Washington and Lee University School of Law

English

Yarbrough v. Commonwealth
519 S.E.2d 602 (Va. 1999)

O\u27DELL V. NETHERLAND
117 S. Ct. 1969 (1997)
United States-Supreme Court

Washington and Lee Journal of Civil Rights and Social JusticeVolume 20 | Issue 1 Article 39-2013Table of ContentsFollow this and additional works at: https://scholarlycommons.law.wlu.edu/crsjPart of the Civil Rights and Discrimination Commons, and the Human Rights Law CommonsThis Prefatory is brought to you for free and open access by the Washington and Lee Journal of Civil Rights and Social Justice at Washington & LeeUniversity School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Journal of Civil Rights and Social Justice by anauthorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact lawref@wlu.edu.Recommended CitationTable of Contents, 20 Wash. & Lee J. Civ. Rts. & Soc. Just. (2014).Available at: https://scholarlycommons.law.wlu.edu/crsj/vol20/iss1/3WASHINGTON AND LEE JOURNAL OF CIVIL RIGHTS AND SOCIAL JUSTICE  VOLUME 20 FALL 2013 ISSUE 1  Editor’s Note vi ARTICLES          IS BROWN THE NEW BLACK?:  AMERICAN MUSLIMS, INHERENT          PROPENSITY FOR VIOLENCE, AND AMERICA’S RACIAL HISTORY 3                                                                              Amara S. Chaudhry-Kravitz                          THE NEW FACIALLY NEUTRAL “ANTI-SHARIAH” BILLS:                                                                          A CONSTITUTIONAL ANALYSIS 25                                                                              Amara S. Chaudhry-Kravitz                              THE HOLY LAND FOUNDATION CASE:  THE COLLAPSE                                                                                          OF AMERICAN JUSTICE 45                                                                                                    Nancy Hollander              DECIPHERING THE DIVINE:  AN UNMASKING OF ISLAMIC LAW 63                                                                                         Hamid Khan                       THE FIRST AMENDMENT:  RELIGIOUS FREEDOM FOR ALL,                                                                                             INCLUDING MUSLIMS 73                                                                                         Asma Uddin  STUDENT NOTES              VIOLATING DUE PROCESS:  THE CASE FOR CHANGING TEXAS                                                       STATE TRAFFICKING LAWS FOR MINORS 85                                                                               Cristina M. Becker            THE YOUNG SEX OFFENDER DEBACLE:  THE CONTINUED NEED                                                  FOR CHANGES TO JUVENILE SEX OFFENDER                                                                                   REGISTRY REQUIREMENTS 111                                                                                Samantha Brewster-Owens  A JUSTIFIED OBLIGATION:  COUNSEL’S DUTY TO FILE A REQUESTED                                                          APPEAL IN A POST-WAIVER SITUATION 141                                                                                                 Lauren Gregorcyk    WHY TURNER V. ROGERS WAS AND WASN’T CORRECTLY DECIDED:               HOW THE FOURTEENTH AMENDMENT SHOULD BE READ FOR                                                                          CHILD SUPPORT CONTEMNORS 175                                                                                               Gina Rose Lauterio  

BARNES v. THOMPSON
58 F.3d 971 (4th Cir. 1995)
United States Court of Appeals, Fourth Circuit

Duprey, Anne E.

