Opposition Brief — Tuggle v. Netherland

Supreme Court brief1995

Ask Donna

What actually matters in this document.

Text

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING, IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

_ WILL BE ISSUED,

SEP 19 °S5 11:08 VA ATTY GEN-CRIM LITA

No. 95-6016 \ 7

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1994

LEM DAVIS TUGGLE,

Petitioner

Vv.

J. D. NETHERLAND, WARDEN,

Respondent

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for The Fourth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

JAMES S. GILMORE, III

Attorney General of Virginia

*DONALD R. CURRY

Senior Assistant Attorney General

Office of the Attorney General

900 East Main Street

Richmond, Virginia 23219

(804) 786-4624

*Counsel of Record

SEP 19 °9S 11:89 VA ATTY GEN-CRIM LITA

QUESTIONS PRESENTED

In a case where it is undisputed that petitioner is the person who

sexually assaultcd and brutally murdered the victim over twelve

years ago, should this Court grant a stay of execution to review:

1. Acclaim that this Court declined to review in 1986,

that is based upon an underlying constitutional

“error” that does not exist, that is barred by the

“new rule" doctrine, and that fails to implicate the

constitutionality of petitioner’s death sentence?

2. A fact-bound "Estelle v. Smith” claim that is

partially defaulted and is the same claim the Court

declined to review in 1986?

3. Jury impartiality claims which are precluded by

State court findings of fact, the presumption of

correctness under 28 U.S.C. § 2254(d), and the

“new rule" doctrine?

4. The Fourth Circuit's fact-bound application of

Jackson v. Virginia?

5. A vagueness challenge to Virginia's “vileness"

aggravating circumstance that fails to raise a

cognizable federal issue and which this Court

repeatedly has declined to review?

P.S

SEP 19 °95 11:09 VA ATTY GEN-CRIM LITA

TABLE OF CONTENTS

Page

ey CUI is 0S S0S Kee ck beeicccecwetesied ces i

Pt Es i 6 e0r5s oie en sed Seek hbesos tied insine ou ee i

ION, 0 n'g'E's Uiv wna ccd noe bae¥ duh she pees oben iii

SRT OP CNN ini Bic cee viRewsecdedervude dines e's !

REASONS WHY THE WRIT SHOULD BE DENIED ............0. 0000005. 4

I. THE VIRGINIA SUPREME COURT'S APPLICATION OF ZANT_V,

STEPHENS DOES NOT PRESENT AN ISSUE WARRANTING THIS

OEE «isch soda veheees Fee bnveeeaeks 4

II. TUGGLE’S ESTELLE V. SMITH CLAIM IS PARTIALLY

DEFAULTED AND, IN ANY EVENT, IS THE SAME CLAIM THAT

THIS COURT DECLINED TO REVIEW IN 1986 ...........055. 16

Ill. TUGGLE’S FACT-SPECIFIC CLAIMS REGARDING THE

IMPARTIALITY OF HIS JURY DO NOT WARRANT CERTIORARI

IV. TUGGLE HAS GIVEN THIS COURT NO REASON TO REVIEW THE

FOURTH CIRCUIT’S FACT-SPECIFIC APPLICATION OF THR

JACKSON V. VIRGINIA STANDARD .... 2.6.0.0 19

V. _PETITIONER’S VAGUENESS CHALLENGE TO VIRGINIA’'S

“VILENESS" AGGRAVATING FACTOR DOES NOT IMPLICATE

THE CONSTITUTIONALITY OF HIS DEATH SENTENCE ....... 20

ER OPS SO A Pe en eee re mE re ree 22

SEP 19 ’95 11:09 VA ATTY GEN-CRIM LITA

TABLE OF CITATIONS

Cases

Page

Ake v, Oklahoma,

IG os A aa 8 Be en Adie t d 2

RGN ET RIN (ee ia Pe Aa 9

NRE ORE RECO ain I MOR Rtas ee I aN 21

8 | EE ORE athe ei oe. YG: 10

Buchanan v. Kentucky,

PE sign 92 = Ce aaa a ie ae Paes 17

Bunch vy, Thompson,

949 F.2d 1354 (4th Cir. 1991),

et Math RMD METIS). |. cs dic dnd ad caupdbe de veacks 2?

Burden v. Zant,

MCR Ore 5

Buttrum y. Black,

5 ii ai i Mt... 5 cic eS olden Yaw » A0e ooma 14

Tai le hem ee i cae 14, 15

ee I Ne Ea ee ae 21

$ ,

SU a Ee Oe a a ae ae 11, 17

845 F.2d 1238 (4th Cir.),

ca ian Mae Gi a od ee ae ee eae 6

SEP 19 '95 11:10 VA ATTY GEN-CRIM LITA P.8

Coleman x. Thompson,

$01 U.S. 722 (1991)... 0. ee eee +

wr Da 454 11988) I a 1s

Nee ee cae tceevece 6

IE RR SR 2

SN TEES OG Le a 11, 17

428 U.S. 153 fon) Ne 21

Ley. ane OS NS TR ae.” Sha ee ee 19

443 U.S. 307 aon) IR ORES eR eae ee ey 19

ee me TE al, uae re ae, ae 13, 17, 19

742 F.2d 155 (4th Cir.),

ee ladheats 6

rn, oe ab aiteecce cluucss 21

464 US. “a i ne a daees 5

“a3 US. 10s NS Rae ee ac re 21

, a es 1s

SEP 19 "95 11:10 VA ATTY GEN-CRIM LITA P.9

SEP 19 °95 11:10 VA ATTY GEN-CRIM LITA P.10

Romano \_ Oklahoma, Watkins v. Murray,

114 $ Cr. 2004 (1924) eeseeeees : . e* — — — — , , : 13 CAS No 92.43!¢. stig “— 6.28 aS i Aw el ys

Se A A i ae a 5

Ross v. Moffis, cert. denied,

SE aie oi Bee de ek on benhhnr 19 Williams y. Virginia.

AR IRR ES a I ee ence Se. ee Ee 21

Simmons vy. South Carolina.

rr Lae nb endeccdbebevedeetedaas 15

en I es cube ba Seénn bees 20

Smith v. Procunicr,

769 F.2d 170 (4th Cir. 1985), Zant _v. Stephens,

aff'd on other grounds, 477 U.S. 527 (1986)... eee 6 Sa 2

Stringer v. Black,

ee ee cab bk Meee eehen ot il Statutes

Stringer v. Black, RE SE ES Se ee, eee ae 9, 15, 18

a a de ebeamels ¥eekehe 12 : 4)

eh ic ot on ous cop avbtusd eee cand does 20

441 S.E.2d 195 (Va. 1994), Ss coe wins cot ebuad ates

en, clo a ees pabesebe mea 12 ; 65) « =

et SS oe, 6 ukiee b Mane codes evacbec 2

112 $.Ct. 1681 (1992) eee eee ee eee er ee eeeeewen eee eeeeeeerseeeeeeees 3 § 19.2-264.4C, Code of Virginia 4 SS Te At ee, LOPS 7 es on ee 20

Tuggle v. Thompson.

I a Na a oi a kbe 3

Tugele vy. Virginia,

Ae ee oe ut ab oe be 6 ekbe 5

Tuilaepa v. California,

RAI Ee ay ee ae 21

35 F.3d 872 (4th Cir. 1994),

Ce et aw ee ebb eecen cue 22

United States v. Johnson.

Le 2. ge ed Oe be Canimdlé'ce 6 eam tne 17

v vi

SEF 19 °95 11:10 VA ATTY GEN-CRIN LITA ee lr

CAPITAL C*SE =

EXECUTION DATE: sage

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1994

LEM DAVIS TUGGLE,

J. D. NETHERLAND, WARDEN,

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for The Fourth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

STATEMENT OF THE CASE

The 1983 Rape and Murder of Jessie Geneva Havens

The “uncontroverted” facts surrounding Lem Davis Tuggle’s rape and murder of Jessie

Havens are set forth at length in the published opinion of the United States Court of Appeals for

the Fourth Circuit. Tuggle v. Thompson, 57 F.3d 1356, 1359-1360 (4th Cir.1995). Suffice it

to say that there is no doubt that Tuggle is the person who shot and killed Ms. Havens in May

of 1983, after a brutal sexual attack that included rape, anal sodomy and a bite wound Tuggle

af +43 a the victim's breast.

SEP 19 °S95 11:11 VA ATTY GEN-CRIM LITA P.12

Case History

Tuggle's conviction for the capital murder during or subsequent to the rape of Jessie

Havens took place in the Circuit Court of Smyth County on January 17-19, 1984. At the penalty

phase of the trial, the jury found that the Commonwealth had proved both the “futwre

dangerousness” and “vileness” statutory aggravating circumstances beyond a reasonable doubt

and fixed Tuggle’s punishment at death. See Va. Code § 19.2-264.4. The trial court confirmed

the jury's verdict and sentenced Tugg!s to death on March 21, 1984.

Tuggile appealed his conviction and death sentence to the Supreme Court of Virginia,

which affirmed both on November 30, 1984. Tuggle v. Commonwealth, 228 Va, 493, 323

S.E.2d 539 (1984), Tuggle then filed a petition for a writ of certiorari and this Court remanded

the case to the Virginia Supreme Court on May 13, 1985, “for further consideration in light of

Ake vy. Oklahoma, 470 U.S. 68 (1985)." Tuggle v. Virginia, 471 U.S. 1096 (1985).

Upon remand, the Supreme Court of Virginia reaffirmed Tuggle's conviction and death

sentence. Juggle vy, Commonwealth. 230 Va. 99, 334 S.E.2d 838 (1985) (Tuggle IJ). Although

the Court concluded that the trial court had erred under Ake in failing to provide Tuggle with

an independent psychiatrist to assist him at the penalty-stage proceeding and that, therefore, the

jury's finding of “future dangerousness" could not stand, it determined that the jury's separatc

finding of “vileness" independently supported Tuggle's death sentence under this Court's

SEP 19 "SS 11:14 VA ATTY GEN-CRIM LITA P.4

decision in Zant vy. Stephens, 462 U.S. 862 (1983). Tuggle I], 230 Va. at 107-111, 334 S.E.2d

at 843-846 (error “neither impairs not invalidates the jury's finding of vileness”).'

After Tuggle’s petition for rehearing was denied by the Virginia Supreme Court, he filed

a second petition for a writ of certiorari in this Court raising six claims, including the alleged

misapplication of Zant v, Stephens by the Virginia Supreme Court. (No. 85-6011). This Court,

however, denied the petition on June 30, 1986. Juggle v. Virginia, 478 U.S. 1010 (1986).

Tuggle then filed a state habeas corpus petition, which was dismissed by the state trial

court on March 18, 1991. Tuggle appealed to the Supreme Court of Virginia, but the Court

refused his petition on November 14, 1991. Tuggle’s third certiorari petition was denied by this

Court on April 20, 1992. Tuggle v. Bair, 112 S.Ct. 1681 (1992).

On September 25, 1992, Tuggle filed a habeas petition in the United States District Court

for the Western District of Virginia, Roanoke Division. On June 8, 1994, Judge James S. Turk

vacated both the capital murder conviction and death sentence, finding six different grounds for

relief.

The respondent appealed to the United States Court of Appeals for the Fourth Circuit.

On June 29, 1995, the Fourth Circuit reversed the district court on all six grounds of relief and

reinstated Tuggle’s capital murder conviction and death sentence. Tuggle v, Thompson, 57 F.3d

1356 (4th Cir. 1995). In a sharply-worded opinion, the Court of Appeals stated that the district

' As Tuggle notes in his petition, the Commonwealth took the position in the immediate

aftermath of Ake v. Oklahoma that there had been an error at the penalty stage of Tuggle’s trial

and that the error required resentencing. The Virginia Supreme Court agreed that there had

been an error, but concluded that resentencing was not required. As will be demonstrated,

however, the indisputable historical facts conclusively demonstrate that there was no Ake error

in Tuggle’s case. (See below at pp. 6-11).

SEP 19 °95 11:14 VA ATTY GEN-CRIM LITA P.2

court's opinion was cause for “considerable concern" and chastised the lower court for reviewing

Tuggle’s case “as if it were the original trial court without regard to prior findings of fact and

numerous decisions of (the Fourth Circuit).". 57 F.3d at 1361.

Tuggle’s petition for rehearing in banc was denied by the Fourth Circuit on July 25,

1995. After the state trial judge scheduled Tuggle’s execution for September 21, Tuggle asked

the Court of Appeals to stay its mandate and to issue a stay of execution. On August 2, 1995,

the Fourth Circuit stayed its mandate for 30 days to give Tuggle time to file a petition for a writ

of certiorari in this Court. The Fourth Circuit also granted a stay of execution pending further

order of the court.

On August 25, 1995, Tuggle asked the Fourth Circuit to extend its stay of the mandate,

and on August 30 the Court of Appeals granted Tuggle’s request. On September 1, the

respondent asked this Court to vacate the stay of execution. In a per curiam decision on

September 14, the Court granted the respondent's application, but allowed Tuggle until

September 20 to file a motion for “a further stay in this Court." Netherland v. Tuggle, 116

S.Ct. __ (Sept. 14, 1995).

REASONS WHY THE WRIT SHOULD BE DENIED

1. THE VIRGINIA SUPREME COURT’S

APPLICATION OF ZANT V. STEPHENS DOES

NOT PRESENT AN ISSUE WARRANTING THIS

COURT'S REVIEW.

In Tuggle J, this Court remanded petitioner’s case to the Virginia Supreme Court for

reconsideration in light of Ake. The Virginia Supreme Court considered the impact of Ake and

~~" “SEP 19 °9S 11:15 VA ATTY GEN-CRIM LITA

concluded that it did not apply to the guilt stage of Tuggle’s trial because he had failed to make

the required threshold showing. Tugegle Il, 230 Va. at 107, 334 S.E.2d at 843. The impact of

Ake on the guilt stage of Tuggle’s case is no longer an issue.

With respect to Tuggle’s death sentence, the Virginia Supreme Court concluded that a

purported Ake error invalidated the jury's “future dangerousness” finding but did not adversely

affect the jury's “vileness” finding. 230 Va. at 107-111, 334 S.E.2d at 843-846, The Court

then applied this Court's decision in Zant vy. Stephens and reaffirmed Tuggle’s death sentence

on the basis of the jury's independent “vileness” finding. 230 Va. at 110-111, 334 S.E.2d at

845-846.

Tuggle then brought his case immediately back to this Court, alleging that the Virginia

Supreme Court had misapplied Zant_v, Stephens. (Resp. App. 1-12, excerpt from certiorari

petition in No. 85-6011).’ This Court, however, denied the petition, with Justices Brennan and

Marshall dissenting, but only on the basis of their general opposition to capital punishment, not

on any disagreement with the State court's application of Zan. Tyggle v. Virginia, 478 U.S.

1010 (1986).

This, then, is one of those circumstances where the significance of a denial of certiorari

simply cannot be ignored. See generally Maggio v. Williams, 464 U.S. 46, 51-52 (1983).

When a case returns to this Court after having been vacated and remanded for reconsideration

in light of a new case, the Court has not hesitated to intervene if it disagrees with the action

taken by the lower coyrt on remand. See. c.g.. Burden v. Zant, 114 S.Ct. 654 (1994) (case

? Citations to “Resp. App. __” are to the Respondent's Appendix that the Warden lodged

with the Court on September 19, 1995.

SEP 19 *S95 11:15 VA ATTY GEN-CRIM LITA

vacated and remanded a second time after court of appeals continued to circumvent statutory

“presumption of correctness"); Ford vy. Georgia, 498 U.S. 411 (1991) (certiorari granted to

correct lower court's misapplication of default rule upon remand). The Court’s denial of

certiorari in 1986, therefore, is a strong indication that the Court found no error in the Virginia

Supreme Court's action upon remand.

If there ever was an appropriate time to review the Virginia Supreme Court's decision,

it was on direct appeal in 1986 when the issue was presented squarely in Tuggle’s prior

certiorari petition, mot now after nearly ten years of exhaustive state and federal collateral

review. Now that the Fourth Circuit has reviewed Tuggle’s claim carefully and agreed with the

Virginia Supreme Court that it has no merit, there is even less reason to grant certiorari than

there was in 1986.°

B,. ’ “ “

On October 13, 1983, Tuggle filed a motion in the General District Court of Smyth

County (a court not of record) seeking to be evaluated on the issues of competency to stand trial

. This point is underscored by the fact that, in his certiorari petition immediately after the

remand, Tuggle acknowledged that the effect of Zan: vy Stephens upon Virginia's “non-

weighing" system of capital punishment already was a matter of firmly-established Fourth Circuit

precedent. (Resp. App. 10). Indeed, since 1984, the Fourth Circuit has been applying Zant y,

Stephens in the same manner it has been applied in Tuggle’s case, and in all such prior instances

this Court ultimately denied relief and the prisoners were executed. See L. Briley v. Bass, 742

F.2d 155, 165-166 (4th Cir.), com, denied, 469 U.S. 893 (1984); J. Briley y, Bass, 750 F.2d

1238, 1245 (4th Cir. 1984), cert, denied, 470 U.S. 1088 (1985); Smith v. Procunier, 769 F.2d.

170, 173 (4th Cir. 1985), aff'd on other grounds, 477 U.S. 527 (1986); Clanton vy. Muncy, 845

F.2d 1238, 1243 (4th Cir.), cer denied, 483 U.S. 1084 (1988); Watkins v. Murray, CA4 No.

92-4010, slip op. 9-10 n.5 (4th Cir. 1993), gem, denied, 114 S.Ct. 718 (1994). In view of this

history, it would make no sense for this Court now to review in a collateral proceeding the very

same Claim ii declined to review when Tuggle’s case was before the Court on direct appeal in

1986.

SEP 19 *SS 11:16 VA ATTY GEN-CRIM LITA P.S SEP 19 °9S5 11:16 VA ATTY GEN-CRIM LITA P.6

and sanity at the time of the offense. In support of his motion, however, he alleged only that

he had been in the penal system for a number of years, that a number of psychological

evaluations and tests had been performed on him during his confinement, and that he had been

evaluated at Southwestern State Hospital in approximately 1971 and had not been informed of

the results. (Resp. App. 13-14). In afi order entered October 14, 1983, Tuggle’s motion was

denied hecsnen the Gonsnsl Dieutet Conn found uo postette emese to tetlove thet be wes

incompetent to stand trial or insane at the time of the offense. (Resp. App. 15).

On November 3, 1983, Tuggle requested “necessary and reasonable expenses, including

expert witness fees and evaluation fees” in order to obtain an “independent pathologist, a

forensic serologist, and independent ballistics examiner, and an independent odontologist;" he

did not, however, seek funds for the appointment of an independent psychiatrist. (Resp. App.

