Opposition Brief — Evans v. Bair (No. 86-1754)

—————eeOOO

Supreme Court, U.S.

~~ FILED

MAY

No. 86-1754 tone

S$ JR.

ERK

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1986

WILBERT LEE EVANS,

Petitioner,

V.

COMMONWEALTH OF VIRGINIA,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of Virginia

RESPONDENT'S BRIEF IN OPPOSITION

Mary SuE TERRY

Attorney General of Virginia

*“DONALD R. CURRY

Senior Assistant Attorney General

Supreme Court Building

101 North Eighth Street

Richmond, Virginia 23219

(804) 786-4624

Counsel for Respondent

*Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

II.

IIT.

Iv.

QUESTIONS PRESENTED

Is petitioner’s claim of ineffective assistance

of counsel, on the direct appeal of his original

death sentence, moot in view of the fact that

his original death sentence has been vacated

and he has been resentenced to death at a

sentencing proceeding free from error?

Was petitioner denied the effective assist-

ance of counsel at the guilt stage of his trial

for capital murder when counsel chose not

to object to the prosecutor’s argument?

Was petitioner denied the right to confront

and cross-examine adverse witnesses at his

resentencing proceeding when, with the

petitioner’s approval, a transcript was used

as a substitute for the testimony of certain

witnesses?

Does petitioner’s claim concerning recusal of

the state habeas judge raise a substantial

federal question?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ou.....eccscccccssescseesseessees

TABLE OF CITATIONS. ...........co.cccsccsscosscsesseseoes iii

MUNI oe se ee. 1

CONSTITUTIONAL AND STATUTORY PROVI-

UCM TTR nc isiesiecc ccc. 2

PRELIMINARY STATEMENT. ........cccccccccessseeseee 2

STATEMENT OF THE CASE .....cccsccsssseceeeeeeseen 2

STATEMENT OF FACTS. ......cc:ccsscosscssccsccscecsecosee 3

REASONS FOR DENYING THE WRIT .............. 4

OR FEPCIRINEE siccensncaninnssteaatnitigiomsenneaeaaomasions 14

iil

TABLE OF CITATIONS

CASES:

Adams v. Wainwright, 709 F.2d 1443 (11th Cir.

1983), cert. denied, 104 S.Ct. 745 (1984) _.....

Aetna Life Insurance Co. v. Lavoie, _— U.S. —__,

MOND ccscscvasevsscsontcassnesesencssss

Bailey v. Anderson, 326 U.S. 208 (1945). ............

Brown v. Ohio, 431 U.S. 161 (1977) — ...............008

Bunch v. Commonwealth, 225 Va. 423, 304 S.E.2d

as casssacanseasviom

Coppola v. Warden, 222 Va. 369, 282 S.E.2d 10

a cea aacsceeas seks

Davis v. Allsbrooks, 778 F.2d 168 (4th Cir.

dina Saacensnaniinanes

Evans v. Commonwealth, 222 Va. 766, 284 S.E.2d

hss pnenldibenvuans

Evans v. Commonwealth, 228 Va. 468, 323 S.E.2d

TES ATED Ge a a

Evitts v. Lucey, 469 U.S. 387 (1985)...

Guthrie v. Commonwealth, 212 Va. 602, 186 S.E.2d

ish iad consataicanasininivebnbaysneen

Hyman v. Atken, 777 F.2d 938 (4th Cir. 1985), va-

cated and remanded, 106 S.Ct. 3327 (1986)

Jackson v. Virginia, 443 U.S. 307 (1979)...

Michigan v. Long, 463 U.S. 1032 (1983) .............

Murray v. Carrier, __ U.S. —_, 106 S.Ct. 2639

ae clio hlila Caden whéonsbanahinedanianseneces

Mutual Life Ins. Co. v. McGrew, 188 U.S. 291

Ce ie aad eildlnienagnaancbinie de ivcnes

New Haven Inclusion Cases, 399 U.S. 392

ee ge cial euicsbneecdenadanens

Ohio v. Roberts, 448 U.S. 56 (1980)...

Patterson v. Commonwealth, 222 Va. 6538, 283

RI WI RI Siok evccassctcachsenenonssenssasiocectess

Page

11

2

3,5,7

iv

Table of Citations Continued

Page

Pennsylvania R. Co. v. Illinois Brick Co., 297 U.S.

Be IEE: 4: ciihdenhc apace cintiniebseaalensiceasmaubianec 11,12

Poland v. Arizona, __ U.S. __, 106 S.Ct. 1749

NII | Gankdaasdueisvuiinass bh scaateuniayiicell haaanasiaedbertaabestce 5

Saunders v. Reynolds, 214 Va. 697, 204 S.E.2d 421

CREIPUN ) \cdecsessisnutiitiekschieanstuksanieiansaheumiabinbbccssiess 10

Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680

ERNE: scncnedchixolbenaaia taaasanicaimias sciaaediaiadabiiectes 10

Smith v. Murray, ——U.S.——, 106 S.Ct. 2661

(gp R Hare Stee eer entree rent ment nr mer enereney ore 4,10

Stembridge v. Georgia, 343 U.S. 541 (1952) _....... 12

Strickland v. Washington, 466 U.S. 668 (1984) .. 4,6,9

Tichnell v. State, 427 A.2d 991 (Md. 1981) _......... 13

Tumey v. Ohio, 273 U.S. 510 (1927) on... .eeseeeseeee 14

United States v. Inadi, __ U.S. __, 106 S.Ct. 1121

ERNE > kinidacinnssscabnasaceds sac hacldinieaniiadaibidaadaeneteesineie 13

United States v. Murzyn, 631 F.2d 525 (7th Cir.

