742 F.2d 155 (4th Cir. 1984), 84-6243, Briley v. Bass

Docket Nº:84-6243.
Citation:742 F.2d 155
Party Name:Linwood E. BRILEY, Petitioner-Appellant, v. Gary L. BASS, Warden, Respondent-Appellee.
Case Date:August 23, 1984
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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742 F.2d 155 (4th Cir. 1984)

Linwood E. BRILEY, Petitioner-Appellant,


Gary L. BASS, Warden, Respondent-Appellee.

No. 84-6243.

United States Court of Appeals, Fourth Circuit

August 23, 1984

Argued Aug. 7, 1984.

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William H. Allen, Washington, D.C. (William E. O'Brian, Jr., Timothy C. Hester, Covington & Burling, Washington, D.C., Deborah C. Wyatt, Charlottesville, Va., on brief), for petitioner-appellant.

James E. Kulp, Sr. Asst. Atty. Gen., Richmond, Va. (Gerald L. Baliles, Atty. Gen., Richmond, Va., on brief), for respondent-appellee.

Before RUSSELL, WIDENER and HALL, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

The petitioner in this habeas proceeding was convicted in a two-stage trial of capital murder and sentenced to death by a judge and jury in the Circuit Court for the City of Richmond, Virginia. He appealed the conviction and sentence to the Virginia Supreme Court, which affirmed the conviction and sentence. 1 Application for certiorari was denied by the United States Supreme

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Court. 2 The petitioner sought post-conviction relief in the State trial court. That petition was denied by the State Circuit Court and, on appeal, the denial was affirmed by the Virginia Supreme Court in an unpublished opinion. On application for certiorari that application was denied. 3 At this point the petitioner filed a habeas petition in the United States district court. After a full hearing, including testimony submitted by the parties, the district court denied the petition in an extended opinion. 584 F.Supp. 807. The petitioner has now appealed such denial. We affirm.


The conviction in this case arose out of the murder of John Harvey Gallaher in Richmond, Virginia, on the evening of September 14, 1979. It is unnecessary to recount in detail the circumstances of the murder or trial other than those connected with a part of the examination of the witness Duncan Eric Meekins, since the facts generally are adequately set forth in the opinion of the Virginia Supreme Court. 4

Duncan Meekins, whose testimony is the primary issue on this appeal, had participated in the robbery which led to Gallaher's murder and was present at the murder. He testified as a witness for the prosecution in this case under a plea bargain agreement with the Commonwealth. A juvenile sixteen years of age at the time of the murder and trial, Meekins, according to his testimony at trial, lived a few doors from the residence of the petitioner's family in Richmond. Though considerably younger than the Briley brothers, 5 he often visited with the brothers and participated with them in their activities. In connection with the investigation of a murder in which the Brileys and Meekins were suspected (the Wilkerson murder), Meekins and the petitioner were arrested by the Richmond authorities and taken to the police headquarters. Because Meekins was a minor, the police officers did not interrogate him until his mother and father had arrived at the police station and were present for consultation with their son. 6 At the urging of his parents, Meekins gave the police authorities full information about the crimes in which he had participated with the group. In his testimony in this case concerning the Gallaher murder in which he and the brothers had been involved, Meekins testified to the circumstances of the robbery and the brutal shooting of Gallaher in the back as he was being pushed helplessly about by the group. More importantly, he provided in his testimony the evidence which identified the petitioner as the murderer of Gallaher.

Since Meekins was the only witness to provide evidence in the trial that the petitioner was the "triggerman" in the murder which was the subject of the prosecution, the petitioner naturally sought to put in issue at trial Meekins' credibility by attempting to develop through cross-examination that his testimony was tainted by his plea bargain, particularly by the promise of immunity from the death penalty in the Wilkerson case. To this end, his counsel began with an inquiry into the existence of a plea bargain. The existence of a plea bargain and its details had been made known both to the trial court and the petitioner's counsel before Meekins testified. The terms of such plea bargain were that the Commonwealth would (1) in one of the Barton Avenue murders, in which the group was involved and in which Meekins had been the "triggerman" not ask for the

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death penalty against Meekins, 7 and (2) in all the others in which Meekins had participated with the Briley brothers, including the one under review here, Meekins was not to receive more than any other defendants received and (3) finally, Meekins was to testify "truthfully" in all the cases in which the group had been involved. When asked about the plea bargain in this case, Meekins responded that "for this case" the agreement provided that he was to receive no more time on conviction than any other defendant involved in the prosecution.