VIRGINIA\u27S  21 DAY RULE  AND ILLINOIS\u27 DEATH ROW DEBACLE:
A COMPARATIVE STUDY IN CAPITAL JUSTICE
AND THE RELEVANCE OF INNOCENCE

Capital Defense JournalVolume 16 | Issue 1 Article 1Fall 9-1-2003Table of ContentsFollow this and additional works at: https://scholarlycommons.law.wlu.edu/wlucdjThis Prefatory is brought to you for free and open access by the Law School Journals at Washington & Lee University School of Law ScholarlyCommons. It has been accepted for inclusion in Capital Defense Journal by an authorized editor of Washington & Lee University School of LawScholarly Commons. For more information, please contact lawref@wlu.edu.Recommended CitationTable of Contents, 16 Cap. DEF J. (2003).Available at: https://scholarlycommons.law.wlu.edu/wlucdj/vol16/iss1/1CAPITAL DEFENSEJOURNALVolume 16 Fall 2003 Number 1ARTICLESLife's Uncertainties: How to Deal with Cooperating 1Witnesses and Jailhouse SnitchesC. Blaine ElliottCapital Retrials and Resentencing: Whether to Appeal and 19Resentencing FairnessWhitnan J. HouBuilding the Case for Life: A Mitigation Specialist as a 43Necessity and a Matter of RightDaniel L. PayneThe Commandeering of Free Will: Brainwashing as a 73Legitimate DefenseIda-Gaye WarburtonCASE NOTESUNITED STATES SUPREME COURTWiggins v. Smith, 123 S. Ct. 2527 (2003). 101Woodford v. Garceau, 123 S. Ct. 1398 (2003). 113UNITED STATES COURT OF APPEALSFOR THE FOURTH CIRCUITBell v. Ozmint, 332 F.3d 229 (4th Cir. 2003). 121Byram v. Ozmint, 339 F.3d 203 (4th Cir. 2003). 133Hill v. Ozmint, 339 F.3d 187 (4th Cir. 2003). 143Page v. Lee, 337 F.3d 411 (4th Cir. 2003). 159Perkins v. Lee, No. 02-25, 2003 WL 21729943, at *1 167(4th Cir. July 25, 2003).Rouse v. Lee, 339 F.3d 238 (4th Cir. 2003). 179Swisher v. True, 325 F.3d 225 (4th Cir. 2003) 195and Rowsey v. Lee, 327 F.3d 335 (4th Cir. 2003).United States v. Ferebe, 332 F.3d 722 (4th Cir. 2003). 207United States v. Jackson, 327 F.3d 273 (4th Cir. 2003). 221Walker v. True, No. 02-22, 2003 WL 21008657, at *1 233(4th Cir. May 6, 2003).Walton v. Angelone, 321 F.3d 442 (4th Cir. 2003). 245SUPREME COURT OF VIRGINIAAtkins v. Commonwealth, 581 S.E.2d 514 (Va. 2003). 267Green v. Commonwealth, 580 S.E.2d 834 (Va. 2003). 273CASES OF INTERESTSell v. United States, 123 S. Ct. 2174 (2003). 295In re Fowlkes, 326 F.3d 542 (4th Cir. 2003) 309and In re Williams, 330 F.3d 277 (4th Cir. 2003).Summerlin v. Stewart, 341 F.3d 1082 (9th Cir. 2003). 319State ex rel. Simmons v. Roper, 112 S.W.3d 397 (Mo. 2003). 327Cite as: 16 CAP. DEF. J. _ (2003).0 2003 by Wahington & Lee University School of Law

BARNABEI v. COMMONWEALTH
1996 WL 517733 (Va. 1996)
Supreme Court of Virginia

Capital Defense JournalVolume 9 | Issue 2 Article 12Spring 3-1-1997MICKENS v. COMMONWEALTH 252 Va. 315,478 S.E.2d 302 (1996) Supreme Court of VirginiaFollow this and additional works at: https://scholarlycommons.law.wlu.edu/wlucdjPart of the Law Enforcement and Corrections CommonsThis Casenote, Va. Supreme Ct. is brought to you for free and open access by the Law School Journals at Washington & Lee University School of LawScholarly Commons. It has been accepted for inclusion in Capital Defense Journal by an authorized editor of Washington & Lee University School ofLaw Scholarly Commons. For more information, please contact lawref@wlu.edu.Recommended CitationMICKENS v. COMMONWEALTH 252 Va. 315, 478 S.E.2d 302 (1996) Supreme Court of Virginia, 9 Cap. DEF J. 37 (1997).Available at: https://scholarlycommons.law.wlu.edu/wlucdj/vol9/iss2/12Capital Defense Journal, Vol. 9, No. 2 - Page 37MICKENS v. COMMONWEALTH252 Va. 315, 478 S.E.2d 302 (1996)Supreme Court of VirginiaFACTSIn March of 1992, the partially nude body of Timothy Jason Hallwas found in Newport News, Virginia. Physical evidence indicated thathe may have been sodomized, and that he had been stabbed 143 times.Walter Mickens, Jr. was eventually arrested and charged with Hall'smurder. At trial, the most incriminating evidence consisted of DNAevidence and statements Mickens had made to a cellmate while awaitingtrial.1Mickens was convicted of capital murder in the commission ofattempted forcible sodomy.2 Based upon both "vileness" and "futuredangerousness," he was sentenced to death. On direct appeal, theSupreme Court of Virginia affirmed.3 The Supreme Court of the UnitedStates, however, granted Mickens's petition for a writ of certiorari andremanded to the Supreme Court of Virginia.4 The remand was orderedin light of the Supreme Court's contemporaneous holding in Simmons v.South Carolina5 that a capital defendant has the right to present evidencethat, if sentenced to life imprisonment, he will never be eligible forparole. 