Appendix — Evans v. Thompson (No. 89-516)

supreme Court, V8,

FILED

sep 27 ims

JOSEPH F RFANIGL, JA:

CLERK

89-513

No.

IN THE ——————

Supreme Court of the United States

OCTOBER TERM, 1989

WILBERT LEE EVANS,

Pe 4 tione r.

CHARLES THOMPSON, Superintendent,

Mecklenburg Correctional Center,

) ;

Respondent.

i

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ARTHUR F. MATHEWS *

THOMAS F. CONNELL

MARK D. CAHN

WILMER, CUTLER & PICKERING

2445 M Street, N.W

Washington, D.C. 20037-1420

(202) 663-6000

JONATHAN SHAPIRO

1013 Princess Street

Alexandria, Virginia 22314

(703) 684-1700

( ounsel ror P rar

September 27, 1989 * Counsel of Record

Date

8/28/89

8/2/89

8/4/88

4/17/81

12/81

or

6/1/81

6/1/81

9/4/81

INDEX TO APPENDIX

Order of United States Court of Appeals

for the Fourth Circuit, in Evans v. Thomp-

son, No. 88-4007, Denying Petition for Re-

hearing and Suggestion for Rehearing En

fa Re AE SOS en

Opinion of United States Court of Appeals

for the Fourth Circuit, in Evans v. Thomp-

son, No. 88-4007, Affirming Judgment of

District Court and Dismissing Petition for

a Writ of Habeas Corpus .............. i

Opinion of United States District Court

for the Eastern District of Virginia, in

Evans v. Thompson, No. 87-0622-R, Dis-

missing Petition for a Writ of Habeas

SN sachin at cca ciincttcneaeneasichannicea bdediiiabacsAsusiens

Memorandum, S. Randolph Sengel, Assist-

ant in the Commonwealth Attorney’s Office

FF EEE eneeoen a aie

Trial Transcript, Commonwealth v. Evans,

et I So i eaees

—Colloquy Between Court and Counsel

Deru renee Freee .....................:....

—Summation and Rebuttal of Common-

wealth Attorney John Kloch During

Penalty Phase (excerpts) —.................

Post-Sentence Report, Commonwealth v.

Evans, No. F-5105 (excerpts) .....................

Sentencing Transcript, Commonwealth v.

Evans, No. F-5105 (excerpts) .....................

Order of Hon. W.R. Wright, Jr., sentenc-

ing Evans to Death, Commonwealth v.

Evans, No. F-5105

Brief on Behalf of the Commonwealth,

Evans v. Commonwealth, Rec. No. 811056,

Virginia Supreme Court (excerpts) ..........

la

2a

17a

29a

3la

3la

4la

42a

46a

48a

Date

3/1/82

1/19/83

3/3/83

ii

INDEX—Continued

Brief of Respondent in Opposition to

Granting of Writ of Certiorari, Evans v.

Commonwealth, No. 81-6131, United States

Supreme Court (excerpts) 0.000.000...

Petition for Writ of Habeas Corpus, Evans

v. Mitchell, No. 7371 (excerpts) .................

Amended Petition for a Writ of Habeas

Corpus, Evans v. Mitchell, No. 7371 (ex-

COTES in cccnpscevttiiisijncnsibintaiinnedinins Vnitr da.

Letter, Jonathan Shapiro to Jerry P.

Rl ater a te TE cc.) oe

Petitioner’s Bill of Particulars, Evans v.

Mitchell, No. 7371 (excerpts) —...................

Letter, Jonathan, Shapiro to Jerry P.

OT CROLL eo RD

Motion for Leave to Amend, Evans v.

Mitchell, No. 7371 (excerpts) ....................

Order of Hon. W.R. Wright, Jr., Evans v.

Mitchell, No. 7371, Accepting for Filing

Petitioner’s Second Amended Petition for

a Writ of Habeas Corpus ............

Letter, J. Russell Nipper to Jerry P. Slon-

aker (attaching letter of 1/7/8[3], Nipper

to Shapiro; letter of 1/3/83, Shapiro to

Clerk of Court; and appellate order, State

v. Wilbert Lee Evans)

Commonwealth’s Answer to Second

Amended Petition, Evans v. Mitchell, No.

7371 (excerpts) ..... TIRE pacenceonab comets

Letter, Jerry P. Slonaker to Hon. W.R.

Wright, Jr., confessing error ..................

Page

54a

58a

62a

66a

75a

77a

83a

Date

9/21/83

10/12/83

iii

INDEX—Continued

Hearing Transcript, Commonwealth v.

Evans, No. F-5105 (excerpts) -

—Testimony of John E. Kloch

—Testimony of Stefan C. Long

—Testimony of Blair Brown ..................------

—Testimony of Jerry P. Slonaker ......

Order of Hon. W.R. Wright, Jr., authoriz-

ing resentencing, Com monwealth v. Evans,

SRR So aes On

Trial Transcript, Commonwealth v. Evans,

No. F-5105 (excerpts) ....

Newspaper Articles Concerning Mecklen-

burg Prison Uprising and Hostage-Taking

Page

9la

92a

103a

109a

llla

118a

12la

124a

Note: The portions of the record included in this Appendix are

reproduced as they appear in the original documents. To

the ex-

tent that the originals include typographical errors, those errors

appear here as well.

———

la

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 88-4007

WILBERT LEE EVANS,

Petitioner-A ppellant

CHARLES THOMPSON, Superintendent,

Respondent-A ppellee

ON PETITION FOR REHEARING WITH

SUGGESTION FOR REHEARING IN BANC

[Filed Aug. 28, 1989]

The appellant’s petition for rehearing and suggestion

for rehearing in bane were submitted to this Court. As no

member of this Court or the panel requested a poll on

the suggestion for rehearing in banc, and

As the panel considered the petition for rehearing and

is of the opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and

suggestion for rehearing in banc are denied.

Entered at the direction of Judge Wilkinson with the

concurrence of Judge Hall and Judge Doumar, United

States District Court Judge.

For the Court

s/ John M. Greacen

JOHN M. GREACEN

Clerk

2a

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 88-4007

WILBERT LEE EVANs,

Petitioner-A ppellant,

versus

CHARLES THOMPSON, Superintendent,

Respondent-A ppellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond

Robert R. Merhige, Jr.,

Senior District Judge—(CA-87-622-R)

Argued: March 9, 1989 Decided: August 2, 1989

Before HALL and WILKINSON. Circuit Judges, and

DOUMAR, United States District Judge for the Eastern

District of Virginia, sitting by designation.

Thomas Francis Connell (Arthur F. Mathews. Thomas W.

Jeffrey, WILMER, CUTLER & PICKERING: Jonathan

Shapiro on brief) for Appellant. Robert H. Anderson. III

(Mary Sue Terry, Attorney General of Virginia; Donald

R. Curry, Senior Assistant Attorney General on brief)

for Appellee.

WILKINSON, Circuit Judge:

Petitioner was convicted of capital murder and sen-

tenced to death. Following a confession of error by the

ace a ee

3a

prosecution, he was resentenced to death by a new jury.

Petitioner contends that his resentencing was barred by

the Ex Post Facto Clause, the Equal Protection Clause,

and the Due Process Clause. He further argues that

during resentencing he was denied his constitutional right

to confront and cross-examine witnesses and that the

trial judge improperly instructed the jury. Finally, he

claims ineffective assistance of counsel both on direct

appeal and during his first trial.

The district court rejected petitioner’s claims. We

affirm.

I.

On January 27, 1981, petitioner Wilbert Lee Evans |

shot and killed Deputy Sheriff William Truesdale while

attempting to escape from state custody. Truesdale was

escorting petitioner, at the time a North Carolina prisoner,

to Alexandria, Virginia, where he was to testify as a

witness for the Commonwealth of Virginia. Petitioner

had pretended to be a willing witness for the Common-

wealth for the sole purpose of escaping during his trans-

portation from North Carolina to Virginia. He planned

to kill anyone who attempted to prevent his escape and

acted on this intent when he killed Truesdale.

and sentenced to death in the Circuit Court of Alexandria,

Virginia. The Supreme Court of Virginia affirmed his

conviction and death sentence on December 4, 1981. On

March 22, 1982, the Supreme Court denied certiorari.

In June 1981, petitioner was convicted of capital murder

|

In April 1982, petitioner filed a petition for a writ of

habeas corpus in Alexandria Circuit Court. He amended

his petition in May 1982 and again in December 1982.

On April 12, 1983, the Commonwealth formally con-

fessed error in petitioner’s sentencing proceedings and

acknowledged that his death sentence should be vacated

because erroneous evidence of his prior convictions had

been admitted at trial. The circuit court vacated peti-

4a

tioner’s sentence and directed that a hearing be held to

determine whether petitioner should be resentenced by a

new jury or have his sentence reduced to a life term.

Following a determination on October 12, 1983 that re-

sentencing under the amended statute could proceed, the

court impaneled a new jury which heard evidence of peti-

tioner’s history of violent criminal conduct. That jury

recommended the death penalty based upon a finding of

petitioner’s “future dangerousness.” On March 7, 1984,

the trial court imposed the death penalty. The Virginia

Supreme Court affirmed the sentence and the United

States Supreme Court denied certiorari.

In May 1985, petitioner filed a third amended petition

for a writ of habeas corpus in Alexandria Circuit Court.

The circuit court dismissed his petition on May 19, 1986.

The Virginia Supreme Court denied review as did the

United States Supreme Court.

On October 5, 1987, petitioner filed for a writ of habeas

corpus in the Eastern District of Virginia. In response

to petitioner’s request for discovery of the Common-

wealth’s files, the court conducted an in camera review

of the files and, finding nothing relevant to petitioner’s

assertions, denied his request. On August 4, 1988, the

court rejected Evans’ petition.

Petitioner appeals.

IT.

Petitioner contends there are three bars to his re-

sentencing: A) the Ex Post Facto Clause; B) the Equal

Protection Clause; and C) the Due Process Clause. We

address each argument in turn.

A.

On March 28, 1983, Virginia enacted emergency legis-

lation, amending its procedures for trial by jury in

capital cases to permit capital resentencing by a newly

impaneled jury where a prior death sentence was vacated

5a

due to sentencing errors. Va. Code Ann. § 19.2-264.3C.

Prior to this amendment, if the Commonwealth failed to

secure a valid death sentence due to errors in the sen-

tencing process it was foreclosed from seeking capital re-

sentencing and the defendant received an automatic sen-

tence of life imprisonment. Patterson v. Commonwealth,

283 S.E.2d 212 (Va. 1981). Petitioner contends that to

resentence him to death pursuant to the March 1983

legislation, when both his offense and trial occurred before

that date, retroactively deprives him of his right to have

his death sentence converted to life imprisonment. We

hold, however, that no violation of the Ex Post Facto

Clause occurred.

The Ex Post Facto Clause exists to assure individuals

fair notice of the nature and consequences of criminal

behavior and to prevent the alteration of preexisting rules

subsequent to the commission of an act. Two elements

must exist for a law to fall within the ex post facto

prohibition: 1) the law “must be retrospective, that is,

it must apply to events occurring before its enactment,”

and 2) “it must disadvantage the offender affected by

it.” Weaver v. Graham, 450 U.S. 24, 29 (1981) (foot-

notes omitted). Central to the ex post facto inquiry is

whether the law merely changes “ ‘modes of procedure

which do not affect matters of substance,’” and hence is

permissible; or whether it impacts on defendant’s “ ‘sub-

stantial personal rights,’” and thus is prohibited. Dob-

bert v. Florida, 432 U.S. 282, 293 (1977), quoting Beazell

v. Ohio, 269 U.S. 167, 171 (1925). “[N]o ex post facto

violation occurs if the change in the law is merely pro-

cedural and does ‘not increase the punishment, nor change

the ingredients of the offence or the ultimate facts neces-

sary to establish guilt.’” Miller v. Florida, 107 S. Ct.

2446, 2452-53 (1987), quoting Hopt v. Utah, 110 USS.

574, 590 (1884). See also United States v. Juvenile Male,

819 F.2d 468, 470-71 (4th Cir. 1987); United States v.

Mest, 789 F.2d 1069, 1071 (4th Cir. 1986).

6a

The 1983 amendment does no more than change the

procedures surrounding the imposition of the death pen-

alty. It provides only that if a capital sentence is set

aside, then a resentencing before a new jury can be held.

When the offense was committed, the “willful, deliberate

and premeditated killing of a law-enforcement officer...

for the purpose of interfering with the performance of

his official duties” was an offense for which the death

penalty could be imposed. See Va. Code Ann. §§ 18.2-31(f);

18.2-10(a). Fair warning of punishment was thus af-

forded petitioner. The change in § 19.2-264.C3 was merely

an “adjustment[{] in the method of administering [peti-

tioner’s] punishment that [was] collateral to the penalty

itself.’ Evans v. Commonwealth, 323 S.E.2d 114, 119

(Va. 1984).

In a case analogous to the present one, Dobbert v.

Florida, 432 U.S. 282 (1977), a capital sentencing stat-

ute in effect when Dobbert committed murder was later

held to be invalid. Dobbert, who had been sentenced to

death pursuant to a subsequent statute, under which the

judge had overruled the jury’s recommendation of life

imprisonment, argued that application of the new sentenc-

ing law violated his substantial rights. The Court con-

cluded that ex post facto concerns were satisfied because

the applicable statute when Dobbert committed murder

warned him of the penalty Florida prescribed for first-

degree murder. Jd. at 298. The test of whether a change

in law ran afoul of the Ex Post Facto Clause was not

whether it worked to the detriment of a particular de-

fendant. Rather, it was whether the changes “made

criminal a theretofore innocent act,” or “aggravated a

crime previously committed,” or “provided greater punish-

ment,” or “changed the proof necessary to convict.” /d.

The Virginia amendment neither increased the punish-

ment attached to petitioner’s crime, nor altered the in-

gredients of the offense, nor changed the ultimate facts

7a

necessary to establish petitioner’s guilt. It thus survives

petitioner’s ex post facto challenge.

Petitioner’s reliance on Kring v. Missouri, 107 U.S.

221 (1883), is misplaced. Unlike in Kring, the peti-

tioner here has not been convicted of a lesser offense for

which the death penalty was not authorized, nor has he

been acquitted of any offense for which the death penalty

was authorized. Moreover, unlike Kring, the petitioner

was not deprived of a defense available to him when he

committed murder. Kring simply provides that if at the

time of the offense, a defendant is on notice he can

never be subjected to a death sentence, imposition of a

death sentence violates the Ex Post Facto Clause. Here

petitioner was on notice when he murdered Deputy Sheriff

Truesdale that the imposition of death was a possible

penalty.

Petitioner contends that the new Virginia law abro-

gated his right to be sentenced by the same jury which

decided his guilt. He argues that a juror who sat through

both phases of a capital trial might entertain doubts

which, though not enough to defeat conviction, might

convince him that the ultimate penalty should not be

exacted. “Residual doubts” at the penalty stage of a

capital trial, however, are constitutionally insignificant.

Franklin v. Lynaugh, 108 8. Ct. 2320, 2327 n.6 (1988).

Moreover, it is possible that a juror less familiar with

first-hand evidence of the crime and, having not just

found petitioner guilty, may be less inclined to impose the

maximum penalty.

The Virginia amendment represents a continuing effort

by the Virginia Supreme Court, Patterson v. Common-

wealth, 283 S.E.2d 212 (Va. 1981), and the Virginia

legislature to balance a defendant’s right to fair sen-

tencing with society’s interest in not alleviating the con-

sequences of criminal acts when a sentencing error oc-

curs. See Burks v. United States, 437 U.S. 1, 15 (1978).

8a

It promotes the basic aspiration of criminal justice to

achieve results that are error-free. The Virginia Supreme

Court has recognized the ameliorative purposes of the

enactment:

the new law provides for impanelling a new jury,

free of any taint arising from errors during the

first trial, to redetermine the defendant’s punish-

ment. A defendant convicted of capital murder is

entitled to a fair and impartial determination of his

punishment: he will not be heard to complain that

a change in the law which protects that right is not

wholly beneficial to him.

Evans, 323 S.E.2d at 119.

The Ex Post Facto Clause does not confer upon this

defendant an unalterable right to be sentenced by the

jury which found his guilt or never to be resentenced in

any fashion. To confer such a right would have serious

implications for the workings of our federal system. That

system presupposes that states will routinely undertake

to improve their methods of jury selection, their rules

of evidence, the availability of appeals and post-conviction

proceedings, and other procedures of their criminal jus-

tice systems. To hold that every change with an arguable

adverse impact upon the outcome of a criminal case has

ex post facto implications would seriously inhibit this

process of reform, because legislation generally has an

effective date of enactment independent of the date of

the commission of an act. The elasive nature of the ex

post facto prohibition derives from the fact that law does

and should evolve. The Supreme Court has long empha-

sized that “the accused is not entitled of right to be tried

in the exact mode, in all respects, that may be prescribed

for the trial of criminal cases at the time of the com-

mission of the offence charged against him.” Thompson

v. Utah, 170 U.S. 343, 351 (1898). We reject petitioner's

attempt to create such a right in this instance.

9a

B.

Petitioner also argues that the Equal Protection Clause

bars his capital resentencing. He claims that he and the

defendant in Patterson v. Commonwealth, 283 S.E.2d 212

(Va. 1981), who received an automatic sentence of life

imprisonment at his resentencing, were identically situ-

ated in all respects, except that Patterson’s death sen-

tence was vacated prior to enactment of the amendment.

Treating him differently than Patterson, he contends, did

not rationally further any legitimate state objective.

We find no merit to this contention. Because capital

defendants are not a suspect class for equal protection

purposes, Williams v. Lynaugh, 814 F.2d 205, 208 (5th

Cir. 1987), legislative classifications must be presumed

valid and sustained if they are “rationally related to a

legitimate state interest.” City of Cleburne, Texas v.

Cleburne Living Center, Inc., 473 U.S. 432, 440 (1985).

In making the rational basis inquiry, we must determine

if classifying Patterson and petitioner differently has a

“ ‘fair and substantial relation to the object of the [1983

amendment].’” Eisenstadt v. Baird, 405 U.S. 438, 447

(1972), quoting Reed v. Reed, 404 U.S. 71, 75-76 (1971).

The purpose of the 1983 amendment is straightfor-

ward: to establish new procedures for resentencing in

capital cases where a prior death sentence is vacated.

Like Florida in Dobbert, the Commonwealth “had to draw

a line at some point,” Dobbert, 432 U.S. at 301, and to

apply the amendment only to those defendants whose

sentences were vacated following the amendment’s enact-

ment is entirely rational. As the district court recognized,

it ties the amendment’s application to the event which

necessitates resentencing: vacating the original sentence.

