# Opposition Brief — Tuggle v. Netherland > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0784%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1995 - **Citation:** 516 U.S. 10 ## 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 ul 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 iv 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 4 ~~" “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 10 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 il 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). 12 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 13 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 14 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, 15 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 18 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. 19 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). 20 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. 21 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. 22 — 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 23 No. Re IN THE SUPREME COURT OF THE UNITED STATES October Term, 1994 LEM DAVIS TUGGLE, Petitioner v. 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 v. 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? a 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? ii 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 13 7 ; 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. B. 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 4 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. 2 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’? | l 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: | I. 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 &2 le | = 1 is matter came on to be heard on the 18th day of November, 1983, before the Honorable J. Aubrey Matthews, _— to 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 13 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 24 25 ——— ae lp Receiv Ss fled, th's rh: 2 Mie 19 aoe, | Be PLT emiity + -—~—ee- « ———e -- . - “ee 24 \ Gunter « Direct by Lowe ) 392, Q. A. Q. A. Q. 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. . 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 is 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, v. 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 = rT Fy 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 Hi P) der de he wi was c not vi rights 12. Hi: y eral c 13. He R 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 | 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 y) : 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 © lenient on " 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 Y 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 againely been exhausted through presentation to the Virginia Supreme Court on direct appeal Although pe men was foun seminal fluid vagina.” Th entrance to ti testimony com curred. The + said that the b etration by “s« object, someth (8,9) In V quires evidenc« ed by the peni a strong circu was no penet wealth, 192 V Coles v. Peyto: denied, 393 U 120 (1968) has, in non-ca} victions even Vv ry and unequ penetration ot! occurred. Sir 200 Va. 855, 1! to be “commor ries could hav than penetrat Petitioner s seminal fluid i lack of any wu there was in Tuggle of rape claim is parti court’s refusal independent | fend against t nally contends of rape, ther defense coun: independent | fully defende: 18. At the tim companied b Virginia 19. At the pre! had testified tent with per 20. The Virgi evidence was exposed his iscussed in it the com- » allow any ggle of the jury selec- ure of the ry prevent- ag Tuggle’s ilures were was a capi- lated Tug- th Amend- hat the al- ; claim all tions made “reviewed g., United (llth Cir. ’ discretion will grant of habeas ice to con- 7 the com vhich Tug- ng or sub- Va.Code een unac- would not iia. Thus, this case. nee in the conviction able to dis- | encourag- ) procedur- F.2d 1111, 440 US (1979) exhausted Supreme TUGGLE v. THOMPSON 1241 Cite as 854 F Supp. 1229 (W_D.Va. 1994) Although petitioner acknowledges that se- men was found in the victim’s rectum, no seminal fluid was found in or around the vagina." There was a smal! bruise at the entrance to the vagina, but there was no testimony concerning when the bruise oc- curred. The state’s pathologist, Dr. Oxley, said that the bruise was consistent. with pen- etration by “something, a penis, a finger, an object, something.” ” {8,9} In Virginia, a rape conviction re- quires evidence that the vagina was penetrat- ed by the penis. The lack of seminal fluid is a strong circumstance indicating that there was no penetration. McCall v. Common- wealth, 192 Va. 422, 65 S.E.2d 540 (1951); Coles v. Peyton, 389 F.2d 224 (4th Cir.), cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968). The Virginia Supreme Court has, in non-capital cases, reversed rape con- victions even where they involve vaginal inju- ry and unequivocal expert testimony that penetration of the vagina by a penis had occurred. Strawderman v. Commonwealth, 200 Va. 855, 108 S.E.2d 376 (1959) (finding it to be “common knowledge” that vaginal inju- ries could have been caused by means other than penetration, such as fondling). Petitioner argues that, given the lack of seminal fluid in or around the vagina and the lack of any injury or bruise in the vagina, there was insufficient evidence to convict Tuggle of rape. Petitioner contends that this claim is particularly critical given the trial court's refusal to allow the appointment of an independent pathologist to help Tuggle de- fend against the rape charge. Petitioner fi- nally contends that, given the scant evidence of rape, there is a strong likelihood that defense counsel, with the assistance of an independent pathologist, could have success- fully defended the rape charge. 18. At the time Tuggle was tried, homicide ac- companied by sodomy was not a capital crime in Virginia 19. At the preliminary hearing, the state examiner had testified that the bruise was equally consis- tent with penetration or manipulation 20. The Virginia Supreme Court held that the evidence was uncontroverted that petitioner had exposed his penis and that the victim's vagina Respondents, on the other hand, assert that reasonable jurists could and did find sufficient evidence to conclude that a rape occurred in this case. Respondents argue that under Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560 (1979), a federal habeas applicant is entitled to relief only if it is found upon a review of the record evidence adduced at trial, in the light most favorable to the prosecution, that no rational trier of fact could have found guilt beyond a reasonable doubt. Respondents argue that the Virginia Supreme Court's judgment that the evidence was sufficient is “entitled to deference, by this court.” /d at 322, 99 S.Ct. at 2790-91; see 42 