Opposition Brief — Lovitt v. Virginia

Supreme Court, U.S.

~ | 1LED

JUN 13 200!

No. 00-1703

CLERK

In The

Supreme Court of the United States

*

ROBIN LOVITT,

Petitioner,

COMMONWEALTH OF VIRGINIA,

Respondent.

¢

On Petition For A Writ Of Certiorari

To The Supreme Court Of Virginia

+

RESPONDENT'S BRIEF IN OPPOSITION

¢

RANDOLPH A. BEALES

Acting Attorney General of Virginia

KATHERINE P. BALDWIN

Senior Assistant Attorney General

Counsel of Record

OFFICE OF THE ATTORNEY GENERAL

900 East Main Street

Richmond, Virgitiia 23219

(804) 786-4624

Counsel for Respondent

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

OR CALL COLLECT (402) 342-2831

CAPITAL CASE

QUESTIONS PRESENTED

1. Is there any compelling reason to review the Vir-

ginia Supreme Court’s decision, predicated on settled

law, that evidence of unadjudicated criminal conduct was

admissible in the sentencing phase to prove future dan-

gerousness?

2. Is there any compelling reason to review the eleven

other rulings of the Virginia Supreme Court which the

petitioner refers to in summary fashion, including state

law matters, discretionary trial court rulings, the suffi-

ciency of the evidence and the constitutionality of the

“future dangerousness” aggravating factor?

ii

TABLE OF CONTENTS

Page

TABLE OF CONTIONESD «. ossssscacdweceescnttaesnce ii

TABLE OF AUPTRROURESOE 6005s secsccnesevnseaees iii

STATEMENT OF TEE CAG occ i sssinncscdeseceunc 1

I. ProceeGings .... x c.ccetasneanaaiaeesssbounes 1

HE. Petts. .....5+csnneckcnseeee eee e eee ees bebae ses 1

REASONS WHY THE PETITION FOR A WRIT OF

CERTIORARI SHOULD BE DENIED............. 10

I. The Virginia Supreme Court’s Rejection Of

Lovitt’s Challenge To The Admission Of Evi-

dence Of Unadjudicated Conduct Presents No

Compelling Reason To Grant Certiorari...... 11

A. The facts are not as Lovitt represents.... 12

B. The issue has been decided by this Court.. 14

II. Lovitt’s “Additional Errors” Argument Does

Not Niieit Rawheer «5. osccccanecuayasesawnese 20

CONCLUGIAN .. s. 4040400 Gaaeaee eee Reaen ee eae iees 25

ili

TABLE OF AUTHORITIES

Page

Cases

Beaver v. Commonwealth, 352 S.E.2d 342 (Va. 1987),

cert. denied, 483 U.S. 1033 (1987) ..............045- 19

California v. Ramos, 463 U.S. 992 (1983)..........+..- 23

Correll v. Commonwealth, 352 S.E.2d 352 (Va.), cert.

Gonted, GEE UES. S51 CADET) 0 ovis dcvcdacncccnsncenads 20

Dawson v. Delaware, 503 U.S. 159 (1992) ............. 15

Duncan v. Henry, 513 U.S. 364 (1995)............645- 21

Gardner v. Florida, 430 U.S. 349 (1977)........ 14, 15, 17

Georgia v. McCollum, 505 U.S. 42 (1992) ............. 24

Gray v. Netherland, 518 U.S. 152 (1996) .............. 14

Hawks v. Commonwealth, 321 S.E.2d 650 (Va. 1984) .... 13

Jackson v. Virginia, 443 U.S. 307 (1979)............... 22

Jurek v. Texas, 428 U.S. 262 (1976)............ 15, 16, 23

Lovitt v. Commonwealth, 537 S.E.2d 866 (Va. 2000) . ..passim

McMillan v. Pennsylvania, 477 U.S. 79 (1986)

Re hie te ers abe whan eee a 10, 16, 18, 19

Mu’Min v. Virginia, 500 U.S. 415 (1991).............. 24

Nichols v. United States, 511 U.S. 738 (1994).......... 15

Payne v. Tennessee, 501 U.S. 808 (1991)............... 15

Profitt v. Florida, 428 U.S. 242 (1976) ................ 16

Pulley v. Harris, 465 U.S. 37 (1984) ............... 20, 23

Schulp v. Delo, 513 U.S. 298 (1995) ..........---- eee 15

iv

TABLE OF AUTHORITIES - Continued

Page

Simmons v. South Carolina, 512 U.S. 154 (1994)....... 22

State v. McCormick, 397 N.E.2d 276 (Ind. 1979)....... i7

Tuilaepa v. California, 512 U.S. 967 (1994) ............ 15

United States v. Watts, 519 U.S. 148 (1997)........... 15

Walker v. Commonwealth, 515 S.E.2d 565 (1999),

cert. Gemied, SEB UD. FIZS GGG) « cn ccsestcsscvcces 18

Williams v. New York, 337 U.S. 241 (1949)

PaeKikur dd iene sie AeA ae eee 14, 15, 16, 17, 19

Witte v. United States, 515 U.S. 389 (1995) ........... 15

Wolff v. McDonnell, 418 U.S. 539 (1974).............. 12

STATUTES AND RULES

Virginia Code:

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STATEMENT OF THE-CASE

I. Proceedings

Robin Lovitt was tried on September 20, 1999, by a

jury in the Circuit Court of Arlington County, Virginia

and found guilty of the November 18, 1998, capital mur-

der of Carlton Dicks during the commission of robbery.