1980), cert. denied, 450 U.S. 923 (1981) ...... 9

STATUTES AND RULES:

ns tals tarnscneaneniaitinaniginsbasins 1

Oe ag Oe I adiccatisteletcanbhicalarnitamipedtiinbaasaneeys 1,14

i Fe i rccrcsasshacnttavacenbinks 13

§ 8.01-401A, Code of Virginia ........ ee eeeeeeeee 12,13

§ 19.2-264.2, Code of Virginia .........c ee eeeeeeeee 4

§ 19.2-269.1, Code of Virginia ......... eens 12

arr ctchatinessstsnelsainse sisting 13,15

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1986

No. 86-1754

WILBERT LEE EVANS,

Petitioner,

Vv.

COMMONWEALTH OF VIRGINIA,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of Virginia

RESPONDENT’S BRIEF IN OPPOSITION

JURISDICTION

The petitioner asserts that the jurisdiction of this Court

is grounded upon 28 U.S.C. § 1257(8).'

‘Evans’ petition is styled as a “PETITION FOR A WRIT OF

CERTIORARI TO THE CIRCUIT COURT OF ALEXANDRIA, VIR-

GINIA.” (Ptn. 1). Likewise, in his prayer for relief, Evans requests a

writ of certiorari ‘‘to review the order and opinion of the Circuit Court

of Alexandria, Virginia.”” (Ptn. 30). This Court, however, has no juris-

diction, pursuant to 28 U.S.C. § 1257 or any other federal statute, to

review the decision of a state trial court.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED |

The relevant constitutional and statutory provisions in-

volved are set forth in the Petition for Writ of Certiorari

at SA-1-2, and in the appendix to this brief in opposition

at A. la.

PRELIMINARY STATEMENT

References to the Petition for Writ of Certiorari will be

designated ‘“‘(Ptn. —— ).’’ References to the appendix of

the Petition for Writ of Certiorari will be designated “‘(App.

___).” And references to the appendix to this brief in

opposition will be designated ‘(A. —~ ).”

STATEMENT OF THE CASE

On April 17, 1981, a jury in the Circuit Court of the

City of Alexandria convicted the petitioner, Wilbert Lee

Evans, of capital murder. After a separate hearing on the

issue of punishment, the same jury recommended the death

penalty. On June 1, 1981, the Circuit Court imposed the

death penalty in accordance with the jury verdict. The

conviction and death sentence were affirmed by the

Supreme Court of Virginia on December 4, 1981. Evans

v. Commonwealth, 222 Va. 766, 284 S.E.2d 816 (1981)

(Evans I). (App. 17a-31a). This Court denied a petition for

a writ of certiorari on March 22, 1982. 455 U.S. 1038

(1982).

Petitioner initiated state habeas corpus proceedings in

April 1982. He amended his habeas petition on two oc-

casions, the second in early January 1983. The Common-

wealth confessed error in the petitioner’s sentencing

proceeding on April 12, 1983, and on May 2, 1983, the

Circuit Court of the City of Alexandria entered an order

setting aside Evans’ death sentence. On September 21,

1983, the Circuit Court conducted an evidentiary hearing

eta ella

to determine whether Evans should be resentenced or his

sentence reduced to a life term. By an order dated October

12, 1983, the Circuit Court directed that Evans be re-

sentenced.

On January 30, 1984, the Circuit Court impaneled a new

jury for a resentencing hearing, and at the conclusion of

that proceeding the jury recommended the death penalty.

On March 7, 1984, the Circuit Court imposed the death

penalty in accordance with the jury verdict. The Supreme

Court of Virginia affirmed Evans’ death sentence on No-

vember 30, 1984. Evans v. Commonwealth, 228 Va. 468,

323 S.E.2d 114 (1984) (Evans IJ). (App. 32a-46a). This

Court again denied certiorari. 105 S.Ct. 2037 (1985).

On May 14, 1985, Evans reinitiated state habeas corpus

proceedings. The Circuit Court of the City of Alexandria

dismissed most of E. .is’ claims without a hearing on Sep-

tember 18, 1985. (App. la-2a). An evidentiary hearing was

conducted on the remainder of Evans’ claims on December

16, 1985. Those claims were denied in the Circuit Court’s

letter opinion dated May 19, 1986 (App. 3a-13a), and Ev-

ans’ habeas petition was dismissed in its entirety by an

order dated June 3, 1986. (App. 14a-15a). Evans’ petition

for appeal to the Virginia Supreme Court was refused in

an order dated February 26, 1987. (App. 16a).

STATEMENT OF FACTS

On January 27, 1981, the petitioner, a prisoner, fatally

shot a deputy sheriff who was escorting him to jail in

Alexandria. Evans had pretended to be a willing witness

for the Commonwealth, but his sole purpose in cooperating

with the authorities had been to engineer an escape after

being brought to Virginia in custody from North Carolina.

He planned to kill anyone who attempted to prevent his

escape and he acted on this intent when he killed the

victim. (App. 45a). The evidence at the resentencing hear-

ing revealed that Evans had a significant prior history of

violent criminal conduct. (App. 45a). The jury’s imposition

of the death penalty was based upon a finding of the

petitioner’s ‘‘future dangerousness.’’ See Va. Code § 19.2-

264.2. (Ptn. SA-1).

