Briley v. Com.
| Decision Date | 26 November 1980 |
| Docket Number | No. 800904,800904 |
| Citation | 221 Va. 563,273 S.E.2d 57 |
| Court | Virginia Supreme Court |
| Parties | James Dyral BRILEY v. COMMONWEALTH of Virginia. Record |
Halford I. Hayes, Richmond (Richard A. Turner, Hayes & Smith, P. C., Richmond, on brief), for appellant.
Robert E. Bradenham, II, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.
Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ.
A jury convicted James Dyral Briley of the capital murder of Harvey Wayne Barton during the commission of an armed robbery; of the capital murder of Judy Diane Barton during the commission of or following rape; of the first degree murder of Harvey W. Wilkerson; of the robbery of Harvey W. Wilkerson; of the rape of Judy Diane Barton; and of the use of a firearm during the commission of each of the foregoing crimes. In the penalty stage of the bifurcated proceeding, the jury recommended that Briley's punishment be fixed at death in each of the capital murder cases. Following the receipt of a post-conviction report of a probation officer, the trial court held a sentencing hearing and confirmed the jury's verdict in each case. The defendant sought and is entitled as a matter of right to this appellate review of his death sentences, and it, along with the appeal of all his convictions, has been given priority on our docket. 1 The defendant requests, alternatively, that we reverse his convictions and dismiss all indictments returned against him, or grant him a new trial, or grant him a new trial as to punishment, or commute his death sentences to life imprisonment.
The murders involved occurred in the City of Richmond at 2301 Barton Avenue in the home of Harvey W. Wilkerson on the evening of October 19, 1979. Two days later the bodies of Wilkerson, his "common-law" wife, Judy Diane Barton, and their five-year-old son, Harvey Wayne Barton The Commonwealth relies primarily on the testimony of Duncan Eric Meekins, a sixteen-year-old youth, who admitted that he murdered Wilkerson and was present during the commission of the various offenses of which the defendant stands convicted. Meekins' testimony was verified in part by the testimony of police officers who had the defendant, his brothers, and Meekins under surveillance at the time of the commission of the crimes. After Meekins' arrest and confession he entered into a plea agreement with the prosecution by which he would receive a life sentence for the first degree murder of Wilkerson and sentences for other offenses committed by him not exceeding the punishment given any other participant in the crimes.
were found. Wilkerson and Mrs. Barton had been bound and gagged. The woman had been raped and shot four times. The man and boy had been shot once each. All died from the gunshot wounds.
The Commonwealth established that on the evening of October 19, 1979, the defendant James Briley, his two brothers, Linwood and Anthony, and Meekins assembled at the Briley home at 3117 Fourth Avenue, and while drinking alcohol and smoking marijuana made plans to rob Harvey W. Wilkerson, whose home was a short distance from the Briley residence. When the four men left the Briley home in a car driven by Linwood they were armed with a shotgun, which was then in the possession of James, and a .22 caliber pistol, which was then in the possession of Linwood. Upon arriving in the area of the Wilkerson home, they went into a shed opposite the Wilkerson home and awaited the departure of some people they observed in front of that residence. James and Linwood entered the residence first, followed shortly thereafter by Anthony and Meekins. Meekins testified that when he and Anthony entered, Wilkerson and Judy Barton had already been bound with electrical tape around their arms and legs and had been gagged and placed on the floor. Their five-year-old child was lying on the floor but had not been bound. Meekins said that while Anthony and James searched the upstairs he (Meekins) saw Linwood Briley drag Mrs. Barton into the adjacent kitchen. He said that at the time Mrs. Barton's pants had been pulled down but he did not actually watch the rape by Linwood. Meekins admitted that after Linwood left the kitchen he went in and raped Mrs. Barton. He said that after he had completed the act, the defendant James entered the kitchen, got down on one knee and began to unzip his pants. Meekins, who was then otherwise occupied, did not actually see the defendant rape Mrs. Barton. After James left the kitchen, Linwood dragged Mrs. Barton back into the room where her husband and son had been kept and guarded during the series of rapes to which she was subjected.