The jury also found Lovitt guilty of robbery. In a separate

sentencing hearing, the jury sentenced Lovitt to death for

the capital murder and to life imprisonment for the rob-

bery. The jury based the death sentence on the “future

dangerousness” aggravating circumstance.

On March 1, 2000, the trial court held a post-verdict

hearing at which it considered the probation officer’s

report, additional evidence and argument of counsel. The

court imposed the sentences which had been fixed by the

jury. On November 3, 2000, the Supreme Court of Virginia

unanimously affirmed the convictions and sentences.

Lovitt v. Commonwealth, 537 S.E.2d 866 (Va. 2000). On

January 12, 2001, the Supreme Court of Virginia denied

Lovitt’s petition for rehearing. Lovitt filed his petition for

a writ of certiorari in this Court on May 14, 2001.

II. Facts

The Supreme Court of Virginia found the facts

regarding the guilt phase of trial to be as follows:

The evidence showed that in the early morning

hours of November 18, 1998, Clayton Dicks was

stabbed six times in the chest and back while

working during the overnight shift at Champion

Billiards Hall (the pool hall) in Arlington

County.

A few months before the killing, Lovitt

worked as a cook at the pool hall on an evening

shift that ended when Dicks arrived to begin the

overnight shift. Amy Hudon, the manager at the

pool hall, testified that about two months before

Dicks was killed, she had trouble opening a cash

register drawer near a pool table and asked

Lovitt to help her open the drawer. Lovitt

opened it by “wedging” a pair of scissors into

the drawer’s latch. About two months before the

killing, Lovitt quit working at the pool hall.

On November 17, 1998, the day before the

killing, Lovitt went to the Arlington home of his

cousin and tried to sell him a television set. The

same day, Lovitt spoke to an acquaintance in a

failed attempt to find a job.

Later that night, Lovitt went to the pool hall

between 8:00 and 10:00 p.m. and spoke with

people he knew. When Lovitt asked some of

them for money, each refused his request. Two

of these people recalled that Lovitt wore a flan-

nel shirt that night. The bartender that night,

Thomas Schweiker, did not know Lovitt but

remembered giving matches to a man leaning

over the bar. Later, Schweiker noticed that a

pitcher containing cash from cigarette sales was

missing from beneath the bar where the man

had been leaning. Schweiker testified that the

man, an African-American in his middle or late

twenties, had a stocky build and facial hair, and

was wearing a plaid flannel shirt.

Dicks arrived at the pool hall between 1:30

and 2:00 a.m. The other employees present

when Dicks arrived had left the pool hall by 3:00

a.m., leaving Dicks as the sole employee on the

premises. The last four patrons in the pool hall

that morning left between 2:45 and 3:00 a.m.

One of these patrons was Officer Dennis A. Hol-

land of the United States Capitol Police, who

was a long-time patron at the pool hall. Holland

testified that he saw a man who looked “famil-

iar” enter the pool hall as he and his friends

were leaving. Holland described the man as

being black, about five feet, ten or eleven inches

tall, weighing between 185 and 190 pounds, and

wearing a flannel shirt.

About 3:25 a.m., Jose N. Alvarado and

Carlos Clavell entered the pool hall and saw two

men arguing behind the bar. Alvarado testified

that one man was shorter than the other, and

that the shorter man repeatedly shoved the tal-

ler man, who was wearing an apron. Alvarado

stated that he and Clavell watched as the

shorter man stabbed the taller man six or seven

times with a silver-colored weapon. Alvarado

saw blood on the taller man’s apron and

watched as the taller man fell to the floor behind

the bar. Clavell testified that he heard the taller

man begging the shorter man to stop attacking

him. Both Alvarado and Clavell saw the

assailant repeatedly kick the man who had

fallen to the floor.

Alvarado and Clavell immediately ran from

the pool hall to a service station, where

Alvarado telephoned the “911” emergency

response number and reported what they had

seen. Although Alvarado could not identify

Lovitt as Dicks’s assailant at the preliminary

hearing held in this case, Alvarado testified at

trial that he was about “80% certain” that Lovitt

was the assailant.

When police and emergency medical per-

sonnel arrived at the pool hall in response to

Alvarado’s telephone call, they found Dicks

lying on the floor behind the bar in a pool of

blood. Dicks was alive but was unable to speak

and was taken by helicopter to a nearby hospi-

tal. The multiple stab wounds prevented his

heart from functioning, and he died while

awaiting surgery.

Dicks had been stabbed six times, five times

in the chest and once in the back. Four of these

wounds were lethal. Dicks also suffered two

areas of internal hemorrhage on both sides of

his head, as well as external abrasions on both

shoulders and on his left knee.