REASONS FOR DENYING THE WRIT

I. Because Evans’ Originai Death Sentence Was Va-

cated And He Has Been Resentenced To Death, His

Claim That He Was Denied The Effective Assistance

Of Counsel On The Direct Appeal Of His Original

Death Sentence Is Moot.

Evans contends that he was denied the effective as-

sistance of counsel on the direct appeal of his original

death sentence because appellate counsel failed to discover

and bring to the attention of the Virginia Supreme Court

or this Court the errors in the records of Evans’ prior

convictions upon which that death sentence, at least in

part, was based.? (Ptn. 3, 18). Because, however, Evans’

original death sentence has been vacated, and he has been

resentenced to death at a proceeding free from error, his

claim of ineffective assistance of counsel is moot. See Hy-

man v. Aiken, 777 F.2d 938, 941 (4th Cir. 1985) (vacating

death sentence renders moot ineffective counsel claims per-

taining solely to penalty stage), vacated and remanded on

* Evans contends that this Court should grant the writ on this claim

to instruct lower courts whether the effectiveness of counsel on appeal,

guaranteed by Evitts v. Lucey, 469 U.S. 387, 389 (1985), is governed

by the standards set forth in Strickland v. Washington, 466 U.S. 668

(1984). (Ptn. 3-4, 16, 17 n.17, 18). As this Court has already answered

that question in Smith v. Murray, __U.S. —— , 106 S.Ct. 2661 (1986),

no such instruction is necessary. In Smith, this Court expressly applied

the Strickland standard and found that the attorney's decision in that

case “not to press [a] claim on appeal’ did not constitute ineffective

assistance of counsel. Smith, 106 S.Ct. at 2667. Indeed, in Evans’ case,

the Commonwealth conceded in the courts below that Evitts and Strick-

land governed this claim. Thus, Evans’ primary reason why certiorari

should be granted in this case is based upon a faulty premise.

other grounds, 106 S.Ct. 3327 (1986). See also Poland v.

Arizona, __U.S. —_. , 106 S.Ct. 1749, 1753 (1986) (when

death sentence vacated on appeal, “‘clean slate’’ rule ap-

plies unless basis of decision is insufficiency of evidence).

The obvious reason why Evans’ claim is moot is because,

having obtained the invalidation of his original death sen-

tence, he cannot demonstrate the actual prejudice required

under Strickland v. Washington, 466 U.S. 668, 694 (1984).

Evans’ sole assertion of prejudice is premised upon his

claim that if his death sentence had been vacated during

his original direct appeal, the Virginia Supreme Court

would have been required, as a matter of state law under

Patterson v. Commonwealth, 222 Va. 653, 283 S.E.2d 212

(1981), to commute his sentence to life imprisonment. (Ptn.

19-20). This issue of Virginia law, however, was decided

adversely to Evans in his second direct appeal* (App. 35a-

*In Evans IJ, Evans asserted, and the Supreme Court of Virginia

rejected, the same underlying claim concerning the applicability of Pat-

terson to his case which he has raised in the instant petition. The

Virginia Supreme Court stated as follows in Evans II:

Defendant contends that application of the revised sent-

encing law to him violates the prohibition against ez post

facto \aws....Evans says [that] under the law as it existed

at the time he committed his offense, at the time he was

tried, at the time his first conviction was affirmed, and at

all times before approval of the emergency legislation, he

was entitled to a sentence of life imprisonment upon the

setting aside of his death sentence. He argues that as the

result of Patterson: ‘Automatic commutation in such situ-

ations thus became a part of Virginia's law just as surely

as if it had been drafted by the legislature.”

Evans contends that had the errors which led to the Com-

monwealth's confession of error been brought to our attention

at the time of his first appeal, we would have done in Evans

what we had done...previously in Patterson, and Evans would

have received a life sentence. He contends the considerations

which led the Court to commute Patterson's sentence...applied

with full force to Evans’ case....We reject defendant's con-

36a), and again during the state habeas corpus proceed-

ings. Because the Virginia Supreme Court, as the final

arbiter of Virginia law, has determined that Patterson

would not have been applicable to his case if his original

death sentence had been vacated on direct appeal, Evans’

assertion of prejudice must fail. See Brown v. Ohio, 431

U.S. 161, 167 (1977) (state’s highest court is the final

authority regarding matters of state law).

Although a finding of no prejudice makes it unnecessary

to examine counsel’s performance, Strickland, 466 U.S. at

697, Evans has also failed to demonstrate that original

appellate counsel’s performance was objectively deficient.

Prior to trial, counsel had traveled to North Carolina to

investigate Evans’ record of prior convictions. (App. 40a).

Contrary to Evans’ assertions (Ptn. 7, 8), counsel objected

to some of the records when they were introduced at trial.

(A. 6a-7a). After trial, counsel gleaned from the record

Evans’ most viable claims, including the claim involving

the admission of evidence of other crimes, and raised them

on appeal in the Virginia Supreme Court. (App. 17a-31a).

Evans’ contention that counsel had an additional duty to

go beyond the trial record and to continue to investigate

Evans’ record of prior convictions is simply untenable.‘

tentions and conclude that there has been no ex post facto

violation.

(App. 35a-36a, emphasis added).