16-17). The trial judge denied his requests, but directed the Commonwealth to provide Tuggle

with “access to such information that may be beneficial in the preparation of his defense on all

matters permitted and directed by [the rules of court]." (Resp. App. 22-24).

On November 18, 1983, Tuggle moved the Circuit Court of Smyth County for a mental

examination on the same two issues he had presented to the General District Court. He filed

no new written motion and was allowed to rely upon the written motion previously filed in the

lower court. (Resp. App. 18-19). The Commonwealth's Attorney did not agree to the motion,

but did not oppose it. (Resp. App. 19-20). The trial judge granted the motion after noting that

“this is a capital murder case." (Resp. App. 20).

Pursuant to the trial court's order that he be evaluated for competency and sanity, Tuggle

was admitted to Central State Hospital for evaluation on November 22, 1983. On December 1,

1983, Dr. Miller M. Ryans, a forensic psychiatrist, and Dr. Arthur Centor, a licensed clinical

psychologist, concluded that Tuggle was both competent to stand trial and sane at the time of

the offense. The doctors’ report also indicated that a conclusion had been reached with respect

to Tuggle’s "future dangerousness," but that the conclusion was not being reported because it

had not been requested. (Resp.-App. 25-26).

On December 27, 1983, Tuggle asked for an evaluation by an expert of his own choosing

-- Dr. C. Robert Showalter -- with respect to his competency to stand trial and sanity at the time

of the offense. The motion also asked that Tuggle be transported from Southwest Virginia to

the Charlottesville, Virginia, area for the evaluation. The basis for the motion was Tuggle’s

assertion that he was "entitled to be examined by a psychiatrist or group of psychiatrists chosen

by counsel for the defendant because of the seriousness of the charges heretofore lodged against

the Defendant." Tuggle, however, did not request the appointment of a psychiatrist to rebut

future dangerousness or to assist in gathering mitigating evidence for the penalty stage of his

trial. (Resp. App. 27-28). Indeed, neither the petitioner’s motion nor his argument to the trial

court made any reference to an alleged need for an expert for sentencing purposes.‘ (Resp.

App. 27-33).

On January 3, 1984, after noting Tuggie’s previous evaluation by Drs. Ryans and Centor,

the impending trial date, and the fact that logistical problems would cause a further evaluation

* Caught up in the hyperbole of his “Questions Presented,” Tuggle falsely asserts that his

request "sought to retain a defense expert to rebut the state's psychological testimony and assist

in the sentencing defense.” (Ptn. at i). When it comes to the historical facts and citing to the

record, however, Tuggle’s more truthful description of the request implicitly acknowledges that

he never asked the trial court for expert assistance relating to the sentencing proceeding. (Ptn.

at 4; Stay Application at 6).

SEP 19 °9S 11:17 VA ATTY GEN-CRIM LITA P.7

to be cursory at best, the trial court denied the belated motion for a second evaluation.

Specifically, the trial judge ruled that he had “granted the [prior] motion for an evaluation (only)

because of the seriousness of the case, and any further motion for evaluation, and specifically

the motion today, is denied." (Resp. App. 33-34, emphasis added). See Tuggle IJ, 230 Va. at

167, 334 S.E.2d at 843.

No evidence with respect to Tuggle’s sanity was presented at the guilt phase of trial. At

the penalty stage, however, Dr. Centor was allowed to testify for the Commonwealth, over

objection, that Tuggle showed “a high probability of future dangerousness." (Resp. App. 38).

The basis for the objection, however, had nothing to do with Tuggle’s present claim that he was

denied an independent expert. (Pet. App. 188-199).

These indisputable facts demonstrate that there simply was no underlying Ake error in

Tuggle’s case. Ake error presupposes that the defendant's request for a certain type of expert

assistance was denied by the trial court. See Ake, 470 U.S. at 72 (in a case where defendant

made threshold showing that his sanity at time of offense would be a significant issue at trial,

and where “no inquiry had been made into his sanity at the time of the offense," trial court

denied request to appoint psychiatrist or grant funds for defense to hire one); Bowden v. Kemp,

767 F.2d 761, 764 (11th Cir. 1985). It is undisputed that Tuggle never made such a threshold

Showing and never requested a mental health expert with respect to the penalty-stage

proceeding. Tuggle IJ, 230 Va. at 108 n.2, 334 S.E.2d at 844 n.2 ("We note...that Tuggle

never requested a psychiatrist to rebut future dangerousness, but only to reevaluate him as to

sanity and competency to stand trial“); 28 U.S.C. § 2254(d) (siate court finding of fact must be

presumed correct); see also Tuggle J, 228 Va. at 503, 323 S.E.2d at 544-545 (applying default

—— —),

SEP 19 ’95 11:17 VA ATTY GEN-CRIM LITA P.8

rule to claim because not raised at trial). The request that Tuggle did make at the guilt stage,

moreover, was one that Ake expressly disallowed -- a request for a psychiatrist of his own

choosing. See Ake, 470 U.S. at 83. And, most importantly, the trial court granted Tuggle’s

request for an examination and he was evaluated by both a psychiatrist and a clinical

psychologist; nothing in Ake required the trial court to keep appointing experts until one

rendered an opinion favorable to Tuggle.

The essence of Tuggle’s Ake claim is that he supposedly was denied access to an expert

who might have helped him rebut the prosecution's expert opinion regarding “future

dangerousness." The prosecution’s non-expert evidence of Tuggle’s “future dangerousness, *

however -- his prior murder and escape convictions -- rendcred the bricf expert testimony from

Dr. Centor presented by the prosecution little more than a statement of the obvious. (Resp.

App. 38). See Tuggle J, 228 Va. at 517, 323 S$.E.2d at 554 (petitioner's prior record).

Tuggle’s brutal rape and murder of Ms. Havens, moreover, provided additional compelling

evidence of his dangerousness and stood in stark contrast to the absence -- both past and present

-- of any substantial mitigating circumstances.

In view of Tuggle’s failure to request expert assistance at the penalty stage and his

continued failure to proffer any evidence that such assistance would have borne fruit, there is

no reason to believe the jury's sentencing verdict would have been any different if the purported

Ake error had not occurred. See Brecht v. Abrahamson, 113 S.Ct. 1710, 1722 (1993)

("substantial and injurious effect or influence in determining the jury’s verdict"). Indeed, based

upon the record Tuggle presents to this Court, there is no reason to believe that, if Tuggle had

been evaluated by yet another expert, the third expert would have reached a conclusion any

SEP 19 ’95 11:18 VA ATTY GEN-CRIM LITA P.9

different than that reached by Drs. Centor and Ryans. Surely, it was Tuggle’s burden during

the near decade of state and federal habeas proceedings to produce some evidence to show that

he was prejudiced by the alleged error, a burden he never even has attempted to bear.

This Court, therefore, should not grant certiorari to review a claim that is based upon

a fundamental misunderstanding of law and fact. The Virginia Supreme Court's application of

Zant v. Stephens is not constitutionally significant because the purported underlying Ake “error”

~- the only thing that made the application of Zant v. Stephens even relevant to Tuggle’s case

-- Was simply non-existent.

Cc. , ° - ‘

The Fourth Circuit determined that the Virginia Supreme Court correctly applied Zant

v_Stephens to Tuggle’s case. Tuggle, 57 F.3d at 1362-1364. Tuggle now asks this Court to

review the Fourth Circuit's determination. This is a federal collateral case, however, and

neither the Fourth Circuit nor this Court is free to second-guess the Virginia Supreme Court's

judgment unless Tuggle overcomes the "new rule" doctrine.

Under Caspari v. Bohlen, 114 S.Ct. 948, 956 (1994), the issue is not whether the

Virginia Supreme Court was “correct” when it applied Zant vy, Stephens and sustained Tuggle’s

death sentence, but “whether a state court considering [Tuggle’s] claim at the time his conviction

became final (in 1986) would have felt compelled by existing precedent to conclude” that

Tuggle’s death sentence was constitutionally invalid. See also Goeke v, Branch, 115 S.Ct. 1275,

1277 (1995) (whether “the result was dictated by precedent"). As the Fourth Circuit's decision

amply demonstrates, even today reasonable jurists may conclude that, under the circumstances

of Tuggle’s case, Zant_y. Stephens can be applied in the context of a non-weighing State such

SEP 19 °S95 11°18 VA ATTY GEN-CRIM LITA P.10

as Virginia, and a death sentence premised upon findings of both “future dangerousness” and

“vileness" may be sustained even if the state appellate court has struck the “fumure

dangerousness" finding because of a purported constitutional error relating solely to that finding.

Tuggle’s claim thus is barred by the “new rule” doctrine.’ His claim clearly does not

fall within either exception to the doctrine, and it would be both inappropriate and futile to grant

certiorari to review such a claim.

In Stringer v. Black, 503 U.S. 222 (1992), this Court concluded that when it comes to

the issue of whether a death senience may be sustained despite the presence of an invalid

$03 U.S. at 231-232 (emphasis added).

° A claim concerning whether a death sentence may he sustained despite the presence of an

invalid aggravating circumstancc clearly is a claim subject to the “new rule" analysis. See

Stringer v. Black, 503 U.S. 222, 229-237 (1992).

SEP 19 °95 11:30 VR ATTY GEN-CRIM LITA

The Fourth Circuit correctly concluded that Virginia is a “non-weighing" State. Tuggle,

57 F.3d at 1362, citing Swann vy. Commonwealth, 441 S.E.2d 195, 205 (Va. 1994), cert.

denied, 115 S.Ct. 234 (1994). The Court of Appeals also correctly concluded that, because

Virginia is a “non-weighing” State, the purported Ake error did not adversely affect the jury's

separate finding of “vileness," and that the Virginia Supreme Court properly applied Zant v.

Stephens to sustain Tuggle's death sentence after determining that the purported error with

respect to the jury's “future dangerousness” finding would not have made a difference to the

sentencing decision. Tuggle, $7 F.3d at 1363-1364; Tuggle I], 230 Va. at 111, 334 $.E.2d at

846 (“neither impairs nor invalidates the jury's finding of vileness”); compare Zant v. Stephens,

462 U.S. at 873 (ury’s consideration of invalid statutory aggravator had “inconsequential

impact” on sentencing verdict).

2. Lowenfield v, Phelps

Purported errors with respect to either of Virginia's statutory aggravating factors are not

constitutionally significant because the constitutional function of aggravating circumstances is

solely to narrow the class of murderers eligible for a death sentence; they are not ends unto

themselves. Sce Lowenfield v. Phelps, 484 U.S. 231, 244 (1988). As the Fourth Circuit

recognized, in Virginia the constitutionally-required narrowing is accomplished at the guilt stage

when the defendant is convicted of a very narrow species of capital murder. See Tuggie, 57

F.3d at 1373.

In Tuggle’s case, therefore, all of the constitutionally-required narrowing was

accomplished when the jury convicted him of premeditated murder during, or subsequent to, the

commission of rape. Tuggle received additional (but not constitutionally-required) protection

SEP 19 °SS 11:21 VA ATTY GEN-CRIM LITA

when, before it sentenced him to death, the jury found that his crime was “vile” in that it

involved “torture,” “aggravated battery to the victim beyond the minimum necessary wo

accomplish the act of murder” or “depravity of mind.” Thus, the purported error with respect

to the jury's separate finding of “future dangerousness" simply does not implicate the

constitutionality of Tuggle’s death sentence.

Petitioner's reliance on Johnson _y, Mississippi, 486 U.S. 578 (1988), is misplaced

because, as the Fourth Circuit noted, Mississippi, unlike Virginia, is a “weighing” State.

Tuggle. 57 F.3d at 1363. Indeed, in Romano vy, Oklahoma, 114 $.Ct. 2004 (1994), this Court

held that, even in a “weighing” State, “Johnson does not stand for the proposition that the mere

admission of irrelevant and prejudicial evidence requires the overturning of a death sentence."

114 S.Ct. at 2011. If, as in Romano, the admission of “irrelevant and prejudicial evidence” did

not prevent the appellate court of a “weighing” State from reweighing the evidence and finding

“that the death penalty (nevertheless) was warranted,” jd., then certainly there was nothing to

prevent the Virginia Supreme Court from reaffirming Tuggle’s death sentence after concluding

that despite the purported crror the death penalty was warranted by the jury's unaffected

“vileness” finding.

E. There is.no “conflict” warranting the grant of certiorari.

Tuggle asserts that this Court should grant certiorari to resolve a “conflict” between the

Fourth Circuit's decision in his case and a “decision’ of the Bleventh Circuit in Byugsum_y,

Black, 908 F.2d 695 (1ith Cir. 1990). Byttrum, however, is merely a one paragraph, per

curiam affirmance of a district court's opinion granting the writ. While the Eleventh Circuit

apparent!y agreed with the district court's decision, a one paragraph “decision” wholly devoid

SEP 19 °95 11:22 VA ATTY GEN-CRIM LITA P.2

of analysis hardly can be viewed as the considered opinion of a federal appeals court that could

serve as a basis for granting certiorari.

The district court decision which the Eleventh Circuit affirmed, moreover, underscores

important differences between Butirum and Tuggle’s case - differences that not only show that

there is no “conflict,” but also demonstrate why Tuggle is not entitled to relief: in Buttrum. the

defendant’s request was expressly related to the penalty phase of trial and to rebutting the

prosccution’s expert testimony on the issue of dangerousness. See Buttrym v. Black, 721 F.

Supp. 1268, 1308-1309 (N.D. Ga. 1989). Tuggle, on the other hand, is bound by the state court

finding of fact that he “never requested a psychiatrist to rebut future dangerousness, but only to

reevaluate him as to sanity and competency to stand trial." Juggle J], 230 Va. at 108 n.2, 334

S.E.2d at 844 n.2; 28 U.S.C. § 2254(d).

Just as importantly, the prisoner in Burtmum, unlike Tuggle, demonstrated prejudice from

the tial court’s denial of her request. During her habeas proceedings, she produced affidavits

from three mental health experts which the district court concluded “could likely have refuted”

the prosecution's expert on the issue of dangerousness. Buttrum, 721 F. Supp. at 1309-1310,

SEP 19 °S95 11:22 VA ATTY GEN-CRIN LITA P.3

1313. Tuggle never has presented any evidence controverting Dr. Centor’s opinion that he is

"future dangerous.”

Il. TUGGLE’S ESTELLE V. SMITH CLAIM IS

PARTIALLY DEFAULTED AND, IN ANY EVENT,

IS THE SAME CLAIM THAT THIS COURT

DECLINED TO REVIEW IN 1986.

Tuggle raised a claim under Estelle v. Smith, 451 U.S. 454 (1981), on direct appeal in

the Virginia Supreme Court, but the claim and his specific assignment of error were premised

solely upon the Sixth Amendment. Tuggle J], 229 Va. at 513-515, 323 S.B.2d at 551-552. To

the extent Tuggle now is relying upon the Fifth Amendment, his Estelle v. Smith claim is

procedurally barred. See Coleman v. Thompson, 501 U.S. 722, 750 (1991).

The Fourth Circuit, moreover, correctly recognized that under Virginia's “non-weighing”

system, an alleged Estelle vy. Smith error with respect to the jury's “future dangerousness"

finding did not invalidate Tuggle’s sentence. The Court of Appeals affirmed the validity of

Tuggle’s death sentence solely on the basis of the jury’s “vileness” finding -- which the Virginia

Supreme Court had affirmed as independently supporting Tuggle’s sentence. Tyggle, 57 F.3d

case where the Virginia Supreme Court vacated a prisoner's death sentence after this Court

remanded for reconsideration in light of Simmons v. South Carolina, 114 S.Ct. 2187 (1994).

There is, of course, no claim of Sigumons error in Tuggle’s case. Nor does the Virginia

SEP 19 ’°95 11:23 VA ATTY GEN-CRIM LITA P.4 SEP 19 °95 11:23 VA ATTY GEN-CRIM LITA P.S

Finally, even if the Court could reach the merits of Tuggle’s claim, it would not entitle

him to relief. In Estelle v. Smith, the trial judge sua sponte ordered that the defendant undergo

a mental competency examination, without any notice to the defendant’s counsel. 451 U.S. at

457, 471. During that examination, the defendant made statements without being advised of his

Miranda rights. Id. at 461. Here, the mental examination by Drs. Centor and Ryans was

conducted at the request of Tuggle’s counsel.’ Tuggle, moreover, was fully advised of his

DMizands rights, including warning thet ony statements be made could be used against bien st

a sentencing hearing and he signed a written waiver of his right to counsel. Tyggle J, 228 Va.

at 514, n.11, 323 S.E.2d at 551-552, 0.11. See Buchanan v. Kentucky, 483 U.S. 402, 422-424

(1987) (limiting Estelle v. Smith to its “distinct” facts). The state court's fact-specific

application of the standard established in Estelle v. Smith certainly does not warrant certiorari

’ There is no support in the record for Tuggle’s contention that the trial court’s order

“explicitly confin{ed)* the mental evaluation to the issues of competency to stand trial and sanity

at the time of the offense, or that the evaluation by Dr. Ryans and Centor somehow violated the

court’s order. (Ptn. at i, 3, 13, 19). The court’s order merely cited the Virginia statutes

regarding competency and sanity evaluations, but did not purport to put any limitations upon the

. A federal habeas court would violate the "new rule” doctrine by ruling in Tuggle’s favor

because, when the Virginia Supreme Court rejected his Egtelle vy. Smith claim, a ruling in

Tuggle’s favor was not “compelled” or “dictated by precedent.” See Goeke vy. Branch, 115

S.Ct. at 1277; Caspari v. Bohlen, 114 S.Ct. at 956.

17 —~

review. This Court, therefore, should deny review just as it did in 1986 when Tuggle raised

the very same claim. (Resp. App. 2).

If. | TUGGLE’S FACT-SPECIFIC CLAIMS REGARD-

ING THE IMPARTIALITY OF HIS JURY DO NOT

WARRANT CERTIORARI REVIEW.

The Fourth Circuit carefully reviewed the facts surrounding all of Tuggle's jury claims,

applied well-established principles of law, and determined that he had not been denied a fair

trial, Tuggle, 57 F.3d at 1364-1369, This Court does not grant certiorari to review facts or to

review a court of appeals’ application of established legal standards to a particular set of facts.

See United States v. Johnson, 268 U.S. 220, 227 (1925). Indeed, this no doubt was the reason

this Court declined to review these claims in 1986. (Resp. App. 3).

As the Court of Appeals noted, the district court was able to grant relief on Tuggle’s jury

claims only by ignoring the Virginia Supreme Court's factual determination that his jury was fair

and impartial, as well as ignoring the “presumption of correctness” under 28 U.S.C. § 2254(d).