The police recovered from the pool hall a

cash register that was lying on the floor near

where Dicks was found. The register was broken

into pieces, the cash drawer had been removed

from the register and was missing, and a torn

piece of a ten-dollar bill was found nearby. A

pair of scissors with orange handles that was

usually kept in a container on the bar was miss-

ing. A police canine unit found an orange-

handled pair of scissors bearing blood lying

open in the woods about 15 yards behind the

pool hall.

Warren A. Grant, Lovitt’s cousin, testified

that Lovitt arrived at Grant’s home in the early

morning hours of November 18, 1998. Grant

lived about a quarter of a mile from the pool

hall in a residential area located on the “other-

side” of the woods. Grant stated that Lovitt

knocked on his door sometime between 1:30 and

3:00 a.m. Lovitt was wearing a plaid shirt and

entered the house carrying what looked like a

large, square, gray metal box. After Lovitt

unsuccessfully tried to open the locked box,

Grant eventually opened it by using a screw-

driver to “pop” some of the screws securing the

box. Lovitt removed money from the opened

cash register drawer and divided the cash

between himself and Grant. Lovitt left the cash

register drawer with Grant and instructed him

to “get rid of [it].” A few days later, Grant began

cutting the cash drawer into pieces with tin

snips and put them in a bag.

Grant's girlfriend, Delores L. Harris, testi-

fied that she was in Grant’s house that morning

and watched Grant and Lovitt open the cash

register drawer. She noticed that Lovitt looked

“sweaty” and gave him a towel.

On November 20, 1998, Arlington Detective

Noel E. Hanrahan obtained pieces of the cash

register drawer from Grant. Four days later,

Lovitt was arrested and charged with the pre-

sent offenses. At that time, he was wearing a

plaid shirt and a dark jacket, and he told the

police that he had been wearing the same

clothes for the past few days. When Officer

Stephen Ferrone collected Lovitt’s clothing at

the jail, Ferrone asked a detective whether he

needed to seize Lovitt’s jacket. Ferrone testified

that, upon hearing this question, Lovitt stated,

“I wasn’t wearing it when it happened.”

Julian J. Mason, Jr., a forensic scientist

employed by the Virginia Division of Forensic

Science, qualified as an expert witness on the

subject of tool mark identification. He testified

that the cash register drawer Grant surrendered

to the police had been removed from the broken

cash register found on the floor of the pool hall.

6

Mason also stated that the pry marks on the

cash register drawer were made by the scissors

that were found in the woods behind the pool

hall.

Lawrence Abrams, an identification techni-

cian for the Arlington County Police Depart-

ment, testified that he was not able to obtain

fingerprints from the handle of the scissors due

to its irregularly-shaped surface. The only iden-

tifiable fingerprints obtained in relation to the

present crimes were Grant’s fingerprints that

were obtained from the cash register drawer.

Carol Palmer, a forensic scientist employed

by the Virginia Department of Forensic Science,

qualified as an expert witness on DNA testing.

Palmer extracted human DNA from two places

on the scissors, on a blade near the tip and on a

blade near the finger loops. She also extracted

blood from three small circular areas on the left

front side of Lovitt’s jacket, but the DNA tests

were inconclusive and Palmer was unable to

determine whether the blood on the jacket was

human. Palmer found no blood on the flannel

shirt, black jeans, or shoes that Lovitt was wear-

ing when he was arrested.

Palmer testified that she performed DNA

testing using the “polymerase chain reaction,”

or PCR, technique on the DNA extracted from

the scissors. The DNA extracted from the tip of

the scissors displayed a DNA profile that

matched the DNA profile of Dicks. The profile

derived from this sample did not match the

DNA profiles of either Lovitt or Grant, thus

eliminating both as contributors of this DNA.

Palmer stated that the chance of someone other

than Dicks contributing the DNA sample on the

tip of the scissors was 1 in more than 5.5 billion.

The DNA extracted from the mid-section of

the scissors also matched the DNA profile of

Dicks. However, Palmer stated that this DNA

evidence, unlike the DNA evidence from the tip

of the scissors, did not exclude either Lovitt or

-Grant and, thus, was inconclusive as to them.

After Lovitt’s arrest, he was intarcerated in

the Arlington County Jail in the same unit as

Casel Lucas. Lovitt and Lucas developed a

friendship during the two months that they

lived together in this unit. Lovitt first told Lucas

that after leaving the bathroom at the pool hall

on the night of the murder, Lovitt saw a His-

panic man stabbing Dicks. Lovitt_told Lucas

that, at that time, Lovitt saw the cash register

drawer, grabbed it, and ran from the pool hall.

According to Lucas, Lovitt later stated that

he knew Dicks and was aware that no one else

would be in the pool hall late at night. Lovitt

further related that he waited in the bathroom

until everyone left the pool hall before coming

out of the bathroom to attempt to open the cash

register drawer. Dicks confronted Lovitt as he

unsuccessfully attempted to open the cash

drawer. Lovitt told Lucas that he had to kill

Dicks because Dicks had recognized him.

