his conduct in committing the offense

was outrageously or wantonly vile, horrible

or inhuman, in that it involved torture,

depravity of mind or aggravated battery to

the victim beyond the minimum necessary

to accomplish the act of murder.

If you find from the evidence that the Common-

wealth has proven beyond a reasonable doubt either of

the two alternatives, then you may fix the punishment of

the defendant at death or if you believe from all the

evidence that the death penalty is not justified, then you

shall fix the punishment of the defendant at life imprison-

ment.

If the Commonwealth has failed to prove either alter-

native beyond a reasonable doubt, then you shall fix the

punishment of the defendant at life imprisonment.

ttt ta See ie at

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