# Opposition Brief — Evans v. Thompson (No. 89-516)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989

## Text

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No. 89-516 5
LOSEPH F. SFANIOL, JR.
an CLERK

In The

Supreme Court of the United States
October Term, 1989

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WILBERT LEE EVANS,

Petitioner,

CHARLES THOMPSON, SUPERINTENDENT,

Respondent.

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On Petition For A Writ Of Certiorari To The
United States Court Of Appeals For The Fourth Circuit

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RESPONDENT'S BRIEF IN OPPOSITION

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Mary SuE TERRY
Attorney General of Virginia
*DONALD R. Curry

Senior Assistant Attorney General
Supreme Court Buildin
101 North Eighth Street
Richmond, Virginia 23219
(804) 786-4624

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

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IV.

QUESTIONS PRESENTED

Whether the courts below correctly determined
that resentencing petitioner to death pursuant to a
procedurai statute, which became effective after
petitioner’s first sentencing proceeding but before
his original death sentence was set aside, violated
neither the ex post facto nor equal protection
clauses of the Constitution.

Whether the courts below, in rejecting petitioner's
claim of prosecutorial misconduct, correctly
applied 28 U.S.C. § 2254(d) to the state courts’
findings that the Commonwealth had acted in
good faith.

Whether the courts below correctly determined
that petitioner was not entitled to federal habeas
relief on the basis of a claim that he was denied the
effective assistance of counsel during the direct
appeal of his original death sentence which was
vacated more than six years ago.

Whether the courts below correctly rejected peti-
tioner’s claim that due process required the trial
court to instruct the jury that if it could not agree
upon the issue of punishment the court would
automatically impose a life sentence.

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED ....... 0... 0 ce cece eeeees i
TABLE OF CITATIONS 0... ccc cicccccnccaeesensees iv
JURISDICTION ......... )ianiedendene Owe een es 1
CONSTITUTIONAL AND STATUTORY PROVI-
SEONG INVOLVED 1 own ccc ccc ccsscecenssassseves 1
STATEMENT OF THE CASE... .........ccceseeeess 2
STATEMENT OF BACTS.. ....50.cccccccccsewesceses 4
REASONS FOR DENYING THE WRIT...........-. 4
Preliminary Statement ..............ceceeeeseeees 4

I. THE COURTS BELOW CORRECTLY
REJECTED EVANS’ EX POST FACTO AND

EQUAL PROTECTION CLAIMS .......... 6
A. No ex post facto violation.............. 6
B. No equal protection violation ........... 12

Il. THE COURTS BELOW PROPERLY FOL-
LOWED THE MANDATE OF 28 U.S.C.
§ 2254(D) AND REJECTED EVANS’ CLAIM
OF PROSECUTORIAL MISCONDUCT ..... 16

III. EVANS’ CLAIM THAT HE WAS DENIED
THE EFFECTIVE ASSISTANCE OF COUN-
SEL ON THE DIRECT APPEAL OF HIS
ORIGINAL DEATH SENTENCE DOES NOT
WARRANT CERTIORARI REVIEW ........ 19

TABLE OF CONTENTS - Continued

Page

IV. THE COURTS BELOW CORRECTLY DETER-
MINED THAT DUE PROCESS DOES NOT
REQUIRE THAT A CAPITAL SENTENCING
JURY BE INSTRUCTED THAT IF IT IS
UNABLE TO REACH A VERDICT THE
TRIAL COURT WILL AUTOMATICALLY
IMPOSE A LIFE SENTENCE

CONCLUSION

Be GCA E2 B48 HSS 866 8

Da aee eee eae CGR EREREHAEAEEO2O RE OB OKO OO 8 SG

TABLE OF CITATIONS

Page
Cases

Arizona v. Youngblood, ___ U.S. __, 109 S.Ct. 333
SOE Ke nba Vi ebaeavaawen ee eee eee ee 19
umes . Geet, SOO UB. B67 CUR cow nnn ccc cecncees 7
Boag v. MacDougall, 454 U.S. 364 (1982) ............. 27
Brady v. Maryland, 373 U.S. 83 (1963)................ 19
Calhoun v. State, 468 A.2d 45 (Md. 1983)............ 25

Cartwright v. State, 778 P.2d 479 (Okla. Crim. App.
Erte pe mre ye oy ee err ee 12

City of Cleburne, Texas v. Cleburne Living Center, 473
Se EE EN no igie eeu dskhaenen be MUKA SS85-4655004 13

Clanton v. Muncy, 845 F.2d 1238 (4th Cir.), cert.
COE, TE DER. Re GEE wa hike ceweeecaweces 26

Coleman v. McCormick, 874 F.2d 1280 (9th Cir. 1989)
UE NDS 65 5:4.50560 nts Kan a KORA epee bans 045 86 11
Coleman v. Saffle, 869 F.2d 1377 (10th Cir. 1989)...... 11

Commonwealth v. Crenshaw, 470 A.2d 451 (Pa. 1983) .... 16
Commonwealth v. Story, 440 A.2d 488 (Pa. 1981)...15, 16
Coulter v. State, 438 So.2d 336 (Ala. Cr. App. 1982) .... 25

Dick v. State, 273 S.E.2d 124 (Ga. 1980), cert. denied,
Oe Ree, SE A ois ca eta ba wé sans owe cee ss 25

Dobbert v. Florida, 432 U.S. 282 (1977)
ry ee re Pr ee ee 6. 7, & tt, te 14,

Dutton v. Dixon, 757 P.2d 376 (Okla. Crim. App.
Ps 0:506406a5 wae ee keedneadesneues bib neweaiee teas 12

TABLE OF CITATIONS (Cont.)

Page
Eisenstadt v. Baird, 405 U.S. 438 (1972)............... 13
Engle v. Isaac, 456 U.S. 107 (1962) ..... 2... . cece nee 12

Epperly v. Booker, 235 Va. 35, 366 S.E.2d 62 (1988) .... 22
Evans v. Commonwealth, 222 Va. 766, 284 S.E.2d 816

(1981), cert. denied, 455 U.S. 1038 (1982)......... 2, 19
Evans v. Commonwealth, 228 Va. 468, 323 S.E.2d 114

(1984), cert. denied, 471 U.S. 1025 (1985)....... passim
Evans v. Thompson, 881 F.2d 117 (4th Cir. 1989)....... 3
Guthrie v. Commonwealth, 212 Va. 602, 186 S.E.2d

RS ere rr i a re eee ere 21
Hopt v. Utah, 110 U.S. 574 (1884).................. 7, 10
Houston v. State, 593 S.W.2d 267 (Tenn. 1980)........ 25
Johnson v. State, 731 P.2d 993 (Okla. Cr. App.), cert.

I, Ge Ge SPIE IP sh os 00 sc eealnacdumeackans 25
Jones v. State, 381 So.2d 983 (Miss.), cert. denied,

A Ri SA eh eo ee 25
Jordan v. Watkins, 681 F.2d 1067 (Sth Cir. 1982)...... 11

Klasing v. State, 771 S.W.2d 684 (Tex. App. 1989) .... 12
Knapp v. Cardwell, 667 F.2d 1253 (9th Cir.), cert.

Ey Se GEE MUI os vost a cn ceranenneds 11
Kring v. Missouri, 107 U.S. 221 (1833) .......... 8, 9, 10
Lane & Bowler Corp. v. Western Well Works, 261 U.S.

a BE eT Tere ee eer ort Seer rere eT 27
Lee v. State, 340 So.2d 474 (Fla. 1976) ............ 15, 16

Lowenfield v. Phelps, __ U.S. __, 108 S.Ct. 546
SPE tte ick (64 eb cc cee ea that ae 24, 26

vi

TABLE OF CITATIONS (Cont.)