According to Lovitt, Dicks asked him, “Why

[are] you doing this?” Lovitt admitted to Lucas

that he stabbed Dicks several times and took the

cash register drawer to his cousin’s house where

he and his cousin split the money before leaving

to buy some drugs. Lovitt told Lucas that he

discarded the murder weapon while en route to

or from Grant’s house, and that he changed his

Fe nee

clothes at Grant’s house because he had blood

on his shirt and pants.

Lovitt, 537 S.E.2d at 870-73.

The Supreme Court of Virginia found the facts

regarding the sentencing phase of trial to be as follows:

During the penalty phase of the trial, the Com-

monwealth presented evidence of Lovitt’s crimi-

nal record. In October 1975, when Lovitt was 11

years old, he was charged with assault and

placed in protective supervision. Also as a juve-

nile, in August 1979, Lovitt was committed to

the Beaumont Learning Center of the State

Department of Corrections (Beaumont) based on

adjudication of charges of breaking and entering

and larceny. While at Beaumont, Lovitt was dis-

ciplined for fighting, assault, and possessing

contraband items. After his release from Beau-

mont in 1980, Lovitt was convicted of grand

larceny in 1981 and was sentenced to 12 months

in jail.

Between 1983 and 1985, Lovitt was con-

victed of petit larceny, grand larceny, breaking

and entering, and distribution of marijuana. In

1986, Lovitt was convicted of attempted robbery

and was sentenced to a term of imprisonment of

from one to three years. After being released on

parole in August 1987, Lovitt’s parole was

revoked in August 1988 based, in part, on addi-

! tional arrests and his failure to pass certain drug

tests. Lovitt later was convicted of statutory bur-

glary and grand larceny. While incarcerated on

these convictions and the parole violation,

Lovitt was disciplined for damaging property

and for fighting.

In September 1990, Lovitt again was

released on parole. In early 1991, Lovitt was

convicted of possession of cocaine, grand lar-

ceny, and burglary. While incarcerated on these

charges, Lovitt was the subject of ten disciplin-

ary actions for offenses including possession of

contraband, disobeying direct orders, assault,

possession of intoxicants, and manufacturing

“shank handles.” After being released on parole

in October 1996, Lovitt was convicted in 1997 of

possession of marijuana, petit larceny, unlawful

entry, assault' and battery, and destruction of

property. Lovitt was on parole at the time of the

present offenses.

In October 1998, Arlington County Police

Officer Jerome A. Lee detained Lovitt in an

apartment parking lot in Arlington. Lovitt had

parked his car behind the apartments, appeared

to be very nervous, and consented to a search of

his vehicle. Lee found a long kitchen knife on

the floor of the passenger area and a soda can

used to smoke crack cocaine in the rear floor

area of the vehicle.

Lovitt presented testimony from his sister,

Amanda Jones, who testified that Lovitt was the

oldest of 12 children and that he helped take

care of his younger siblings, although not

“gladly.” Lovitt also presented testimony from

four deputies employed by the Arlington

County Sheriff’s Office, who stated that Lovitt

had not presented any disciplinary problems

while being held in jail on the present charges.

Lovitt, 537 S.E.2d at 873.

CEN SETNER) otter teen ee ee

10

REASONS WHY THE PETITION FOR A WRIT

OF CERTIORARI SHOULD BE DENIED

Summary

Lovitt’s petition confuses two legal principles: the

burden of proof required for guilt and the admissibility of

evidence at a capital sentencing hearing. This case presents

no question of whether the State must prove the elements

of an offense to establish a defendant’s guilt beyond a

reasonable doubt but rather whether the due process

standard of proof of guilt can be imported into the arena of

admissibility of evidence in a sentencing proceeding and

specifically applied as some sort of threshold requirement

as each fact or piece of evidence is admitted. By asking

this Court to require that state trial courts in capital

sentencing proceedings apply a “burden of proof” stan-

dard to each fact or piece of evidence before it can be

admitted, Lovitt essentially is asking that the State meet

multiple burdens of proof, first for each fact or piece of

evidence and then again for the ultimate fact at issue, i.e.,

the aggravating factor and/or recommended sentence.

Nothing in this Court’s precedents, however, supports

such an extraordinary requirement regarding the admis-

sibility of evidence and in fact this Court has made clear

that the Constitution requires no “standard of proof” for

admissibility. See McMillan v. Pennsylvania, 477 U.S. 79,

91-92 (1986). Lovitt’s “conflict among the States and fed-

eral circuits” argument attempts to further confuse these

two distinct trial processes and does not demonstrate any

unsettled question regarding the admissibility of evi-

dence. Lovitt’s characterization of the evidentiary pro-

cedures in Virginia, the unadjudicated evidence in his

11 é'

case and its possible effect, are incorrect in any event, and

cannot support a grant of the writ of certiorari.

I. The Virginia Supreme Court's Rejection Of Lovitt’s

Challenge To The Admission Of Evidence Of Unad-

judicated Conduct Presents No Compelling Reason

To Grant Certiorari.