Accordingly, classifying petitioner and Patterson dif-

ferently is permissible.

10a

C.

Petitioner further argues that prosecutorial miscon-

duct bars this resentencing. He contends that state prose-

cutors violated his due process rights when they know-

ingly proffered false conviction records at his original

sentencing hearing and then deliberately delayed confess-

ing error until after the 1983 amendment was enacted.

We disagree. Pursuant to 28 U.S.C. § 2254(d), a

federal habeas court is required “to accord a presumption

of correctness to state court findings of fact.” Sumner

v. Mata, 455 U.S. 591, 592 (1982); Hunt v. Woodson,

800 F.2d 416, 419 (4th Cir. 1986). In particular, a state

court finding that the government acted in good faith

where defendant alleges he has been the victim of inten-

tional or purposeful government misconduct, is entitled

to a presumption of correctness. Sanderson v. Rice, 777

F.2d 902, 909 (4th Cir. 1985); Rose v. Duckworth, 769

F.2d 402, 405 (7th Cir. 1985). “This deference requires

that a federal habeas court more than simply disagree

with the state court before rejecting its factual deter-

minations.” Marshall v. Lonberger, 459 U.S. 422, 432

(1983). “{I]t must conclude that the state court’s find-

ings lacked even ‘fair support’ in the record.” Id.

Here the record supports the state court’s findings,

upheld by the district court, that the Commonwealth acted

in good faith. See Evans, 323 S.E.2d at 119-121. At an

evidentiary hearing, conducted by the trial court in

response to petitioner’s claims of prosecutorial miscon-

duct, the prosecuting attorney testified he never intended

to deceive the trial judge, the jury, or the defense con-

cerning the true status of petitioner’s record. He also

testified that defense counsel had investigated petitioner’s

prior record, had informed him that they were familiar

with petitioner’s record, and had been given pretrial access

to discovery materials which showed the conviction records

were questionable. Moreover, during the sentencing pro-

ceeding, the prosecutor advised defense counsel of the

lla

discrepancies regarding the convictions and testified that

he assumed defense counsel would explain the error to

the jury during closing argument. In his own argument

to the jury, the prosecutor alluded only to those offenses

for which petitioner had actually been convicted.

Likewise, the assistant attorney general who handled

petitioner’s first appeal and the habeas corpus proceeding

testified that he did not purposefully delay confessing

error until passage of the amendatory legislation. He

noted that he “wanted to be one hundred percent sure”

before confessing error in a capital case, already affirmed

on direct appeal. Nothing in § 2254(d) “gives federal

habeas courts... . license to redetermine credibility of wit-

nesses whose demeanor has been observed by the state

trial court, but not by them.” Marshall, 459 U.S. at 434.

Additionally, the trial court, the Virginia Supreme Court,

and the federal district court conducted an in camera re-

view of the original files in the governor’s office and the

attorney general’s office relating to the drafting, intro-

duction, consideration, and approval of the new legisla-

tion and found nothing to support petitioner’s claim.

To the extent that the prosecutor was guilty of un-

intentional errors of judgment in his handling of the

case, these errors were remedied when petitioner received

a new sentencing proceeding free of false or misleading

evidence. A defendant must show “demonstrable preju-

dice,” that cannot be cured by a “traditional” remedy,

such as resentencing, to obtain the “drastic” remedy that

Evans seeks. United States v. Morrison, 449 U.S. 361,

365 & n.2. Petitioner’s argument that he was demon-

strably prejudiced by resentencing because he was thereby

deprived of an automatic sentence of life imprisonment

is misplaced. Petitioner’s conviction carried the same pos-

sible penalty it did when he committed it.’

1 Petitioner also argues that his resentencing violates the Double

Jeopardy Clause. We disagree. The clause generally does not pro-

——————

12a

ITI.

Petitioner contends that two errors occurred during

his resentencing: 1) he was denied his constitutional

right to confront and cross-examine adverse witnesses

because the prosecution read into the record the 1981

trial transcript testimony of these witnesses, and 2) he

was denied his due process rights because the trial judge

improperly instructed the jury that a sentence of life

imprisonment could be imposed only by a unanimous

verdict. We find neither contention persuasive.

Petitioner’s cross-examination claim must fail because

such a claim implies that the trial court denied a request

to confront and cross-examine adverse witnesses. Peti-

tioner relies upon Tichnell v. State, 427 A.2d 991, 993

(Md. App. 1981), which involved a transcript used

despite defendant’s “vociferous objection.” Here the dis-

trict court expressly found that “[t]he record clearly

shows that Evans’ counsel agreed to the use of a tran-

script at resentencing.” The trial record amply supports

this finding. Moreover, Evans may well have benefited

by agreeing to have the trial transcript read to the

jurors, as opposed to live testimony.’

hibit resentencing where a verdict has been set aside for trial error.

Lockhart v. Nelson, 109 S. Ct. 285, 290-91 (1988). The clause

would operate here only if the error was the product of deliberate

prosecutorial misconduct. Oregon v. Kennedy, 456 U.S. 667, 674-

79 (1982).

The state habeas courts found the Commonwealth acted in good

faith. Because such findings are subject to the mandate of § 2254,

see Rose, 769 F.2d at 405, and no evidence contradicts the findings

of these courts, the Double Jeopardy Clause is inapplicable.

2 Petitioner failed to raise his confrontation claim both at trial

and on direct appeal. When he raised his claim in the state habeas

court, the Commonwealth asserted that the claim had been de-

faulted. The state habeas court dismissed the claim “for the rea-

sons stated in the [Commonwealth’s] answer.” The Virginia Su-

13a

Petitioner’s contention that the trial judge improperly

failed to instruct the jury that under Virginia law a

split decision by a capital sentencing jury automatically

becomes life is also without merit. In response to the

jury’s inquiry of whether a life sentence must be unani-

mous, the trial judge instructed the jury that its “verdict

must be unanimous as to either life imprisonment or

death.” Such instructions accurately state Virginia law,

which requires that the verdict in all criminal prosecu-

tions be unanimous. See Va. Rule 3A:17(a). No obli-

gation exists for the trial judge to inform the jury of

the ultimate result should they fail to reach a verdict.

See Barfield v. Harris, 540 F. Supp. 451, 472 (E.D.N.C.

1982), affd, 719 F.2d 58 (4th Cir. 1983). In addition,

the trial judge’s response to the jury’s inquiry left no

doubt that a non-unanimous verdict would not result in

death.

No “substantial probability” exists that the trial court’s

instruction misled the resentencing jury as to unanimity.

Mills v. Maryland, 108 S. Ct. 1860, 1870 (1988). The

jury was simply told that any verdict must be reached

unanimously: During voir dire, moreover, each juror

was informed that even as a minority of one, he or she

could hold out if convinced that a life sentence was ap-

propriate. At closing, defense counsel reminded the jury

that their sentence must be unanimous. Finally, when

polled individually, each juror affirmed the verdict as

his or her own.

preme Court affirmed this dismissal, finding “‘no reversible error

in the judgment complained of.”

Pursuant to Harris v. Reed, 109 S. Ct. 1038, 1043 (1989). “a

procedural default does not bar consideration of a federal claim on

... habeas review unless the last state court rendering a judgment

in the case ‘clearly and expressly’ states that its judgment rests

on a state procedural bar.” Id., quoting Caldwell v. Mississippi,

472 U.S. 320, 327 (1985). While we think the Virginia courts did

intend to hold petitioner’s claim procedurally barred, we address

the merits of the claim to remove any question with regard to it.

l4a

IV.

Petitioner raises two final claims: 1) that he was

denied his right to effective assistance of counsel on direct

appeal from his 1981 conviction because his counsel failed

to discover and inform the court that his death sentence

was based on false evidence, and 2) that he was denied

his right to effective assistance of counsel during his 1981

trial when his counsel failed to object to the prosecution’s

assertion that he was a multiple murderer.’ We reject

both claims.

Petitioner’s argument of ineffective assistance on direct

appeal fails to meet the criteria of Strickland v. Wash-

ington, 466 U.S. 668 (1984). Under Strickland, peti-

tioner must show that counsel’s performance fell outside

the “wide range of reasonable professional assistance,”

id. at 689, and “that the deficient performance prejudiced

the defense” to an extent “so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.”

Id. at 687. See also United States v. Alexander, 789 F.2d

1046, 1051 (4th Cir. 1986); Roach v. Martin, 757 F.2d

1463, 1476-77 (4th Cir. 1985). This standard applies to

claims against both trial and appellate counsel. Smith v.

Murray, 477 U.S. 527, 535-36 (1986); Griffin v. Aiken,

775 F.2d 1226, 1235-36 (4th Cir. 1985).

Petitioner has failed to overcome the strong presump-

tion that counsel’s performance was reasonable. Prior to

trial, counsel traveled to North Carolina to investigate

petitioner’s record of prior convictions and found them

3 Petitioner also argues that the guilt phase of his trial was

flawed because the trial court permitted the Commonwealth to

change the crime charged from a non-capital to capital offense.

We disagree. Virginia law permits amendments at any time prior

to the verdict, Va. Code Ann. § 19.2-231, so long as the amendment

does not change the “nature or character of the offense charged.”

Here the language of the indictment clearly charged a capital

offense. The amendment merely corrected an error in citation of

the capital murder statute.

15a

in disarray. Accordingly, he objected to some of the

records when they were introduced at trial. Following

the trial, counsel determined what he believed to be peti-

tioner’s most viable arguments and raised them on appeal.

Doing so was sound trial strategy. See Michel v. Louisi-

ana, 350 U.S. 91. 101 (1955). The errors in the certified

conviction records introduced at trial could only be shown

by going outside the trial record. Counsel, however, was

under no duty to go beyond the trial record because

nothing beyond that record would have been cognizable on

appeal. See Guthrie v. Commonwealth, 186 S.E.2d 68,

70 (Va. 1972). See also O'Dell v. Commonwealth, 364

S.E.2d 491, 505 n.8 (Va. 1988).

Additionally, petitioner cannot demonstrate that he

has been prejudiced by counsel’s alleged error. Vacating

his original sentence and affording him resentencing free

of error mooted any claims of prejudice. Hyman v. Aiken,

777 F.2d 938, 941 (4th Cir. 1985), vacated on other

grounds 478 U.S. 1016 (1986). Petitioner cannot show

a “reasonable probability” that the result of the proceed-

ing would have been different but for his counsel’s alleged

errors. Strickland, 466 U.S. at 694.

Likewise, petitioner’s claim that his 1981 trial counsel

improperly failed to object to the prosecution’s assertion

he was a multiple murderer fails Strickland scrutiny.

Pursuant to § 2254(d), see Hoots v. Allsbrook, 785 F.2d

1214, 1219 n.6 (4th Cir. 1986), we must accept the state

habeas court’s express factual! finding that petitioner’s

counsel chose not to object to the prosecutor’s argument

for tactical reasons. See Strickland, 466 U.S. at 689;

Jeffers v. Leeke, 885 F.2d 522, 526 (4th Cir. 1987).

Defense counsel testified that he chose not to object to the

prosecutor’s argument because he felt an objection would

only have emphasized the matter before the jury. As the

district court also noted, “[rJather than draw further

attention to the evidence, defense counsel instead chose to

a

l6a

attack the credibility of the relevant witnesses during

argument.” This is a judgment trial attorneys make

routinely. It does not give rise to a claim under Strick-

land.

For all these reasons, the judgment of the district

court Is

AFFIRMED.

a ry

17a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

Civil Action No. 87-0622-R

WILBERT LEE EVANS,

Petitioner,

Vv.

CHARLES THOMPSON, SUPERINTENDENT.

Respondent.

MEMORANDUM

[Filed Aug. 4, 1988]

This matter comes before the Court on respondent’s

Motion to Dismiss Evans’ Petition for Writ of Habeas

Corpus. The issues have been extensively briefed by the

parties and the Court has heard oral argument. Jurisdic-

tion is premised on 28 U.S.C. § 2254.

Background

In April 1981, Wilbert Lee Evans was tried and con-

victed of capital murder in the shooting death of an

Alexandria deputy sheriff. The jury found Evans guilty

of the willful, deliberate ard premeditated killing of a

law-enforcement officer for the purpose of interfering

with the performance of the officer’s official duties. Va.

Code § 18.2-31(f). Pursuant to the recommendation of

the jury, the Circuit Court for the City of Alexandria

imposed sentence of death. The conviction and death

sentence were affirmed by the Virginia Supreme Court in

December, 1981. Evans v. Commonwealth, 222 Va. 766,

18a

284 S.E.2d 816 (1981), cert. denied, 455 U.S. 1038

(1982) (“Evans I’’).

In April 1982, Evans, represented by new counsel, filed

a state habeas petition in Alexandria Circuit Court.

Evans amended his petition in May 1982, and filed a

second amended habeas petition in December 1982.

On March 28, 1983, the Commonwealth of Virginia

enacted emergency legislation (the “1983 amendment’’)

amending its death penalty statute to permit capital re-

sentencing for cases in which a first death sentence has

been vacated due to constitutional error in the sentencing

phase. Prior to March 28, 1983, Va. Code § 19.2-264.3C

provided for capital sentencing by the same jury which

had determined guilt. In Patterson v. Commonwealth,

222 Va. 653, 283 S.E.2d 212 (1981), the Virginia Su-

preme Court found that the original jury was tainted for

sentencing purposes, and that § 19.2-264.3C therefore pre-

cluded capital resentencing under the circumstances.

Largely in response to Patterson, the Virginia legislature

enacted the 1983 amendment to § 19.2-264.3C, which ex-

pressly permits impaneling a new jury for resentencing

when a death sentence has been set aside.

In April 1983, the Commonwealth by letter formally

confessed error in the sentencing phase of Evans’ April

1981 trial. On May 2, 1983, the trial court granted the

portions of the second amended habeas petition pertain-

ing to the confession of error, and vacated the death

sentence.

Following the Commonwealth’s notice of its intention

to seek reimposition of the death penalty under the

amended statute and the filing of Evans’ motion to bar

resentencing, Judge Wright of the Alexandria Circuit

Court held a hearing on September 21, 1983 to determine

whether resentencing was constitutionally permissible.

Due to Evans’ allegations of prosecutorial misconduct,

Judge Wright conducted a thorough in camera review of

ooo

. ,

19a

the Commonwealth’s files relating to the 1983 amend-

ment, ruled that none of the documents were material

to Evans’ claims, and sealed in the record those docu-

ments which the parties and the Court deemed to be in

any way related to Evans’ claims. On October 12, 1983,

the Court ruled that resentencing under the amended

statute could proceed. The resentencing jury recom-

mended sentence of death, which the Alexandria Circuit

Court imposed on March 7, 1984. The Virginia Supreme

Court affirmed the sentence in Evans v. Commonwealth,

228 Va. 468, 323 S.E.2d 114 (1984), cert. denied, 471

U.S. 1025 (1985) ( “Evans IT’).

In May 1985, Evans filed his third amended state

habeas petition. Judge Kent of the Alexandria Circuit

Court set four of Evans’ claims for a plenary hearing

and dismissed the remainder of the third amended peti-

tion. Judge Kent denied Evans’ motion for recusal, and

following the hearing denied the third amended habeas

petition. The Virginia Supreme Court denied review, as

did the United States Supreme Court. Evans v. Common-

wealth, 107 S.Ct. 3240 (1987) (“Evans III’’).

Evans filed his § 2254 petition with this Court on

October 5, 1987. In response to Evans’ motion for leave

to serve a request for production of documents, the Court

conducted an in camera review of the materials reviewed

previously by Judge Wright. Finding nothing relevant

to the issues in this case, the Court denied Evans’ dis-

covery request.

Evans raises numerous issues in the instant petition.

He charges violation of the Ex Post Facto Clause, prose-

cutorial misconduct, an equal protection violation, ineffec-

tive assistance of counsel at the guilt phase of trial and

on appeal, violation of Confrontation Clause rights at re-

sentencing, an erre’ 20us response by the trial court to an

inquiry by the resentencing jury, and improper refusal

of a state habeas judge to recuse himself.

20a

Discussion

Evans contends that the application of the 1983 amend-

ment to the Virginia death penalty statute, enacted after

his conviction, violates the Ex Post Facto Clause of the

Constitution. He claims that after Patterson, 222 Va.

653, 283 S.E.2d 212, he had a “substantial right” to have

his death sentence reduced to life. Evans asserts that the

1983 amendment retrospectively deprives him of this sub-

stantial right.

The ex post facto prohibition, designed to assure that

criminal laws provide fair warning of their meaning and

effect to the individuals suhject to them, is implicated

when the law is retrospective and disadvantages the of-

fender affected by it. Weaver v. Graham, 450 U.S. 24,

28 (1981). This constitutional protection is directed to

substantial personal rights; although it may work to the

disadvantage of a defendant, a procedural change will

not be found ex post facto. Dobbert v. Florida, 432 U.S.

282, 292 (1977).' In determining whether a legislative

change is substantive, or merely addresses “remedies and

modes of procedure which do not affect matters of sub-

stance,” the Court must examine whether the law in-

creases the punishment or changes the necessary elements

of the offense. Miller v. Florida, 107 S.Ct. 2446, 2452-53

(1987) (quoting Dobbert, 432 U.S. at 293, and Hopt v.

Utah, 110 U.S. 574, 590 (1884) ).

In Dobbert, a defendant who had been sentenced to

death by the trial judge despite the jury’s recommenda-

tion of a life sentence argued that a change in the law

deprived him of “a substantial right to have the jury

1 Dobbert also holds that changes in the law which are on the

whole ameliorative cannot be ex post facto violations. Id. Although

the 1983 amendment cannot be considered ameliorative, Dobbert

makes clear that the procedural and ameliorative nature of a change

of law are independent bases for finding no ex post facto violation.

Id. at n. 6. A procedural change is not ex post facto even if it is

not ameliorative. Jd.

i, i —_

2la

determine, without review by the trial judge, whether

[the death penalty] should be imposed.” 432 U.S. at 292.

Concluding that the crime, the punishment prescribed

therefor, and the quantity or degree of proof necessary

to establish guilt were all unaffected by the change in the

law, the Supreme Court found the change procedural, and

hence not an ex post facto violation. Id. at 292-94 (quot-

ing Hopt, 110 U.S. at 589-90).

Under the test applied in Dobbert and expressly reaf-

firmed in Miller, the change in Evans’ case wrought by

the 1983 amendment must be deemed procedural. The

amendment’s effect is to change the procedures surround-

ing imposition of the death penalty. The crime of which

Evans was convicted carries the same two possible pun-

ishments today that it carried the day he committed it:

death or life imprisonment.? Neither the quantum of

punishment, nor the quantity or degree of proof neces-

sary for imposition of that punishment have been altered

by the 1983 amendment.