Page
Marshall v. Lonberger, 459 U.S. 422 (1983)............ 18
Meller v. State, 581 P.2d 3 (Nev. 1978)............... 11
Miller v. Florida, 482 U.S. 423 (1987). ...............48. 7
Mills v. Maryland, __ U.S. __, 108 S.Ct. 1860
a ek, acc eeu k wr Rlcethe eae Can ee kee a 25, 26
Murray v. Giarratano, ___ U.S. __, 109 S.Ct. 2765
Ee een poner ar) SA array ees 5
New Haven Inclusion Cases, 399 U.S. 392 (1970) ...... 21
O’Dell v. Commonwealth, 234 Va. 672, 364 S.E.2d
491, cert. denied, 109 S.Ct. 186 (1988).............. 21
Patterson v. Commonwealth, 222 Va. 653, 283 S.E.2d
iG 2.2. a cs ta ceakh ce wae hen teaes 6, 12, 13, 16
People v. Kimble, 749 P.2d 803 (Cal.), cert. denied,
fe 8 Ramo nee ee 25
Pickens v. State, 750 S.W.2d 230 (Ark. 1987).......... 12
Poland v. Arizona, 476 U.S. 147 (1986) ............... 22
Rice v. Sioux City Cemetery, 349 U.S. 70 (1955)....... 27
Ross v. Moffitt, 417 U.S. 600 (1974) ...... 6.6.0... ae. 19
Smith v. Murray, 477 U.S. 527 (1986) .........-...55. 20
State v. Copeland, 300 S.E.2d 63 (S.C. 198%), cert.
IEE, Se UP. TO CRUE av oct ee cee decwasanss 25
State v. Creekpaum, 732 P.2d 557 (Alaska App.
es eae bes eau ene baka stad hak is 12
State v. Loyd, 459 So.2d 498 (La. 1984). .............. 24

State v. Norton, 675 P.2d 577 (Utah 1983), cert.
a ER | es es Pe 12

vii

TABLE OF CITATIONS (Cont.)

Page
State v. Ramseur, 524 A.2d 188 (N.J. 1987) ........... 25
State v. Rodgers, 242 S.E.2d 215 (S.C. 1978) .......... 11
State v. Smith, 292 S.E.2d 264 (N.C.), cert. denied,

Se SI WOE CIE N85 6.556 5an son ec cbnne chaccese 25
State v. Williams, 392 So.2d 619 (La. 1980)........... 24
Strickland v. Washington, 466 U.S. 668 (1984)..20, 21, 22
Sumner v. Mata, 455 U.S. 591 (1982)................. 18
Thigpen v. Thigpen, 541 So.2d 465 (Ala. 1989)........ 11
United States v. Arpan, 861 F.2d 1073 (8th Cir.

1988), vacated, 867 F.2d 1188 (8th Cir. 1989) ....... 25
United States v. Lovasco, 431 U.S. 783 (1977) ......... 19
United States v. Marion, 404 U.S. 307 (1971).......... 19
United States v. Morrison, 449 U.S. 361 (1981)........ 18
Weaver v. Graham, 450 U.S. 24 (1981) ............... 6, 7

STATUTES AND RULES
oe ee er ee ere rrr rT ese 1
28 U.S.C. §2254(d) 0... 0eeceeececeeceeeeceueeeees 16, 18
Be ee Ee WHE bn dininno ccs ceweccevsncanwade 16
§ 18.2-10(a), Code of Virginia....................... 10
§ 18.2-31tH), Code of Virginia ..... 2.2... cece ccneee 10
SS UP.AewO.d,, COOGD OE WHIIER . . occcne cn nesinnccs 4
§ 19.2-264.3, Code of Virginia........... 6, 7, 12, 13, 16
Rule 6, Rules Governing §2254 Cases ................ 3
SPAR. PRIN BP COk & 66:05 6545 5a ea ceaekseunkedasenees 28

No. 89-516

”
—

In The

Supreme Court of the United States
October Term, 1989

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WILBERT LEE EVANS,

Petitioner,

CHARLES THOMPSON, SUPERINTENDENT,
Respondent.

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On Petition For A Writ Of Certiorari To The
United States Court Of Appeals For The Fourth Circuit

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RESPONDENT'S BRIEF IN OPPOSITION

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JURISDICTION

The petitioner asserts that the jurisdiction of this
Court is grounded upon 28 U.S.C. § 1254(1).

sa.
. 4

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

The relevant constitutional and statutory provisions
involved are set forth in the Petition for Writ of Certiorari

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

tion at la-2a.!

& —_—
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STATEMENT OF THE CASE

On April 17, 1981, a jury in the Circuit Court of the
City of Alexandria, Virginia, convicted the petitioner,
Wilbert Lee Evans, of capital murder. After a separate
hearing on the issue of punishment, the same jury recom-
mended the death penalty. On June 1, 1981, the Circuit
Court imposed the death penalty in accordance with the
jury’s verdict. The conviction and death sentence were
affirmed by the Supreme Court of Virginia on December
4, 1981. Evans v. Commonwealth, 222 Va. 766, 284 S.E.2d
816 (1981) (Evans I). This Court denied a petition for a
writ of certiorari on March 22, 1982. 455 U.S. 1038 (1982).

Petitioner initiated state habeas corpus proceedings
in April, 1982. He amended his habeas petition on two
occasions, the second in late December, 1982. The Com-
monwealth confessed error in the petitioner’s sentencing
proceeding on April 12, 1983, and on May 2, 1983, the
Circuit Court of the City of Alexandria entered an order
setting aside Evans’ death sentence. On September 21,
1983, the Circuit Court conducted an ev'dentiary hearing
to determine whether Evans should be resentenced or his
sentence reduced to a life term. By an order dated Octo-
ber 12, 1983, the Circuit Court directed that Evans be
resentenced.

1 References to the Petition for Writ of Certiorari will
hereafter be designated “(Ptn. __).” References to the peti-
tioner’s appendix will be designated “(App. ___).” And refer-
ences to the appendix to this brief in opposition will be
designated “(A. ___).”

On January 30, 1984, the Circuit Court impaneled a
new jury for a resentencing hearing, and at the conclu-
sion of that proceeding the jury recommended the death
penalty. On March 7, 1984, the Circuit Court imposed the
death penalty in accordance with the jury’s verdict. The
Supreme Court of Virginia affirmed Evans’ death sen-
tence on November 30, 1984. Evans v. Commonwealth, 228
Va. 468, 323 S.E.2d 114 (1984) (Evans II). This Court again
denied certiorari. 471 U.S. 1025 (1985).

On May 14, 1985, Evans reinitiated state habeas
corpus proceedings. An evidentiary hearing was con-
ducted in the Circuit Court of the City of Alexandria on
December 16, 1985, and Evans’ habeas petition was dis-
missed in its entirety by an order dated June 3, 1986.
Evans’ petition for appeal to the Virginia Supreme Court
was refused in an order dated February 26, 1987. This
Court denied certiorari a third time on June 22, 1987. 483
U.S. 1010 (1987).

Evans filed his federal habeas petition in the United
States District Court for the Eastern District of Virginia on
October 5, 1987. On November 17, 1987, he filed a motion
under Rule 6, Rules Governing § 2254 Cases, requesting
discovery of the Commonwealth’s files. In that motion,
Evans alleged that the files contained evidence which
would support his claim of prosecutorial misconduct. The
Commonwealth opposed the motion, but agreed to an in
camera review Of the files by the District Court. On April
12, 1988, after conducting such a review and finding no
support whatsoever for Evans’ allegation, Judge Robert
R. Merhige, Jr. denied the discovery motion. On August 4,
1988, in a lengthy written opinion, Judge Merhige care-
fully considered and rejected each of Evans’ claims. (App.
17a-28a).

The United States Court of Appeals for the Fourth
Circuit unanimously affirmed Judge Merhige’s decision
on August 2, 1989. Evans v. Thompson, 881 F.2d 117 (4th

Cir. 1989). (App. 2a-16a). Evans petitioned for a rehearing
en banc, but not a single judge on the entire Fourth
Circuit voted to rehear the case. (App. 1a).

&..
7

STATEMENT OF FACTS

On January 27, 1981, the petitioner, a prisoner, fatally
shot a deputy sheriff who was escorting him to jail in
Alexandria. Evans had pretended to be a willing witness
for the Commonwealth, but his sole purpose in cooperat-
ing with the authorities had been to engineer an escape
after being brought to Virginia in custody from North
Carolina. He planned to kill anyone who attempted to
prevent his escape and he acted on this intent when he
killed the victim. (App. 3a).