See Tuggle, 57 F.3d at 1367 ("The district court...failed to follow the clear language and

procedures set forth in the federal statute"). Once the Virginia Supreme Court's factual findings

are presumed correct, as they must be under § 2254(d), Tuggle’s pretrial publicity and change

of venue claims clearly are unworthy of certiorari review.

Tuggle’s claims that he was constitutionally entitled to individual voir dire about alleged

pretrial contacts and to exercise his challenges for cause outside the jury’s presence are defaulted

because they were raised in the Virginia Supreme Court on direct appeal only as state law

claims. See Tuggle I, 228 Va. at 504-506, 323 S.E.2d at 345-546. Even if they were not

fofsc'te4 ' certainty would violate the “new nile” doctrine to create such new rules of criminal

SEP 19 ’95 11:24 VA ATTY GEN-CRIM LITA P.6

procedure on federal collateral review.” See Caspari v. Bohlen, 114 S.Ct. at 956. And, as the

Fourth Circuit held, Tuggle failed to demonstrate that he was prejudiced by the state trial court's

rulings because he never has proffered what questions he would have asked on individual voir

dire or which jurors he would have challenged for cause if he could have made such challenges

outside the jury’s presence." Tuggle, 57 F.3d at 1368.

IV. TUGGLE HAS GIVEN THIS COURT NO REASON

TO REVIEW THE FOURTH CIRCUIT’S FACT-

SPECIFIC APPLICATION OF THE JACKSON Y.

VIRGINIA STANDARD.

This Court does not grant certiorari to review a court of appeals’ fact-bound application

of a firmly-established legal standard. See Johnston, 268 U.S. at 277. Here, Tuggle’s claim

that the evidence was insufficient to prove that he raped the victim is governed by the standard

established in Jackson v. Virginia, 443 U.S. 307 (1979). The Fourth Circuit reviewed the facts

of Tuggle’s case in great detail, gave proper deference to the jury’s authority to draw reasonable

inferences from those facts, and had no difficulty determining that the evidence satisfied the

deferential Jackson standard. Tuegle, 57 F.3d at 1369-1371. Tuggle’s claizn that the Fourth

Circuit erroneously applied Jackson to the facts of his case clearly does not warrant granting

° Tuggle’s third “Question Presented" asks for a ruling in his favor based upon the

“combined teachings” of Turner v. Murray, 476 U.S. 28 (1986), and Mu’Min v, Virginia, 500

U.S. 415 (1991). (Pm. at ii, 28-29). Since the “combined” force of Turner and Mu’Min could

not have come into being until 1991 when the latter was decided, and since Tuggle’s! case

became final in June of 1986 when this Court denied certiorari in Tuggle I]. Tuggle clearly is

asking for the benefit of an impermissible new rule that, even if it existed, could not be applied

retroactively in this collateral proceeding.

'° As the Fourth Circuit correctly noted, moreover, the alleged pretrial contacts with jurors

concerned jury service in a case completely unrelated to Tuggle’s. Tuggle, 57 F.3d at 1368-

1369.

SEP 19 °95 11:24 VA ATTY GEN-CRIM LITA P.7

certiorari because the claim has no potential impact beyond the parameters of this case. See

Hamling vy, United States, 418 U.S. 87, 124 (1974) (“primary responsibility for reviewing the

sufficiency of the evidence to support a criminal conviction rests with the Court of Appeals").

This Court simply does not grant certiorari to review mere claims of error. See Ross v. Moffia,

417 U.S. 660, 616-617 (1974).

Acceptance of Tuggle’s claim of evidentiary insufficiency, moreover, would require such

a far-fetched application of Jackson that a ruling in Tuggle’s favor would violate the "new rule"

doctrine. See Wright vy. West, 505 U.S. 277, 291-292 n.8 (1992) (Thomas, J.). As the Fourth

Circuit’s recitation of the evidence of rape shows, a rational factfinder clearly could have

concluded that the victim's vagina had been penetrated by Tuggle’s penis. Tuggle, 57 F.3d at

1370. An application of Jackson that reached a contrary result would be so novel that the result

would constitute a “new rule." See West, 503 U.S. at 315-316 (Souver, J., concurring);

Stringer, 503 U.S. at 228 (doctrine is violated when “an old rule” is applied "in a manner. ..not

dictated by precedent").

V. PETITIONER’S VAGUENESS CHALLENGE TO

VIRGINIA’S "“VILENESS" AGGRAVATING

FACTOR DOES NOT IMPLICATE THE

CONSTITUTIONALITY OF HIS DEATH

SENTENCE,

As previously noted, the prosecution must prove at the guilt stage of a Virginia capital

trial, not only that the defendant committed a premeditated murder, but also that the murder was

committed in one of several enumerated aggravating circumstances. See Va. Code § 18.2-31.

In Tuggle’s case, he was convicted of premeditated murder during the commission of, or

subsequent 10, a rape. See Va. Code § 18.2-31(5).

SEP 19 ’°SS 11:25 VA ATTY GEN-CRIM LITA P.8

At the penalty phase of a Virginia capital murder trial, moreover, before the defendant

even becomes eligible for a death sentence, the prosecution must prove beyond a reasonable

doubt that “there is a probability that the defendant would commit criminal acts of violence that

would constitute a continuing serious threat to society" and/or that his conduct in comsnitting the

offense “was outrageously or wantonly vile, horrible or inhuman in that it involved torture,

depravity of mind or an aggravated battery to the victim." See Va. Code § 19,.2-264.4C. In

Tuggle’s case, the jury found the existence of both “future dangerousness" and “vileness.""

Even then, however, the jury was free under Virginia law and the court's instructions to impose

a life sentence rather than a death sentence. (Resp. App. 40).

Aggravating factors are not ends unto themselves; their constitutional function is to

narrow the class of those cligible for a death sentence beyond those who commit any

premeditated murder. Lowenfield, 484 U.S. at 244-246. In Virginia, this limiting function is

accomplished at the guilt stage when the defendant is convicted of a narrow species of capital

murder. Thus, when Tuggle was convicted of a premeditated murder during the commission

of a rape, no further narrowing was constitutionally required. See Gregg v, Georgia, 428 U.S.

153, 164 n.9 (1976) (approving constitutionality of state System where aggravator to be proved

at penalty stage is that murder was committed during rape). Accordingly, even if Tuggle’s claim

about the alleged vagueness of Virginia's “vileness" aggravator had merit -- and clearly it does

not -- it would raise only a matter of state law and would not affect the constitutionality of his

death sentence. See generally Michigan v. Long, 463 U.S. 1032, 1038 (1983) (no jurisdiction

"* With respect to the "aggravated battery" component of the “vileness" factor, the jury was

instructed that the “aggravated battery” must be “beyond the minimum necessary to accomplish

the act of murder." See Juggle, 57 F.3d at 1371-1372.

sep TS *S8 ii:eS va ATTY GEN-CRIM LITA P.9

to review state law issues on certiorari). It is no doubt for this reason that this Court repeatedly

has denied certiorari petitions from Virginia prisoners raising this claim. See, eg.. Williams

v. Virginia, 115 S.Ct. 2616 (1995); Cardwell v. Virginia, 115 S.Ct. 1826 (1995); Breard v.

Virginig, 115 S.Ct. 442 (1994).

‘Tuggle’s vagueness challenge, morcover, simply has no merit. Vagueness review is

required to be “quite deferential.” Tuilaepav. California, 114 S.Ct. 2630, 2632 (1994). So

long as the aggravating factor has a “common-sense core of meaning,” it must be upheld. Id.

at 2635. The Fourth Circuit repeatedly has upheld the constitutionality of Virginia's “vileness"

factor as it has been construed, limited and applied by the Virginia Supreme Court. Ses, ¢.g..

Tuggle, 57 F.3d at 1371-1374; Tamer v. Williams, 35 F.3d 872, 891-892 (4th Cir. 1994), cert.

denied, 115 S.Ct. 1359 (1995); Jones v. Murray, 976 F.2d 169, 174-175 (4th Cir.), com

denied, 113 S.Ct. 27 (1992); Bunch vy. Thompson, 949 F.2d 1354, 1367 (4th Cir. 1991), cert.

denied, 112 S.Ct. 3056 (1992). This Court should defer to the Fourth Circuit's view. See

Frisby v_ Schultz, 487 U.S. 474, 482 (1988) (deference warranted because lower federal Courts

"better schooled in and more able to interpret the laws of their respective States")."’

2 Finally, it would be an impermissible creation of a “new rule” for a federal a

to rule that Virginia's “vileness” factor is unconstitutionally vague. Such a new rule ¢

established only by this Court on direct appeal.

—

SEP TS "SS ii:a6 VA ATTY GEN-CRIM LITA

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

JAMES S. GILMORE, III

Attorney General of Virginia

CO) LSA

DONALD R. CURRY /

Senior Assistant Attorney General

Office of the Attorney Gencral

900 East Main Street

Richmond, Virginia 23219

CERTIFICATE OF SERVICE

I hereby certify that on this 19th day of September, a copy of the foregoing Respondent's

Brief in Opposition was hand-delivered to the offices of Timothy M. Kaine, Mezullo and

McCandlish, 1111 East Main Street, Suite 1500, Richmond, VA 23219, counsel for petitioner.

a Ae

Donald R. Curry /

Senior Assistant Attorney General

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1994

LEM DAVIS TUGGLE,

Petitioner

J. D. NETHERLAND, WARDEN,

Respondent

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for The Fourth Circuit

RESPONDENT'S APPENDIX

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1985

LEM DAVIS TUGGLE, JR.,

Petitioner

COMMONWEALTH OF VIRGINIA,

Respondent

PETITION FOR WRIT OF CERTIORARI

Jeffrey M. Gleason

Martin & Martin

415 Fourth Street, N.E.

Charlottesville, Virginia 22901

(804) 296-4151

QUESTIONS PRESENTED

1. Did the denial of petitioner's request for an independent

psychiatric evaluation for the purpose of preparing for the guilt /innocence

phase of his capital murder trial violate his due process right to this

evaluation?

2. Under the facts of this case, did the denial of petitioner's

request for access to an independent psychiatric evaluation for the

purpose of preparing his defense to a capital murder charge violate his

Sixth Amendment and Equal Protection rights to this evaluation?

3. Where the appellate court rules that the trial court erred in

failing to provide a defeadant with ine psychiatric assistance he sought for

the purpose of preparing for the sentencing phase of his capital murder

trial, does this Court's decision in Zant v. Stephens require the death

sentence to be affirmed so long as the jury finds two aggravating

circumstances, one of which is "future dangerousness?"

4. Can a defendant in « capital case who is asked to undergo an

examination of his future dangerousness without the knowledge of his

attorney, be deemed to have waived his Sixth Amendment right to counsel

simply by showing that he signed a printed form containing Mirande

warnings, without giving notice of an intent to conduct the evaluation to

defense counsel and without giving the defendant an opportunity to consult

with his attorney prior to undergoing the examination?

5. Can « defendant in « capital case ever waive his Fifth

Amendment right against self-incrimination when undergoing a pretrial

psychiatric evaluation, so to allow the results of the examination to be

used against him at the sentencing phase of the trial, without first putting

his mental state in issue?

6. Can a trial court forbid any inquiry into pretrial contact with

members of a defendant's jury panel by a news reporter and a member of

the sheriffs department, and forbid any detailed inquiry into the effect of

extensive pretrial publicity, and still accord a defendant his right to be

tried by an impartial jury?

223-224).

At the conclusion of the voir dire, Tuggle requested permission to

bring his motions to strike for cause out of the presence of the panel.

(JA - 242). The court stated that the panel was qualified and instructed

counsel to move on to their preemptory strikes. (JA - 243). Tuggle

reiterated that he wished to challenge a number of the jurors for cause,

but was not permitted to do so. (JA - 243).

At the sentencing phase of the trial, the Commonwealth first

introduced records showing that Tuggle had previously been convicted of

second degree murder, and had pleaded guilty to grand larceny and

escape from jail. The first two convictions occurred in March of 1972 and

the third conviction occurred in May of 1972. (JA - 637-639). The

Commonwealth then called Dr. Centor to testify. Although Tuggle objected

to the introduction of any testimony from Dr. Centor, the court permitted

Centor to testify that, based on his earlier examination of Tuggle. he

concluded that Tuggle “shows a high probability of future dangerousnees.*

(JA - 541). Because Tuggle had been denied access to the independent

psychiatric evaluation he sought, he was unable to present any psychiatric

evidence on his own behalf. After hearing this evidence, the jury

sentenced Tuggle to death. (JA - 158).

SUMMARY OF ARGUMENT

The Virginia Supreme Court's treatment of this case on remand

requires this Court to grant certiorari with respect to the Ake claim and

reverse his conviction and sentence for several reasons. First, the

Virginia Supreme Court applied too stringent « standard for measuring

Tuggle's entitlement to expert psychiatric assistance for the purpose of

preparing for the guilt/innocence phase of his trial. By relying solely on

the facts presented in Ake as the yardstick for making this determination,

it has established so high «a standard for measuring an indigent's

tlement to this assistance that few criminal defendants are likely to

: . 4

qualify for the assistance sought. This Court should grant certiorari to

correct this misapplication of Ake. It should apply a standard for

measuring Tuggile's showing that sanity is likely to be « significant factor

at his trial that accurately reflects the reasons underlying a defendant's

constitutional entitlement to this assistance and reverse his conviction

because the state failed to provide this assistance.

Secondly, the Virginia Supreme Court simply ignored Tuggie's

Sixth Amendment and equal protection arguments. When Tuggie's

attorneys made their request for access to an independent psychiatric

evaluation, they made arrangements to pay for the evaluation themselves

and did not request state funds for this purpose. Even so, the trial

court denied them access to the evaluation they sought, with no sound

basis for doing so. Under these facts, Tuggle's Sixth Amendment and

equal protection claims provide even more t. damental constitutional

grounds for entitlement to the assistance he sought than the due process

grounds relied on in Ake. This Court should grant certiorari to consider

these claims. |

Finally, the Virginia Supreme Court did conclude that the trial

court erred in not providing Tuggle with the assistance he sought for the

sentencing phase of his trial, once the State introduced testimony from a

psychiatric expert on the issue of future dangerousness. However, it

concluded that Zant v. Stephens, 462 U.S. 862 (1983) required

reaffirmation of his death sentence because the jury found the aggravating

circumstance of “vileness" in addition to "future dangerousness." The

Court reached this conclusion despite the State's concession, in its brief

and at oral argument, that the trial court's error required Tuggle to be \

resentenced, Zant v. Stephens notwithstanding.

This Court has recently granted certiorari to consider a similar

interpretation of Zant v. Stephens reached by the Fourth Circuit Court of

Appeals in another Virginie case. Smith v. Sielaff, _—*U.S. __» 106

S.Ct. 245 (1985). One possible resolution of this issue would be to hold

t case pending disposition of Smith v. Sielaff and to remand this case

| 5

for further disposition in light of that case. However, such « step seems

unnecessary in light of the error at issue. The trial court's refusal to

provide Tuggle with the psychiatric assistance he sought in preperation

for the sentencing phase of his trial so obviously affected his fundamental

rights to confront the State's expert witness at sentencing and to present

evidence in mitigation that the more appropriate resolution of this issue

would be to grant certiorari and summarily reverse his death sentence.

- With regard to Dr. Centor's testimony on behalf of the State at the

sentencing phase of Tuggie's trial, this Court should grant certiorari to

correct the Virginia Supreme Court's misapplication of this Court's ruling

in Estelle v. Smith, 451 U.S. 454 (1981). The Virginia Supreme Court's

ruling on this issue raises two important questions of constitutional law

that should be settled by this Court. The first question involves the

proper standard that should be applied to determine a valid waiver of the

Sixth Amendment right to counsel in the context of a peychiatric evaluation

on the issue of future dangerousness, conducted for the purpose of

developing prosecution evidence for the sentencing phase of a capital trial.

Underlying this question is the confusion among the federal circuit courts

over the proper standard to use in evaluating the validity of a waiver of

the Sixth Amendment right to counsel as opposed to the Fifth Amendment

right to counsel.

The broader question presented by this issue is when, if ever,

the results of « pretrial psychiatric examination can be used against «

defendant at the sentencing phase of a capital trial, without the defendant

first having put his mental state in issue. Because this Court will also

consider this issue in Smith v. Sielaff, supra, it may be resolved here by

holding this case pending a decision in Smith and to remand for further

disposition in light of that case.

; This Court should grant certiorari with regard to the voir dire

issue because of the Virginia Supreme Court's improper deference to the

trial court's discretion in limiting Tuggle's ability to voir dire his jury

nel. When Tuggle attempted to select an impartial jury to decide this

| 6

case, the trial court prohibited him from conducting any meaningful voir

dire, even though the court knew of potentially prejudicial contact with

members of the panel by a reporter and a member of the sheriff's

department the night before trial, and even though there had been

extensive pretrial publicity containing highly prejudicial and inaccurate

statements and reports that had no place in the deliberations of the merits

of Tuggle's case. Finally, when Tuggle attempted to make motions to

strike panel members for cause, the court refused to permit him to do so.

Nothing is more sacred to our system of criminal justice than the

right to be tried by an impartial jury. Yet the Virginia Supreme Court

fails to recognize minimal requirements, beyond a court's discretion,

needed to assure a criminal defendant that he is afforded this right. This

Court should grant certiorari to consider the important constitutional

concerns underlying this issue.

LEM DAVIS TUGGLE WAS DENIED ACCESS TO AN

INDEPENDENT PSYCHIATRIC EVALUATION IN VIOLATION

OF HIS RIGHTS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS

When the Virginia Supreme Court considered the issue of Tuggle's

request for an independent psychiatric examination in his initial appeal, it

concluded that Tuggle, having been examined at his own request, had no

constitutional right to further evaluation. Tuggle 1, 323 S.E. 2d at 545.

This Court subsequently vacated judgment and remanded the case to the

Virginia Supreme Court "for further consideration in light of Ake v.

Oklahoma, 470 U.S. __(1985)." Tuggle v. Virginia, 471 U.S. _, 105

S.Ct. 2315 (1985). The Virginia Supreme Court then directed counsel "to

brief and argue the question of Ake's impact on Tuggle's conviction and

sentence."

Tuggle renewed his position on remand that he was constitutionally

entitled to the psychiatric assistance he sought. He not only was entitled to

state] funds allowing him “access to a competent psychiatrist who will conduct

;

expert in preparing his case, the court has no justification for interfering

with this decision, absent a request that the state provide funds for the

expert. Were it otherwise, it would be the court, and not defense counsel,

who would be making the tactical decisions. The court would be left to

decide what is required to effectively represent a defendant in any given

case.

When the trial court refused to give Tuggle access to the

psychiatric evaluation he sought, even though he did not request state funds

for this purpose, Tuggle's Sixth Amendment right to the effective assistance

of counsel and his rights guaranteed by the Equal Protection Clause were

violated. Because of this fundamental trial error, his conviction must now be

reversed.

