Steven Van McHONE, Petitioner-Appellant, v. Marvin POLK, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee.
No. 04-14.
United States Court of Appeals, Fourth Circuit.
Argued: Sept. 28, 2004. Decided: Dec. 28, 2004.
392 F.3d 691
B.
For similar reasons, we decline Jones’ invitation to impose on the district courts a blanket policy of mandatory transfer of unauthorized successive petitions to this court for consideration as PFA motions. Congress has explicitly granted the district courts discretion over transfers under
CONCLUSION
For the aforementioned reasons, we hold that Jones is required to seek a certificate of appealability to appeal from the district court‘s order in this case. Because Jones has failed to make the requisite showing, we deny a certificate of appealability and dismiss the appeal.
DISMISSED.
Before WILKINS, Chief Judge, and LUTTIG and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge LUTTIG wrote the opinion, in which Judge WILKINS concurred. Judge GREGORY wrote a separate opinion concurring in part and dissenting in part.
LUTTIG, Circuit Judge.
Petitioner, Steven Van McHone, appeals from the district court‘s denial of his
I.
The North Carolina Supreme Court and the district court have thoroughly recounted the facts of Steven McHone‘s murders of his mother, Mildred Adams, and his stepfather, Wesley Adams, Sr., see State of North Carolina v. McHone, 334 N.C. 627, 435 S.E.2d 296, 298-301 (1993); J.A. 817-22. We set forth only the facts relevant to the issues on appeal, as established by the witnesses who testified at McHone‘s trial.
Wendy Adams testified that at 12:30 a.m. on June 3, 1990 she, her husband Wesley Adams, Jr., their son Alex, and Wesley, Jr.‘s parents Mildred Adams and Wesley Adams, Sr., returned to Mildred and Wesley, Sr.‘s home after a day of fishing. Steven McHone, an occupant of the house, was already there. While getting Alex ready for bed, Wendy overheard Wesley, Sr. and Mildred arguing with McHone about money. Thereafter, Mildred came to their room inquiring about a missing pistol. Subsequently, Wesley, Jr. and Wendy heard three gunshots. As Wesley, Jr. went out into the hall to investigate, Wendy heard someone coming up the basement stairs and then overheard Wesley, Sr. tell Wesley, Jr. to call 911.
Wesley, Jr., a Captain in the United States Air Force, testified that while he was talking with the 911 operator he briefly saw McHone wrestling with Wesley, Sr. before they disappeared from sight. About a minute later, Wesley, Sr. reappeared and told Wesley, Jr. that his mother was “face down out back.” As Wesley, Sr. approached Wesley, Jr., McHone appeared in the doorway and shot Wesley, Sr. in the chest with a shotgun. Wesley, Jr., after a lengthy scuffle, managed to disarm McHone. Thereafter, McHone cursed at Wesley, Jr. and threatened that if Wesley, Jr. did not kill him he would hunt Wesley, Jr. and his family down and “finish them off.” McHone, 435 S.E.2d at 299.
McHone did not dispute that he killed Mildred and Wesley, Sr. and assaulted Wesley, Jr. Rather, he presented a voluntary intoxication defense, claiming that his consumption of alcohol and LSD prevented him from forming the requisite mental state for first degree murder. During sentencing, McHone presented his impaired mental state in mitigation. McHone attempted to establish his impairment through the testimony of Jimmy McMillian and Tammy Bryant.
McMillian testified that over the course of June 2, 1990 he and McHone split one and one-half pints of Jack Daniels and that, in addition, McHone drank a pitcher of beer. McMillian testified that McHone‘s physical and mental faculties were appreciably impaired because he had a “slushy mouth.” Id. at 300.
Bryant, McHone‘s girlfriend, testified that she saw McHone on the evening of June 2 at a party at the home of Ronald Speaks. Bryant testified that, when McHone arrived at the party, his speech was slurred and that he was staggering. She further testified that McHone got into a fight while at the party and began “swinging a gun around in everyone‘s face, threatening everybody, moving real swiftly and quickly.” When Bryant asked McHone “what he was on,” McHone responded, “I have taken a couple of hits of acid.” Id.