6In turn, the Supreme Court of Virginiaremanded the case to the trialcourt for a new sentencing hearing at which Mickens would be allowedto present his evidence of parole ineligibility.7 In February of 1996, thetrial court held a new sentencing hearing at which evidence of the crimewas limited to the testimony of two witnesses, a police technician and anassistant medical examiner.8 In addition, the state established thatMickens had been convicted of six prior felonies, including two separateconvictions for sodomy, and that he had been on parole at the time Hallwas murdered. Two victims of Mickens's prior offenses also testified. 9In mitigation, Mickens called three witnesses. The first was acorrectional officer who testified that Mickens was cooperative and that1 Mickens v. Commonwealth, 247 Va. 395, 399-401, 442 S.E.2d678, 681-82 (1994) (Mickens 1). For a more complete discussion of thefacts of this case, see case summary of Mickens, Capital Defense Digest,Vol. 7, No. 1, p. 23 (1994).21d. at 398,442 S.E.2d at 68 1. Specifically, Mickens was convictedof violating Va. Code § 18.2-31(5).3 Id. at 412, 442 S.E.2d at 689.4 Mickens v. Virginia, 115 S.Ct. 307 (1994).5 512 U.S. 154 (1994).6 Id. at 168-69.7 Mickens v. Commonwealth, 249 Va. 423, 425, 457 S.E.2d 9, 10(1995) (Mickens II). See also case summary of Mickens II, CapitalDefense Digest, Vol. 8, No. 1, p. 23 (1995).8Mickensv. Commonwealth, 252 Va. 315,317,478 S.E.2d 302,304(1996) (Mickens III).9 1d. at 318-19, 478 S.E.2d at 304-05.10 Id. at 319, 478 S.E.2d at 305.11 Id. at 317, 478 S.E.2d at 303.121d. at 322, 478 S.E.2d at 306.131d.14 Id. at 322-23, 478 S.E.2d at 307.15 The court rejected many of the defendant's assignments of errorin brief, conclusory language, often citing their previous rulings on theissue in Mickens L Issues in this category which will not be addressed inhe had no "personal apprehension" of him. The second was a prisoncounselor who found him receptive to counseling. Mickens's thirdwitness was his mother, who testified that Mickens had grown up withouta father figure and that he had begun to get into trouble in his early teens.She pled for her son's life. 10After considering the testimony, the jury again fixed punishment atdeath, based upon both the "vileness" and the "future dangerousness"aggravating factors.11HOLDINGOn direct appeal of Mickens's death sentence, the Supreme Courtof Virginia again affirmed, holding that (1) the trial court did not err inrefusing to remove a prospective juror for cause; 12 (2) the trial court didnot err in refusing to grant a bill of particulars; 13 and (3) the sentence wasneither imposed under the influence of passion, prejudice, or any otherarbitrary factor, nor disproportionate to the penalty in similar cases.14ANALYSIS/APPLICATION IN VIRGINIAAlthough the Supreme Court of Virginia's treatment of most ofMickens's assignments of error were cursory atbest,15 a few points aboutthe case deserve mention.I. Evidence of MitigationMickens, after pursuing his claim all the way to the Supreme Courtof the United States, and after succeeding in procuring a new sentencinghearing, was able only to put on three ineffective witnesses in mitigation.None of the witnesses could offer the jury an explanation as to whythis summary include: (1) the death penalty constitutes cruel and unusualpunishment, (2) Virginia fails to provide meaningful appellate review,(3) defendant was entitled to additional peremptory jury strikes, and (4)photographic evidence of the victim's body were admitted in error.Additionally, Mickens unsuccesfully argued that Virginia's "vileness"aggravating factor is unconstitutionally vague. See case summary ofMickens 1, Capital Defense Digest, Vol. 7, No. 1, p. 23. Nonetheless,defense counsel is to be commended for preserving these and the"proportionality" issues for later federal appeal.Mickens also argued on appeal that the trial court erred in denyinghis motion for a bill of particulars seeking the information upon which theCommonwealth would rely at the new sentencing hearing. The SupremeCourt of Virginia rejected this argument, holding that there is no right toa bill of particulars and that the discretion to grant or deny one rests withthe trial court. Mickens 111, 252 Va. at 322,478 S.E.2d at 306. The courtsuggested that defense counsel should accept the Commonwealth'sassurances that "the evidence... [would] be substantially the same as theevidence.., produced [in the first trial]." Id. at 322, 478 S.E.2d at 307.The court declined to address the statutory basis of Mickens's request.For an argument that Virginia law requires that a bill of particulars begranted, at least whenever additional information is necessary to supporta motion to suppress evidence or dismiss the indictment on constitutionalgrounds, see case summary of Goins, Capital Defense Journal, Vol. 9,No. 1, p. 44 (1996).Page 38 - Capital Defense Journal, Vol. 9, No. 2Mickens committed the crime of murder or why he deserved to live. Thecourt's opinion could not, of course, identify difficulties that may havebeen encountered in presenting the case in mitigation. Nevertheless,especially for a resentencing granted after a lengthy and well-foughtappeal, this mitigation evidence seems somewhat skimpy. Counsel whodesire assistance in putting together an effective case in mitigation, andwho contact the Virginia Capital Case Clearinghouse, can be referred tovaluable resources in this field. It is especially important to develop, atan early stage, a coherent theory as to why the guilty defendant deservesto live.II. "Weighing" in Virginia.Mickens argued that "Virginia's death penalty statutes are uncon-stitutional because they do not require a jury to find that aggravatingcircumstances 'outweigh' mitigating circumstances."' 