Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
2d 1238
James Dyral Briley, under sentence of death for two capital murders, appeals
from the dismissal of his petition for a writ of habeas corpus by the United
States District Court. We find no merit in his contentions, and we affirm the
decision of the District Court.
Petitioner was convicted in a bifurcated jury trial in the Circuit Court of the
City of Richmond, Virginia, in January 1980 of the capital murder of five year
old Harvey Barton during the commission of an armed robbery, and the capital
murder of Judy Barton, Harvey's mother, during the commission of or
subsequent to rape,1 as well as several other non-capital crimes.2 In the penalty
stage of the bifurcated trial, the jury recommended death for both capital
murders, and the state trial court imposed sentence accordingly. On direct
appeal the Supreme Court of Virginia affirmed Briley's convictions and
sentences, (James Dyral) Briley v. Commonwealth, 221 Va. 563, 273 S.E.2d 57
(1980), and Briley did not seek certiorari from the United States Supreme
Court. Petitioner filed for writ of habeas corpus under 28 U.S.C. Sec. 2254 in
the United States District Court for the Eastern District of Virginia on March 5,
1981; the district court dismissed that petition. This Circuit on appeal stayed
execution and remanded with instructions to retain jurisdiction and hold the
case in abeyance pending completion of petitioner's state habeas corpus
proceedings, instituted on March 16, 1981. Our stay has heretofore remained in
effect. The state circuit court dismissed all but two of petitioner's numerous
collateral claims without a hearing, and rejected the remaining two, including
an ineffective assistance of counsel claim, following an evidentiary hearing.
The Virginia Supreme Court, in an unpublished opinion refusing Briley's
petition to appeal, found no error in the rulings below, and the United States
Supreme Court denied certiorari, 460 U.S. 1103, 103 S.Ct. 1804, 76 L.Ed.2d
367 (1983). Petitioner filed on June 3, 1983 the amended petition for a writ of
habeas corpus which is the subject of this appeal. The district court, pursuant to
an extensive magistrate's opinion, dismissed that petition on June 22, 1984.
3
We need not recount the facts of these brutal murders on the evening of
October 19, 1979, involving James Briley, his brothers Linwood3 and Anthony,
and their sixteen year old accomplice Duncan Eric Meekins, as this background
is fully discussed in the opinion of the Virginia Supreme Court. See 273 S.E.2d
at 58-60. Petitioner did not testify at trial, and the Commonwealth relied
principally on the testimony of Meekins, who had entered into a plea bargain
with the Commonwealth.
b) "that his conduct in committing the offense ... was outrageously or wantonly
vile, horrible or inhuman in that it involved torture, depravity of mind or an
aggravated battery to the victim."4 Va.Code Sec. 19.2-264.2(1). See also
Va.Code Sec. 19.2-264.4C, D.
10
If one or both of these circumstances are present, the jury must still decide
whether to recommend the death penalty. Va.Code Sec. 19.2-264.2(2). In doing
so, the jury is required to consider "the evidence in mitigation of the offense,"
as stated on the statutory jury verdict forms. Va.Code Sec. 19.2-264.4D. The
Virginia Supreme Court has held that, notwithstanding a showing of
aggravating circumstances, the jury is at liberty under the capital sentencing
statute to recommend life imprisonment. Smith v. Commonwealth, 219 Va.
455, 248 S.E.2d 135, 150 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60
L.Ed.2d 1074 (1979). A list of five non-exclusive mitigating circumstances
appears in the statute, 5 but the defense is permitted to introduce any evidence
relevant to the penalty decision, including "the circumstances surrounding the
offense, the history and background of the defendant, and any other facts in
mitigation of the offense." Va.Code Sec. 19.2-264.4B.
11
II
12
13
Petitioner's initial claim is that the instructions given by the trial judge to the
jury at the penalty stage of the trial were constitutionally flawed because they
failed to inform the jury adequately of its option to recommend life
imprisonment and its obligation to consider mitigating circumstances. We find,
however, that the instructions as given, reprinted in full at Appendix A of this
opinion, present no constitutional error, and therefore reject petitioner's claim.
A. Petitioner focuses on a single phrase in the instructions as the foundation of
his claim that the jury was not informed adequately of the option to recommend
life imprisonment. After presenting the two aggravating circumstances for the
first time, the trial judge stated:
14 you find from the evidence that the Commonwealth has proven beyond a
"If
reasonable doubt either of the two alternatives, then you shall 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
imprisonment." (emphasis added).