The evidence at his resentencing hearing revealed
that Evans had a significant prior history of violent crimi-
nal conduct. The jury’s imposition of the death penalty
was based upon a finding of the petitioner’s “future
dangerousness.”2 See Va. Code § 19.2-264.2. (Ptn. at SA-1).

REASONS FOR DENYING THE WRIT
Preliminary Statement

All of the claims which Evans has raised in his pre-
sent petition have previously been presented to this
Court. In 1985, after the Virginia Supreme Court had
affirmed his resentencing on direct appeal, Evans brought
his-ex post facto, equal protection, and due process claims

2 Evans’ reference to events outside the record which
allegedly occurred after his resentencing trial (Ptn. 9 n.7, 29
n.40) are not only improper but are manifestly irrelevant to the
issues raised in his petition.

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FPO,

to this Court. (See Questions Presented Nos. 1-3 in Evans
v. Commonwealth, No. 84-1224). In that same proceeding,
in the context of his equal protection claim, Evans also
raised his allegation of prosecutorial misconduct. (See
Evans’ petition in No. 84-1224 at 6, 16-20). Evans’ attempt
to persuade this Court to review his claims was unsuc-
cessful. And in 1987, after the conclusion of his state
habeas proceedings, Evans failed in his effort to have this
Court review his ciaim that he was denied the effective
assistance of counsel during the direct appeal of his origi-
nal death sentence. (See Question Presented No. 1 in
Evans v. Commonwealth, No. 86-1754).

In the aftermath of Evans’ prior petitions, the very
same claims which he raised then have been exhaustively
litigated and meticulously reviewed by the courts below.
The District Court Judge in this case, the Honorable
Robert R. Merhige, Jr., rejected all of Evans’ claims and
his opinion contains not even a hint of constitutional
error in petitioner’s case. (App. 17a-28a). In a similar
manner, the Fourth Circuit carefully analyzed and unani-
mously rejected Evans’ claims. (App. 2a-16a). Moreover,
when Evans petitioned for rehearing, not a single mem-
ber of the Fourth Circuit voted to rehear the case. (App.
la). Under these circumstances, there is even less reason
now for this Court to grant certiorari review than there
was when the Court denied Evans’ prior petitions.

3 Judge Merhige is a jurist whose special concern for peti-
tioners facing death sentences cannot be doubted. Indeed, it
was Judge Merhige who fashioned the “right to counsel” dur-
ing state habeas proceedings for Virginia death row inmates
which was the subject of controversy in Murray v. Giarratano,
___ U.S. __, 109 S.Ct. 2765 (1989). It was no doubt because of
Judge Merhige’s reputation that Evans filed his federal habeas
petition in Richmond, where Judge Merhige presides, rather
than in Alexandria where the petition normally would have
been filed.

Nene ee ee aa"

I. THE COURTS BELOW CORRECTLY REJECTED
EVANS’ EX POST FACTO AND EQUAL PRO-
TECTION CLAIMS.

A. No ex post facto violation

At the time of petitioner’s offense, and at the time of
his first sentencing proceeding, Virginia Code § 19.2-264.3
provided that in a capital murder jury trial the sentencing
proceeding must be conducted before the same jury
which determined the defendant’s guilt. The Supreme
Court of Virginia announced such an interpretation of
§ 19.2-264.3 in Patterson v. Commonwealth, 222 Va. 653, 283
S.E.2d 212 (1981). At the time Evans’ original death sen-
tence was vacated, however, and at the time of his resen-
tencing proceeding, § 19.2-264.3 had been amended to
provide that if a death sentence were “set aside or found
invalid,” a resentencing proceeding could be held before
“a different jury” than the one which had determined the
defendant’s guilt. Petitioner contends that the application
of the amended version of § 19.2-264.3 to his case consti-
tutes an ex post facto violation.

In Weaver v. Graham, 450 U.S. 24 (1981), this Court
held:

Critical to relief under the Ex Post Facto Clause
is not an individual's right to less punishment, but
the lack of fair notice and governmental
restraint when the legislature increases punish-
ment beyond what was prescribed when the crime
was committed.

450 U.S. at 30 (emphasis added). And in Dobbert v. Florida,
432 U.S. 282 (1977), the Court recognized that the proper
focus of an ex post facto analysis is “the quantum of
punishment attached to the crime” at the time of the
offense. 432 U.S. at 294. The Court also made it quite clear
that if the change in a particular law is either “pro-
cedural” or “ameliorative” there can be no ex post facto

eee

violation. 432 U.S. at 292, n.6, citing Beazell v. Ohio, 269
U.S. 167 (1925).

In Miller v. Florida, 482 U.S. 423 (1987), this Court
concluded that “even if a law operates to a defendant’s
detriment, the ex post facto prohibition does not restrict
‘legislative control of remedies and modes of procedure
which do not affect matters of substance.’ ” 482 U.S. at
433, quoting Dobbert 432 U.S. at 293. Under Miller, “no ex
post facto violation occurs if the change in the law is
merely procedural and does not ‘increase the punish-
ment, nor change the ingredients of the offense or the
ultimate facts necessary to establish guilt.’ ” 482 U.S. at
433, quoting Hopt v. Utah, 110 U.S. 574, 590 (1884). The
Fourth Circuit and the District Court meticulously
analyzed Evans’ claim under this Court’s precedents and
correctly concluded that the claim must fail. (App. 5a-8a,
20a-22a).

As the Virginia Supreme Court found in Evans II,
petitioner “had notice at the time of the offense” as to
“the quantum of punishment attached to the crime,” and
the change in § 19.2-264.3 was merely an “adjustment in
the method of administering that punishment that [was]
collateral to the punishment itself.” 228 Va. at 476-477,
323 S.E.2d at 119. The Fourth Circuit and the District
Court reached the same conclusion. (App. 6a, 21a). In no
sense can it be reasonably said that the amendment of
§ 19.2-264.3 increased the punishment attached to Evans’
offense “beyond what was prescribed when the crime
was consummated.” See Miller, 482 U.S. at 430, quoting
Weaver, 450 U.S. at 30.

With respect to whether the change in the law at
issue here was “procedural,” this case cannot be distin-
guished from Dobbert v. Florida in any meaningful way. In
Dobbert a defendant, who had been sentenced to death by
the trial judge despite the jury’s recommendation of a life
sentence, argued that a change in Florida law had

a

deprived him of a “substantial right to have the jury
determine, without review by the trial judge, whether the
death penalty should be imposed.” 432 U.S. at 292. This
Court rejected that argument and ruled that such a
“change in the role of the judge and jury in the imposi-
tion of a death sentence” was merely procedural, and
therefore applying the new law to Dobbert did not consti-
tute an ex post facto violation. Id.

As in Dobbert, the change in the law in Evans’ case
was merely procedural in that its only effect was to alter
the procedures surrounding the imposition of the death
penalty and did not increase the quantum of punishment
attached to Evans’ crime. At the time of his offense,
Evans had no more of a “substantial right” to a life
sentence if or when his death sentence was ever set aside,
or to a sentencing by the same jury which had convicted
him, than Dobbert had a “substantial right” to have a jury
impose sentence without the intervention of a trial judge.
In both cases, “ ‘the crime for which the . . . defendant
was indicted, the punishment prescribed therefor, and the
quantity or the degree of proof necessary to establish his
guilt, all remained unaffected by the subsequent statute.’ ”
Miller, 482 U.S. at 435, quoting Dobbert 432 U.S. at 294.4

The courts below also correctly concluded that
Evans’ reliance upon Kring v. Missouri, 107 U.S. 221

4 Since the change in Virginia law was clearly “pro-
cedural,” no ex post facto violation could be found even if the
change had not been “ameliorative.” See Dobbert 432 US. at
292, n.6. The Fourth Circuit, however, agreed with the Virginia
Supreme Court that the change was also ameliorative because
its purpose was to protect a defendant’s right “to a fair and
impartial determination of his punishment” by a jury “free of
any taint arising from errors during the first trial.” (App. 8a,
quoting Evans II, 228 Va. at 477, 323 S.E.2d at 119).