16 The SupremeCourt of Virginia rejected his claim in conclusory language, citingMickens I, which in turn cited Zant v. Stephens.17 In Zant, the SupremeCourt of the United States held Georgia's sentencing scheme constitu-tional despite the fact that Georgia required no weighing of aggravatingand mitigating factors. 18 Like Georgia, Virginia is not a statutory"weighing" state. Defense counsel in future cases should avoid using theterm "weighing" when fashioning arguments addressed to the manylegitimate constitutional flaws in Virginia's death penalty scheme. Theuse of this term allows the Virginia courts an easy way to dismiss theargument and avoid confronting the real issues. 1916 Mickens III, 252 Va at 320, 478 S.E.2d at 305.17 462 U.S. 862 (1983).18 Id. at 880.19 For a discussion of how to argue that the "future dangerousness"aggravating factor (as well as the term "probability") is unconstitution-ally vague, see Spencer, Challenging the Future DangerousnessAggra-vating Factor, Capital Defense Journal, Vol. 8, No. 2, p. 33 (1996).20 117 S. Ct. 578 (1996) (per curiam).21 469 U.S. 412 (1985).III. Possible Implications of Greene v. GeorgiaThe Supreme Court of the United States recently held in Greene v.Georgia20 that the Supreme Court of Georgia had incorrectly citedWainwright v. Witt21 as "controlling authority for a rule that [state]appellate courts must defer to trial courts' findings concerning jurorbias."'22 As the Court was careful to point out, Wainwright v. Witt iscontrolling authority for federal courts reviewing the decisions of statetrial courts, but is not a constitutional authority requiring state courts togive deference to their own trial courts.23In Mickens III, the defendant argued that the trial court erred inrefusing to remove a prospective juror for cause.24 The Supreme Courtof Virginia responded by holding that "[ain appellate court must givedeference to a trial court's decision whether to exclude or retain aprospectivejuror because the trial court'sees and hears thejuror."'25 Thecourt then cited a state case, Eaton v. Commonwealth,2 6 which quotedWitt. Thus, it is unclear whether the court meant that appellate courts"must" give deference to the trial courts because of state law, or becausefederal law, articulated in Witt, mandates it.27 If the court in Mickensbelieved itself bound by federal law to give deference to the trial courtthen it erred under Greene; if so, Mickens arguably would be entitled toa new hearing to determine if he was denied a juror strike in violation ofstate law.Summary and Analysis by:Daryl Rice22 Greene, 117 S. Ct. at 579.23 Id. at 578-79.24 Mickens III, 252 Va. at 321, 478 S.E.2d at 306.25 Id.26240 Va. 236, 397 S.E.2d 385 (1990).27 Virginia law on this issue reveals further ambiguity. For an in-depth discussion of these cases and the ambiguity in Virginia case law,see case summary of Greene, Capital Defense Journal, this issue.THE NEVER ENDING STORY: COMBATING PROCEDURALBARS IN CAPITAL CASESBY: CAREY L. COOPERI. IntroductionAlthough the subject of procedural bar has been treated numeroustimes, the problem continues to create an obstacle to state and federalappellate review. Recent developments have created new snares andadded nuances to old pitfalls. Particularly, the Supreme Court of Virginiahas continued to surprise defense counsel with novel default traps.Over the past ten years, thirty-three capital defendants have beenexecuted in Virginia. All of these cases went before the Supreme CourtI The Virginia Court of Appeals tends to apply procedural rulesmuch more liberally in criminal cases than the Supreme Court of Virginiadoes in capital cases. Although the rules are similar, the interpretationsand applications are divergent. For example, the Supreme Court ofVirginia interprets Rule 5:25 such that two objections may be required inof Virginia on direct appeal. In those thiry-three cases, ninety-eightclaims were held to be procedurally barred.The Supreme Court of Virginia implements its default and waiverdoctrine based upon a policy that elevates procedural regularity abovethe merits of a claim. Too often, the end result is death by technicality.tWhenever a procedural bar applies, the Supreme Court of Virginia willrefuse to hear the merits of the claim. Moreover, federal review of theclaim will almost certainly be cut off. Additionally, given that theorder to preserve claims based upon the improper granting or denial ofa challenge for cause. See Beavers v. Commonwealth, 245 Va. 268,427S.E.2d 411 (1993). See also discussion, Part IV, infra. Although Rule5A: 18 is analogous, the Virginia Court of Appeals has never imposedsuch a requirement in other criminal cases. See Cudjoe v. Common-