McHone also presеnted expert testimony from Dr. James Groce and Dr. John Frank Warren, III. Both testified that McHone had a serious substance abuse problem. Id. at 301.
The jury convicted McHone of two counts of first degree murder, one each for killing his mother, Mildred, and his stepfather, Wesley, Sr. The jury also convicted McHone of one count of assault with a deadly weapon with intent to kill, for his attack on his step-brother, Wesley, Jr. After finding one aggravating factor and eleven mitigating factors as to the murder of Mildred, id. at 579-81, and two aggravating factors and ten mitigating factors as to the murder of Wesley, Sr., id. at 582-85, the jury recommended, and the trial court imposed, the death penalty for each first degree murder. McHone, 435 S.E.2d at 298. McHone unsuccessfully sought direct and post-conviction review in the North Carolina courts, id.; J.A. 731-775; State of North Carolina v. McHone, 350 N.C. 825, 539 S.E.2d 642 (1999), and his federal habeas petition was denied on the merits by the district court. J.A. 873. Pursuant to the certificate of appealability issued by this court, the instant appeal followed.
II.
McHone claims that the state‘s failure to disclose evidence located in State Bureau of Investigation (SBI) files entitles him to relief under Brady v. Maryland. McHone‘s Brady claims did not receive extensive treatment in the Superior Court and in the North Carolina Supreme Court. J.A. 774; McHone, 539 S.E.2d at 642 (“This court having thoroughly considered the matters raised ... and having determined that none require further evidentiary hearing and that none merit any further grounds for relief, the motion is therefore denied.“). Nonetheless, the determination by those courts that McHone was not entitled to relief under Brady constitutes an adjudication on the merits of that claim. See Bacon v. Lee, 225 F.3d 470, 478 (4th Cir. 2000). Accordingly, under
In order for a petitioner to obtain relief under Brady, “(1) the evidence must be favorable to the accused; (2) it must have been suppressed by the government, either willfully or inadvertently; [and] (3) the suppression must have been material, i.e., it must have prejudiced the defense at trial.” Monroe v. Angelone, 323 F.3d 286, 299 (4th Cir. 2003); Kyles v. Whitley, 514 U.S. 419, 434 (1995) (exculpatory evidеnce is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.“) (emphasis added). Materiality is not considered item by item, rather it must be assessed collectively. Id. at 436.
The district court assumed that the government did not turn over the evidence in question, J.A. 835, and we assume the same.
A.
McHone identifies the statements of seven individuals—Wesley Adams, Jr., Wendy
As to the first statement, that of Wesley Adams, Jr., Officer L. Perry summarized Wesley, Jr.‘s statement to investigators immediately after the crime as follows:
Wes ... overheard Steve and his mother quarreling in the kitchen. Steve was obviously drunk and was complaining to his mother that he wanted his money which she was holding for him. J.A. 617;
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Steve continued to argue with his mother and step-father. Wesley, Sr. told Steve to go downstairs in the basement and sleep it off. Id.;
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Wes advised that he smelled a strong odor of alcohol on Steve on this occasion. He was not aware of what amount Steve may have drunk or if he had taken any drugs. Steve was not stuttering and appeared to know what he was doing the entire time. He was able to fight both him (Wes) and his father and was able to “put up a pretty good fight.” Steve was not remorseful at all after the shooting was over. Steve even told Wes ... that “You‘d better kill me or I‘ll come back and kill you, your wife, and child.” Id. at 619[.]
Wesley, Jr. testified at McHone‘s trial. He testified as follows:
Q. Did you notice any odor of alcohol about Steve that night? A. I didn‘t notice any. Q. During this argument did you know that he had been drinking? A. The only indication I had, the only mention of drinking at all during the argument was the fact that my father told him to go to bed and sleep it off. Id. at 290;
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Q. Do you have an opinion ... based on your experience [including substance abuse detection training in the Air Force] as to whether defendant was impaired ...? A. I neither heard, saw, or felt any type of impairment ... By impairment I meant that any dysfunction of his physical movements; any slow movement, jerking, stumbling, tripping; any impairment in his voice characteristics by slurring his speech or not being able to finish a sentence.