U.S.C. § 2254(d).” Even apart from Tuggle’s inability to pro- duce his own trial evidence due to the denial of expert assistance, the evidence that was produced cannot show guilt beyond a reason- able doubt under the elements of the crime of rape as defined and applied by the Virgi- nia courts. In this case, there was no semen in the vagina. There were small bruises found outside the vagina, but there v ~re no injuries found in the vagina and there was no testimony concerning when the bruises oc- curred. The state pathologist testified that the bruises could have been caused by pen- etration of “something, a penis, a finger, an object, something.” With such evidence, no rational fact-finder could have found proof beyond a reasonable doubt. That the jury found rape in this case is most likely ex- plained by the inaccurate pre-trial informa- tion concerning other rapes supposedly com- mitted by Tuggle, as well as the public pres- sure surrounding this notorious case, which was heightened by press contacts with ju- rors, prior to trial. The court grants the petitioner’s petition for habeas relief on this ground. had been penetrated by “something.” Moreover the Court noted that “no evidence in the present case reasonably suggests penetration of the vic- tim's vagina by an object other than the defen- dant's penis.” 228 Va. at 511, 323 S.E.2d at 550. Accordingly, the Court held that “the evi- dence supports the jury's finding of forcible sexu- al intercourse.” 228 Va. at 512, 323 S.E.2d at 550 (citations omitted) pe ee ee me eee i686 SBR i ————e kD kee eS 1242 854 FEDERAL SUPPLEMENr 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 Sizth Amendment rights (10) Petitioner next contends that the State mental health examiner exceeded the scope of the court’s order, as well as petition- er’s waiver, when it examined him as to “future dangerousness,” rather than limiting the examination to the two issues of compe- tency to stand trial and mental state at the time of the offense.** Petitioner contends that, prior to trial, his trial counsel had clari- fied with the Commonwealth’s Attorney and the staff at the hospital that, in accordance with Va.Code § 19.2-169.7, nothing Tuggle said would be used against him at trial unless he elected to assert an insanity defense. Based on the Virginia Code provision and on the conversation with the Attorney General's office, his counsel advised him to cooperate with the evaluation. Petitioner alleges that, either independent- ly or at the urging of the prosecution, Dr. Centor expanded his evaluation of Tuggle to include the issue of whether he posed a future danger to society. No notice of this intent was provided to Tuggle’s counsel, nor did Centor explain to Tuggle that he was expanding his examination into a new topic area not disclosed to counsel. However. Centor did ask Tuggle to sign a waiver form and Tuggle complied.“ After conducting the evaluation, Centor in- formed the Commonwealth's Attorney that he had developed an opinion concerning Tug- gie’s future dangerousness. Despite the fact that Tuggle did not defend the case based on his mental state, the prosecutor called Cen- tor and he was permitted to testify at trial that there was a high probability that Tuggle 21. This claim is exhausted because it was pre- sented to the Virginia Supreme Court in the direct appeal of Tuggle's case 22. Petitioner contends that this actior. was taken without court order and without advising Tug- gle’s trial counsel that such an evaluation was being made Petitioner further contends that, had trial counsel known such an evaluation was would commit criminal acts of violence in the future. In his closing sentencing argument, the Commonwealth's Attorney relied heavily on Centor’s testimony. In addition. the Vir- ginia Supreme Court relied on the testimony in upholding Tuggle’s death sentence. Petitioner contends that the testimony of Dr. Centor violated the trial court's order Virginia law and the agreement between de. fense counsel and the prosecution. Petition. er further contends that the illegal testimony of Dr. Centor was particularly damaging to him because he was unable to effectively cross-examine Dr. Centor on his testimony, because he was denied the assistance of an independent psychiatrist to present a defense to the “future dangerousness” aggravator or to develop mitigating evidence to counter the prosecution's sentencing evidence Respondents contend that, prior to his ex- amination. petitioner was fully apprised of his rights, he understood his rights, and that he signed a rights waiver form. Respondents argue that the Virginia Supreme Court found that Tuggle’s waiver was done voluntarily, knowingly and intelligently. 228 Va. at 514, 323 S.E2d at 551-52. Respondents assert that this finding of fact is entitled to a pre- sumption of correctness by this court. See 23 US.CA § 2254(d). In Estelle v. Smith. 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), a defendant in a capital case was sent by the court for an examination of his mental competency. Al- though no competency defense was raised at trial, the psychiatrist took the stand in the sentencing phase to testify that the defen- dant represented a danger to society. The Supreme Court reversed the sentence and found that the testimony was obtained in violation of Smith’s Fifth and Sixth Amend- ment rights. Smith’s Fifth Amendment rights were violated because he received no clear warning that his statements to the state going to be made, they would have advised Tug- gle not to cooperate with such an evaluation 23. Petitioner argues that the waiver form ap- peared innocuous because Tuggle had been in- formed by his lawyers that he would be waiving his Fifth Amendment rights only if he put his mental state in issue at trial med His viola Sup *nce in the argument, ed heavily n, the Vir. tesumony nce. stimony of ‘t's order. ‘tween de. Petition- testimony maging to effectively testimony, ince of an a defense ravator or unter the to his ex- ised of his id that he spondents ourt found oluntarily, ‘a. at 514, nts assert to a pre- wrt. See 101 S.Ct. ndant in a rt for an ancy. Al- raised at nd in the he defen- ety. The tence and tained in h Amend- nendment ‘ceived no ) the state ivised Tug- evaluation form ap- id been in- be waiving he put his TUGGLE v. THOMPSON 1243 Cite as 854 F Supp. 1229 (W.D.Va. 1994) medical examiner could be used against him. His Sixth Amendment right to counsel was violated because his defense counsel had not been informed of the investigation. As the Supreme Court found Defense counsel were not notified in advance that the psychiatric investigation would encompass the issue of their client's future dangerousness, and respondent was denied the assistance of his attorneys in making the significant decision of [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0784%3A3. Public record. Not legal advice.