Evans relies upon Kring v. Missouri, 107 U.S. 221

(1882) for the proposition that a change of law which

deprives a defendant of an absolute defense* is neces-

sarily “substantial” for ex post facto analysis purposes.

The Kring holding, however, is by no means so sweeping.

The Kring defendant, charged with capital murder, pled

guilty to second degree murder. The Missouri law which

2In contrast is United States v. Juvenile Male, 819 F.2d 468

(4th Cir. 1987), in which the Fourth Circuit found an ez post

facto violation because the change in law, which increased the

punishment for the offense, could not be deemed procedural.

3 Evans claims a “vested right” to a life sentence under Patter-

son, 222 Va. 655, 282 S.E.2d 212. Respondent vigorously disagrees,

arguing that the Virginia Supreme Court rejected this claim as a

matter of Virginia law in Evans II. Because the Court finds the

1983 amendment to be procedural in nature, it is unnecessary to

determine what effect Patterson would have had on Evans’ sentence

absent the 1983 amendment.

22a

declared that a person who pled guilty to second degree

murder was accquitted of first-degree murder was later

amended to allow retrial for first degree murder if the

conviction based on the guilty plea was overturned. Id.

at 222-23. The change of law, by which a defendant who

had pled guilty to second degree murder to forever avoid

the threat of the death penalty was later exposed to the

death penalty, was held to be a deprivation of a substan-

tial right, and a ex post facto violation. Although Kring

did hold that the substantive change of law which deprived

the defendant of protection from the death penalty was

an ex post facto violation, it simply cannot be construed

as requiring the courts to find an ex post facto viola-

tion whenever any absolute defense is lost.*

Evans next argues two issues of prosecutorial mis-

conduct. He contends that the Commonwealth’s Attorney

knowingly used false evidence to obtain the original death

sentence, and’ that the Attorney General purposely de-

layed conceding error in the original sentencing proceed-

ing until the 1983 amendment could be enacted. Evans

argues that the conduct of the Commonwealth so violated

due process as to bar the subsequent sentencing proceed-

ing.

In the original sentencing phase of Evans’ trial, the

jury recommended the death penalty based solely upon

a finding of future dangerousness. The Commonwealth

had relied heavily on records of seven purported prior

convictions in making its case to the jury. In his amended

habeas petition of May 5, 1982, Evans argued that one

of the “convictions” had actually been nol prossed, and

that another had been tried de novo and was already

ae

4 Subsequent Supreme Court cases have explained the reasoning

of the Court in Kring, and have further expounded the proper ¢z

post facto analysis. See, ¢.9., Hopt, 110 U.S. 574; Dobbert, 432

U.S. 282: Weaver, 450 U.S. 24. To the extent Kring, an 1882 case,

may be construed as conflicting with these cases, it must be deemed

modified or overruled.

23a

reflected in a third conviction presented to the jury. On

April 12, 1983, the Commonwealth confessed these errors

and further admitted that the jury had been informed of

two uncounseled convictions.

On September 21, 1983, the trial court conducted an

extensive evidentiary hearing on Evans’ claims of mis-

conduct by the Commonwealth. The Court concluded with

respect to the alleged misconduct by the trial prosecutors,

that

the defendant has failed to prove to the satisfaction

of the Court that the prosecution engaged in such

misconduct or tactics as to warrant the Court in

concluding that the Commonwealth is precluded from

again seeking the death penalty.®

The trial court also found no purposeful or wrongful

delay in the confession of error by the Commonwealth.

Judge Wright ruled that the record did not show any

tactical maneuvering by the Attorney General’s Office

with respect to the 1983 amendment. These findings were

affirmed by the Virginia Supreme Court on direct appeal.

Evans II, 323 §.E.2d at 119-121.

In making these factual findings, the tria] court relied

on an extensive evidentiary hearing and an in camera

review of the origial files of the Governor’s Office and the

Attorney General’s Office relating to drafting, introduc-

tion, consideration, and approval of the 1983 amendment.

This Court has conducted a similar in camera review,

and additionally has reviewed the Attorney General’s file

concerning Evans’ original direct appeal. These records

5 As the trial court recognized, it is clear that error did occur

at the original sentencing proceeding. That, however, is not the

issue before this Court, nor was it before Judge Wright, because

the improper sentence has been vacated. The issue is whether the

Commonwealth engaged in misconduct sufficient to preclude re-

sentencing at a new, error-free proceeding.

|

24a

fail to provide any support for Evans’ claim of prose-

cutorial misconduct.

It is clear under 28 U.S.C. § 2254(d) that this Court

must “accord a presumption of correctness to state-court

findings of fact.” Sumner v. Mata, 455 U.S. 591, 592

(1982). Furthermore, factual determinations implicit in

the trial ccourt’s findings are to be presumed correct.

Marshall v. Lonberger, 459 U.S. 422, 431-32 (1983) ;

Hartman v. Blankenship, 825 F.2d 26, 28 n.2 (4th Cir.

1986). The state court’s findings that the trial prose-

cutor was guilty of an error in judgment ht not of the

knowing utilization of false evidence, and at the Com-

monwealth did not purposefully or wrongfully delay in

vacating the original death sentence, are fairly supported

by the record, and may not be rejected by this Court on

federal habeas review. Marshall, 459 U.S. at 434-35.

The errors of the prosecution at sentencing were remedied

when Evans received a new sentencing trial, free of

false or misleading evidence. See United States v. Morri-

son, 449 U.S. 361 (1981).

Evans’ next contention is that his exposure to a re-

sentencing proceeding under the 1983 amendment, while

others similarly situated automatically received life sen-

tences under Patterson, constitutes a violation of the

Equal Protection Clause. He argues that he and the

Patterson defendant were similarly situated in all re-

spects other than the time at which their death sentences

were vacated. Evans contends that there is no rational

reason for treating him differently from the Patterson

defendant under the 1983 amendment.

The appropriate equal protection analysis in cases not

involving suspect classes*® is that the classifications are

presumed to be valid, and will be sustained if rationally

related to a legitimate state interest. City of Cleburne,

* Capital defendants are not a suspect class for equal protection

purposes. Williams v. Lynaugh, 814 F.2d 205, 208 (5th Cir. 1987).

25a

Texas v. Cleburne Living Center, 473 U.S. 432, 440

(1985). In making the rational basis inquiry, the Court

must determine whether there is some difference between

Evans and the Patterson defendant having a fair and

substantial relation to the object of the legislation. See

Eisenstadt v. Baird, 405 U.S. 438, 447 (1972). Even if

the Court assumes that the sole distinguishing factor

between Evans’ case and Patterson is the point in time

when the death sentences were set aside, the equal pro-

tection claim fails.

The purpose of the 1983 amendment is to establish a

new procedure for determining the sentence for capital

cases in which a death sentence is vacated. Drawing a

line at the time the death sentence is set aside, and re-

sentencing under the 1983 amendment only those defend-

ants whose sentences were vacated after the new pro-

cedure was enacted cannot be considered irrational. The

state’s decision to draw the line at some point between

those cases which have progressed sufficiently far in the

legal process to be governed solely by the old statute, and

those subject to the procedures of the new statute sur-

vives equal protection scrutiny. See Dobbert, 432 US.

at 301. The 1983 amendment is a procedural change,

and it is rational that its application be tied to the event

which necessitates a resentencing procedure: vacating the

original sentence.

Next, Evans contends that he was denied the effective

assistance of counsel on direct appeal of his original

death sentence when appellate counsel failed to argue the

errors in the records of Evans’ prior convictions. To sus-

tain a claim of ineffective assistance of counsel, a de-

fendant must demonstrate that counsel’s performance was

deficient, and that the deficiency prejudiced his case.

Strickland v. Washington, 446 U.S. 668, 687 (1984).

Any ineffectiveness of counsel at the original sentencing

trial, however, was mooted when the death sentence was

vacated, and Evans was provided a new sentencing pro-

ceeding free from error. See Hyman v, Aiken, 777 F.2d

26a

938, 941 (4th Cir. 1985). Cf. Poland v. Arizona, 476

U.S. 147, 152 (1986) (“clean slate rule” provides that

when a defendant obtains reversal on appeal, original

conviction is nullified with no double jeopardy implica-

tions on retrial). Evans has not demonstrated Strickland

prejudice, and this ineffective assistance claim must there-

fore fail.

The petition also alleges ineffective assistance of counsel

at the guilt stage of Evans’ trial. Evans contends that

his counsel committed error by failing to object when the

prosecutor commented in closing argument about prior

murders while arguing defendant’s motive. The state

habeas court conducted an evidentiary hearing on this

claim and made specific findings that Evans’ trial attor-

neys reasonably chose not to object or request a limiting

instruction for tactical reasons. The prosecutor’s com-

ments were based on evidence which had been previously

admitted, over defense counsel’s objections, as to the

defendant’s motive, and evidence which the defendant had

offered to impeach a Commonwealth witness. Rather than

draw further attention to the evidence, defense counsel

instead chose to attack the credibility of the relevant wit-

ness during argument. Evans has not overcome the strong

presumption that counsel’s actions constituted sound trial

strategy, Strickland, 466 U.S. at 689, and hence has not

shown that he was denied effective assistance of counsel.

In a footnote to the petition, Evans contends that he

was deprived of due process and received ineffective as-

sistance from counsel at the guilt phase when, on the

day of trial, the Commonwealth moved to amend the

indictment and no objection was raised by Evans’ counsel.

Claims concerning the amendment of the indictment have

been procedurally defaulted, and review by this Court is

thus barred by Wainwright v. Sykes, 483 U.S. 72 (1977).

Further, Evans himself recognizes that an indictment in

Virginia may be amended at any time prior to the

verdict. Va. Code § 19.2-231. Even if this claim had not

been procedurally defaulted, alleged defects in an indict-

27a

ment will give rise to federal habeas relief only where the

deficiency rendered the trial egregiously unfair. Ashford

v. Edwards, 780 F.2d 405, 407 (4th Cir. 1985). The

amendment to the indictment in this case did not alter

any of the alleged facts, but merely designated a dif-

ferent Code section as applicable to the allegations. No

resulting unfairness has been demonstrated.

Evans next contends that the use of a transcript at

the resentencing trial rather than live witness testimony

violated his rights under the Confrontation Clause. The

record clearly shows that Evans’ counsel agreed to the use

of a transcript at resentencing. Evans did not raise a

Confrontation Clause claim in the trial court. The state

habeas court and the Virginia Supreme Court thereafter

rejected Evans’ claim as procedurally defaulted. See Har-

grave v. Landon, 584 F. Supp. 302, 309-10 (E.D. Va.)

(citing Tweety v. Mitchell, 682 F.2d 461 (4th Cir.

1982), cert. denied, 460 U.S. 1013 (1983)), aff'd, 751

F.2d 379 (4th Cir. 1984), cert. denied, 473 U.S. 907

(1985). This Court is therefore precluded from review-

ing this claim on the merits. Wainwright v. Sykes,

supra. Evans’ assertion that he did not raise an object-

tion because he perceived it to be futile does not avoid

the procedural bar. See Engle v. Issac, 456 U.S. 107,

130 (1982).

Evans further claims that the trial court’s response to

a jury inquiry in the resentencing proceeding was con-

trary to Virginia law and violated due process. After

retiring to deliberate, the jury sent a question to the

court:

The decision must be unanimous for death, must the

decision also be unanimous for life or does a split

decision automatically become life?

The trial judge responded that “[a] verdict must be

unanimous as to either life imprisonment or death.” The

trial judge accurately stated Virginia law, which re-

quires the verdict in all criminal prosecutions to be unan-

imous. Evans I], 228 Va. at 481, 323 S.E. 2d at 121.

28a

Due process does not require the trial court to inform

the jury of the ultimate result should they fail to reach

a verdict. Barfield v. Harris, 540 Supp. 451, 472 (E.D.

N.C. 1982), aff'd, 719 F.2d 58 (4th Cir. 1983). Each

juror was instructed at voir dire as to the importance

of his individual decision, and each swore to vote accord-

ing to his own conclusions. The Court cannot accept

Evans’ argument that the trial judge’s answer could lead

a juror to conciude that he was powerless to effect a life

sentence, or that he should abandon a sincerely-held posi-

tion against imposition of the death penalty. Compare

Mills v. Maryland, 56 U.S.L.W. 4503 (U.S. June 6, 1988)

(substantial probability that jury instruction as given

misled the jury).

Finally, Evans contends that the failure of the trial

judge to recuse himself fr6m Evans’ third amended state

habeas petition denied Evans due process of law. Ques-

tions of judicial disqualification are generally issues of

state law, and only in the most extreme of cases is the

Due Process Clause implicated. Aetna Life Insurance Co.

v. Lavoie, 106 S.Ct. 1580, 1585 (1986). Evans alleges

that recusal was required because his claims of ineffec-

tive assistance required scrutinizing the performance of

trial counsel, a former courtroom deputy clerk for Judge

Kent. Judge Kent’s interest in this case is neither ex-

treme nor “direci, personal, substantial, and pecuniary.”

Id. at 1585-86. This claim therefore does not present a

constitutional issue.

Conclusion

For the foregoing reasons, each of the petitioner’s

claims fails as a matter of law. The respondent’s motion

to dismiss will therefore be granted, and Evans’ petition

will be dismissed.

An appropriate Order shall issue.

s/ Robert R. Merhige, Jr.

UNITED STATES DISTRICT JUDGE

Date Aug. 4, 1988

ee

29a

SUPPLEMENTAL REPORT

‘s/ S.R.S. 2/--/81

TO: Case Jacket, EVANS, Wilbert Lee

Offense: Homicide

On February 28rd, 1981, this assistant traveled to

Raleigh, North Carolina with Investigator John Turner

in an attempt to ascertain additional background in-

formation on the suspect in this case. Upon arrival in

Raleigh, we met with Investigator D.C. Williams, RPD

Investigations (Major Crime Unit). Williams can be

reached by telephone at 919-755-6420. Williams made

available to us all recorded police reports and arrest cards

on EVANS which he could locate in a record check with

his department. Copies of these reports and cards were

made and are included in the case jacket as part of this

report.

* a. * *

l. B/E, Larceny 12-12-63 2-21-64 6 mo. youth

camp

2. A/B on officer 7-26-64 7-30-64 6 mo. jail

Affray w/DW 7-26-64 7-30-64 6 mo. jail

(consec).

4. 2 and 3 above same 2: nollied

on appeal 3: 4 mo. jail

5. A/B 11-19-69 12-15-70 60 days jail

6. Felony assault 12-14-70 9-27-72 4 to 5 yrs.

prison.

Note: Defendant's release date from prison was 2-27-76

7. Escape 12-29-70 7-12-72 90 days

(while serving sentence on case #5 above)

30a

NAME: Wilbert Lee Evans

RECORD

9/29/64 In Wake Superior Court, docket 10494 appeal

Aslt on officer DW, affray D.W. Plea guilty to

affray DW. 4 mos on rds. Nol pros as to aslt on

officer.

VIRGINIA:

IN THE CIRCUIT COURT

FOR THE CITY OF ALEXANDRIA

F-5105

COMMONWEALTH OF VIRGINIA.

Vs.

WILBERT E. EVANS,

568 THE COURT:

please.

THE CLERK:

Wilbert Lee Ev

in Count 1 of the indi

ans,

THE

MR. LONG:

MR. KLOCH:

THE COURT:

Long?

MR. LONG:

Yes.

569)

COURT: Are

with the next phase of th

Do }

° , P

De fendant.

Alexandria, Virginia

April 17, 1981

-_ . ae

The Clerk will read the verdi:

e jury, find the defendant

——— Po be monmnndl

, ( i t as yeu

* * A

: 7 ;

l genliemer! reaqd' f nroceed

* 19

lal:

-4

yu have evidence ) reser Mr

May we approach the bench?

(Whereupon, the following bench conference was

held out of the hearing of the jury.)

MR. LONG: We were given copies,

from North Caroli

by Mr. Kloch

certified

Tavabrsi~

CODE De

{ " ] +L 5 +

arolina and tne nrs

one is a

32a

charge in ’64 regarding an indictment for housebreaking

or breaking and entering and larceny, and as I under-

stand, both of them are indictments of felonies. Here

it doesn’t say felony or misdemeanor. I called the attor-

ney in North Carolina and, obviously, I’m going to ob-

ject unless it says felony. If Your Honor will look—for

instance, this one is quite clear, and I’m just stating for

the record what the attorney in North Carolina stated to

me, and, of course, this was telephonically, but I’m going

to object otherwise. Telephonically, he said, yes, that if

there were a trial and conviction, in all likelihood there

would be two felonies, but the larceny is $26 and if there

was a plea to both, but in all likelihood this is a felony

conviction and a misdemeanor on the larceny. There’s no

indication whether this is a felony or a misdemeanor.

One of the things we have to prove or disprove is a

criminal record. This is eighteen years ago, but I think

the commonwealth has the burden beyond a reasonable

doubt. It’s not our burden.

[570] THE COURT: Let me take a look at the record.

Let me send the jury out until we get this resolved.

(Whereupon, the bench conference was concluded and

the proceedings continued within the hearing of the jury.)

THE COURT: Ladies and gentlemen of the jury, it

will take us a few minutes to resolve this question and I

would ask that you return to the jury room if you would,

please.

(Whereupon, the jury left the courtroom. )

MR. KLOCH: Your Honor, I have another copy of

the the Court.

THE COURT: All right.

Let me read it; then we’ll discuss it.

The indictment, which is the first sheet, indicates the

defendant had been indicted on two charges. The first

is breaking and entering, which is a felony, and the

second, grand larceny, which is a felony. The commit-

33a

ment which immediately follows the indictment only re-

fers to the charge of breaking and entering and it indi-

cates an inure plea of guilty and sentenced to six months.

What is the question?

[571] MR. LONG: The question is: there is nothing

on the commitment, on this commitment that indicates it

is a felony. When you look at the other documents, there’s

an indication as to whether it is a felony or a misde-

meanor. Everything thereafter says a felony or mis-

demeanor. The indictment is not evidence of conviction

of a felony.

Your Honor, it’s encumbent on the commonwealth to

prove commission of a felony, not the defendant. Felonies

have a different connotation to the jury, to the Court or

anybody else than a misdemeanor.

To go one step further, the thing that bothers me so

much—another thing that bothers me, we don’t know if

this first charge is the same charged in the second one.

There is no number on them. I’m simply saying that the

first charge says, “On the 12th of December, 1963,” and

then it says, “The January term of 1964,” and the next

one says February of ’64.

THE COURT: Brought to trial in February.

MR. LONG: It might be. It looks like it is probably

the same thing. But we’re not dealing with probability;

-we’re dealing with beyond a reasonable doubt.

MR. KLOCH: Your Honor, first of all, the indictment

on the larceny, the bottom part of it says, “steal [572]

and carry away.”

