Petition for Writ of Certiorari — Bunch v. Thompson
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FILED
APR 30 1992
No.
el
IN THE
Supreme Court of the United States
OCTOBER TERM, 1991
TIMOTHY DALE BUNCH,
" Petitioner,
CHARLES E. THOMPSON, Warden,
MECKLENBERG CORRECTIONAL CENTER,
Respondent.
Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit
PETITION FOR WRIT OF CERTIORARI
AMY BERMAN JACKSON
(Counsel of Record)
GERARD F’. TREANOR, JR.
KARL A. RACINE
VENABLE, BAETJER, HOWARD
& CIVILETTI
Suite 1000
1201 New York Avenue, N.W.
Washington, D.C. 20005-3917
(202) 962-4800
Counsel for Petitioner
April 30, 1992 Timothy Dale Bunch
aarp
WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001
q¢
a
QUES' .ONS PRESENTED
1. Whether the Fourth Circuit departed from rulings of
this Court when it failed to apply the rule announced
in Edwards v. Arizona to a petitioner whose convic-
tion became final more than two years after Edwards
was decided, and it ignored the clear mandate of
Edwards that an accused who has asserted his right
to counsel is not subject to further interrogation unless
he initiates further communications with the police.
2. Whether the Fourth Circuit’s conclusion that the mere
restatement of the Edwards rule in Solem v. Stumes
constituted a new rule conflicts with this Court’s prior
rulings and misapplies settled retroactivity principles.
(i)
ii
RULE 28.1 LIST OF PARTIES
The parties to this proceeding and the proceedings
below are the petitioner, Timothy Dale Bunch, and the
respondent, Charles E. Thompson, Warden of Mecklen-
berg Correctional Center. Respondent has at all times
been represented by the Office of the Attorney General of
the Commonwealth of Virginia.
TABLE OF CONTENTS
Page
ye ky | | nn i
RULE 28.1 LIST OF PARTIES ............... Fe ee oe ii
I Be EE EID vines enrnsesnrncsecsesennnescesesenssensenens Vv
I I i sanissenevvencivnsbenshiniunssnsopencrtanbistuncenscconinse 1
i clita atrennsetinpebcibivniecesintih tniphtiahondthemtatsies 2
CONSTITUTIONAL AND STATUTORY PROVI-
EY TINT TIP ic nnencccwcsed-cnncuecesonitensereecene sb csceutoimice 2
pe ee hs et” | ee ene 3
A. Prior Proceedings ...... eeaeecaniagelcaeniescasascaaincaenaeasisiaaeninn 3
a sanliiicniccedaomnnbcnaninanniictoon 4
C. The Fourth Circuit’s Decision...................2.0........... 6
REASONS FOR GRANTING THE WRIT ........0.......... 8
CTE SS RIT ee Ee 8
I. THE FOURTH CIRCUIT IGNORED PRIOR
RULINGS OF THIS COURT WHEN IT
FAILED TO APPLY THE CLEAR RULE
ANNOUNCED IN EDWARDS v. ARIZONA
TO A PETITIONER WHOSE CONVICTION
BECAME FINAL MORE THAN TWO YEARS
AFTER EDWARDS WAS DECIDED........ ae 10
A. This Court Should Grant Certiorari Because,
At The Time Petitioner’s Conviction Became
Final, It Was Clear That Edwards Estab-
I I a sedinhtionwns 10
B. This Court Should Grant Certiorari Because
The Fourth Circuit’s Decision Is Inconsistent
With This Court’s Decision In Shea v. Lou-
isiana, Which Conclusively Establishes That
Petitioner Is Entitled To The Benefit Of
a ARI A et Men SE ren LTS NS 14
iv
TABLE OF CONTENTS—Continued
Page
C. Officer Cahill Reinitiated Conversation With
I seb cle ean et ee sn 15
Il. THE FOURTH CIRCUIT’S CONCLUSIO
THAT THE MERE RESTATEMENT OF THE
EDWARDS RULE IN SOLEM v. STUMES
CONSTITUTED A NEW RULE CONFLICTS
WITH THIS COURT’S PRIOR RULINGS AND
MISAPPLIES SETTLED RETROACTIVITY
RE ETN LS oS 17
SEIN ci bictieninirs ciepascocnarcecainiasaenteusagsal Sasieiekdateillein 20
gS MT et Beer aL A Oe la
Vv
TABLE OF AUTHORITIES
CASES Page
Andrews v. Shulsen, 802 F.2d 1257 (10th Cir.
1986), cert. denied, 485 U.S. 919 (1988)............ 15
Arizona v. Roberson, 486 U.S. 675 (1988) ............. 9,13,17
Bunch v. Commonwealth, 225 Va. 423, 304 S.E.2d
271 (1983) ; cert. denied, 464 U.S. 997 (1983),
reh’g denied, 464 U.S. 1064 (1984) _....00 2. passim
Bunch v. Commonwealth, 949 F.2d 1354 (4th Cir.
| RCE NDE SON Bak Oe Pe Be LN TEE rete DL red Tem passim
Butler v. Aiken, 846 F.2d 255 (4th Cir. 1988) ......... 15
Butler v. McKellar, 110 S. Ct. 1212 (1990) ............ 6,18
Cervi v. Kemp, 855 F.2d 702 (11th Cir. 1988) _........ 15
Diaz v. Scully, 641 F. Supp. 1037 (S.D.N.Y. 1986),
aff’d, 821 F.2d 153 (2d Cir. 1987), cert. denied,
gi , : 5 Peer en tee ents Nene 15
Edwards v. Arizona, 451 U.S. 477 (1981) -............. passim
Esquivel v. McCotter, 791 F.2d 350 (5th Cir.
BUTE ncitidsietaciniuiadetaaainemanene ‘idbisakcausleeedanes 15
Flournay v. Marshall, 842 F.2d 875 (6th Cir.
p> | ITS TET SE UR TN NE ne Mk ORO LI eRe 15
Greenwalt v. Ricketts, 784 F.2d 1453 (9th Cir.
1986), cert. denied, 479 U.S. 890 (1986) -........... 15
Johnson v. Zerbst, 304 U.S. 458 (1938) 00.2. 11, 16
McFadden v. Garraghty, 820 F.2d 654 (4th Cir.
SN RN i PS BSE le RESET, 9,13, 14
Michigan v. Jackson, 475 U.S. 625 (1986) _.......... 9,12, 16
Miller v. Fenton, 474 U.S. 104 (1985) ..00 0. 16
Minnick v. Mississippi, 111 S. Ct. 486 (1990) _....... 9,13
Oregon v. Bradshaw, 462 U.S. 1039 (1983) -........... 7,8,12
Penry v. Lynaugh, 492 U.S. 302 (1989) _.00000000.... 18
Peterson v. Bass, 2 Va. App. 314, 343 S.E.2d 475
II dates aialisdelih assign Giadiieatiaaiatdie pe Coker nars eee es 1 3
Rhode Island v. Innis, 446 U.S. 291 (1980) ............. 16
Shea v. Louisiana, 470 U.S. 51 (1985) .....0000.... 9,14, 15, 19
Simpson v. Commonwealth of Masssachusetts, 795
F.2d 216 (1st Cir. 1986), cert. denied, 479 U.S.
A ENT AME C TGP ey ee eee ae 15
Smith v. Illinois, 469 U.S. 91 (1984) _000 eee. 9,12
Solem v. Stumes, 465 U.S. 638 (1984) ....0000 000... passim
Stringer v. Black, 112 S. Ct. 1130 (1992) —........... 10, 18
vi
TABLE OF AUTHORITIES—Continued
Teague v. Lane, 489 U.S. 288 (1988) ........................
United States Ex Rel. Adkins v. Greer, 791 F.2d
590 (7th Cir. 1985), cert. denied, 479 U.S. 989
2) | RRA cee hole Leer oa ene eon ae nated
United States v. Johnson, 457 U.S. 537 (1982) .....
United States v. Renda, 567 F. Supp. 487, aff’d,
768 F.2d 649 (4th Cir. 1966) ................................
Vogel v. Commonwealth of Pennsylvania, 790 F.2d
REN es See ee
Wilson v. Murray, 806 F.2d 1232 (4th Cir. 1986),
cert. denied, 484 U.S. 820 (1987) ......... diehubtacks
Wyrick v. Fields, 459 U.S. 42 (1982) -.....0000000..... ee
Yates v. Aiken, 484 U.S. 211 (1988) ~...000000222
STATUTES AND REGULATIONS
A Re ppb Sir Dee ae ee NT ee Eee
Be Can) NED sercinenesir-nsnsienacemmincnsinmeniaaiaaieana
1 Ew)
IN THE
Suprenve Court of the United States
OCTOBER TERM, 1991
No.
TIMOTHY DALE BUNCH,
- Petitioner,
CHARLES E. THOMPSON, Warden,
MECKLENBERG CORRECTIONAL CENTER,
Respondent.
Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit
PETITION FOR WRIT OF CERTIORARI
The petitioner, Timothy Dale Bunch, respectfully prays
that a writ of certiorari issue to review the judgment
and opinion of the United States Court of Appeals for
the Fourth Circuit, entered in the above-entitled proceed-
ing on January 31, 1992. In addition, petitioner respect-
fully submits that a summary reversal of the Fourth
Circuit’s decision is warranted in this case. Petitioner is
currently under sentence of death in the Commonwealth
of Virginia.
OPINIONS BELOW
The opinion of the Court of Appeals for the Fourth
Cireuit and the dissent are reported at 949 F.2d 1354
and reprinted in the Appendix hereto (“App. at )
The Fourth Circuit’s denial of rehearing (2-1) and re-
hearing en banc (8-4) is not reported but is reprinted in
the Appendix.
2
The memorandum decisions of the United States Dis-
trict Court for the Eastern District of Virginia (Spencer,
J.) have not been reported, but are reprinted in the
Appendix.
JURISDICTION
Jurisdiction of this Court is invoked under 28 U.S.C.
§ 1254(1).
The judgment and opinion of the Fourth Circuit was
rendered on November 27, 1991. A timely petition for
rehearing and suggestion for rehearing en banc was de-
nied by the Fourth Circuit on January 31, 1992. Accord-
ingly, the time for filing this petition expires on April
30, 1992.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
This case involves the following Constitutional pro-
visions:
a. The Fifth Amendment to the United States Con-
stitution, which provides in pertinent part:
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising
in the land or naval forces or in the Militia, when
in actual service in time of War or public danger;
nor shall any person be subject for the same offense
to be twice put in jeopardy of life or limb; nor shall
be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or
property, without due process of law...
b. The Fourteenth Amendment to the United States
Constitution, Section 1, which provides in pertinent part:
[NJor shall any State deprive any person of life,
liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the
equal protection of the laws.
3
STATEMENT OF THE CASE
A. Prior Proceedings
On August 1i, 1982, Timothy Dale Bunch was con-
victed of capital murder in the Circuit Court of Prince
William County, Virginia. The trial judge affirmed the
sentence of death on November 12, 1982. The Virginia
Supreme Court affirmed the conviction and sentence on
June 17, 1983. Bunch v. Commonwealth, 225 Va. 423,
304 S.E.2d 271 (1983), cert. denied, 464 U.S. 977
(1983), reh’g denied, 464 U.S. 1064 (January 9, 1984).
On September 26, 1983, the Supreme Court of Virginia
stayed the execution of judgment pending further order
of that court.
On February 27, 1984, Bunch filed a writ of habeas
corpus in the Circuit Court of Prince William County,
Virginia. The Circuit Court denied Bunch’s requested
relief on May 28, 1985.
Bunch filed a notice of appeal with the Court of Ap-
peals of Virginia. An order staying the execution pend-
ing further proceedings was signed by Judge Thornton
on August 2, 1985. On July 6, 1987, the Court of Appeals
of Virginia dismissed the appeal for lack of jurisdiction
based on Peterson v. Bass, 2 Va. App. 314, 343 S.E.2d
475 (1986).
On August 4, 1987, Bunch filed a petition for appeal
in the Supreme Court of Virginia. The Virginia Supreme
Court, upon consideration of all briefs filed, refused the
petition for appeal on February 26, 1988, without stating
the grounds for its decision.
On October 6, 1988, Bunch filed a petition for a writ
of habeas corpus in the United States District Court for
the Eastern District of Virginia (Richmond Division).
The Commonwealth’s motion to dismiss the petition was
granted in the District Court’s Memorandum Opinion
dated March 16, 1990.
4
On March 30, 1990, Bunch filed a motion to alter or
amend the March 16, 1990 judgment. Bunch’s motion
was denied in the District Court’s Memorandum Opinion
dated June 4, 1990, and Bunch noted his appeal on June
19, 1990.
On September 21, 1990, Bunch filed his brief to the
United States Court of Appeals for the Fourth Circuit.
The Fourth Circuit rejected Bunch’s claims in a 2-1
decision issued on November 27, 1991. Bunch filed a
timely petition for rehearing and suggestion for rehear-
ing en banc on December 10, 1991. The Fourth Circuit
denied rehearing (2-1) and rehearing en bane (8-4) on
January 31, 1992.
B. Statement of Facts
The facts underlying Bunch’s claims are undisputed.
On January 31, 1982, Su Cha Thomas was killed.
Shortly thereafter, Bunch became a suspect in Ms.
Thomas’s death. Virginia authorities * travelled to Japan,
where Bunch was serving as a sergeant in the United
States Marine Corps, to interview him. During the inter-
view, Bunch requested counsel.
At the hearing on Bunch’s motion to suppress state-
ments made in Japan, Bunch testified that he repeatedly
requested counsel. The Virginia authorities testified that
Bunch mentioned the need for counsel on only one occa-
sion, and that he stated, “he might want to talk to an
attorney.” The trial court specifically rejected the testi-
mony of the Virginia authorities, and found uncondi-
tionally that Bunch had requested counsel:
I have no question in my mind somewhere along the
interview he [Bunch] indicated the feeling that he
1 The Virginia authorities who interviewed Bunch in Japan were
Donald L. Cahill, Criminal Investigator for the Prince William
County Police Department, and Assistant Commonwealth Attorney
for Prince William County, William D. Hamblen.
ae
5
should have an attorney present, and at that point
red flags should fly up everywhere. The whole ma-
chine should go tilt particularly, with an attorney,
a Commonwealth attorney sitting in there.
(A. 118).
Despite Bunch’s request for counsel, the investigators
continued to question him. The trial court ruled that the
continued questioning of Bunch after his assertion of his
right to counsel required the suppression of all statements
made by Bunch in Japan. Bunch v. Commonwealth, 304
S.E.2d 271, 274-275 (Va. 1983). The trial court’s factual
finding that Bunch requested and was denied his right to
counsel is presumed to be correct in this Court, see 28
U.S.C. § 2254(d), and is amply supported by the record.
Bunch was transported from Japan to Quantico, Vir-
ginia in the custody of military personnel. Bunch was
not given the opportunity to consult with an attorney dur-
ing his thirty-six hour journey from Japan to the United
States. Upon his arrival at Quantico, Bunch was proc-
essed for delivery to Prince William County authorities.
At Quantico, Bunch had a brief meeting with a Major
Jillisky, a Marine Corps civil lawyer. The purpose of
the meeting was to inform Bunch of his transfer to
civilian authorities. Jillisky specifically informed Bunch
that he was not his attorney, and the trial court found
that the conference did not satisfy Bunch’s right to
counsel. Despite the fact that Bunch had yet to confer
with a lawyer, Officer Cahill, who had been with Bunch
when he asserted his right to counsel in Japan, reopened
the questioning while the two were en route to the Prince
William County Substation. He “asked Bunch if he felt
he was ready to sit down and go over the case.” Jd. at
275. In response, Bunch made several incriminating
statements.
At the 1982 hearing on the motion to suppress the
statements made in Virginia, Bunch’s trial counsel argued
that this Court’s decision in Edwards v. Arizona, 451
6
U.S. 477 (1981) controlled, and that Edwards required
that the statements made by Bunch in response to Cahill’s
reinitiation of questioning be suppressed. The prosecu-
tion, relying on Justice Powell’s concurrence in Edwards,
argued that Edwards did not require suppression. The
trial court ignored the first prong of the two-step inquiry
established in Edwards, i.e., the requirement that after
a request for counsel has been made, a valid waiver must
be based on a finding that it was the accused who fur-
ther initiated conversations with police. Instead, the
court simply found that under the totality of circum-
stances, Bunch waived his previously invoked right.
(A. 126-161). The trial court never addressed the ques-
tion of who initiated the second colloquy.
C. The Fourth Circuit’s Decision
Bunch maintains that the statements made in Virginia
should have been suppressed under Edwards,’ and in his
dissenting opinion, Judge Sprouse of the Court of Ap-
peals for the Fourth Circuit agreed.
Despite the fact that Edwards was decided well before
Bunch’s conviction became final, the Fourth Circuit ma-
jority held that since the “question on which the Vir-
ginia Supreme Court ruled was ‘susceptible to debate
among reasonable minds’ at the time,” Bunch v. Thomp-
son, 949 F.2d at 1859, App. at 6a, a reversal of Bunch’s
ease on collateral review would violate the “new rule”
doctrine of Teague v. Lane, 489 U.S. 288 (1989) and
Butler v. McKellar, 110 S. Ct. 1212 (1990). Jd. The
court strained to apply the new rule doctrine to Bunch’s
case by reasoning that while Edwards “seems clear to-
day,” id. at 13860, App. at 7a, the “holding was not uni-
versally clear to state courts” at the time, and that the
Virginia Supreme Court’s opinion “must be considered a
reasonable application of that case.” Jd. at 1861, App. at
10a. The two-judge majority implied that it took this
2 Bunch has raised this issue at every stage of his case, and thus,
there is no issue of procedural default.
ae
7
Court’s decision in Solem v. Stumes, 465 U.S. 638 (1984),
to establish the clarity of Edwards, and it deemed the
reiteration of the Edwards rule in Solem to be a “new
rule” which it declined to apply retroactively to Bunch’s
case. Bunch, supra, 449 F.2d at 1360, App. at 7a.
In his dissent, Judge Sprouse rejected the majority’s
approach:
It is the majority’s view that not until Solem was
Edwards clarified as establishing “a bright-line rule
that before a suspect can waive his invoked right to
counsel he must be the party to initiate subsequent
communication.”
In my view, the bright-line rule was clearly an-
nounced in Edwards. Solem did not alter or modify
the Edwards rule. Since the parameters of the
waiver of counsel requirements were established in
Edwards, consideration of Teague’s retroactivity
principle is simply misplaced.