Id. at 281-282; see also id. at 250-252 (testifying that McHone was “aware” and “responsive” while arguing with his parents and that he did not have trouble walking to his room); id. at 271 (describing McHone‘s “acrobatic moves” during the scuffle); id. at 273-74 (testifying that McHone “put up a good fight“); id. at 279-280 (testifying that, during the 40 minutes that Wesley, Jr. fought and subdued McHone, McHone‘s speech was understandable, he easily handled the shotgun, and he was “extremely dexterous“); id. at 298-99 (testifying that Wesley, Jr.‘s scuffle with McHone was extended because McHone was “in full control of his faculties“).
In material respects, Wesley, Jr.‘s pretrial and trial statements are consistent, even if at first blush, as the district сourt said, Wesley, Jr.‘s “pretrial statements that petitioner was ‘obviously drunk’ and smelled of alcohol versus his trial testimony that petitioner did not appear impaired in any way and did not smell of alcohol ... appear inconsistent.” Id. at 827. Wesley, Jr.‘s pretrial statement was that McHone knew what he was doing throughout the commission of the murders—i.e., he was not impaired—and is thus fully consistent with his trial testimony to that effect. In
The district court noted apparent inconsistencies between Wesley, Jr.‘s trial testimony and his pretrial statements regarding his observations of the indicia of McHone‘s consumption of alcohol. Any inconsistency, however, is limited in scope and does not bear directly on the question of McHone‘s ability to form specific intent or the applicability of the impairment mitigator. As noted above, in his pretrial statement Wesley, Jr. described overhearing McHone‘s argument with his mother and concluded that McHone was “obviously drunk.” At trial, describing an argument between McHone and Wesley, Sr. and in response to the question “[d]uring this argument did you know that he [McHone] had been drinking?“, Wesley Jr. testified that “[t]he only indication I had, the only mention of drinking at all during the argument was the fact that my father told him to go to bed and sleep it off.” Id. at 290. Thus, Wesley, Jr.‘s testimony regarding the evidence of drinking during McHone‘s argument with his stepfather is unrelated to, and not inconsistent with, his pretrial observations regarding McHone‘s earlier argument with his mother which apparently was not the subject of his trial testimony. Moreover, consistent with his trial testimony, Wesley, Jr. told Officer Perry that “Wesley, Sr. told Steve to go ... sleep it off.” Id. at 617. Similarly, the only evidence Wesley Jr. described in his pretrial statement in support of his observation that McHone was obviously drunk during the argument with his mother was that she “told Steve to go downstairs and sleep it off.” Id. Accordingly, Wesley Jr.‘s pretrial statement and trial testimony are largely consistent, and certainly consistent in material respects, the only inconsistency limited to Wesley, Jr.‘s observation to Officer Perry that “he smelled a strong odor of alcohol on Steve” and his trial testimony to the contrary.1
At best, McHone might have used the inconsistency in Wesley, Jr.‘s statements as to the existence of a smell of alcohol to attempt to impeach Wesley, Jr. See United States v. Bagley, 473 U.S. 667, 676 (1985) (“Impeachment evidence ... as well as exculpatory evidence, falls within the Brady rule.“). But the impeachment value of this inconsistency is low because the defense had ample testimony regarding McHone‘s consumption of alcohol that it could have used to attempt to impeach Wesley, Jr. Numerous state witnesses, including Tammy Sawyers and police officers Inman and Miller, testified that McHone had consumed a substantial amount of alcohol. J.A. 828-829 (district court reaching the same conclusion). Indeed, Tammy Sawyers testified that McHone was “drunk” though understandable and able to walk, id. at 399, and that over the course of the day he consumed two cans of beer, “two pitchers of beer,” and “over two and a half pints of liquor.” Id. at 405. And, at sentencing, the jury found the mitigating factor that “[t]he defendant has a history of long-term substance abuse and on the night of the offense was under the influence of alcohol.” Id. at 579; 583 (emphasis added). Thus, the jury‘s failure to consider additional, cumulative evidence relating to the undisputed fact that McHone had consumed a vast quantity of alcohol does not “put the whole case in such a different light as to undermine our confidence in the verdict.” Kyles, 514 U.S. at 434; United States v. Ellis, 121 F.3d 908, 918 (4th Cir. 1997) (“[P]ost-Kyles we do not ignore other evidence presented at trial in determining confidence in the outcome. Instead, we evaluate the whole case, taking into account the effect that the suppressed evidence, had it been disclosed, would have had on the evidence considered at trial.“).2
Turning next to the allegedly inconsistent statements of Wendy Adams, Adams said the following in an interview with Detective Terry Miller:
Adams: [McHone said] ‘I can‘t go on living like this,’ that may have been part of the argument that was going on in the kitchen.... But I remember him saying that that night, ... but he didn‘t even sound, he did not sound incoherent, or anything else, he just sounded mad. J.A. 607;
Miller: You all mentiоned earlier about him being drunk or drugged or both,3 but Wendy mentioned also that he was
very coherent, that was my observation when I got there ... Adams [Wendy]: Well, a lot of people, well, personally, I don‘t know a lot of people that would cuss and scream like that if they weren‘t drunk ... I know a lot of people get real belligerent when they get drunk and always, when I had been around Steve before, he was real smooth when he was clean. Id. at 608.