THE COURT: The indictment charges it’s a felony.

MR. KLOCH: Right.

THE COURT: What about the conviction?

MR. KLOCH: Some of the other convictions do have

a place on the form itself for a felony or a misdemeanor.

This form does not, but looking at the plain meaning of

these two pages, I can’t imagine the procedure being much

different in North Carolina than it is here. If the indict-

ment is for a felony and then on the commitment he’s

34a

committed to prison, not to jail, I think the meaning of

the two pages indicates that the larceny is a felony.

THE COURT: All right.

What about the last point raised by Mr. Long? Is this

commitment for this indictment and, if so, how do we

know that from the certificate that is attached?

MR. KLOCH: I think it tells you what the case

numbers are, and, first of all, it’s the same individual,

the time sequence is the same, the charges are the same,

one page is right after another. I think that any plain

reading of these documents would not lead one to believe

there are any different charge.

MR. LONG: For the purpose of the record, and,

[573] obviously, this is as far as the new statute we’re

dealing other, but it seems to me that when the Legisla-

ture makes a distinction beyond a reasonable doubt, it

doesn’t mean what the procedure was in 1964. The com-

monwealth, with all of its resources, could have come

before this court to clarify this confusion. I don’t see the

numbers on the first page that Mr. Kloch referred to that

refers to the second page. Maybe I can’t read, but I

don’t see two numbers that make it the same.

For him to come in—and he’d have to show a record

upon which the jury could authoritatively say this man is

such and such based on his record. You know, Mr. Kloch

knows and I know that an indictment is not a record

of conviction. An indictment is merely a charge and

people in this court, as well as, I am sure, in North

Carolina have indictments numerous times and never have

a conviction.

THE COURT: I’m agreeing if all he had was the

indictment, that would be grossly insufficient.

MR. LONG: If you look at the entire page which

has both of the other charges in here—

THE COURT: I’m coming to that. Let’s dispense

with the first one.

MR. LONG: What I’m saying, the first one doesn’t

[574] correspond with the third page or the fourth page

or the fifth page.

—ooor

35a

THE COURT: But they’re different charges.

MR. LONG: They might be. What I’m saying, we

ought to be sure when we’re dealing with the issue of

reasonable doubt.

Another issue, the indictment itself is not admissible,

we’re concerned with the criminal conviction.

THE COURT: Have you read the indictment together

with the commitment? I would agree there if we had no

commitment or just one of conviction. The indictment

standing alone would not be admissible, but read to-

gether.

MR. LONG: The judgment of commitment was en-

tered in 1972 and that doesn’t have the indictment at-

tached to it. The commitment is very clear. It says that’s

he convicted of violation of law and of a felony.

THE COURT: We haven’t got to that one yet.

MR. LONG: This is only an indictment attached for

some reason.

MR. KLOCH: In 1972, it has the indictment.

THE COURT: Let’s go through them one at a time.

Now, the third page was a warrant for a misdemeanor

and the judgment is at the foot of the warrant. Do you

have any [575] objection to this one, Mr. Long?

MR. LONG: Standing by itself, the third page?

THE COURT: Together with the certificate.

MR. LONG: With the certificate, no objection to that.

THE COURT: All right.

And the next one is also a warrant for a misdemeanor.

That was with a dangerous weapon, and do you have

any objection to this one?

MR. LONG: No.

THE COURT: The next one is a commitment with-

out an indictment and which it is not indicated whether

a felony or a misdemeanor. I don’t know that that is

necessarily fatal.

MR. LONG: The fifth page, Your Honor? I think

at the bottom it says misdemeanor.

36a

THE COURT: Page 5, yes. Do you have any objec-

tion to this one?

MR. LONG: No. It indicates at the bottom it’s a

misdemeanor.

THE COURT: All right.

And the next one is assault with the intent to kill

and that goes with the judgment of commitment that

[576] follows.

MR. KLOCH: Yes. It just so happens there’s a two-

year interval between when he did this and when he was

ultimately sentenced.

MR. LONG: And it just happens that they’re each

numbered the same. It indicates they are the same.

THE COURT: All right.

And following this is the one you object to, the first

one, is that correct?

MR. LONG: That’s correct, Your Honor.

MR. KLOCH: There’s two others.

THE COURT: There are?

MR. KLOCH: We didn’t go through all of them.

THE COURT: Let’s mark this first group and let’s

see how I rule before we do that. Maybe we can sepa-

rate them.

MR. LONG: For simplistic’s sake, maybe we can just

number them, 1, 2, 3.

THE COURT: Is there any objection to the second

one?

MR. LONG: Which one are we referring to as the

second one?

THE COURT: The simple assault and assault and

[577] battery.

MR. LONG: No. 70-C, the first paragraph? 70-CR

8275. No objection to that.

THE COURT: All right. That will be admitted.

And what is the third one, Mr. Kloch? We’ll come back

to the one you made objection to.

MR. KLOCH: This is the escape charge.

i

37a

MR. LONG: This is a misdemeanor.

MR. KLOCH: It says misdemeanor on there.

MR. LONG: Look at the complaint section.

MR. KLOCH: I agree that’s a misdemeanor. It is

written on the face of it misdemeanor.

MR. LONG: The complaint is erroneous.

THE COURT: It says misdemeanor.

MR. LONG: It says unlawfully, willfully, mali-

ciously—

THE COURT: That is stricken out on mine.

MR. LONG: The complaint is what you’re looking at?

THE COURT: Yes.

MR. LONG: We must be looking at different pages.

This is near the end of the typewritten part.

THE COURT: It is stricken out on the printed part.

[578] MR. KLOCH: I would concede that’s a mis-

demeanor, Your Honor.

THE COURT: All right. Any objection to this one?

MR. LONG: No, Your Honor, if that is stricken out,

the feloniously, no objection.

THE COURT: By agreement.

MR. KLOCH: By agreement, Your Honor.

MR. LONG: We can have the Court do it by agree-

ment at no objection.

THE COURT: Where it says feloniously, where it’s

typed in?

MR. LONG: Yes, Your Honor.

THE COURT: It’s agreed that will be stricken.

MR. KLOCH: Yes.

THE COURT: All right. So those two are agreed to

be admitted.

Let’s turn back to that one—

MR. LONG: There’s one more.

MR. KLOCH: No, this is all.

THE COURT: What’s the next commonwealth ex-

hibit?

THE CLERK. Eighteen.

38a

THE COURT: All right. The Conviction File No.

70-CR 8075 will be Commonwealth’s Exhibit 19. The

next one [579] will be admitted as Commonwealth’s 20.

(The documents previously referred to were marked as

Commonwealth’s Exhibit No.s 19 and 20 for identification

and received in evidence. )

THE COURT: All right. This other one, let’s don’t

mark it until I rule on it.

Let’s return to the indictment and commitment on

the first set of papers.

Mr. Kloch, what indicates that this is the indictment

that corresponds to this commitment?

MR. KLOCH: Your Honor, I think, obviously, every-

thing is circumstantial in this case, but, first of all, the

certification talks about document numbers and one of

them being 9618, and it mentions one other number and

these correspond with the remaining documents of these

seven pages. It was the same prosecutor, the same charge,

the same two charges, approximately the same pericd of

time and it happened on December 12th, and he was

indicted in February in a regular criminal term. It says

felony, committed to prison. I suppose anything is con-

ceivable, but I think the plain reading of these two docu-

ments and the certification—[580] in plain reading these

two documents, they belong together.

THE COURT: What is the number that appears on

the warrant for assault?

MR. LONG: There’s no number on it either, Your

Honor.

THE COURT: I’m trying to see what the certification

refers to by number.

MR. KLOCH: Your Honor, it seems to me—and coun-

sel may correct me—but his argument is whether it is

a misdemeanor or a felony. That is how counsel objected

to start out.

THE COURT: Whether this is the warrant that goes

with this judgment and commitment. If this indictment

goes with this judgment and commitment.

39a

MR. LONG: That’s essentially it.

MR. KLOCH: This is a breaking and entering and

larceny.

MR. LONG: I'd be more than happy to tear it off

right now, but how can you refer to the jury and say that

9618 is a felony? It doesn’t have anything at the bottom

and all the others de It doesn’t say if a felony or a mis-

demeanor.

THE COURT: What about that, Mr. Kloch?

[581] MR. KLOCH: Your Honor, I think that they’ve

got to be read together. The Court will have to rule.

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

two together along with the certification of the Superior

Court and the judge of the 10th Judicial District the in-

dictment is the indictment that corresponds with the

judgment and the commitment. The objection is over-

ruled.

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

are they not referred to by number, but circumstan-

tially it is not proper argument; but the documents speak

for themselves.

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

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

as what appears on the certification.

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

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

something as critical as the defendant’s prior record and

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

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

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

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

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

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

than the fact they are [582] stapled together.

THE COURT: Except for the certification of the

clerk which states the foregoing and a copy of the indict-

ment, the warrant and the judgment and the commit-

40a

ment and it makes reference to 96.8. The clerk has certi-

fied this is the indictment that corresponds to 96.8.

Given that certification, notwithstanding the fact that

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

as to its admissibility.

MR. LONG: I object to it.

THE COURT: All right, sir.

Make that the next number if you will, please.

THE CLERK: Twenty-one.

THE COURT: All right.

(The document previously referred to was marked

Commonwealth’s Exhibit No. 21 for identification. )

* * * *

4la

{FROM SUMMATION OF JOHN KLOCH]

[600] Now, there is, I think, an honest natural re-

sistence to giving the death penalty. All of you have

stated that you could under the right circumstances sen-

tence another person to death. I say to you it is evi-

dently clear, it is obvious life imprisonment is not open

to this man. By his past behavior, by his promises,

whether it be another inmate, whether it be another

guard, whether it be an innocent bystander, such as

Patty Warren, whether it be a police officer, life im-

prisonment would not end the violence based on what

we know about Wilbert Evans and what you’ve heard

here from the stand and what you’ll have the oppotunity,

to read in those documents.

x * * 2

[FROM REBUTTAL OF JOHN KLOCH]

[605] MR. KLOCH: I don’t think counsel has an-

swered the basic concern of the Legislature on how we,

the citizens, how society now protects itself. Who will be

the next guard, the next policeman? How do you recon-

cile the fact that William Truesdale, a law enforcement

officer, is dead as a rstult of the intended purpose of

Wilbert Lee Evans? How do we protect [606] ourselves?

Life imprisonment? No. Life imprisonment only means

he will have another opportunity as a promise to the

next guard, and as touchy a solution as death is, it is the

only solution and you’re the ones to effect that solution.

* & * +

42a

DISTRICT NO. 36

PRE-SENTENCE REPORT

Ms. Linda V. Jacobson, Chief

Prepared By: Mr. Frederick M. Rockwell Date Typed: 5-12-81

Probation and Parole Officers

CIRCUIT COURT OF ALEXANDRIA

Name: Wilbert Lee Evans Place of Birth:

TN: Wilton Leon Evans Raleigh, North Carolina

AKA: Sex: Male

Leon Evans, Charles Smith, “Big Lee”

and “Smitty”

Present Address: Race: Black

Powhatan County Jail

Powhatan, Virginia

Marital Status:

Married-Separated

Permanent Address:

3905 13th Street, N.W.

Washington, D.C. Dependents: Two

Age: 365 DOB: 1-20-46 Social Security No.:

Unknown

Judge: Honorable Wiley R. Wright, Jr.

Commonwealth Attorney: Mr. John Kloch

Defense Attorney: Mr. Stefan C. Long (Court Appointed)

Mr. E. Blair Brown (Court Appointed)

Tried By: Jury Trial Date: 4-17-81 Date of Disposition: 5-21-81

Offense(s): Murder Indictment No. (c): F-5105

Firearm Violation

Plea(s): Pled Not Guilty to Murder

Pled Not Guilty to Firearm Violation

Verdict(s): Found Guilty of Murder: Jury recommended the

death penalty.

Found Guilty of Firearm Violation: Jury recom-

mended one (1) vear.

Custody Status: In custody since 1-28-81 at the Powhatan County

Jail.

Jail Adjustment: Powhatan facility records reflect no adverse

reports.

Codefendant(s): None Disposition of Codefendant(s): N/A

* * * *

lam ee!

43a

NAME: Wilbert Lee Evans

TN: Wilton Leon Evans

AKA: Leon Evans, Charles Smith,

Wilbert Lee Evans, Wilbur Lee Evans,

Wilbert Leon Evans, “Big Lee’, “Smitty”

SEX: Male

RACE: Black

DOB: ‘1-20-46

SSN: Unknown

PRIOR RECORD:

FBI: #215967 E CCRE: #990020

2-27-62 Ident. Raleigh, Disch. Firearms in 30 days

N.C. City SS for 1 yr.

6-24-62 “ “s AWDW 6 mos. SS,

2 yrs pro

7-16-63 Rec. Sec. Raleigh, Engaging in An 1 month

N.C. Affray

2-24-64 Rec. Sec. Raleigh, BE&L 6 mos.

N.C. AWDW 6 mos. conc.

10-5-64 Rec. Sec. Raleigh, Assault on Officer Nolle

N.C. Affray witha 4 mos.

Deadly Weapon

6-3-65 Rec. Sec. Raleigh, Assault and Battery 6 mos.

N.C Disorderly Conduct

Resisting Arrest

Breaking Arrest

10-6-66 Rec. Sec. Raleigh, B&ECoin Machine 4mos.

3-2-67 Rec. Sec. Raleigh, Assaultand Battery 30 days

N.C. Disorderly Conduct 30 days exp.

12-6-67 PD Washington, Disorderly Conduct Unknown

D.C.

2-23-68 D.C. Jail, Wash- Petit Larceny 360 days

ington, D.C. Assault 360 day cons.

12-17-70 Dept. Corr. Larceny 18 mos.

Raleigh, N.C. A&B AISD 60 day Conc,

44a

6-23-72 D.C. Jail Wash. Fugitive from

D.C. Justice

7-12-72 Dept. of Corr. Escape 3 mos.

Raleigh, N.C. Exps of 1

9-27-72 Dept. of Corr. Assault With A 4-5-years

Raleigh, N.C. Deadly Weapon on1l&3

Inflicting serious conc.

Injury

2-7-78 U.S. Attorney Assault With a Dismissed

Washington, D.C. Deadly Weapon

(2 cts)

11-8-80 PD Alexandria, Fugitive From

VA Justice

11-11-80 B of 1 Raleigh, Murder Pending

N.C. Armed Robbery

1-27-81 PD Alexandria, Murder Instant

VA Firearm Violation Offense

DISTRICT OF COLUMBIA POLICE RECORDS:

6-22-72 Dis. Crops Dispo Unknown

RALEIGH, NORTH CAROLINA POLICE RECORDS:

8-17-63 Affray Judgment Absolute

2-20-66 Damage of Property Dispo. Unknown

3-14-66 Capias Dispo. Unknown

3-14-66 Damage to Property 25 days Susp. Costs Pd.

9-11-66 Assault and Battery Dispo. Unknown

10-1-66 Breaking and Entering Dispo. Unknown

1-6-67 Gambting Dispo. Unknown

1-21-67 Diserderly Conduct Dispo. Unknown

Assault Dispo. “*nknown

2-27-67 Fail to Comply Dispo. Unknown

2-27-67 Capias Dispo. Unknown

12-9-70 Carrying a Concealed Dispo. Unknown

Weapon

7-31-74 Civil Dispo. Unknown

45a

NOTE: According to family members and the subject,

Wilton Leon Evans is the defendant’s legal,

Christian name as recorded in church and birth

records. For some inexplicable reason, the sub-

ject was incorrectly called Wilbert Lee and most

of his legal and school records would so reflect.

Further complicating the records was the birth

of a younger brother legully named Wilbert Lee.

The defendant indicates that there has been no confusion

within the legal system, reference the similar names and,

after studying the FBI record sheet, Mr. Evans confirmed

responsibility for all charges listed on FBI 215 967 E.

/s/ Linda V. Jacobson,

LINDA V. JACOBSON, Chief

Probation and Parole Officer

District #36

/s/ Frederick M. Rockwell

FREDERICK M. ROCKWELL

Probation and Parole Officer

District #36

FMR/dbv

46a

VIRGINIA:

IN THE CIRCUIT COURT

FOR THE CITY OF ALEXANDRIA

F-5105

COMMONWEALTH OF VIRGINIA

’

vs.

WILBERT LEE EVANS,

Defendant.

Alexandria, Virginia

Monday, June 1, 1981

The proceedings commenced at 2:30 o’clock a.m.

BEFORE:

THE HONORABLE WILEY R. WRIGHT, JR.

APPEARANCES:

JOHN E. KLOcH, EsQ., Commonwealth Attorney

STEFAN C. LONG, Esq., and E. BLAIR Brown, Esq.,

Moncure, Long & Brown, 121 South Royal Street,

Alexandria, Virginia 22314, counsel for the de-

fendant.

47a

[3] PROCEEDINGS

Whereupon, the court reporter was sworn in.

THE CLERK: F-5105. The Commonwealth of Vir-

ginia versus Wilbert Lee Evans. John Kloch for the

Commonwealth, Stefan Long and Blair Brown for the

defendant.

MR. LONG: Ready for the defendant, Your Honor.

MR. KLOCH: Ready for the Commonwealth, Your

Honor.

THE COURT: Have you gentlemen received the re-

port made pursuant to the provisions of Code Section

192-264.5?

MR. LONG: Yes, we have received a copy that was

forwarded by the Probation Department. | think Mr.

Evans, he has received it and he has been given at least

two opportunities to make supplements thereto. I have a

supplement as Your Honor is aware and we have dis-

cussed it this morning with him, not in great detail, but

we would ask for additions or deletions of statement

concerning the contents thereof.

THE COURT: Do you need any additional time to

review it with the defendant?

MR. LONG: No, Your Honor. I would indicate to

the Court that we have had sufficient time to review it

with him. We are prepared to go forward with him at

this time.

* 2 a *

48a

VIRGINIA:

IN THE CIRCUIT COURT

OF THE CITY OF ALEXANDRIA

F-5105

COMMONWEALTH OF VIRGINIA

vs.

WILBERT LEE EVANS,

Defendant.

ORDER

THIS DAY came the Attorney for the Commonwealth

and the defendant, Wilbert Lee Evans, true name Wilton

Leon Evans (DOB 1-20-46), who stands convicted of two

felonies, to wit: Count I: Capital Murder and Count II:

Firearm Violation, was led to the Bar in the custody of

the Sheriff, and came also Stefan C. Long and E. Blair

Brown, his counsel heretofore appointed.