Id. at 13868, App. at 23a-24a.
Judge Sprouse recited the plain language of Edwards
and traced the history of the decisions which followed,
including Oregon v. Bradshaw, 462 U.S. 1039 (1983) in
which “eight members of the Supreme Court restated
that the waiver ruling in Edwards was absolute.” Bunch,
supra, 949 F.2d at 1868, App. at 25a. Judge Sprouse
disputed the majority’s characterization of Solem as a
“new rule,” since “it neither extended nor modified Ed-
wards.” Id., App. at 26a. While the majority insisted
that the Virginia Supreme Court, prior to Solem, could
have reasonably interpreted Edwards to permit Officer
Cahill’s reinterrogation of Bunch, Judge Sprouse main-
tained:
Not even in the most generous recognition of comity
. could we suggest that a state court’s interpre-
tation of a United States Supreme Court decision on
federal constitutional law is reasonable when the
United States Supreme Court has reached a contrary
conclusion.
8
... [I]f the majority of the Supreme Court holds the
Edwards opinion to be clear—it is clear.
Id. at 1369-70, App. at 27a. Finally, Judge Sprouse ex-
plained that the concerns for the administration of crimi-
nal justice in state courts embodied in Teague would in
fact be frustrated by the majority’s approach:
The majority opinion here . . . would interpret Teague
as allowing lower courts to render a clear decision of
the Supreme Court unclear; the result produces the
very lack of finality the majority panel here decries.
Id. at 1870, App. at 28a.
REASONS FOR GRANTING THE WRIT
INTRODUCTION
Petitioner’s Fifth Amendment claim is based on this
Court’s 1981 decision in Edwards v. Arizona, supra. Peti-
tioner submits that a reading of Edwards, the Fourth
Circuit’s majority opinion rejecting his claim, and Judge
Sprouse’s dissent establishes several reasons why this
Court should grant certiorari and consider summary re-
versal of the Fourth Circuit’s ruling.
Specifically, petitioner submits that the majority’s rea-
soning and conclusion are fundamentally flawed and that
certiorari and summary reversal are proper for the fol-
lowing reasons:
1. The majority’s characterization of Edwards as
vague is flatly inconsistent with the plain language of
Edwards and this Court’s reaffirmations of its 1981 deci-
sion. See Wyrick v. Fields, 459 U.S. 42, 45-46 (1982)
(Edwards “held that once a suspect invokes his right to
counsel, he may not be subjected to further interrogation
until counsel is provided unless the suspect himself ini-
tiates dialogue with the authorities”); Oregon v. Brad-
shaw, 462 U.S. at 1054, n.2 (1983) (noting that eight
justices agree that Edwards created a per se rule) ; Solem
9
v. Stumes, 465 U.S. at 646 (Edwards established a per se
rule); Smith v. Illinois, 469 U.S. 91, 98 (1984)
(“Edwards set forth a bright-line rule that all question-
ing must cease after an accused requests counsel”) ;
Michigan v. Jackson, 475 U.S. 625, 634 (1986) (“one of
the characteristics of Edwards is its clear, bright-line
quality”); Arizona v. Roberson, 486 U.S. 675, 682
(1988) (“surely there is nothing ambiguous about the
holding in Edwards”) ; Minnick v. Mississippi, 111 S. Ct.
486, 490 (1990) (“the merit of the Edwards decision
lies in the clarity of its command and the certainty of its
application” ) .*
2. The majority’s conclusion that retroactivity prin-
ciples preclude petitioner from benefiting from the rule
in Edwards runs counter to this Court’s direction in Shea
v. Louisiana, 470 U.S. 51 (1985), that Edwards should
be applied to all defendants whose convictions became
final after May 18, 1981, the date on which Edwards was
decided. It is undisputed that petitioner’s conviction did
not become final until more than two years after Edwards
was decided.
3. The majority’s conclusion that Solem v. Stumes,
supra, established a “new rule” is similarly inconsistent
with this Court’s prior rulings, and it distorts settled
retroactivity principles. Solem v. Stumes concerned the
retroactivity of the Edwards rule. The Court repeated
‘the rule, but did not clarify or modify Edwards. See
Michigan v. Jackson, 475 U.S. at 626 (“[i]n Solem v.
3 Indeed, the majority’s characterization of Edwards as unclear
was inconsistent with the Fourth Circuit’s own prior rulings. See
United States v. Renda, 567 F. Supp. 487, 488, aff'd, 758 F.2d 649
(4th Cir. 1985) (“Edwards is a per se rule”) ; Wilson v. Murrey,
806 F.2d 1232, 1237 (4th Cir. 1986), cert. denied, 484 U.S. 820
(1987) (Edwards constructed a prophylactic rule of considerable
impermeability) ; McFadden v. Garraghty, 820 F.2d 654, 658 (4th
Cir. 1987) (“Edwards set down a rigid prophylactic rule”). The
majority opinion does not address these cases, although all were cited
below by the petitioner.
10
Stumes we reiterated that Edwards established a bright-
line rule to safeguard pre-existing rights’).
Petitioner submits that a grant of certiorari and sum-
mary reversal is especially proper in light of this Court’s
continuing insistence upon adherence to the Edwards rule,
see Minnick, Roberson, Jackson, Smith, Solem, Bradshaw,
Wyrick and Edwards, and because of the lower court’s
improper use of retroactivity and “new rule” principles.
See Stringer v. Black, 112 S. Ct. 1180, 1134 (1992)
(since case relied upon by petitioner did not “break new
ground,” it did not announce a new rule, and Supreme
Court reversed Fifth Circuit’s improper application of
new rule doctrine).
I. THE FOURTH CIRCUIT IGNORED PRIOR RUL-
INGS OF THIS COURT WHEN IT FAILED TO
APPLY THE CLEAR RULE ANNOUNCED IN
EDWARDS v. ARIZONA TO A PETITIONER WHOSE
CONVICTION BECAME FINAL MORE THAN TWO
YEARS AFTER EDWARDS WAS DECIDED.
A. This Court Should Grant Certiorari Because, At
The Time Petitioner’s Conviction Became Final, It
Was Clear That Edwards Established A Per Se
Rule.
The Fourth Circuit majority concluded that at the time
the Virginia Supreme Court decided petitioner’s claim,
the meaning of Edwards was unclear. Bunch v. Thomp-
son, 949 F.2d at 1360, App. at 7a. The operative date
for deciding whether the Edwards holding applies to
Bunch is not the date on which the Virginia Supreme
Court decided his appeal, but rather the date on which
his conviction became final, i.e., when this Court denied
his petition for certiorari on direct review of his state
conviction—January 9, 1984. See Stringer v. Black, 112
S. Ct. at 1134 (“Petitioner’s conviction became final when
we denied certiorari.”). This Court has repeatedly told
lower courts that Edwards established a “bright-line
rule,” and at the time petitioner’s conviction became final,
it was clear that Edwards established a per se rule.
ill
11
Prior to the decision in Edwards, the standard for de-
termining whether a suspect in custody had waived his
previously asserted right to counsel was whether, under
the totality of circumstances, the suspect knowingly and
intelligently waived his right to counsel. Johnson v.
Zerbst, 304 U.S. 458, 464 (1988). The decision (6-3) in
Edwards changed the standard for waiver under those
circumstances. The Court stated unconditionally:
We now hold that when an accused has invoked his
right to have counsel present during custodial in-
terrogation, a valid waiver of that right cannot
be established by showing only that he responded
to further police initiated custodial interrogation even
if he has [again] been advised of his right. We
further hold that an accused ... having expressed
his desire to deal with police through counsel, is not
subject to further interrogation by the authorities
until counsel has been made available to him, wuless
the accused himself initiates further communication,
exchanges or conversations with the police.
Edwards, 451 U.S. at 484-85 (emphasis added).
The holding in Edwards was neither ambiguous nor
equivocal. Indeed, the Edwards Court left no doubt as to
what it meant when it added that any finding of a valid
waiver must include “the necessary fact that the accused,
not the police reopened the dialogue with the authorities.”
Id. at 486 and n.9.
After Edwards, once it has been established that the
accused invoked his right to counsel, courts must under-
take a two-step inquiry to determine whether the accused
subsequently waived that right. First, the accused must
be found to have initiated later conversations with the
police, and second, it must be clear from the totality of
circumstances that the accused knowingly, voluntarily
and intelligently waived his right to counsel. Therefore,
under Edwards, an accused who has not reinitiated com-
munication with the police cannot be found to have waived
12
his right to counsel. See Smith v. Illinois, 469 U.S. at 95
(if the accused invoked his right to counsel, courts may
admit his responses to further questioning only on find-
ing that he (a) initiated further discussions with police,
and (b) knowingly and intelligently waived the right
he had invoked) (emphasis added).
A majority of this Court reaffirmed the clear holding
of Edwards in two decisions rendered prior to the date
on which petitioner’s conviction became final. In Wyrick
v. Fields, 459 U.S. at 45-46,‘ this Court repeated its hold-
ing in Edwards:
In Edwards, this Court had held that once a suspect
invokes his right to counsel, he may not be subjected
to further interrogation until counsel is provided un-
less the suspect himself initiates dialogue with the
authorities.
In Oregon v. Bradshaw, supra, eight Justices agreed that
Edwards altered the Zerbst standard of waiver and hence
established a per se rule. Bradshaw, 462 U.S. 1054 and
n.2. Thus, prior to the date on which petitioner’s convic-
tion became final, a majority of this Court held Edwards
to be clear.
Decisions of this Cuurt rendered after petitioner’s con-
viction became final confirm that a majority of the Court
has always regarded Edwards as being clear and un-
equivocal. For example, in Smith v. Illinois, 469 U.S. at
95 (1984), the Court remarked that “Edwards set forth
a bright-line rule that all questioning must cease after
an accused requests counsel.” In Michigan v. Jackson,
475 U.S. at 634 (1985), the Court stated that “one of
the characteristics of Edwards is its clear, bright-line
quality.”
4In Wyrick, the Court reversed an Eighth Circuit decision because
it went beyond Edwards and fashioned another per se rule of its
own, requiring the police to advise a suspect of his rights a second
time notwithstanding a voluntary and intelligent waiver. Wyrick,
459 U.S. at 48.
13
Similarly, in Arizona v. Roberson, 486 U.S. at 682
(1988), the Court emphasized that the Edwards rule
serves the purpose of providing “clear and unequivocal
guidelines to the law enforcement profession.” Most re-
cently, in Minnick v. Mississippi, 111 S. Ct. at 490
(1990), the Court noted that “the merit of the Edwards
decision lies in the clarity of its command and the cer-
tainty of its application.” °
As this Court stated in Roberson and as petitioner
contends:
Surely there is nothing ambiguous about the require-
ment that after a person in custody has expressed
his desire to deal with the police only through counsel,
he is not subject to further interrogation by the
authorities until counsel has been made available to
him unless the accused himself initiates further com-
munications, exchanges or conversations with the
police.
Arizona v. Roberson, 486 U.S. at 682. The Fourth Cir-
cuit’s opinion ignores the consistent holdings of this
Court.
Finally, the Fourth Circuit’s ruling its flatly incon-
sistent with its own decisions holding Edwards to be
clear. See United States v. Renda, supra, n.3, 567 F.
Supp. at 489 (Edwards is a per se rule); Wilson v.
Murray, supra, n.8, 806 F.2d at 1237 (Howards con-
structed a prophylactic rule of considerable impermeabil-
ity) ; McFadden v. Garraghty, supra, n.3, 820 F.2d at 658
(accord). Bunch relied on these cases below, but the
majority opinion did not cite or attempt to distinguish
these decisions.
The McFadden case is particularly significant because
there, the Fourth Circuit applied the per se rule of
5 The Fourth Circuit’s conclusion that Edwards was vague is
based entirely on the concurring opinions of Justice Powell in
Edwards and Bradshaw. It is axiomatic, as Judge Sprouse stated in
his dissenting opinion, that one Justice’s opinion cannot countermand
the law set forth in a decision of the Court.
14
Edwards to an appellant whose conviction became final
nine months before Bunch’s conviction became final.
McFadden, 820 F.2d at 655-56. The Fourth Circuit
applied Edwards to that appellant’s claim that his con-
fession was obtained in violation of his Fifth Amendment
privilege. Jd. at 657-58. The McFadden court made no
reference to the Solem v. Stumes decision because it rec-
ognized that Edwards established a “rigid prophylactic
rule,” and that under Edwards, courts must “first deter-
mine whether the accused actually invoked his right to
counsel.” Jd. at 658. “If the accused invoked his right
to counsel, courts may admit his responses only on find-
ing that he (a) initiated further discussions with the
police, and (b) knowingly and intelligently waived the
right he had invoked.” Jd. Thus, in McFadden, the
Fourth Circuit applied Edwards in the very manner
urged by Bunch.
Bunch’s conviction became final after that of the ap-
pellant in McFadden. Despite this fact, the Fourth Cir-
cuit majority in Bunch’s case ignored McFadden and
constructed a flawed retroactivity argument in order to
avoid the consequences of Edwards. Bunch submits that
the Fourth Circuit’s decision departs from prior rulings
of this Court and directly conflicts with its own prece-
dent. Certiorari should be granted.
B. This Court Should Grant Certiorari Because The
Fourth Circuit’s Decision {Is Inconsistent With This
Court’s Decision In Shea v. Louisiana, Which Con-
clusively Establishes That Petitioner Is Entitled To
The Benefit Of Edwards.
Any doubts as to whether the rule established in
Edwards applies to petitioner, and any doubts as to
whether federal courts are bound to reverse when
Edwards has been misapplied, have been resolved by this
Court’s decision in Shea v. Louisiana, supra. The issue
in Shea was whether Edwards should be applied to cases
which were pending on direct appeal at the time Edwards
15
was decided. Shea, 470 U.S. at 52. The Court held that
Edwards applies to those defendants whose convictions
had not already become final before Edwards was decided.
Id. at 58-59.°
Edwards was decided on May 18, 1981. See Edwards,
supra. Petitioner’s conviction was affirmed on appeal on
June 17, 1983, and it became final on January 9, 1984.
See Bunch v. Commonwealth, supra. Under Shea, because
petitioner’s conviction was not final before Edwards was
decided, he is entitled to the full benefits of that ruling.
Although petitioner relied upon the case below, the Fourth
Circuit ignored Shea, and certiorari is warranted.
C, Officer Cahill Reinitiated Conversation With Peti-
tioner.
The trial court looked only at the totality of the cir-
cumstances and did not address the question of whether
it was Officer Cahill who initiated the conversation lead-
ing to the incriminating statements made in Virginia
when he asked Bunch “if he felt ready to sit down and
go over the case.”” After concluding that Edwards did not
establish a per se rule, the Virginia Supreme Court sum-
marily noted that Cahill’s question amounted to “nothing
more than an effort to ascertain if Bunch had changed his
mind.” Bunch v. Commonwealth, 304 S.E.2d at 277. The
6 Shea has been consistently applied in other circuits. See Simpson
v. Commonwealth of Massachusetts, 795 F.2d 216, 219 (1st Cir.
1986), cert. denied, 479 U.S. 1020 (1986); Diaz v. Scully, 641 F.
Supp. 1037 (S.D.N.Y. 1986), aff'd, 821 F.2d 153, 156 (2d Cir. 1987),
cert, denied, 489 U.S. 933 (1987) ; Vogel v. Commonwealth of Penn-
sylvania, 790 F.2d 368, 380 n.6 (3d Cir. 1986); Butler v. Aiken, 846
F.2d 255 (4th Cir. 1988); Esquivel v. McCotter, 791 F.2d 350 (5th
Cir. 1986) ; Flournay v. Marshall, 842 F.2d 875, 878 (6th Cir. 1988) ;
United States Ex Rel. Adkins v. Greer, 791 F.2d 590, 595 (7th Cir.
1985), cert. denied, 479 U.S. 989 (1986) ; Greenwalt v. Ricketts, 784
F.2d 1458, 1456 (9th Cir. 1986), cert. denied, 479 U.S. 980 (1986) ;
Andrews v. Shulsen, 802 F.2d 1257, 1271 (10th Cir. 1986), cert. de-
nied, 485 U.S. 919 (1988) ; Cervi v. Kemp, 855 F.2d 702, 705 and n.9
(11th Cir. 1988).
16
Fourth Circuit majority again failed to apply the Ed-
wards two-pronged inquiry and stated that the Virginia
Supreme Court’s view “under Edwards was a reasonable
application of that case.” Bunch, 949 F.2d at 1360;
App. at 10a.
First, whether the Virginia Supreme Court’s opinion
was a “reasonable application” of the Edwards test is
irrelevant. The constitutional effect of Cahill’s question
is a legal question and, as such, is subject to the inde-
pendent review of this Court. See Rhode Island v. Innis,
446 U.S. at 298-302; Miller v. Fenton, 474 U.S. 104, 112
(1985). The Virginia Supreme Court’s finding is not
entitled to any deferrence even if it was “reasonable”
or grounded in good faith. The majority below disre-
garded its duty to determine whether the Virginia court
was right or wrong as a matter of federal constitutional
law.
Second, the opinions of the Virginia Supreme Court and
the Fourth Circuit ignore the government’s heavy burden
to demonstrate waiver. Courts will “indulge very reason-
able presumption against waiver of fundamental consti-
tutional ‘rights,’ Zerbst, 304 U.S. at 464, and “doubts
must be resolved in favor of protecting the constitutional
claim.” Michigan v. Jackson, 475 U.S. at 633 (1986).
Finally, Edwards implements the Miranda bar on in-
terrogation after the right to counsel has been asserted
by requiring that questioning may not resume unless it is
the accused who initiates further “communications, ex-
changes, or conversations” with the police. Edwards, 451
U.S. at 484-85. Thus, the fact that Cahill initiated the
“exchange” required the trial court to find an Edwards
violation. As Judge Sprouse remarked in his dissent,
“clearly Cahill, not Bunch, initiated the conversation lead-
ing to the subsequent interrogation at the Prince William
County police station.” Bunch, 949 F.2d at 1370, App.
at 28a. The conclusion of Judge Sprouse is consistent
with the clear directive of Edwards that any change of
17
heart must first be voiced by the suspect and not prompted
by the authorities.’ See Edwards, 451 U.S. at 484 (“a
valid waiver cannot be established by showing only that
[the accused] responded further to police-initiated cus-
todial interrogation.”).
