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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1987

## Text

—————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.

* * *

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2193%3A3. Public record. Not legal advice.