750 F.2d 1238 (4th Cir. 1984), 84-4001, Briley v. Bass

Docket Nº:84-4001.
Citation:750 F.2d 1238
Party Name:James Dyral BRILEY, Appellant, v. Gary L. BASS, Warden, Appellee.
Case Date:December 28, 1984
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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750 F.2d 1238 (4th Cir. 1984)

James Dyral BRILEY, Appellant,


Gary L. BASS, Warden, Appellee.

No. 84-4001.

United States Court of Appeals, Fourth Circuit

December 28, 1984

Argued Oct. 31, 1984.

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James X. Dempsey, Washington, D.C. (Arnold & Porter, Washington, D.C., Gerald T. Zerkin, Zerkin, Wright & Heard,

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Richmond, Va., Richard J. Wertheimer, Washington, D.C., on brief), for appellant.

Donald R. Curry, Asst. Atty. Gen., Richmond, Va. (Gerald L. Baliles, Atty. Gen., Richmond, Va., on brief), for appellee.

Before WIDENER, PHILLIPS and WILKINSON, Circuit Judges.

WILKINSON, Circuit Judge:

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.

We need not recount the facts of these brutal murders on the evening of October 19, 1979, involving James Briley, his brothers Linwood 3 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.

On this appeal, petitioner presents multiple claims of error in three categories:

1) constitutionality of jury instructions and other procedures at the penalty stage of the bifurcated trial;

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2) exclusion of prospective jurors on the basis of inability to impose the death penalty; and

3) ineffective assistance of counsel. We shall consider these claims in turn.


Analysis of petitioner's first claim requires a brief review of the Virginia capital sentencing statute. Once a defendant has been found guilty at the first stage of a bifurcated trial of one or more of the classes of capital murder enumerated in Va.Code Sec. 18.2-31, the trial proceeds to the penalty stage. Va.Code Sec. 19.2-264.3. Virginia law requires that the jury at the penalty stage find either of two specific aggravating circumstances proven beyond a reasonable doubt before the death penalty can be imposed. These aggravating circumstances are:

a) "that there is a probability [based upon consideration of the defendant's past criminal record] that the defendant would commit criminal acts of violence that would constitute a continuing serious threat to society;" or

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.

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.

At the penalty stage of Briley's trial, the Commonwealth presented two witnesses, a former police officer and a state records custodian, who testified concerning James Briley's prior convictions for armed robbery and attempted shooting of a police officer, and Briley's record while in prison. The defense offered one witness, Briley's parole officer, who testified that Briley had a good employment record following his release from prison in August 1979, and had appeared before a state judge for a parole hearing on the day of the Barton murders. The trial judge then instructed the jury, stating the aggravating circumstances and explaining the statutory jury verdict forms for each capital murder. Following

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instructions and closing arguments by the Commonwealth and defense, the jury retired. After three quarters of an hour, the jury returned its verdicts, fixing Briley's punishment for both capital murders at death. The court polled the jury, and each juror affirmed that he or she had found both aggravating circumstances to exist and agreed with the verdicts for both offenses. At no time during trial was any objection taken by the defense to the form of the instructions. 6


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:

"If you find from the evidence that the Commonwealth has proven beyond a 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).

Standing alone, the mandatory "shall" would pose constitutional difficulties, suggesting to a jury that a finding of an aggravating circumstance required imposition of the death penalty. 7 No statute or instruction may strip from the jury its power of life. Mandatory death sentences are unconstitutional, condemned by the Supreme Court in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976) and Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) as violative of the Eighth and Fourteenth Amendments because of their "lack of focus on the circumstances of the particular offense and the character and propensities of the offender," Roberts, 428 U.S. at 333, 96 S.Ct. at 3006 (opinion of Stewart, Powell and Stevens, JJ.). It is clear that a sentencing jury must be allowed, in all but the rarest kind of capital cases, to consider as a mitigating factor "any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978) (opinion of Burger,

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C.J.). 8 See also Bell v. Ohio, 438 U.S. 637, 642, 98 S.Ct. 2977, 2980, 57 L.Ed.2d 1010 (1978) (opinion of Burger, C.J.). A capital sentencing system which allowed the jury to consider only aggravating circumstances would be barred under Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), because of its similarity to the mandatory laws held unconstitutional in Woodson and Roberts. Jurek, 428 U.S. at 271, 96 S.Ct. at 2956 (opinion of Stewart, Powell, and Stevens, JJ.).

In reviewing these instructions, however, we bear in mind that "a single instruction to a...

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