In the appeal below, Lovitt made the summary,

boiler-plate argument that “the Virginia statute violates

the Eighth and Fourteenth Amendments’ [sic] heightened

reliability requirement for capital sentencing because it

allows the sentencer to prove the statutory aggravating

factor of future dangerousness by evidence of unadjudi-

cated criminal conduct. It fails to satisfy any standard of

proof before such conduct may be used.” (Opening Br. of

Def. at 25).1 The Virginia Supreme Court rejected the

claim in the “Issues Previously Decided” section of its

opinion, citing to three previous opinions where the court

had rejected the same claim. Lovitt, 537 S.E.2d at 874.

Lovitt claims that certiorari should be granted

because there allegedly is a conflict among the States and

federal circuits over the issue and because Virginia takes

the “extreme position that such evidence is per se admissi-

ble under the federal constitution because the jury should

have before it ‘all possible relevant information about the

1 In addition to this conclusory claim, Lovitt made one

further reference to the issue in his reply brief, citing a law

review article for the proposition that other States prohibit the

use of unadjudicated conduct. (Reply Br. of Def. at 7).

Hee ETO ATR ot TTT TR ee

12

individual defendant whose fate it must determine’ ”

(Pet. at 9, emphases in original). He further alleges that,

in his sentencing hearing, the jury was exposed to a

_ plethora of unadjudicated conduct evidence, that this was

unfair to him and violated the Due Process Clause of the |

Fourteenth Amendment. Lovitt’s argument is both factu-

ally and legally flawed for several reasons. It certainly

presents no matter which compels a grant of certiorari.

See Sup. Ct. R. 10 (certiorari granted only for “compelling

reasons”). :

A. The facts are not as Lovitt represents.

Lovitt misstates the record when he says that the

unadjudicated evidence included the records submitted

by the Commonwealth which showed that he had

engaged in various assaultive behaviors during his years

of incarceration as a juvenile and adult. (Pet. at 6). Those

records hardly can be classified as “unadjudicated:” they

are, rather, records of institutional due process hearings

and findings made of punishable offenses. (Pet. at 6: VSC

App. 2017-29, 2031-33) As the prosecutor accurately rep-

resented to the trial judge without objection, “these are

documents that were — we took out all the opinion docu-

ments. The documents are from due process hearings that

were had for infractions, serious incidents.” (VSC App.

1658). See Wolff v. McDonnell, 418 U.S. 539, 564-65 (1974)

(notice and opportunity to be heard in proceedings

involving institutional offenses).

What Lovitt is left with to complain about are the

unchallenged eyewitness accounts of law enforcement

officers that (1) in 1998, an officer saw a knife in Lovitt’s

13

car during a traffic stop, (2) in 1997, an officer found a

razor in Lovitt’s pants during an arrest, (3) in 1990, Lovitt

tested positive for cocaine while on parole and (4) in

1998, Lovitt refused to go to substance abuse counseling

at his parole supervisor’s direction. Lovitt fails to articu-

late how any standard of proof requirement could have

been violated by the admission of this evidence.? Obvi-

ously, even under Lovitt’s proposed “beyond a reason-

able doubt” standard, such was met for these facts.>

Lovitt also mischaracterizes the law governing

admission of evidence in Virginia. According to Lovitt,

because evidence of unadjudicated conduct is “per se”

admissible, it comes in without any “shield” against

“unreliable or unfairly prejudicial evidence” and “a

defendant must suddenly defend himself against

numerous different charges.” (Pet. at 17-18). Of course

this is not the case. In Virginia, evidence is admissible

only if it is relevant and the test for relevancy is whether

“the legitimate probative value outweighs the incidental

prejudice to the accused.” Hawks v. Commonwealth, 321

S.E.2d 650, 652 (Va. 1984). Moreover, in all Virginia capital

2 Lovitt also completely ignores the mammoth number of

criminal records presented which showed that over the course

of many years he had been found guilty of and punished for

many violent crimes, including larcenies, burglaries, drug

offenses, assaults and attempted robbery. (VSC App. 1936-2016).

This extensive, unchallenged “adjudicated conduct” evidence

simply renders any argument Lovitt has regarding the

admission of unadjudicated conduct evidence harmless beyond

any reasonable doubt.

3 The same can be said for the records which showed that

Lovitt had been found to have committed, and punished for.

committing, various serious institutional infractions.

nS ee ee

14

murder trials, upon motion by the defendant, the Com-

monwealth must give notice of its intention to use evi-

dence of unadjudicated conduct, including a description

of the conduct and the time and place it is alleged to have

occurred. Va. Code § 19.2-264.3:2. Lovitt made such a

motion and the Commonwealth complied with the statu-

tory mandate. Other matters aside, Lovitt certainly can-

not complain about having “suddenly” to defend himself

against any evidence.‘ |

B. The issue has been decided by this Court. -

Whether framed as a question of admissibility vel non

or one of admissibility with a standard of proof, the issue

of whether a sentencer may consider evidence of a defen-

dant’s prior misconduct which has not previously been

formally adjudicated is not new or even open. In Williams

v. New York, 337 U.S. 241 (1949), this Court held that the

Constitution allows a sentencer in a capital case to con-

sider evidence of unadjudicated conduct. Lovitt’s only

argument around this controlling precedent is that Wil-

liams allegedly was called into question by Gardner v.