And the probation officer of this Court, to whom this

case has been previously referred for investigation, ap-

peared in open court with a written post-sentence report

made pursuant to Section 19.2-264.5, Code of Virginia,

1950, as amended, which report he presented to the Court

in open court in the presence of the defendant who was

fully advised of the contents of the report and a copy of

said report was also delivered to counsel for the accused.

Thereupon, the defendant and his counsel were given

the right to cross-examine the probation officer as to any

matter contained in said report and to present any addi-

tional facts bearing upon the matter as they desired to

49a

present. The report of the probation officer is hereby filed

as a part of the record in this case.

Whereupon, the Court, taking into consideration all

of the evidence in the case, the report of the probation

officer, the matters brought out on cross-examination of

the probation officer and such additional facts as were

presented by the defendant, and it being demanded of the

defendant if anything for himself he had or knew to say

why judgment should not be pronounced against him

according to law, and nothing being offered or alleged in

delay of judgment, in accordaonce with the verdict of

the jury, the Court finds the defendant guilty of Capital

Murder as charged in Count I of the indictment and sen-

tences the defendant to death and fixes the date on which

execution shall occur at September 1, 1981... .

ENTERED the Ist day of June, 1981.

/s/ Wiley R. Wright, Jr.

WILEY R. WRIGHT, Jr., Judge

50a

IN THE

SUPREME COURT OF VIRGINIA

AT RICHMOND

Record No. 811056

WILBERT LEE EVANS,

Appellant,

V.

COMMONWEALTH OF VIRGINIA,

Appellee.

BRIEF ON BEHALF OF THE COMMONWEALTH

J. MARSHALL COLEMAN

Attorney General of Virginia

JERRY P. SLONAKER

Assistant Attorney General

Supreme Court Building

Richmond, Virginia 23219

* * ft *

5la

Ill

THE VERDICT OF THE JURY ON SENTENCE

WAS NOT IMPOSED UNDER THE INFLUENCE

OF PASSION, PREJUDICE AND OTHER ARBI-

TRARY FACTORS, AND THE DEATH SEN-

TENCE IN THE INSTANT CASE IS NOT DIS-

PROPORTIONATE AND EXCESSIVE TO THE

PENALTY IMPOSED IN SIMILAR CASES UN-

DER VIRGINIA LAW.

The jury found that after consideration of the defend-

ant’s prior record there existed a probability that he

would commit criminal acts of violence that would con-

stitute a continuing serious threat to society. (App. 9).

Accordingly, the jury set his punishment at death.

The defendant’s previous criminal records submitted to

the jury at the penalty phase were Commonwealth’s Ex-

hibits 19, 20 and 21. These records revealed the following

past convictions and sentences:

Convictions (Date & type of conviction) Sentences

1. Feb. 21, 1964 —‘Breaking, Entering &

Larceny” “6 months”

(See Commonwealth’s Exhibit 21;

Supp. App. 5-6)

2. July 26, 1964 —Assault on a police

_* officer with a deadly

weapon while the officer

was in the performance

of his duties. “6 months on

(See Commonwealth’s Exhibit 21; road”

Supp. App. 7)

3. July 26, 1964 —Engaging in an affray

with a deadly weapon “6 months on

(See Commonwealth’s Exhibit 21; road” to run

Supp. App. 8) consecutively

with other

sentence of

same date.

52a

Convictions (Date & type of conviction) Sentences

4. September 30, 1964 —Engaging in an affray

with a deadly weapon “4 months”

(See Commonwealth’s Exhibit 21;

Supp. App. 9)

5. Dec. 15, 1970 —‘Assault & Battery &

Assault Inflicting Seri-

ous Damage” (hitting

victim in the face with

his fist, breaking his

nose and knocking one

tooth out)

(misdemeanor) 60 days

(See Commonwealth’s Exhibit 19;

Supp. App. 10-11)

6. July 12, 1972 —Escape from N.C.

Penitentiary 3 months

(See Commonwealth’s Exhibit 20;

Supp. 12-13)

7. Sept. 27, 1972 —Assault with a deadly

weapon inflicting

serious injuries Not less 4

(See Commonwealth’s Exhibit 21; years nor more

Supp. App. 14) than 5 years.

Most of the foregoing offenses—even though many

were misdemeanors—involved serious violence to other

human beings. Four offenses concerned use of a deadly

weapon, and indeed one of those four convictions was for

assault on a police officer with a deadly weapon while

that officer was in the performance of his duties. One

conviction was for escape from the North Carolina Peni-

tentiary. (See Supp. App. 5-14).

Obviously the jury was not required to consider these

prior convictions in a vacuum but rather in the light of

the characteristics of the instant capital murder and the

defendant’s state of mind and attitude toward society

and his fellow man as revealed by his own actions and

statements.’ In this light the defendant’s criminal record

7 Under the Virginia statute, § 19.2-264.2, prior criminal conduct

is “the principal predicate for a prediction of further ‘dangerous-

ness.’” Smith v. Commonwealth, 219 Va. 455, 478, 248 S.E.2d 135

58a

reveals that he has a deep-seated and callous disregard

for human life and rules of society.

ae * + ao

The record certainly sustains the jury’s conclusion that

there is a probability that the defendant would commit

acts of violence that would constitute a continuing serious

threat to society.

* * * *

CONCLUSION

For the reasons stated, it is respectfully submitted

that the judgment of the Court below be affirmed.

Respectfully submitted,

MARSHALL COLEMAN

Attorney General of Virginia

/s/ Jerry P. Slonaker

JERRY P. SLONAKER

Assistant Attorney General

Supreme Court Building

Richmond, Virginia 23219

[September 4, 1981]

(1978), cert. denied, 441 U.S. 967 (1979). The jury, however, must

consider all of the relevant evidence before determining whether

the defendant has such a propensity to violence as to make him a

menace to society. Stamper v. Commonwealth, 220 Va. 260, 275-

277, 257 S.E.2d 808 (1979), cert. denied, 445 U.S. 972 (1980).

“=

54a

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

No. 8-6131

WILBERT LEE EVANS,

Petitioner,

V.

COMMONWEALTH OF VIRGINIA,

Respondent.

Upon A Petition For Writ Of Certiorari To The

Supreme Court of Virginia

BRIEF OF RESPONDENT IN OPPOSITION TO

GRANTING OF WRIT OF CERTIORARI

Office of the Attorney General

Supreme Court Building

101 North Eighth Street

Sixth Floor

Richmond, Virginia 23219

55a

The other evidence presented at this proceeding con-

sisted of Commonwealth Exhibits 19, 20, and 21, show-

ing several of Evans’ convictions in North Carolina and

the sentences imposed thereon as follows:

February 21,1964 —Breaking, entering and

larceny —6 months

July 30, 1964 —Assaulting a police officer

with a knife while the

officer was in the perform-

ance of his duties —6 months on road

July 30, 1964 —Engaging in an affray

with a knife —6 months on road

to run consecu-

tively with other

sentence of same

date

September 30, 1964 —Engaging in an affray

with a deadly weapon —4 months

December 15,1970 —Assault & Battery &

Assault Inflicting Serious

Damage (hitting man in

face with his fist, break-

ing his nose and knock-

ing one tooth out) —60 days

July 12, 1972 —Escape from North

Carolina Prison System —3 months

September 27, 1972 —Assault with a deadly

weapon inflicting serious

injuries —-not less than

four years nor

more than five

years

Included in the jury instruction, all of which were

unchallenged on appeal (See Appendix a at 9), was

Instruction No. 14 stating in the alternative what the

Commonwealth had to prove before the jury could fix

Evans’ punishment at death. After retiring to consider

its verdict, the jury propounded two questions to the

court; first, whether Evans’ “past criminal record,” to

56a

which Instruction No. 14 referred, included all the evi-

dence “offered before and after the verdict,” and second,

whether Officer Pough’s testimony could be considered

as part of Evans’ record. The court answered both ques-

tions in the negative and further instructed the jury that

the only evidence of Evans’ past criminal record which

it could consider was contained in Exhibits 19, 20, and

21. (April 17 tr. 610-611). Subsequently, the jury re-

turned its verdict finding “after consideration of his

prior history that there is a probability that he would

commit criminal acts of violence that wouid constitute

a continuing serious threat to society,” and fixing Evans’

punishment at death.

* * * *

The facts in this case show that petitioner Evans had

“a criminal record extending back to his youth showing

a consistent pattern of aggression, bellicosity, and vio-

lence.” (Appendix a at 14). As the Virginia Court be-

low noted, although only the last conviction presented to

the jury, that of September 27, 1972, for assault with a

deadly weapon inflicting serious injuries, resulted in a

substantial prison sentence, there were other convictions

for offenses in which Evans used a deadly weapon. One

such offense was assaulting a police officer with a knife

while that officer was in the performance of his duties.

Another offense was for escape from the North Caro-

lina prison system.

The jury could consider Evans’ past criminal record

together with the circumstances of the murder of Deputy

Sheriff Truesdale in determining whether he would prob-

ably commit other crimes of violence.

* * * *

57a

CONCLUSION

For the reasons stated, the petition for a writ of cer-

tiorari should be denied.

Respectfully submitted,

GERALD L. BALILES

Attorney General of Virginia

/s/ Jerry P. Slonaker

JERRY P. SLONAKER

Assistant. Attorney General

Counsel of Record

Office of the Attorney General

Supreme Court Building

101 North Eighth Street

Sixth Floor

Richmond, Virginia 23219

(804; 786-6563

{March 1, 1982]

58a

VIRGINIA

IN THE CIRCUIT COURT

FOR THE CITY OF ALEXANDRIA

WILBERT LEE EVANS,

#124549

Petitioner

Vv.

J.P. MITCHELL, Superintendent,

Virginia State Penitentiary,

Richmond, Virginia,

Respondent

PETITION FOR A WRIT OF HABEAS CORPUS

The petitioner, WILBERT LEE EVANS, by counsel,

alleges in this petition that he is currently illegally held

under imminent sentence of death, in violation of the

Constitutions of the Commonwealth of Virginia and of

the United States.

* * ” *

16. After a verdict of capital murder was returned, a

separate sentencing proceeding was held, pursuant to

§ 19.2-264.4 of the Code of Virginia. At the hearing, the

Commonwealth presented the testimony of a police officer

concerning post arrest statements made by the petitioner,

including the statement that he had planned to escape

and “it mattered not to him who was in his way.” The

other evidence consisted of certified copies of records pro-

porting to be prior convictions and sentences received by

the petitioner. This included:

59a

February 21, 1964 —Breaking, entering and

larceny —6 months

July 30, 1964 —Assaulting a police officer

with a knife while the

officer was in the perform-

ance of his duties —6 months on road

July 30, 1964 —Engaging in an affray

with a knife —6 months on road

to run consecu-

tively with other

sentence of same

date

September 30, 1964 —Engaging in an affray

with a deadly weapon —4 months

December 15,1970 —Assault & Battery &

Assault Inflicting Serious

Damage (hitting man in

face with his fist, break-

ing his nose and knock-

ing one tooth out) —60 days

July 12, 1972 —Escape from North

Carolina Prison System —3 months

September 27, 1972 —Assault with a deadly

weapon inflicting serious

injuries —not less than

four years nor

more than five

years

The defense offered no evidence whatsoever.

PETITIONER’S CLAIMS

17. Petitioner’s trial counsel failed to provide repre-

sentation within the range of competence demanded of

attorneys in criminal cases, particularly in capital cases.

Petitioner was therefore denied adequate and effective as-

sistance of counsel in violation of the Sixth and Four-

teenth Amendments to the Constitution of the United

States and Article I § 8 of the Constitution of Virginia.

This failure included, but was not limited to, the follow-

ing ommissions at the sentencing phase of the trial:

60a

a. The complete and utter failure to present any evi-

dence at the sentencing phase;

b. The failure to object to Commonwealth’s exhibits

19, 20, and 21 (purported convictions of the defendant),

on the ground that such records were insufficient as a

matter of law, some even lacking the signature of the

judge allegedly finding guilt;

ce. The failure to object to the admission of the pro-

ported convictions as remote (four were seventeen years

old, one was eleven years old and the final two were nine

years old), and of little probative value;

d. The failure to object to the admission of multiple

copies of some of the proported convictions;

e. The failure to object to the admission of indictments

and other charging documents along with the records of

convictions, or to explain that what the jury received were

charging documents, which left the impression that many

more crimes had been committed by the petitioner;

f. The failure to object to the admission of charging

documents which indicated in some cases that the defend-

ant had been charged with more serious crimes than he

was convicted of, for example, an indictment of assault

with intent to kill where conviction was for assault in-

flicting serious injuries;

g. The failure to attempt to explain or produce evi-

dence concerning the nature of the petitioner’s past

offenses.

a7 * * »

WILBERT LEE EVANS

By Counsel

JONATHAN SHAPIRO

JONATHAN SHAPIRO, PC

108 North Columbus Street

Alexandria, Virginia 22314

(703) 684-1700

6la

KENNETH LABOWITZ

LABOWITZ & LABOWITZ

605 Prince Street

Alexandria, Virginia 22314

(708) 548-2029

AMERICAN CIVIL LIBERTIES UNION

OF VIRGINIA

10¢ E. Main Street

Suite 515

Richmond, Virginia 23219

(804) 644-8022

{April 9, 1982]

62a

VIRGINIA:

IN THE CIRCUIT COURT

FOR THE CITY OF ALEXANDRIA

WILBERT LEE EVANS, #124549

Petitioner,

vs.

J. P. MITCHELL, Superintendent,

Virginia State Penitentiary,

Richmond, Virginia,

Respondent.

AMENDED PETITION FOR A WRIT OF

HABEAS CORPUS

The petitioner, WILBERT LEE EVANS, by counsel,

alleges in this petition that he is currently illegally held

under imminent sentence of death, in violation of the

Constitutions of the Commonwealth of Virginia and of

the United States.

+ * * *

16. After a verdict of capital murder was returned,

a separate sentencing proceeding was held, pursuant to

§$ 19.2-264.4 of the Code of Virginia. At the hearing, the

Commonwealth presented the testimony of a police officer

concerning post arrest statements made by the petitioner,

including the statement that he had planned to escape

and “it mattered not to him who was in his way.” The

other evidence consisted of certified copies of records

proporting to be prior convictions and sentences received

by the petitioner. This included:

63a

February 21,1964 —Breaking, entering and —6 months

larceny

July 30, 1964 —Assaulting a police officer —-6 months on road

with a knife while the

officer was in the perform-

ance of his duties

July 30, 1964 —Engaging in an affray —6 months on road

with a knife to run consecu-

tively with other

sentence of same

date

September 30, 1964 —Engaging in an affray —4 months

with a deadly weapon

December 15,1970 —Assault & Battery & —60 days

Assault Inflicting Serious

Damage (hitting man in

face with his fist, break-

ing his nose and knock-

ing one tooth out)

July 12, 1972 —Escape from North —3 months

Carolina Prison System

September 27,1972 —Assault with a deadly —not less than

weapon inflicting serious four years nor

injuries more than five

years

The defense offered no evidence whatsoever.

PETITIONER’S CLAIMS

17. Petitioner’s trial counsel failed to provide repre-

sentation within the range of competence demanded of

attorneys in criminal cases, particularly in capital cases.

Petitioner was therefore denied adequate and effective

assistance of counsel in violation of the Sixth, Eighth

and Fourteenth Amendments to the Constitution of the

United States and Article I §§ 8 and 9 of the Constitu-

tion of Virginia. This failure included, but was not

limited to, the following omissions at the sentencing

phase of the trial.

* * e *

h. The failure to object to the admission of a record

of conviction in a case where, in fact, the charge had

64a

been nollie prossed, and there was no conviction. This

was particularly egregious since the alleged offense was

assault on a police officer with a deadly weapon, since

the “order of conviction” was not in fact signed, since

it had not been included on the defendant’s FBI rap

sheet, nor on other records of his prior convictions pro-

vided during pretrial discovery:

i. The failure to object to the admission of a record

of a prior conviction for engaging in an affray with a

knife from the City Court of Raleigh (now the District

Court), which had been appealed to the Superior Court

for Wake County, resulting in a trial de novo. The rec-

ord of conviction for that second trial was also intro-

duced, leading the jury to believe that there had in fact

been two separate convictions. No attempt was made to

explain this fact to the jury;

j. The failure to attempt to explain or produce evi-

dence for the jury concerning the nature of the peti-

tioner’s past offenses.

* * * *

18. The failures set out above were exacerbated by the

following failures of trial counsel at and before the sen-

tencing hearing on June 1, 1981, when the Court imposed

the jury’s sentence of death:

* * * *

d. The failure to point out to the Court at the June 1

hearing that at least one of the convictions considered by

the jury at the sentencing phase, assault on a police offi-

cer with a deadly weapon, had in fact been nolle prossed,

as indicated on the presentence report, and the failure to

request a mistrial or new trial on that ground.

26. It was error, and a violation of the petitioner’s

rights under the Eighth and Fourteenth Amendments to

the United States Constiotution, and Article I, §§ 8 and 9

of the Constitution of Virginia, to allow the jury to con-

65a

sider Commonwealth’s Exhibits 19, 20 and 21 (the al-

leged “prior convictions” and related documents), when

they were remote, erroneous, improperly prejudicial, dup-

licative and suffering from the defects set out in para-

graphs 17 (c), (d), (e), (f), (g), (h) and (i).

27. In deciding to impose the death sentence, the jury

relied upon at least one record of “conviction” (assault

on a police officer with a deadly weapon) of which the pe-

titioner had in fact not been convicted. The Common-

wealth knew or should have known this. Their use of it

despite this knowledge violated the petitioner’s rights un-

der the Eighth and Fourteenth Amendments to the United

States Constitution, and under ARticle I, §§ 8 and 9 of the

Constitution of Virginia.

* * * *

WILBERT LEE EVANS

By Counsel

/s/ Jonathan Shapiro

JONATHAN SHAPIRO

JONATHAN SHAPIRO, P.C.

108 North Columbus Street

Post Office Box 383

Alexandria, Virginia 22313

(703) 684-1700

KENNETH LABOWITZ

118 North Alfred Street

Alexandria, Virginia 22314

(703) 548-2029

AMERICAN CIVIL LIBERTIES UNION OF

VIRGINIA

100 ©. Main Street

Suite 515

Richmond, Virginia 23219

(804) 644-8022

[May 5, 1982]

66a

June 1, 1982

Jerry Slonaker

Assistant Attorney General

Office of the Attorney General

101 N. 8th Street

Richmond, Virginia 23219

Re: Evans v. Mitchell

Dear Jerry:

Enclosed are the documents we spoke about today.

They indicate that the charge of assault on a police of-

ficer was not pursued at the Circuit Court level.

As I mentioned, I believe that this single error requires

some relief for Evans. I feel that many of the other trial

errors we’ve alleged are also substantial. I am most

anxious to speak with you about this in the future.