(1883), is misplaced. (App. 7a, 21a-22a). At the time of the
offense in Kring, the rule in Missouri was that if a person
were convicted of second-degree murder, he was thereby
forever acquitted of first-degree murder. 107 U.S. at 223.
Prior to Kring’s trial, the Missouri Constitution was
amended so that if the conviction of a person who had
pleaded guilty to second-degree murder were reversed,
that person could be convicted of first-degree murder
upon retrial. 107 U.S. at 224. Upon a plea of guilty, Kring
was convicted of second-degree murder and was sen-
tenced to twenty-five years in prison. He appealed, how-
ever, on the basis of a breached plea agreement and his
conviction was reversed. Upon retrial, Kring was con-
victed of first-degree murder and sentenced to death. 107
U.S. at 221. This Court ruled in Kring that applying the
new law to the defendant rather than the law in effect at
the time of his offense violated the ex post facto clause. 107
U.S. at 235-236.

Evans’ case, however, is readily distinguishable from
Kring.> The Court’s primary concern in Kring was articu-
lated as follows:

The case rests then upon the proposition that,
having an erroneous sentence rendered against
him... by the court, [Kring] could only take the
steps which the law allowed him to reverse that
sentence at the hazard of subjecting himself to
the punishment of death for another and different
offense of which he stood acquitted by the judgment
of that court.

5 When Evans brought his ex post facto claim to this Court
in 1985, he implicitly acknowledged that Kring is inapposite. A
review of his 1985 petition and reply brief (No. 84-1224)
reveals that Kring was not even cited as authority for his claim
even though he had relied upon Kring in the Virginia Supreme
Court on direct appeal. See Evans II, 228 Va. at 477, 323 S.E.2d
at 119.

10

107 U.S. at 235 (emphasis added). Unlike the defendant in
Kring, Evans has never been convicted of a lesser offense
for which the death penalty is not an authorized punish-
ment, nor has he ever been acquitted of any offense for
which the death penalty is authorized. And unlike the
situation in Kring, Evans “hazarded” nothing in terms of
a greater offense or punishment by seeking to overturn
his original death sentence.

In Hopt v. Utah, this Court explained Kring in the
following manner:

By the law as established when the offense was
committed, Kring could not have been punished
with death after his conviction of murder in the
second degree, whereas, by the abrogation of
that law by the constitutional provision subse-
quently adopted, he could thereafter be tried
and convicted of murder in the first degree, and
subjected to the punishment of death. Thus the
judgment of conviction of murder in the second
degree was deprived of all force as evidence to
establish his absolute immunity thereafter from
punishment for murder in the first degree. This
was held to be the deprivation of a substantial
right which the accused had at the time the
alleged offense was committed.

Hopt, 110 U.S. at 589. Thus, as the Fourth Circuit found
(App. 7a), Kring stands for the rather unremarkable prop-
osition that if, at the time of the offense, a defendant is on
notice that if he commits a certain offense (second-degree
murder) he can never be subjected to a death sentence,
imposition of a death sentence after conviction for that
offense violates the ex post facto clause. Evans, however,
has always been on notice that death was a permissible
punishment for his offense. See Va. Code §§ 18.2-31(f) and
18.2-10(a). (A. 1a).

11

The Virginia Supreme Court, the District Court, and
the Fourth Circuit have all analyzed Evans’ claim under
the proper standard and ail have concluded that there has
been no ex post facto violation. The petitioner has failed to
show any circumstances which would warrant the grant-
ing of certiorari.®

6 Evans’ attempt to show a “conflict” among the federai cir-
cuits has no basis in fact. (Ptn. 10 n.9). In Coleman v. McCormick, 874
F.2d 1280 (9th Cir. 1989) (en banc), the Ninth Circuit expressly
stated, “Because we decide this case on due process grounds,
rather than under the ex post facto clause as in Dobbert, we do not
reach Coleman’s ex post facto argument.” 874 F.2d at 1286 n.7. Thus,
Coleman v. McCormick certainly cannot form the basis for an argu-
ment that there is a split among the circuits concerning the proper
application of Dobbert. To the contrary, the Fourth Circuit’s decision
in Evans’ case is consistent with the decisions of every other circuit
which has applied Dobbert to similar ex post facto claims. See
Coleman v. Saffle, 869 F.2d 1377, 1385-1387 (10th Cir. 1989) (rejecting
ex post facto claim where under old law petitioner’s death sentence
would have automatically been reduced to life sentence if jury
found erroneous mitigating circumstance). See also Jordan v. Wat-
kins, 681 F.2d 1067, 1079 (Sth Cir. 1982); Knapp v. Cardwell, 667 F.2d
1253, 1262-1263 (9th Cir.), cert. denied, 459 U.S. 1055 (1982) (rejecting
ex post facto claim where petitioner claimed right to life sentence
under state law). Evans’ reliance upon several state cases (Ptn. 11
n.9) is equally unsuccessful. Thigpen v. Thigpen, 541 So.2d 465 (Ala.
1989), does not purport to decide a federal ex post facto claim, but
rather, expressly states that resentencing Thigpen “would indis-
putably violate § 7” of the Alabama Constitution. 541 So.2d at 467.
Similarly, the express basis for the decision in State v. Rodgers, 242
S.E.2d 215 (S.C. 1978), was not the ex post facto clause, but rather,
the court’s conclusion that the state legislature had not intended
the new statute to be applied to defendants who were tried before
the statute’s effective date. 242 S.E.2d at 218. Meller v. State, 581
P.2d 3 (Nev. 1978), does not even mention the ex post facto clause,

(Continued on following page)

——— a

12

—

B. No equal protection violation

The essence of Evans’ equal protection claim is his
allegation that he and the defendant in Patterson v. Common-
wealth were “similarly situated,” and yet, the Virginia
Supreme Court applied the original version of § 19.2-264.3 to
Patterson’s case and commuted his death sentence to a life
sentence, while the Court applied the amended version of
the statute to Evans’ case and affirmed the reimposition of
his death sentence.”? The courts below, however, carefully
analyzed the claim and rejected it for the same reason it had
been rejected on direct appeal by the Supreme Court of
Virginia: the classification at issue in this case is rationally
related to the purpose of the statutory amendmert.

In Evans II, the Virginia Supreme Court found that the
purpose of the amendment to § 19.2-264.3 was merely

(Continued from previous page)

and Evans concedes that the lower appellate court ruling in
State v. Creekpaum, 732 P.2d 557 (Alaska App. 1987), has been
overruled by the Alaska Supreme Court. 753 P.2d 1139 (1988).
Thus, none of the state cases Evans has cited can support his
“conflict” argument. To the contrary, all of the state courts
which have decided a federal ex post facto issue similar to
Evans’, have, like the Virginia Supreme Court, applied Dobbert
and found no violation. See, e.g., Cartwright v. State, 778 P.2d
479 (Okla. Crim. App. 1989), overruling Dutton v. Dixon, 757
P.2d 376 (Okla. Cr. App. 1988); Klasing v. State, 771 S.W.2d 684,
686-687 (Tex. App. 1989); Pickens v. State, 730 S.W.2d 230,
234-235 (Ark. 1987); State v. Norton, 675 P.2d 577, 585-588 (Utah
1983), cert. denied, 466 U.S. 942 (1984).

? To the extent Evans is merely alleging that state law, ie.
the Patterson decision, was misapplied in his case, such a claim
is clearly insufficient to constitute a denial of equal protection.
See generally Engle v. Isaac, 456 U.S. 107, 121 n.21 (1982) (mere
error of state law not basis for federal habeas relief).

neeuneneetneereneeene

13

to change “the procedure to be followed if a death sen-
tence is set aside... .” 228 Va. at 482, 323 S.E.2d at 122.
Both the Fourth Circuit and the District Court agreed that
this was the purpose of the amendment. (App. 9a, 25a).
Prior to the statutory change, any jury sentencing in a
capital case had to be done by the same jury which had
convicted the defendant of capital murder. Patterson, 222
Va. at 660, 283 S.E.2d at 216. The Court ruled in Evans II,
however, that Evans and Patterson were “not similarly
situated .. . with respect to the amendment to the death
penalty statutes.” 228 Va. at 481, 323 S.E.2d at 122. The
Court’s basis for this conclusion was the fact that Evans’
death sentence had been set aside after the effective date
of the statutory amendment, whereas Patterson’s death
sentence was judicially invalidated before the effective
date of the amendment. 228 Va. at 482, 323 S.E.2d at 122.