‘ Evans’ assertion that the Commonwealth has “‘long urged’’ that his

origina] trial counsel were aware at the time of trial of the errors in

the record of convictions (Ptn. 8 n.8, 17) ignores the fact that the cited

portions of the Commonwealth's brief from Evans I] pertained only to

a claim of prosecutorial misconduct and how the prosecution's good

faith related to that claim. In the same brief, the Commonwealth ex-

pressly stated: “It may well be that defense counsel misunderstood the

information...received from the Commonwealth, but the fact that the

Commonwealth made a reasonable effort to communicate the infor-

mation to the defense demonstrates the Commonwealth's good faith."’

(App. 84a n.11).

First of all, it took Evans’ habeas attorney approxi-

mately one year to investigate the matter of the erroneous

conviction records and to obtain the affidavit from a North

Carolina official which led to the Commonwealth’s confes-

sion of error.’ It is patently unreasonable to argue that

appellate counsel could have discovered and demonstrated

the errors in the conviction records during the considerably

shorter time that the case was on direct appeal.

More importantly, appellate counsel had no duty to go

outside the trial record because nothing beyond that re-

cord, even if it had been discovered, would have been

cognizable on appeal. It is beyond question that the records

which were introduced at trial could not have been dem-

onstrated to be erroneous without proof of matters outside

the trial record. Virginia law is clear, however, that an

appeal can only be decided upon matters of record. ‘“The

Commonwealth and the defendant must stand or fall upon

the case that was made in the lower court and reflected

by the record under review. [The Virginia Supreme Court]

is not a forum in which to make a new case.” Guthrie v.

Commonwealth, 212 Va. 602, 604, 186 S.E.2d 69, 70 (1972).

See also Bunch v. Commonwealth, 225 Va. 423, 436, 304

S.E.2d 271, 278 (1983) (rule applied in capital case). This

Court follows the same rule. See New Haven Inclusion

Cases, 399 U.S. 392, 450 n.66 (1970).

* Evans’ habeas petition was filed on April 9, 1982, and was amended

by Evans as late as January 1983. Evans’ habeas attorney did not

secure the affidavit in question until March 22, 1983. The Common-

wealth confessed error on April 12, 1983. Evans’ assertion that the

Commonwealth ‘confessed’ that the erroneous evidence had been

“knowingly” introduced (Ptn. 2) is rebutted by the record. The letter

confessing error plainly states that the error had been “unbeknownst

to the prosecution or defense counsel.’’ (App. 48a). Likewise without

foundation is Evans’ suggestion that the Commonwealth deliberately

delayed confessing error for tactical advantage. (Ptn. 10 n.10). In Evans

II, the Virginia Supreme Court, as well as the state trial court, decided

that factual claim adversely to Evans and found that the Commonwealth

had acted in good faith. (App. 40a-41a).

Thus, Evans’ contention that counsel had a duty to con-

tinue to investigate matters outside the record while the

case was on appeal is antithetical to established principles

of appellate practice. A failure to conduct such an inves-

tigation cannot be the basis for a finding of deficient per-

formance under the first prong of the Strickland test.

II. Petitioner Was Not Denied The Effective Assistance

Of Counsel At The Guilt Stage Of His Trial When

His Attorneys Chose Not To Object To The Prose-

eutor’s Argument.

Evans contends that his original trial attorneys were

constitutionally ineffective because they failed to object to

certain portions of the prosecutor’s argument® at the guilt

stage of Evans’ trial. (Ptn. 21). This claim is entirely with-

out merit.

The state habeas judge conducted an evidentiary hearing

on this claim, and made an express finding of fact that

Evans’ trial attorneys chose not to object to the prose-

cutor’s argument, or to request a limiting instruction, for

tactical reasons. (App. 8a-9a, 12a-13a). Counsel made a

deliberate determination ‘‘that an objection and instruction

would do nothing more than highlight the [prosecutor's]

argument for the jury.”’ (App. 9a).

——

* Evans completely mischaracterizes the prosecutor's argument. The

prosecution did not argue as petitioner alleges (Ptn. 21) that Evans

had, in fact, killed other people. To the contrary, both cited portions

of the prosecutor’s argument (App. 56a) are explicitly couched in terms

of comments upon evidence of Evans’ “motive.” During the prosecu-

tion’s case, the trial court admitted, over defense counsel's objection,

the written statement of one of the Commonwealth's witnesses in which

the witness had stated that Evans, while telling him of his plan to

escape, also told him that “‘he’d killed a couple of people.’ (A. 4a-5a).

Thus, the prosecutor clearly was not arguing that Evans had, in fact,

killed other people, but only that his statement to the witness was

evidence of Evans’ motive for attempting to escape.

Counsel's decision was eminently reasonable. Counsel

had objected at length, when the evidence was admitted,

to any evidence of other crimes committed by Evans. (A.

2a-3a). At one point the attorneys even moved for a mis-

trial. (A. 3a). All of their objections were overruled, but

the trial court instructed the jury that such evidence was

limited to the issue of Evans’ intent. (App. 23a). In this

factual context, counsel, who unlike Evans’ present

attorneys, were present and heard the prosecutor’s ar-

gument, reasonably interpreted that argument as comment

upon adverse evidence which had been admitted over their

objection.

Under these circumstances, the Virginia courts correctly

declined to second-guess counsel’s strategic decision. See

Strickland, 466 U.S. at 689. See also United States v.