Very truly yours,

JONATHAN SHAPIRO

ec: Kenneth Labowitz, Esq.

{

67a

VIRGINIA:

IN THE CIRCUIT COURT

FOR THE CITY OF ALEXANDRIA

No. 7371

WILBERT LEE EVANS,

#124549,

Petitioner,

vs.

J.P. MITCHELL,

Superintendent, Virginia State Penitentiary,

Richmond, Virginia,

Respondent.

PETITIONER’S BILL OF PARTICULARS

The petitioner, Wilbert Lee Evans, sets forth the fol-

lowing particulars concerning the claims in his amended

complaint:

1. “The specific evidence that was available for pres-

entation at the sentencing phase of the trial which

defense counsel did not present, and whether peti-

tioner brought such evidence to the attention of his

attorneys. (See allegation 17(a) of the amended

petition).

ANSWER: The following evidence was available for

presentation to the jury at the sentencing phase of peti-

tioner’s trial:

* _ + *

h. A certified abstract of proceedings before the Super-

ior Court for Lake County, North Carolina, indicating

that petitioner was not convicted of assault on a police

68a

officer, and that in fact, the charge was nolle prossed.

Had objection been made to introduction of this proported

conviction, and had it been sustained, this document would

not have been offered into evidence.

i. The testimony of the Clerk of Court of the Superior

Court of Wake County, North Carolina, or his duly au-

thorized representative. This official could have explained

to the jury that:

1. The July, 1964 conviction for assault on a police

officer with a deadly weapon had been nolle prossed upon

appeal ;

2. That the July, 1964 conviction for an affray with a

deadly weapon was appealed, resulting in a trial de novo,

thus making the conviction in the City Court of Raleigh

a nullity;

3. That the “Commitment to State Prison” dated Feb-

ruary 21, 1964, (part of Commonwealth’s Exhibit 21)

was for an offense reflected in another document pre-

sented to the jury, and was not for a separate convic-

tion;

4. That the “Commitment to State Prison Department

Prison Unit” form dated September 30, 1964, was for an

offense reflected in another document presented to the

jury, and was not for a separate conviction;

5. That the “Judgment and Commitment” form dated

December 15, 1970 (part of Commonwealth’s Exhibit

19) was for an offense reflected in another document pre-

sented to the jury, and was not for a separate conviction;

6. That the two, single column “Judgment” forms

dated December 15, 1970 (part of Commonwealth’s Ex-

hibit 19) were for the same offense, and were for an of-

fense reflected in another document presented to the jury,

and were not for separate offenses;

7. That the “Judgment and Conviction” form dated

July 12, 1972 (part of Commonwealth’s Exhibit 20) was

7 [7

69a

for an offense reflected in another document presented to

the jury, and was not a separate offense;

8. That the “Indictment—Assault With Intent To Kill’,

undated, was the charging document for an eventual con-

viction for assault. with a deadly weapon inflicting seri-

ous injuries, itself reflected in a second document dated

September 27, 1972, received by the juxy, and was not

a separate offense.

All of the above information (a-i) was known to,

should have been known to, or was brought to the atten-

tion of trial counsel by the petitioner and was available

at the time of the sentencing hearing.

j. Other evidence which is presently unknown to coun-

sel, but which was or should have been known to trial

counsel, which was available at the time of the sentenc-

ing hearing, and which will be made known to counse! for

the respondent as soon as it may be discovered.

2. “The specific evidence that defense counsel should

have presented to the jury concerning the nature

of petitioner’s past offenses, and whether petitioner

brought such evidence to the attention of his attor-

neys. (See allegation 17(j) of the amended peti-

tion).

Petitioner adopts the answer set forth in paragraphs

1(a-i).

In addition, the petitioner could have testified about

the valid previous convictions himself. Concerning the

1964 Breaking and Entering, and Larceny convictions, pe-

tioner would have informed the jury that he had been

16 years old at the time, and that the offense involved the

theft of candy. Concerning the July, 1964 affray with a

weapon, and the December 1970, assault, the petitioner

would have testified that this was a result of a provoked

fight arising over gambling. Further, he would have

testified that the other assault charges in December,

70a

1970 arose out of the very same incident. He would

have testified that the escape charge involved simply

walking away and not returning while on a pass, and

that it was not a violent escape from confinement.

Finally, he could have testified that the November, 1969

assault conviction was for a fight which began during

a basketball game in which he was playing. All of this

information was brought to the attention of trial counsel

by the petitioner.

Respectfully submitted,

WILBERT LEE EVANS

By Counsel

Counsel for Petitioner:

JONATHAN SHAPIRO

JONATHAN SHAPIRO, P.C.

108 North Columbus Street

Post Office Box 383

Alexandria, Virginia 22313

(703) 684-1700

KENNETH E. LABOWITZ

WEIGHT & CHAMOWITZ

118 North Alfred St.

Alexandria, Virginia 22314

(703) 548-2029

[July 6, 1982]

7la

November 17, 1982

Jerry P. Slonaker, Esquire

Assistant Attorney General

Office of the Attorney General

101 North 8th Street

Richmond, VA 23219

RE: Evans v. Mitchell

Dear Jerry:

Just to follow-up on our telephone conversation of sev-

eral days ago, I have written to the Clerk in Wake

County, North Carolina, for confirmation of those records

I’ve provided to you. I did that some time ago and have

not yet heard back. My guess is that they are tired of

our requests for information, and, that the written rec-

ord is perfectly clear on its face—the assaulting charge

was nol prossed. Please let me know if we can stipulate

to that and to the fact that the Evans jury also received

both the district court and the circuit court convictions

(the latter on a trial de novo of the former) for a charge

of assault.

Very truly yours,

JONATHAN SHAPIRO

JS:cjm

72a

VIRGINIA:

IN THE CIRCUIT COURT

FOR THE CITY OR ALEXANDRIA

No. 7371

WILBERT LEE EVANS,

Petitioner,

-VSs-

J. P. MITCHELL, WARDEN,

VIRGINIA STATE PENITENTIARY,

Respondent.

MOTION FOR LEAVE TO AMEND

The petitioner, Wilbert Lee Evans, requests leave of

the Court to amend his Amended Petition For a Writ Of

Habeas Corpus, in the following respects:

1. To amend paragraph 17 by adding the following

language.

17(n) The failure to investigate and discover

that one or more of the “convictions” the Common-

wealth would rely upon at sentencing were invalid

under the doctrines of Burgett v. Texas 389 U.S.

109 (1967), Argesinger v. Hamlin, 406 U.S. 25

(1972), Baldasar v. Illinois, 446 U.S. 222 (1980)

and then the failure to object to the use of those

“convictions” at the sentencing phase under those

doctrines.

73a

3. To amend paragraph 27 as follows:

27(a) In deciding to impose the death sentence,

the jury relied upon at least [one] two prior [records

of] “convictions” (assult on a police officer with a

deadly weapon[)] and engaging in an affray with a

knife) [of] which [the petitioner had in fact not been

convicted] were void. The Commonwealth knew or

should have known this. The Commonwealth also

knew or should have known that one or more of

the convictions introduced at the sentencing phase

were invalid because they had been obtained with-

out benefit of counsel and without a waiver of coun-

sel. Their use ©! [it] those convictions despite this

knowledge viol: ted the petitioner’s rights under the

Sixth, Eighth and Fourteenth Amendments to the

United States Constitution, [and] under Article I,

§§8 and 9 of the Constitution of Virginia, and

under the doctrine of Burgett v Texas 389 U.S.

109 (1967), Argesinger Vv Hamlin, 407 U.S. 25

(1972), and Baldasar v. Illinois, 446 U.S. 222

(1980).

(b) Likewise, the Commonwealth violated the

petitioner’s constitutional rights under the doctrines

of Brady v Maryland, 373 U.S. 88 (1963) and

Mooney V Holohan, 294 U.S. 103 (1935) and their

progeny, by failing to disclose to defense counsel

the flaws in the “convictions” they intended to use

(as noted above) at the petitioner’s sentencing.

4. To amend paragraph 26 as follows:

26. It was error, and a violation of the petition-

er’s rights under the Sixth, Eighth and Fourteenth

Amendments to the United States Constitution, and

Article 1, §§ 8 and 9 of the Constitution of Virginia,

to allow the jury to consider Commonwealth’s Ex-

hibits 19, 20, and 21 (the alleged “prior convic-

tions” and related documents), when they were re-

74a

mote, erroneous, improperly prejudicial, duplicative

and suffering from the defects set out in para-

graphs 17 (c), (d), (e), (f), (g), (h) and (i)

and (n).

A copy of the propsoed Second Amended Petition For A

Writ Of Habeas Corpus is attached to this pleading.

* * * *

For these reasons, leave is requested to amend the peti-

tion, as set out above.

Respectfully submitted,

WILBERT LEE EVANS

By Counsel

Counsel for the Defendant:

/s/ Jonathan Shapiro

JONATHAN SHAPIRO

JONATHAN SHAPIRO AND ASSOCIATES, P.C.

108 North Columbus Street

Alexandria, Virginia 22314

(703) 684-1700

AMERICAN CIVIL LIBERTIES UNION

OF VIRGINIA

112 A North 7th Street

Richmond, Virginia 23219

[December 22, 1982]

eee ee ee ee eae ae SS ST lll

75a

VIRGINIA:

IN THE CIRCUIT COURT

FOR THE CITY OF ALEXANDRIA

No. 7371

WILBERT LEE EVANS,

Petitioner,

-VS-

J. P. MITCHELL, WARDEN,

VIRGINIA STATE PENITENTIARY,

Respondent.

ORDER

Upon motion of counsel for the petitioner for leave to

amend his Amended Petition For A Writ Of Habeas

Corpus, and deeming it just and proper to do so, it is

hereby

ORDERED and ADJUDGED, that leave is hereby

granted petitioner to amend his Amended Petition For

A Writ Of Habeas Corpus as set out in his motion. The

Clerk shall hereby file the Second Amended Petition For

A Writ Of Habeas Corpus which counsel has attached to

his Motion For Leave To Amend. Respondent shall file an

Answer within 60 divs from the date of this order.

Enter: January 5, 1983

/s/ Wilev R. Wright, Jr.

JUDGE OF THE CIRCUIT COURT

76a

I aak for this:

‘«/ Jonathan Shapiro

JONATHAN SHAPIRO

JONATHAN SHAPIRO AND Associates, P.C,

108 North Columbus Street

Alexandria, Virginia 22314

(703) 684-1700

Seen and Agreed:

‘a’ Jerry Slonaker

JeRRY SLONAKER, ESQuine

Assistant Attorney General

Counsel for Respondent,

77a

[Stamp Mark:

Received,

Jan, 24, 1983)

| LOGO |

General Court of Justice

10th Judicial Distriet

J, Russell Nipper, Clerk

ix Officio Judge of Probate

CLERK SUPERIOR COURT

WAKE COUNTY

P.O, Box 851

Raleigh, North Carolina

27602-0351

January 19, 1983

Mr, Jerry P, Slonaker

Assistant Attorney General

Criminal Law Enforeement Division

Supreme Court Building

101 North Eighth Street

Richmond, Virginia 28219

Ri: Wilbert Lee Evans

Dear Mr, Slonaker:

In answer to your letter of January 11, 1983, and the

copy of your letter of December 1, 1982 I am enclosing

a copy of my letter to Mr, Jonathan Shapiro as well as

returning your copy of the letter from Mr, Shapiro, I

believe thest two copies will answer part of your questions,

You will note on page one of Mr, Shapiro’s letter the

case No, 10494 of September 30, 1964 “engage in affray;

affray with a deadly weapon; assault on a police officer

78a

with a deadly weapon” are all ease No, 10494, The de-

fendant entered a plea of guilty to “engaging in affray

with a deadly weapon” Nol Proase with leave was granted

as to “assault on officer with a deadly weapon, all of

which was entered in this court on September 29, 1964,

and the defendant was sentenced to four (4) months in

jail, assigned to work under supervision of State Prison

Department,

I hope this information is sufficient, if not, please ad-

vise,

Sincerely,

/8/ J, Russell Nipper

J, RuSSHulL NIPPER

Clerk Superior Court

JRN/bhm

[Documents at App, 79a-82a were attachments to this

letter |

79a

[L0Go]

General Court of Justice

10th Judieial District

J, Russell Nipper, Clerk

Ix Officio Judge of Probate

CLERK SUPERIOR COURT

WAKE COUNTY

P.O, Box 351

Raleigh, North Carolina

27602-0351

January 7, 1982

Mr, Jonathan Shapiro

P.O, Box 888

Alexandria, Virginia 22814

Re: Wilbert Lee Evans

Dear, Mr, Shapiro:

I am returning one of your letters dated January 8,

1983 in order to clarify the cases and case numbers of the

above, During the time frame of the records spelled out

in your letter it was not a statutory requirement to ap-

point counsel or waive counsel in misdemeanor actions.

Further, this letter is to confirm that this office has no

record of counsel for the above, nor do we have a record

of waiver of counsel in the subject cases.

I hope this information is sufficient.

Sincerely,

/8/ J, Russell Nipper

J, RUSSELL NIPPER

Clerk Superior Court

JRN/bhm

encl; 1

80a

JONATHAN SHAPIRO & ASSOCIATES

Attorneys

108 North Columbus Street

P.O. Box 383

Alexandria, Virginia 22314

(703) 684-1700

January 3, 1983

Clerk

Superior Court for Wake County

Raleigh, North Carolina

Clerk

District Court for Wake County

Raleigh, North Carolina

Dear Sirs;

My firm is involved in a criminal case in Alexandria,

Virginia in which a man received the death penalty in

part because of convictions he had amassed in North

Caorlina, from 1962 through 1972. Those convictions in-

cluded a number of misdemeanors. A representative of

my office inspected your records, with your gracious help,

in an attempt to discover whether they reflected if counsel

was appointed in those cases, or whether there was any

waiver of counsel. Unfortunately, it appears that most

of your pre-1972 records have been destroyed. However,

someone in your office informed my associate that there

was no policy of appointing counsel for indigents charged

with misdemeanors during the relevant time period. I’m

quite sure that is true, since this was well before it was

required that counsel be appointed.

I would greatly appreciate it if you would confirm that

policy for me, as well as the fact that you have no record

indicating that my client, Wilbert Lee Evans, either had

counsel, or waived counsel, in the following cases:

#70 CR 64042

(District Court)

#10494

(Superior Court)

#70 CR 8275

#70 CR 61546

(District Court)

e F

(District Court)

8la

July 12, 1972

September 30, 1964

December 15, 1970

July 30, 1964

Escape

Engage in an

affray

Assault & Battery;

Assault

Affray with a

deadly weapon;

Assault on a police

officer with a deadly

weapon

82a

No. 10494

STATE

vs

WILBERT LEE EVANS

Appeal: (2 Warrants) Engaging in an Affray with a

Deadly Weapon

Assault on an Officer with a Deadly Weapon

The defendant in open court pleads guilty to Engaging

in an Affray with a Deadly Weapon.

The Solicitor takes a Nol Pros with Leave as to the

charge of Assault on an Officer with a Deadly Weapon.

Charles Lucas and Steve Adcock are sworn and ex-

amined as witnesses in behalf of the State

There were no defense witnesses put on

The Court heard the defendant.

The Judgment of the Court is that the defendant be

imprisoned in the common jail of the County for a term

of FOUR MONTHS and assigned to work under the su-

pervision of the State Prison Department.

And thereupon Court takes a recess until 9:30 o’clock

to-morrow morning, Wednesday, September 30th, 1964.

APPROVED:

/s/ [Illegible]

Judge Presiding

83a

VIRGINIA:

IN THE CIRCUIT COURT

FOR THE CITY OF ALEXANDRIA

No. 7371

WILBERT LEE EVANS,

Petitioner,

V.

J. P. MITCHELL, WARDEN,

VIRGINIA STATE PENITENTIARY,

Respondent.

ANSWER

Now comes the respondent, by counsel, and in answer

to the second amended petition for a writ of habeas cor-

pus says as follows:

1. By leave granted to the petitioner by the Court he

has filed a second amended petition for a writ of habeas

corpus in which he sets forth the following additional

allegations:

(1) To amend paragraph 17 by adding the following

language.

17(n) The failure to investigate and discover

that one or more of the “convictions” the Common-

wealth would rely upon at sentencing were in-

valid under the doctrines of Burgett v. Texas, 389

(3)

84a

U.S. 109 (1967), Argesinger v. Hamlin, 406 U.S.

25 (1972), Baldasar v. Illinois, 446 U.S. 222

(1980) and then the failure to object to the use

of those “convictions” at the sentencing phase

under those doctrines.

* * * *

To amend paragraph 27 as follows:

27(a) In deciding to impose the death sentence,

the jury relied upon at least two prior “convic-

tions” (assault on a police officer with a deadly

weapon and engaging in an affray with a knife)

which were void. The Commonwealth knew or

should have known this. The Commonwealth also

knew or should have known that one or more of

the convictions introduced at the sentencing phase

were invalid because they had been obtained with-

out benefit of counsel and without a waiver of

counsel. Their use of those convictions despite this

knowledge violated the petitioner’s rights under the

Sixth, Eighth and Fourteenth Amendments to the

United States Constitution, under Article I, §§ 8

and 9 of the Constitution of Virginia, and under

the doctrine of Burgett v. Texas, 389 U.S. 109

(1967), Argesinger v. Hamlin, 407 U.S. 25

(1972), and Baldasar v. Illinois, 446 U.S. 222

(1980).

(b) Likewise, the Commonwealth violated the

petitioner’s constitutional rights under the doc-

trines of Brady v. Maryland, 373 U.S. 83 (1963)

and Mooney v. Holohan, 294 U.S. 103 (1935) and

their progeny, by failing to disclose to defense

counsel the flaws in the “convictions” they in-

tended to use (as noted above) at the petitioner’s

sentencing.

D ncta Vaan WE CHT ak atts Ake

85a

(4) To amend paragraph 26 as follows:

26. It was error, and a violation of the peti-

tioner’s rights under the Sixth, Eighth and Four-

teenth Amendments to the United States Constitu-

tion, and Article I, §§ 8 and 9 of the Constitution

of Virginia, to allow the jury to consider Common-

wealth’s Exhibits 19, 20, and 21 (the alleged

“prior convictions” and related documents), when

they were remote, erroneous, improperly prejudi-

cial, duplicative and suffering from the defects set

out in paragraphs 17(c), (d), (e), (f), (g), (h)

and (i) and (n).

tL a * *

2. Respondent denies that petitioner suffered ineffec-

tive assistance of counsel as alleged in the second amended

habeas corpus petition or that he is entitled to habeas

relief on that ground. Such claims, however, can be best

considered at a plenary hearing in this Court.