Wendy Adams testified at McHone‘s trial as follows:
Q. Did he stagger, stumble, have any trouble negotiating around the tables or whatever was in the house? A. No ... Q. Did you notice anything about his speech, that is being mumbled, mush-mouthed, or slurred in any way? A. No. It was slightly louder than normal. Id. at 122-23;
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Q. Based on what Randy told Mr. and Mrs. Adams, did they talk with Steven in your presence about alcohol or about being drunk, coming home drunk? A. I didn‘t pick up on any of that. Id. at 159.
As even a cursory comparison of the pretrial and trial statements makes clear, Wendy Adams’ undisclosed statement cannot form the basis of a Brady violation because it is consistent with her trial testimony and is therefore not “favorable” to McHone. And, even if the undisclosed statement could somehow be used to impeach Wendy, it would not be material because at best it would be cumulative to the undisputed fact that McHone had consumed alcohol.
The SBI files also reveal that Wendy talked to Randy Adams, who had a telephone conversation with McHone on the evening of June 2, and that Randy told Wendy that McHone was intoxicated or impaired. Id. at 603. This evidence is not favorable to McHone. As the trial court held, Randy‘s conversation with Wendy is inadmissible hearsay, id. at 159, and Randy‘s statements about McHone‘s earlier impairment—based merely on a telephone call—do not bear in any way on Wendy‘s later observation of McHone. Because this undisclosed evidence is not inconsistent with Wendy‘s trial testimony, it is not “favorable” under Brady.
In addition, petitioner contends that Wendy‘s description at trial of the fight between Wesley, Sr. and McHone differs from her statement to police. At trial, Wendy testified that she heard a “scuffle” and a “struggle” and that “blows were exchanged.” Id. at 132-33. In her statement to police, Wendy said:
It sounded like he was dragging him up the basement steps, beating on him, I‘m not sure, and then he, I thought he ... like, drug him, my impression was that he was beating Steve and had drug him into their bedroom and hit him again maybe, and thought he had knocked him out, and then left the room, maybe, I don‘t know. Id. at 605.
This latter statement is not “favorable” because it is not inconsistent with Wendy‘s trial testimony, in which she described Wesley, Sr. beating McHone on several occasions during the course of the “struggle” and also described hearing “hitting and dragging” coming from the basement steps. Id. at 132-137. And, the jury heard testimony from Wesley, Jr. that Wesley Sr. was very strong and that at one point it looked as though he had subdued McHone. Id. at 262-63.