Murzyn, 631 F.2d 525, 534 n.15 (7th Cir. 1980) (counsel

performs effectively if, out of a desire to downplay adverse

evidence, counsel decides not to object to argument or

request limiting instruction), cert. denied, 450 U.S. 923

(1981).

Counsel’s desire not to highlight the prosecutor’s ar-

gument is closely related to Evans’ failure to demonstrate

the prejudice required to sustain a claim of ineffective

counsel. The state habeas judge found that the “‘net result’

of an objection by counsel “would necessarily have been

to have increased the jury’s awareness of [the adverse]

evidence.” (App. 13a). In view of the trial court’s earlier

rulings on the admissibility of that evidence, and the af-

firmance of those rulings by the Virginia Supreme Court

on appeal (App. 19a-23a), there is no reasonable probability

that the outcome of the guilt stage of Evans’ trial would

have been any different if counsel had voiced another ob-

jection or requested another limiting instruction. See

Strickland, 466 U.S. at 694. This conclusion is further

buttressed by the fact that the Commonwealth presented

overwhelming independent evidence on the issue of pre-

meditation. (App. 19a-22a). See also Adams v. Wainwright,

10

709 F.2d 1443, 1446 (11th Cir. 1983) (no prejudice even

where counsel “probably should have objected”’), cert. de-

nied, 104 S.Ct. 745 (1984).

Thus, Evans has failed to sustain his burden of meeting

both prongs of the Strickland test. As the state courts

concluded (App. 10a), counsel’s performance was well

within the range of effective assistance, and Evans suf-

fered no prejudice as the result of trial counsel’s alleged

error.’

III. The Use Of A Transcript At Petitioner’s Resent-

encing Proceeding Did Not Violate His Rights Un-

der The Confrontation Clause In View Of The

Undisputed Fact That He Failed To Raise Such A

Claim In The State Trial Court.

Evans concedes that he failed to raise his Confrontation

Clause claim in the state trial court and on direct appeal,

and that he raised it for the first time in his state habeas

proceedings more than a year after his resentencing. (Ptn.

11 n.12). As this Court has recognized, such a failure

clearly constitutes a procedural default under Virginia law.

See Smith v. Murray, U.S. —_, 106 S.Ct. 2661, 2665

(1986), citing Coppola v. Warden, 222 Va. 369, 282 S.E.2d

10 (1981), and Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d

680 (1974).

When petitioner raised this claim in his state habeas

proceedings, the Commonwealth asserted that the claim

’ Evans suggests that one reason why this Court should grant the

writ on this claim is because the Virginia Supreme Court allegedly

failed to review the state habeas judge’s ruling. (Ptn. 23). Again,

petitioner misapprehends Virginia law. The Supreme Court of Virginia’s

refusal of a petition for appeal based upon a finding of ‘‘no reversible

error” (App. 16a) has but one meaning, 1.e., the Court has found the

petitioner’s case lacking in merit. Saunders v. Reynolds, 214 Va. 697,

700, 204 S.E.2d 421, 424 (1974). See Jackson v. Virginia, 443 U.S.

307, 311 n.4 (1979).

11

had been defaulted, and responded, alternatively, on the

merits of the claim. (App. 98a). The habeas trial court

denied the claim ‘for the reasons stated in the respondent’s

_answer.” (App. la). The Commonwealth responded in the

same manner to Evans’ subsequent petition for appeal to

the Virginia Supreme Court. (App. 100a-102a). The

Supreme Court affirmed the denial of habeas relief, finding

‘‘no reversible error, in the judgment complained of.’’ (App.

16a).

In Smith v. Murray, as well as in Murray v. Carrier,

__U.S. __, 106 S.Ct. 2639, 2647 (1986), this Court rec-

ognized that Virginia’s procedural default rules are both

legitimate and reasonable. See Smith, 106 S.Ct. at 2665.

In Smith, as in this case, the Virginia Supreme Court

“declined” to accept the habeas petitioner’s appeal without

expressing the reasons for the Court’s action. Id. Never-

theless, this Court had no difficulty concluding that the

Virginia courts had enforced the State’s procedural default

rules. Id.

In the case at bar, the state habeas judge, as well as

the Virginia Supreme Court, clearly dismissed this claim

primarily for the procedural default, and only alternatively

on the merits. (App. la, 98a). Thus, Evans’ claim that his

confrontation claim is not barred because it is allegedly

‘impossible to tell’? whether the state courts,enforced the

procedural default (Ptn. 13-14 n.14), is without merit. See

Michigan v. Long, 463 U.S. 1032, 1041 (1983) (court will

not exercise jurisdiction if state decision “‘is alternatively

based on bona fide separate, adequate, and independent

grounds”); Davis v. Allsbrooks, 778 F.2d 168, 175-176 (4th

Cir. 1985) (if state courts dismiss on procedural grounds,

and alternatively on the merits, federal review is never-

theless barred).

If a petitioner fails to observe reasonable state proce-

dural requirements, this Court will decline to exercise ju-

_ risdiction regardless of whether the highest state court

12

expressly refuses to consider the federal question, Penn-

sylvania R. Co. v. Illinois Brick Co., 297 U.S. 447, 462-

463 (1936), or whether the state’s highest court is com-

pletely silent on the matter, Mutual Life Ins. Co. v.