Il. THE FOURTH CIRCUIT’S CONCLUSION THAT
THE MERE RESTATEMENT OF THE EDWARDS
RULE IN SOLEM v. STUMES CONSTITUTED A
NEW RULE CONFLICTS WITH THIS COURT'S
PRIOR RULINGS AND MISAPPLIES SETTLED
RETROACTIVITY PRINCIPLES
The Fourth Circuit held that the rule of Edwards was
not adequately clarified until this Court’s decision in
Solem v. Stumes, supra. Bunch, supra, 949 F.2d at 1360,
App. at 7a. According to the majority, Solem established
the “new rule” that once a suspect has invoked his right
to counsel, any subsequent conversation must be initiated
by him. Jd. It follows, the majority concluded, that be-
cause petitioner’s conviction became final one year before
the announcement of the “new rule” in Solem, retroac-
tivity principles preclude him from receiving the benefits
of that ruling.
Petitioner submits that the majority’s conclusion is
merely a strained attempt to avoid following this Court’s
mandate in Edwards, a principle established more than
two years before petitioner’s conviction became final. The
majority’s suggestion that state courts acting ‘“reason-
ably” will be upheld invites state courts to construe Su-
preme Court rulings as narrowly as possible. Moreover,
the majority opinion establishes a novel and dangerous
7 Petitioner’s position is confirmed by the Court’s decision in
Roberson, supra. There, the Court held that an Edwards violation
occurred where a different officer initiated reinterrogation three days
after Roberson requested counsel and while he was still in police
custody. Even more compelling are the facts in petitioner’s case,
where reinterrogation was initiated after petitioner had been in the
custody of the very officer to whom he originally asserted his request
to counsel.
18
principle of constitutional jurisprudence: that lower
courts need not follow Supreme Court precedent until
the Supreme Court repeats itself. Bunch submits that
this Court should soundly reject such an argument.
The Court has recently restated how questions of retro-
activity should be resolved for cases on collateral review.
See Teague v. Lane, supra, 489 U.S. at 301; Penry v.
Lynaugh, 492 U.S. 302 (1989) ; Butler v. McKellar, supra,
110 S. Ct. 1212 (1990). Under these cases, new constitu-
tional rules of criminal procedure will not be applied
to those defendants whose convictions became final be-
fore the new rules were announced. Teague, 489 U.S.
at 310. A case announces a new rule “when it breaks
new ground or imposes a new obligation on the States or
the Federal Government,” or if the result was not dictated
by precedent existing at the time the defendant’s convic-
tion became final.” Butler, 110 S. Ct. at 1216. Petitioner
submits that the Solem decision did not break new ground
or impose a new obligation on the states or the federal
government. Moreover, as discussed above, the result
petitioner seeks was dictated by precedent existing at the
time his conviction became final. See Stringer v. Black,
supra.
Significantly, this Court’s decision in Solem did not
purport to clarify Edwards. The only question posed in
Solem was whether the Edwards rule should be applied
retroactively, that is to convictions which became final
before Edwards was announced on May 18, 1981. As
Justice White, writing for the majority, made clear, “the
question in this case [Solem] is whether Edwards should
be applied retroactively.” Solem, 465 U.S. at 639. Such
an inquiry presumes that Edwards announced a clear
rule, and the Solem majority never questioned that fact.
It noted, “Edwards established a bright-line rule to safe-
guard pre-existing rights.” Solem, 465 U.S. at 646.
Thus, Solem did not “break new ground or impose a new
obligation on the States or the Federal Government.” As
Judge Sprouse explained in his dissent:
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19
Retroactivity, not the parameters of Edwards, was
the issue in Solem. In fact, whether the treatment of
defendant Stumes violated Edwards, was not even
an issue for decision. “We .. . assume for present
purposes that the conduct at issue here violated
Edwards.” Id. at 642. Therefore, Solem could not
have established a new rule because it neither ex-
tended nor modified Edwards.
Bunch, 949 F.2d at 1369, App. at 26a. (emphasis added).
Judge Sprouse’s view that Solem did nothing but re-
peat Edwards is confirmed by this Court’s opinion ir
Michigan v. Jackson, supra, a case cited below but not
addressed by the majority. There, this Court stated,
“Tijn Solem v. Stumes, we reiterated that Edwards estab-
lished a bright-line rule to safeguard pre-existing rights
....” (emphasis added). 475 U.S. at 626. This Court’s
own description of what took place in Solem was ignored
by the Fourth Circuit majority, and reinforces the notion
that Edwards is in fact applicable to Bunch. As Justice
Stevens stated for a unanimous court in Yates v. Aiken,
484 U.S. 211, 216 and n.3 (1988) (citing United States v.
Johnson, 457 U.S. 537, 549 (1982) ):
[Wlhen a decision of this Court merely has applied
settled precedents to new and different factual situa-
tions, no real question has arisen as to whether the
later decision should apply retroactively. In such
cases, it has been a foregone conclusion that the rule
of the later case applies in earlier cases, because the
later decision has not in fact altered that rule in
any material way.
The Fourth Circuit’s conclusion presents an irreconcil-
able conflict with the instruction to the lower courts con-
tained in Shea, supra. There, the Court explained: apply
Edwards to those defendants whose convictions were not
yet final at the time Edwards was decided. The Shea
opinion followed Solem, and this Court could have said
then that Edwards was to be applied only to those defend-
ants whose convictions became final after Solem. The
20
Court drew no such distinction, because this Court has
never accorded Solem the significance crafted for it by
the Fourth Circuit majority. If the Fourth Circuit were
correct, and it was Solem, and not Edwards, that an-
nounced the new rule, what rule did the Shea court re-
quire federal and state courts to apply to convictions
which became final after Edwards but before Solem? The
obvious answer is that the decision in Shea required lower
courts to recognize and apply the Edwards holding to all
convictions which became final after the date that
Edwards was decided, i.e., May 18, 1991. The Fourth
Circuit ignored this mandate and certiorari and summary
reversal should be granted.
CONCLUSION
Petitioner respectfully submits that certiorari and sum-
mary reversal should be granted because the Fourth Cir-
cuit’s conclusion that Edwards was ambiguous and not
clarified until after petitioner’s conviction became final
conflicts with Edwards, this Court’s subsequent applica-
tions of Edwards, and settled retroactivity principles.
Respectfully submitted,
AMY BERMAN JACKSON
(Counsel of Record)
GERARD F’. TREANOR, JR.
KARL A. RACINE
VENABLE, BAETJER, HOWARD
& CIVILETTI
Suite 1000
1201 New York Avenue, N.W.
Washington, D.C. 20005-3917
(202) 962-4800
Counsel for Petitioner
April 30, 1992 Timothy Dale Bunch
APPENDIX
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“4 Noted és
PaaS ats
la
APPENDIX
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 90-4001
TIMOTHY DALE BUNCH,
Petitioner-A ppellant,
V.
CHARLES THOMPSON, Warden,
Respondent-A ppellee.
No. 90-4005
TIMOTHY DALE BUNCH,
Petitioner-A ppellant,
V.
CHARLES THOMPSON, Warden,
Respondent-A ppellee.
Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-88-645-R )
Argued: April 11, 1991
Decided: November 27, 1991
Before WIDENER, SPROUSE, and WILKINSON, Cir-
cuit Judges.
2a
Affirmed by published opinion. Judge Wilkinson wrote
the majority opinion, in which Judge Widener joined.
Judge Sprouse wrote a dissenting opinion.
COUNSEL
ARGUED: Amy Berman Jackson, Kar] Anthony Racine,
VENABLE, BAETJER, HOWARD & CIVILETTI,
Washington, D.C., for Appellant. John H. McLees, Jr.,
Assistant Attorney General, Richmond, Virginia, for Ap-
pellee. ON BRIEF: Gerard F. Treanor, Jr.,. VENABLE,
BAETJER, HOWARD & CIVILETTI, Washington, D.C.,
for Appellant. Mary Sue Terry, Attorney General of
Virginia, Richmond, Virginia, for Appellee.
OPINION
WILKINSON, Circuit Judge:
Timothy Bunch was convicted by jury trial and sen-
tenced to death for murder in the commission of robbery
while armed with a deadly weapon in violation of Va.
Code Ann. § 18.2-31(d) (1988). His conviction and sen-
tence were affirmed by the Supreme Court of Virginia
on direct appeal. The Virginia courts have considered
and dismissed Bunch’s state petition of habeas corpus.
Bunch is now before this court appealing the district
court’s dismissal of his federal habeas petition. He alleges
numerous points of constitutional error but argues pri-
marily that his confession was admitted in violation of
his rights under the Fifth Amendment and that he was
denied effective assistance of counsel in violation of the
Sixth Amendment. Finding no merit in Bunch’s claims,
we affirm the judgment of the district court.
I.
On January 31, 1982, Bunch killed his girlfriend Su
Cha Thomas. The couple was at Thomas’ house, prepar-
ing to go out for dinner when Bunch hid in a downstairs
3a
bathroom to lure her. After shooting Thomas in the head,
Bunch went upstairs and spent an hour or so drinking
wine and listening to the stereo. He then ransacked the
house, taking Thomas’ Rolex watch, a diamond ring, a
string of pearls and a gold chain. Before he left, he tied
a knot in the scarf Thomas was wearing, pulled her
unconscious body to a door and hung her by the scarf
from the doorknob. According to the medical examiner
there was a combined cause of death—“a gunshot wound
to the head... with a secondary complication, asphyxia-
tion by hanging.”
Following the murder, Bunch pawned Thomas’ watch.
A report that the pawn shop filed with the police set off
an investigation of Bunch, who was a sergeant in the
United States Marine Corps. Bunch had met Thomas
while temporarily stationed at Quantico in Virginia, but
had since returned to his permanent station in Japan.
Two Virginia officials—police inspector Donald Cahill
and an assistant Commonwealth’s attorney—traveled to
Japan to question Bunch. They informed Bunch of his
rights under Miranda v. Arizona, 384 U.S. 436 (1966),
after which Bunch signed a consent form and agreed
to talk with them. Bunch asserts that he asked for
counsel “approximately a dozen times” during the in-
terrogation, while the Virginia officials claim that Bunch
never clearly requested counsel but only mentioned once
that “he felt like he might want to talk to a lawyer.” At
that point, the Commonwealth’s attorney left the room,
but Cahill stayed and discussed another matter with
Bunch for several minutes. As Cahill got up to leave,
Bunch told Cahill he would cooperate and informed him
that the gun was at his mother’s house in Indiana and
that Thomas’ ring was in Japan. Cahill and the Com-
monwealth’s attorney decided that interrogation should
not continue unless Bunch signed another consent form.
When Bunch refused to sign the form, the interview
ended.
4a
Bunch, still in military custody, was transported from
Japan back to Quantico, which took forty-two hours. Al-
though military personnel did not question Bunch, they
informed him during the flight of his Miranda rights
again. Upon arrival at Quantico, Bunch proceeded through
processing for delivery to state authorities. During proc-
essing, Bunch met with Major Donald Jillisky, an at-
torney with the Marine Judge Advocate General’s Office.
Jillisky informed Bunch that he was not present as
Bunch’s attorney, but only to advise him of his situation
and to transfer him to state authorities. The military
attorney told Bunch of the charges he was facing and
that he would either have to obtain an attorney or have
one appointed for him. Jillisky also instructed Bunch
that “he did not have to say anything until he consulted
with his lawyer, and that it was probably not in his best
interest to say anything until he consulted with his
lawyer.”
Following completion of the military processing, Bunch
was turned over to Investigator Cahill for transportation
to the state police station. During the drive, Cahill asked
Bunch “if he felt he was ready to sit down and go over
the case.’ Cahill informed Bunch that he was under no
obligation to speak with Cahill and that the decision was
for Bunch to make. Bunch told Cahill he had spoken with
an attorney at Quantico who had advised him to contact
his own lawyer before making any statements, but had
decided to “get it off his chest” and tell the whole story.
When they arrived at the station, Bunch was once
again advised of his Miranda rights. He signed a consent
form and confessed to Cahill. In his confession, Bunch
stated that he had decided a few days before killing
Thomas to kill someone, probably a prostitute. He de-
cided on Thomas because “she was a slut and she re-
minded him too much of his wife and he wanted her
money.” He told Cahill that he shot Thomas in the head
from behind and had a sexual orgasm when doing so.
5a
After ransacking the house, he dragged Thomas to the
doorknob and hung her by her scarf, again becoming
sexually aroused. He gathered her jewelry and left the
house.
Bunch was tried for murder during the commission of
armed robbery. The trial court suppressed the incrim-
inating statements that Bunch had made in Japan, con-
cluding they had been obtained in violation of his right
to counsel. The court held admissible the confession
Bunch gave to Cahill in Virginia, however, ruling that
he had “intelligently, wittingly, freely and voluntarily”
waived his rights. A jury convicted Bunch of capital
murder and sentenced him to death based on the “vile-
ness” of the crime. See Va. Code Ann. § 19.2-264.2
(1990). The conviction and sentence were affirmed on
direct appeal. See Bunch v. Commonwealth, 304 S.E.2d
271 (Va. 1983).
Bunch filed a state petition for habeas corpus in Feb-
ruary 1984. The trial court dismissed all the asserted
points of error except for the claim of ineffective assist-
ance of counsel. On that point the court conducted a
plenary hearing, after which the court dismissed the claim
in May 1985. The Virginia Court of Appeals dismissed
Bunch’s appeal for lack of jurisdiction and the Virginia
Supreme Court denied Bunch’s petition in February 1988.
Bunch then filed a federal habeas corpus petition which
the district court dismissed in March 1990.
This appeal followed. In his habeas petition, Bunch
raises numerous claims of constitutional error. We shall
address his two major claims—that his confession was
improperly admitted and that he was denied effective
assistance of counsel—in the first two sections. We then
will discuss the remaining allegations.
Il.
Bunch’s first argument is that admission of his confes-
sion violated both his right to counsel and his right to
remain silent. We shall address each claim in turn.
6a
A.
The Virginia Supreme Court ruled on direct appeal
that admission of Bunch’s confession did not violate his
right to counsel. On collateral review, our examination
of the Virginia Supreme Court’s ruling is guided by the
“new rule” doctrine announced in such cases as Teague
v. Lane, 489 U.S. 288 (1989), and Butler v. McKellar,
110 S. Ct. 1212 (1990). In Teague, the Supreme Court
held that “new constitutional rules of criminal procedure
will not be applicable to those cases which have become
final before the new rules are announced” and decided
that “a case announces a new rule if the result was not
dictated by prececent existing at the time the defendant’s
conviction became final.” 489 U.S. at 301, 310 (emphasis
in original). Thus, if the question on which the Virginia
Supreme Court ruled was “susceptible to debate among
reasonable minds” at the time, then a reversal on collat-
eral review would be an application of a new rule in
violation of Teague. Butler, 110 S. Ct. at 1217-18. “State
courts are understandably frustrated when they faithfully
apply existing constitutional law only to have a federal
court discover, during a [habeas] proceeding, new con-
stitutional commands.” Engle v. Isaac, 456 U.S. 107,
128 n.33 (1982).
Bunch seeks to avoid application of the new rule doc-
trine by arguing that the law in existence in June 1983
when the Virginia Supreme Court affirmed his conviction
dictated that his confession be suppressed. He bases his
argument on Edwards v. Arizona, 451 U.S. 477 (1981),
and claims that case clearly established a per se rule
that an accused in custody who has invoked his right to
counsel cannot waive that right unless he himself ini-
tiates further conversation with the police. Bunch main-
tains that he never initiated any further exchanges with
the police after he invoked his right to counsel and that
under the clear rule of Edwards his confessicn should
have been suppressed. According to Bunch, the Virginia
™
Ta
Supreme Court should never have reached the issue of
whether he intelligently and knowingly raived his rights
because that issue arises only when the suspect initiates
conversation.
Our examination of the law at the time of the Virginia
Supreme Court decision, however, convinees us that the
admissibility of the confession was “susceptible to debate
among reasonable minds.” The Virginia Supreme Court
ruled the confession admissible both because Bunch “in-
telligently, wittingly, freely and voluntarily” waived his
right to counsel and because Investigator Cahill’s inquiry
did not amount to police-initiated interrogation under
Edwards. Bunch, 304 S.E.2d at 277. At that time, Ed-
wards did not dictate a contrary conclusion.
It seems clear today that Edwards established a bright-
line rule that before a suspect can waive his invoked
right to counsel he must be the party to initiate subse-
quent communication. See Solem v. Stumes, 465 U.S. 638,
646-47 (1984). That holding was not universally clear
to state courts struggling with Edwards when the opinion
was first issued, however. See, e.g., Richardson v. State,
625 S.W.2d 504 (Ark. 1981); Leuschner v. State, 433
A.2d 1195 (Md. Ct. Spee. App. 1981). Even had that
point been perfectly obvious, Edwards left numerous other
issues unresolved—most notably, what acts constituted
initiation and interrogation. The Edwards opinion never-
theless recognized that such matters were germane to
any right to counsel analysis. “The Fifth Amendment
right identified in Mirenda is the right to have counsel
present at any cusiodial interrogation. Absent such inter-
rogation, there would have been no infringement of the
right that Edwards invoked and there would be no occa-
sion to determine whether there had been a valid waiver.”
451 U.S. at 485-86. Justice Powell, concurring in the
result in Edwards, was the only one to address directly
the meaning of “initiation” and “interrogation” in this
context:
ti i:
8a
{PJolice do not impermissibly ‘initiate’ renewed in-
terrogation by engaging in routine conversatiuns
with suspects about unrelated matters. And _ police
legitimately may inquire whether a _ suspect has
changed his mind about speaking to them without an
attorney. It is not unusual for a person in custody
who previously has expressed an unwillingness to
talk or a desire to have a lawyer, to change his mind
and even welcome an opportunity to talk. Nothing
in the Constitution erects obstacles that preclude po-
lice from ascertaining whether a suspect has recon-
sidered his original decision.
eee ~—
451 U.S. at 490 (citations omitted). Still, the Supreme
Court could not agree on what constituted initiation in
Oregon v. Bradshaw, 462 U.S. 1039 (1983), a case de-
cided shortly after Bunch’s conviction became final. That
the Virginia Supreme Court reasonably applied Edwards
can readily be seen through an examination of contem-
poraneous courts’ interpretations of that case and of the
concepts of initiation and interrogation.