THE TRIAL COURT'S REFUSAL TO GRANT TUGGLE THE PSYCHIATRIC

ASSISTANCE HE SOUGHT IN PREPARING FOR THE SENTENCING PHASE

OF HIS TRIAL CONSTITUTES REVERSIBLE ERROR

On December 16, 1983, Dr. Arthur Centor. the state psychologist

who participated in Tuggle's evaluation at Central State Hospital, was

subpoenaed to appear at Tuggle's trial on behalf of the Commonwealth.

(JA - 73). He was the only witness to testify on behalf of the Commonwealth

at the sentencing proceeding? and was called solely for the purpose of

testifying that, based on his earlier evaluation, it was his opinion that Tuggle

showed “a high probability” that he would commit future acts of violence.

(JA - 340-342). Because of Ake's holding that "due process requires access

to a psychiatric examination on relevant issues, to the testimony of the

psychiatrist, and to assistance in preparation at the sentencing phase” when

the State presents psychiatric evidence of the ae future

dangerousness, Ake, at 1097, Tuggle argued on remand to the Virginia

Supreme Court that his death sentence must be reversed because the State

failed to provide him access to the psychiatric assistance he sought.

3 The Commonwealth did call the clerk of the Court, but only for

the purpose of introducing records of Tuggle’s prior convictions. (JA -

$19-520)

F 8

In his brief on remand, Tuggle specifically argued that Zant v.

Stephens, 462 U.S. 862, 103 S.Ct. 2977 (1983) could not be relied on to

uphold his death sentence because of the nature of the constitutional error

involved. Brief of Appellant, dated May 30, 1985, pp. 30-32. The State

agreed:

Because the Commonwealth introduced psychiatric

testimony that the defendant presented a future

danger, and because the defendant was not provided

with an independent psychiatrist to attempt to rebut

this testimony, the defendant's case would appear

to be within the line of cases in which Ake mandates

the appointment of an independent psychiatrist to assist

the defendant in preparing for the sentencing phase

of his trial. Accordingly, the Commonwealth submits

that the defendant's case should be remanded to the

Circuit Court of Symth County for resentencing by a

different jury.

Brief on Behalf of the Commonwealth, dated June 7, 1985, p. 21.

At oral argument held on June 20, 1985, the Court questioned the

State closely on its position that Tuggle was entitled to a new sentencing

hearing. The State justified its position on the ground that Zant v. Stephens

was inapplicable to the facts presented *: Tuggle's case.

The Virginia Supreme Court disagreed with both Tuggle and the

State. Citing Zant v. Stephens as support for the broad proposition that

{w]hen a jury makes separate findings of separate

statutory aggravating circumstances, any of which

could support a sentence of death, and one of the

circumstances subsequently is invalidated, the

remaining valid circumstances, or circumstances, will

support the sentence.

Tuggle Il, 334 S.E.2d at 895, it concluded that "[ajithough Ake requires the

conclusion that the trial court erred in denying Tuggle an independent

psychiatrist once the Commonwealth had submitted psychiatric evidence on the

issue of future dangerousness, we hold, nevertheless, that the error neither

impairs nor invalidates the jury's finding of vileness." lie at 846.

Zant v. Stephens is clearly inapposite. The sole issue in Zant v.

Stephens was “whether respondent's death sentence must be vacated because

one of the three statutory aggravating circumstances found by the jury was

subsequently held to be invalid by the Supreme Court of Georgia, although

the other two aggravating circumstances were specifically upheld." Zant v.

q i

Stephens, 462 U.S. at 864. There was no contention that Stephens was

prohibited or inhibited in any manner in presenting his defense at

sentencing. Cf. Eddings v. Oklahoma, 455 U.S. 104 (1982); Gardner v.

Florida, 430 U.S. 349 (1977).

Under the Georgia death penalty statute, the jury need only find

one aggravating circumstance in order to consider whether to impose the

death penalty. Once this threshold is passed, the jury has absolute

discretion, based on the evidence before it, in deciding what sentence to

impose. In Stephens’ case, all of the prosecution's evidence introduced at

sentencing would have been admissible even if the prosecution had not

attempted to prove the invalid circumstance. Since the jury properly

considered the option of the death penalty after finding two valid aggravating

circumstances, and since all of the evidence relied on by the jury in

exercising its discretion and imposing the death sentence was properly before

it, the death sentence was affirmed.

Zant v. Stephens was never meant to serve as a wholesale invitation

to appellate courts to ignore constitutional infirmities in the sentencing phase

of a capital trial, so long as more than one aggravating circumstance is

found.! Yet that is how the decision is being applied in Virginia. See also

Smith v. Procunier, 769 F.2d 170 (4th Cir.), cert. granted sub non Smith v.

Sielaff, _-«U.S._—,.:«106 S.Ct. 245 (1985).

Contrary to the Virginia Supreme Court's opinion, the failure of the

trial court to allow Tuggle access to a psychiatric expert to assist him at the

sentencing phase of his trial does not only affect the aggravating

circumstance of future dangerousness. It is an error that strikes at the ;

heart of the constitutional validity of the entire sentencing procedure in this

case. The error denied Tuggle the tools to vigoroust} meet and challenge the

State's expert witness at sentencing, as well as the opportunity to develop

and present mitigating evidence on his own behalf.

ue On the contrary, the Court was careful to point out that

“although not every imperfection in the deliberative process is sufficient,

even in a capital case, to set aside a state-court judgment, the severity of

the sentence mandates careful scrutiny in the review of any colorable claim

error." Zant v. Stephens at 885.

7 10

Ake recognizes that whenever psychiatric issues are present, it is

necessary to have the assistance of a psychiatric expert who “know/([s] the

probative questions to ask of the opposing party's psychiatrists and how to

interpret their answer,” Ake at 1095, in order to effectively confront and

cross-examine the State's expert witness. See Barefoot v. Estelle, 463 U.S.

880, (1983). Without this assistance, a defendant's Sixth Amendment right to

confront and cross-examine the State's expert witness is meaningless.

This court has repeatedly recognized the fundamental importance of

the right to confrontation and cross-examination. In Pointer v. Texas, 380

U.S. 400 (1965), in which the confrontation clause was applied to the states

through the Fourteenth Amendment, the court observed:

There have been few subjects, perhaps, upon which

this court and other courts have been more nearly

unanimous than in their expressions of belief that

the right of confrontation and cross-examination

is an essential and fundamental requirement for the

kind of fair trial which is this country's

constitutional goal.

Pointer v. Texas, 380 U.S. at 405. In Davis v. Alaska, 415 U.S. 308

(1974), the court went further to hold that the right to confrontation means

nothing if the defendant is nct permitted the tools necessary to conduct an

effective cross-examination. It concluded that whenever a defendant is

denied the right of effective cross-examination, it is "a constitutional error of

the first magnitude and no amount of showing of want of prejudice [will] cure

it." Davis v. Alaska, 415 U.5. at 318, quoting from Brookhart v. Janis, 384

U.S. 1, 3 (1965).

The failure of the trial court to provide Tuggle with the means with

which he could efféctively confront and cross-examine the State's expert

witness at sentencing is sufficient, in and of itself, to require the reversal of

Tugglie's death sentence. Quasver. the trial court's Lees reaches even

deeper. The purpose of seeking psychiatric assistance in preparation for the

sentencing phase of a capital trial is not simply to prepare to rebut evidence

the prosecution may offer on the issue of future dangerousness. It is also

sought to develop and present evidence in mitigation at sentencing. See

$19.2-264.4(b) (ii) and (iv), Code of Virginia, 1950, as amended. When the

: I

-tial court denied Tuggle access to the psychiatric assistance he sought,

Tuggle was foreclosed of any possibility of presenting any psychiatric

evidence in mitigation at sentencing. Because of the limits placed on Tuggle's

ability to develop and present mitigating evidence at sentencing, the

sentencing procedure in his case lost its constitutional validity. Eddings v.

Oklahoma, supra, 455 U.S. at 110-112 (1932); Lockett v. Ohio, supra, 438

U.S. at 601-605 (1978).

Without the assistance of a psychiatric expert at the sentencing

phase of Tuggle's trial, the jury did not have before it a sufficiently complete

record to allow it to make "an individualized determination [of the appropriate

sentence] on the basis of the character of the individual and the

circumstances of the crime." Zant v. Stephens, 462 U.S. at 879 (emphasis in

the original). The trial court's error in denying Tuggle the assistance he

sought rendered the sentencing proceeding unconstitutional and requires his

death sentence to be reversed.

Il.

INTRODUCTION OF THE TESTIMONY OF DR. CENTOR

ON BEHALF OF THE COMMONWEALTH AT THE SENTENCING

PHASE OF THE TRIAL VIOLATED LEM TUGGLE'S SIXTH

AND FIFTH AMENDMENT RIGHTS

Lem Tuggle was sent to Central State Hospital by court order, for

an evaluation of his competency to stand trial and his sanity at the time of

the offense. Although the court order specifically stated that the examination

was to be limited to these two questions, Arthur Centor, Phd., a clinical

psychologist conducting Tuggle's evaluation, expanded his examination to

include the issue of future dangerousness, one of two aggravating

circumstances the Commonwealth may prove beyond a reasonable doubt at

sentencing before the jury can impose the death penalty. $19.2-264.4, Code

of Virginia, 1950, as amended. This evaluation was conducted at Centor's

own instance, without any instructions to do so from the court or from

Tuggle's attorneys, and without any notice to Tuggle's attorneys.

p ECEIVE))

MOTION PURSUANT TO OCT 13 1983

SECTION 19.2-169.1

AND 19.2-169.5 SMYTH COUNTY GENERAL

DISTRICT COURT

rane, Yreen, dep Ch

The undersigned Petitioners, Court Appointed Counsel for Lem

Davis Tuggle, would herewith move this Court for two evaluations

pursuant to the provisions of Sections 19.2-169.1 to determine whether

or. not the Defendant lacks substantial enpectey to understand the

proceedings against him and to assist his attorneys in his own defense

and pursuant to 19.2-169.5 to determine whether or not at the date of

the alleged offense herein the Defendant may have been affected by

mental disease or defect and would assign the following reasons:

1. The Defendant has heretofore been confined in the penal

system of the Commonwealth of Virginia for a number of years.

2.. The undersigned believe, on information, that the _ said

Defendant was the subject of a number of psychological evaluations and

other psychological testings during his confinement in the penal system

of the Commonwealth of Virginia all of which will be shown by his

records contained in his files with the penal system of the

Commonwealth of Virginia and would indicate mental illness or disorder.

3. The Defendant has heretofore been evaluated at Southwestern

State Hospital, Merton, Virginia for mental defects or disorders in

approximately 1971 and the undersigned is not informed of the results

of said evaluations.

WHEREFORE the undersigned Petitioners pray that this Court

might direct an evaluation of the Defendant, Lem Davis Tuggle, all

pursuant to Section 19.2-169.1 of the Code of Virginia and 19.2-169.5

of the Code of Virginia to determine whcther or not the Defendant

—

herein has substantial capacity to understand the proccedings against

him and to assist his Attorneys in the defense of his case, and, further

to determine whether or not the at the time of the alleged offense the

Defendant was suffering any mental disease or defect.

Given under my hand this the 13th day of October 1983.

JOHN H. TATE, JR.,

COURT APPOINTED ATTORNEY

CERTIFICATE

I hereby certify that a true copy of the foregoing was this day

delivered unto Danny R. Lowe, Attorney for the Commonwealth, Court

House, Marion, Virginia, given under my hand this 13th day October

A’?

PETITION

The undersigned, Court appointed attorneys, herewith move this Court to

allow unto the attorneys for the Defendant the necessary and reasonable

expenses, including expert witness fees and evaluation fees, in order that

they may properly represent the Defendant, Lem Davis Tuggle, in the matters

now pending before this Court. In support of their petition, the said Court

appointed attorneys represent as follows: |

The Defendant has been indicted in this Court for the crime of capital

murder.

Il.

Pursuant to §19.2-163(2) of the Code of Virginia, the Court has the

power under the second paragraph thereof as follows: ‘The Circuit Court

shall direct the payment of such reasonable expenses incurred by such Court

appointed attorney as it deems appropriate under the circumstances of the

case."

In the case at bar, the Attorney for the Commorwealth has had the

benefit and availability of a pathologist employed by the State; a dental

odontologist; the services of the forensic lab, and the services of a

ballistic expert. The attorneys for the Defendant allege and aver to this

Court that the Defendant is entitled, under the foregoing section, to have

such independent evidence available to him as might be shown by an

independent evaluation of the scientific evidence of the Commorwealth and of

the evidence existing in this ease. |

Wherefore, the undersigned prays that this Court order and direct that

the attorneys for the Defendant may submit unto this Court estimates of

costs and charges for independent pathologist, a forensic serologist, an

| =

1 is matter came on to be heard on the 18th day of

November, 1983, before the Honorable J. Aubrey Matthews,

_—

t odontologist to evaluate

independent ballistics examiner, and an independen s 3 Judge of the Circuit Court of Smyth County, Virginia.

- inst the Defendant herein. ,

the scientific evidence agains | THE COURT: Alright, in the case of Commonwealth v. Tuggle,

LEM DAVIS TUCGLE °

counsel for the defendant has heretofore advised the

By Counsel 5

| Court that they desired a hearing on petitions which--

& TATE 6 |

a wy te | to be filed, and the Court fixed today at nine o'clock

Court inted Counsel 7

endant and the matter was continued until a later time toda

for De | YY.

8 | and Mr. Tate, how many petitions do you have there? |

fate 9 | MR. JOSEPH S. TATE: Your Honor, there's one motion--

CERTIFICATE 10 | THE COURT: Motion.

I hereby certify that a true copy of the foregoing Motion was this day 11 | MRe JOSEPH TATE: --pursuant to Section 19.2-169 and 19.2-169.5,

mailed unto Danny R. Lowe, Attorney for the Commonwealth, Court House, - and then there's a petition.

Marion, Virginia. a THE COURT: Well, where--where is that, I-- i

Given under my hand this the day gf Noverber, }983. : MR. JOSEPH TATE: The petition, Your Honor?

'* | HE court: No-- |

1S | MR. JOSEPH TATE: Or the motion? !

16 | THE COURT: --the motion. |

P 17 | MR: JOSEPH TATE: Uh, well, I'm not certain. I have a file |

dup of ¢ filed, a wi 18 copy of it, but I don't--

hin hlil BLY Deputy Clerk = | MR. DANNY R. LOWE: I believe your file copy may be General

. District Court--I don't believe there's a written, filed

20 |

' in this Court, I've never had a copy of it.

a : MR. JOSEPH TATE: My--mine says Circuit Court at the top.

22 It may--

23. THE COURT: Yeah, but it was marked out and--for General

. a4 | District Court.

MR. DANNY LOWE: Is that the one that was delivered to me on

7 178 8

Pe, ee ee ee

——— ae

<i i A a el

—

October the 13th, 1983?

MR. JOSEPH TATE: Yes.

MR. DANNY LOWE: It said General District Court.

THE COURT: And was received October 13th, 1983, in the Smyth’

County General District Court, Nancy Musser, Deputy

Clerk,

MR. DANNY LOWE:

Motion, and it's the same motion as--

Your Honor,

THE COURT:

MR. JOSEPH TATE: Yes, sir.

THE COURT: Alright.

MR. JOSEPH TATE: Yes,

19.2-169.1 and 19.2-169.5.

THE COURT:

Alright.

sir.

four-fifteen p.m.

I'm aware of the motion--

Is--

It is the motion pursuant to

Yes, sir.

MR. JOSEPH TATE: Those are separate. One of them deals with

his capacity, potential capacity to understand the ’

proceedings against him, that is 169.1 and 169.5 deals

with his condition on the date of the alleged offense.

THE COURT:

MR. JOSEPH TATE: I'd ask Your Honor to treat that motion as

I understand that.

our motion for--

THE COURT: I have no problem, I just wanted to make sure that

Alright.

;

I--and this was my understanding several weeks ago when

you and when John Tate requested a hearing.

MR. J PH

: Yes,

sir.

THE COURT: Alright. Well, first, Mr. Commonwealth, you have

any objection to that motion?

MR. DANNY LOWE:

On the motion pursuant to having him evaluated

as to the--those matters of competency to stand trial

NS eS

THE COURT:

— Mr. Danny wwe .

3=A.

and his condition at the time of the offense. I don't

concur in the motion, but I don't Oppose the motion.

Alright. Gentlemen, this is a capital murder

case and I feel that motion should be granted and that

the evaluation be made as requested under 19.2-169.1

and 19.2-169.5, and that motion is Granted. Alright,

now, then your next--.

Your Honor, we have filed a petition with

the Court requesting the appointment of certain--or

allowing us to employ on behalf of the defendant certain

expert people to review the evidence--physical evidence

which is in the possession of the Commonwealth. I told

Commonwealth's Attorney--I would ask the Court to take

this petition under advisement at this time. Our

position is that this defendant would be entitled to

have access to the physical evidence of the Commonwealth

for review and for copying, and the es does not use

the term testing but I think that is implied in the

spirit of that statute, so that the defendant can |

develop his own testimony--his own expert witnesses.

This defendant is indigent and Your Honor has--or the

General District Ccourt--I'm not sure which--has previously

made a finding of his indigency, and that right to

inspect, photocopy, and test is rendered illusory by

his indigency. Were he a similarly situated defendant

charged with this offense and financially able to employ

experts on his own behalf, he would I think have the

right to have this evidence evaluated. As an indigent,

180 ZO

rtecee CO. Stronet & + GFee8

Mr. Joseph Tate

4-A.

MR. DANNY LOWE:

he does not have the funds to do that, and we think

that the Fourteenth Amendment to the Constitution of

the United States made applicable--equal protection

clause of the Constitution of the United States made

applicable to the states, demands that he have this

right in a real manner, and therefore, we'd ask the

Court to authorize us as his attorneys to employ at

the expense of the Commonwealth sufficient experts to.

evaluate the evidence. I might point out that

Section 19.2-163, subsection 2, makes provision that

for the Circuit Court to direct the payment of such

reasonable expenses incurred by such court-appointed

attorney as it deems appropriate under the circumstances

of the case. I think that gives to Your Honor the

discretion and the authority to allow us to employ

experts on behalf of the defendant. And we ask that

Your Honor do so, and as I've indicated, I would at

this point ask Your Honor to take the matter under |

advisement. And if you'd like for us to submit

authorities, we would be willing to do so.

Your Honor, I oppose the motion and I--

clearly the question is a matter of what is 4 matter

of right that this defendant has. And under Rule 3A:14

of the Rules of Court which applies to discovery by

the accused, we submit that upon written motion of an.

accused, the Court shall order the Commonwealth's

Attorney to permit the accused to inspect, copy, OF

photograph any relevant statements, confessions, going

_ Mr.