Florida, 430 U.S. 349 (1977). But Gardner did not overrule

* Lovitt says that certiorari should be granted in his case in

part because the Court granted certiorari in Gray v. Netherland,

518 U.S. 152 (1996), but Gray does not help Lovitt. The issue in

Gray was whether the Constitution required notice of the use of

unadjudicated acts where it was uncontested that the |

prosecutor had not given the required notice before presenting

extensive evidence of other murders. There was no question

raised or considered in Gray concerning the admissibility vel non

of such evidence; indeed, it is implicit in Gray that the evidence

would be admissible if the alleged notice requirement were met.

15

or question the validity of Williams; rather, it held Wil-

liams not applicable because the evidence in Gardner had

been kept confidential even from the defendant. Gardner,

430 U.S. at 356-57.

Lovitt’s argument that Williams implicitly was over-

ruled, and his suggestion that the precedent of Williams

does not measure up to the more recent “heightened

standard of reliability” requirement for capital cases, are

belied by this Court’s consistent reliance on Williams after

Gardner. For example, in United States v. Watts, 519 U.S.

148, 117 S.Ct. 633, 635 (1997), Witte v. United States, 515

U.S. 389, 397 (1995), and Nichols v. United States, 511 U.S.

738, 747 (1994), the Court referenced Williams for the

principle that evidence of unadjudicated crimes is appro-

priate to consider in sentencing. In Schlup v. Delo, 513 U.S.

298, 326 (1995), a capital case, the Court cited Williams for

the principle that there is “reduced procedural protec-

tion” in the sentencing phase. See also Dawson v. Delaware,

503 U.S. 159, 163 (1992); Payne v. Tennessee, 501 U.S. 808,

857 (1991) (both citing Williams). Of course, in Jurek v.

Texas, 428 U.S. 262, 276 (1976), the Court made clear that

“(wJhat is essential is that the jury have before it all

possible relevant information about the individual defen-

dant whose fate it must determine” and in Tuilaepa v.

California, 512 U.S. 967, 976-77 (1994), the Court speci-

fically upheld against constitutional challenge the use of

an aggravating factor requiring the sentencer to consider

the defendant’s violent “criminal activity,” including

unadjudicated conduct. Thus, there can be no doubt that

the holding in Williams remains good law and obviates

any need for a grant of certiorari to redetermine the same

issue.

16

In McMillan v. Pennsylvania, the petitioners argued

that before unadjudicated acts could be considered by the

sentencer, they must be proven by at least clear and

convincing evidence. The Court held as follows:

petitioners do not and could not claim that a

sentencing court may never rely on a particular

fact in passing sentence without finding that

fact by “clear and convincing evidence.” Sen-

tencing courts have traditionally heard evidence

and found facts without any prescribed burden

of proof at all. See Williams . . . . We see nothing

in Pennsylvania’s scheme that would warrant

constitutionalizing burdens of proof at sentenc-

ing.

477 U.S. at 91. The Court went on to observe that “we

have consistently approved sentencing schemes that

mandate consideration of facts related to the crime, e.g.,

Profitt v. Florida, 428 U.S. 242 (1976), without suggesting

that those facts must be proved beyond a reasonable

doubt.” Id. at 92.

The reason for this rule is quite simple: “criminal

sentencing takes place only after a defendant has been

adjudged guilty beyond a reasonable doubt.” McMillan,

477 U.S. at 92 n.8. Sentencing involves the quite different

concern of what punishment is appropriate for a crime

which already has been proven beyond a reasonable

doubt and requires the sentencer to “exercise a wide

discretion in the sources and types of evidence” it will

consider. Williams, 337 U.S. at 246; Jurek, 428 U.S. at 276

(“all possible relevant information”). Given this consis-

tent precedent holding that the Constitution does not

17

require burdens of proof for particular evidence pre-

sented at a criminal sentencing, there is no call for a grant

of certiorari on the matter.

Indeed, given this Court’s holdings discussed above,

Lovitt’s “conflict” argument does not bear much discus-

sion. He contends that state courts in Washington, Indi-

ana, Alabama and Tennessee prohibit the use of

unadjudicated conduct evidence altogether, but admits

that Tennessee bases its prohibitive rule on state law. (Pet.

at 11). Of the three remaining States, only one — Indiana -

even mentions Williams v. New York in its decision prohib-

iting unadjudicated conduct evidence. The others cer-

tainly cannot represent any kind of “conflict” worthy of

certiorari review when they do not even recognize this

Court’s controlling precedent on the matter. And the

decision from Indiana — State v. McCormick, 397 N.E.2d

276 (Ind. 1979) — cannot be considered as a true “conflict”

for at least two reasons. First, like petitioner, the court in

McCormick misread Gardner as somehow overruling Wil-

liams, a conclusion, as discussed above, shown to be

wholly inaccurate by Gardner itself. Second, the decision

in McCormick appears to have been driven largely by the

fact that, under state law, the statutory aggravating factor

of an unadjudicated murder was required to be proven

beyond a reasonable doubt and the Indiana court was

unwilling to allow such “trials within trials” to occur. 397

N.E.2d at 278. This 1979 case simply does not present a

conflict on any constitutional issue that compels a grant

of certiorari.