MICKENS v. COMMONWEALTH
252 Va. 315, 478 S.E.2d 302 (1996)
Supreme Court of Virginia

LOVING v. UNITED STATES
116 S. Ct 1737 (1996)
United States Supreme Court

Capital Defense JournalVolume 7 | Issue 2 Article 10Spring 3-1-1995CARDWELL v. COMMONWEALTH 248 Va.501, 450 S.E.2d 146 (1994) Supreme Court ofVirginiaFollow this and additional works at: https://scholarlycommons.law.wlu.edu/wlucdjPart of the Criminal Procedure Commons, and the Law Enforcement and Corrections CommonsThis Casenote, Va. Supreme Ct. is brought to you for free and open access by the Law School Journals at Washington & Lee University School of LawScholarly Commons. It has been accepted for inclusion in Capital Defense Journal by an authorized editor of Washington & Lee University School ofLaw Scholarly Commons. For more information, please contact lawref@wlu.edu.Recommended CitationCARDWELL v. COMMONWEALTH 248 Va. 501, 450 S.E.2d 146 (1994) Supreme Court of Virginia, 7 Cap. Def. Dig. 25 (1995).Available at: https://scholarlycommons.law.wlu.edu/wlucdj/vol7/iss2/10Capital Defense Digest, Vol. 7, No. 2 -Page 25law permits a sentence of life in prison even if the Commonwealth hasproven one or both aggravating factors beyond a reasonable doubt. Areasonable juror might conclude, however, that "if you believe from allthe evidence that the death penalty is not justified" 20 means "if theCommonwealth has failed to prove one or more aggravating factorsbeyond a reasonable doubt." In any event, Virginia Code section 19.2-263.2 provides that courts are not to refuse instructions that are correctstatements of the law simply because they do not conform to modelinstructions.Communication from judge to jury about consideration of aggra-vating and mitigating factors implicates important Eighth and Four-teenth Amendment issues.2 1 Consequently, instructions such as thoserejected in Joseph should continue to be proffered. In many instances,they will be given by the trial judge. If denied, claims of error should bepreserved on federal constitutional grounds.HI. Sentence ReviewJoseph utilized a very salutary strategy by claiming that the cumu-lative effect of the trial court's errors produced a jury recommendationbased upon impermissible factors.22 The trial court and the SupremeCourt of Virginia summarily rejected this contention.23There may be great benefit, however, to Joseph's argument of errorbased on the entirety of the record. By making a cumulative claim and20 Id. at 869.21 Issues raised by the court's denial of proffered defense instruc-tions suggest a procedural barrier to the jury's consideration of mitiga-tion evidence. Such barriers are forbidden by McKoy v. North Carolina,494 U.S. 433, 443 (1990) (holding that a state cannot have a unanimityrequirement for the jurors consideration of mitigation evidence) andMills v. Maryland, 486 U.S. 367, 384 (1988) (holding that a sentencermust be able to consider all mitigating evidence).22 Joseph, 452 S.E.2d at 870.23 Id.being rejected, Joseph may have preserved on appeal some issues notspecifically addressed at trial. He has, in any event, added to the list ofclaims potentially eligible for federal review. All assignments of errorshould be raised broadly and narrowly.IV. ProportionalityThe Supreme Court of Virginia compared the record in this case andthe records in other capital murder cases pursuant to Virginia Codesection 17-110.1(E).24 The court explained that it paid particularattention to cases in which the underlying felony was robbery and thedeath penalty was imposed based on "future dangerousness." 25 Thecourt also claimed to have reviewed cases where life sentences wereimposed, citing, Whitley v. Commonwealth.26 Whitley, however, was acase where death was imposed. In all its proportionality review theSupreme Court of Virginia claims to review life sentence cases reachingit. Citations to such cases are never included. Appellate counsel mightconsider seeking them under Virginia Freedom of Information Act.27Even if life cases reaching the court are considered, the pool of cases isinadequate. Many capital cases resulting in life sentences are not ap-pealed and others do not reach the Supreme Court of Virginia.Summary and analysis by:Michael H. Spencer24 Id. at 871. This section requires that the Supreme Court ofVirginia to conduct an analysis to determine whether the death penaltyis excessive or disproportionate to the penalty imposed in similar cases.25 Id.26 223 Va. 66, 81, 286 S.E.2d 162, 171 (1982), cert. denied. 