THE COURT:

Danny owe

oe -_- ee

antiis

On to written reports of autopsies, ballistic tests

fingerprint analysis, handwriting analysis, blood

urine, breath tests, and other scientific reports

and sO on. We submit that the defendant has that right

to inspect, copy, or photograph, but that is the extent

of the right that he has to--as to access to the

evidence that the Commonwealth has in this case whether

it's for him or against him. We do submit that if we

had any exculpatory evidence that we realize that we

have the burden and the duty to give that to the

defense. There's been no evidence that we have been

withholding any exculpatory evidence. I mow of none. |

The--all the evidence has been made available and we

will submit to any order of the Court to produce for |

inspection, copying, or photographing any evidence,

any physical evidence we have in the case, but we

state that that's the extent of the right that this

accused has whether he has money or does not have money.

There is no constitutional right to go beyond that. |

And that doesn't mean that he would be treated any

differently if he was--if he'd had a lot of money and

could afford to pay for it all himself. That the right

Only goes to inspect, copy, etc.

Gentlemen, I see no reason for the Court to take

this motion under advisement. I agree with the Attorney

for the Commonwealth and will order that defendant and

his attorneys be provided by the Attorney for the

Commonwealth all matters permitted and directed by the

one 6 oveoe- Ctl =

rineee CO. OF

6-A.

The Cc ~t

Rules of the Supreme Court, and I'm sure Commonwealth

has no objection to providing that.

MR. DANNY LOWE: No, sir.

THE COURT: Alright. So that will be the order.

MR OSEPH TATE: Your Honor, I assume that you are not

. JOSEPH TATE:

including in that order the authorization for us to

employ independent experts.

THE COURT:

JOSEPH TE:

of the ruling.

I am not.

Alright, sir. We except to that portion

TH RT:

MR. J PH TATE:

THE COURT:

You may.

Thank you, Your Honor.

Alright.

TTER

THESE ARE ALL THE PROCEEDINGS HAD IN THIS MA

ON THIS DATE.

183

ORDER

THIS DAY came Danny R. Lowe, Esq., Attorney for the Commonwealth;

“came also the Defendant, Lem DAvis Tuggle, led to the bar in the cus tody

of the Jailer of this Court; came also his Attorney, Joseph S. Tate, Esq.,

, heretofore appointed by the Court.

It appearing to the Court that a motion and petition has heretofore

‘been filed on behalf of the Defendant. Thereupon, the Court procecded

“to hear statement of Counsel for the Defendant and the Attorney for the

Commonwealth and upon the conclusion thereof is of the opinion to and

. doth ORDER that the petition be granted to the extent that the Defendant

and his attorneys be provided access to such information that may be

beneficial in the preparation of his defense on all matters permitted and

‘directed by The Rules of the Supreme Court.

Further, the Court is of the opinion to and doth ORDER that the

motion for psychiatric evaluation pursuant to 19.2-169.1 and 19.2-169.5 .

Code of Virginia of 1950, as Amended is granted.

The Court further ORDERS that the Sheriff of this County transport

| the Defendant to Central State Hospital, Petersburg, Virginia as required

‘to satisfy said hospital's schedule being established pursuant to this

| order.

ENTER: THIS THE 18TH DAY OF NOVEMBER, 1983.

ews, g

Recort_d i-. ©. Lav

Order Bec [!. 2

Pags_ £42

RA 24

COMMONWEALTH of VIRGINIA

CENTRAL STATE HOSPITAL OEPARTMENT OF

PO. Box 4030 MENTAL HEALTH ANO MENTAL RETARDATION

Petersburg. Virginia 23803

Telephone (804)-861 - 7000

December 1, 1983

Honorable J. Aubrey Matthews, Judge

Circuit Court of Smyth County

Marion, Virginia 24354 —

RE: LEM DAVIS TUGGLE

Reg. No. 99058

Dera Judge Matthews:

The above-named individual was ordered to undergo psychiatric evaluation pur-

suant to Sections 19.2-169.1 and 19.2-169.5 of the Code of Virginia, and was

admitted to the Forensic Unit of Central State Hospital on November 22, 1983.

He is reported to be charged with capital murder. °

On the basis of psychiatric Interview, psychiatric evaluation, psychological

interview, psychological testing, psychological evaluation, neurological exami-

nation, encephalographic examination (EEG), reports of ward behavior, and other

available information, we are of the opinion that the above-named defendant

is competent to plead and stand trial in that he does not lack substantial capa-

city to understand the proceedings against him or to assist in his own defense.

We are also of the opinion that the above-named defendant was competent at the

time of the alleged crime or crimes in that he was not suffering from a defect

of reason due to disease of the mind or defect of the mind and knew the nature,

character and consequences of his acts and the difference between right and

wrong. Furthermore, we are of the opinion that the above-named defendant was

not suffering from a loss of volition due to disease of the mind or defect of

the mind at the time of the alleged crime or crimes; he was not suffering

from an irresistible impulse.

Because theabove-named defendant is charged with a capital crime, we advised

him of his Miranda Rights to have counsel present as well as the other Miranda

Rights relative to the substance of our interviews being used at a hearing if

he is convicted of capital murder. The defendant ’»eived his Miranda Rights and

signed such a waiver. We have formed an opinion as to the issue of the pro-

bability of future dangerousness but we are not reporting it to the Court at

this time because we were not requested to do so.

RE: LEM DAVIS TUGGLE

Reg. No. 99058

The patient complained of chronic insomnia and we prescribed Halcion 0.5 mom

at bedtime for those nights he is unable to fal! asleep. Sencteuseion of thi

medication under the supervision of your jail physician and jail medical st ff

's suggested. As with all incarcerated persons, he should not be et

accumulate any pills f :

jail. yp s for a harmful act against himself while he remains in the

If there are any questions,

lease do hesi

taries at 804/861-7124. p mot hesitate to contact us through the secre-

We are requesting this individual be returned to the jurisdiction of your Court

at the earliest possible time. Further hospitalizatoin is not Indicated.

Yours very truly,

Miller M. Ryans, A. D.

Forensic Psychiatrist

rh Crrtax %

Arthur Centor, Ph. D.

Licensed Clinical Psychologist

cc: Jimmy L. Warren, Clerk

"Nr. Danny R. Lowe, Commonwealth Attorney

Me. Joseph S. Tate, Defense Counsel

Mr. Jerry L. Archer, Sheriff

Jail Physician

Reimbursement Division

.o/MMA/efr

*"s. TATE @ TATE

"“l~CYsS a* 44

ay ct, bits ‘te

VIRGINIA: IN THE CIRCUIT COURT OF SYTH COUNTY

COMMONWEALTH OF VIRGINIA

vs. MOTION

LEM DAVIS TUGGLE

TO THE HONORABLE J. AUBREY MATTIDWS, JUDGE OF SAID OOUTT:

The undersigned court appointed counsel has heretofore filed with this

Court a request for fees to provide an independent psychiatric examination

of the Defendant herein. The undersigned verily believe that the Defen-

dant, in this case, is entitled to be examined by a psychiatrist or group

of psychiatrists chosen by counsel for the Defendant because of the serious-

ness of the charges heretofore lodged against the Defencant.

Il.

The undersigned have made arrangements with Dr. C. Robert Showalter,

Blueridge Hospital, Box 100, Charlottesville, Virginia, to perform an

evaluation and make unto the attorneys for the Defendant a report on the

condition of the Defendant at the time of the alleged offenses herein and

at the present time with regard to his capacity to understand the proceedings

against him, and to assist in the defense of his trial.

IIt.

That the undersigned Petitioners verily believe that on previous occa-

sions this Court has directed that prisoners be transported from the Smyth

County Jail in Marion, Virginia, to a confinement facility either in

83 a1

YN TATE @ TATE

TrCeNtrs 2° LAW

ae) ee |

Albemarle County, Virginia, or the City of Charlottesville for the purpose

of evaluations by the said Dr. C. Robert Showalter and his staff at the

Institute of Lav, Psychiatry and Public Policy which is located at Blue-

ridge Ilospital in Charlottesville, Virginia.

Wherefore, the undersigned prays that this Court might enter an order

directing the Sheriff of this County to transport the said Lem Davis Turpgle

to a confinement facility in either the City of Charlottesville or Albemarle

County, Virginia, and to make available the said Defendant for examination

by Dr. C. Robert Showalter and the staff of the Institute of Law; Psychiatry

and Public Policy located at Blueridge Hospital in Charlottesville, Virginia,

in order that the Defendant may have the benefit of an independent psychia-

tric exmaination and report for the trial of the charges against him.

JOM H. TATE, JR., AND JOSEPH S. TATE

Court Appointed Counsel

ex TN

By oa: <

GWYN, ‘TATE & TATE ;

Marion, Virginia

Court Appointed Counsel for Defendant

by SS 9) heey

Jom H. sate, Jr. “cae

CERTIFICATE

I hereby certify that a true copy of the foregoing motion was this day

celivered unto Danny R. Lowe, Attorney for the Commonwealth, Court Hous

Marion, Virginia.

Given uncer my hand this 27th day of December, 1983.

—— —_. ony.

="Jom “1aee, JE> lp

Receiv Ss fled, th's rh: 2

Mie 19 aoe,

| Be PLT emiity

+ -—~—ee- «

———e --

< + ees

veweee £2. Sttennwe

A-l.

—

This matter came on to be heard on the 3rd day of |

January, 1984, before the Honorable J. Aubrey Matthews, Judge :

of the Circuit Court of Smyth County, Virginia.

| THE COURT: Alright, for the record, I believe on last Friday |

we had hearing scheduled in motions filed in Commonwealth

v. Tuggle, and on Friday, Mr. Tate for mr. Tuggle was

not able to communicate due to laryngitis or en

until

and we continued it / today, so, gentlemen, you may--.

MR. JOHN H.

TATE, JR.: Your Honor, I will argue the motion.

Joe Tate still is about unable to speak.

He's had |

laryngitis for about four or five days. |

Your Honor,

we have filed a motion on behalf of the defendant to |

have him examined by Dr. C. Robert Showalter, who is |

one of the staff physicians and head of the Law--Institute

of Law and Psychiatry at the Blue Ridge Hospital which |

is associated with the University of Virginia. And the

Court will recall that at the time mr. Tuggle was !

committed to Central State Hospital in Petersburg, I

asked the Court at that time to consider sending him |

there and filed a motion to--asking that the Court allow

to his court-appointed counsel funds to employ an |

independent psychiatrist to examine Mr. Tuggle. We

have available to furnish to Dr. Showalter records of

psychiatric examinations of Mr. Tuggle while he was an

inmate of the State penal system. We have secured the

records of Mr. Tuggle from Southwestern State Hospital |

when he was committed there in 1971, for psychiatric

observation. Dr. Showalter has agreed to examine Mr.

184 Aq

A-2.

Tate

THE COURT:

Tuggle and to give to his court-appointed counsel a

report Of course, the Court is well aware of the

serious nature of the charges against Mr. Tuggle

including the charge of capital murder. And in the

defense of this case, it is our belief that Mr. Tugsie |

: : ist of his

is entitled to be examined by a psychiatris |

choosing in addition to the examination which was |

} by the State at

provided by a psychiatrist employed by |

Central State Hospital. I guess it's Eastern State,

I'm sorry. Petersburg.

Central.

MR. JOHN TATE:

Is it Central? Okay, but we have--we do have

the psychiatric records, he has been examined in the |

penal system, he was examined here at Southwestern |

State Hospital in 1971, and in a case of this severity |

and with a charge this severe against the defendant, we

have made arrangements to have this done and Dr. Showalter

and his associates have agreed to examine him. It woul

reguire the transportation of Mr Tuggle to the Charlottes-

ville area foc examination by him. I really, you know,|

I think--I mean, the Court, I think, will recall that I

initally asked that he be admitted there--this Court

has had reports from this group before, I believe in

the Anderson case sometime ago, and they are considered

to be experts not only in the field of law and psychiatry

but particularly with regard to the examination of a

person charged with capital murder. So we would mo

the Court to permit this independent examination of

ri 30

oreer (eed «ee

MR. DANNY R. LOWE: Your Honor, since that’

n_ Ti bey Py

‘ir. Tuggle, so that we would have the benefit of that

report in representing him.

S the one motion

that's been made to the Court at this time, I'11 address

on that motion. On November the 19th, 1983, defense

counsel in this case moved to have Mr. Tuggle evaluated

pursuant to 19.2-169.1 and the Code sections after that,

but particularly 19.2-169.5. And just to sum .t pretty.

much up, the position of the Commonwealth, we oppose

this motion that they make because 169.1 does state

that if at any time after the attorney for the defendant

has been retained or appointed and before the end of the

trial the Court finds upon hearing evidence or representa-

tions of counsel that there's probable cause to believe:

the defendant lacks the potential capacity to understand

the proceedings against him to to assist his attorney in

his own defense the Court shall order that a competency.

evaluation be performed by at least one psychiatrist, |

Clinical psychologist, or master's level psychologist

who is qualified by training and experience in forensic.

evaluation. And the Court did order this and this report

has been filed in this Court. That he has been evaluated

by a clinical psychologist and by psychiatrist. The

whole section on criminal procedure makes no difference

in a case of capital murder as to how many places you

have to run these people around to and have them evaluated

from any other type of cdse. We have complied with the

Code. I didn't oppose the motion to have him evaluated

186

oeeeee CO. Seveent «#4 OFe08 . fon tee

Mr.

Lowe . ~ °< A-4.

ot 6 we

MR. JOHN TATE: Your Honor, in response to that, and the file

_ and the report back to the Court is the lst day of

nder--at that time in November. But it's the pesstcee

of the Commonwealth that that's as far as the Court has

oo until they can find somebody that suits what they

want the Court to say, and there's no requirement that

they send him around until defense counsel gets a

suitable report for them. So I oppose that motion. And

all the--his--mainly what we're talking about is his |

constitutional right to be evaulated and that's been |

met. So going beyond that is pure benevolence of the |

Court, and we'd ask that the Court not do it.

will reflect that at the same time that the ROSSER WES

filed to commit him in November of 1983, there was aan

simultaneously with that motion, a petition to the Court

for funds for the defendant to be able to have a |

psychiatric evaluation. Now, Mr. Tuggle was sent to :

Central State Hospital and the reports indicate that he

was received there on the 22nd day of November, 1983,

December, eight days later. And we would say to the

Court that the very short time that he was there for |

evaluation should indicate to the Court that ine State

facility with all the patients they have, that in a :

period of seven days there couldn't have been a armas !

deal of evaluation of Mr. Tuggle and.we respectfully .

request that the Court grant this evaluation one Gizect

his transportation to Charlottesville in order that-- |

we're not fishing for a report, we're asking the Court .

— '

187

rteeee 6 errenme *,

l , :

: exactly what we asked the Court to begin with To

2 | ! ; 7

| permit us to have an independent evaluation, the Court eo

3 had denied our petition for funds to do that, and we |

had no

4 : w made arrangements individually to have it done.

5 | MR. LOWE: Your Honor, I would like to reply to that by saying

‘ | that under 19.2-169.5, under (b), location of evaluation,

this eval

: | uation could have been performed on an out-patier

basis either i

es Fr in a mental health facility or in jail

. and that's certainly a whole lot less attention than

Mr. Tuggle got in this case because Mr. Tuggle was

10 | sent to a hospital.

11 | MR. JOHN TATE: Well, Your Honor, in that regard, if Mr. Tuggle

12 were able to make bond and were able to be out on his

13 bond at this point in time, he could go--

| T . . . . . ,

- HE COURT: Now, wait a minute--wait a minute, Mr. Tate. I--I Id

7 don't think bond would have been granted in this case

as I know.

16 | wR. JOH ,

. N TATE: Well, I mean, there was an original bond fixed :

17 by the magistrate--

18 | THE COURT: Well--

19 | MR. JOHN TATE: --when Mr. Tuggle was charged. Had he-- .

20 | THE COURT: Gentlemen, I--

: 3

| MR. : = :

a | JOHN TATE: been able to make that bond, then he would ‘

” | have been free to go to these evaluations. :

THE :

aa COURT: Gentlemen, I granted your motion for an evaluation

| and the man has been send and the evaluation made. They

24 | , . |

| took all the time that they require to make that evaluatio| a

25 i I believe in your statement, you indicated that you had |

188 353

The Court A-6.

— eee

made arrangements and I'm ure that you recognize the

fact that Mr. Tuggle cannot be left in Charlottesville

or anyplace else. The Sheriff would take him, the

Sheriff stay with him, and the Sheriff bring him back.

Which means that it would be a matter of just a few

hours for an evaluation. I granted the motion for an

evaluation because of the seriousness of the case, and

any further motion for evaluation, and specifically the

motion today, is denied. The matter is scheduled for

trial on January 17th, as I recall, I don't have a |

calendar before me but I believe that is the date fixed

for trial.

MR. LOWE: Yes, Sir.

Now, are there any further motions filed?

THE COURT: Alright.

Well, Your Honor, I need to address the Court

Prior to the time |

MR. JOHN TATE:

with regard to the 18th of Januar,.

that the Court set this I have a federal jury trial

scheduled for the 18th in Abingdon, and if--Your Honor,

we have until seven days before the trial to file a

motion and I'm advising the Court now we intend to file

a motion to change of venue from Smyth County.

MR. LOWE: Your Honor, I believe the motion's already filed,

if I recall, because I received a copy already--

MR. JOSEPH TATE: It has been filed.

--so I would ask that we have a hearing on that

| MR. LOWE:

today.

| THE COURT: Well, I'm ready to--

MR. LOWE: I'm ready.

4ca

rereee (© *. Seeruwee

& & 8B

} \

“4 321.

THE CURT: Gentlemen, the Court's ruling is as follows,

~Exhibit Number Thirty-Seven will not be permitted into

evidence, it's marked as an exhibit, it's refused. In

connection with the merits of this matter, I am of the

opinion that specific statements made by the defendant

may not be quoted by the doctor, that the doctor may

testify in connection with his examination, his converse-

tion, and if he has formed an opinion as to the ty 8

at issue, he may testify to it. Alright. Bring them in--

MR. JOHN TATE: Your Honor, may we Clarify that with the Grek

that his opiniom must therefore not be based on the |

statements which the Court has ruled inadmissible?

MR. LOWE: Your Honor, I'm going to object— |

THE COURT: He may not testify as to the statements themselves

unless you elicit it, Mr. Tate.

MR. JOHN TATE: Your Honor, we renew our objection that he be

permitted to testify at all. iy,

(Thereupon, the Jury returned to open court, and the |

following proceedings were had.)

THE COURT: You may proceed, gentlemen.