When the witness testified what his plea bargain was "for this case," a bench conference was promptly requested by the Commonwealth's attorney. In this bench conference, the Commonwealth's attorney explained the reason the witness restricted his explanation of the plea bargain to the prosecution before the court. He said that in order "not to bring anything in this case which would indicate or cause an error to the defendant," he had "cautioned" Meekins about submitting "any testimony concerning the triple homicide on Barton Avenue or the double homicide on Fifth Avenue," these being other murders in which it was alleged the witness and the petitioner had been involved. But the Commonwealth's attorney positively indicated no intention of seeking to limit in any way inquiries into all or any part of the plea bargain. In fact he suggested that petitioner's counsel ask the witness specifically about the application of the plea bargain to "any case that [the witness] might be involved in." This suggestion, had it been accepted by petitioner's counsel, could have elicited the terms of the plea bargain as it related to the Wilkerson murder in which the witness had been given immunity from the death penalty. To the invitation of the prosecution that the petitioner's counsel should ask the witness what the plea bargain was in any of the cases in which he was involved, the petitioner's counsel immediately responded: "I think we are entitled to know what the plea agreement [was] without opening up all that," indicating clearly the intention of petitioner's counsel to limit any inquiry to the bare fact that Meekins had been promised immunity from a death sentence for his testimony and of strictly omitting any reference to the circumstances of the case in which the immunity was granted.

The Commonwealth's attorney's response to this contention that the petitioner was entitled to limit the inquiry about the plea bargain only to the bare fact that it included immunity in favor of the witness from any death sentence was that the "jury [was] entitled to know what the plea agreement is" in its "entirety." It was thus the Commonwealth and not the petitioner who sought to go into the plea bargain "in [its] entirety." The petitioner's counsel's answer was that all he wanted "to ask" the witness was whether it was not a part of the agreement "that [the witness] won't get the chair." The Court ruled that such question was proper and would be allowed, but warned counsel that if the petitioner asked the witness whether he had "been promised that he won't get the chair, then you [referring to Commonwealth's attorney] are going to have the right to ask him, doesn't that apply to other cases?" And at that point "you [referring to petitioner's counsel] are going to open up the whole band box." After a conference following this colloquy the petitioner elected not to inquire further into the specific terms of Meekins' plea bargain.

Later in the proceedings the petitioner vouched the record that he had expected to prove in his cross-examination of Meekins on the plea bargain. He repeated that he wanted by his cross-examination to show that Meekins "had killed somebody and could have, in fact, been subject to capital murder on that killing, and that a part of his plea bargain was that he would not get the chair." However, the petitioner by his counsel contended, despite his limited inquiry into the plea bargain, that the Commonwealth

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should be barred from inquiring on redirect into any other parts of the plea bargain between the Commonwealth and Meekins or into any of the details of the witness' involvement in the Wilkerson murder, the very murder in which the plea bargain gave the witness immunity from the death penalty, because that would have exposed the petitioner's connection with the Wilkerson and Barton murders.

Later, in the federal habeas proceedings, the Commonwealth's attorney responded to an interrogatory directed at eliciting the testimony that the Commonwealth was prepared to offer in connection with the plea bargain giving Meekins immunity from a capital offense in the murder of Wilkerson. He stated that he was prepared to show that Meekins had acted as "triggerman" in the killing of Wilkerson only "because of his fear of the Brileys." He added also that Meekins had become "disgusted" and had sought to persuade the Brileys to desist from their "senseless and wanton killings." This proffer was in line with the witness' testimony in the related prosecution of the brother James Briley as reported in 273 S.E.2d at 59. In that testimony Meekins admits that in this incident in which Harvey Wilkerson, his common law wife Judy Diane Barton, and their five-year old son Harvey Wayne Barton were murdered, he had fired the fatal shot killing Harvey Wilkerson. He...

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