Briley v. Com.

• Decision Date: 26 November 1980
• Docket Number: No. 800690,800690
• Citation: 273 S.E.2d 48,221 Va. 532
• Parties: Linwood Earl BRILEY v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 48

273 S.E.2d 48

221 Va. 532

Linwood Earl BRILEY v. COMMONWEALTH of Virginia.

Record No. 800690.

Supreme Court of Virginia.

Nov. 26, 1980.

Frank N. Cowan, Richmond (Deborah S. O'Toole, Cowan, Owen & Nance, Richmond, on brief), for appellant.

James E. Kulp, Deputy Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before HANSON, C. J., and CARRICO, HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ.

CARRICO, Justice.

In a two-stage jury trial conducted in accordance with Code §§ 19.2-264.3 and -264.4, the defendant, Linwood Earl Briley, was convicted of capital murder for a willful, deliberate, and premeditated killing occurring in the commission of robbery while armed with a deadly weapon, Code § 18.2-31(d) and his punishment was fixed at death. ¹ After receipt of a post-sentence report of a probation officer, Code § 19.2-264.5, the trial court imposed upon the defendant the sentence fixed by the jury. Pursuant to Code §§ 17-110.1(A) and -110.1(F), the defendant is here for automatic review of his death sentence, consolidated with his appeal from his conviction.

The victim in the case, John Harvey Gallaher, was a disc jockey for a Richmond radio station and a member of a small "musical combo." On the evening of September 14, 1979, Gallaher was playing with the "combo" at the Log Cabin, a southside Richmond restaurant. During an intermission, Gallaher left the restaurant by a rear door. He never returned. Two days later, his bullet-torn body was found, half-submerged, at the foot of a bank on Mayo Island in the James River.

On October 22, 1979, Duncan Meekins was arrested and charged in connection with the robbery and murder of Gallaher. Subsequently, Meekins implicated the defendant in the offenses.

Meekins was the Commonwealth's principal witness at the defendant's trial. In his testimony, Meekins stated that, on the evening in question, he was with the defendant and the latter's two brothers, Anthony and James, when the foursome decided to look for "somebody to mug." The group had a sawed-off shotgun and a high-caliber rifle in their car as they drove up and down Jefferson-Davis Highway in southside Richmond looking for a likely victim. Unsuccessful in their quest, they parked near the Log Cabin "to see if (a possible victim) was going to come out." Exiting their car, they hid behind some bushes at the rear of the Log Cabin, with the defendant carrying the rifle and Meekins the shotgun.

According to Meekins' further testimony, Gallaher came out the rear door of the Log Cabin and walked over to the bushes where the waiting gunmen were hiding. The defendant accosted Gallaher, ordered him to lie face-down on the ground, and removed his wallet and keys. At the defendant's direction, Meekins went to look for Gallaher's automobile. When Meekins returned with the car, a Lincoln Continental, he and the defendant forced Gallaher to lie on the rear floorboard. With Meekins in the back seat guarding Gallaher, the defendant drove the car away. Anthony and James drove off in the automobile in which they arrived at the Log Cabin; sometime later, Anthony and James parked their car and joined the defendant and Meekins in Gallaher's automobile.

Continuing with his testimony, Meekins stated that the defendant drove to Mayo Island in the James River and parked on the grounds of a paper company located there. The defendant and Meekins forced Gallaher from the car. When Gallaher "started struggling like to stand up," the defendant "came up with the rifle and shot him."

Concluding his testimony, Meekins said that 15 to 20 minutes elapsed from the time Gallaher was seized at the Log Cabin until he was shot on Mayo Island. After the shooting, the assailants left the murder scene and drove around the city in Gallaher's car. When the "tank ... almost ... was on empty," the culprits parked the car and stripped it of parts.

Testifying in his own behalf as his only witness, the defendant denied all complicity in the robbery and murder of Gallaher. The defendant stated that, on the evening in question, he gave Meekins a ride to the home of Meekins' uncle in southside Richmond. After Meekins left the vehicle, the defendant proceeded toward a fried chicken restaurant to see a girl who worked there; en route, his car broke down, and he tried unsuccessfully to restart it. Sometime later, Meekins drove up in a Lincoln automobile and gave the defendant a ride home. The defendant admitted that he and Meekins stripped the Lincoln of parts.