15
16
Taken as a whole, the instructions leave no doubt that the jury was free to
recommend life imprisonment. Immediately after the language in question, the
trial judge instructed the jury that "if you believe from all the evidence that the
death penalty is not justified," life imprisonment should be imposed. All the
evidence, we believe, necessarily means that the jury was to consider the
evidence presented in mitigation as well as that in aggravation in reaching its
decision. A contrary interpretation, in which inquiry ceased after the finding of
an aggravating circumstance, would have rendered the presentation of the case
in mitigation by the defense inexplicable to the jury, as the evidence was
irrelevant to either of the statutory aggravating circumstances. Our view finds
further support in the trial judge's reading of the statutory jury verdict forms for
each of the capital murders, which contained the phrases "having considered
the evidence in mitigation of the offense" and "having considered all the
evidence in aggravation and mitigation of such offense." This language is
mandated by Va.Code Sec. 19.2-264.4D and was also embodied in the written
verdict forms upon which the jury rendered its sentencing decision for each
murder.9 Thus, the jury was instructed no less than five times to consider "all
the evidence," the evidence in "mitigation," or both, in arriving at its verdicts.
The instructions leave the definite impression that the jury was to take into
account such evidence as was presented in mitigation and to exercise discretion
in reaching a verdict on sentencing, rather than automatically imposing the
death sentence upon finding an aggravating circumstance. Petitioner's
contention falls far short of satisfying the standard of Cupp and Henderson for
reversal on collateral review, that "the ailing instruction by itself so infected the
entire trial that the resulting conviction violates due process."
18
B. Petitioner contends that the trial judge's failure to offer a fuller explanation
of the concept of mitigation renders the sentences unconstitutional. We
disagree. The Supreme Court has never attempted to prescribe the precise form
that state jury instructions must take. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct.
2909, 49 L.Ed.2d 859 (1976) requires that a jury be given guidance in reaching
the sentencing decision, 428 U.S. at 192-93, 96 S.Ct. at 2934 (opinion of
Stewart, Powell and Stevens, JJ.). This condition is satisfied, however, where
there exists a "carefully drafted statute" and "the sentencing authority is
required to specify the factors it relied upon in reaching its decision." Id. at 195,
96 S.Ct. at 2935. Here, the jury's discretion was channeled by the necessity of
finding at least one of the specific aggravating circumstances before capital
punishment could be considered. Although the trial judge did not instruct the
jury on any of the non-exclusive statutory mitigating circumstances, the
defense had not sought such an instruction nor offered any evidence to justify it.
Moreover, under Hutchins v. Garrison, 724 F.2d 1425, 1436-37 (4th Cir.1983),
the propriety of such an instruction was purely a matter of state law and not
cognizable by a federal court on habeas review. Instructing on the specific
mitigating circumstances might even have been harmful to Briley in certain
respects. For example, referring to the "no significant history of prior criminal
activity" circumstance, Va.Code Sec. 19.2-264.4B(i), would only have served to
focus still further attention on Briley's substantial record of serious offenses,
including armed robbery and attempted murder of a police officer.
19
21
22
Petitioner's case is different from Godfrey. Petitioner's conduct was found to fit
all three "vileness" subcategories of "torture," "depravity of mind," and
"aggravated battery," while only the "depravity of mind" subcategory was
potentially applicable to the defendant in Godfrey. See 446 U.S. at 432-33, 100
S.Ct. at 1766-67. Furthermore, petitioner was not sentenced to death solely on
the basis of a finding of the "vileness" circumstance alone, as in Godfrey, but
also on the basis of the alternative aggravating circumstance of future
dangerousness, a "probability that the defendant would commit criminal acts of
violence that would constitute a continuing serious threat to society." Va.Code
Sec. 19.2-264.2(1). The constitutionality of this alternative ground is beyond
question, as an identical provision in the Texas capital sentencing statute was
upheld in Jurek v. Texas, 428 U.S. 262, 272-74, 96 S.Ct. 2950, 2956-57, 49
L.Ed.2d 929 (opinion of Stewart, Powell and Stevens, JJ.). Thus, even if the
"vileness" circumstance were somehow unconstitutionally applied,10 which we
do not suggest, we would not be required to vacate the death sentence under
Zant v. Stephens, which holds that "a death sentence supported by at least one
valid aggravating circumstance need not be set aside ... simply because another
aggravating circumstance is 'invalid' in the sense that it is insufficient by itself
to support the death penalty."11 103 S.Ct. at 2746. We have recently dealt with
and rejected a similar challenge to a "vileness" instruction in (Linwood E.)
Briley v. Bass, 742 F.2d 155, 165-66 (4th Cir.1984), and we find petitioner's
claim no more persuasive.12
23
III
24
Petitioner's second category of issues relates to the trial court's exclusion of two
prospective jurors whose reservations about the death penalty allegedly did not
rise to the level of opposition required for exclusion under Witherspoon v.
Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). We find,
however, that the trial judge did not abuse his discretion in excluding both
jurors.13
25
abuse of discretion. See also (Linwood E.) Briley v. Booker, 746 F.2d 225, 227
(4th Cir.1984). This is consistent with the Supreme Court's decision in Patton v.