Lovitt also discusses cases from three other States -

Utah, California and Louisiana - which he says show a

conflict with Virginia on the question of standard of

18

proof, but none of those cases even mentions McMillan v.

Pennsylvania. (Pet. at 12-13). Moreover, they, like McCor-

mick, turn mostly on the statutory scheme of each particu-

lar State: aggravating factors must be proven beyond a

reasonable doubt; unadjudicated conduct is an aggrava-

ting factor; thus, the unadjudicated conduct must be

proven beyond a reasonable doubt. On that point of logic,

there is no conflict. Virginia also requires proof of aggra-

vating factors beyond a reasonable doubt. See Va. Code

§ 19.2-264.4(C). Virginia, however, only allows two aggra-

vating factors to be considered: future dangerousness and

vileness. See id.5 Virginia law does not require that each

discrete piece of evidence admitted to prove an aggrava-

ting factor must itself be established by proof beyond a

reasonable doubt. See Walker v. Commonwealth, 515 S.E.2d

565, 571-72 (Va. 1999) (relying on McMillan), cert. denied,

528 U.S. 1125 (2000). Lovitt shows no conflict with this

undeniably constitutional practice.

Finally, Lovitt attempts to show a conflict among the

federal courts of appeal on the standard of proof issue by

arguing that because the Ninth Circuit has said that evi-

dence of unadjudicated conduct must have “some mini-

mal indicium of reliability beyond mere allegation,” then

that Circuit imposes a “standard of proof” that Virginia

does not. (Pet. at 13). This argument is completely frivo-

lous: “indicia of reliability” is an admissibility concern, not

a “burden of proof” standard, and Virginia requires that

evidence of unadjudicated conduct, like all evidence, be

5 Unadjudicated conduct is not an aggravating factor in

Virginia. Evidence of unadjudicated conduct is admissible to

prove the aggravating factor of future dangerousness.

19

both relevant and reliable for admission into evidence.

See Beaver v. Commonwealth, 352 S.E.2d 342, 346-47 (Va.

1987), cert. denied, 483 U.S. 1033 (1987). Lovitt shows no

conflict between Virginia and any federal circuit.

In the final analysis, all that Lovitt has shown is that

some States have elected to prohibit the use. of certain

evidence in capital sentencing hearings and some have

elected to specify as aggravating factors certain unadjudi-

cated conduct by the defendant which must be proven

beyond a reasonable doubt or some other standard of

proof. States have the discretion to do so because,

it is normally “within the power of the State to

regulate procedures under which its laws are

carried out, including the burden of producing

evidence and the burden of persuasion,” and its

decision in this regard is not subject to proscrip-

tion under the Due Process Clause unless “it

offends some principle of justice so rooted in the

traditions and conscience of our people as to be

ranked as fundamental.”

McMillan, 477 U.S. at 85 (citations omitted). Virginia’s

statutory sentencing scheme, including the use of unad-

judicated conduct evidence to prove the aggravating fac-

tor of future dangerousness, is authorized by the Due

Process Clause as enunciated in Williams and McMillan.

Lovitt presents no compelling reason why this Court

should grant certiorari to revisit this settled law.

20

II. Lovitt’s “Additional Errors” Argument Does Not

Merit Review.

Lovitt argues in conclusory fashion that the Virginia

Supreme Court made eleven other “errors,” all of which

merit a grant of certiorari. Lovitt, however, fails to iden-

tify a single issue that compels an exercise of the Court’s

extraordinary review power.

First “Error”

Lovitt first complains that the Virginia Supreme

Court failed to conduct a proper “proportionality” review

of his sentence pursuant to Virginia Code § 17.1-313(E).

According to Lovitt, there never has been another death

penalty case in Virginia where the murderer found the

murder weapon at the scene of the robbery. This Court,

however, may not grant certiorari to review this issue

because it involves no federal issue. See Pulley v. Harris,

465 U.S. 37, 46 (1984) (proportionality review not

required by the Constitution); Sup. Ct. R. 10. Moreover, as

seen from the Virginia Supreme Court’s opinion, the

court undeniably conducted the sentence review required

by state law. Lovitt, 537 S.E.2d at 880-81.

6 Lovitt’s assertion that there was no evidence of his

intention to confront a victim, arm himself or use a weapon, is

ludicrous. Lovitt knew the pool hall and where the money,

scissors and manager were when he planned his robbery and

planned to leave no witnesses. At least one other Virginia death

penalty case involved the unimportant detail that the murderer

picked up his weapon at the scene of the robbery. See Correll v.

Commonwealth, 352 S.E.2d 352, 354 (Va.), cert. denied, 482 U.S. 931

(1987).

21

Second “Error”

Lovitt next complains that the Virginia Supreme

Court erred because it did not find the trial court had

abused its discretion by admitting evidence showing that

Lovitt failed to show up for an appointment with his

probation officer five hours after the murder or for an

unrelated court appearance the morning after the murder.