Thus, the effect of the Court’s decision in Evans II
was to create two classes with respect to the applicability
of § 19.2-264.3: those capital defendants whose death
sentences were set aside prior to the effective date of the
statutory change; and those capital defendants, like
Evans, whose death sentences were set aside and whose
resentencing proceedings commenced after that date.
Under City of Cleburne, Texas v. Cleburne Living Center, 473
U.S. 432, 440 (1985), this classification must be presumed
valid and must be sustained if it is rationally related to a
legitimate governmental objective. And, as both courts
below correctly noted (App. 9a, 25a), the “rational basis”
test must be applied in the context of the particular
objective of the legislation in question. See Eisenstadt v.
Baird, 405 U.S. 438, 447 (1972).

Every judge and every court which has reviewed
Evans’ claim has found that the classification at issue is
rational. The Virginia Supreme Court found that
“{blecause the . . . statutory change affects only the pro-
cedure to be followed if a death sentence is set aside, [it

a

14

is] more rational to classify individuals potentially
affected by the change according to the time when the
individual's death sentence was set aside . . . rather than
at the time the person was originally tried and con-
victed.” Evans II, 228 Va. at 482, 323 S.E.2d at 122. Judge
Merhige concluded that the amendment “is a procedural
change, and it is rational that its application be tied to the
event which necessitates a resentencing procedure: vacat-
ing the original sentence.” (App. 25a). And the Fourth
Circuit found that “to apply the amendment only to those
defendants whose sentences were vacated following the
amendment’s enactment is entirely rational.” (App. 9a).
When such a wide spectrum of courts and judges has
unanimously agreed that the classification is rational, it is
pointless for Evans to persist in his allegation that the
rational basis test has not been satisfied. Indeed, this
broad consensus of judicial opinion strongly militates
against the exercise of this Court’s certiorari power.

Both courts below correctly concluded (App. 9a, 25a)
that Evans’ case could not be reasonably distinguished
from Dobbert where this Court found “nothing irrational”
about Florida’s decision to apply an amended death pen-
alty statute to the petitioner in that case. 432 U.S. at 301.
Evans has attempted to distinguish Dobbert by emphasiz-
ing that in rejecting Dobbert’s equal protection claim this
Court noted that “the new statute was in effect at the time
of his trial and sentence,” 432 U.S. at 301, and he points
out that unlike the situation in Dobbert, the amended
statute which was applied to him was not passed until
“two years after [his] trial, and more than a year after his
death sentence had become final.” (Ptn. 17). This “distinc-
tion,” however, ignores the obvious fact that in Dobbert a
new procedural statute was permitted to govern the pro-
ceedings, t.e. Dobbert’s “trial and sentence,” which
occurred after the effective date of the new law. Similarly,
in Evans’ case the new procedural statute has been per-
mitted to govern the proceeding, 1.e. the resentencing

15

trial, which was conducted after the amendment became
effective. Thus, the type of a “line-drawing” done by the
Virginia Supreme Court in Evans’ case is the same type of
“line-drawing” approved by this Court in Dobbert.®

The two state cases relied upon by Evans, Common-
wealth v. Story, 440 A.2d 488 (Pa. 1981), and Lee v. State,
340 So.2d 474 (Fla. 1976), afford him no relief. As previ-
ously noted, whether any two given sets of defendants
are “similarly situated” for equal protection purposes
must be determined by reference to the purpose of the
particular law to be applied. Both Story and Lee involved
situations, unlike Evans’ case, where the purpose behind
the new statutes in question was to enact a constitutional
death penalty statute to replace one which had been
declared unconstitutional. The defendants in those cases,
unlike Evans and unlike the defendant in Dobbert, had
been tried and convicted pursuant to an unconstitutional
statute just like the other class of defendants referred to
in those cases whose sentences had been commuted to
life imprisonment. Thus, in both Story and Lee, improper
distinctions had been drawn between sets of defendants
who were indeed “similarly situated” with respect to the
particular statutes in question. See Story,? 440 A.2d at 491;
Lee, 340 So.2d at 475.

8 While “drawing the line” according to when a death
sentence is vacated is conceivably susceptible to abuse by
intentional manipulation, that is an entirely separate claim and
Evans’ allegation that the Commonwealth intentionally manip-
ulated his case has been rejected by every court which has
considered it. (See below at 16-19).

% Story is also distinguishable from Evans’ case in that it
was based upon a finding by the Supreme Court of Pennsylva-
nia that “the Legislature did not intend the [new statute] to
apply to an offense committed prior to its effective date.” See

(Continued on following page)

a ee

16

Given the procedural purpose of the statute at issue in
Evans’ case, the Supreme Court of Virginia, the District
Court, and the Fourth Circuit have all correctly concluded
that Evans and the defendant in Patterson were not “similarly
situated” for equal protection purposes. Neither Story nor Lee
casts any doubt upon the correctness of that conclusion.

Il. THE COURTS BELOW PROPERLY FOLLOWED
THE MANDATE OF 28 U.S.C. § 2254(D) AND
REJECTED EVANS’ CLAIM OF PROS-
ECUTORIAL MISCONDUCT.

Despite the fact that his claim has been rejected, in turn,
by a Virginia trial court judge, the unanimous Supreme
Court of Virginia, a federal district court judge, and now, the
unanimous Fourth Circuit, Evans persists in his allegation
that the Commonwealth of Virginia has been guilty of “per-
vasive, gross and admitted misconduct.”!° (Ptn. 2). The claim
is entirely without merit.

(Continued from previous page)

Commonwealth v. Crenshaw, 470 A.2d 451, 454 (Pa. 1983). See also
Story, 440 A.2d at 489. Evans does not, and could not reason-
ably contend that the Virginia General Assembly did not
intend for the amended version of § 19.2-264.3 to be applied to
a case, like his, where the death sentence was invalidated after
the effective date of the amendment. See Va. Code § 1-16
(“proceedings . . . shall conform, so far as practicable, to the
laws in force at the time of such proceedings”). (A. 1a).

10 Evans’ petition is littered with mischaracterizations and
half-truths. For example, Evans implies that the Common-
wealth has admitted that it knowingly used false evidence.
(Ptn. 2, 21-22). Nothing could be farther from the truth. The
Commonwealth has consistently denied every allegation of
bad faith or intentional error, and every court which has
reviewed Evans’ claim has decided the matter in the Common-
wealth’s favor. None of these courts has even suggested that
the Commonwealth knowingly used false evidence.

17

When Judge Merhige was presented with Evans’
claim, he concluded as follows:

On September 21, 1983, the trial court conducted
an extensive evidentiary hearing on Evans’
claims of misconduct 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 prosecu-
tion 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 S.E.2d at 119-121.

In making these factual findings, the trial court
relied on an extensive evidentiary hearing and
an in camera review of the original files of the
Governor’s Office and the Attorney General’s
Office relating to drafting, introduction, consid-
eration, and approval of the 1983 amendment.

'! More specifically, the Supreme Court of Virginia found
that “credible evidence supports the tri court’s finding of
fact” concerning the trial prosecutor, Evans II, 228 Va. at 478,
323 S.E.2d at 119, and that the trial court’s finding that the
Attorney General’s Office had not deliberately delayed confes-
sing error in Evans’ case was supported by “credible, uncon-
tradicted, and persuasive” evidence. 228 Va. at 479, 323 S.E.2d
at 120.

This Court has conducted a similar in camera
review, and additionally has reviewed the Attor-
ney General’s file concerning Evans’ original
direct appeal. These records fail to provide any
support for Evans’ claim of prosecutorial
misconduct.

(App. 23a-24a, footnote omitted). The Fourth Circuit also
had no difficulty concluding that the state courts had
made factual findings that the Commonwealth had acted
in good faith. (App. 10a). Thus, the record belies Evans’
assertion that the state courts “made no findings of fact at
all.” (Ptn. 19).