459U.S. 882 (1982).27 See Heavner, Leaving No Stone Unturned: Alternative Methodsof Discovery in Capital Cases, Capital Defense Digest, this issue.CARDWELL v. COMMONWEALTH248 Va. 501, 450 S.E.2d 146 (1994)Supreme Court of VirginiaFACTSOn January 26,1992, a badly decomposed body was found in thewoods behind a shopping center at the intersection of Patterson Avenueand Pump Road in Henrico County. The body was identified as fifteen-year-old Anthony Brown. He was determined to have died in November1991. An autopsy revealed that Brown had sustained injuries to the throatand wrist, as well as two gunshot wounds to the back of the head. It waslater determined that on November 20, 1991, Brown had travelled fromNew York City to Richmond, where he was abducted, robbed and killedby Kevin Cardwell.tCardwell v. Commonwealth, 248 Va. 501,506,450 S.E.2d 146,150 (1994).2 Id. at 504, 450 S.E.2d at 148-49. The jury fixed Cardwell'sA Circuit Court jury in Henrico County convicted Cardwell ofthe capital murder of Anthony Brown in the commission of armedrobbery, in violation of Virginia Code section 18.2-31(4) and capitalmurder in the commission of an abduction with intent to extort money oipecuniary benefit, in violation of Code section 18.2-31 (1). The jury alsefound Cardwell guilty of related non-capital felonies and fixed punish-ment for those offenses.2 In the second phase of the capital trial, the juryfixed Cardwell's punishment at death for capital murder based upon the"vileness" predicate under Virginia Code section 19.2-264.2. The court,pursuant to Code section 19.2-264.5, sentenced Cardwell in accord witlthe jury verdicts. 3punishment at life imprisonment for abduction, twenty years for robber3and ten years for firearms charges as well as a $100,000 fine for theabduction.3 Id.Page 26 - Capital Defense Digest, Vol. 7, No. 2HOLDINGConsolidating the automatic review of Cardwell's death sentencewith his appeals of capital murder and other convictions, pursuant toCode sections 17-110.1 (F) and 17-110.2, the Supreme Court of Virginiaupheld the convictions and the death sentence based on the "vileness"predicate.4ANALYSIS/APPLICATION IN VIRGINIAI. Denial of a ContinuanceCardwell contended that the trial court erred in denying his requestfor a second continuance. 5 This request was made after the defenselearned that the psychologist appointed to assist Cardwell in the penaltyphase of the trial would not be able to evaluate Cardwell until August 25,1993. This became problematic since the trial date was scheduled forSeptember 7, 1993 and the psychological evaluation would take one anda half months to complete. The Supreme Court of Virginia, however,held that the granting of a continuance is within the sound discretion ofa trial court, and its ruling will not be reversed unless plainly wrong.6Unfortunately, this assignment of error was characterized only as astate law issue. Consequently, the Supreme Court of Virginia had thefinal word. In addition to applicable state law grounds, denial of acontinuance could and should be characterized as denying the accusedeffective assistance of counsel and compulsory process as well as theapplicable guarantees embodied in the Sixth Amendment of the U.S.Constitution. By following this scheme, the issue will be preserved forfederal review.11. Irrelevant Penalty Trial EvidenceDuring the penalty phase of Cardwell's trial, the prosecutionintroduced evidence of his past marijuana possession, unemploymentand trespassing.7 Since this evidence did not pertain to Cardwell'sconduct in committing the crime itself, the evidence must have beendirected towards the"future dangerousness" predicate. 8 Therecord doesnot show that Cardwell objected to this evidence even though these actsbear no relation to a propensity to commit serious violent acts in thefuture. Thus, this issue was addressed by neither the trial court nor theSupreme Court of Virginia.It should be noted that the penalty phase of a capital trial ought notto be turned into a "free-for-all" of evidence. The Virginia rules of4 The court rejected some of Cardwell's assignments of error inbrief, conclusive language. Others did not involve death penalty law. Onstill others, the rulings provide little if any guidance because they applybroad, settled principles of law to facts that are specific to the case beingreviewed. Issues in these categories that will not be addressed in thisanalysis include: (1) refusal to require the Commonwealth to electbetween one of the two capital murder charges, (2) refusal to give acautionary jury instruction on taking theuncorroborated testimony of theaccomplice, and (3) allegation of trial court error in admittingunadjudicated criminal conduct in the penalty phase of the trial.5 Cardwell, 248 Va. at 507,450 S.E.2d at 150.6 Id. at 508, 450 S.E.2d at 151.7 Id. at 512,450 S.E.2d at 153.8 Id.9 Prosecutorial evidence should only encompass evidence thatmakes it more likely that the defendants conduct was vile or that he willcommit violent acts in the future. See generally 1 Charles E. Friend, TheLaw of Evidence in Virginia, § 135 (4th ed. 1993).relevancy still apply to the evidence admitted during the penalty phaseof a capital trial. 