In Moulds v. State, for example, the Alabama Court of
Criminal Appeals considered an accused who had un-
equivocally invoked her right to counsel but who had
been unable to contact her attorney. 429 So. 2d 1176
(Ala. Crim. App. 1983). A police sergeant spoke with
the accused for a few minutes and then told her that
her attorney would tell her not to make a statement. The
accused responded that she “wanted to go ahead and talk
anyway.” The court concluded that “[{t]he defendant’s
assertion that she was ready to make a statement, even
if made in response to an officer’s inquiry of whether she
had ‘changed her mind about speaking to them without an
attorney,’ constitutes a communication initiated by the
accused under Edwards.” Id. at 1179. See McCall v.
State, 501 So. 2d 496, 500 (Ala. Crim. App. 1986). The
court also specifically rejected the argument that the ser-
9a
geant’s actions constituted interrogation under Rhode
Island v. Innis, 446 U.S. 291 (1980):
The defendant was subjected to neither “express
questioning” nor to “any words or actions on the part
of the police (other than those normally attendant
to arrest and custody) that the police should know
are reasonably likely to elicit an incriminating re-
sponse from the suspect.”
429 So. 2d at 1178 (citing Innis).
The Supreme Court of Connecticut reached a similar
conclusion in State v. Acquin. 448 A.2d 163 (Conn.
1982). There the suspect had clearly requested counsel
but rejected all suggestions for obtaining one. In re-
sponse to further police questioning the suspect revealed
that “it wasn’t really an attorney that he wanted, it was
just somebody he could trust.” Jd. at 170. After poilce
brought in the accused’s requested psychiatrist, he con-
fessed. Citing Justice Powell's concurrence in Edwards
that “police legitimately may inquire whether a suspect
has changed his mind,” the court found no Violation of
the suspect’s right to counsel. “Unquestionably, the de-
fendant invoked his right to counsel. . .. however, sub-
sequent legitimate questions to find out whom he wanted
showed that the request was not as unequivocal as it
appears to be on its face.” Jd. at 176. The Supreme
Court of Connecticut also dismissed the idea that the
questions directed at clarifying the defendant’s request for
counsel constituted interrogation under Rhode Island v.
Innis, 446 U.S. 291 (1980). “They were not of the kind
likely to elicit an incriminating response.” 448 A.2d at
175.
In State v. Scott, 626 S.W.2d 25 (Tenn. Crim. App.
1981), the defendant invoked his right to counsel where-
upon the police stopped interrogation. While being
escorted back to the holding cell, however, the suspect
spoke with his girlfriend who loudly urged him to “tell
10a
the truth.” The officer escorting the suspect then asked
the defendant whether he wanted to talk about the case
or continue to the holding cell. The suspect confessed.
The court refused to suppress the statement, concluding
that “|t|hese facts cannot be equated with a resumption
of the interrogation as condemned by Edwards.” Id. at
29. See also Johnson v. State, 303 S.E.2d 7, 8 (Ga. 1983)
(“Police may legitimately inquire whether a suspect has
changed his mind about speaking to them with or without
an attorney.’”’).
The Virginia Supreme Court decision is similar to
those of other states interpreting the meaning of initia-
tion and interrogation in the immediate aftermath of
Edwards. The Virginia court concluded that Cahill’s ask-
ing Bunch “if he felt he was ready to sit down and go
over the case’ was a legitimate attempt to determine
whether Bunch’s decision not to speak with the police
without an attorney present had changed. 304 S.E.2d at
277. Cahill testified at the suppression hearing that he
asked the question because he knew that Bunch had just
spoken with a lawyer. As in the Moulds case, Cahill in-
formed Bunch that he “certainly was not required to talk
to [Cahill] if he didn’t want to.” This communication
from Cahill was a far cry from the communication in
Edwards, where the accused was informed that “he had
to talk” to the police. The Virginia Supreme Court thus
determined that Cahill’s inquiry “amounted to nothing
more than an effort to ascertain if Bunch had changed
his mind about wanting an attorney and, hence, did not
amount to police-initiated interrogation within the mean-
ing of Edwards.” 304 8.F.2d at 277. The court’s opinion
that Cahill’s question was not police-initiated interroga-
tion under Edwards was perfectly consistent with other
case law at the time and must be considered a reasonable
application of that case.
Bunch nevertheless argues that he did not make a
knowing and intelligent waiver. This claim has been
waived because Bunch did not raise it on state habeas or
lla
even to the federal district court. See Harrison v.
Warden, Maryland Penitentiary, 890 F.2d 676 (4th Cir.
1989); Whitley v. Bair, 802 F.2d 1487 (4th Cir. 1986).
The claim is also meritless. Bunch had been informed of
his rights numerous times, he had received legal advice
to remain silent, he had been informed that he was not
required to speak with Cahill, and he had understood that
his confession could result in the death penalty. As the
Virginia Supreme Court stated, this was a case of an
individual
who, despite repeated warnings of his rights and con-
trary to sound advice “not to say anything,” decided
“he was ready to tell the whole story” and “wanted
to get it off his chest.” Moments before confessing,
he stated in writing that he did not want a lawyer
and that he was willing to answer questions. We
can conceive of no clearer case of a “ ‘knowing and
intelligent relinquishment or abandonment’” of
| Miranda] rights.
304 S.E.2d at 277 (citing Wyrick v. Fi lds, 459 U.S. 42
(1982) ).
We therefore dismiss Bunch’s claim on collateral attack
on the basis of Teague v. Lane and its progeny. Those
cases require that the Virginia Supreme Court ruling be
judged against the backdrop of other case law at the time
of its decision on direct appeal, not against the law that
may have evolved during the time that Bunch’s case made
its various rounds on collateral review. To grant the
writ would hold the Virginia Supreme Court’s application
of Edwards in 1988 to be beyond the pale of “reasonable,
good-faith interpretation! ] of existing precedents.” Saf-
fle v. Parks, 110 S. Ct. 1257, 1260 (1990) (quoting
Butler). This we decline to do. The Virginia court was
ruling on a close question of law at the margins of the
Miranda doctrine, namely, under what circumstances any
subsequent conversations between a suspect and officials
could be considered a reinitiation of interrogation by the
|
12a
state. The Virginia Supreme Court’s ruling on that point
warrants respect from a federal habeas court as one that
reasonable jurists could make. See Butler, 110 S. Ct. at
1217-18.'
B.
Bunch also argues that his confession should have been
suppressed because he asserted his right to remain silent
in Japan and Virginia investigators did not “scrupulously
honor” that right as required by Michigan v. Mosley, 423
U.S. 96, 104 (1975). When Bunch raised this claim in
his state habeas petition, the Commonwealth, in its “Mo-
tion to Dismiss,” responded that the claim had been pro-
cedurally defaulted because it had not been raised either
at trial or on direct appeal. See Slayton v. Parrigan, 205
S.E.2d 680 (Va. 1974). The Commonwealth made no
other arguments opposing the claim. The circuit court
dismissed the claim “for the reasons stated in the Motion
to Dismiss.” Thus, the circuit court clearly dismissed the
claim on the grounds of the state procedural default. See
1 The dissenting opinion quite fails to appreciate the fact that the
rule announced in Edwards did not define all the terms by which
the rule would be implemented. The Edwards holding rested upon
the concepts of initiation and interrogation, the precise boundaries
of which the state courts could legitimately determine were unde-
fined. Unlike the dissent, we decline to hold in hindsight that the
substantial number of state courts struggling with these concepts
were in any way intent upon disregarding higher authority. We
have no indication, for example, that Virginia was attempting to do
anything other than conscientiously apply the Miranda doctrine.
Indeed, state and military authorities gave Bunch his Miranda warn-
ings on no less than three separate occasions and the state courts in
fact threw out his confession in Japan as violative of his right to
counsel.
In that same regard, we wish to make plain that federal inter-
mediate courts refusing to apply new rules to reverse state convic-
tions on collateral attack are not criticizing any lack of clarity in
earlier Supreme Court decisions, but are only acknowledging what
Teague and its progeny now require us to acknowledge—that even
the clearest decisions will leave some questions for the state courts
in good faith to resolve.
l3a
Coleman v. Thompson, 111 S. Ct. 2546, 2559-61 (1991)
(grant of a motion to dismiss on state procedural
grounds neither rests on nor is interwoven with federal
law). The Supreme Court of Virginia refused the peti-
tion for appeal “{u]pon review of the record in this case
and consideration of the argument submitted in support
of and in opposition to the granting of an appeal.” This
order of the Virginia Supreme Court provides no evidence
that that court considered the claim on the merits. Where
“the last reasoned opinion on the claim explicitly imposes
a procedural default, we will presume that a later deci-
sion rejecting the claim did not silently disregard that
bar and consider the merits.” Ylst v. Nunnemaker, 111
S. Ct. 2590, 2594 (1991). In such circumstances, the
procedural default must be considered an adequate and
independent state ground that forecloses review of the
claim in federal] court. Coleman, 111 S. Ct. at 2557-61.
ITT.
Bunch next argues that he was denied the right to ef-
fective assistance of counsel in violation of the Sixth
Amendment. His primary point is that trial counsel was
ineffective in preparing and presenting mitigating evi-
dence at the sentencing phase of the trial. He addition-
ally raises other allegations of deficient performance that
the government urges are procedurally barred. We shall
address these arguments in turn.
A.
The standard of review for ineffective assistance of
counsel claims is a familiar one. Under Strickland v.
* Relying on Justice O’'Connor’s concurring opinion in Duckworth
v. Eagan, 492 U.S. 195 (1989), the Commonwealth argues that fed-
eral courts should not apply on collateral review the exclusionary
rule for Miranda violations. See Stone v. Powell, 428 U.S. 465
(1976) (federal habeas courts reviewing state criminal convictions
will not apply the exclusionary rule for Fourth Amendment viola-
tions). Because we rest this decision on narrower grounds, we need
not address this question.
l4a
Washington, 466 U.S. 668, 687 (1984), in order to estab-
lish a violation of his Sixth Amendment rights, Bunch
must show that his counsel’s performance was deficient
and that the deficiency so prejudiced his defense as to
deprive him of a fair trial. This is no insubstantial bur-
den, as “(t]he benchmark for judging any claim of in-
effectiveness must be whether counsel’s conduct so under-
mined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a
just result.” Jd. at 686.
Bunch asserts that his court-appointed attorneys per-
formed inadequately by failing to investigate and present
potentially mitigating factors at the sentencing phase.
Bunch presented to the state habeas court numerous affi-
davits containing mitigating evidence that he asserts was
easily available during the trial. Those affidavits came
from various family members and friends, a few neigh-
bors, a law student who interviewed military officers who
had some contact with Bunch, and Bunch’s state habeas
attorney who had interviewed Bunch’s ex-wife. Bunch
argues that his counsel should have offered the jury more
mitigating evidence than simply his mother’s testimony.
See Coles v. Peyton, 389 F.2d 224, 226 (4th Cir. 1968).
We are unpersuaded. It is becoming all too common-
place to charge even diligent counsel in the midst of diffi-
cult circumstances with the adverse outcome in a capital
case. When examining ineffective assistance claims, how-
ever, we must appreciate the practical limitations and
tactical decisions that trial counsel faced. “It is all too
tempting for a defendant to second-guess counsel’s assist-
ance after conviction or adverse sentence, and it is all
too easy for a court, examining counsel’s defense after it
has proved unsuccessful, to conclude that a particular act
or omission of counsel was unreasonable.” Strickland,
466 U.S. at 689. Particularly when evaluating decisions
not to investigate further, we must regard counsel’s
choices with an eye for “reasonableness in all the cir-
a
l5a
cumstances, applying a heavy measure of deference to
counsel’s judgments.” Jd. at 691.
Our review of the record reveals that Bunch’s attor-
neys made reasonable determinations in deciding how
best to present mitigating factors. For example, counsel
did not have the psychiatrist who evaluated Bunch for
potential mitigating evidence testify before the sentenc-
ing jury. Bunch contends that the psychiatrist could have
informed the jury of Bunch’s stressful childhood, which
included domestic violence, and of his loss of self-esteem
following the dissolution of his marriage. In addition, the
doctor could have testified that Bunch’s lack of a prior
criminal record indicated some ability to control his be-
havior, that he was under extreme pressure at the time
of the murder, and that he had the capacity for rehabili-
tation.
Counsel was aware of this beneficial testimony but was
also cognizant of the risks involved if the psychiatrist
had taken the standard. State psychiatrists had evalu-
ated Bunch and made damaging findings of which the
prosecution was aware. Had Bunch’s attorneys called
their psychiatrist, harmful evidence would have emerged
on cross-examination. Counsel feared that the overall im-
pact of the psychiatric testimony would be to reinforce
all the negative aspects of Bunch’s self-destructive be-
havior. Bunch’s lawyers were additionally worried by
“some unusual sexual orientation aspects of the case that
we in no way wanted the jury to hear about.” Having in-
terviewed the state psychiatrists in addition to their own
Witness, counsel made a reasoned strategic choice not to
offer psychiatric testimony. To use that decision as a
basis for finding ineffective assistance would be to insti-
tute a rule that psychiatric testimony should always be
offered in the sentencing phase, no matter how counter-
productive or damaging. This we refuse to do. Trial
counsel is too frequently placed in a no-win situation with
respect to possible mitigating evidence at the sentencing
phase of a capital case. The failure to put on such evi-
l6a
dence, or the presentation of evidence which then back-
fires, may equally expose counsel to collateral charges of
ineffectiveness. The best course for a federal habeas
court is to credit plausible strategic judgments in the
trial of a state case.
This view governs our disposition of the remaining
mitigation claims. With respect to possible military
mitigating witnesses, counsel spoke with the commanding
officer of the correctional facility where Bunch had last
been stationed as well as with the first sergeant of that
facility. The commanding officer reported that Bunch had
unsatisfactory working relationships with his peers, had
been dismissed from his position for drug related prob-
lems and would not have been recommended for re-
enlistment. The first sergeant had taken his post after
Bunch had been arrested but was familiar with his repu-
tation and was unable to offer any positive information.
Additionally, counsel contacted the military liaison officer
for Bunch’s case and obtained copies of Bunch’s military
record to provide the evaluating psychiatrist. With finite
hours and other demands in the case, counsel chose not to
spend valuable time pursuing what appeared to be an
unfruitful line of investigation. This too was a reason-
able decision.
Counsel contacted and interviewed Bunch’s parents.
Although initially hopeful about presenting Bunch’s fa-
ther as a favorable witness, counsel was concerned about
both his reliability and the possibility of contradictory
testimony. For example, Bunch’s father did not show up
for an important meeting with counsel because he had
gotten drunk the night before. Also, much of the mitiga-
tion strategy was to highlight Bunch’s traumatic child-
hood, including the facts that Bunch’s father had been
mostly absent from the home, had a drinking problem and
had been abusive to Bunch’s mother. Counsel worried
that Bunch’s father would downplay this history and that
they would in effect end up impeaching their own witness.
17a
They made a defensible strategic decision not to put him
on the stand.
Bunch’s mother was prepared for trial and ready to
testify to Bunch’s family and social histories, his lack of
disciplinary problems in schools, his lack of a criminal
record, and his efforts to reconcile with his wife. When
she actually testified, however, counsel had to ask a num-
ber of leading questions in order to elicit the favorable
information. Her emotional effect was blunted, as well,
also diminishing her effectiveness as a witness.
Bunch now makes much of the outcome that only one
witness, who was disappointing, testified in his behalf.
Yet when counsel was preparing for the sentencing phase
and asked both Bunch and his parents for names of
potential witnesses with information that they could not
provide, they did not suggest any. While counsel was
aware of other family members, they believed that such
testimony would only be cumulative with that of Bunch’s
mother. One of those whom Bunch now argues that coun-
sel should have contacted is his ex-wife. Before the trial,
however, Bunch instructed his counsel not to contact his
ex-wife or to involve her in the case. It is difficult for us
to fault counsel for failing to obtain additional testimony
when the client himself was not forthcoming with names.
See Strickland, 466 U.S. at 691: Tucker v. Kemp, 776
I’.2d 1487, 1490 (11th Cir. 1985).
Under these circumstances we conclude that Bunch’s
counsel made reasonable professional judgments and did
not render constitutionally defective assistance of eoun-
sel. Counsel “did interview all potential witnesses who
had been called to [their] attention and [] there was a
reasonable basis for [their] strategic decision[s].”
Burger v. Kemp, 483 U.S. 776, 794-95 (1987). Bunch
has simply not shown that “in light of all the circum.
stances, the identified acts or omissions were outside the
wide range of professionally competent assistance.”
Strickland, 466 U.S. at 690.
18a
B.
Bunch raises additional claims that his right to effec-
tive assistance of counsel was violated. He contends that
at the guilt phase of trial his rights were violated by his
attorneys’ failures: (i) to conduct adequate voir dire;
(ii) to object to the Commonwealth’s opening statement;
(iii) to deliver an effective opening statement; (iv) to
object to irrelevant inadmissible testimony; (v) to object
to improper cross-examination of Bunch; (vi) to pre-
serve for review the adequacy of the Indiana search war-
rant; (vii) to object to admission of the gun. He also
alleges other instances of ineffective assistance at the
sentencing phase.
We affirm the district court’s judgment that these ad-
ditional claims are procedurally barred. The only claim
of ineffective assistance of counsel that Bunch presented
to the Virginia Supreme Court for collateral review con-
cerned counsels’ duty to investigate and present mitigat-
ing evidence at the sentencing phase. These other claims
are therefore barred under Whitley v. Bair, 802 F.2d
1487, 1500 (4th Cir. 1986), and Wainwright v. Sykes,
433 U.S. 72 (1977).
IV.
Bunch asserts other points of error which occurred
during the guilt phase of the trial. We shall address each
in turn.
A.
Bunch protests the introduction into evidence of two
photographs of Thomas: one showing her hanging from
the doorknob as she was found, and one black and white
photograph of Thomas on the autopsy table. He argues
that these photographs were inflammatory and that his
conviction and sentence cannot have been the result of a
reasoned and rational determination. See Gregg v. Geor-
gia, 428 U.S. 153, 190 (1976).
Bunch did not challenge at either trial or on appeal the
photograph of the crime scene. That claim is therefore
19a
precluded. Wainwright v. Sykes, 483 U.S. 72 (1977).