Randy Adams told police that McHonе called him at Mildred and Wesley, Sr.‘s house on the night of the murders and asked him if he (McHone) could bring a girl home with him. Randy told him no and McHone, according to Adams, “got real upset with him over this and told [him] that he would kill him.” Id. at 622. Additionally, Randy told police that Mildred informed him that, based on her ob-
McHone would not have benefitted from Randy‘s testimony and thus it does not support his Brady claim. As the district court observed, Randy‘s statement was not favorable because it “contains the fact that McHone threatened to kill Randy over a minor matter shortly before he committed two murders.” Id. at 840. Moreover, Randy‘s testimony about Mildred‘s revelations regarding McHone‘s condition would have added little to the cumulative evidence presented regarding McHone‘s intoxication. Lastly, as the district court concluded, the notation on the prosecutor‘s witness list is scribbled and ambiguous. It could relate to McHone‘s emotional state, his impairment, or his meanness. Id.
McHone next claims that Tammy Sawyers’ statement to investigators, in which she described her conversations with McHone on the night of the murder, is Brady material. But McHone participated in these conversations and, accordingly, this evidence cannot form the basis of a Brady claim. See Hoke v. Netherland, 92 F.3d 1350, 1355 (4th Cir. 1996) (“[W]here the exculpatory information is ... available to the defendant” or “lies in a source where a reasonable defendant would have looked, a defendant is not entitled to the benefit of the Brady doctrine.“).
Similarly, under Hoke, McHone‘s telephone call to his Alcoholics Anonymous sponsor, Mark Tuttle, approximately thirty minutes before the shootings, cannot form the basis of a Brady claim. Id. This evidence would not constitute Brady material in any event. In this conversation, McHone is described by the SBI as “sound[ing] upset and [as] crying” and as “not seem[ing] to be making much sense,” J.A. 611. But during the conversation McHone also said that he thought “someone was going to die that night.” Id. We agree with the district court that the unfavorable portion of the SBI‘s report of this telephone conversation would have outweighed any exculpatory value because it “shows clearly that, just prior to the murders, petitioner was contemplating killing someone and sought help because he was aware it was wrong[, and that] [w]hen he did not receive the help he sought, he simply acted on the thoughts.” Id. at 838. This “would have been fatal to his claim that he was so impaired that he could not form an intent to kill.” Id.
Nor does Deputy Inman‘s statement to the SBI support McHone‘s Brady claim. Inman told the SBI that McHone had a “strong odor of alcohol” and that he did not appear to be “steady on his feet.” Id. at 602. At trial, Inman testified that McHone walked well enough, talked well enough, and was aware enough for him to form the overall opinion that he was not impaired. Id. at 179-180. Inman‘s trial testimony that McHone “walked well enough” is not inconsistent with the portion of the SBI report referenced by petitioner, in which Inman noted that McHone smelled of alcohol and appeared unsteady. The portion of the SBI report not referenced by petitioner, in which Inman reported that McHone‘s speech was not slurred and that he appeared to “know what was going on around him,” id. at 602, confirms that the two statements are indeed consistent and that they cannot form the basis of a Brady claim.
Last, McHone identifies as Brady material the statement of William Kent Hall, a medical first responder to the scene
B.
Petitioner contends that the cumulative effect of the non-disclosed evidence would have “further undermined an already marginal first degree murder conviction,” Petitioner‘s Br. at 28, because the trial was closely contested both as to premeditation and as to whether McHone‘s intoxication prevented him from forming specific intent to kill. Id. Petitioner also contends that the non-disclosed evidence would have been cumulatively material at sentencing because it might have caused the jury to find the mitigating circumstance under
Petitioner may benefit from the “cumulativeness” of evidence that is “favorable” under Brady. Here, however, only Wesley Jr.‘s statement is even arguably favorable and, as discussed above, not even it is material. Moreover, as the district court concluded, even if all of the undisclosed evidence were favorable, it would not un-
Petitioner contends that the undisclosed evidence is cumulatively material because, after reviewing this evidence, Dr. Groce, a sentencing-phase defense witness who admitted on cross examination that McHone “would have been able to form specific intent to commit the alleged crimes” (notably a guilt phase question), id. at 494-94, stated in a post-conviction affidavit—on the basis of the undisclosed evidence—that “I no longer have the opinion that Mr. McHone could form the specific intent to kill.” Id. at 688. Dr. Groce did not aver in his post-conviction affidavit that he held the opinion that McHone could not have formed the specific intent to kill; he said only that he no longer had
In sum, the North Carolina Supreme Court‘s conclusion that McHone did not present a tenable Brady claim was not an “objectively unreasonable” application of federal law. Bell, 236 F.3d at 158.