Other testimony below showed that the defendant's fingerprints were found in Gallaher's car. When arrested, the defendant was wearing Gallaher's ring; Gallaher's watch was found in the defendant's home. The defendant told the arresting officer that he bought the ring and watch from a person known as "A.C." In his testimony, however, the defendant stated he purchased the items from Meekins.

In a pretrial motion, the defendant sought dismissal of his capital murder indictment on the ground that Virginia's death penalty statutes are unconstitutional. The trial court denied the motion. On appeal, the defendant states that he is familiar with the constitutional arguments advanced against the death penalty statutes in earlier cases before this court, ² and he recognizes that the rulings in those cases are adverse to his position. The defendant says, therefore, that, while he wishes to preserve the points, he need not repeat the arguments. Further, the defendant raises purportedly novel arguments against the validity of the death penalty statutes. These arguments, however, are mere variations of the themes previously argued and ruled meritless. We need not repeat the rulings; we reaffirm them and, accordingly, reject all the defendant's arguments concerning the validity of the death penalty statutes.

In another pretrial motion, the defendant sought a change of venue based upon a claim of prejudicial publicity. The trial court denied the motion. On the morning of trial, the defendant renewed the motion; the court again denied the request.

In support of his change-of-venue motion, the defendant submitted affidavits from members of the community, scripts of broadcasts by local television stations, and a notebook containing approximately 70 articles from local newspapers. These materials showed that, in the months preceding the defendant's trial for the present offenses, he and his brothers had been tried in the Richmond area on numerous charges of rape, robbery, and murder, all of which had been given extensive media coverage. In the opinion of the affiants in the several affidavits, the defendant could not "receive a fair trial by an unbiased and impartial jury in the City of Richmond."

Although acknowledging that the question whether to change venue generally is left to the sound discretion of the trial court, the defendant contends that the "unusual circumstances of this case and the resulting extensive media coverage" concerning his present and earlier crimes required the granting of his motion to change venue. Citing a number of our prior decisions involving change-of-venue questions, ³ the defendant argues that, in resolving the issue in this case, we should consider (1) the time elapsed between the commission of the crimes charged and trial, (2) the community interest in the case, and (3) the difficulty encountered in selecting a fair and impartial jury.

The defendant says that the publicity concerning his current and earlier crimes continued "right up to the time" of trial of the present charges. He states further that community interest in the case was aroused by the publicity to the extent that his name became "almost synonymous with 'brutal killings.' " Finally, he asserts that the selection of a jury in his case proved difficult, the process consuming over ten hours and requiring examination of 55 prospective jurors.

There are fatal weaknesses, however, in the defendant's position. He does not claim that any of the publicity about which he complains was either inaccurate or intemperate. Greenfield v. Commonwealth, 214 Va. 710, 717, 204 S.E.2d 414, 419 (1974). Neither has he demonstrated "such a widespread feeling of prejudice on the part of the citizenry as (would have been) reasonably certain to prevent a fair and impartial trial." Coppola v. Commonwealth, supra, note 2, 220 Va. at 248, 257 S.E.2d at 801. Nor has he directed us to specific portions of the record "which would require a finding of constitutional unfairness as to the method of jury selection or as to the character of the jurors actually selected." Dobbert v. Florida, 432 U.S. 282, 303, 97 S.Ct. 2290, 2303, 53 L.Ed.2d 344 (1977).

In this latter connection, the defendant cites the voir dire examination of two prospective jurors, Barbara Smith and William Slaughter. The defendant argues that these prospective jurors should have been excluded for cause since widespread media coverage had influenced them to the extent that they had formed opinions concerning his guilt and, therefore, they could not stand indifferent in the case.

The record shows clearly, however, that while these two prospective jurors had read accounts or listened to broadcasts concerning the criminal activities of the defendant, neither venireman had formed an opinion concerning the defendant's guilt. Furthermore, both prospective jurors stated unequivocally that they would determine the case solely upon the evidence presented in court. Their exposure to media coverage, therefore, did not disqualify them from service on the defendant's jury. ⁴ Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961).

The defendant's complaint concerning pretrial publicity is no more than a claim that the sheer volume of the media coverage of his and his brothers' many crimes required a change in the location of his trial. Such a claim, standing alone, does not suffice to require a change of venue. Dobbert v. Florida, su...