CONTINUED DIRECT EXAMINATION OF DR. CENTOR BY MR. LOWE:

Q. Alright. Dr. Centor, when you were evaluating Mr.

Tuggle, did you administer tests to him?

A. I did.

Q. What type of tests did you administer to him? ,

A. I administered two tests. One is called the Bender

Gestalt, that's B-e-n-d-e-r G-e~-s-t~-a-1-t, which is a

test for organisity or brain damage’ affecting intellectual

538 3S

7 = .

‘<< i r >.

“ee

Gunter « Direct by Lowe ) 392,

functioning. This was administered with a ten second

exposure reproduction from memory which is different

from the usual administration because it has a higher

sensitivity. And on this test he showed no signs of

any brain damage affecting intellectual functioning,

This was also confirmed by a neurological examination .

and also by brain wave. I also administered the

Rorschach, that's R-oO-r-s-c-h-a-c-h, which is commonly

known as the ink blot test, and on this test he showed

no signs of brain damage affecting intellectual function=-

ing. He showed no signs of any mental disorder or

mental disease or montal defect affecting functioning

in terms of thinking, his emotions, or his behavior. |

He showed no signs of any deep depression or mental

Gisorganization. He did, however, show signs of an

alternation in his personality between Passive behavior

and aggressive behavior.

What does that mean? |

That at times--the indications are that at times he ney

be quite compliant and he might be well-behaved and he |

might be a very friendly and socially responsive and :

at other times he may show-—demonstrate——behave in a

very aggressive, hostile manner. |

Now, are these the tests then you administered to him

Apart from the interview. . <4 5% | }

Okay. What's the nature of how you go about interviewing

him without quoting anything he said now that the Court,

has stopped us from being able to let you quote, would

saa ae

cantor ~ Dizac ty tom

MR. JOSEPH TATE:

THE COURT:

LOWE:

333.

you go forward—

Your Honor, I object to that and ask the

Court to declare a mistrial.

Court's rulings.

That's commenting on the

Overruled, gentlemen, the Court has ruled.

WITNESS: The defendant was interviewed on two separate |

occasions. The first one was on November the 22nd, 1983,

and that was for two hours and twenty-five minutes, And

I also interviewed him on December lst, 1983, for one

hour and forty-five minutes-——

e you able-—

The total time of the interview was four hours and ten

minutes,

And a--

The testing--excuse me, sir.

Okay, go ahead,

The testing took place thirty minutes, that's in |

additional to that. So the tetal time that I--interview-

ing and testing was four hours and forty minutes.

So were you able to devote all that time to atscussion,

with him of the total time of interview and-- |

The interview--the interview related to his past history

and various other matters, |

Ckay. And after you interviewed hin and after you aia!

the tests upon him, were you able to make any deternina-

tion as to what his mental condition was as far as how .

you would term him as to whether or not you'd be able :

to form an opinion that--a probability that he would |

540

TO Ne ie i hee ERNE s

PEsGSe CO. SerOnet #8 vives

“ew

Centor ~ Direct by Lowe + .2

\ , ii oe a ers wed

: ).+- - TU se.

ommit criminal acts of violence that would constitute

-a continuing serious threat to society?

MR. JOHN TATE: Your Honor, we're going to object to that

question. He's--first place, he's combined two questions,

' he's asked one question that does not relate to this

proceeding at all, it relates to a competency determina-

tion in the original trial and we believe that the

question, secondly, is objectional because it asks the

doctor to express an opinion concerning—it's a burden

of the Jury in this matter rather than his opinion of

would commit criminal acts of violence-that waiedé $4r-|

the--

THE COURT: Overruled. He may answer. ’ |

MR. LOWE: : |

Q. Could you conclude— 7

A. There were two issues. One is to his mental competency

in term--at the time of the alleged crime COTESSEREe

I did reach an opinion that he was-- ' "

Q. Okay-= ie igs

A. —-mentally competent, was not suffering from enccionas: |

disorder at the time of the alleged crime or crimes. 4

Q. Okay. And that was one—- = . “a ses |

A. -The second opinion was--I did reach an opinion as to |

the probability of future dangerousness and it , my

opinion that he shows a high probability of futurei~” |

dangerousness,. * 22 i " |

Q. § That he would commit—there's a high’ probability havi! i

vad

constitute a continuing-——

541

Santon. - Direct by Lowe Z

333.

MR. JOSePH TATE: We--Your Honor, I object. He's restating

‘the evidence: offered in testimony—

MR. LOWE: The statute—

PR. JOSEPH TATE: Your Honor, the Commonwealth's Attorney is

not a rookie. He knows the rules and he is violating

and flaunting the rules of this Court.

THE COURT: Objection sustained. The doctor's answered the

question.

MR. LOWE: Answer any questions defense might have.

CROSS EXAMINATION:

BY JORN H. TATE, JR.3

Q. Dr. Centor, you are a licensed clinical psychologist?

A. Yes, sir,

Q. And you have given your educational background to the :

Jury. Did that--does that training include any medical

training? !

A. There is some overlap in the training that we would :

receive and that some physicians would receive such as

physiology and so on.

Q. But who is Miller M. Ryans? >

A. A psychiatrist. !

Q. Then Dr. Ryans is a medical doctor specializing in |

psychiatry? "is !

| Ae Yes, sir. |

| Q. Did Dr. Ryans also participate in the evaluation of |

Mr. Tuggle? a

A. Separately, yes, sir. Separately and jointly. |

Q. Alright. Were a portion of these interviews that you

INSTRUCTION NO. S-c_

The Court instructs the Jury that even if you find, beyond a

reasonable doubt, after considering the prior history of the defendant,

that there is a prebability that he would commit criminal acts of

violence that would constitute a continuing serious threat to society,

or find beyond a reasonable doubt that his conduct in committing the

offense was outrageously or wantonly vile, horrible or inhuman in that

it involved depravity of mind or aggravated battery to the deceased,

then you still are not required to recommend the death sentence, but

you are permitted, even under those circumstances to recoumend life

imprisonment.

= 3 me

ee ee aT,

V LIGIHXa

~~"

pp. 3, TIVy)

der returning

n and prohibit.

litionally, plain.

vensatory dam-

V).

Clause, in and

duly convicted

one institution

9, 427 US. 215.

+ L.Ed2d 45)

ainees, such as

~otected liberty

in kind from

Cobb wv Aytch,

981). Pretrial

ally protected

illy available to

are the Sixth

> assistance of

sedy trial. /d

that a state is

id Fourteenth

g a pretrial de-

ce of the pro-

wtunity to be

r. The Court

| transfers, or

late a pretrial

by removing

‘ntial witnesses

iling his ability

d at 960. See

of Corrections,

1); Perkins v

506 (E.D.Pa.

iff was trans-

nty Prison on

ed there until

jen Aff. 141;

records). De-

isfer was a di-

n” planned by

ional problems

ied to the pris-

ne day stay in

en Aff. 4 42).'

transfer would

improper con

TUGGLE v. THOMPSON 1229

Cite as 854 F Supp. 1229 (W.D.Vae. 1994)

“break up” the subversive group to which the

plaintiff belonged so as to preserve prison

order and security. (McFadden Aff. 1 43)

Finally, defendants stated that the transfer

was unrelated to any pending litigation plain-

tiff might have against the prison. (McFad-

den Aff. 1 4445).

The affidavit submitted by the defendants

does not demonstrate that Chester County

officials gave the plaintiff any type of notice

or opportunity to be heard prior to his trans-

fer to another institution as required by the

Sixth Amendment. See Cobb v. Aytch, supra

at 960. Although it is not clear from plain-

tiffs complaint that he sustained any dam-

ages resulting from a Sixth Amendment vio-

lation, the absence of any proof that Chester

County officials gave plaintiff an opportunity

to be heard prior to the transfer precludes

this Court from recommending that the de-

fendants’ motion for summary judgment be

granted as to this final claim. Nonetheless,

for the reasons stated previously, the plain-

tiffs claim should be dismissed for failure to

prosecute.

This result is not harsh in view of the de

minimus injury alleged by the plaintiff re-

sulting from the stay at Northampton Coun-

ty Prison. It appears from the record that

the period of transfer did not preclude plain-

tiff from preparing for his criminal trial.

Plaintiff was released from incarceration on

October 18, 1993, and, according to court

records, his trial on the robbery charges had

not commenced as of April 18, 1994.° Plain-

tiffs Sixth Amendment right to consult with

his lawyer and other witnesses could not

have been seriously infringed since plaintiff

has been free on bail during the past six

months. This is sufficient time to consult

with counsel and locate and interview poten-

tial witnesses.

For all the above reasons, the Court re-

spectfully makes the following:

RECOMMENDATION

AND NOW, this 24th day of MAY, 1994, it

is respectfully RECOMMENDED that the

9%. According to court records, on May 18, 1993,

plaintiff pled nolo contendere on the escape

charges (No. 280092) and was sentenced on that

day. This was before his transfer to Northamp-

defendants’ motion to dismiss and for sum-

mary judgment be GRANTED as to all

claims with the exception of the claims al-

leged in Civil Action No. 93-4374 relating to

plaintiffs transfer to Northampton County

Prison. It is recommended that defendants’

motion for an injunction be DENIED. It is

further recommended that plaintiffs consoli-

dated Civil Action No. 93-3734, (including

claims in C.A. No. 93-4374), be DISMISSED

with prejudice pursuant to Fed.R.Civ.P.

41(b) for failure to prosecute.

Lem Davis TUGGLE, Petitioner,

C.E. THOMPSON, Respondent.

Civ. A. No. 92-0737-R.

United States District Court,

W.D. Virginia,

Roanoke Division.

June 8, 1994.

Following affirmance of capital murder

conviction and imposition of death sentence,

228 Va. 493, 323 S.E.2d 539, the United

States Supreme Court, 471 U.S. 1096, 105

S.Ct. 2315, 85 L.Ed.2d 835, vacated and re-

manded. On remand, the Virginia Supreme

Court affirmed conviction and sentence, 230

Va. 99, 334 S.E.2d 838. Petition for writ of

habeas corpus was filed. The District Court,

Turk, J., held that: (1) petitioner was im-

properly denied assistance of expert witness-

es necessary for preparation of his defense;

(2) petitioner’s right to impartial jury was

violated; and (3) “vileness” instruction was

constitutionally insufficient.

Petition granted.

ton County Prison. Thus, the transfer did not

affect plaintiff's Sixth Amendment right to coun-

sel in this case

ee =

nted- i 118 @ $e.. ca

SOOOMAY

1230 8&4 FEDERAL

1. Habeas Corpus 450.1

Federal court should not apply “new

rule” to overturn state court's decision that

was made at time when outcome was suscep-

tible to debate among reasonable minds; if

action is lawful under law existing at time of

prisoner's conviction and appeal, no “new

rule” is at issue

2. Habeas Corpus ¢=450.1

Where “new rule” was applicable with

respect to only one of federal habeas peti-

tioner’s claims, he was not required to dem-

onstrate that state judges acted unreason-

ably or in bad faith with respect to his other

claims.

3. Habeas Corpus ©=332.1, 366

Habeas petitioner “exhausted” his claim

that denial of expert assistance, solely be-

cause of his poverty, violated his Constitu

tional rights, as that claim was preserved at

trial and litigated on merits on appeal; even

if petitioner did not raise that claim himself,

Virginia Supreme Court had ample opportu-

nity to pass on application of relevant prece-

dent, i.e, Ake v. Oklahoma, to case

4. Habeas Corpus 461

New sentencing hearing was required in

capital murder prosecution due to constitu-

tional error in denying indigent defendant's

motion for independent appointed psychia-

trist to rebut Commonwealth psychiatric evi-

dence of future dangeruusness; death sen-

tence could not be upheld on ground that

jury's finding of “vileness” independently

supported death sentence, as it could not be

said that evidence presented to jury was

unaffected by “future dangerousness” aggra-

vating circumstance stricken by Virginia Su-

preme Court.

5. Habeas Corpus ¢314

Failure to comply with state procedural

rule will result in procedural bar, unless peti-

tioner makes showing of cause and prejudice

or actual innocence; this cause and prejudice

standard applies to noncompliance with ap-

pellate rules, including failure to assign claim

as error on appeal.

SUPPLEMENT

6. Habeas Corpus 401

Habeas petitioner was procedurally

barred from raising claim that failure to ap

point independent pathologist was constitu

tional error, as petitioner failed to demon

strate by clear and convincing evidence that.

but for failure to appoint independent pathol-

ogist, no reasonable juror would have found

petitioner eligible for death penalty

7. Jury ©°33(2.10), 125, 131(4)

Capital murder defendant was deprived

of his right to impartial jury, as trial court's

refusal to allow defendant's counsel to make

any challenges for cause, and extreme re

strictions placed on voir dire, resulted in jury

containing five individuals who had read arti

cles concerning case, four who had read arti

cle that contained false rape information con

cerning defendant, and three who had been

subject to pretrial contacts by media

U.S.C.A. Const.Amends. 6, 8, 14.

8. Rape ©51(3)

Evidence did not support rape conviction

under Virginia law; there was no semen in

vagina, and, while there were smal! bruise

found outside vagina, there were no injuries

found in vagina and no testimony concerning

when bruises occurred. Va.Code 1950,

§ 18.2-3l(e) (1988).

9. Rape 7, 51(3)

In Virginia, rape conviction requires evi

dence that vagina was penetrated by penis:

lack of seminal fluid is strong circumstance

indicating that there was no penetration

10. Criminal Law @=393(1), 641.12(1)

Capital murder defendant was deprived

of his rights to counsel and against self-

incrimination when state mental health ex-

aminer exceeded scope of court’s order, as

well as defendant's waiver, by evaluating de-

fendant as to “future dangerousness,” rather

than limiting examination to two issues of

competency to stand trial and mental state at

time of offense; defendant's waiver could not

have been voluntarily, knowingly and intelli

gently made, as defense counsel had no

knowledge of state's intent to trap defendant

on “future dangerousness” issue and thus

could not advise him on how to deal with that

issue, and “waiver” defendant signed was

misrey

counsé

11. Cr

der de

he wi

was c

not vi

rights

12. Hi:

eral c

13. He

phase

court

defini

pravit

defini

jury °

defen

was (

or in!

pravit

victin

plish

264.4

rocedural|y

lure to ap

iS constity

to demon

dence that

ent patho!

have found

Ity.

is deprived

rial court's

el to make

«treme re

ted in jury

| read arti

nation con

» had been

”y media

conviction

» Semen in

all bruises

no injuries

concerning

ode 1950

quires evi

by penis

cumstance

tration.

12(1)

s deprived

ainst self

health ex-

order, as

ating de-

3s,” rather

issues of

-al state at

- could not

ind intelli

] had no

defendant

and thus

| with that

ned was

TUGGLE ¥

Cite as 854 F Supp

rrusre presented to him and concealed from

counsel US.C.A. Const.Amends. 5, 6

11. Criminal Law @723(1)

Habeas Corpus ©497

Prosecutor's argument that capital mur

der defendant should be put to death because

he would otherwise be released on parole

was clear violation of Virginia law, but did

not violate defendant's federal constitutional

rights

12. Habeas Corpus ©°453

Violations of state law do not state fed

eral constitutional claim

13. Homicide 311, 343

Reversible error occurred in sentencing

phase of capital murder prosecution when

court refused defendant's request to provide

definitions of “aggravated battery” and “de

pravity of mind” contained within statutory

definition of vileness, and instead instructed

jury that it could impose death penalty if

defendant's conduct in committing offense

was outrageously or wantonly vile, horrible

or inhuman, in that it involved torture, de

pravity of mind or aggravated battery to

victim beyond minimum necessary to accom

plish act of murder. Va.Code 1950, § 19.2

264.4, subd. C

14. Criminal Law @°641.12(3)

Capital murder defendant's trial counsel

was rendered ineffective by trial court ruling

that denied funds for hiring experts to de

fend. U.S.C.A. Const.Amend. 6

15. Criminal Law ©°641.13(7)

Capital murder defendant was not preju

diced by his trial counsel's failure to appeal

trial court’s denial of request for expert pa-

thologist; it did not appear that defendant's

right to assistance of independent pathologist

was so clear that trial counsel was ineffective

in failing to pursue that issue, while choosing

instead to pursue 40 other issues and, be-

cause it had been almost ten years since

offense for which defendant was convicted

occurred, it would be impossible to obtain

independent pathologist report on rape evi-

dence. US.CA Const.Amend. 6

THOMPSON 1231

1229 (WDVe. 1994

16. Criminal Law @ 113413

Constitutional requirement of meaning

fu appellate review in capital cases was Vi0

lated where, upon remand, West Virginia

Supreme Court struck “future danger

ness aggravating tactor, leaving only le

ness aggravator, but then did not compare

defendant's case with other capital ‘Trimes ir

which “vileness” aggravator was sole factor

VaCode 1950, § 17-110.1

17. Criminal Law ©1026

Appellate review procedures are critical

part of protections that must shape impos

tion of death penalty

18. Habeas Corpus ©450.1

Federal! district court entertaining habe

as corpus petition does not sit as court ol

appeals over state Supreme Court

19. Habeas Corpus ©°500.1

While proportionality of sentences |

ynizable in federal habeas proceeding be

‘ause Constitution does not require propor

tionality review, meaningful appellate review

constitutionally required In Capital cases

Helen L. Konrad, Timothy Kaine, Mezzulk

& McCandlish, Richmond, VA, for petitioner

Robert Bartos (Condon. Office of the Att

Gen., Richmond, VA, for respondent

Memorandum Opinion

TURK, District Judge

Petitioner Lem Davis Tuggie, throug?

counsel, has filed this petition for writ of

habeas corpus pursuant to 28 U.S.C. § 225

In his petition, Tuggle claims that the follow

ing constitutional errors tainted his convi«

tuon and sentence

1) The trial court failed to appoint an inde

pendent psychiatrist and an expert pa

thologist to assist in the preparation of

Tuggle'’s defense.