III.
In order to establish a claim for ineffective assistance of counsel, McHone must show, first, that his trial counsel‘s performance was deficient and, second, that the deficiency prejudiced McHone‘s defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Under Strickland‘s “performance” prong, McHone must demonstrate that trial counsel‘s performance fell below an objective standard of reasonableness as determined by comparison to “prevailing professional norms.” Id. at 688. In addition, McHone must also show under Strickland‘s prejudice prong that “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. If McHone fails to demonstrate sufficient prejudice from certain acts or omissions, we need not decide whether counsel‘s performance in those respects was, in fact, deficient under Strickland. See id.
McHone claims that his trial counsel provided ineffective assistance because they (1) failed to investigate and present evidence of lack of specific intent, (2) failed to object to a portion of the prosecutor‘s closing argument that incorrectly stated the law of voluntary intoxication, and (3) failed to uncover certain mitigating evidence from McHone‘s childhood. The Surry County Superior Court, the North Carolina Supreme Court, and the district court rejected these claims on the merits.5 For the reasons that follow, we see no reason to disturb these judgments.
A.
McHone‘s first claim arises from the fact that counsel did not interview McHone‘s alcoholics anonymous sponsor, Mark Tuttle; two jailors who observed McHone after the murders, Leroy Snow and
Defense counsels’ failure to interview and present Mark Tuttle as a witness cannot form the basis of a Strickland claim because it was not prejudicial. Indeed, as discussed above, Tuttle would have testified that McHone contemplated murder just hours before he killed his parents. J.A. 611, 838. Any benefit McHone might have received from Tuttle‘s general statements that McHone was “upset” and did not seem to be “making much sense“—statements which are notably cumulative with the testimony of McMillian and Bryant if not the testimony of the state‘s witnesses—would surely have been offset by McHone‘s prediction to Tuttle that “somebody was gonna die that night.” Id. at 611. That Tuttle‘s testimony would have added little to help McHone is confirmed by the jury‘s decision to recommend the death penalty notwithstanding its conclusion that McHone committed the murders “while he was under the influence of mental or emotional disturbance,” i.e. upset. Id. at 579; 583.
Similarly, counsels’ failure to interview Leroy Snow and Charles Collins, two of McHone‘s jailors, cannot form the basis of a Strickland claim. Snow, who observed McHone after he arrived at the Surry County jail, said that “it appeared that Steven had taken some kind of drugs or had consumed a lot of alcohol,” id. at 681, while Collins, who was on duty with Snow, said that “Steven ... appeared ... high on dope or a combination of drugs and alcohol,” that he “smelled very strongly of alcohol,” and that “his speech was slurred.” Id. at 689. As we concluded with respect to his Brady claim,
McHone alleges further ineffectiveness in his counsels’ failure to interview George Delp, a Surry County substance abuse and mental health counselor who counseled McHone from November 1989 until March 1990. In his post-conviction affidavit, Delp stated that McHone had reported a history of severe substance abuse, that he stayed sober while in counseling (which he evidently discontinued several months before the murders), that he never expressed animosity toward his parents, that he expressed remorse for his crimes, and that he would not “have committed this crime had he not been severely impaired by intoxication.” J.A. 679-680. The district court concluded that McHone was not prejudiced by the absence of such testimony, reasoning as follows:
Delp‘s testimony regarding petitioner‘s participation in the counseling program is barely relevant. Delp shows that while petitioner could stay sober and do well for extended period of time, he did not do so prior to the murders. This is hardly a redeeming character trait. Delp‘s opinion that petitioner would not have committed the murders unless intoxicated is simply his unsubstantiated
personal opinion and would not be admissible.... Delp‘s testimony concerning petitioner‘s self-serving statements in prison following the murder are of little help to petitioner. Similar testimony was presented, along with evidence that the statements were fabricated by petitioner to escape the death penalty. The jury did not believe petitioner‘s other self-serving statements and one more would not have altered the situation. Id. at 863-64.