With respect to the second print, admission of evidence
rests in the sound discretion of the trial court. Absent
extraordinary circumstances, such questions of admissi-
bility are matters of state law. The court admitted the
photo for identification purposes and Bunch has shown
no extraordinary circumstances that would justify dis-
turbing that ruling. See United States v. MacDonald,
688 F.2d 224, 227-28 (4th Cir. 1982). Admission of the
photograph was not a violation of fundamental fairness.
See Moore ». Illinois, 408 U.S. 786, 798-800 (1972).
B.
Bunch also maintains that the evidence at trial was in-
sufficient to establish a murder during the commission of
a robbery, which was the basis for his capital murder
conviction. See Va. Code Ann. § 18.2-31(d) (1988). He
argues that where the killing and the unlawful taking
are two separate acts and there was no intent to steal at
the time of the killing, there is no robbery. See Branch
v. Commonwealth, 300 S.E.2d 758, 760 (Va. 1983).
Bunch asserts that he had no intent to rob Thomas prior
to the murder and took her jewelry only in an attempt to
disguise the crime.
The Virginia Supreme Court considered this argument
on direct appeal and summarized the “overwhelming”
evidence that Bunch killed Thomas during commission of
a robbery. That evidence included Bunch’s statements to
friends before the murder that he needed money badly,
that he should “go up there to Dale City and knock that
bitch off ... and get her rings and things,” and Bunch’s
confession, wherein he said his plan had been “to go down
and take her jewelry and kill her and leave the area.”
This is more than sufficient evidence that Bunch had the
intent to rob Thomas when he killed her.
20a
C.
Bunch also asserts that his Sixth Amendment right to
cross-examine witnesses and his Fourteenth Amendment
rights to due process and equal protection were violated
when the trial court failed to provide funds for Bunch
to hire a pathologist.
Bunch waived this claim at trial and did not present it
on direct appeal or at any phase of state habeas. It is
therefore barred. Wainwright v. Sykes, 433 U.S. 72
(1977); see also Slayton v. Parrigan, 205 S.E.2d 680
(Va. 1974) (failure to raise issue at trial and on direct
appeal bars state habeas review).
D.
One of Bunch’s friends testified that Bunch spoke with
him two weeks before the murder about wanting to rob a
Pizza Hut. Bunch argued at trial and on direct appeal
that this evidence was too remote from the crime to be
relevant as to his intent to rob Thomas. On state habeas,
Bunch enhanced his argument against this testimony’s
admissibility by asserting that it was unduly prejudicial
character evidence. He asserts that his preserved claim
of irrelevancy was broad enough to incorporate the newer
grounds of inadmissibility.
Bunch’s objection at trial was framed solely in terms
of irrelevancy, however, and not in terms of constitu-
tional deprivations. The state habeas court considered
Bunch’s argument and granted the government’s motion
to dismiss the claim on the grounds of procedural default.
This is an adequate and independent state ground for
decision that forecloses consideration of the claim on fed-
eral habeas review. Coleman v. Thompson, 111 S. Ct.
2546 (1991); Ylst v. Nunnemaker, 111 S. Ct. 2590
(1991). We see no reason in any event to disturb the
discretion of the state trial court on this evidentiary
ruling.
2la
V.
Bunch also asserts numerous claims of errors made at
the sentencing phase of his trial. We shall address these
claims too in order.
A.
Under Virginia’s capital sentencing scheme, a death
sentence cannot be imposed unless a jury determines
beyond a reasonable doubt that the defendant represents
a future danger to society or that the defendant’s conduct
was particularly vile. Va. Code Ann. §§ 19.2-264.2,
-264.4(C) (1990). The trial court submitted to the
jury only the question of vileness. A jury can impose a
sentence of death for vileness only if the defendant’s
conduct satisfied one of three statutory predicates: “tor-
ture, depravity of mind or aggravated battery to the
victim.” Wa. Code Ann. § 19.2-264.4(C) (1990). Bunch
argues that the trial court’s instructions regarding the
death penalty were constitutionally infirm for two rea-
sons. First, he asserts that the court should have in-
structed the jurors that they must be in unanimous agree-
ment as to which of the three vileness predicates existed.
See Andres v. United States, 333 U.S. 740, 748 (1948).
Second, Bunch asserts that the vileness predicate is un-
constitutionally vague and that the trial court erred in
failing to provide a limiting instruction.
We find no error in the instructions given by the trial
court. With respect to the unanimity claim, we observe
that the Virginia legislature has identified three differ-
ent types of conduct, any of which would satisfy a finding
of vileness. Virginia does not require that the jury iden-
tify the particular predicate on which it relies. Clark v.
Commonwealth, 257 S.E.2d 784, 791-92 (Va. 1979). The
jurors, when polled, indicated that the finding of vileness
was unanimous. That affirmance effectively “moots any
claim of error in the instructions on unanimity.” - Briley
v. Bass, 742 F.2d 155, 166 (4th Cir. 1984) - see also Schad
a
22a
v. Arizona, 111 S. Ct. 2491, 2496-2500 (1991) (unless
statutory alternatives were actually separate crimes, ju-
rors’ verdict was unanimous). This court has already
considered the argument that the Virginia vileness stat-
ute is unconstitutionally vague and has rejected it. See
Clozza v. Murray, 913 F.2d 1092, 1105 (4th Cir. 1990).
B.
Bunch alleges that the trial court erred in failing to
strike for cause two jurors who were biased in favor of
the death penalty, thus yielding “a jury uncommonly
willing to condemn a man to die.” Witherspoon v. Illinois,
391 U.S. 510, 521 (1968). Although Bunch did not raise
this claim either at trial.or on direct appeal and it is
procedurally barred, Murray v. Carrier, 477 U.S. 478
(1986), Bunch asserts that the alleged error was such
a fundamental miscarriage of justice that review is still
available. See Sykes, 483 U.S. at 91.
The record, however, reveals that neither veniremember
was biased. Although both potential jurors had initially
agreed with the statement that the death penalty should
be imposed in every case of murder regardless of the
facts and circumstances, both changed their positions
upon immediate requestioning. Failure to strike the po-
tential jurors for cause did not lead to a fundamental
miscarriage of justice where, as here, they stated their
ability to consider fairly and impartially sentences be-
sides death.
C.
The Commonwealth introduced evidence at the sen-
tencing phase that Bunch associated with prostitutes and
had thoughts about killing people and becoming a mer-
cenary hit man. Bunch asserts that this evidence relates
only to future dangerousness and not to vileness and
should have been excluded from the sentencing phase.
This objection was not raised at trial and the state
habeas court found the claim procedurally barred under
23a
Virginia’s contemporaneous objection rule. Our review
of the claim is therefore also barred. Coleman v. Thomp-
son, 111 S. Ct. 2546 (1991); Yist v. Nunnemaker, 111
S. Ct. 2590 (1991).
D.
Bunch finally requests that we declare the Virginia
death penalty statute and sentencing procedures to be
facially unconstitutional. As the district court observed,
the Supreme Court has upheld statutes similar to Vir-
ginia’s both as to future dangerousness, see Jurek v.
Texas, 428 U.S. 262, 269, 274-76 (1976), and as to
vileness. See Gregg v. Georgia, 428 U.S. 153, 201 & n.51
(1976). Bunch’s claim is also conclusory in nature and
disregards the multitude of challenges to the application
of Virginia’s capital punishment scheme which have been
rejected.
VI.
For the foregoing reasons, we hold Bunch’s claim to
be without merit. The judgment of the district court is
hereby
AFFIRMED.
SPROUSE, Circuit Judge, dissenting:
I concur in all of the majority opinion except Part
IJ. A. which I respectfully dissent.
The majority believes that the language used by the
Supreme Court in Edwards was confusing and that the
Edwards rule was neither bright nor linear. It is the
majority’s view that not until Solem was Edwards clari-
fied as establishing ‘‘a bright-line rule that before a sus-
pect can waive his invoked right to counsel he must be
the party to initiate subsequent communication.”
In my view, the bright-line rule was clearly announced
in Edwards. Solem did not alter or modify the Edwards
rule. Since the parameters of the waiver of counsel re-
quirements were established in Edwards, consideration
24a
of Teaque’s retroactivity principles is simply misplaced.
Accordingly, the Virginia courts should have observed
Edwards and suppressed Bunch’s statement to Cahill.
Although the Edwards majority was challenged within
the Supreme Court by two separate opinions, the major-
ity rejected those challenges and, as shown in Bradshaw,
and Solem, persisted in its view that once a defendant
invokes his right to counsel, the accused must initiate
conversation to establish a valid waiver.
The Supreme Court in EHdwards, realizing that addi-
tional safeguards were necessary to protect an accused’s
request for counsel, held that:
when an accused has invoked his right to have counsel
present during custodial interrogation, a valid waiver
of that right cannot be established by showing only
that he responded to further police-initiated custodial
interrogation even if he has been advised of his rights.
We further hold that an accused, such as Edwards,
having expressed his desire to deal with the police
only through counsel, is not subject to further inter-
rogation by the authorities until counsel has been
made available to him, unless the accused himself
initiates further communication, exchanges, or con-
versations with the police.
Id. at 484-85 (emphasis added). The six-justice majority
could not have been any clearer in its holding that once
a suspect invokes his right to counsel, only communica-
tion initiated by the accused can provide the basis for
further interrogation.
Chief Justice Burger concurred only in the judgment
because he disagreed with the majority about the need
for a “special” rule concerning the waiver of a right to
be free from interrogation—opining that the validity of
such waivers should be determined under the particular
facts and circumstances standard of Johnson v. Zerbst,
304 U.S. 458 (1938). Justice Powell also refused to join
25a
the majority. Like Justice Burger, he was of the view
that the issue of Edwards’ waiver of counsel should have
been considered under the Zerbst standard. Justice Pow-
ell also criticized “what appears to be an undue, and
undefined, emphasis on a single element: ‘initiation.’ ”
Id. at 491-92.
The majority here claims Oregon v. Bradshaw, 462
U.S. 1039 (1983), decided six days after Bunch’s state
appeal, demonstrates that Edwards was an uncertain
rule. In Bradshaw, however, eight members of the Su-
preme Court restated that the waiver ruling in Edwards
was absolute. The plurality opinion stated:
We think the Oregon Court of Appeals misappre-
hended the test laid down in Edwards. We did not
there hold that the “initiation” of a conversation by
a defendant such as respondent would amount to a
waiver of a previously invoked right to counsel; we
held that after the right to counsel had been asserted
by an accused, further interrogation of the accused
should not take place “unless the accused himself ini-
tiates further communication, exchanges, or conver-
sations with the police.”
Id. at 1044 (citations omitted). Four dissenting justices
agreed. The dissent stated, “To establish a waiver, it
would thus be a necessary fact that the accused, not the
police, reopened the dialogue with the authorities.” Id.
at 1053 (internal quotations, emphasis, and citations
omitted). Although the justices disagreed as to whether
the defendant had in fact initiated conversation, both
the plurality and the dissent agreed the defendant must
be the one to initiate conversation for a valid fifth
amendment waiver.
The issue in Solem v. Stumes, 465 U.S. 638 (1984),
was whether Edwards established a “new rule” so as
to apply retroactively to a state court decision rendered
before Edwards. Justice White, for a five-member ma-
jority, wrote:
26a
-
Edwards established a bright-line rule to safeguard
pre-existing rights, not a new substantive require-
ment. . . Edwards established a new test for when
that waiver would be acceptable once the suspect had
invoked his right to counsel: the suspect had to initi-
ate subsequent communication... .
Before Edwards, the question whether the author-
ities could resume questioning after a defendant has
asked for an attorney was acknowledged to be ur»
settled.
Solem, at 646, 648. The Solem court held that since
Edwards established a “new rule,” it was not to be
retroactively applied. Retroactivity, not the parameters
of Edwards, was the issue in Solem. In fact, whether the
treatment of defendant Stumes violated Edwards was
not even an issue for decision. “We .. . assume for
present purposes that the conduct at issue here violated
Edwards.” Id. at 642. Therefore, Solem could not have
established a new rule because it neither extended nor
modified Edwards.
The majority here holds that the Virginia Supreme
Court could have reasonably interpreted Edwards to sanc-
tion the type of reinterrogation conducted by Officer Ca-
hill, because not until Solem was it clear that the inter-
rogation violated the rule established in Edwards. Be-
cause Solem announced a new rule, the majority reasons,
it is not to be applied retroactively to Bunch. I disagree.
In Teague, Justice O’Connor defined a “new rule:”
[A] case announces a new rule when it breaks new
ground or imposes a new obligation on the States or
the Federal Government. ... To put it differently,
a case announces a new rule if the result was not
dictated by precedent existing at the time the defend-
ant’s conviction became final.
Teague at 301. It is true that the Supreme Court in
considering the ‘new rule” principle of Teague stated:
27a
“The ‘new rule’ principle therefore validates reasonable,
good-faith interpretations of existing precedents made
by state courts even though they are shown to be con-
trary to later decisions.” Butler, 58 U.S.L.W. 4294, 4296
(March 5, 1990). Not even in the most generous recog-
nition of comity, however, could we suggest that a state
court’s interpretation of a United States Supreme Court
decision on federal constitutional law is reasonable when
the United States Supreme Court has clearly reached a
contrary conclusion.
The majority here relies on the opinion of various state
courts to illustrate that other state courts’ interpretation
of Edwards was similar to that of the Virginia Supreme
Court in this case. The problem I have with that approach
is that a majority of the United States Supreme Court
justices have expressed views inconsistent with those ex-
pressed by these state appellate bodies. Although the
majority here may take some comfort from the concur-
rence of Justice Powell in Edwards that he found the
majority opinion confusing, it goes without saying that
if the majority of the Supreme Court holds the Edwards
opinion to be clear—it is clear.
In collateral review cases, the Supreme Court, of course,
is always sensitive to the effect of its opinions on the
administration of criminal justice in state courts. Teague
at 308. Whether or not this comity concern is really an-
other aspect of the sometime tension between concerns
of finality on the one hand and fundamental fairness and
protection of truth-finding procedures on the other, state
court decisions cannot undermine the finality of decisions
of the United States Supreme Court, under any of the
various formulations for determining issues of retro-
activity. See Teague; Griffith v. Kentucky, 479 U.S.
314 (1987); Mackey v. United States, 401 U.S. 667
(1971); Desist v. United States, 394 U.S. 244 (1969);
Stovall v. Denno, 388 U.S. 293, (1967): Linkletter ».
Walker, 381 U.S. 618 (1965); Palko v. State of Connec-
28a
ticut, 302 U.S. 319 (1937). The majority opinion here,
however, would interpret Teague as allowing lower courts
to render a clear decision of the Supreme Court unclear;
the result produces the very lack of finality the majority
panel here decries.
So no matter how respectable state judicial authorities
might be, we are concerned here with a federal constitu-
tional issue. Although some state courts have reacted
to Edwards as if its intentions were unclear and the
announced test confusing, a majority of the Supreme
Court has consistently treated it as announcing a bright-
line test. The test in Solem is no different than in Ed-
wards. Its results were dictated by the existing prece-
dent of Edwards. Edwards clearly held that once a sus-
pect invokes the right to counsel, police interrogation
must not be renewed unless the suspect initiates the
conversation.
Here Detective Cahill asked Bunch “if he felt he was
ready to sit down and go over the case’’—clearly Cahill,
not Bunch, initiated the conversation leading to the subse-
quent interrogation at the Prince William County police
station. That was a violation of Bunch’s fifth and four-
teenth amendment rights defined by Edwards. In Affirm-
ing the state trial court’s denial of suppression, the Vir-
ginia Supreme Court committed constitutional error. Ac-
cordingly, I dissent on this issue.
29a
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 90-4001
CA-88-645-R
TIMOTHY DALE BUNCH
Petitioner-A ppellant,
CHARLES THOMPSON, Warden
Respondent-A ppellee.
No. 90-4005
TIMOTHY DALE BUNCH
Pe titioner-A ppellant,
V.
CHARLES THOMPSON, Warden
Respond nt-A ppe llee.
On Petition for Rehearing with Suggestion
for Rehearing In Bane
[Filed January 31, 1992]
Appellant’s petition for rehearing and suggestion for
rehearing in bane were submitted to this Court.
30a
On the question of rehearing before the panel, Judge
Wilkinson and Judge Widener voted to deny rehearing.
Judge Sprouse voted to grant rehearing, and should be
shown as dissenting from the majority’s denial of re-
hearing.
In a requested poll of the Court on the suggestion for
rehearing in banc, Judges Russell, Widener, Hall, Wil-
kinson, Wilkins, Niemeyer, Hamilton and Luttig voted
to deny rehearing in banc; and Chief Judge Ervin and
Judges Phillips, Murnaghan, and Sprouse voted to grant
rehearing in banc.
As the panel considered the petition for rehearing and
is of the opinion that it should be denied, and as the
majority of the active circuit judges voted to deny re-
hearing in banc,
It is ADJUDGED and ORDERED that the petition
for rehearing and suggestion for rehearing in bane are
denied.
Entered at the direction of Judge Wilkinson, with the
concurrence of Judge Widener. Judge Sprouse dissents.
For the Court,
/s/ John M. Greacen
CLERK
3la
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
Civil Action No. 88-0645-R
TIMOTHY DALE BUNCH,
Petitioner,
V.
CHARLES EF. THOMPSON, WARDEN,
Respondent.
MEMORANDUM OPINION
[Filed Mar. 16, 1990]
This matter is before the Court on respondert’s motion
tc dismiss the federal habeas corpus petition filed by
Timothy Dale Bunch and Bunch’s cross-motion for partial
summary judgment. For the reasons stated in this memo-
randum opinion, the Court will GRANT respondent’s
motion to dismiss the petition.
I
On January 31, 1982, petitioner Timothy Dale Bunch
killed Ms. Su Cha Thomas by shooting her in the head
and then using one of her scarves to hang her from a
doorknob. An autopsy revealed both a gunshot wound and
congestion of blood vessels in the lungs, indicating that
her death resulted from a combination of the gunshot
wound and the hanging. After the murder, Bunch re-
moved several items from Ms. Thomas’ home, including
a Rolex watch, a diamond ring, and a pearl necklace.
Bunch then ransacked the house in order to make it ap-
pear that an intruder had broken in and committed the
32a
murder. Later, Bunch stated that he killed Ms. Thomas
because “she was a slut and she reminded him too much
of his wife and he wanted her money.” Bunch v. Com-
monwealth, 225 Va. 428, 430, 304 S.E.2d 271, 280, cert.
denied, 464 U.S. 977 (1983).