9 During this stage of the trial, the prosecution can offerevidence that tends to show the "vileness" of the defendant's conduct orthe "future dangerousness" of the defendant. 10 It is important that thedefense attorney consistently force the prosecution to meet its burden ofrelevancy in order to prevent inflammatory and wholly irrelevant mate-rial from being admitted. This could take the form of a pretrial motion inlimine that bars evidence that is irrelevant to either "vileness" or "futuredangerousness" predicates. Defense counsel could also object when suchevidence is offered at the penalty phase of the trial.III. The Theme of MitigationThe only mitigating evidence offered by Cardwell consisted of thetestimony of his grandmother. 11 This minimal showing in mitigationmay have stemmed from the court's denial of a continuance to permit anexamination by a defense mitigation expert. As aresult of the trial court'sdenial, the defense may have had insufficient information from which tocreate a theme of mitigation-an example of the prejudice that flowedfrom the lack of assistance from the mental health expert.12 Formulatinga theme of mitigation is essential so that all available evidence can bemarshalled around it and presented. Testimony of a single witness, agrandmother, is plainly inadequate.This theme is necessary in order to facilitate a jury's understandingof why the defendant acted in a manner which led to the commission ofa capital crime. Such a theme should be built from the evaluations madeby individual mental health experts as well as other individuals who maybe able to testify as to the defendant's family history, or adjustment toprison life or to the restrictions that would be placed upon the defendantif given a life sentence.13IV. Penalty Trial InstructionsCardwell also argued that the trial court erred in refusing his juryinstruction No. A., which would have told the jury that it was "'notcompelled to impose the death penalty even if [the jury] find[s] one orboth of [the aggravating factors] proven beyond a reasonable doubt.'14The Supreme Court of Virginia, however, held that instruction No. I.,which was given to the jury, was adequate. It "told the jury that it mustdecide whether Cardwell shall be sentenced to death or to imprisonmentfor life and that, before the penalty can be fixed at death, the Common-wealth must prove by evidence beyond a reasonable doubt either or bothof the aggravating factors, i.e. 'vileness' or 'future dangerousness.""15Citing Stewart v. Commonwealth,16 the court held that Instruction No. 1.10 Va. Code Ann. § 19.2-264.4(C) (1990).11 Id. at 513, 450 S.E.2d at 154.12 "mhe court shall appoint one or more qualified mental healthexperts to evaluate the defendant and to assist the defense in thepreparation and presentation of information concerning the defendant'shistory, character, or mental condition .... " Va. Code Ann. § 19.2-264.3:1 (1990). A post-trial motion may be necessary in order to makea showing of prejudice from the trial court's denial of time or otherresources.13 These suggestions are not exhaustive. See case summary ofJoseph, Capital Defense Digest, this issue. See also William S. Geimer,Law and Reality in the Capital Penalty Trial, 18 N.Y.U. Rev. L. & Soc.Change 273 (1990-91).14 Cardwell, 248 Va. at 514,450 S.E.2d at 154.15 Id.16 245 Va. 222, 244-45, 427 S.E.2d 394,408-09 (1993), cert.denied, 114 S. Ct. 143 (1993).Capital Defense Digest, Vol. 7, No. 2 - Page 27"adequately informed the jury that the death penalty was not mandatoryeven if both aggravating factors were proven by evidence beyond areasonable doubt."17It seems evident, however, that there is a fundamental differencebetween the two instructions. Instruction No. 1 tells the jury not to finddeath if the Commonwealth does not prove the aggravating factorsbeyond a reasonable doubt. Under such instructions, the jury couldmistakenly infer that once an aggravating factor is proven beyond areasonable doubt, the jury must find death. At no time does InstructionNo. 1. tell the jury that it can fix punishment at life imprisonment evenif it finds both aggravating factors beyond a reasonable doubt. InstructionNo. A would have clarified this assertion. 