Yount, --- U.S. ----, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984), which holds that
juror impartiality is a question of historical fact, due a presumption of
correctness under 28 U.S.C. Sec. 2254(d) where there is "fair support in the
record." 104 S.Ct. at 2891-93. The Court recognized that it is not unusual on
voir dire examination for the testimony of jurors to be ambiguous or even
contradictory, and that the trial judge "is best suited to determine competency to
serve impartially." Id. at 2893. It is equally reasonable, where some statements
by a juror are equivocal and others demonstrate an unwillingness to impose the
death penalty in any case, to rely on the trial court's discretion in determining
which responses best manifested the juror's true opinions.
26
One of the jurors in question, Ms. Joyce Candies, asserted that she did not
believe in the death penalty. Asked whether she would "hang the jury" rather
than impose the death penalty, she was initially uncertain, but finally responded
that she would. Furthermore, in response to defense counsel's questions about
whether she could not impose the death penalty regardless of the circumstances
or the "overwhelming" evidence, Candies stated, "This is the way I feel right
now," and "I don't think I could." We find that the evidence was plainly
sufficient to justify the exclusion of Candies under the "abuse of discretion"
standard.14
27
The other juror, Ms. Mary Revere, also stated that she did not believe in the
death penalty on "conscientious" grounds. The court asked whether, if she were
"absolutely positive" that the imposition of the death penalty was proper in this
case, she would "hang the jury" before surrendering a conscientious scruple,
and she twice responded, "Yes, sir." When asked by defense counsel whether
there was no way she could impose the death sentence no matter how bad a
particular case, Revere answered, "Well, I say rather than the death sentence, I
don't say turn him out, but punish him." There was thus ample reason to believe
that this juror would not vote to impose the death penalty in any circumstance,
and we find that her exclusion was proper.
28
Petitioner also contends that the exclusion of any venire member because of his
or her attitude toward the death penalty is unconstitutional because it produces
a conviction-prone jury. We rejected an identical argument in Keeten, 742 F.2d
at 133-34, and that decision is controlling here.
IV
29
the guilt and penalty stages of the trial. The conduct of petitioner's trial cocounsel, Mr. Hayes and Mr. Turner, has been extensively reviewed by both the
Virginia state courts on collateral attack, with the benefit of an evidentiary
hearing, and by the magistrate at the district court proceedings below, and none
of these reviewing authorities have found counsel to have been inadequate to
their task. Nevertheless, we have undertaken our own review of the record in
light of the numerous allegations of ineffective assistance presented by
petitioner, and we find those allegations meritless.
30
Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),
provides the framework for analysis of ineffective assistance of counsel claims.
Attorneys are held to an objective standard of "reasonably effective assistance"
under "prevailing professional norms." 104 S.Ct. at 2064-65. The Court in
Strickland emphasized that "[j]udicial scrutiny of counsel's performance must
be highly deferential," and that "a court must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable professional
assistance," viewing the case as of the time of counsel's conduct rather than in
hindsight, and recognizing counsel's discretion in the shaping of trial strategy.
Id. at 2065-66. Furthermore, prejudice to the defense must be present for
reversal. Strickland requires that:
31 defendant must show that there is a reasonable probability that, but for
"The
counsel's unprofessional error, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome."
32
Id. at 2068.
33
34
instructions on the merits in part II, supra, we need not address the latter aspect
of petitioner's ineffectiveness claim further.
35
During the penalty stage of the trial defense counsel introduced only one
mitigation witness, Briley's parole officer, whose testimony principally served
to establish that Briley had a good employment record after his release from
prison in August 1979 and had kept in contact with the parole officer as
required. Counsel was not otherwise inactive during this stage of the trial,
however. The police officer involved in Briley's prior murder attempt was
cross-examined, and it was established that Briley was only sixteen at the time
of that offense and that the officer was never actually harmed. Crossexamination of the state records custodian revealed that while Briley had
committed several minor offenses while in prison, none involved violence, and
Briley had sought to learn a trade and earned substantial time off his sentence
for good conduct.
36
V
37
Having examined with care all of petitioner's allegations of error, we are of the
opinion that the district court's dismissal of the petition for a writ of habeas
corpus must be affirmed. The stay of execution shall be dissolved upon
AFFIRMED.
APPENDIX A
39
THE COURT: Ladies and gentlemen of the jury, the Court will now instruct
you as to the punishment aspect of the case. You have convicted the defendant
of an offense which may be punishable by death. You must decide whether the
defendant shall be sentenced to death or to life imprisonment.