2) The conduct of the trial court and the

prosecution worked to deny Tuggle of

his right to a trial by an impartial jury

3) There was insufficient evidence to con

vict Tuggle of murder during the com

mission of rape,

1232 &4 FEDERAL

4) The trial court erred in allowing Dr

Arthur Centor to testify that Tuggle

posed a “future danger” to society be

cause such testimony was based on dis

cussions with Tuggle outside the pres

ence of counsel without a waiver of his

Fifth and Sixth Amendment rights;

5) The prosecutor argued that Tuggle

should be put to death because he would

otherwise be released on parole;

6) The “vileness” instruction given to the

jury was unconstitutionally vague;

7) The trial court prevented Tuggle’s ap

pointed trial counsel from rendering ef

fective assistance of counsel to Tuggie at

trial because it prohibited them from

presenting the kind of defense to which

their client was constitutionally entitled

8) Tuggie’s conviction and sentence were

so infected with error as to deprive him

of the protections provided by the

Eighth Amendment

9) The Virginia Supreme Court upheld

Tuggle’s death sentence after striking

the “future dangerousness” aggravating

circumstance,

10) The Virginia death penalty statute is

unconstitutional because of the vague

ness of the “vileness” aggravating cir

cumstance

Petitioner requests that the court set aside

his conviction and sentence of death

Respondents, through counsel, filed a mo

tion to dismiss tne petition on November 12,

1992. Petitioner, through counsel, responded

to the motion on March 12, 1993. Petitioner

also filed a separate motion requesting that

an evidentiary hearing be held on the motion

A hearing was held on March 15, 1994. Af

ter hearing and considering the arguments of

counsel on that date, the court finds this case

to be ripe for disposition

1. The Commonwealth also charged petitioner

with forcible sodomy and use of a pistol in the

commission of murder

2. Petitioner was also convicted of the non-capita!

offenses

SUPPLEMENT

Procedural History

Petitioner was charged with capital mur

der in the Circuit Court of Smyth County in

1983. The Commonwealth alleged that he

committed the murder of Jessie Geneva Ha

vens during the commission of rape.’ Peti

tioner was represented at trial by two court

appointed counsel: Joseph S. Tate and John

H. Tate, Jr. On January 18, 1984, petitioner

was convicted of capital murder* On Janu

ary 19, 1984, the sentencing jury concluded

that the crime was vile and that Tuggle

posed a future danger. Based on these stat

utory “aggravating circumstances,” the jury

recommended a sentence of death. The trial

court imposed that sentence on March 22

1984

Tuggle appealed his conviction and sen

tence to the Virginia Supreme Court. On

November 30, 1984, that Court, after con

ducting mandatory sentence review, affirmed

the lower court judgment based on the pres

ence of both statutory aggravating circum

stances. Tuggle v. Commonwealth, 228 Va

493, 323 S.E.2d 539 (1984)

Petitioner filed a petition for writ of certio

rari to the United States Supreme Court

The Supreme Court vacated the sentence

and remanded the case to the Virginia Su

preme Court in light of its holding in Ake 1

Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84

L.Ed.2d 53 (1985). Tuggle v. Virginia, 471

US. 1096, 105 S.Ct. 2315, 85 L.Ed2d 835

1985)

On remand, the Virginia Supreme Court

found that the sentencing was unconstitution

al because the prosecution psychiatrist had

testified as to petitioner's “future dangerous

ness,” despite the fact that petitioner had

been denied the appointment of an indepen

dent psychiatrist to help him prepare a de

fense. Tuggle v. Commonwealth, 230 Va. 99

107-08, 334 S.E2d 838, 843-44 (1985)

Moreover, the Virginia Attorney General

conceded that petitioner was entitled to a

3. Ake holds that when the prosecution in a capi

tal sentencing proceeding presents psychiatric

evidence of an indigent defendant's future dan

gerousness, due process requires that the defen

dant have access to psychiatric testimony, a psy

chiatric examination, and assistance in preparing

for the sentencing stage. 470 U.S. at 83-84, 105

S.Ct. at 1096-97

upital mur

1 County in

ed that he

reneva Ha

wpe.’ Peti

two court

e and John

, petioner

On Janu-

concluded

vat Tuggle

these stat-

” the jury

The trial

March 22

and sen

yourt. On

after con

v, affirmed

1 the pres

1g circum

h, 228 Va

t of certio-

me Court

* sentence

irginia Su

rin Ake 1

1087, 84

yinia, 471

Ed2d 835

me Court

nstitution

atrist had

langerous

joner had

n indepen

mare a de

730 Va. 99.

4 (1985)

* General

ited to a

n im @ capi

psychiatrx

future dan

the defen

mony. a psy

| preparing

83-84 105

TUGGLE v. THOMPSON 1233

Cite as 854 F Supp

new sentencing on the basis of Ake.‘ Rather

than granting a new sentencing, the Virginia

Supreme Court struck down the “future dan-

ger” aggravating circumstance, but held that

the jury’s finding of “vileness” independently

supported the death sentence. 230 Va. at

111, 334 S.E.2d at 846. The Court did not

discuss the effect that the improper psychiat

ric testimony had on petitioner's sentencing

jury, nor did it reconduct a sentence review

after the “future dangerousness” aggravator

was eliminated. Tuggie petitioned for a re

hearing, but his petition was denied on Octo

ber 11, 1985.*

In October 1986, petitioner filed a petition

for writ of habeas corpus in the Circuit Court

of Smyth County. The court dismissed the

petition, without an evidentiary hearing, on

March 18, 1991. Petitioner filed a Petition

for Appeal in the Virginia Supreme Court

which was dismissed by an unpublished order

on November 14, 1991. Petitioner then filed

a petition for writ of certiorari with the Unit

ed States Supreme Court which was denied

on April 20, 1992. Tuggle v. Bair, — US

——, 112 S.Ct. 1681, 118 L.Ed.2d 397 (1992)

The instant petition is the first Tuggie has

filed in federal court

Factual Background

The offense for which petitioner was con

victed occurred on May 29, 1983. The victim

was Jessie Geneva Havens. The facts from

the original trial court proceeding indicated

that petitioner had met Havens at a dance on

May 28, 1983 and had offered to give Havens

a ride home, which she accepted. When

Havens did not return home, the police were

notified that she was missing

The next day, Tuggie volunteered to police

that he was connected with a missing persons

report relating to Jessie Havens. Tugglie

told police that he did not know what had

happened to Havens, but he did know where

her body was located. The police then went

4. This is apparéntly the only instance in Virginia

legal history where the Office of the Attorney

General has admitted constitutional error in a

reported capital case

S$. Respondents contend that the independent re

view conducted on petitioner s direct appeal was

sufficient, because the court expressly affirmed

1229 (WD.Va 1994)

to the place where Tuggie had said Havens

body would be and found her partially

clothed body. Petitioner was subsequently

charged with murder during the commission

of rape, sodomy and use of a firearm to

commit murder

Several months pror to trial, petitioner's

trial counsel filed a motion for the appoint-

ment of various experts, including a patholo-

gist, a forensic serologist, a ballistics examuin-

er and an odontologist, to examine the scien

tifie evidence on behalf of the defense. The

trial court denied petitioner's motion

Petitioner's trial counsel later filed a mo-

tion for the appointment of a mental health

professional to examine petitioner's sanity at

the time of the offense and his competence to

stand trial. The court granted this motion

and ordered state mental health profession

als to examine petitioner with respect to

these two issues. Based on the court's or

der, the state doctors obtained a waiver from

petitioner. The doctors, including Dr. Ar

thur Centor, interviewed petitioner and in

formed the court that, in their opinion, pet-

tioner was sane and could assist in his own

defense. The state doctors also informed the

court that they had formed an opinion as to

Tuggle’s “future dangerousness.”

Fourteen days before trial, Tuggie’s coun

sel was informed of Centor’s opinion. They

immediately requested the appointment of an

independent psychiatrist to assist Tuggie in

his defense to the capital murder charge

The trial court denied the request. Trial

counsel then offered to pay for such an inves-

tigation from their own funds and requested

that the court transfer Tuggle to a county

jail in the community where their expert was

located. The trial court again denied the

motion

Several weeks before trial, Tuggie’s trial

counsel moved for a change of venue due to

the extensive publicity that the case had

the jury's finding of “vileness 228 Va. at $17

323 S.E.2d at 554

6. Petitioner filed another petition for writ of cer

torari attacking this ruling, but the petition was

denied. Tuggle v. Virginia, 478 U.S. 1010, 106

S.Ct. 3309, 92 L.Ed.2d 722 (1986)

1234

received in the months leading up to trial

Some of the publicity repurted that petitioner

had previously been convicted of second-de-

gree murder and at least one article mistak-

enly indicated that .he prnor conviction also

included rape. Another article repeated this

information and also indicated that Tuggie

was a suspect in the rape of a 15 year-old gir!

for which he was never charged. The trial

court denied the motion, but conditioned the

jenial on the ability to select an unbiased

jury during voir dire

The jury panel in petitioner's case was

chosen from a venire that had previously

been called for duty in other cases during the

same month. On the night before the trial

John Tate learned from a call from a poten

tial juror that some members of the panel

from which the Tuggle jury was selected had

been contacted by a member of the Sheriff's

Department and by Terry Hawthorne, a re-

porter for the Smyth County News, appar

ently concerning their performance as jurors

in a murder trial that had occurred a few

days earlier. In that trial, the defendant had

been convicted of a lesser crime than the

first-degree murder charge and the prosecu

tor had expressed his dissatisfaction with the

jury verdict to a local reporter Tate refused

to discuss the matter with the juror

The next day, however, Tuggle’s counsel

revealed to the trial court that some mem

bers of the jury venire had been contacted

concerning their service on the previous jury

Counsel asked for the opportunity to vor

dire the jury about such contacts or to sum

mon the reporter who had contacted mem-

The trial

T iggie § counsel

bers of the venire for questioning

court denied both requests

also sought the opportunity to vor dire mem

bers of the jury pane! individually

trial publicity 30 a8 WO explore the ef!

nfectir ow

The trial court again

about pre

fects if

such publicity without ther poten

tial jurors with Dias

demed counsel's request

When the first twenty members of the

panel were called for voir dire, eight panel

membders—in the presence of the other pane!

members—immediately indicated that they

had formed an opinion as to petitioner s guilt

These eight panel members were excused

However, of the twenty member panel from

which Tuggle's trial jury was ultimately cho

SeT) fir e

members indicated that they had

84 FEDERAL SUPPLEMENT

been contacted before trial by either a m

ber of the Sheriffs Department or b

representative of the local media, ten

bers indicated that they had read

about the Tuggie case (including those

referred to a prior homicide and that oe

tained the false report about a previous "ape

conviction), six acknowledged that they

membered details from the newspaper

counts, and five had served as jurors in

earlier trial and had been contacted by

media or Sheriffs Department to

their lenient verdict in that case. The eg

refused to allow individualized voir dire

these jurors. ie!

After general questioning of the jury panel

was complete, the trial court declared the

panel qualified and told Tuggie’s counsel t»

commence their peremptory strikes. Tyg.

gie’s counsel asked for the opportunity

challenge jurors for cause, but the trial court

refused to hear any challenges for cause

On the afternoon of the first day of trial,

petitioner's counsel received a copy of the

Smyth County News of that day, confirming

that a number of the jurors who were sitting

on Tuggie’s jury had been contacted by the

paper and asked to explain how they had

arrived at a verdict in the murder case which

had been tried a few days earlier. One of

the jurors sitting on the Tuggle case, Robert

Brown, was quoted expressing his disapprov-

al of the decision of the other jurors in the

previous case because it was too lenient op

the defendant. Brown was later selected to

be foreman of the Tuggle jury. Petitioner's

counsel moved for a mistrial because of the

prejudicial media contact, but the motion was

: m]

denied

During the trial, the Commonwealth intro

duced expert testimony from its pathologist

m the rape evidence. The pathologist testi-

fied that the victim had been sodomized and

had died of a single gunshot wound to the

The pathologist further testified that

the victim's vagina had been “penetrated or

manipulated” However, he acknowledged

that no semen was found in the victims

vagina. Nevertheless, because the trial court

had denied Tuggie’s motion for an expert on

the subject, the defense was unable to put on

affirmative evidence challenging the rape

charge The jury convicted petitioner of

murder during the commission of rape

chest

“ther a mem

ent or DY a

la, ten mem

read articles

ng those that

ind that con-

previous rape

that they re.

ewspaper ac

jurors in the

acted by the

t to explain

» The court

voir dire of

he jury pane!

declared the

‘8 counse! to

nkes. Tug

portunity to

ne trial court

5 for Cause

day of trial,

copy of the

’, confirming

were sitting

acted by the

w they had

r case which

ier. One of

Case, Robert

is disapprov

urors in the

" selected to

Petitioner's

cause of the

mowvion was

vealth intro

pathologist

logist testi

jomized and

ound to the

estified that

‘netrated or

knowledged

the victim's

e trial court

nh expert on

‘le to put on

r the rape

etitioner of

if rape

TUGGLE v. THOMPSON

122% B&DVae 1994)

Cite a8 854 F Supp

During the sentencing phase of petitioner's

trial, the prosecution called Dr. Arthur Cen-

tor to testify about Tuggle’s future danger

Trial counsel objected, but the

court overruled the objection and Centor was

permitted to testify that Tuggle showed a

“high probability of future dangerousness.”

Because petitioner had been denied the assis

tance of an independent psychiatric expert,

ousness

he could not offer evidence to counter the

professional testimony of Dr. Centor

In instructing the jury on the “vileness”

aggravating circumstance, the trial court re-

fused Tuggle’s request to provide definitions

of the terms contained within the statutory

jefinition of vileness. See Va-Code § 19.2

264.4(C). The trial court, tracking the lan

guage of the statute, simply instructed the

jury that it could impose the death penalty if

Tuggle’s “conduct in committing the offense

was outrageously or wantonly vile, horrible

wr inhuman, in that it involved torture, de

pravity of mind or aggravated battery to the

ictim beyond the minimum necessary to ac-

omplish the act of murder.” /d

In closing argument at the sentencing

phase of the trial, the Smyth County prose-

cutor argued to the jury that Tuggie should

receive the death penalty so he would not get

out of prison on parole. The prosecutor also

stressed the testimony of Dr. Centor that

Tuggle posed a future danger to society

The jury found that the Commonwealth had

proved both the “future dangerousness” and

‘vileness” predicates beyond a reasonable

doubt and responded with a sentence of

leath

Analysis

Respondents have raised two grounds for

dismissal of Tuggle’s petition. First, respon

dents argue that state judges have consid-

ered his claims and their rulings were not

“unreasonable.” Second, the Commonwealth

addresses the merits of Tuggle’s claims

The respondents’ arguments will be ad-

dressed in turn.

|. The Respondents’ First Ground for Dis

missal

The respondents first argue that Tuggle’s

claims must be dismissed due to the “reason-

1235

abieness” doctrine announced by the United

Sta:es Supreme Court in Butler v. McKellar,

494 U.S. 407, 110 S.Ct. 1212, 108 L.Ed 2d 347

1%)), and its progeny. Citing Butler and

Burch v. Thompson. 949 F.2d 1354 (4th Cir

1%1). cert. denied — US. ——, 112 5.Ct

055. 120 L.Ed.2d 922 (1992), the Common-

weath argues that this court “must defer to

the rulings of the Virginia Supreme Court on

the merits of Tuggie’s claims unless it

ean be said that the state court's rulings

were not reasonable good-faith interpreta

tions of existing precedent.” However, re-

spondents’ reliance on these cases is mis-

placed

[1] Bunch and Butler stand only for the

proposition that a federal court should not

apply a “new rule” to overturn a state court's

decision which was made at a ume when the

outcome was “susceptible to debate among

reasonable minds.” Butler, 494 US. at 415,

110 S.Ct. at 1217-18; see Teague v. Lane,

489 U.S. 288, 109 S.Ct. 1060, 108 L.Ed.2d 334

1989) (announcing the “new rule” doctrine in

habeas corpus cases). The concern in these

cases is to avoid retroactive application of a

"new rule” after a court has rendered a

decision based on existing law. See Teague,

supra. If an action is lawful under the law

existing at the time of a prisoner’s conviction

and appeal, no “new rule” is at issue

[2) In this case, the Commonwealth ar-

gues that the “new rule” is applicable with

respect to only one claim. Therefore, the

holdings of Bunch and Butler are clearly

inapplicable to the other claims and respon-

dents’ argument would require petitioner to

demonstrate that state judges acted “unrea-

sonably” or in bad faith. Such proof has

never been required of a habeas petitioner

and this court declines to require such proof

now. The respondents’ motion to dismiss on

this basis will accordingly be denied

Il. The Merits of Petitioner's Claims

1) Tuggle was Improperly Denied the As

sistance of Expert Witnesses Necessary

for the Preparation of His Defense

Petitioner first argues that he was denied

the assistance of expert witnesses in violation

1236 854 FEDERAL SUPPLEMENT

of his constitutional rights. Petitioner con-

tends that the trial court's refusal to appoint

an independent pathologist and psychiatrist

to assist him in his defense constitute inde-

pendent constitutional violations of petition-

er’s Fifth, Eighth and Fourteenth Amend-

ment mghts. Petitioner argues that these

two failures deprived him of due process and

equal protection of the law.

Petitioner was appointed counsel to defend

his capital charge of murder during the com-

mission of rape because of his poverty. Ar-

rayed against him were a forensic patholo-

gist, two dentists (including a forensic odon-

tologist),’ and a licensed clinical psychologist.

However, all of petitioner's requests for ex-

pert assistance to rebut the charges against

him were denied.* At trial, Tuggle appeared

without any expert assistance. His counsel!

did not even have the benefit of consultation

with experts to assist in their examination of

the state’s key witnesses. Nevertheless, pe-

titioner argues that the court's failures to

appoint an independent pathologist and psy-

chiatrist were the most egregious violations

because his capital murder conviction hinged

on the existence of a rape and the rape

evidence was equivocal and because he was

unable to rebut the state doctor’s evidence as

to his “future dangerousness.” *

Petitioner contends that the extent to

which the expert testimony was relied upon

by both the trial jury and the appellate

courts is evidenced by the decision of the

Virginia Supreme Court in its affirmance of

Tuggle’s conviction and sentence. Tuggle v

Commonwealth, 228 Va. 493, 501-2, 511, 513,

517, 323 S.E.2d 539 (1984). Moreover, peti-

tioner asserts that the trial court's denials

“rendered his conviction and death sentence

inherently unreliable.” In fact, petitioner as-

serts that courts have lung recognized that a

defendant “may be at an unfair disadvantage

if he is unable because of poverty to parry by

7. One of the dentists, Alvin Kagey, was paid

$2200 by the court for his testimony

8. In addition to the trial court's denial of an

independent pathologist and psychiatrist. peti-

tioner was also denied the requested assistance

of a serologist. a ballistics expert and an odontol-

Ogist

9. Petitioner also argues that the refusal to permit

him to obtain an independent psychiatric exam»

his own witnesses the thrust of those again<-

him.” Reilly vr. Berry, 250 N.Y. 456, 461, les

N.E. 165, 167 (1929). Petitioner stresse<

that the denial of expert assistance in this

case, solely because of his poverty, violated

his constitutiona)] rights.

l. The Psychiatrist Issue

a. The Exhaustion Requirement

{3} Petitioner contends that this issue has

been exhausted because it was preserved a:

trial and litigated on the merits on appeal

Although respor dents contend that the claim

is not exhaustec because petitioner did not

raise the claim himself, it is clear that the

Virginia Suprer-e Court had ample opportu-

nity to pass on =he application of Ake to this

case and, therefore, the claim is exhausted

See Preiser v. Rodriguez, 411 US. 475, 93

S.Ct. 1827, 36 L.Ed.2d 439 (1973) (purpose o7

exhaustion reqcirement is to ensure that

State courts have first opportunity to review

federal constitut: onal challenges to state con-

victions)

b. The Substantive Claim .