These evidentiary rulings do not involve any federal

issue and thus may not support a grant of certiorari. See

Duncan v. Henry, 513 U.S. 364, 366 (1995); Sup. Ct. R. 10.

Moreover, as the court below found, the highly probative

nature of this evidence of flight after a crime certainly

outweighed any incidental, potential prejudicial effect.

Lovitt, 537 S.E.2d at 876-77.

Third “Error”

Lovitt’s next complaint presents no issue worthy of

review: the decision to retain a juror who expressed emo-

tion about the unrelated killings of fellow students ten

years earlier, but who stated without reservation that she

would not let that experience affect her duty to remain

unbiased. The Virginia Supreme Court’s unremarkable

rejection of the claim, based on the discretion tradi-

tionally given to trial judges who see and hear the jurors,

certainly presents no unsettled issue of law to be resolved

by this Court. See Lovitt, 537 S.E.2d at 875.

22

Fourth “Error”

Lovitt further argues that the state court erred when

it procedurally barred an assignment of error relating to a

trial court ruling allowing testimony on reputation for

truth and veracity. See Lovitt, 537 S.E.2d at 876. This issue

without question involves only the application of state

law; it involves no federal issue and thus may not sup-

port a grant of certiorari. See Sup. Ct. R. 10.

Fifth “Error”

Lovitt’s fifth complaint is that the Virginia Supreme

Court erred when it did not allow a sentencing phase jury

instruction that the defendant would “die in prison” if

given a life sentence. The court below did not allow such

an instruction because it is not an accurate statement of

Virginia law, viz., prisoners may receive executive clem-

ency. Lovitt, 537 S.E.2d at 878. Lovitt’s jury was given the

no-parole instruction required by Simmons v. South Caro-

lina, 512 U.S. 154 (1994). He was entitled to no more.

Sixth “Error”

Lovitt’s “insufficient evidence” complaint is frivo-

lous. Under Jackson v. Virginia, 443 U.S. 307, 319 (1979),

there can be no question but that the evidence was suffi-

cient. See Lovitt, 537 S.E.2d at 877.

Seventh “Error”

His next complaint — that the Virginia Supreme Court

procedurally barred a claim that his counsel should have

been allowed to testify at trial allegedly to impeach a

23

Commonwealth’s expert regarding a pretrial interview -

clearly presents no federal issue. See Lovitt, 537 S.E.2d at

878 (applying Va. Sup. Ct. R. 5:25 requiring contempora-

neous objection); U.S. Sup. Ct. R. 10.

Eighth “Error”

In his eighth complaint, Lovitt states in conclusory

terms that the future dangerousness factor is unconstitu-

tionally “vague” on its face and as applied and “the

unadorned statutory terms are unconstitutionally vague.”

(Pet. at 26). Lovitt does not explain why he believes the

factor is “vague” or what “terms” are “vague.” These

unexplained statements hardly show a compelling reason

to grant certiorari. The Virginia Supreme Court’s rejection

of the claims — Lovitt, 537 S.E.2d at 874 - certainly

involves no open question of law to be resolved. See

California v. Ramos, 463 U.S. 992, 1002-03 (1983) (future

dangerousness appropriate consideration at sentencing);

Jurek, 428 U.S. at 275 (same).

Ninth “Error”

Lovitt next claims that the Virginia Supreme Court

erred because it rejected his argument that his sentence

was influenced by passion under Virginia Code

§ 17.1-313(C), based on the alleged fact that the victim’s

family sat near the jury during the trial. The Virginia

Supreme Court’s “arbitrariness” review of the sentence,

however, is not required by the Constitution and thus

may not support a grant of certiorari. See Pulley v. Harris.

Moreover, as the court below noted, there was nothing in

the record to support any finding of passion or prejudice,

24

much less any indication that the jury even knew who

was sitting where in the courtroom. Lovitt, 537 S.E.2d at

879.

Tenth and Eleventh “Errors”

Lovitt’s last two contentions require little comment.

He complains that the Virginia Supreme Court rejected

his arguments that he was entitled to individually ques-

tion his prospective jurors and to receive more peremp-

tory challenges than allowed by Virginia law. These

issues, however, do not involve any federal issue. See

Mu’Min v. Virginia, 500 U.S. 415, 430 (1991) (no constitu-

tional right to individual voir dire); Georgia v. McCollum,

505 U.S. 42, 57 (1992) (no constitutional right to any

peremptory challenges). The Virginia Supreme Court’s

rulings — Lovitt, 537 S.E.2d at 874 — do not, therefore,

compel a grant of certiorari. See Sup. Ct. R. 10.

¢

The petition for a writ of certiorari should be denied.

25

CONCLUSION

Respectfully submitted,

Commonwealth of Virginia,

Responden¢

By counsel:

RANDOLPH A. BEALES

Acting Attorney General of Virginia

KATHERINE P. BALDWIN

Senior Assistant Attorney General

Counsel of Record

OFFICE OF THE ATTORNEY GENERAL

900 East Main Street

Richmond, Virginia 23219

(804) 786-4624