3. Respondent denies that the Commonwealth’s Attor-

ney acted improperly or that habeas corpus relief should

be granted on this ground, but these claims may also be

best determined at a plenary hearing.

4. No other allegations in the second amended habeas

corpus petition are cognizable for the first time on habeas

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

680 (1974), cert. denied, sub nom., Parrigan v. Paderick,

419 U.S. 1108 (1975); Rule 5:21 of the Rules of the

Supreme Court of Virginia.

5. Each and every allegation not expressly admitted

herein should be treated as denied.

WHEREFORE, respondent prays that the allegations

of ineffective assistance of counsel and of improper con-

duct by the prosecution be considered at a plenary hear-

ing in this Court and that, thereafter, the second amended

86a

petition and all other habeas petitions should be denied

and dismissed.

Respectfully submitted,

J.P. MITCHELL

WARDEN

VIRGINIA STATE PENITENTIARY

By /s/ Jerry P. Slonaker

Counsel

Jerry P. Slonaker

Assistant Attorney General

Supreme Court Building

101 North Eighth Street

Richmond, Virginia 23219

(804) 786-6565

{March 3, 1983]

87a

[SEAL]

COMMONWEALTH OF VIRGINIA

OFFICE OF THE ATTORNEY GENERAL

April 12, 1983

The Honorable W. R. Wright, Jr., Judge

Circuit Court of Alexandria

520 King Street

Alevandria, Virginia 22314

R: Wilbert Lee Evans v. J. P. Mitchell, Warden,

Virginia State Penitentiary (No. 7371)

Dear Judge Wright:

Among petitioner’s numerous allegations are claims

that the Commonwealth’s sentencing exhibits which were

presented to the jury, concerning his North Carolina con-

victions, were misleading, erroneous or otherwise inad-

missible. Upon investigation of those records and in the

interest of justice, the respondent is constrained to con-

céde that Wilbert Evans’ current death sentence cant t

be sustained. His capital murder conviction, however, is

valid. The Commonwealth’s exhibits indicated the fol-

lowing convictions and sentences, as summarized by the

Supreme Court of Virginia on direct appeal:

1. February 21,1964 —Breaking, entering

and larceny —6 months

2. July 30, 1964 —Assaulting a police

officer with a knife

while the officer

was in the performance

of his duties —6 months on

road

3. July 30, 1964 —Engaging in an affray

with a knife — 6 months on

road to run

consecutively

with other

sentence of

same date

88a

4. September 30,1964 —Engaging in an affray

with a deadly weapon —4 months

5. December 15,1970 . —Assault & Battery &

Assault Inflicting Seri-

ous Damage (hitting

man in face with

his fist, breaking his

nose and knocking one

tooth out) —60 days

6. July 12, 1972 —Escape from North

Carolina Prison System —3 months

7. September 27, 1972 —Assault with a deadly

weapon inflicting

serious injuries —not less than

four years

nor more

than five

years

As you know, Evans was sentenced to death only on the

“future dangerousness” standard and not because of any

“vileness” of the killing itself. Evans v. Commonwealth,

222 Va. 766 (1981). That is, the basis for the death sen-

tence was solely that upon Evans’ “past criminal record”

the jury found there was “a probability that he would

commit criminal acts of violence... [and] constitute a

continuing threat to society.” Id. at 776. Despite pre- |

trial efforts by the Commonwealth’s Attorney’s Office and

defense counsel to ascertain his correct record, it has now

been determined that most of these North Carolina rec-

ords—ur.beknownst to the prosecution or defense counsel

at the trial—were seriously misleading and/or otherwise

defective. (See attached affidavit of Russell Nipper, Clerk

of North Carolina courts. )

It is well established that a sentence imposed on the

basis of assumptions concerning a criminal record which

are materially untrue cannot be sustained. See United

States v. Tucker, 404 U.S. 443, 447-448 (1972); Town-

send Vv. Burke, 334 U.S. 736, 740-741 (1948). Likewise.

convictions at which the defendant was not represented

by counsel cannot be used against him to enhance his

89a

punishment at a subsequent trial. See Baldasar v. State

of lilinois, 446 U.S. 222 (1980) ; United States v. Tucker,

supra; Burgett v. State of Texas, 389 U.S. 109 (1967).

The North Carolina conviction designated herein as #2

was actually vacated by virtue of an appeal for a trial

de novo in the Superior Court. Then the charge was “nol

prossed.” Also, the files in North Carolina indicate that

Evans was not represented by counsel at those proceed-

ings.

Convictions #3 and +4 were really one case—not two

as indicated. The July 30, 1964 (#3) eonviction was

vacated for a trial de novo in the higher court. Convic-

tion #4 (of September 30, 1964) was the result of that

trial. Also, Evans had no attorney at either proceeding.

Finally, Evans was without counsel on convictions +5

and #6. Thus, as pointed out by Mr. Nipper, the North

Carolina records refiect that Evans had counsel only on

convictions #1 and +7.

Upon approval of the Court, I will draft a proposed

order for Mr. Shapiro’s endorsement to vacate the death

sentence. Of course, it will be the Commonwealth’s de-

cision as to whether or not the Commonwealth should

again seek the death penalty at a new sentencing pro-

ceeding. I anticipate having the order grant the Com-

monwealth ninety (90) days to commence such proceed-

ings. Otherwise, a life sentence should be imposed in

accordance with § 19.2-264.4A of the Code.

The Governor signed into law (effective March 28,

1983, as “emergency legislation’) clarifying procedural

amendments to §§ 17-110.1 and 19.2-264.3. These amend-

ments expressly provide for another sentencing hearing

before a new jury (or judge alone if all concur) in the

event a death sentence is set aside or found invalid. A

copy of this legislation is enclosed. As you know, the

procedure for such a resentencing hearing is set forth in

Fogg v. Commonwealth, 215 Va, 164 (1974); Huggins

90a

v, Commonwealth, 218 Va, 827 (1972); and Snider vy,

Cow, 212 Va, 18 (1971),

Since this was a procedural change, in our judgment

the new procedure would be applicable to Evans, if the

Commonwealth again seeks the death sentence, and is not

‘ex poat facto.” See Dobbert vy, Florida, 482 U.S, 282,

203 (1977); Knapp vy, Caldwell, 667 F.2d 125638, 1262-

1263 (9th Cir, 1982), See also Smith v. Commonwealth,

219 Va, 455, 474-476 (1978),

Sincerely,

/s/ Jerry P. Slonaker

JERRY P, SLONAKER

Assistant Attorney General

Criminal Law Enforcement

Division

ce; Jonathan Shapiro, Esquire

The Honorable John Kloch

Commonwealth's Attorney

City of Alexandria

$:5/189

Eenelosure

Pla

VIRGINIA:

IN THE CIRCUIT COURT

FOR THE CITY OF ALEXANDRIA

5105

COMMONWEALTH OF VIRGINIA,

va.

WILBERT LEE EVANS,

Defendant,

Alexandria, Virginia

Wednesday, September 21, 1983

The proceedings commenced at 10:30 o'clock a.m,

BEFORE:

THE HONORABLE WILEY R. Wricnt, JR,

APPEARANCES:

JOUN E, KLocn, Baq.,, Commonwea,h Attorney; and

RICHARD 8, MENDELSON, Eaq,, Assistant Common-

wealth Attorney; and RANDOLPH SENGEL, Esq,,

Assistant Commonwealth Attorney ;

JONATHAN SHAPIRO, Faq, 1019 King Street, Alex-

andria, Virginia 22814; and Kennetu EK, LAno-

WitZ, Eaq,, 118 North Alfred Street, Alexandria,

Virginia 22314, counsel for the defendant,

2a

(22) THE COURT: Call your first witness,

MR, SHAPIRO; We eall John Kloech and ask for

leave to cross-examine,

THE COURT: You may do so,

Whereupon,

JOHN E, KLOCH,

was called as a witness by and on behalf of the defend-

ant, and, after having been first duly sworn, was exam-

ined and testified as follows:

DIRECT EXAMINATION

BY MR, SHAPIRO;

Q You're John Kloch?

(23) A Yes,

Q And your title?

A Commonwealth Attorney for the City of Alexan-

dria,

You were Commonwealth Attorney at the time Mr,

Evans was tried; in facet, prosecuted him, is that correct?

A Along with Randy Sengel, yes, sir,

Q You had been Commonwealth Attorney for some

time prior to that?

A Yea, air,

Q Had you ever handled a death case before?

A No, air,

Q All right,

And it’s true, is it not, that you paid particular atten-

lon to this case in light of its seriousness?

A I'd say yea, to all cases,

Q All right,

It's true, is it not, Mr, Kloch, that sometime prior to

the trial you asked or directed Mr, Senge) to go to North

Carolina, in the company of a police officer, to investigate

Mr, Evans’ police record?

A That among a lot of things. That was ineluded in

what he was there for,

Q And he, in fact, prepared a written report for you,

|24] typewritten, concerning Evans’ prior conduct; is

that correct?

A Yea, he did,

Q All right.

And that report is, in fact, the same one that I at-

tached to my memorandum, is that correct?

A Yes, sir.

Q A five-page typewritten report?

A I don't recall how many pages, but approximately,

yes,

Q All right. .

And it’s your position now that concerning the report

that Mr, Sengel was able to obtain that some of them

were really judgments of conviction which had been ap-

pealed; is that correct?

A You say that’s my position now? Maybe I don’t

understand the question,

Q You understood that in February didn’t you?

A In February of when?

Q Let me approach it another way.

A I don’t know what you're getting at.

Q You're familiar with Commonwealth’s Exhibit 21

as you had it at Mr, Evans’ trial?

(25| A Yea, sir, If you're saying that I knew that

there were two convictiona and they were appealed re-

sulting in one conviction, yes, sir.

Q All right,

Would you review Commonwealth’s Exhibit 21, please.

(Exhibit handed to the witness. )

A All rieht.

Q Mr, Kloch, I'd like you to compare the various

documents contained in Exhibit 21 with this chart I have

prepared just to make certain that we’re dealing with

coples of Exhibit 21, aside from the first two pages

which are the certification of the clerk in North Carolina.

A On page D there’s a part cut off from the original.

Q At the very bottom?

94a

A Yes. It says that notice of appeal bond and dollar

—I can’t read it, but that appears to be cut off of your

exhibit, which is D, engage in an affray with a danger-

ous weapon, which is one of the ones you’re talking about.

They appear to be the same pages. Other than they’re

obviously separated in your case and do not have the

certification on that, they appear to be the same pages.

Q And in the same order?

A Yes, sir.

[26] Q . All right.

You will notice I have labelled them in the order you

reviewed them, A, B, C, D, E, F, and G.

A Yes.

I would say that the exhibit you showed me, which

was Commonwealth’s Exhibit 21, has been taken apart.

I’m assuming that it is in the same order that it was

at trial.

Q_ All right.

Now, just so we’re clear, when you received Mr. Sen-

gel’s report, you knew that conviction order C, which is

for assault on an officer with a deadly weapon, had been

appealled and nol-prossed; is that correct?

A Yes, sir.

Q And you knew that conviction order D, which is an

affray with a deadly weapon, had been appealled to

a higher court?

A Were those convictions that occurred on the same

date?

Q That’s correct.

A I knew both offenses occurred on the same date

and both convictions occurred on the same date, yes, sir.

Q Were you aware what I have labelled E, which is

a commitment for engaging in an affray, was actually

the [27] result of an appeal from conviction D, engaging

in an affray?

A Yes, sir.

Q_ All right.

95a

So, what appears to be three convictions were, in fact,

but one?

A Yes, sir.

Q_ All right.

THE COURT: What was E, again?

MR. SHAPIRO: E, Your Honor?

THE COURT: Yes.

MR. SHAPIRO: E is a commitment to a state prison

for engaging in an affray.

BY MR. SHAPIRO:

Q Did you personally tell Steve Long or Blair Brown

of what you knew about these records? And I’m not

speaking of what you made available to them in the way

of documents. Did you ever tell them, from your mouth,

what you knew?

A Yes, sir.

Q Prior to trial?

A I don’t think I told them anything about any of the

records prior to trial. I mean, we did it through a dis-

covery process,

Q And, in fact, the first time you told them, by your

[28] own mouth, was after Mr. Evans had been con-

victed; is that correct?

A Yes, sir.

Q And that came after a bench conference concern-

ing the admissibility of these documents; is that correct?

A Yes, sir.

Q You remember that bench conference?

A Ihave a fairly good recollection.

Q And you recall then that Mr. Long made objections

to, if not all, as many of these records as he could prob-

ably object to and he didn’t want them to go to the jury;

is that correct?

A I think he only made an objection to pages 2 and 3

of this exhibit.

Q_ All right.

Do you recall 2 and 3—

96a

A (Interposing) Which is your A and B, I guess.

Q All right.

So, it was your understanding that Mr. Long was

complaining about—

THE COURT: (Interposing) Let’s get the transcript

if need be.

MR. SHAPIRO: The transcript, I intend to produce

[29] and examine from it.

BY MR. SHAPIRO:

Q Your understanding was Mr. Long was objecting

to A and B, A being an indictment or corresponding

document for breaking and entering and larceny, and

B being the conviction for a single crime of breaking

and entering and larceny; is that correct?

A My recollection was the objection, we couldn’t prove

that they—because there was no number on B, that it

was the conviction for the indictment on A.

Q_ All right.

You recall that at that bench conference Judge Wright

dealt with each of these documents in turn, asking for

comments on each?

A He asked—My recollection is he asked the defense

whether they had any objection.

Q_ All right.

Now, this was prior to you telling Mr. Long the prob-

lems you first discovered?

A Prior to my telling him from my mouth, that’s

correct.

Q And you recall Judge Wright going through what

I’ve labelled A, B, C, asking if there were any objections,

D, [30] was there any objection, E, any objection. Did

you tell Judge Wright about the problems you discovered?

A No. It was not really a problem that I discovered.

Q There’s no question pending.

A Okay.

* * * *

97a

[31] Q You had an interest in the progress of the

Evans case, no doubt, even after conviction?

A AsI do all cases, yes, sir.

Q This had been your only death penalty case, the

only case in which you had asked to send someone to the

electric chair.

A That’s correct.

Q_ All right.

Did you ask for a copy of Mr. Slonaker’s brief?

[32] A No, sir.

Q Did you appear in the Supreme Court of Virginia

to hear oral argument?

A No, sir.

Q You do read the opinions of the Supreme Court of

Virginia, do you not?

A We get them in huge packs. I give them a cursory

review, yes, sir.

Q You are charged with the responsibility of pros-

ecuting criminal offenses in Alexandria?

A That’s correct.

Q Is not it important to you, as a lawyer, as a pro-

fessional, to know what the Supreme Court of Virginia

has decided in criminal cases?

A Yes, sir.

Q That’s why you order those advance sheets?

A They come automatically, but that’s why I read

them.

Q And did you read the Evans opinion?

A I’m sure I did.

. * * a

[84] MR. SHAPIRO: Your Honor, I want to move

into evidence a copy of the Supreme Court’s decision in

Evans versus Commonwealth, decided December 4th,

1981. My only copy, unfortunately, is marked, but Mr.

Mendelson tells me there is another copy in the habeas

file.

98a

THE COURT: Any objection to that, Mr. Mendelson?

MR. MENDELSON: No, sir. I believe it’s part of

the record in this case.

THE COURT: It’s already part of the record?

MR. SHAPIRO: It is, indeed.

BY MR. SHAPIRO:

Q Mr. Kloch, I want to show you what purports to

be a copy of the Supreme Court decision in Evans versus

Commonwealth, and ask you to look at page 709. You

remember that document, don’t you?

(Document handed to the witness. )

A This document (indicating) ?

Q A copy of the Evans opinion.

A I read the Evans opinion, yes, sir.

2 * * *

[41] Q Mr. Kloch, I want to ask you several ques-

tions about the events occurring after the habeas peti-

tion was filed. You had conversations with Mr. Slonaker

from time to time, didn’t you, about the progress of the

habeas litigation?

A Yes, sir.

Q And you knew, did you not, that Mr. Slonaker had

serious problems with what happened in the case con-

cerning those records?

A In terms of the ultimate habeas, yes, sir.

Q_ All right.

And you discussed with him, did you not, your options

should Commonwealth actually concede that?

[42] A I’m sure we did at some point during the en-

tire pendency. If we didn’t discuss it, I certainly would

have been cognizant of it in my own mind.

Q Did you discuss with him the possibility of holding

a resentencing?

A Yes, sir.

Q_ All right.

ett Lslab aa

99a

And, of course, you follow the activities of the legis-

lature, do you not?

A Tosome extent, yes, sir.

Q Were you aware that S-12 was being considered?

A Yes, sir. I was aware of it, yes, sir.

Q All right.

And you discussed that with Mr. Slonaker, did you

not?

A I think to the extent that we were aware it was

pending, yes, sir.

Q You said more to each other than just S-12 is pend-

ing; you talked about it in reference to the Evans case;

is that not true?

A I suspect they were both mentioned in the same

conversation, yes, sir.

Q. All right.

[43] And you knew, did you not, that if S-12 passed it

would make your job, should you decide to try and seek

a resentencing of Mr. Evans, a lot easier; is not that

right?

A Yes, sir.

There are two theories. In fairness, it would make

it easier. More clear I think would be a better word.

Q And you and Mr. Slonaker discussed that?

A Yes, sir, I think in some manner we discussed it.

MR. SHAPIRO: Court’s indulgence.

BY MR. SHAPIRO:

Q Two more questions, and they’re disjointed ones.

One, concerning your conversation with Mr. Long back

at the sentencing phase of the trial in which you testi-

fied you pointed out to him the problems here, what did

he tell you?

A Verbatim?

Q. As best you can recall.

A The best I can recall is “leave them in there; we’ll

argue them to the jury or we’ll argue that to the jury

or we'll cover it with the jury.”

100a

Q And the other question, Mr. Kloch, again concern-

ing your bench conference with Mr. Long, Mr. Brown

and Judge Wright, concerning the admissibility of these

documents, I ask you, as Judge Wright went through

the documents, if you [44] indicated whether there was

any problem with them? Did you ever tell the judge

what you knew about these three pieces of paper, C, D,

and E?

A No, sir.

MR. SHAPIRO: No further questions.

. ” ad +

[52] BY MR. MENDELSON:

Q Now, at that point Commonwealth’s Exhibit 21 was

not even entered into evidence in the proceeding at that

point?

A At that point, that’s correct, because we were ar-

guing over those particular pages, 3 and 4, which were

A and B.

Q After resojution of pages A and B of Common-

wealth’s Exhibit 21, didn’t Investigator Lewis Pugh tes-

tify?

A Thai’s correct.