We agree with this reasoning and the district court‘s conclusion that McHone was not prejudiced by Delp‘s absence, particularly where, as here, the jury concluded that McHone had “previously sought help for his substance abuse problems,” id. at 580, 584, but nonetheless recommended the death penalty.
McHone was not prejudiced by counsel‘s failure to present the testimony of his probation officer Larry Cheney. Cheney could have testified that McHone called on the day of the murders and successfully sought permission to stay out late, that McHone was a timid, humble individual, that he struggled with substance abuse, and that he did not complain about the terms of his probation. Id. at 571, 673. At trial, the defense succeeded in excluding evidence of McHone‘s probationary status, id. at 245-49, and therefore Cheney‘s testimony, and thus any prejudice, would relate only to sentencing. But the jury found that McHone had a history of substance abuse and was drinking the night of the murders, id. at 579, 583, and McHone‘s purported humility and his unsuccessful attempt to obey the conditions of his probation did not relate to any of the mitigating factors considered and rejectеd by the jury.
Nor can McHone find relief in counsels’ failure to garner expert testimony regarding his blood alcohol content. Dr. Warren, who testified for the defense, said, post-conviction, that if counsel had provided him with the testimony of Sawyers, Bryant, and McMillian, he could have calculated McHone‘s blood alcohol content and testified that McHone was “incapable of forming specific intent to kill.” Id. at 677. But Dr. Warren did not need counsel‘s help to calculate McHone‘s blood alcohol content; rather, as explained by the district court, Dr. Warren could have used his interviews with McHone or Dr. Groce‘s report, “where McHone set out the amounts of alcohol he consumed,” to perform this calculation. Id. at 848-49. Accordingly, any ineffectiveness is attributable to McHone‘s expert rather than to his counsel and therefore cannot support a Strickland claim. See Thomas v. Taylor, 170 F.3d 466 (4th Cir. 1999) (rejecting petitioner‘s efforts to recast a claim concerning the effectiveness of an expert as a Strickland claim). And, even if counsel were to blame, petitioner was not prejudiced, because the jury unanimously rejected Warren‘s sentencing testimony that McHone was entitled to the statutory mitigator,
B.
McHone alleges further ineffectiveness in his counsels’ failure to object to a portion of the state‘s closing argument pertaining to the burden of proof for McHone‘s voluntary intoxication defense.
One of the things I want to talk with you about is the defense of intoxication ... [i]f we‘re going to apply that defense to the facts in this case then we really need to, ought to know what it‘s about ... [i]n State v. Bunn, [the] North Carolina Supreme Court, in the spring term of 1973, said ‘the defense to charge of murder is that he was so drunk that he was utterly incapable of forming a deliberate and premeditated purpose to kill’ ... This is what the court said about that. J.A. 442.
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Voluntary drunkenness is not a legal excuse[.] ... Evidence must show at the time of the killing the defendant‘s mind and reason were so completely intoxicated and overthrown as to render him ... utterly incapable of forming a deliberate and premeditated purpose to kill ... This is what the North Carolina Supreme Court has said about that defense. Id. at 447-48.
This statement is not correct. Rather than reciting the proper considerations for the jury vis-a-vis McHone‘s voluntary intoxication defense, the prosecutor recited the standard the court must apply in order to determine whether the defendant is entitled to an instruction on voluntary intoxication. State v. Mash, 323 N.C. 339, 372 S.E.2d 532 (1988). And, indeed, in Mash, where the trial court included very similar language in its jury instructions, the North Carolina Supreme Court awarded the defendant a new trial because it concluded that “to find for the defendant on the intoxication issue, the jury does not have to conclude that his intoxication rendered him utterly incapable of forming the necessary intent; it need only conclude that because of his intoxi-
We do not reach the question of whether counsel‘s failure to object to the prosecutor‘s statements was objectively unreasonable because we are satisfied that McHone cannot establish prejudice from the prosecutor‘s closing statement. Unlike in Mash, here, the trial court properly instructed the jury on the defense of voluntary intoxication. Notwithstanding the prosecutor‘s incorrect statement of the law in his closing statement, the trial court correctly instructed the jury as follows:
Now, members of the jury, as to the defense of voluntary intoxication, I instruct you that if you find there is evidence which tends to show that the defendant was intoxicated from alcohol or other impairing substance at the time of the acts alleged in this case then you should consider the following instructions: Generally voluntary intoxication from such a substance is not a legal excuse for crime. However, if you find that the defendant was intoxicated from alcohol or other impairing substance you should consider whether this condition affected his ability to formulate the specific intent which is required for a conviction of first degree murder; or for that matter, assault with a deadly weapon with intent to kill. In order for you to find the defendant guilty of first degree murder by premeditation and deliberation you must find beyond a reasonable doubt that he killed with malice, and in the execution of aсtual specific intent to kill formed after premeditation
and deliberation. If as a result of intoxication from alcohol or other impairing substance the defendant did not have a specific intent to kill the deceased in either of the three cases, or if you find he did not have the specific intent to kill in either of the two murder cases formed after premeditation and deliberation he would not be guilty of such offense. Supp. J.A. 66-67 (emphasis added).