McGrew, 188 U.S. 291, 309-310 (1903). This Court will

assume, in the latter case, that the silence is due to the

procedural defect. Bailey v. Anderson, 326 U.S. 203, 206-

207 (1945). See also Stembridge v. Georgia, 343 U.S. 541,

547-548 (1952) (Court declined to exercise jurisdiction even

when existence of an adequate state procedural ground is

‘“‘debatable’’).

Evans’ procedural default is particularly inexcusable in

this case because he specifically claims that he was ‘“‘de-

nied” the opportunity to confront and cross-examine ad-

verse witnesses. (Ptn. 26, 27 n.28). Having conceded that

he failed to raise this claim in the state courts (Ptn. 11

n.12), it is difficult to understand how he was ‘‘denied”’

his rights under the Confrontation Clause. To the contrary,

the record demonstrates that although they may have dif-

fered concerning the exact manner in which the transcript

would be utilized, the defense* and the prosecution had

agreed that the transcript would be used in lieu of certain

witnesses. (A. 8a).

Petitioner’s claim that, despite his approval at trial, the

transcript could not have been properly used in the ab-

sence of a showing that the witnesses were unavailable

(Ptn. 26), is without merit. Not only did Evans fail to

object to the use of the transcript, the record also shows

that the defense made no effort to compel the presence

of the missing witnesses. See Va. Code § 19.2 269.1. (A.

la). Evans could have sought to cross-examine such wit-

nesses under the “adverse witness’ rule. See Va. Code §

* It is most significant that Evans has never alleged that the attorneys

who represented him at his resentencing proceedings and on the sub-

sequent direct appeal, and who failed to object to the use of the tran-

script, were ineffective in this, or any other, respect.

13

8.01-401A. (A. 1a). This Court has found that under similar

circumstances, where the defense clearly did not desire

that the witnesses be present, an ‘‘unavailability’ rule

would make little, if any, sense, and is not constitutionally

required. United States v. Inadi, __U.S. __, 106 S.Ct.

1121, 1127-1129 (1986).

Finally, since petitioner had the opportunity to confront

and cross-examine the witnesses in question when they

testified at his original trial, the transcript was sufficiently

reliable to pass muster under the Confrontation Clause.

See Ohio v. Roberts, 448 U.S. 56, 72-73 (1980) (specifically

noting that it does not matter that the defendant was

represented by different counsel at the prior proceeding).°

IV. Petitioner’s Claim Concerning Recusal Of The State

Habeas Judge Does Not Present A Substantial Fed-

eral Question.

Evans filed a motion to recuse the judge who presided

over the state habeas corpus proceedings. The basis for

the motion was the fact that one of his original trial

counsel, whose effectiveness was the subject of the evi-

dentiary hearing, was a former deputy clerk of the Al-

exandria Circuit Court!® who during his tenure had

* Evans’ assertion that this Court should grant certiorari on this claim

to resolve an alleged ‘‘conflict”” between the decisions of the Virginia

Supreme Court and a lone decision of the Court of Appeals of Maryland

(Ptn. 27-28) is, at best, strained. See U.S. Sup.Ct.R. 17.1. Furthermore,

Tichnell v. State, 427 A.2d 991 (Md. 1981), is readily distinguishable

from Evans’ case because Tichnell, unlike Evans, “‘vociferously’’ ob-

jected to the use of a transcript at his resentencing proceeding. 427

A.2d at 993.

‘¢ Contrary to petitioner’s assertion (Ptn. 29), the attorney in question

was not ‘‘a former long-time empioyee”’ of the state habeas judge. Nor

was the attorney, as suggested by Evans (Ptn. 29 n.30), anything akin

to the judge’s “former law clerk.’’ Under Virginia law, the clerk of a

circuit court is a constitutional officer entirely independent of the ju-

diciary. Va. Const. Art. VII, § 4. (A. 1a). Thus, the attorney in question,

14

frequently worked in the courtroom at trials presided over

by Judge Kent, the state habeas judge. Evans contends

that Judge Kent’s refusal to recuse himself from the ha-

beas proceedings constituted a denial of due process. (Ptn.

28).

Petitioner’s claim fails to present a substantial federal

question. In Tumey v. Ohio, 273 U.S. 510, 523 (1927), this

Court recognized that not all matters of judicial qualifi-

cation are of constitutional magnitude, and that matters

concerning a judge’s ‘‘personal bias” are generally within

the discretion of the state legislatures. More recently, in

Aetna Life Insurance Co. v. Lavoie, __U.S. __, 106

S.Ct. 1580, 1585 (1986), this Court held that the Due Proc-

ess Clause requires judicial disqualification on grounds of

bias “‘only in the most extreme of cases.” See also 106

S.Ct. at 1589 (‘‘The Due Process Clause demarks only the

outer boundaries of judicial disqualifications.’’).

The matter of Judge Kent’s alleged ‘“‘personal bias” was,

at most, a matter of state law. The evidence presented

by Evans in support of his recusal motion (App. 105a-

11la), certainly did not rise to the level of a constitutional

violation. See Lavoie, 106 S.Ct. at 1585. The Virginia

Supreme Court affirmed the denial of habeas relief on this

claim (App. 16a), thus finding that, under state law, Judge

Kent properly declined to recuse himself. Because no sub-

stantial federal question is presented by Evans’ claim, this

Court is without jurisdiction to grant certiorari. See 28

U.S.C. § 1257(8).