[4] Tuggle’s counsel sought the appoint

ment of an independent psychiatrist. Wher

they were rebutfed, they sought leave of

court to transfer petitioner to another jail t

facilitate a psychiatric examination that they

would fund themselves. The trial court

again refused. The refusal of the trial court

to grant the assistance of a psychiatrist was

affirmed by the Virginia Supreme Court on

direct appeal. Tuggle v. Commonwealth, 228

Va. 493, 323 S.E 2d 539 (1984). That ruling

was vacated by the United States Supreme

Court in light of the holding of Ake v. Okla

homa, supra. Tuggle v. Virginia. 471 US.

1096, 105 S.Ct. 2315, 85 L.Ed.2d 835 (1985).

Ake held, inter clia, that when the prosecu-

Uon in a capital murder proceeding presents

nation deprived him of the ability to develop

evidence to use 2s mitigation during sentencing

specifically the fact that there was a history of

mental illness in petitioner's family. that petition

er was hospitalized in a near<oma as an infant

and that, as a voung child, petitioner suffered a

closed head wound in a fall that rendered him

unconscious

psychiatric e\

dant's future «

quires that tt

with the assis

470 U.S. at &

case was rem:

Court for rec

Tuggie had b

psychiatric ex

On remand,

conceded that

atrist to assis

stitutional and

was required.

Va. 99, 334 S

Supreme Cou

tencing was |

ror, but reject

that a new se!

the Virginia S

When a ju

specific st

stances, an

sentence of

stances sub

maining v:

stances, wil

Stephens, 4

L.Ed.2d 23

jury made ;

the “vilene:

beyond a re

requires th

erred in di

psychiatrist

submitted

of future da

less, that |

invalidates

230 Va. at 1)

contends that

cause, inter o

sentencing )\

dence which

deliberations

Responden'

preme Court

sentence on |

sistent with t

cuit interpre’

Zant v. Stey

10. The Four

se against

4, 461, 166

r stresses

we in this

y, Violated

ment

S issue has

eserved at

on appeal

the claim

or did not

r that the

2 Opportu-

lke to this

xh uusted

5. 475, 93

ourpose of

sure that

to review

State con-

st. When

leave of

her jail to

that they

ial court

rial court

atrist was

Court on

ealth, 228

nat ruling

Supreme

e v. Okla-

471 US.

35 (1985)

' prosecu-

- presents

to develop

sentencing,

history of

at petition-

an infant

suffered a

dered him

TUGGLE v. THOMPSON 1237

Cite as 854 F Supp. 1229 (W.D.Va. 1994)

psychiatme evidence of an indigent defen-

dant's future dangerousness, due process re

quires that the state provide the defendant

with the assistance of a psychiatric expert

470 U.S. at 83-84, 105 S.Ct. at 1096. The

case was remanded to the Virginia Supreme

Court for reconsideration precisely because

Tuggle had been denied the assistance of a

psychiatric expert.

On remand, the Virginia Attorney General

conceded that the failure to appoint a psychi-

atrist to assist Tuggle’s defense was uncon-

stitutional and that a new sentencing hearing

was required. Tuggle v. Commonwealth, 230

Va. 99, 334 S.E.2d 838 (1985). The Virginia

Supreme Court agreed that Tuggle’s sen-

tencing was infected with constitutional er-

ror, but rejected the position of both litigants

that a new sentencing was needed. Instead,

the Virginia Supreme Court found as follows

When a jury makes separate findings of

specific statutory aggravating circum-

stances, any one of which could support a

sentence of death, and one of the circum-

stances subsequently is invalidated, the re-

maining valid circumstance, or circum-

stances, will support the sentence. Zant v

Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77

L.Ed2d 235 (1983) In Tuggle, the

jury made a separate, specific finding that

the “vileness” predicate had been proved

beyond a reasonable doubt. Although Ake

requires the conclusion that the tral court

erred in denying Tuggle an independent

psychiatrist once the Commonwealth had

submitted psychiatric evidence on the issue

of future dangerousness, we hold, nonethe-

less, that the error neither impairs nor

invalidates the jury's finding of vileness.

230 Va. at 111, 334 S.E.2d 838. Petitioner

¢ontends that this ruling was in error be-

cause, inter alia, it ignored the fact that the

sentencing jury heard unconstitutional evi-

dence which it was able to consider in its

deliberations.

Respondents reply that the Virginia Su-

preme Court's decision to uphold the death

sentence on the “vileness” ground was con-

sistent with the decisions of the Fourth Cir-

cuit interpreting and applying the rule in

Zant v. Stephens, 462 U.S. 862, 103 S.Ct

10. The Fourth Circuit cases relied upon by re

2733, 77 L.Ed.2d 235 (1983). See Clanton :

Muncy, 845 F.2d 1238, 1243 (4th Cir.), cert

denied, 485 U.S. 1000, 108 S.Ct 1459, 99

L.Ed.2d 690 (1988); J. Briley v. Bass, 70

F.2d 1238, 1245 (4th Cir.1984), cert. denied,

470 U.S. 1088, 105 S.Ct. 1855, 85 L.Ed. 2d 152

(1985); Briley v. Bass, 742 F.2d 155, 165-66

(4th Cir.1984), cert. denied, 469 U.S. 893, 105

S.Ct. 270, 83 L.Ed.2d 206 (1984). Again,

respondents reliance on these cases 1s mis

placed

In Zant, the jury had found three aggrava-

ting factors present to support its sentence of

death. On direct appeal, the state supreme

court struck one of the aggravating circum-

stances as unconstitutionally vague, but up-

held the death sentence on the ground that

the other two aggravating circumstances

were sufficient bases for the imposition of the

death penalty. The United States Supreme

Court concluded that, even though the jury

had been instructed on, and found, an uncon-

stitutional aggravating circumstance, all the

evidence it considered was properly related

to the two valid aggravating circumstances

Thus, the Court found that the jury's deliber-

ation had not been overly affected by the

improper aggravating circumstance instruc-

tion. The Court recognized, however, that

“if an invalid statutory aggravating circum-

stance were supported by material evidence

not properly before the jury, a different case

would be presented.” 462 U.S. at 887, n. 24,

1038 S.Ct. at 2748, n. 24

In this case, it cannot be said that the

evidence presented to the jury was unaffect-

ed by the “future dangerousness” aggrava-

ting circumstance stricken by the Virginia

Supreme Court. Because the state tried

Tuggle on the “future dangerousness” aggra-

vator, the jury did hear psychological testi-

mony that Tuggle posed a serious threat to

society. And, because the state committed

the constitutional error of not granting Tug:

gie’s request for psychiatric assistance, the

jury did not hear testimony from Tuggie to

rebut the future dangerousness claim. Thus,

unlike Zant, the material presented to the

Tuggle sentencing jury was seriously skewed

because of the constitutional error."*

Instead, this case is similar to Johnson t

Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100

spondents are distinguishable from Tuggle s case

TUGGLE v. THOMPSON 1239

1238 84 FEDERAL

L.Ed2d 575 (1988). In Johnson, a capital

defendant was sentenced to death after a

jury found three statutory aggravating cir-

cumstances, including that the petitioner had

been previously convicted of another felony

involving violence. The Supreme Court va-

cated the death sentence because the previ

ous felony relied upon in establishing one

aggravating circumstance was an uncoun-

seled conviction, obtained in violation of the

constitution. The state attempted to justify

affirmation of the death sentence using the

same Zant v. Stephens argument made by

the Commonwealth in this case, namely that

there were other valid aggravating circum-

stances that would independently support the

sentence. The Supreme Court unanimously

rejected the argument, however, finding that

the error “extended beyond the mere invali-

dation of an aggravating circumstance sup-

ported by evidence that was otherwise ad-

missible. Here the jury was allowed to con-

sider evidence that has been revealed to be

materially inaccurate.” 486 U.S. at 590, 108

S.Ct. at 1989

In Tuggle’s case, the Ake violation put

improper and highly prejudicial material be-

fore his sentencing jury. The Common-

wealth cites no case in which a court has

found that an Ake violation was cured be-

cause there were other statutory a gravating

circumstances. This fact is explained be-

cause an Ake violation cannot be cured by a

mere review of the record. The violation, by

depriving a defendant of needed assistance,

thwarts his very ability to make a record on

a critical point or even to rebut the evidence

marshalled against him Therefore, the

court finds that the petition must be granted

on this ground.

2 The Pathologist [ss i@

a The Exhaustion Requ: rement

Petitioner contends that this claim is ex

hausted because it was presented to the Vir

n the same fashion as Zant. While the petition

ers in each case challenged the validity of the

vileness aggravating circumstance found by

the trial juries, no improper evidence was admit

ted im support of the challenged circumstance

In fact. evidence as to ‘vileness' was properly

before the juries because of evidence admitted

during the guilt phase of their trials These

cases do not resolve the issue explicitly raised in

SUPPLEMENT

ginia Supreme Court in his state h

tion. Although respondents ack

that the claim was raised in state

they contend that the claim is pre

barred because petitioner failed to raige

claim on direct appeal. Moreover, respon.

dents point out that the Virginia Sunes

Court expressiy found the claim to be ban

under Virginia's procedural default

Slayton v. Parrigan, 215 Va. 27, 206 SE

680 (1974), cert. denied, 419 US. 110g,’

The,

S.Ct. 780, 42 L.Ed.2d 804 (1975).

has reviewed the record and has de

that respondents’ assertions are correct.

(5) It is well-settled that failure ean

ply with a state procedural rule will result in

a procedural bar, unless the petitioner makes

a showing of cause and prejudice or actna]

innocence. Harris v. Reed, 489 U.S. 255, 109

S.Ct. 1088, 108 L.Ed.2d 308 (1989). The

cause and prejudice standard applies to nop.

compliance with appellate rules, including the

failure to assign a claim as error on appeal.

Murray v. Carrier, 477 U.S. 478, 106 S.Cy

265°, 91 L.Ed2d 397 (1986). In this Case,

petitioner contends that the cause for his

default was his trial attorney's ineffective

assistance of counsel at trial. Because attor-

ney error st. rt of constitutional ineffective.

ness does not constitute cause, Carrier, 477

U.S. at 487-88, 106 S.Ct. at 2644-45, the

determination that there is cause for the

default necessarily requires a determination

that petitioner's attorney was ineffective un-

der Stricklend v. Washington, 466 U.S. 668,

104 S.Ct. 20562, 80 L.Ed2d 674 (1986),

Therefore, this claim will be addressed in

petitioner's ineffective assistance of counsel

claim (Claim 7)

(6) As to the actual innocence prong, the

court views the failure to appoint an indepen-

dent pathologist as just one example of the

Zant, of how to analyze a death sentence sup

ported by an unconstitutional aggravator for

which evidence was improperly admitted. See J

Briley v Bass, 750 F 2d 1238, 1245 n. 12 (4th

Cir. 1984) (pointing out that Zar result inappli-

cable if ‘invalid aggravating circumstance were

supported by material evidence improperly be-

tore the jury

habeas ac

icknowledge

ate habeas.

rocedurally

tO raise the

er, respon

a Supreme

) be barred

ut doctrine

205 S.E.2d

5. 1108, 95

The court

determined

correct.

ire to com

ul result in

»ner makes

2 or actual

5. 255, 109

389) The

ies to non

cluding the

on appeal

106 S.Ct

this case,

se for his

ineffective

ause attor-

ineffective

urrier, 477

44-45, the

se for the

ermination

fective un-

i U.S. 668,

74 (1984)

iressed in

of counsel

prong, the

n indepen-

iple of the

vtence sup-

ravator for

ted. Se: /

n. 12 (4th

ult inappli

tance were

roperly be-

Cite as 654 F Supp. 1229 (W.D.Va. 1994)

trial court's extreme willingness to side-step

peulioners constitutional mghts to ensure a

conviction. However, by itself, petitioner has

failed to demonstrate by clear and convincing

evidence that but for the failure to appoint an

independent pathologist, no reasonable juror

would have found petitioner eligible for the

death penalty. Sawyer v. Whitley, — U.S

——, 112 $.Ct. 2514, 120 L.Ed.2d 269 (1992)

Consequently, the court finds that the actual

innocence prong is not met and the bar can

not be removed on this basis. See Harris 1

Reed, supra.

2) Tuggle’s right to a trial by an impartial

jury was violated by the conduct of the

trial court and the prosecution

{[7] Petitioner contends that his right to a

trial by an impartial jury was violated by

inter alia, pre-trial publicity, the failure of

the trial court to grant a change of venue

contact of the jurors before the trial by the

media and law enforcement officials, the trial

court's failure to allow adequate voir dire

concerning the jurors’ exposure to publicity

or other contacts, and the trial court's refusal

to allow challenges for cause.

The charge against Tuggle was notorious

in Smyth County, a rural county in southwest

Virginia." The case provoked an outpouring

of articles before trial. A number of the

articles discussed the fact that petitioner had

been convicted of a prior murder and a few

contained the false report that the murder

also involved a rape. Other articles men

tioned that Tuggle was a suspect in the rape

of a teenage girl for which he was never

charged. Based on the extensive pretrial

publicity, Tuggle moved for a change of ven-

ue. The trial court refused to grant the

motion, but stated that it would consider the

11. Even today, almost nine years after the trial, a

framed copy of Tuggle’s death warrant is on

display on the wall of the Circuit Court Record

Room. No orders or pleadings from any other

case in Smyth County history are displayed pub

licly in the courthouse

12. Petitioner contends that this contact was en

couraged by the prosecutor because he was so

dissatisfied with the jury's verdict in the earlier

murder trial

13. Petitioner contends that the trial court's refus

al to allow questioning about knowledge of news

motion again if it was clear at trial that an

impartial jury could not be found

When the jury was impanelled, eight mem

bers of the panel had to be dismissed in the

presence of the remaining panel members

because they indicated that they had already

formed an impression as to Tuggle’s guilt

Of the twenty remaining panel members, half

indicated that they had read newspaper art’

cles about Tuggle’s prior conviction, six ac-

knowledged that they remembered details

from the articles, and five had served as

jurors in the earlier murder trial and had

been contacted by the media or the Sheriff's

Department to explain their lenient verdict."

However, despite these facts, the court re-

fused individualized voir dire “ and only al

lowed trial counsel to ask whether a juror

was subject to bias as a result of anything he

or she had read."

At the close of voir dire, the judge de

clared the panel qualified and refused to

allow Tuggle’s counsel to make any chal-

lenges for cause."* The extreme restrictions

on voir dire left defense counsel bereft of

critical information needed to exercise per-

emptory challenges. Consequently, the jury

that ultimately heard the case contained five

individuals who had read articles concerning

the case, four who had read the article that

contained the false rape information, and

three who had been subject to pretrial con

tacts

Petitioner contends that each of these er-

rors, separately and in combination, deprived

him of his right to an impartial jury in viola

tion of his Sixth, Eighth and Fourteenth

Amendment rights. Petitioner claims that

paper articles outside the presence of the other

panel members prevented defense counsel from

exploring the effects of pre-trial publicity on the

jury panel without exposing the other members

of the panel to the prejudicial information

14. Petitioner contends that the limitations on

voir dire were in violation of Va.Code § 8.0!

358

1S. The Virginia Supreme Court acknowledged

that such refusal was error. Tuggle v. Common

wealth, 228 Va. at 505-06, 323 S.E.2d 539

—

~—e~-«

1240 84 FEDERAL SUPPLEMENT

these issues have all been exnausted because

they were raised at trial and presented to the

Virginia Supreme Court.”

The pretrial influences on Tuggle’s jury

and the trial court’s restriction upon coun-

sel’s efforts to discern them bear great simi-

larity to many cases in which courts have

found that a defendant’s right to an impartial

jury has been abrogated. In the area of

improper contact with jurors, the Fourth Cir-

cuit reversed a capital sentence due to a

comment made by a third party to a juror

during the course of trial. Stockton r. Virgi-

nia, 852 F.2d 740 (4th Cir.1988) (during crim-

inal trial, any private communication by out-

sider with juror is presumptively prejudicial),

cert. denied, 489 U.S. 1071, 109 S.Ct 1354,

103 L.Ed.2d 822 (1989). In this case, the

contacts of media with members of Tuggle’s

jury were improper.

As to petitioner’s voir dire claim, the Unit-

ed States Supreme Court has held that ade-

quate voir dire is part of a defendant's Sixth

Amendment right to an impartial jury. Mor-

gan v. Illinois, —— U.S. ——, 112 S.Ct. 2222,

119 L.Ed.2d 492 (1991). The Fourth Circuit

has also recognized that a trial court abuses

its discretion if its limitation of voir dire

hinders “defendant’s opportunity to make

reasonable use of his challenges.” United

States vr. Brown, 799 F.2d 134, 136 .4th Cir.

1986). The constitutional entitlemer: to ade-

quate voir dire is particularly critical in a

capital murder trial. Turner v. Murray, 476

U.S. 28. 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986).

Although a capital defendant is not automati-

cally entitled to individualized voir dire on

pre-trial publicity, such voir dire might be

necessitated where a significant nu=mber of

panel members indicated a pre-exist-ng opin-

ion about the case and where the crime

16. Petitioner acknowledges that the Vi-ginia Su-

preme Court held that any claim of prosecutorial

misconduct was procedurally barred >e< ause it

was not raised at trial or on direct appeal. How-

ever, petitioner contends that this is mot a bar

because the procedural default rule armies oniy

to claims for which there was a “full and fair

opportunity” to have a hearing at trial Slayton,

215 Va. at 29, 205 S.E.2d 680. In this case, the

trial court's refusal to allow any voir cre on the

subject and refusal to summons the reporter who

occurred in a rural area. Mu'Min v. Virgi.

nia, 500 U.S. 415, 427-22. 111 S.Ct. 1899.

1907-08, 114 L.Ed.2d 493 (1991).

Not only are the factors discussed in

Mu'Min present in this case, but the com-

plete failure of the trial court to allow any

challenges for cause deprived Tuggle of the

normal protections inherent in the jury selec-

tion process. The complete failure of the

trial court to allow sufficient inquiry prevent-

ed Tuggle’s counsel from protecting Tuggle’s

right to an impartial jury. The failures were

particularly notable because this was a capi-

tal murder trial. Such errors violated Tug-

gle’s Sixth, Eighth and Fourteenth Amend-

ment rights.

Although respondents contend that the al-

legations petitioner raises in this claim all

involve the propriety of determinations made

by the trial judge which should be “reviewed

for abuse of discretion only.” see, ¢.g., Unite

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.