8 Furthermore, Virginia Codesection 19.2-263.2 states that a court is not to refuse a proper instructionsimply because it does not conform to the model instruction.Cardwell's inability to give instruction No. A. made it virtuallyimpossible forhim to convey to the jury its right to vote life imprisonmenteven if it found either aggravating factor beyond a reasonable doubt. Asa result, the jury may not have been clear on the scope of its power andmay have thought that once it found an aggravating factor, it must votefor death. This, in effect, would make the introduction of mitigationevidence useless since the jury believes that it must vote death even if anaggravating factor was found. Such a result would be contrary to theUnited States Supreme Court's rulings on issues concerning the intro-duction of mitigating evidence and the effect a jury is required orpermitted to give to it.1917 Cardwell, 248 Va. at 514,450 S.E.2d at 154.18 See case summary of Joseph, Capital Defense Digest, this issue.19 See Penry v. Lynaugh, 492 U.S. 302 (1989) (held that a trial courtmust provide a means to give effect to mitigating evidence); Mills v.Maryland, 486 U.S. 367 (1988) (held that state procedure cannot pre-clude the use of mitigating evidence); Lockett v. Ohio, 438 U.S. 586(1978) (held that a sentencer is not to be precluded from the considerationof mitigating factors in considering a sentence of less than death).20 114 S.Ct. 2187 (1994). Cardwell, 248 Va. at 514-15,450 S.E.2dV. Simmons IssueCardwell also asserted that the jury was entitled to be informed ofthe law concerning his parole eligibility under Simmons v. South Caro-lina.20 The Supreme Court of Virginia, however, distinguished this caseby stating that Cardwell's punishment of death was based on the"vileness" aggravating factor, unlike Simmons' sentence which wasbased on the "future dangerousness" aggravating factor.2 1 Thus, thecourt held that Simmons did not apply.22The opinion does not state unequivocally that the issue of "futuredangerousness" was before the jury. The admission into evidence ofCardwell's prior misconduct, however, clearly indicates that it was.22Certainly, if "future dangerousness" was before the jury, the applicabil-ity of Simmons was at issue. If there was error, it is not rendered harmlessby the fact that the jury did not formally find the "future dangerousness"factor. That is because the ultimate decision of the jury is life in prisor[or death. Simmons itself illustrates that. "Future dangerousness" was no.astatutory aggravating factorin South Carolina and thejury did not makea finding of it. The United States Supreme Court merely found tha:"future dangerousness" was at issue, as it probably was in Cardwell.Simmons issues should be raised, even when it is formally deter.mined before the penalty trial that "future dangerousness" will not be a.issue. Since the real issue at the penalty phase is choosing either .sentence of life imprisonment or death, the unresolved Simmons issue,:of utilizing parole law evidence as mitigation remain important, even ir"vileness" cases.24Summary and analysis byMichael H. Spenceat 154-55. See Pohl & Turner, IfAt First You Don't Succeed: The Rea'And Potential Impact of Simmons v. South Carolina In Virginia, CapitaDefense Digest, Vol. 7, No. 1, p. 28 (1994); case summary of SimmonsCapital Defense Digest, Vol. 7, No. 1, p. 4 (1994).21 Id. at 515, 450 S.E.2d at 155. Compare Joseph v. Commonwealth, 452 S.E.2d 862 (Va. 1995).22 Cardwell, 248 Va. at 515,450 S.E.2d at 155.23 See supra text accompanying note 10.24 Pohl & Turner, supra note 23, §§ VII-XI.WILSON v. COMMONWEALTH249 Va. 95, 452 S.E.2d 669 (1995)Supreme Court of VirginiaFACTSAt approximately 3:00 a.m. on March 27,1993, KennethL. Wilsonentered the home of the decedent Jacqueline M. Stephens and herdaughter Altomika. There, he murdered Ms. Stephens and stabbed bothher daughter and Takeshia Banks. 1A neighbor, having seen Wilson leave the Stephens' home anddrive away in Ms. Stephens car at approximately 6:30 a.m., called thepolice. When the police arrived, they found Ms. Stephens tied to the bedand covered with blood. They observed pubic hairs and a dried whitesubstance on her body. A medical examiner testified that Ms. StephensI Wilson v. Commonwealth, 249 Va. 95, 98-100,452 S.E.2d 669,672-73 (1995).2 Id. at 99-100, 452 S.E.2d at 673.had at least ten knife wounds. The medical examiner also stated that noniof Ms. Stephens' injuries would have rendered her unconscious durinjthe attack.2In the first stage of a bifurcated trial, pursuant to Virginia Codsections 19.2-264.3 and -264.4, a jury convicted Wilson of capitamurder in commission of attempted rape, two counts of abduction, oncount of abduction with attempt to defile, two counts of maliciouwounding, attempted rape, and grand larceny.3 In the second stage of th,trial, the jury fixed his punishment at death based on both "vileness" an"future dangerousness".43 Id. at 97,452 S.E.2d at 671-72. The convictions were pursuant t,Virginia Code §§ 18.2-31(5), -47, -48, -51, -67.5 and -95 respectively4 Id.