CONCLUSION

By petitioner’s own admission, this case involves an

“extraordinary confluence of events.’”’ (Ptn. 3). For that

reason, the precise issues raised by this case are unlikely

who had been a ‘deputy clerk’ for the Circuit Court of the City of

Alexandria (App. 106a), was a former employee of an independent

constitutional officer, not a former employee of the judge.

15

to recur. The case will have little, if any, impact beyond

the limitations of its own unique facts. There do not exist

any special reasons or circumstances for reviewing the

decision in this case, and no new constitutional rule would

be developed by any decision of this Court.

Furthermore, three of the four claims which petitioner

has presented are especially inappropriate for review by

certiorari. One claim has been procedurally defaulted (claim

III), another fails to raise a substantial federal question

(claim [V), and a third, while it raises a federal question,

is premised upon a fundamental misapprehension of Vir-

ginia law (claim I). The only remaining claim is the alle-

gation of ineffective counsel at the guilt stage of Evans’

trial (claim II). Aside from the fact that the state courts

have determined that counsel made a tactical decision not

to object to the prosecutor’s argument and that the net

effect of such an objection would have been to highlight

adverse evidence, Evans has failed to demonstrate any

“special or important” reason why this claim should be

reviewed on certiorari. See U.S. Sup.Ct.R. 17.1 For these

reasons, the petition should be denied.

Respectfully submitted,

Mary SuE TERRY

Attorney General of Virginia

*DONALD R. CURRY

Senior Assistant Attorney General

*Counsel of Record

May 22, 1987

APPENDIX TO

RESPONDENT’S BRIEF IN OPPOSITION

la

Va.Const. Art. VII, § 4 (in relevant part)

County and city officers.—There shall be elected by

the qualified voters of each county and city a treas-

urer, a sheriff, an attorney for the Commonwealth, a

clerk, who shall be clerk of the court in the office of

which deeds are recorded, and a commissioner of rev-

enue. The duties and compensation of such officers

shall be prescribed by general law or special act.

Va. Code § 8.01-401 (in relevant part)

How adverse party may be examined; effect of re-

fusal to testify.—A. A party called to testify for an-

other, having an adverse interest, may be examined

by such other party according to the rules applicable

to cross-examination.

*_* *

Va. Code § 19.2-269.1

Convicts, etc., as witnesses.—Whenever the Com-

monwealth or a defendant in a criminal prosecution

in any circuit court in this State shall require as a

witness in his behalf, a convict or prisoner in a cor-

rectional or penal institution as defined in § 53.1-1,

the court, on the application of such defendant or his

attorney, or the attorney for the Commonwealth, shall

issue an order to the Director of the Department of

Corrections to deliver such witness to the sheriff of

the county, or sergeant of the city, as the case may

be, who shall go where such witness may then be and

carry him to the court to testify as such witness, and

after he shall have so testified and been released as

such witness, carry him back to the place whence he

came, for all of which service such officers shall be

paid out of the criminal expense funds in the state

treasury such compensation as the court in which the

case is pending may certify to be reasonable.

2a

TRIAL TRANSCRIPT PAGES 297-300 (excerpts)

Mr. KLOCH: * * *

The next Commonwealth witness will be an individual

by the name of Ralph Washington, and at the time this

occurred, he was an inmate in the Alexandria Jail and

shared a cell with the defendant.

Among other things, he will testify that the defendant

told him he was up here purely to escape. He was facing

a life sentence on a murder charge in Carolina. He had

nothing to lose and would waste anyone that stood in his

way. That is essentially the testimony that Mr. Washington

would give and it is my position that under Kirkpatrick

and other cases that is admissible as to motive and intent.

I think either as to motive or intent that would be ad-

missible.

MR. LONG: Well, first of all, Your Honor, I don’t know

that motive has anything to do with the offense of escape.

I always thought, and maybe I’m wrong, but I’ve been

taught motive comes into play where circumstantial evi-

dence is concerned and that is not the situation.

Secondly, we have a statement from the Commonwealth

Attorney, a statement that Mr. Washington made, and for

the life of me I can read it upside down, inside out, side-

ways and every other way and I don’t see a word about

wasting anybody. I don’t see a word about being in jail

or two life sentences. If this witness gave a statement on

the 3rd of February, which is seven days after the oc-

currence, and now comes into court and says he’s going

. to testify about wasting people in an attempt to get away,

I think his testimony is a little difficult to understand.

What I’m saying, regarding prior offenses that have not

resulted in a trial, unless there is a conviction involved,

they are not admissible. That would do nothing but instill

prejudice in the minds of the jury. We’re only trying one

issue, the willful, deliberate killing and escape. Whether

3a

he told seventy-five other people has really nothing to do

with it other than to inflame the jury.

Secondly, we have no objection to the man testifying

that he came up to escape, and, obviously, that’s a critical

part, whether he had information on the attempt to escape,

but as far as killing people and awaiting a life sentence,

that is not the fact. The record is to the contrary. The

Commonwealth Attorney knows that. He’s under an in-

dictment in North Carolina. He’s not been tried for any-

thing. He does not stand convicted and has not received

a life sentence. If that evidence comes in that Mr. Kloch

proffered to the Court—and I don’t know what Kirkpatrick

says—but if the Court allows that in, it’s going to merely

be for the purpose of inflaming the jury against this

defendant and we would immediately move for a mistrial.

It has nothing to do with this case or the issues in this

case.

THE COURT: Gentlemen, the Court is of the opinion

that the evidence is admissible to show the intent or state

of mind of the defendant. The objection will be overruled.