Meekins further testified that while the four were in the Wilkerson home, Linwood gave him a .38 caliber silver derringer which Linwood said that he had taken from Wilkerson, and gave James the .22 caliber pistol which the parties had brought with them from the Briley home. James then gave Linwood the shotgun with which James had been armed throughout the entire episode. Meekins said that soon thereafter Linwood left the house to start the automobile. An officer watching the house testified that Linwood had a paper bag when he left the house. Meekins said at that time both Wilkerson and his wife had been covered with sheets; that while he was looking through a peephole in the front door he heard a shot; and that he turned, saw the defendant standing over Mrs. Barton and saw blood on the sheet near her head. He said James had a pillow in his hand and that the defendant then told him (Meekins): "You got to get one." Meekins said that he picked up a pillow, covered Wilkerson's head, and fired the derringer into the pillow. Meekins said that he then dropped the pistol, picked up a .22 rifle near the door and ran out into the street. He said he heard more shots and that then James and Anthony ran out behind him. During cross-examination by counsel for defendant regarding certain discrepancies in his testimony and pre-trial statements, Meekins admitted that he was present when Officers who had the parties under surveillance, but were unaware of the crimes that were in progress, corroborated Meekins' testimony in many particulars as to the dress, size, and movements of the four men. They also corroborated Meekins' testimony that Anthony Briley carried a large shopping bag from the Wilkerson home, that James Briley was seen putting a pistol into his pants, and that Meekins was carrying a .22 rifle when he left the house.
two other shots were fired and that he saw defendant shoot the child.
James and his confederates left the scene in a car driven by Linwood. The car was equipped with a police scanner from which the occupants learned that the police were following them. The defendant and his companions stopped the car on Hazelhurst Avenue where Meekins attempted to hide the .22 rifle that he had brought from the Wilkerson home. Linwood dropped the shotgun brought from the Briley home over a nearby fence. The shotgun, the rifle, and a pistol holster were subsequently found and turned over to the police by area residents. The men finally abandoned the car after discovering the police were watching them with a "scope." Meekins said the money they had obtained, and which was in the possession of Linwood and James, was divided later that evening at the Briley home. Meekins received approximately $100.
The shotgun, .22 rifle, and holster found in the vicinity of Hazelhurst Avenue were introduced into evidence and identified by Meekins. Meekins recognized the holster as being in the Briley car on the night of the killings. The bullet found in Harvey Wilkerson's body was determined to be .38 caliber. The unmutilated bullets found in Judy Barton's body, a bullet found in the couch where the child's body was found, and bullet casings found on the apartment floor were all identified as .22 caliber. The Commonwealth's forensic expert stated that neither the .38 bullet nor the .22 bullets and casings could have been fired from the .22 rifle found on Hazelhurst Avenue. The .22 pistol and .38 derringer pistol used by defendant and Meekins in the killings were not recovered by the police.
The defendant did not testify. The testimony he introduced was designed primarily to discredit the testimony of Meekins. At the penalty hearing the Commonwealth showed that James Briley had been convicted in 1973 of armed robbery and attempted murder and that on the morning of the day of the Barton Avenue murders he had met with a Richmond judge to discuss the conditions of his parole.
The defendant has raised four major issues on this appeal which he argues merit a reversal.
Defendant claims that the lower court erred in denying his motion for a change of venue or, in the alternative, a change of venire. In support of his motion the defendant filed a notebook containing over seventy articles from three Richmond newspapers, which he says unduly emphasized his criminal record and his connection with other crimes allegedly committed by him, his brothers, and Meekins. This same notebook had been introduced in evidence at the trial of Linwood Briley growing out of the Barton Avenue murders. 2 Also filed were sixteen affidavits in which the affiant stated that they did not believe the defendant could get a fair trial in Richmond or in an adjacent county. A transcript of a change of venue hearing held in Linwood Briley's prosecution was also filed. Eight witnesses representing three Richmond newspapers and three area television stations testified and described the local coverage of the crimes involved.
The defendant relies on the cases of Newcomer v. Commonwealth, 220 Va. 64, 255 S.E.2d 485 (1979), and Poindexter v Commonwealth, 218 Va. 314, 237 S.E.2d 139 (1977). In Newcomer, where we reversed a lower court for its action in granting a motion of the Commonwealth for change of venue, we observed...
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