Both the District Court (App. 24a) and the Fourth
Circuit (App. 10a) recognized that 28 U.S.C. § 2254(d)
requires that the state courts’ findings of fact be accorded
a presumption of correctness. See Sumner v. Mata, 455 U.S.
591, 592 (1982). Both courts also found that the state
courts’ findings in this case are “fairly supported” by the
evidence. (App. 10a, 24a). See Marshail v. Lonberger, 459
U.S. 422, 432 (1983).

The Commonwealth does not contend, and has never
contended, that the fact that the petitioner’s first death
sentence was based, at least partially, upon evidence that
was erroneous or misleading was a situation that did not
demand a remedy. To the contrary, it was because of that
defective evidence that the Commonwealth confessed
error. The only remedy to which Evans was entitled
under the Constitution, however, was a fair and impartial
resentencing proceeding.

Even where the government is guilty of “deliberate”
and “egregious” misconduct, an accused is not entitled to
dismissal of the indictment in the absence of “demonstra-
ble prejudice.” United States v. Morrison, 449 U.S. 361,
365-367 (1981). Here, where the state courts have found
that the Commonwealth acted in good faith, and those
findings have been sustained by the courts below, there is

19

simply no constitutional basis for concluding that the
error committed at Evans’ original sentencing proceeding
barred any subsequent imposition of a death sentence. !?
See Arizona v. Youngblood, ___ U.S. __, 109 S.Ct. 333, 337
(1988); United States v. Lovasco, 431 U.S. 783, 790, 795-796
(1977); United States v. Marion, 404 U.S. 307, 325 (1971) (all
three cases emphasizing petitioner’s burden to show bad
faith in order to sustain due process claim).

III. EVANS’ CLAIM THAT HE WAS DENIED THE
EFFECTIVE ASSISTANCE OF COUNSEL ON
THE DIRECT APPEAL OF HIS ORIGINAL
DEATH SENTENCE DOES NOT WARRANT
CERTIORARI REVIEW.

Evans contends that he was denied the effective
assistance of counsel when, in Evans I, his appellate attor-
neys failed to discover and bring to the attention of the
Virginia Supreme Court the errors in the records of his
prior convictions upon which his original death sentence
was, at least in part, based.1? While Evans contends that

12 By confessing error even though the error at the initial
sentencing proceeding was unintentional, the Commonwealth
recognized that, with regard to the validity of the original death
sentence, the good or bad faith of the prosecutor was irrelevant.
See, e.g., Brady v. Maryland, 373 U.S. 83, 87 (1963). The issue in
this case, however, is not the validity of the original death
sentence, but whether there was sufficient “misconduct” to bar
a resentencing. For this reason, Evans is mistaken in asserting
that the state courts’ findings of good faith are “irrelevant” to
the issue of whether a resentencing proceeding was barred.
(Ptn. 21).

13 To the extent Evans suggests that counsel were ineffec-
tive when they petitioned this Court for a writ of certiorari
(Ptn. 23), the claim is entirely without merit. There is no
constitutional right to counsel during such discretionary
appeals, and consequently, no right to the effective assistance
of counsel. Ross v. Moffitt, 417 U.S. 600, 617-618 (1974).

20

the lower courts’ uniform rejection of his claim “eviscer-
ates” his right to the effective assistance of counsel (Ptn.
22), he concedes that this Court has already “made plain”
the standard of review which governs his claim and that
the Fourth Circuit “recognized” the proper standard.
(Ptn. 23). Thus, his argument that this Court “should
grant certiorari to provide needed guidance concerning
the proper application” of this standard (Ptn. 23) rings
hollow. The mere fact that Evans disagrees with the way
in which the standard was applied in his case is insuffi-
cient to warrant certiorari review.

The test in judging claims of ineffective assistance of
counsel is set forth in Strickland v. Washington, 466 U.S.
668 (1984). This two-part test requires a showing that
counsel’s performance was seriously deficient and that
counsel’s alleged errors resulted in actual prejudice. 466
U.S. at 687. The Strickland standard applies to claims
against appellate counsel as well as to claims against trial
counsel. See Smith v. Murray, 477 U.S. 527, 535-536 (1986).

The Fourth Circuit correctly applied this standard
and found that Evans had failed both prongs of the
Strickland test. (App. 14a-15a). As the court below cor-
rectly noted, counsel traveled to North Carolina prior to
trial to investigate Evans’ record of prior convictions. At
that time the records in North Carolina were in a state of
disarray. (App. 14a-15a). See Evans II, 228 Va. at 479, 323
S.E.2d at 120. Counsel objected to some of the records
when they were introduced at trial. (App. 15a). After
trial, counsel gleaned from the record Evans’ most viable
claims and raised them on appeal in the Virginia Supreme
Court. (App. 15a). Evans’ contention that counsel had an
additional duty to go beyond the trial record and to raise
On appeal a claim challenging the accuracy of Evans’
record of prior convictions is simply untenable.

Appellate counsel had no duty to go outside the trial
record because nothing beyond that record, even if it had

21

been discovered, would have been cognizable on appeal.
It is beyond question that the “triple-certified” conviction
records which were introduced at trial (A. 3a) could not
have been proved to be erroneous without reference to
matters outside the trial record, such as the affidavit that
Evans’ habeas counsel was unable to obtain until almost a
year after Evans’ state habeas petition was filed.'4 (A. 7a).

The Fourth Circuit, which is intimately familiar with
Virginia law, recognized that in Virginia an appeal can only
be decided upon matters of record. (App. 15a). “The Com-
monwealth and the defendant must stand or fall upon the
case that was made in the lower court and reflected by the
record under review. [The Virginia Supreme Court] is not a
forum in which to make a new case.” Guthrie v. Common-
wealth, 212 Va. 602, 604, 186 S.E.2d 68, 70 (1972). See also
O'Dell v. Commonwealth, 234 Va. 672, 696 n.8, 364 S.E.2d 491,
505 n.8, cert. denied, 109 S.Ct. 186 (1988) (rule applied in
capital case). Indeed, this Court follows the very same rule.
See, e.g., New Haven Inclusion Cases, 399 U.S. 392, 450 n.66
(1970). Thus, Evans’ underlying contention is antithetical to
established principles of appellate practice. A failure by
counsel to raise a non-cognizable matter on appeal simply
cannot be the basis for a finding of deficient performance
under the first prong of the Strickland test.!>

'4 Evans’ contention (Ptn. 24-25) that an obscure reference
to the word “nolle” in his post-sentence report (App. 43a)
would have been sufficient to invalidate the triple-certified
conviction records is ludicrous on its face. Moreover, any claim
that counsel were ineffective in this regard at trial has long
since been abandoned.

'S The issue concerning the erroneous conviction records,
of course, was properly raised and resolved during subsequent
state collateral proceedings where the matter was fully cogni-
zable. Indeed, under Virginia law, state habeas proceedings are

(Continued on following page)

22

Moreover, as both the District Court (App. 25a-26a)
and the Fourth Circuit (App. 15a) concluded, Evans also
failed to demonstrate Strickland prejudice. The claim
which Evans contends his counsel should have raised on
appeal related solely to a penalty-stage error, i.e. the
admission of inaccurate conviction records. That error
certainly entitled Evans to have “the slate wiped clean,”
but it did not guarantee that he could not be resentenced.
See Poland v. Arizona, 476 U.S. 147, 152 (1986). The state
courts have “wiped the slate clean” in this case by vacat-
ing Evans’ original death sentence and by affording him
an error-free resentencing proceeding. The Constitution
entitled him to nothing more.

IV. THE COURTS BELOW CORRECTLY DETER-
MINED THAT DUE PROCESS DOES NOT
REQUIRE THAT A CAPITAL SENTENCING
JURY BE INSTRUCTED THAT IF IT IS
UNABLE TO REACH A VERDICT THE TRIAL
COURT WILL AUTOMATICALLY IMPOSE A
LIFE SENTENCE.