Q After he testified, there were several jury instruc-

tions that the Court then conferred with counsel and

then, before the jury was charged, you and Mr. Sengel

spoke to Mr. Long and Mr. Brown; is that correct?

A That’s correct.

Q What was the purpose of that conversation?

A As an abundance of caution for lack of a better

[53] word. I think, really, Mr. Sengel may have started

up the conversation, but I quickly joined in. An abund-

ance of caution to be sure everyone knew what we were

dealing with.

Q That’s before you introduced Commonwealth’s Ex-

hibit 21 into evidence?

A I really can’t answer that. I’d have to let the

record do that.

10la

Q Let’s take a look at the transcript to see when it

was that you moved Commonwealth’s Exhibit 21 into

evidence.

MR. SHAPIRO: Your Honor, we’ll stipulate that the

documentary evidence was given to the jury at the close

of all the evidence on the sentencing pnase; in other

words, after the conclusion of the Commonwealth’s wit-

ness.

THE COURT: All right.

BY MR. MENDELSON:

Q Now, in your conversation with Mr. Long and Mr.

Brown, when you pointed out the assault on the police

officer was nol-prossed and the defendant convicted on

the affray with a deadly weapon, what was the reaction

of Mr. Brown and Mr. Long?

A Verbally, his reaction was, as you indicated be-

fore, that he would argue that to the jury, which I ex-

pected. And other than that, there was basically no

[54] reaction. They just took it as a matter of course

and I took it that that’s what they expected to do, and

I didn’t pursue it any further. There was no surprise

or shock or anything of that nature.

Q Now, that conversation you had with counsel, that

was not all on the record, was it?

A It was not. It was while the Court was in recess

It was after the jury returned their verdict in regard

to the sentencing phase.

Q What notation did you make, if any, of what

transpired during the trial, especially with reference to

things you said to counsel that were not on the record?

A I made two notations: One about this; and one

other matter that was not on the record to the effect

that Mr. Sengel and I had revealed this information to

defense counsel and I put down, to the best of my rec-

ollection, what Mr. Long’s response was.

102a

Q_ I’ll show you what is to be marked Commonwealth’s

Exhibit 1 for purposes of this hearing, which is a copy,

and ask you, first, can you identify what it is?

(Document handed to the witness. )

A I guess it would be called the prosecution sheet.

It’s a sheet that goes on the inside, the front sheet of a

[55] felony case. It sets forth what the charge is, who

counsel is, and any Court action notes.

Q Allright.

Mr. Shapiro has indicated to me that he wishes to see

the original of that. Do you have that?

A Yes, I have it in my file.

May I, Your Honor?

THE COURT: Sure.

Do you know where it is, Mr. Mendelson?

THE WITNESS: I ean find it quicker, Your Honor.

It’s quite an extensive file.

(Whereupon, the witness temporarily left the witness

stand to retrieve the file and, thereafter, resumed the

witness stand.)

BY MR. MENDELSON:

Q Using the original of Commonwealth’s Exhibit 1,

can you tell the Court what your notations read? For

the record, what does the notation say?

A ‘Recess before argument on”—do you want that,

or the entire one? There are two notes I wrote.

Q The note that pertains to the issue in question

here today.

A At recess before argument on the sentencing part

of [56] the trial, I and Randy Sengel pointed out to

Steve Long that one of the North Carolina orders of

conviction was merely an appeal, two others were assault

and battery. Steve said, “Just leave them in there and

we'll tell the jury about it,” and I put my initial after it.

ORE etn A NAT AAT RS TT ERC i AN Bi St A ea sith NED iS lel

SS re a eh eee

103a

Q Now, when did you make the notation on your

case file?

A I would say sometime very shortly after the con-

clusion of the jury trial. I don’t know whether it was

the same day, the day after. I would suggest probably

the day after. It was a very exhausting trial and I

probably waited until the next day, whenever I got back.

Q Is it not true the jury came back with the sentence

and verdict late at night, nine o’clock or something like

that?

A It was late in the afternoon.

*- * 7 *

[67] STEFAN C. LONG,

was called as a witness by and on behalf of the defend-

ant, and, after having been first duly sworn, was ex-

amined and testified as follows:

DIRECT EXAMINATION

BY MR. SHAPIRO:

Q Mr. Long, would you state your name for the rec-

ord, please?

A Stefan C. Long.

Q_ And your occupation?

A Attorney-at-law.

[68] Q How long have you been attorney?

A Twenty years August 13th of this year.

Q Prior to going into private practice, what did you

do?

A Went to college and law school, and worked for a

law firm for seven years.

Q You were an Assistant United States Attorney,

were you not?

A After I got through law school, I became an As-

sistant United States Attorney.

Q And you were an Assistant Commonwealth At-

torney.

A An Assistant Commonwealth Attorney.

104a

Q You represented Wilbert Evans at his capital mur-

der trial?

A Yes, I did.

Q Along with Blair Brown?

A Right.

Q To the best of your recollection. Mr. Long, when

did you first see the Commonwealth’s sentencing ex-

hibits?

A 19, 20 and 21?

Q_ Yes, sir.

A Right before the luncheon break.

Q On the last day of trial?

[69] A On the last day when we got into the aspect

of the penalty.

Q And Exhibits 19, 20, and 21 consisted of various

records of conviction or what purported to be records of

conviction?

A Commitments, indictments, convictions and the like

from North Carolina. |

Q Did you have any strategy concerning those rec-

ords? What did you want to do with them?

A Tried to keep them out, because, quite frankly,

the way they were packaged they were confusing, at

best. But, in addition to that, there were a large num-

ber of things, so we tried to keep them out. And failing

that, we tried to minimize the effect they had by indi-

cating they were mostly misdemeanors.

Q If you had an opening to keep out any one of

those pages in 19, 20, and 21, would you have taken it?

A Oh, there’s no question about that. If I could have

kept out the convictions, I would have tried to keep them

out.

Q During the sentencing phase or prior to the sen-

tencing phase, did you have any knowledge that the pur-

ported conviction for assaulting a police officer with a

[70] deadly weapon, which I’ve labelled C on this chart.

and the one next to it, D, which is a purported convic-

Se

105a

tion for an affray with a deadly weapon, were, in fact,

not convictions at all?

A No, I didn’t.

Q If you had known that, what would you have done?

A We would have objected to them going in, partic-

ularly the assault on an officer.

Q And why was that?

A Well, because the whole aspect of the trial was the

commission of a killing on a police officer, an officer in-

volved with the law. And, certainly, that, in addition to

showing a propensity for violence, also shows a pro-

pensity for violence towards a police officer or an officer

who is involved with the law.

Q Did anyone ever say to you, Mr. Long, these pur-

ported convictions, C and D, really had been appealed

and are represented in E?

A Yes, as a matter of fact, they did. I don’t remem-

ber whom it was, but it was certainly a considerable

period of time after the trial, after the appeal to the

Virginia Supreme Court, and after the petition for writ

of certiorari to the Supreme Court had been denied.

[71] Q That’s the first time you learned of it?

A The first time I learned of it was on the writ of

habeas corpus in this case. It was either you or Mr.

Slonaker, with the Attorney General’s Office, who told

me about it.

Q I'd like to direct your attention to your closing

argument in the sentencing phase of the trial. On page

601 of the transcript of April 17, would you take a look

at the first paragraph of your closing argument?

(Transcript handed to the witness. )

A I’ve read that before today and again today.

Q Do you recall what it was you were talking about

when you said, “What looks like three convictions, there’s

only one’’?

A I certainly do.

106a

Q What was that?

A Before the arguments were made, Mr. Kloch said

to me there is, in effect, one conviction for 21 instead of

three, or what appears to be three, and that has to do

with breaking and entering and larceny and something

of that nature. When he indicated that to me, he indi-

cated he would clear it up with the jury. And I looked

again at the transcript and nothing is mentioned in

there. When I got up, [72] the first thing I did was

mention the fact that he had neglected to clear that up

with them.

Q_ All right.

I want you to look at these records of conviction again

that come from Exhibit 21. The first two, A and B,

being the breaking and entering and larceny. Are those

what you’re referring to in that first paragraph?

A That’s exactly right.

Q On document A, there appears to be two charges,

and document B there is one, and you didn’t want the

jury to know there were three?

A There was no question that if he had not said

anything to me I would not have known anything differ-

ently other than the two, what appears to be the two

different charges. That’s what was talked about.

Q Let me direct your attention to the next page of

the transcript, 602.

A I’ve looked at that before today and today again

myself.

Q And when you told the jury, and I’m quoting,

“from ’63 or ’64 there were a number of misdemeanors,”

were you including the affray wth a deadly weapon, the

assault on the police officer, and the other affray, with a

deadly [73] weapon?

A What I was talking about, Mr. Shapiro, was what-

ever was left from 19, 20, and 21. There was no specific

reference to either 19 or 20, or what was left in 21; it

was just whatever was left.

MR. SHAPIRO: Court’s indulgence for a moment.

ee

ee ee eee a ee

107a

BY MR. SHAPIRO:

Q You represented Mr. Evans, did you not, in his

appeal to the Supreme Court of Virginia, his petition for

writ of certiorari to the United States Supreme Court?

A That’s correct.

Q I know you're familiar with those documents (in-

dicating).

A I read them again this morning.

Q And in there, the Commonwealth listed, did it not,

what turned out to be these invalid convictions?

A It listed not only in the petition for—Well, not

petition, but their brief in the Virginia Supreme Court,

but in their opposition to our petition for a writ of certi-

orari or petition for certiorari from the Supreme Court

| of the United States. And in the same print, the same

chronological information was used in the opinion of the

Supreme Court of Virginia.

[74] Q If you had known that there was any prob-

lem with that recitation of prior convictions, would you

have taken any action?

A Well, if I had known that—and I’m assuming what

: you’re referring to is the fact that the assault or the

affray with the police officer and the other assault were

merged into one on appeal, which indicated a four-

) month jail sentence. First of all, I don’t think I would

; have, number one, let it go by on the appeal in my brief.

Secondly, when I received the brief from the Attorney

General’s Office, I don’t believe I would have not made

some comment to it. And, thirdly, if I had known about

it before, I don’t think I would not have made any com-

ment when I got the opposition to my petition for writ of

certiorari.

Q One more question just to be clear. Did Mr. Kloch

or Mr. Sengel say to you at trial, or during the sentencing

phase, in fact, the assault on a police officer and the

affray were really appealed and embodied in this docu-

ment?

SE

a

ee

108a

A Mr. Shapiro, I have searched that in my mind and

tried to determine, from my own independent recollec-

tion, what Mr. Kloch stated to me. And what Mr. Kloch

stated to me had reference to the larceny charges. If he

had said to me that those assaults, particularly the one

on a police [75] officér, were, in effect, only one charge,

there is one place we would have gone and that is we

would have gone very quickly and cleared it up at the

bench. That was never said.

In addition to that, if that was embodied in what he

told me, then he either would have said something to the

jury and I can assure you if he didn’t I would have said

something to the jury. And I certainly wouldn’t have

referred to something as just two items being one.

MR. SHAPIRO: No further questions, Your Honor.

* . * *

[80] BY MR. MENDELSON:

Q Mr. Long, it’s true you didn’t raise any objection

then about that particular issue in regard to the sentenc-

ing phase of trial?

A That’s correct, Mr. Mendelson. That’s right. I

had no reason to believe that that was a red herring at

that particular time, that the affray, that the assault on

the police officer was a red herring. I think I just testified

a few minutes ago the first time I found out about-+that—

other than seeing that report and, certainly, if it’s there,

[81] I guess I have knowledge of it or knowledge is im-

puted to me. But the first time it really raised a red flag

was when Mr. Sloanker or Mr. Shapiro told me it had

been nol-prossed.

Q That’s because that’s the first time it occurred to

you it was really significant?

A I wouldn’t say that.

Q_ It was not significant on June 1st, 1981?

A The problem, Mr. Mendelson, whether it was sig-

nificant to me or not is of no import. It’s whether it

was significant to the jury. And I think it would have

109a

been significant to the jury. But, of course, I can’t tell

you what those twelve people knew. If it were me and

I knew it had been nol-prossed, in my own mind it would

have been significant enough to keep it out.

Q But was it not significant enough on June lst to

raise the point to the court and ask for a rehearing?

A I just got through telling you it didn’t raise a red

flag to me. It should have, I guess. I should have been

more diligent. I should have read everything I got in the

discovery, but I didn’t, plain and simple.

MR. MENDELSON: Nothing further. Thank you.

* * * *

[83] BLAIR BROWN

was called as a witness by and on behalf of the defend-

ant, and, after having been first duly sworn, was ex-

amined and testified as follows:

DIRECT EXAMINATION

BY MR. SHAPIRO:

Q Good morning, Mr. Brown. Would you state your

name for the record, please?

Blair Brown.

How are you employed?

Self-employed attorney.

For how long have you been practicing law?

Little over six years.

And prior to that?

I was a Deputy Clerk in the Circuit Court in Alex-

andria.

Q You defended Mr. Evans along with Stefan Long?

A Yes, sir.

Q And were you present throughout the first trial,

including the sentencing phase?

A Yes. There may have been times when I was in the

hall doing one thing or another, but it all—the stages

[84] when there was anything going on, yes, I was here.

POP POP

110a

Q_ All right.

I want to direct your attention to the records of con-

viction which were contained in Commonwealth’s Exhibit

21 of that trial. You’re familiar with these, are you not?

(Documents handed to the witness. )

A Yes.

Q Did anyone ever tell you, during the course of these

procedings, that this purported conviction for assaulting

a police officer had been nol-prossed on appeal?

A No.

Q Or that this purported conviction for an affray with

a deadly weapon was, in fact, the same as this additional

conviction for assault or an affray with a deadly weapon

on appeal?

A No.

Q Had you known that, would you have taken any

action?

A I would have vigorously objected to the admissi-

bility of all but those which were, in fact, convictions,

that last one.

Q Why was that?

A Because the statute under the sentencing phase

clearly says you’re only entitled to records of conviction

to [85] be entered on the basis on which the Common-

wealth is proceeding in the case.

Q Even if the statute allowed things other than con-

victions, if you knew that those were not, in fact, con-

victions, would you, in fact, have taken any action?

A That’s sort of a non sequitur. It does, so I don’t

know if I would. I would have objected strenuously under

any circumstances I could think of.

Q When did you first find out there was the problem

that I described to you with these records of convic-

tion we have been discussing?

A When you told me significantly after the trial.

MR. SHAPIRO: No further questions.

* * * *

1lla

[147] JERRY P. SLONAKER,

was called as a witness by and on behalf of the Common-

wealth of Virginia, and, after having been first duly

sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY MR. KLOCH:

Q Would you please state your full name and your

occupation, and how long you have been employed by the

Attorney General’s Office.

A Jerry P. Slonaker, Assistant Attorney General.

I’ve been employed as an Assistant Attorney weneral,

Criminal Division, since July of 1975.

Q And you were the Assistant that handled the direct

[148] appeal and habeas corpus on the case we are deal-

ing with today?

A That’s correct.

Q Mr. Slonaker, I want to go over a couple of things

that occurred during the pendency of this case, as well as

what your involvement was in Senate Bill 12. You’re

familiar with Senate Bill 12?

A Yes, I am.

Q Could you give the Court, please, a history in terms

of your involvement, if any, in Senate Bill 12?

A Senate Bill 12 was essentially drafted a year before

it was introduced. It was drafted by Jim Culp of our

office. For reasons unknown to me, it was not introduced

or, if it was introduced, it never got out of committee.

Q In the ’82 session?

A That’s correct.

Subsequently, not too long before the memorandum

which I prepared on September 9th, the Deputy Attor-

ney General in charge of the Criminal Division came to

me and Jim Culp and indicated to us he was interested in

having this bill introduced and he wanted Jim Culp and

I to prepare a memorandum explaining the purpose of the

bill and outlining the various reasons why it should be

introduced.

112a

[149] Q And was that done?

A It was done, that’s correct.

Q_ All right.

And this was proposed as emergency legislation, was

it not?

A That’s right.

Q For what reason was that?

A Well, it had been a year since—really over a year

since the Patterson case had been decided. All of us

working in the habeas section felt that this was a prob-

lem that needed to be addressed. We were quite aware

that in every capital murder case in Virginia there has

been a major attack made collaterally with habeas

corpuses, especially to the sentencing phase of the trial.

This left the situation it allowed as to what an appropri-

ate remedy was. The Patterson case was open to some

interpretation, but it appeared to us to be a significant

problem. Originally, I felt Patterson mandated a life

sentence back when I wrote the memorandum along with

Jim Culp on September 9th. Consequently, our office re-

viewed the Patterson decision further and came to the

conclusion that Patterson did not foreclose bringing back

the original jury; that might or might not be a viable

remedy in a given case, but our office [150] takes that

position and has maintained it.

Q You, more or less, switched your povition from a

mandated life sentence to argue there was an opportunity

to bring back the same jury?

A That’s right.

Q It did foreclose bringing back a new jury?

A That’s correct. That’s right.

Q. All right.

Now, incidentally, that memorandum, did that have

any reference whatsoever to the Evans case?

A Absolutely not.

Q How about after that, Mr. Slonaker, what involve-

ment did you have in Senate Bill 12?

113a

A I took the bill that Jim Culp had drafted, sat down

with him. I think we made a few polishing changes to

it, but it was essentially as he had drafted.

Q In 1981?

A ’81.

I then worked with him to prepare the memorandum

fro Don Geering, as per his request, to lay out why we

felt legislation was needed and why it was needed as

emergency legislation.

Q September 9th, 1982?

[151j A That’s correct, right.

Q Okay.

Afte. that particular memorandum, did you have any

other input in Senate Bill 12?

A Yes, I did. Mr. Geering, as Deputy in charge of

the Criminal Division, has primary responsibility on all

legislation drafted by this division. He does, however, on

all bills have some backup people, because occasionally

he’s required to be out of town and unavailable. So, he

asked Jim Culp and I to be the backup for that bill.

Now, I had some further involvement if you want

me to go into that.

Q_ All right.

A The bill was called before the Senate Court of

Justice Committee. I think that was on January 19th.

Jim Culp was going to testify before the Senate com-

mittee. He asked that I accompany him to the Senate

committee so that I could—we could put our heads to-

gether if any question came up. He was to do the testi-

mony. He did that. Subsequently, I was advised by the

House to appear to testify. I did appear one date. The

bill was not called. I had to go out of town and Jim

Culp appeared, but I don’t think he testified. I think

the bill passed without any testimony [152] being given

in the House.

Q As it turned out, you never testified in reference

to that?

A That’s correct.

1l4a

Q Do you know when the bill ultimately passed the

General Assembly?

A Yes, I do, 12:44 p.m. on February 22nd.

* * * *

{[166] Q At the time error

This text is long and has been trimmed here. Open the source document for the complete record.