40
Before the penalty can be fixed at death, the Commonwealth must prove
beyond a reasonable doubt at least one of the following two alternatives: One,
that, after consideration of his past criminal record, there is a probability that he
would commit criminal acts of violence that would constitute a continuing,
serious threat to society; or, two, that his conduct in committing the offense was
outrageous and 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 Commonwealth has proven beyond a reasonable doubt either or the two
alternatives, then you shall 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 imprisonment. If the
Commonwealth has failed to prove either alternative beyond a reasonable doubt,
then you shall fix the punishment of the defendant at life imprisonment.
41
You have, you have really found him guilty of two capital murders. This one
instruction will take care of both capital murders. That's what you must find.
42
Then I give you the forms of your verdict, which read: We, the jury, on the
issues joined, having found the defendant guilty of capital murder of Judy
Diane Barton, the commission of robbery while armed with a deadly weapon,
and having found that, now you will have to scratch out what you do not find.
In other words, you will use your pencil or pen and just scratch that out.
43
One, after consideration of his past criminal record, that there is a probability
that he would commit criminal acts of violence that would constitute a
continuing, serious threat to society and/or you can find both or one. His
conduct in committing the offense is outrageously or wantonly vile, horrible, or
inhuman in that, it involved torture, depravity of mind, aggravated battery of
the victim beyond the minimum necessary to accomplish the act of murder, and
having considered the evidence in mitigation of the offense, unanimously fix
his punishment at death; or, we, the jury, on the issues joined, having found the
defendant guilty of capital murder of Judy Diane Barton during the commission
of robbery while armed with a deadly weapon and having considered all of the
evidence in aggravation and mitigation of such offense, fix his punishment at
imprisonment for life. In any event, your foreperson will find that verdict.
44
You will also have another verdict on Harvey Wayne Barton, which is, and
won't cross out the same thing: We, the jury, on the issues joined, having found
the defendant guilty of capital murder of Harvey Wayne Barton during the
commission of robbery while armed with a deadly weapon and having found
that, then you must find one of these two things, or both. After consideration of
his past criminal record, that there is a probability that he will commit criminal
acts of violence that will constitute a continuing, serious threat to society or,
and/or his conduct in committing the offense is outrageously or wantonly vile,
horrible, or inhuman in that it involved torture, and that means depravity of
mind, aggravated battery of the victim beyond a minimum necessary to
accomplish the act of murder, and having considered the evidence in mitigation
of the offense, unanimously fix his punishment at death; or, we, the jury, on the
issues joined, having found the defendant guilty of capital murder of Harvey
Wayne Barton during the commission of robbery while armed with a deadly
weapon and having considered all the evidence in aggravation and mitigation of
such offense, fix his punishment at imprisonment for life. In any event, your
foreperson will sign that verdict.
Va.Code Sec. 18.2-31(d), (e). The identical subsections were effective under
the former statute at the time of petitioner's trial. Where this opinion cites to
sections of the Virginia Code, the relevant law does not differ materially from
that then in effect
In Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978), cert. denied,
441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979), the Virginia Supreme
Court construed the words "aggravated battery" to mean, in the context of the
capital sentencing statute, a battery more culpable than "the minimum
necessary to accomplish an act of murder." 248 S.E.2d at 149. Accordingly, the
trial court's instructions modified the second aggravating circumstance to
incorporate this construction
The written instruction used at petitioner's trial contained the permissive "may,"
rather than "shall" as in the oral instruction. Under Virginia practice the written
instruction is provided to the jury, see e.g. Bowles v. Commonwealth, 103 Va.
816, 48 S.E. 527, 534 (1904), and there is no reason to believe that the practice
was not followed at petitioner's trial. We do not, however, rest our decision on
the language of the written instruction, as it is uncertain whether the jury
followed this language or that actually given by the trial judge; in either case,
as discussed infra, the instruction does not present an error of constitutional
magnitude
8
10
Gregg v. Georgia, 428 U.S. 153, 201, 96 S.Ct. 2909, 2938, 49 L.Ed.2d 859
(opinion of Stewart, Powell and steveNS, Jj.)
11
12
13
As with the jury instruction issues above, the Commonwealth contends that
petitioner's Witherspoon claims are now barred by Wainwright v. Sykes, 433
U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594, due to failure to object to the exclusion
of the jurors at trial. Petitioner first challenged the juror exclusion in issue IV of
his state habeas petition. The Virginia courts disposed of this issue on the
ground of procedural default, and also found, in resolving the ineffectiveness of
counsel claim, that the trial court's juror selection procedure complied with
Witherspoon. In light of this alternative finding on the substantive merits, we
will also reach the merits here
14
During voir dire, defense counsel asked Candies whether she could impose the
death penalty if "ten people killed a small child," and her responses reflected
uncertainty. In the face of her other answers, however, we attach little weight to
her attitude in an exaggerated hypothetical situation