Prior to the murder, Bunch and Ms. Thomas had de-
veloped an intimate relationship. Bunch, a sergeant in
the United States Marine Corps, was stationed temporar-
ily at Quantico, Virginia. He had met Ms. Thomas, a
divorcee living in Dale City, Virginia, after he arrived
at Quantico in December, 1981. Soon after the murder,
Bunch returned to his permanent duty station at Iwakumi,
Japan.
Before returning to Japan, Bunch sold a watch similar
to Ms. Thomas’ at a pawn shop in Arlington County,
Virginia. The shop owner reported the sale to the police,
who began to investigate Bunch. On February 16, 1982,
Investigator Donald L. Cahill and Assistant Common-
wealth’s Attorney William Hamblen travelled to Japan
with warrants charging Bunch with murder and robbery. ~
Cahill met Bunch, informed him of his Miranda rights,
and had Bunch sign a “Warning and Consent” form.
Bunch indicated he was willing to talk with Cahill. At
some point in the interrogation, Bunch indicated he
wanted to talk to a lawyer. Hamblen left the room at
that point, and Cahill talked to Bunch about another
matter for several minutes. As Cahill was leaving the
room, Bunch said he would cooperate. He then told
Cahill that “the gun” was at his mother’s home in In-
diana and “the ring” was in Japan.
At that time, Cahill and Hamblen decided that the
questioning should end unless Bunch signed another
“Warning and Consent” form. Bunch refused to sign
another form, and the interrogation ceased. Three days
later, Bunch was moved from Japan to the custody of
civil officials in Virginia. He was advised of his Miranda
rights again during the trip. Bunch arrived in Quantico
i crerrrernieanaacaiaaaiaaanmaiiaiaiiiitel
33a
after midnight on February 21 and was processed for
delivery to Prince William County authorities.
As part of the processing, Bunch spoke with Major
Donald R. Jillisky, a lawyer with the Marine Judge Ad-
vocate General’s Office. Jillisky described the charges to
Bunch and advised him that “he did not have to say any-
thing until he consulted with his lawyer and that it was
probably not in his best interest to say anything until
he consulted with his lawyer.”
After processing, Bunch was again turned over to
Cahill. On the way to the Garfield police station (“Gar-
field”), Cahill asked Bunch “if he felt he was ready to
sit down and go over the case” and told Bunch that “at
that time it didn’t matter to me if he did or didn’t. It
was entirely up to him, and he certainly was not re-
quired to talk to me if he didn’t want to.” Bunch said
that he had spoken to a lawyer at Quantico and had been
advised “not to say anything” and to talk to a lawyer
before talking to the police. He also said that he was
ready to tell the whole story. At Garfield, Bunch was
again given his Miranda warnings and he signed a “Warn-
ing and Consent” form. He then confessed the details of
the crime to Cahill.
Bunch was tried in Prince William County Circuit
Court for murder during the commission of armed rob-
bery. The trial judge suppressed the statements Bunch
made to Cahill while in Japan, finding that Bunch had
requested and had been denied the assistance of counsel.
The judge found, however, that Bunch had ‘intelligently,
wittingly, freely and voluntarily waived his Miranda
rights before making the confession in Virginia, and so
the Virginia confession was admitted into evidence.
After returning a guilty verdict, the jury considered
evidence during the sentencing phase of the trial. The
jury recommended the death sentence based upon the
“vileness” statutory aggravating factor. Va. Code Ann.
34a
§ 19.2-264.2 (1983). Following preparation of a pre-
sentence report, the judge imposed the death sentence
on November 12, 1982.
Bunch’s appeal was consolidated with the statutory
review of his death sentence. The conviction and sentence
were affirmed on June 17, 1983. Bunch, 225 Va. 428,
304 §.E.2d 271. Bunch filed a state petition for habeas
corpus on February 27, 1984. On November 16, 1984, the
trial court dismissed all of Bunch’s claims of error except
ineffective assistance of counsel. The judge held a plenary
hearing on that claim on January 28, 1985, and dismissed
the remainder of the petition on May 28, 1985.
Bunch appealed the state habeas corpus decision to the
Virginia Court of Appeals, which dismissed it for lack of
jurisdiction on July 6, 1987. He then petitioned for ap-
peal to the Supreme Court of Virginia, which refused the
petition of February 26, 1988. The parties agree that
Bunch has no remaining state court remedy.
In his federal habeas corpus petition, Bunch alleges
a host of violations of his rights under the Fifth, Sixth,
Eighth and Fourteenth Amendments to the Constitution
of the United States. They are listed below:
I. Guilt Phase
A. Bunch’s constitutional rights were violated when
the trial court admitted into evidence statements
improperly obtained after Bunch asserted his
rights to remain silent and to consult with an
attorney.
B. Bunch’s constitutional rights were violated when
the trial court admitted into evidence statements
made involuntarily.
C. Bunch’s constitutional rights were violated by a
conviction based on insufficient evidence of a mur-
der during the commission of a robbery.
H.
35a
Bunch’s constitutional rights were violated by tk
trial court’s failure to exclude two jurors for
cause.
Bunch’s constitutional rights were violated by
the admission of irrelevant, unduly prejudicial
character testimony.
Bunch’s constitutional rights were violated by the
admission of inflammatory and highly prejudicial
photographs.
Bunch’s constitutional rights were violated by
his inability to conduct effective cross-examination
of the pathologist.
Bunch was denied the constitutionally guaranteed
effective assistance of counsel because:
i. trial counsel failed to conduct an adequate
voir dire of prospective jurors;
ii. trial counsel failed to object to portions of
the Commonwealth’s opening statements
which were irrelevant and improper;
iii. trial counsel’s opening statement was _ in-
effective;
iv. trial counsel failed to object to irrelevant,
inadmissible testimony ;
v. trial counsel failed to object to portions of
the Commonwealth’s cross-examination of pe-
titioner which were clearly improper and
irrelevant;
vi. trial counsel failed to preserve for appellate
and collateral review the adequacy of the In-
diana search warrant;
vii. tria! counsel failed to object to the admission
of the gun on the grounds that it had not
been positively identified as belonging to
petitioner ;
I.
36a
Bunch’s constitutional rights were violated by the
denial of a fundamentally fair trial.
II. Sentencing Phase
A.
Bunch was denied his constitutionally guaranteed
right to the effective assistance of counsel because:
i. trial counsel failed adequately to prepare and
present evidence at the sentencing phase of
trial;
ii. trial counsel failed to object to the jury in-
struction given in the sentencing phase of
trial and failed to offer other appropriate
instructions;
iii. trial counsel failed to request a ruling on
the future dangerousness issue prior to the
sentencing hearing;
iv. trial counsel failed to object to the emphasis
on future dangerousness testimony during
the Commonwealth’s presentation in closing
argument.
Bunch’s constitutional rights were violated by the
admission of irrelevant character evidence.
Bunch’s constitutional rights were violated when
the jury heard evidence of future dangerousness,
a fact later excluded from jury consideration.
Bunch’s constitutional rights were violated by the
inadequate and confusing instructions given to
the jury.
. Bunch’s constitutional rights were violated when
he was sentenced to death based on insufficient
evidence of a statutory prerequisite to the death
penalty.
Bunch’s constitutional rights were violated when
he was denied a fundamentally fair sentencing
trial.
37a
G. The Virginia death penalty statute and sentencing
procedures are facially unconstitutional.
H. The Virginia death penalty statute was uncon-
stitutionally applied to the facts of this case.
I. The Virginia death penalty statute is applied in
an arbitrary and discriminatory manner.
J. The death penalty constitutes cruel and unusual
punishment.
K. The penalty of death by electrocution is unneces-
sarily cruel and unusual.
III. Appellate Phase
Bunch’s constitutional rights were violated by the
Virginia Supreme Court’s failure to conduct a mean-
ingful proportionality review.
IV. State Habeas Corpus Phase
Bunch’s constitutional rights were violated by the
exclusion of relevant admissible evidence in the state
habeas corpus proceeding.
The Court will address each of these contentions in turn.
IT.
I. A. Bunch first contends that the confession made
upon his return to Virginia from Japan was obtained in
violation of his Fifth Amendment right to counsel. He
argues that he asserted his right to counsel in Japan
and that when the police resumed interrogating him
before he had spoken with counsel and without Bunch
initiating the conversation, they violated his Fifth Amend-
ment rights under Edwards v. Arizona, 451 U.S. 477
(1981). The trial court, finding that Bunch asserted his
right to counsel in Japan, suppressed the statements he
made in Iwakuni. The court declined, however, to sup-
press the Virginia confession, finding under the totality
38a
of the circumstances a valid waiver of Bunch’s right to
counsel. Bunch argues that Edwards established a per se
rule forbidding a finding that a suspect waives his right
to counsel unless, after his request for an attorney, he
initiates any subsequent interrogation. Bunch argues that
under this per se rule the Virginia confession is inad-
missible.
Respondent argues that Bunch made, at most, only an
ambiguous, equivocal reference to a lawyer, and so did
not assert his right to counsel during questioning in
Japan. Respondent further alleges that the vagueness
of Bunch’s comment allowed further questioning in order
to ascertain whether he in fact desired to confer with
counsel. Finally, respondent claims that Bunch reinitiated
the conversation with the officers, thereby allowing those
officers to engage in further interrogation. This Court
finds it unnecessary to address these issues. Assuming,
arguendo, that Bunch did make a valid request for counsel
in Japan and that officer Cahill reinterrogated Bunch in
Virginia before Bunch was provided counsel, the Court
may still find that no Fifth Amendment violation occurred
to render the statements in Virginia inadmissible. At
the time of Bunch’s arrest and trial, the character of the
Edwards rule was at best ambiguous. That ambiguity
was not resolved until later, when in Solem v. Stumes,
465 U.S. 638, 647 (1984), the Supreme Court first de-
scribed the rule of Edwards as a “per se” rule. Because
the Virginia Supreme Court applied a plausible interpre-
tation of the Edwards rule in the Bunch appeal, and
because the later modification of the Edwards rule should
not be applied retreactively to Bunch’s case, this Court
finds that the state courts properly applied the “totality
of the circumstances” test to find a valid waiver of Bunch’s
right to counsel. The waiver being valid, Bunch’s Fifth
Amendment rights were not violated, and his statements
made in Virginia were properly admitted.
Before the Edwards decision, a waiver of the right to
counsel was examined based upon the “totality of the
39a
circumstances.” Johnson v. Zerbst, 304 U.S. 458, 464
(1938). Waiver after an accused had specifically in-
voked his right to counsel required ‘a knowing and in-
telligent relinquishment or abandonment of a known right
or privilege, a matter which depend[ed] in each case
‘upon the particular facts and circumstances surrounding
that case, including the background, experience, and con-
duct of the accused.’ Edwards, 451 U.S. at 482 (quoting
Johnson, 304 U.S. at 464). In Edwards, the Court im-
plied for the first time that additional safeguards were
necessary when an accused requested counsel. The Court
held that
when an accused has invoked his right to have counsel
present during custodial interrogation, a valid waiver
of that right cannot be established by showing only
that he responded to further police-initiated custodial
interrogation even if he has been advised of his
rights. We further hold that an accused, such as
Edwards, having expressed his desire to deal with
the police only through counsel, is not subject to
further interrovation by the authorities until counsel]
has been made available to him, unless the accused
himself initiates further communication, exchanges,
or conversations with the police.
Edwards, 451 U.S. at 484-85.
Justice Powell concurred in the result in Edwards but
refused to join the court’s opinion because he was “not
sure what it mean[t].” Jd. at 488 (Powell, J., concur-
ring). The Edwards opinion stated the familiar Johnson
v. Zerbst standard for waiver. What concerned Powell,
however, was the emphasis Edwards placed on “initia-
tion.”” Powell was unsure whether Edwards created “a
new per se rule, requiring a threshold inquiry as to pre-
cisely who opened any conversation between an accused
and state officials.” Jd. at 489-90. This possibility troubled
Powell because such a rule would “superimpose a new
element of proof on the established doctrine of waiver
of counsel.” Jd. at 490.
a aera reece naan
40a
The Supreme Court did little to clarify matters when,
the year after Edwards, it issued an opinion in Wyrick
v. Fields, 459 U.S. 42 (1982). In Wyrick, the Supreme
Court reversed and remanded an Eighth Circuit opinion
where the majority had “misconstrued this Court’s recent
decision in Edwards v. Arizona and imposed a new and
unjustified limit on police questioning of a suspect who
voluntarily, knowingly, and intelligently waive[d] his
right to have counsel present.” Jd. at 438 (citation
omitted). The Court did not address Justice Powell’s
concern about the meaning of “initiation,” as it was
conceded that the suspect in Wyrick had initiated the
interrogation. Jd. at 46. The opinion also did nothing
to clarify whether or not Edwards had stated a per se
rule forbidding waiver where further interrogation was
not suspect-initiated. Instead, the Court’s language sim-
ply added to the confusion. The Court stated that “[t]he
Eighth Circuit recognized that what it called the ‘per se
rule’ of Edwards ‘does not resolve the issue present here,’ ”
id. (emphasis added), adding that “[t]he only plausible
explanation for the court’s holding is that, encouraged
by what it regarded as a per se rule established in Ed-
wards, it fashioned another rule of its own.” Jd. at 48
(emphasis added). The Wyrick opinion made no at-
tempt to characterize the Edwards rule as a per se rule
and reiterated the fact that Edwards “emphasize[d] that
the totality of the circumstances, including the fact that
the suspect initiated the questioning, is controlling.” Jd.
(emphasis added). Finally, the Court held that “[b]e-
cause the Court of Appeals misapplied Edwards and
created an unjustified per se rule,” id. at 49 (emphasis
added), the case would be remanded. After the issuance
of the Wyrick opinion, the meaning of the Edwards rule
was still ambiguous.
The confusion that Edwards and Wyrick created was
not confined to Justice Powell’s chambers. In 1983 the
Supreme Court decided Oregon v. Bradshaw, 462 U.S.
~ 1039 (1983). Justice Powell wrote a concurring opinion
4la
in which he documented the confusion in the lower courts
over whether Edwards had announced a new per se rule.
Id. at 1047 n.1 (Powell, J., concurring). Powell’s con-
currence noted that Justice Marshall and the three Jus-
tices who joined Marshall’s Bradshaw dissent read Ed-
wards differently than Justice Rehnquist and the three
Justices who joined the Rehnquist opinion. While all
viewed “the ‘initiation’ question as the first step of a
two-step analysis, the second step being the application
of the Zerbst standard that require[d] examination of
the ‘totality of the circumstances,’” id. at 1048, the two
sides disagreed over the meaning of “initiation.” Jd. Full
clarification of the Edwards rule was still lacking.
The Supreme Court of Virginia decided Bunch on June
17, 1983, six days before the United States Supreme
Court decided Bradshaw. The state supreme court re-
fused to hold that the Virginia confession should have
been suppressed, deciding that “Edwards did not estab-
lish, as Bunch seems to suggest, a per se rule forbidding
any finding of waiver of counsel unless subsequent in-
terrogation is suspect-initiated.” Bunch, 255 Va. at 433,
304 S.E.2d at 276. The court based its decision on its
view that in Edwards the Supreme Court “ha[d] not
ruled that the only way a suspect may waive the right to
counsel at a subsequent interrogation is by initiating
the interrogation himself,” id., and went on, using the
totality of the circumstances test, to determine that
Bunch had made a knowing and intelligent waiver of his
right to counsel in Virgina. The court sustained the
admission of the confession on alternate grounds by find-
ing that Cahill’s inquiry whether Bunch “felt he was
ready to sit down and go over the case” was only an at-
tempt to seeif Bunch had changed his mind about wanting
an attorney, and “did not amount to police-initiated in-
terrogation within the meaning of Edwards.” Id. at 434-
35, 304 S.E.2d at 277. Here, the Virginia Supreme
Court relied on Powell’s statement that “police legiti-
mately may inquire whether a suspect has changed his
42a
mind about speaking to them without an attorney.” Ed-
wards, 451 U.S. at 490 (Powell, J., concurring). Both
of Powell’s concerns, the existence of a per se rule in Ed-
wards and the ambiguous use of the term “initiation,”
surfaced in the Bunch decision, and the Virginia Supreme
Court addressed these issues in a manner compatible with
then prevailing law.
The Supreme Court did not adequately clarify its
Edwards rule until it decided Solem v. Stumes, 465 U.S.
638, a case decided after Bunch had exhausted his direct
appeal. The Solem opinion was the first occasion where
the Court stated that the Edwards rule was a “per se
approach.” Jd. at 647. In fact, in a later case, Smith
v. Illinois, 469 U.S. 91, 98 (1984) (emphasis in original),
the Supreme Court cited Solem, not Edwards, for the
proposition that “Edwards set forth a ‘bright-line rule’
that all questioning must cease after an accused requests
counsel.” (emphasis in original). At the time of Bunch’s
trial and direct appeal, the rule in Edwards remained
ambiguous.
Bunch’s statements in Virginia were obtained in strict
accordance with established law in Virginia in 1982. The
Virginia Supreme Court found a knowing and intelligent
waiver of counsel under the totality of the circumstances.
The Court noted that it could “conceive of no clearer case
of a ‘knowing and intelligent relinquishment or abandon-
ment’ of [Miranda] rights.” Bunch, 225 Va. at 434, 304
S.E.2d at 277 (quoting Wyrick, 459 U.S. at 47). The
Court’s holding is adequately supported by the law and
the record and will not be disturbed in this federal col-
lateral proceeding unless the Edwards rule, as eventually
clarified in Solem, must be applied retroactively.
Solem, the very case which clarified the rule in Edwards
vw. Arizona, refused to apply Edwards retroactively.
Solem, 465 U.S. at 650. In Solem, the Supreme Court set
forth the criteria controllir retroactive application of
judicial decisions:
caaeeaeieeaceiiiaiiii iii
43a
Under these cases, “[t]he criteria guiding resolution
of the [retroactivity] question implicate (a) the pur-
pose to be served by the new standards, (b) the ex-
tent of the reliance by law enforcement authorities
on the old standards, and (c) the effect on the ad-
ministration of justice of a retroactive application of
the new standards.”