Very shortly after retiring to deliberate at the peti-
tioner’s resentencing proceeding, the jury sent the trial
judge the following question:

(Continued from previous page)
reserved solely for claims which could not have been litigated
on appeal. See Epperly v. Booker, 235 Va. 35, 43, 366 S.E.2d 62,
66-67 (1988). Clearly, if on direct appeal Evans’ attorneys had
attempted to prove that the certified conviction records were
inaccurate, the Commonwealth could have insisted that the
matter be litigated in a habeas proceeding rather than on

appeal.

|

23

The decision must be unanimous for death,
must the decision also be unanimous for life, or
does a split decision automatically become
life?16

After initially voicing the opinion that the jury should be
told that its verdict must “be unanimous as to either
penalty” and that the jury “must not concern [itself] with
what may occur if [it is] unable to reach a verdict” (A. 5a),
defense counsel reversed his position and requested the
trial court to instruct the jurors that “if they cannot be
unanimous on death, then it is life.” The trial court
denied counsel’s request and instructed the jury that its
“verdict must be unanimous as to either life imprison-
ment or death.” (A. 5a).

On direct appeal, the Virginia Supreme Court held
that the trial judge’s instruction accurately reflected Vir-
ginia law. See Evans II, 228 Va. at 481, 323 S.E.2d at 121.
Both the District Court (App. 27a) and the Fourth Circuit
(App. 13a) concurred. Thus, Evans’ argument is reduced
to the preposterous assertion that the trial judge commit-
ted error of constitutional dimensions by accurately infor-
ming the jury that any verdict it reached must be
unanimous and by refusing to tell the jurors, in effect,
that they could avoid their joint responsibility to reach a
verdict and thereby insure that Evans would receive a life
sentence from the court.

‘6 Evans’ rather strained assertion that the jury asked its
question “in the heat of its deliberations” (Ptn. 27) is belied by
the record. The jury first retired to the jury room at 1:05 p.m.
(A. 4a). Shortly thereafter, the jury asked its question. After the
issue was discussed among court and counsel, the court
answered the question and then recessed the proceedings for
lunch until 2:15 p.m. (A. 5a-6a). When the jury returned at 2:15,
it recommenced its deliberations and did not return its verdict
until shortly before 3:30 p.m. (A. 6a).

24

The courts below correctly rejected Evans’ claim. This
Court has recognized that, even in a capital case where
the jury’s inability to reach a verdict will result in an
automatic life sentence, the State retains “a strong interest
in having the jury ‘express the conscience of the commu-
nity on the ultimate question of life or death.’ ” See Low-
enfield v. Phelps, __ U.S. __, 108 S.Ct. 546, 551 (1988)
(citation omitted). The instruction which Evans requested
and which the trial judge refused could well have encour-
aged the jury to avoid its responsibility, thereby frustrat-
ing the Commonwealth’s “strong interest” in having the
jury determine Evans’ sentence. Surely, due process did
not require that the jury be given such an instruction.

Evans’ reliance upon State v. Williams, 392 So.2d 619
(La. 1980), is misplaced. If the decision in Williams has
any validity whatsoever, it would be limited to those
instances, unlike Evans’ case, where the jury has been
deliberating a lengthy period of time before the question
is asked and has announced to the court that it is dead-
locked. See Williams, 392 So.2d at 639-640 (Lemon, J.,
concurring). In Evans’ case the record provides no evi-
dence of deadlock and clearly shows that the jury had
been in the jury room only a short time before the ques-
tion was asked. (A. 4a-5a).

Also misplaced is Evans’ reliance upon another Loui-
siana case, State v. Loyd, 459 So.2d 498 (La. 1984).
Although in Loyd there was no evidence of deadlock
before the question was asked, the Louisiana court found
evidence of judicial coercion in the fact that the jury had
been deliberating for an hour before the question was
asked and that it returned its verdict only eighteen min-
utes after the judge answered the question. 459 So.2d at
503. In Evans’ case, there is not the slightest hint of
coercion. After the trial judge answered the question, the
jury went to lunch and then returned to deliberate for

25

more than an hour before it sentenced Evans to death.!7
(A. 5a-6a).

Both the District Court (App. 28a) and the Fourth
Circuit (App. 13a) correctly rejected Evans’ claim that the
trial court’s instruction had “misled” the jury about its
role at a capital sentencing proceeding. Both courts below
also properly rejected Evans’ assertion that Mills v. Mary-
land, __ U.S. __, 108 S.Ct. 1860 (1988), required a differ-
ent conclusion.

1” Evans’ contention that this Court should grant certiorari
because the Fourth Circuit’s rejection of his claim “squarely
conflicts with the decisions of the highest courts of two other
states” (Ptn. 26) is meritless. As previously shown, the Louisi-
ana cases are clearly distinguishable on their facts. Moreover,
there is no conflict with State v. Ramseur, 524 A.2d 188 (N.J.
1987). Contrary to Evans’ assertion (Ptn. 26 n.34), Ramseur was
expressly decided on non-constitutional grounds. See 524 A.2d
at 282 (“we rest our decision on our state-law supervisory
power over the administration of criminal justice”). And, as
Evans concedes (Ptn. 26 n.34), the pane! decision in United
States v. Arpan, 861 F.2d 1073 (8th Cir. 1988), has been vacated.
See 867 F.2d 1188 (8th Cir. 1989). Thus, Evans’ “conflict” argu-
ment for granting certiorari is left totally without support.
Various state courts have rejected, as Virginia’s courts have
done, the claim that a capital sentencing jury must be
instructed that a life sentence will be imposed if it cannot reach
a verdict. See, e.g., People v. Kimble, 749 P.2d 803, 822-825 (Cal.),
cert. denied, 109 S.Ct. 188 (1988); Johnson v. State, 731 P.2d 993,
1005 (Okla. Cr. App.), cert. denied, 484 U.S. 878 (1987); Calhoun
v. State, 408 A.2d 45, 59-60 (Md. 1983); State v. Copeland, 300
S.E.2d 63, 70-71 (S.C. 1982), cert. denied, 460 U.S. 1103 (1983);
Coulter v. State, 438 So.2d 336, 346 (Ala. Cr. App. 1982); State v
Smith, 292 S.E.2d 264, 276 (N.C.), cert. denied, 459 U.S. 1056
(1982); Houston v. State, 593 S.W.2d 267, 278 (Tenn. 1980); Jones
v. State, 281 So.2d 983, 992 (Miss.), cert. denied, 449 U.S. 1003
(1980); Dick v. State, 273 S.E.2d 124, 131 (Ga. 1980), cert. denied,
451 U.S. 976 (1981).

Mills is inapplicable unless there is a “substantial
probability” that the jury was misled into believing that a
death sentence was, in some sense, mandatory, or that the
jury wus precluded from considering evidence in mitiga-
tion. 108 S.Ct. at 1870. When a Virginia jury receives
penalty-stage instructions such as those that were given
in this case, there is no danger that a jury could conclude
that a death sentence is mandatory. See, e.g., Clanton v.
Muncy, 845 F.2d 1238, 1242 (4th Cir.), cert. denied, 108 S.Ct.
1459 (1988).

Nor is there any merit to Evans’ claim that the trial
court’s instruction could have misled individual jurors
into believing that he or she was powerless to effect a life
sentence. The trial court’s answer to the jury’s question
must be viewed “ ‘in its context and under all the circum-
stances.’ ” See Lowenfield, 108 S.Ct. at 550 (citation omit

ted). As the Fourth Circuit so aptly stated:

[T]he trial judge’s response to the jury’s inquiry
left no doubt that a non-unanimous verdict
could not result in death.***The jury was simply
told that any verdict must be reached unani
mously. 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 appropriate. At closing, defense
counsel reminded the jury that their sentence
1ust be unanimous.'® Finally, when polled indi
vidually, each juror affirmed the verdict as his
or her own

1§ Defense counsel was permitted to remind the jury that
its decision was “irrevocable” and to argue that “they cannot
take Evans’ life unless you unanimously, every one of you
all twelve of you say death penalty.” Counsel also reminded
the jurors of their “promise” during voir dire to “stick by your

(Continued on following page)

27

(App. 13a). Under these circumstances, there is simply no
factual basis for a conclusion that Evans’ jury was in any
sense misled by the trial court’s instruction.

+.
vv

CONCLUSION

This is the fourth occasion on which Evans has asked
this Court to review his case. Just as the Court has done
on each of the three prior occasions, certiorari review
Should be denied.