The evidence will not be admitted to show whether or

not the defendant had committed other crimes in North

Carolina, but merely to show his state of mind or intention

when making this statement.

I will give the jury a cautionary instruction as to the

weight it will be given without waiving your objection to

admissibility.

MR. LONG: Your Honor is not only waiving the objec-

tion to admissibility, but you might on the record also if

it comes in—the Court should consider a motion for a

mistrial.

THE COURT: That motion will be denied.

4a

TRIAL TRANSCRIPT PAGES 352-353 (excerpts)

MR. LONG: This is the excised portion; this is the orig-

inal.

During the luncheon break, I had an opportunity to read

Jones on Evidence and the Kirkpatrick Case, and I rei-

terate my argument as far as the second paragraph. That’s

where he said he killed a couple of people.

I will state, Your Honor, in accordance with Kirkpatrick,

as well as other case law, it has absolutely no probative

value at all. I ask that be excised, also; then I understand

the Court’s ruling on it. I think for the record I have to

put that in.

MR. KLOCH: The witness didn’t say anything about the

other case or killing or anything of that nature and I think

the statement should not be admitted at all or admitted

for what it is. By his own statement, he didn’t say exactly

that, but he paraphrased it.

THE COURT: To be consistent on my ruling on direct

examination of the witness during which the witness tes-

tified the defendant said he faced a life sentence in North

Carolina or two life sentences, I have to permit this to

go in. Accordingly, I’m satisfied that the ruling was cor-

rect.

MR. LONG: I understand that. I’m saying for the record

I’m putting this in.

THE COURT: All right. Your objection is noted.

THE COURT: I stated to you Defendant’s Exhibit A

had been admitted and explained to you the purpose for

which it was admitted. I erred in that it should be Al

rather than A. A is not admitted.

5a

EXHIBIT A-1

Statement of

Ralph Barney Washington

Page of Pages 2/3/81

Statement taken by J. N. Soos 0916 Hrs

On January 26, 1981, I was housed in Cellblock 3-C at

the Alexandria Correctional Center. A guy named Evans

was put in the block with me and three other inmates

named Miller, Lawrence and Jasper. During the time Ev-

ans was in my block, he talked about his adventures. He

said he’d killed a couple of people. Evans also talked about

trying to escape. He said he had come up from North

Carolina as a witness, but was going to go into court and

say he didn’t know anyone. He asked if he could get away

in court. He asked if the deputies wore guns and which

way he should go if he got free on foot. He also said if

he got away, he would probably try to grab someone in

a car to make them drive him away.

Jasper was the only one who tried to give Evans any

information and that was to run towards the river or into

an apartment complex to get away.

X [signed Ralph B. Washington]

Witness [signed Joseph N. Soos]

6a

TRIAL TRANSCRIPT PAGES 581-582 (excerpts)

THE COURT: I’m satisfied that when you read the two

together along with the certification of the Superior Court

and the judge of the 10th Judicial District the indictment

is the indictment that corresponds with the judgment and

the commitment. The objection is overruled.

MR. LONG: If I may state for the record, not only are

they not referred to by number, but circumstantially it is

not proper argument; but the documents speak for them-

selves.

_ THE COURT: I agree with that. You have to read them,

and whatever appears on the face of them, as well as

what appears on the certification.

MR. LONG: For the purposes of the record, I make

that objection, but I think that when you’re dealing with

something as critical as the defendant’s prior record and

it’s going one way or the other whether he receives life

or death, that the Commonwealth has got to do more than

what they’ve done here. They could have been numbered;

they must be numbered. The file must be numbered. You

just can’t pull it out from nowhere. There are no numbers

for the record and no connection as to the two other than

the fact they are stapled together.

THE COURT: Except for the certification of the clerk

which states the foregoing and a copy of the indictment,

the warrant and the judgment and the commitment and

it makes reference to 96.8. The clerk has certified this is

the indictment that corresponds with 96.8.

Given that certification, notwithstanding the fact that

the indictment does not have a number on it, I’m satisfied

as to its admissibility.

MR. LONG: I object to it.

THE COURT: All right, sir.

Make that the next number if you will, please.

7a

THE CLERK: Twenty one.

THE COURT: All right.

(The document previously referred

to was marked Commonwealth’s

Exhibit No. 21 for identification.)

8a

RESENTENCING TRANSCRIPT PAGES 210-211 (ex-

cerpts)

MR. HOWARD: Your Honor, one matter if I may. I

anticipate the Commonwealth starting off by reading the

transcripts of the prior trial. My only thought, Mr. Myers

and I have discussed this last night. With those individuals

of course that are going to read their own parts, I think

that’s absolutely the proper way to do it. If the Com-

monwealth intends to have someone read parts like Mr.

Washington, Mr. Boone, Mr. Jasper, there was another

Oliver Turner and the defendant, I think one individual

should read every one of those parts rather than have

separate individuals read separate parts. .

It seems to me and my points are well taken, it’s obvious

if we have five or six very credible, intelligent, and nice

people that that would be a problem for the defense. If

one person read everybody’s part, then I guess that’s only

the fair way to do it. It seems to me that it can be done.

THE COURT: Any objection to that?

MR. KLOCH: I guess if that had been arranged some-

time ago. I talked to Mr. Howard probably months ago

and we decided to put in various people for each person.

It’s been at least six weeks ago.

* * *