Id. at 643 (quoting Stovall v. Denno, 388 U.S. 293, 297
(1967) ). The Court stated that retroactive effect is most
fitting “where a new constitutiona! principle is designed
tc enhance the accuracy of criminal trials,” Solem, 465
U.S. at 643, and that the Edwards rule was “a far cry”
from such a case. Jd. at 645. The Court further noted
that the reliance interest in Edwards was compelling and
that retroactive application of the rule would disrupt the
administration of justice. Jd. at 649-50. The Court con-
cluded that Edwards should not be applied retroactively,
and stated that, “[a]t a minimum, nonretroactivity
means that a decision is not to be applied in collateral
review of final convictions.” Jd. at 650. The Supreme
Court’s reasoning applies with equal force in the present
case. If the Edwards rule itself has no retroactive effect
during collateral review, then neither should a subsequent
clarification of that rule be applied retroactively.
The Supreme Court has refused to apply other modifi-
cations of the Edwards rule retroactively. The Court re-
cently held that Arizona v. Roberson, 486 U.S. 675
(1988), a case applying Edwards limitations on interro-
gation in the context of a separate criminal investigation,
would not be applied retroactively on collateral review.
Butler v. McKellar, 58 U.S.L.W. 4294 (U.S. Mar. 5,
1990) (No. 88-6677). This opinion affirmed the Fourth
Cireuit’s decision in Butler v. Aiken, 864 F.2d 24, 25
(4th Cir. 1988), which held that the Edwards-Roberson
limitations on police interrogation would not be applied
retroactively because they had only “the most tangential
relationship to truth finding.” The Supreme Court stated
that the Roberson rule was not a new procedure central
44a
to an accurate determination of guilt or innocence, and
reasoned as follows:
Because a violation of Roberson’s added restrictions
on police investigatory procedures would not seri-
ously diminish the likelihood of obtaining an ac-
curate determination—indeed, it may increase that
likelihood—we conclude that Roberson did not estab-
lish any principle that would [require its retroactive
application].
McKellar, 58 U.S.L.W. at 4297.
The Supreme Court’s refusal to apply Edwards retro-
actively and its similar treatment of the Roberson limita-
tions on police interrogation indicate that Bunch is not
entitled to retroactive relief. The Supreme Court waited
until the Solem decision to announce that Edwards cre-
ated a per se rule. This aspect of the Edwards rule does
not enhance the accuracy of criminal procedure or aid
the truthfinding process. As the Court reasoned in
Butler v. McKellar, such a rule does not meet the criteria
for retroactive application on collateral review.
Because Bunch’s Virginia confession was validly ad-
mitted under the law in existence during his trial and
appeal, and because subsequent modification of the
Edwards rule should not be given retroactive effect, this
Court finds that the Virginia confession was properly
admitted into evidence. Its inclusion does not afford
Bunch a basis for relief.
Bunch also asserts in claim I.A. that the trial court
should have suppressed his confession because he asserted
his right to remain silent in Japan, and the Common-
wealth did not scrupulously honor the right as required
by Michigan v. Mosley, 423 U.S. 96 (1975). Respondent
moves to dismiss this claim as procedurally barred be-
cause Bunch failed to raise it at trial or on appeal. See
Murray v. Carrier, 477 U.S. 478 (1986); Wainwright v.
Sykes, 433 U.S. 72 (1977). Bunch responds that he pre-
45a
served the right to challenge the admissibility of his con-
fession on Fifth and Sixth Amendment grounds. In his
assignments of error on direct appeal, Bunch included
the following: “The Trial Court erred in denying Plain-
tiff in Error’s Motion to Suppress His Confession.” Brief
for Appellant at 14, Bunch, 225 Va. 423, 304 S.E.2d 271
(No. 822081). Although Bunch mentioned Mosley in his
appellate brief, he did not assert that the confession vio-
lated his right to remain silent. 7d. at 15. Other circuits
have allowed habeas corpus petitioners to present argu-
ments not raised on direct appeal. See, e.g., Vela v.
Estelle, 708 F.2d 954 (5th Cir. 1983), cert. denied, 464
U.S. 1053 (1984); Francis v. Spraggins, 720 F.2d 1190
(llth Cir. 1983), cert. denied, 470 U.S. 1059 (1985)
(allowing petitioners in each case to present instances of
ineffective assistance of counsel not raised on direct
appeal).
The Fourth Circuit, however, has barred certain claims
of ineffective assistance of counsel under the Sixth
Amendment as procedurally defaulted while allowing
others to go forward. See Whitley v. Bair, 802 F.2d
1487, 1496 n.17 (4th Cir. 1986), cert. denied, 480 U.S.
951 (1987). Had the Fourth Circuit adopted Bunch’s
desired approach, defense counsel could have preserved
all objections simply by making one blanket objection
under each particular constitutional amendment and
bringing up the others later during federal habeas corpus
proceedings. Obviously, the Fourth Circuit would not ac-
cept Bunch’s argument, because in Whitley it allowed
some of the petitioner’s Sixth Amendment claims, while
barring others. As the Fourth Circuit observed in
Clanton v. Muncy, 845 F.2d 1288, 1240 (4th Cir.), cert.
denied, 485 U.S. 1000 (1988), “constitutional litigation
is not to be conducted piecemeal, claims should be raised
earlier rather than later, and considered resolution by
state courts is far preferable to a last minute dash to
federal habeas corpus.”’ Bunch’s claim of violation of his
right to remain silent is not cognizable in this Court be-
46a
cause it was not raised at trial or on appeal. Murray,
477 U.S. 478; Wainwright, 433 U.S. 72.
I.B. Bunch contends that his statements should have
been suppressed because they were made involuntarily.
In his appellate brief, Bunch states that if the right to
counsel had not been violated, “there would be no doubt
as to voluntariness.” Brief for Appellant at 16. Thus,
Bunch challenged the voluntariness of his confession only
as it related to the lack of counsel. For the reasons stated
in the above discussion of the right to remain silent, this
issue is barred under the rules of Whitley, 802 F.2d 1487,
Murray, 477 U.S. 478, and Wainwright, 483 U.S. 72.
I.C. Bunch alleges that his conviction was based upon
insufficient evidence of a murder during the commission
of a robbery. Specifically, Bunch contends that the evi-
dence was insufficient to prove beyond a reasonable doubt
that the intent to steal preceded the murder. Bunch
argues that because Ms. Thomas was unconscious and
probably dead when he decided to steal her property, the
evidence supports charges of murder and larcency rather
than murder and robbery. The Virginia Supreme Court
considered and rejected this challenge on direct appeal.
Bunch, 225 Va. at 439-40, 304 S.E.2d at 280-81. The
holding that as a matter of Virginia law robbery can
occur after a victim has died is not appropriate material
for federal habeas corpus review because it involves no
federal constitutional issue. See Hailey v. Dorsey, 580
F.2d 112, 115 (4th Cir. 1978), cert. denied, 440 U.S. 987
(1979).
On federal habeas corpus review, the evidence support-
ing a state court conviction is sufficient when, reviewed
“in the light most favorable to the prosecution, any ra-
tional trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in origi-
nal). There was abundant evidence justifying the Vir-
ginia Supreme Court’s finding that the intent to steal
47a
preceded the murder of Ms. Thomas. Bunch told Cahill
that he killed Ms. Thomas “because she was a slut and
she reminded him too much of his wife and he wanted
her money.” Bunch, 225 Va. at 440, 304 S.E.2d at 280.
Bunch testified at trial that he removed the victim’s rings
after he shot her and before he hanged her. Medical evi-
dence indicated that Ms. Thomas may have remained
alive when the robbery occurred. Jd. Clearly, a rational
trier of fact might have found the essential elements
beyond a reasonable doubt. Thus, sufficient evidence ex-
ists to infer that Bunch formed the intent to steal before
he committed the murder.
I.D. Bunch argues that the trial court erred when it
failed to exclude two potential jurors for cause. Two
veniremen, Butler and Hines, answered “yes” to the ques-
tion, “Do you feel that regardless of the facts and cir-
cumstances in every case of murder that the death pen-
alty should be imposed?” Both veniremen, however,
changed their answers upon immediate re-questioning.
Butler stated that she could impose a sentence of less
than death and was not irrevecably committed to voting
for the death penalty; Hines indicated that he misunder-
stood the phrasing of the question and that he would not
impose death penalty in every case. Bunch’s counsel re-
moved Butler with a peremptory strike, but Hines served
on the jury. Bunch argues that both should have been
excluded for cause based upon their original answers.
This claim is not cognizable because objection was not
raised at trial or on appeal. Murray, 477 U.S. 478;
Wainwright, 433 U.S. 72. Bunch argues that this proce-
dural default should not prevent review in the case of a
fundamental miscarriage of justice. Wainwright, 433
U.S. at 91. Butler and Hines both indicated that they
were not irrevocably committed to imposing the death
penalty. Thus, it does not appear that there was a funda-
mental miscarriage of justice in not excluding them for
cause.
48a
I.E. Bunch argues that he was denied a fair trial be-
cause of Lynn Rider’s testimony for the Commonwealth
that two weeks before the murder, Bunch proposed that
the two of them rob a Pizza Hut. On direct appeal,
Bunch argued that the testimony was inadmissible be-
cause it was too remote in time from the events surround-
ing the murder. Bunch now challenges this testimony as
being prejudicial and introduced only to show his propen-
sity for crime. On direct appeal, Bunch “concede[d] that
evidence of other crimes is admissible to show the motive,
intent, and knowledge of an accused.” Bunch, 225 Va. at
437, 304 S.E.2d at 279. Clearly, Rider’s testimony is
relevant to Bunch’s intent to rob Thomas. Bunch now
attempts to question the issue on federal habeas corpus.
Because he failed to raise this claim at trial or on appeal,
his attempt is barred under Murray, 477 U.S. 478, and
Wainwright, 433 U.S. 72.
I.F. The trial court permitted the introduction into
evidence of two photographs of Thomas, both of which
Bunch now challenges. One showed Thomas as she was
found, hanging from the doorknob. The other was a black
and white facial photograph of Thomas on the autopsy
table. The first photograph was not challenged at trial
or appeal. Accordingly, consideration of that claim is
precluded under Murray, 477 U.S. 478, and Wainwright,
433 U.S. 72. Respondent argues that the autopsy table
photograph was necessary for identification because it
was the only photograph available giving a frontal view
of Thomas. Bunch contends that the photograph was in-
flammatory and prejudicial.
Appraisal of the probative and prejudicial value of
evidence is entrusted to the sound discretion of the trial
court and will not be disturbed absent extraordinary cir-
cumstances. United States v. MacDonald, 688 F.2d 224
(4th Cir. 1982), cert. denied, 459 U.S. 1103 (1983). The
Supreme Court of Virginia found no abuse of the trial
court’s discretion. Bunch, 225 Va. at 436-37, 304 S.E.2d
at 278. The finding that the photograph was admissible
49a
for identification was soundly within the trial court’s dis-
cretion, and there are no extraordinary circumstances
which justify disturbing that finding.
I.G. During trial, Bunch requested that the court pro-
vide him with funds to hire a pathologist to aid in the
cross-examination of the Commonwealth’s pathologist.
The court refused the request. Bunch contends that this
refusal violated his Sixth Amendment right to cross-
examine witnesses and his Fourteenth Amendment rights
to due process and equal protection. This claim is not
technically exhausted because it was not presented to the
Virginia Supreme Court on direct appeal and it was not
raised during any phase of the state habeas corpus proc-
ess. The Court finds that any further attempts at ex-
haustion would be futile. See Slayton v. Parrigan, 215
Va. 27, 205 S.E.2d 680 (1974), cert. denied, 419 U.S.
1108 (1975) (state habeas review is barred by failure
to raise issue at trial and direct appeal). This claim is
barred from federal collateral review by Murray, 477
U.S. 478, and Wainwright, 433 U.S. 72.
I.H. Bunch presents seven claims of ineffective assist-
ance of counsel during the guilt phase of his trial. It
appears that several of these claims may not have been
exhausted in the state proceedings; however, the Court
finds that at this time any other attempts at exhaustion
would be futile. See Greenfield v. Robinson, 413 F. Supp.
1113, 1115-16 (W.D. Va. 1976); see also, 28 U.S.C.
2254(b) ; Va. Code Ann. § 8.01-654(B) (2) (1984).
Bunch failed to present allegations I.H.vi and I.H.vii
(contained in paragraphs 56 and 57 of his habeas corpus
petition) to the state trial court. The facts underlying
these claims were known to Bunch at the time he filed
his state petition. Because these claims were known but
not raised, they would be unavailable to Bunch in a sec-
ond state habeas proceeding. Va. Code Ann. § 8.01-654
(B) (2). Bunch’s failure to present these claims properly
in state court bars their consideration in this federal pro-
50a
ceeding. Murray, 477 U.S. 478; Wainwright, 433 U.S.
72.
Bunch presented allegations I.H.i, I.H.ii, 1.H.iii, I.H.iv
and I.H.v (located in paragraphs 51 through 55 of the
petition for habeas corpus) to the state habeas court.
They were not, however, raised during the habeas appeal
to the Virginia Supreme Court. Accordingly, these alle-
gations are procedurally barred under the rule of Whitley
v. Bair, 802 F.2d 1487.
I.I. Bunch claims that his constitutional rights were
violated by the denial of a fundamentally fair trial at
the guilt phase of the proceedings. In paragraph 59 of
his petition, Bunch alleges several instances of the trial
court’s failure to insure the fairness of the process. Alle-
gation (b), that the court improperly restricted voire dire
by defense counsel, was not raised on direct appeal and
is accordingly barred from review in federal habeas
corpus proceedings. Murray, 477 U.S. 478; Wainwright,
433 U.S. 72.
Claim (a) asserts that the trial court erred by failing
to suppress all of Bunch’s statements to police investiga-
tors which were obtained in violation of Miranda v.
Arizona, 384 U.S. 486 (1966). This Court has previously
reviewed the Virginia Supreme Court’s finding that it
could “conceive of no clearer case of a ‘knowing and in-
telligent relinquishment or abandonment’ of [Miranda]
rights.” Bunch, 225 Va. at 434; 304 S.E.2d at 277 (see
I.A., supra). The Court finds that the Virginia Supreme
Court’s holding was clearly supported by the law and the
record, and thus finds that the claim requires no further
response.
Allegations (c) and (d) charge that the trial court
erred by qualifying jurors Butler and Hines after they
indicated that they would always impose the death pen-
alty: These claims are discussed in I.D., supra, and are
held to be meritless.
5la
Allegation (e) states that the trial court erred by ad-
mitting into evidence an inflammatory photograph. Dis-
cussion of this claim appears in I.F., supra; the Court
finds no merit in this allegation.
Claim (f) asserts that the trial court erred in admit-
ting testimony which related to Bunch’s character and
was not relevant to the issue of his intent to rob the
victim. A discussion of this claim occurs at I.E., supra;
this allegation is also without merit.
In allegation (g), Bunch charges that the trial court
erred by allowing the defendant to be cross-examined in
a manner which was clearly improper and prejudicial.
The scope of cross-examination is ordinarily a question of
state law and is therefore not cognizable in federal
habeas corpus proceedings. See, e.g., Moore v. Illinois,
408 U.S. 786 (1972); Grundler v. North Carolina, 283
F.2d 798 (4th Cir. 1960). The nature of the cross-
examination at issue does not compel an exception to this
rule. The Supreme Court of Virginia found that Bunch
had “opened the door” concerning the testimony in ques-
tion and held that the trial court did not abuse its discre-
tion. Bunch, 225 Va. at 438, 304 S.E.2d at 279-80. This
Court will not disturb that holding.
Finally, in claim (h), Bunch alleges that the trial
court erred in failing to grant all of his requests for
statements made by witnesses. This claim is also merit-
less. Only material containing exculpatory evidence is
constitutionally required to be provided to a defendant.
Absent such material, the defendant has no constitutional
right to the names of witnesses or to their statements.
Weatherford v. Bursey, 429 U.S. 545 (1977).
The Court now turns to Bunch’s allegations concerning
the sentencing phase of his trial.
II.A. Bunch claims that his counsel’s assistance was
ineffective during the sentencing phase of his trial. Alle-
gation II.A.(i) charges that Bunch’s trial counsel were
52a
ineffective because they failed adequately to prepare and
present any evidence of Bunch’s character, backgvound
or emotional state other than testimony from his mother,
Mrs. Claghorne. According to Bunch, counsel failed to
identify, contact and evaluate other witnesses, including
Bunch’s sisters, his father, his brother-in-law, his high
school principal, his friends from Indiana and his ex-wife.
The state court held a plenary hearing on this issue.
Bunch’s case consisted of affidavits from friends and rel-
atives. Affidavits from Bunch’s sisters and brother-in-law
stated that he related well to his siblings during child-
hood anf was not then known to be violent, that his fa-
ther drank excessively and was abusive, and that Bunch
had been upset over the breakup of his marriage.
Bunch’s school principal and school friends indicated that
he had not been a major discipline problem and confirmed
his poor relationship with his father and his unhappiness
during the separation from his wife. Family friends’
affidavits repeated these themes and indicated that Bunch
had used marijuana during high school. Bunch’s uncle
discussed Bunch’s bad relationship with his father, his
mental state prior to the murder, and his use of alcohol
and drugs during high school. This information was
echoed in the affidavit supplied by Bunch’s paternal
grandmother. Finally, Bunch’s father stated that he had
not been close to his son, had had little contact with him,
and that Bunch was a relatively quiet child.
In addition to the above affiants, defense counsel had
access to Dr. Showalter, a psychiatrist who had evaluated
Bunch at the beginning of the case. Counsel interviewed
Dr. Showalter, reviewed his findings, and made a tactical
decision that evidence he would give would do more harm
than good to Bunch’s case. Accordingly, he was not called
as a witness. Counsei gave similar consideration to testi-
mony which could have been elicited from Bunch’s ex-
wife. i
Neither Bunch nor his parents indicated that Bunch’s
sisters would be helpful witnesses. Bunch’s counsel were
58a
at 691. Counsel’s actions were reasonable, informed and
strategic in light of the circumstances. Accordingly, this
claim is without merit.
Bunch’s remaining claims of ineffective assistance of
counsel are procedurally barred. Claims IJ.A.(ii) and
II.A.(iv) were not raised at all during the state habeas
corpus proceedings. Further state court action would be
fruitless, as these claims would be barred by Va. Code
Ann. § 8.01-654(B) (2). The claims are barred from
federal collateral review by Murray, 477 U.S. 478, and
Wainwright, 483 U.S. 72. Bunch raised allegation
II.A.(iii) during the state trial level habeas process
but did not include it in his appeal to the Virginia
Supreme Court. Review at the federal level is accordingly
barred under the holding of Whitley v. Blair, 802 F.2d
1487.