As petitioner admi''>d when last before this Court, his
case is extraordinarily ‘act-bound. (See Evans’ petition in No.
86-1754 at 3; “extraordinary confluence of events”). Evans
made a similar concession in the Fourth Circuit. (See Evans’
reply brief at 15 n.23; “the unique factual circumstances in
tiuls Case will seldom be repeatec”). Thus, the issues raised
by Evans are unlikely to recur, and his case will have little, if
any, impact beyond the parameters of its own facts. See Rice
v. Sioux City Cemetery, 349 U.S. 70, /9 (1955); Lane & Bowler
Corp. v. Western Well Works, 261 U.S. 387, 393 (1923). See also
Boag v. MacDougall, 454 U.S. 364, 368 (1982) (Rehnquist, J.,
dissenting) (“ ‘To remain effective, the Supreme Court must
continue to decide only those cases which present questions
whose resolution will have immediate importance far
beyond the particular facts and parties invoived.’ ”)

Moreover, this case has been scrupulously reviewed
for constitutional error, not only by the state courts, but
also by Judge Merhige and by a unanimous Court of
Appeals. No such error has ever been found

(Continued from previous page

conviction leven] if a vote was taken and you wer in the
minority.” (A. 3a-4a). And, as the District Court noted, each
and every juror had sworn during voir dire “to vote according
5

to his own conclusions (App. 28a)

a

Thus, Evans has clearly failed to demonstrate any
“special or important” reason why this case should be
reviewed on certiorari. See U.S. Sup.Ct.R. 17.1. For these
reasons, the petition should be denied

Respectfully submitted,
Mary SuE TERRY
Attorney General of Virginia
*DoNALD R. CuRRY
Senior Assistant Attorney General
*Counsel of Record

October 26, 1989

APPENDIX TO
RESPONDENT’S BRIEF IN OPPOSITION

la

Va. Code § 1-16 (in relevant part):

Repeal not to effect liabilities; mitigation of
punishment. —- No new law shall be construed
to repeal a former law. . . .save only that the
proceedings thereafter had shall conform, so far
as practicable, to the laws in force at the time of
such proceedings... .

Va. Code § 18.2-10(a) (in relevant part):

Punishment for conviction of felony. — The
authorized punishments for conviction of a fel-
ony are:

(a) For Class 1 felonies, death, or imprison-
ment for life.

Va. Code § 18.2-31(f) (in relevant part):

Capital murder defined; punishment. — The fol-
lowing offenses shall constitute capital murder,
punishable as a Class 1 felony:

* * »

(f) The willful, deliberate and premeditated
killing of a law-enforcement officer
. when such killing is for the purpose of
interfering with the performance of his offi-

cial duties;

28 U.S.C. § 2254(d) (in relevant part):

(d) In any proceeding instituted in a Federal
court by an application for a writ of habeas
corpus by a person in custody pursuant to the
judgment of a State court, a determination after
a hearing on the merits of a factual issue, made
by a State court of competent jurisdiction in a
proceeding to which the applicant for the writ
and the State or an officer or agent thereof were
parties, evidenced by a written finding, written
opinion, or other reliable and adequate written
indicia, shall be presumed to be correct,
unless... .

(8) ._ the Federal court on a consideration of
such part of the record as a whole concludes
that such factual determination is not fairly sup-
ported by the record.

3a

TRIAL TRANSCRIPT PAGE 582 (excerpt)

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 commitment
and it makes reference to 96.8. The clerk has certified 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.)

TRIAL TRANSCRIPT DATED 9-21-83 PAGE 46 (excerpt)
[Referring to Commonwealth’s Exhibit 21]

MR. KLOCH: .. . . First of all, we had some diffi-
culty getting it from North Carolina. It was a triple certi-
fied document. I hesitate to even touch let alone fold and
recopy them, because there have been numerous objec-
tions, even if there’s a staple removed, that something
has been changed.

RESENTENCING TRANSCRIPT DATED 2-3-84
(excerpts)

PAGE 38:

[DEFENSE COUNSEL]: And I respectfully hope
that in your deliberations you want to make the right

4a

decision. You want to make the right decision because
your decision on death is irrevocable, they cannot take
Lee Evans’ life unless you unanimously, every one of you,
all twelve of you say death penalty. Don’t make a
mistake.

PAGES 51-52:

[DEFENSE COUNSEL]: You made Lee Evans and
myself a promise the first day of these deliberations and
that is when you went back to the jury room you would
come to grips with yourself, your own thoughts, your
sense of fairness, your sense of justice, you would make
up your minds individually and collectively, because you
are going to discuss this case and the instructions of the
Court. But once you made a decision, that you would
stick by that decision, you would stick by your convic-
tion. And if a vote was taken and you were in the minor-
ity, that you would not yield, you would stand by your
convictions. I just remind you of that and ask you humbly
to stick by your convictions, don’t waver. If you believe
this man deserves life, don’t waver. Stick to your guns.

PAGES 61-62:

THE COURT: The jury may retire to consider its
verdict.

(Whereupon, the jury retired to the jury room.)

THE COURT: The Court will recess to await the
verdict of the jury.

(Whereupon, a recess was taken.) (1:05 p.m.)

THE COURT: Gentlemen, | have received a question
from the jury and I wanted to give you a chance to
express your thoughts as to how I should respond before
I brought the jury back in to answer the question. The

1 semanas aie

5a

question reads as follows, “The decision must be unani-
mous for death, must the decision also be unanimous for
life, or does a split decision automatically become life?”

* * *

THE COURT: 1 just looked at [the statute]. It says if
the jury is unable to reach a verdict, the Court imposes a
sentence of life. But I don’t think I should tell the jury
that. I think I should tell the jury, your verdict must be
unanimous as to either penalty and you must not concern
yourself with what may occur if you are unable to reach a
verdict, because it has to be unanimous to return a life
verdict as well.

[DEFENSE COUNSEL]: Your Honor, we
respectfully agree that that would be the appropriate
instruction.

PAGES 66-67:

THE COURT: Ladies and gentlemen, | have your
question which reads as follows, “The decision must be
unanimous for death. Must the decision also be unani-
mous for life, or does a split decision automatically
become life?”

You are instructed that your verdict must be unani-
mous as to either life imprisonment or death.

You may resume your deliberations. Do you want to
go to lunch sometime soon?. .. What is your preference?

THE JURORS: Lunch.
THE COURT: All right. We will recess until 2:15.

* * *

The Court will recess until 2:15.

(Whereupon the jury was temporarily excused for
luncheon recess.)

a

0a

THE COURT: All right. Gentlemen, we will recess
then until 2:15.

(Whereupon, the proceedings were recessed, to con-
vene at 2:15 o’clock p.m.)

PAGES 72-73:

THE COURT: The record will reflect that the defen-
dant and his counsel were present at all stages of the tria!
and the defendant was capably represented.

Che defendant will be remanded to the custody of the
Sheriff

The Court will adjourn until 10:00 o’clock tomorrow
morning

(Whereupon, at 3:30 o’clock p.m., the proceedings
‘ yy

. ;
‘ > - rnc ly Te
Wet LUT clude A

————e

AFFIDAVIT

RUSSELL NIPPER, being first duly sworn, deposes
and says as follows:

1. My name is Russell Nipper. I am now, and for
some time have been both the Clerk of the Superior Court
for Wake County, North Carolina, and of the District
Court for Wake County, North Carolina. In those capaci-
ties, | have in my custody and control all the records of
i these courts.

2. At the request of Jonathan Shapiro, attorney for
Wilbert Evans, and Jerry Slonaker, Assistant Attorney
General for the Commonwealth of Virginia, I had occa-
sion to thoroughly check the files of both the District
Court and the Superior Court concerning several cases in
which Wilbert Lee Evans was a defendant. Specifically, |
was asked to determine the following information:

* * *

3-22-83.

[signed Russell Nipper]

Russell Nipper

Clerk of the District and
Superior Courts

Sworn to and subscribed
before me this the 22nd day
of March, 1983.

[signed by Vickie U.
Rumsden!
Notary Public

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0382%3A3. Public record. Not legal advice.