IL.B. In claim II.B, Bunch states that his constitu-
tional rights were violated by the admission of irrele-
vant character evidence during the sentencing phase. At
the sentencing phase, the Commonwealth utilized evi-
dence from the guilt phase concerning Bunch’s associa-
tion with prostitutes and his desire to kill various people.
The Court also admitted evidence that Bunch desired
to be a mercenary or a Mafia hit man. Bunch claims that
this evidence did not relate to Ms. Thomas’ murder and
was therefore irrelevant; he contends that its- admission
violated his constitutional rights. Counsel offered no ob-
jection to this evidence when it was admitted. Bunch
therefore defaulted under Virginia’s contemporaneous ob-
jection rule. See Russo v. Commonwealth, 207 Va. 251,
148 S.E.2d 820, 825 (1966), cert. denied, 386 U.S. 909
(1967). The issue is accordingly procedurally barred on
federal habeas corpus review. Murray, 477 U.S. 478;
Wainwright, 433 U.S. 72; see Satterfield v. Zahradnick,
572 F.2d 443 (4th Cir.), cert. denied, 486 U.S. 920
(1978) (claims of error defaulted under state contempo-
54a
raneous objection rule are not cognizable in federal habeas
corpus proceedings absent showing of cause and prejudice.
IIL.C. Allegation II.C. charges that Bunch’s constitu-
tional rights were violated when the jury heard evidence
of future dangerousness, a factor which was later ex-
cluded from their consideration. Again, no objection to
this evidence was voiced when it was admitted. Peti-
tioner therefore defaulted under the contemporaneous ob-
jection rule, and federal review is barred under Murray,
477 U.S. 478, and Wainwright, 433 U.S. 72.
II.D. Bunch claims in allegation II.D. that his con-
stitutional rights were violated by the inadequate and con-
fusing instructions given to the jury. First, Bunch argues
that the court’s instruction outlining the jury’s task in
the sentencing phase was illogical and confusing and that
it failed to channel the jury’s discretion. Bunch failed to
object to this instruction during trial or on appeal. Ac-
cordingly, his claim is now procedurally barred. Murray,
477 U.S. 478; Wainwright, 433 U.S. 72.
Bunch raises several claims concerning the failure to
instruct the jury on mitigating circumstances and the
failure to instruct the jury that it must find beyond a
reasonable doubt that death was an appropriate sentence
under the totality of the circumstances. Bunch failed to
preserve these claims on direct appeal. Because they
were not properly preserved, these claims are now pro-
cedurally barred. Murray, 477 U.S. 478; Wainwright,
433 U.S. 72.
Similarly barred are Bunch’s complaints about the jury
form and the trial court’s refusal to instruct the jury
concerning the possibility of parole. In so holding, the
Court notes that although these claims were not techni-
cally exhausted, further attempts at exhaustion would be
futile. See Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d
680.
The only claims concerning jury instructions which
Bunch preserved on direct appeal were those regarding
55a
the trial court’s denial of his proposed instructions A, B
and C. These instructions would have reminded the jury
that proof of an intentional killing alone could not estab-
lish the aggravating circumstances required by Virginia’s
death penalty statute. The proposed instructions also
sought to define the statutory predicates of torture, de-
pravity of mind, and aggravated battery for the jury.
Bunch argues that the instructions given failed to
guide the discretion of the jury in considering the ag-
gravating circumstances. Virginia law states that a
death sentence shall be imposed only when one or two
statutory aggravating circumstances, either the “danger-
ousness” or the “vileness” circumstance, is established
beyond a reasonable doubt. See Va. Code Ann. § 19.2-
264.4(c) (1983). The death sentence may be imposed
based on vileness only when the jury finds the defend-
ant’s act “was outrageously or wantonly vile, horrible
or inhuman, in that it involved torture, depravity of
mind or aggravated battery to the victim.” Jd. A find-
ing of torture, depravity of mind, o: xggravated battery
is a prequisite to a finding of vileness. Turner v. Com-
monwealth, 221 Va. 518, 526, 273 S.B.2d 36, 44-45
(1980), cert. denied, 451 U.S. 1011 (1981). The jury
need not set forth, however, the specific statutory predi-
cate upon which it relies. Clark v. Commonwealth, 220
Va. 201, 213, 257 S.E.2d 784, 791-92, cert. denied, 444
U.S. 1049 (1980).
Bunch first argues that the trial court erred when it
failed to instruct the jurors that they must unanimously
agree about which vileness predicate existed. He argues
that this failure opens the possibility that some jurors
may have found the crime involved depravity, while
others may have based their finding on aggravated bat-
tery. The Court finds this argument to be without merit.
Petitioner cites no authority for the proposition that Vir-
ginia jurors must receive a unanimity instruction re-
garding the statutory predicates to vileness, and, indeed,
there is none. When polled, the jury members indicated
56a
the finding of vileness was unanimous. The jurors’ af-
firmance “that their verdict was unanimous Moots any
claim of error in the instructions on unanimity.” Briley
v. Bass, 742 F.2d 155, 166 (4th Cir.), cert. denied, 469
U.S. 893 (1984). The remainder of Bunch’s arguments
concerning aggravating circumstances have been previ-
ously addressed to the Fourth Circuit, and they have
been rejected. See (James D.) Briley v. Bass, 750 F.2d
1238, 1242-46 (4th Cir.), cert denied, 470 U.S, 1088
(1984); (Linwood E.) Briley v. Bass, 742 F.2d at 1165-
66. Accordingly, his claims are without merit. The in-
structions given by the trial court in this case were
adequate to guide the discretion of the jury in consider-
ing aggravating circumstances.
II.E. Bunch asserts in allegation II.E. that his con-
stitutional rights were violated when he was sentenced
to death based on insufficient evidence of vileness. The
Supreme Court presented the standard to be applied to
claims of insufficient evidence raised during federal
habeas corpus review in Jackson v. Virginia, 443 U.S.
307. The reviewing court must sustain the state court’s
findings if, “after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime
beyond a reasonable doubt.” Jd. at 319 (emphasis in
original).
The present case contanis ample evidence of both ag-
gravated battery and depravity of mind, two of the stat-
utory predicates to a finding of vileness. In support of
the aggravated battery element, a Dr. Beyer offered evi-
dence that Ms. Thomas did not die immediately, but in-
stead survived for at least an hour after the shooting.
The evidence concerning the path of the bullet allowed
the reasonable inference that Bunch lied about shooting
her from behind, and that Ms. Thomas may have known
that Bunch was going to shoot her. Additional evidence
of battery appears in the evidence that Bunch used Ms.
Thomas’ scarf to hang her from a doorknob after shoot-
ing her.
57a
There is also abundant evidence supporting a finding
of depravity of mind. Evidence of premeditation was
presented, as was evidence that Bunch contemplated kill-
ing someone and chose Ms. Thomas. He told friends that
he desired to be a Mafia hit man because it would be
interesting. Bunch had a sexual orgasm when he killed
Ms. Thomas; as she was dying, Bunch turned on the
stereo, drank wine, and went through her belongings.
He testified that his feelings of euphoria continued while
he hanged Ms. Thomas from a doorknob. Bunch ad-
mitted the murder had thrilled him and he would have
killed some prostitutes if he had remained in the area.
Finally, Bunch never expressed any remorse whatsoever.
Based upon the above evidence, a rational trier of
fact could easily have found that Bunch’s actions dis-
played the vileness necessary to sustain a capital sentence.
His claim to the contrary is meritless.
II.F. Bunch claims that his constitutional rights were
violated when he was denied a fundamentally fair sen-
tencing trial. The issues identified in his petition are
without merit and have been addressed previously (see
I.I., supra). Bunch’s sentencing trial was fundamen-
tally fair and his claim will accordingly be denied as
meritless.
II.G. Bunch asserts that Virginia’s death penalty stat-
ute and sentencing procedures are facially unconstitu-
tional. ‘‘he Court addressed that issue directly in
Stamper v. Baskerville, 531 F. Supp. 1122 (E.D. Va.
1982). In Stamper, the petitioner was convicted of cap-
ital murder and sentenced to death by electrocution. On
federal habeas review petitioner Stamper argued that
Virginia’s death penalty statute, Va. Code Ann. § 19.2-
264.2, was unconstitutional on its face. The Court held
that the claim was “clearly without merit.” Jd. at 1128.
In support of its conclusion, the Court pointed out that
the Supreme Court had held the first aggravating factor
58a
of an identical statute to be constitutional in Jurek v.
Texas, 428 U.S. 262, 276 (1976). The second aggravat-
ing factor was approved in Gregg v. Georgia, 428 U.S.
158, 201 n.51 (1976). Stamper, 531 F. Supp. at 1128.
Bunch cites Godfrey v. Georgia, 446 U.S. 420 (1980), in
support of his argument that Virginia’s death penalty
statute is unconstitutionally broad and vague. In Godfrey,
the Supreme Court did not find the statute it had upheld
in Gregg to be constitutionally defective. What the Court
found unconstitutional was the vagueness of the judge’s
instructions concerning the application of the statutory
criteria. Jd. at 481-33. That case is clearly distinguish-
able from the present one. The trial court’s instructions
in this case regarding the statute avoid any constitu-
tional infirmities akin to those found in Godfrey. See
Stamper, 531 F. Supp. at 1129-31.
II.H. In allegation of II.H., Bunch claims that Vir-
ginia’s death penalty statute was unconstitutionally ap-
plied to the facts of this case. Bunch failed to raise this
claim at trial or on appeal and it is therefore procedur-
ally barred. Murray, 477 U.S. 478; Wainwright, 433
US. 72.
ILI, IJ. and ILK. Allegation II.I. charges that Vir-
ginia’s death penalty statute is applied in an arbitrary
and discriminatory manner; allegation II.J. claims that
the death penalty constitutes cruel and unusual punish-
ment; and allegation II.K. charges that the penalty of
death by electrocution is unnecessarily cruel and unusual.
These claims are forfeited on two levels. First, none of
the arguments were raised at trial or on appeal and they
are therefore procedurally barred under Murray, 477
U.S. 478, and Wainwright, 433 U.S. 72. Aditionally, al-
though the claims were presented in the state trial court
habeas proceeding, they were not raised on state habeas
appeal and are therefore defaulted under the rule of
Whitley v. Blair, 802 F.2d 1487.
59a
III. In allegation III, Bunch charges that his consti-
tutional rights were violated when the Virginia Supreme
Court failed to conduct a meaningful proportionality re-
view. This claim presents no federal question. Virginia
state law requires a comparative proportionality review.
Va, Code Ann. $17-110.1(C). As the Fourth Circuit
has stated, however, “such a comparative review is not
constitutionally mandated.” Roach v. Martin, 757 F.2d
1468, 1482 (4th Cir.), cert. denied, 474 U.S. 865 (1985)
(citing Pulley v. Harris, 465 U.S. 87 (1984)). Some
type of meaningful review is constitutionally required
as protection against arbitrary outcomes. Jd. The Vir-
ginia Supreme Court’s discussion of its review in this
case reveals a constitutionally adequate approach. The
court collected the records of cases pursuant to Va. Code
Ann. § 17-110.1(E) and determined that
the vileness of [Bunch’s] offense, as exemplified by
the aggravated battery he committed upon Thomas
and the depravity of mind with which he executed
the crime, at least equals any vileness we have en-
countered in other cases, including those cited by
Bunch.
Bunch, 225 Va. at 450, 304 S.E.2d at 286.
Bunch’s claim will be rejected, as this Court finds no
federal constitutional deficiency in the Virginia Supreme
Court’s decision.
IV. Petitioner’s final allegation is that his constitu-
tional rights were violated by the exclusion of relevant,
admissible evidence at the state habeas corpus proceed-
ing. As the Fourth Circuit stated in Bryant v. Maryland,
848 F.2d 492, 493 (4th Cir. 1988), “claims of error oc-
curring in a state post-conviction proceeding cannot serve
as a basis for federal habeas corpus relief.” Accordingly,
this claim is not cognizable.
Because it appears to the Court that Bunch is not
entitled to habeas corpus relief on the claims set forth in
60a
his petition, the petition must be dismissed. An appro-
priate Order shall issue.
/s/ James R. Spencer
- United States District Judge
Date: 16 Mar. 1990
6la
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
Civil Action No. 88-0645-R
TIMOTHY DALE BuNCH,
Petitioner,
V.
CHARLES E. THOMPSON, WARDEN,
Respondent.
ORDER
[Filed Jun. 4, 1990]
This matter is before the Court on petitioner’s motion
to alter or amend the judgment of this Court entered on
March 16, 1990. For reasons stated below, the motion
will be DENIED.
I
Petitioner Timothy Dale Bunch moves for amendment
of this Court’s opinion on three grounds. First, Bunch
contends that the rule announced in Edwards vy. Arizona,
451 U.S. 477 (1981), was never ambiguous and that the
language of Edwards clearly compels the suppression of
his statements made in Virginia. Second, Bunch argues
that even if courts were divided over the proper inter-
pretation of the Edwards rule, Virginia law had clearly
adopted the per se approach, and the Virginia Supreme
Court ignored this precedent when deciding Bunch’s case.
Finally, Bunch claims that this Court’s opinion flatly con-
tradicts the holding of United States v. Renda, 567 F.
Supp. 487 (E.D. Va. 1983), aff'd mem., 758 F.2d 649
(4th Cir. 1985).
62a
Petitioner has failed to convince this Court that its
analysis of the state of the Edwards rule as of June of
1983 was incorrect. The Edwards decision left the lower
courts substantially uncertain as to whether initiation of
communications by a suspect in custody who had invoked
the right to counsel was an essential predicate to a find-
ing that he later made a knowing, intelligent, and volun-
tary waiver of that right. The Supreme Court did not
definitely resolve this issue so that no lower court could
reasonably hold to the contrary, until Solem v. Stumes,
465 U.S. 6388 (1984), confirmed that the Edwards rule
was indeed a per se rule. Justice Powell’s concurring
opinion in Oregon v. Bradshaw, 462 U.S. 1039 (1983),
documents the confusion in the lower courts at the time
of Bunch’s trial and direct appeal. See id. at 1047 n.1
(comparing seven decisions holding that Edwards estab-
lished a per se rule with five contrary decisions)..
The per se approach was certainly within the logical
compass of the Edwards opinion; its applicability was
ultimately confirmed in Solem. But in June of 1983, the
existence of a per se rule was susceptible to debate among
reasonable minds. The conflicting lower court decisions
bear witness to this fact. The Supreme Court held in
Teague v. Lane, 109 S. Ct. 1060, 1070 (1989) (emphasis
in original), that ‘a case announces a new rule if the
result was not dictated by precedent existing at the time
the defendant’s conviction became final.” Because prior
tc the Solem decision it would not have been an illogical
_application of Edwards to decide that the case did not
establish a per se rule, Solem announced a “new rule.”
See Butler v. McKellar, 110 S. Ct. 1212, 1217-18 (1990).
A new rule is applied retroactively on collateral review
only if it fits within one of two recognized categories.
The first exists where the rule “places ‘certain kinds of
primary, private individual conduct beyond the power
of the criminal law-making authority to proscribe.’ ”
Teague, 109 S. Ct. at 1075 (quoting Mackey v. United
63a
States, 401 U.S. 667, 692 (1971) (separate opinion of
Harlan, J.)). That category is clearly inapplicable
where, as here, the proscribed conduct is capital murder.
See Butler, 110 S. Ct. at 1218. The second category con-
cerns new procedures “central to an accurate determina-
tion of innocence or guilt,” those “without which the like-
lihood of an accurate conviction is seriously diminished.”
Teague, 109 §. Ct. at 1076. This category is also in-
applicable. i'he Supreme Court has refused to apply the
Edwards rule retroactively because it does not enhance
the accuracy of criminal trials. Solem, 465 U.S. at 644-
45. For the same reason, the Supreme Court held that
the rule announced in Arizona v. Roberson, 486 U.S. 675
(1988), a case applying Edwards limitations on police
interrogation in the context of a separate criminal inves-
tigation, would not be given retroactive effect. Butler,
110 S. Ct. at 1218. The reasoning in these cases also
applies to Bunch’s situation. The absence of a per se
rule would not seriously diminish the likelihood of an
accurate conviction. The rule announced in Solem should
not be applied retroactively.
Petitioner’s argument that the decision in this case was
inconsistent with existing Virginia law is also uncon-
vincing. When Bunch’s case was decided, Virginia had
not adopted a per se rule under which a court first had
to determine that an accused initiated a post-counsel-
request colloquy, and only then could consider whether
there had been a voluntary waiver under the totality of
the circumstances.
Bunch claims that Virginia law recognized the
Edwards per se rule even before the Edwards decision.
He relies upon two cases, LaBonte v. Commonwealth, 217
Va. 677, 232 S.E.2d 738 (1977), and Pearson v. Com-
nwealth, 221 Va. 936, 275 S.E.2d 893 (1981). Both
LaBonte and Pearson concern the rule of Miranda v.
Arizona, 384 U.S. 436 (1966). In LaBonte, the Virginia
Supreme Court found a valid waiver of the right to coun-
64a
sel. It also gave examples of situations where valid
Waivers might exist, none of which were analogous to the
facts of Bunch’s case. See LaBonte, 217 Va. at 679, 232
S.E.2d at 739. Bunch argues that because this dictum
regarding waiver contains no reference to his own situa-
tion, a finding that he waived his right to counsel is er-
roneous. This argument is without merit. The Pearson
opinion held that the Commonwealth failed to meet its
burden of demonstrating a knowing and _ intelligent
waiver. Pearson, 221 Va. at 944, 275 S.E.2d at 898.
There is no indication that this finding required an ini-
tial determination of who initiated the conversation
among Pearson and the officers. Neither of the two cases
upon which Bunch relies adopts a per se rule. Both are
applications of Miranda, and as the Supreme Court rec-
ognized in Solem v. Stumes, 465 U.S. at 647 n.7,
“Miranda did not adopt a per se rule with regard to
waiver of the right to counsel.”
Bunch also relies on two Virginia cases decided after
Edwards: McFadden v. Commonwealth, 225 Va. 103, 300
S.E.2d 924 (1983), and Simmons v. Commonwealth, 225
Va. 111, 300 S.E.2d 918 (1983). Again, neither of these
cases directly addresses whether or not Edwards estab-
lished a per se rule. Both cases distinguish Edwards be-
cause the statements in issue were made to investigators
other than those who had heard the demand for counsel
and because t
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