Further, the court instructed that it was the jury‘s “duty to apply to the facts the law which I am about to give you,” id. at 43, and that “I would expect only that you apply the law which I have given you to the facts as you find them.” Id. at 68.
It is fundamental in the law that “[a] jury is presumed ... to follow its instruction,” Weeks v. Angelone, 528 U.S. 225, 234 (2000). Here, not only did the trial court instruct the jury correctly as to the governing law; it instructed the jury both clearly and in detail. Indeed, not only did the district court correctly, clearly and in detail instruct the jury as to the governing law; additionally, the court instructed the jury that it was only to apply the law as to which the court had instructed, eliminating any doubt (if there were any) that statements by the prosecutor or defense as to the law were not to be considered. Moreover, the trial court‘s clear, particularized, correct instruction followed almost immediately upon the prosecutor‘s closing statement, only a brief recess separating the argument from the instruction.
In light of the controlling presumption that the Supreme Court has directed us to indulge, and the context of the prosecutor‘s statement and the curative instruction described, we cannot possibly conclude that the North Carolina Supreme Court unreasonably applied federal law in concluding that McHone was not prejudiced by counsel‘s failure to object to the prosecution‘s misstatement. See J.A. 753-56 (“Defendant has failed to show the existence of either the prejudice or performance component of Strickland.“). In
C.
Relying on the affidavit of a social worker and Wiggins v. Smith, 539 U.S. 510 (2003), McHone claims that his counsel was ineffective for failing to investigate and present mitigating evidence of his chaotic and violent childhood. But unlike in Wiggins, where counsel made “a tactical judgment not to present mitigating evidence at sentencing,” id. at 2535, and the Court determined that “the investigation supporting counsel‘s decision not to introduce mitigating evidence” was insufficient, id. at 2536, McHone‘s counsel presented substantial evidence of the hardships McHone endured as a child and the jury found seven mitigators for each murder charge on the basis of this testimony. J.A. 579-80, 584-85.
McHone‘s father, Bobby, testified that early in McHone‘s life, while Bobby was married to Mildred, Bobby was continually “drunk,” “did everything wrong,” and “gave Mildred no peace whatsoever,” and that McHone witnessed his parents arguing. Id. at 532-533. Bobby further testified that this state of affairs continued until, after an extremely violent fight with Mildred, he hospitalized himself and subsequently managed to quit drinking for five years, until the time of his separation from Mildred. McHone was ten years old at the time. Id. at 532-534. After Mildred and Bobby separated, they agreed that she would keep McHone one year and Bobby the next (and so forth), and Bobby testified that, during the time he kept McHone, he provided no supervision, he was drinking and gambling, he took McHone to bars with him where they sometimes spent the night, that McHone started drinking when he was 13, started doing drugs when he was 15, and that McHone‘s alcohol and substance abuse worsened over time. Id. at 538-541.
Based on this testimony, the jury found the following mitigating factors for both murders: “the defendant had a history of long-term substance abuse,” “the defendant enjoyed a normal childhood until the time his parents separated, and аfter that, he began using alcohol and drugs,” “[d]efendant‘s father abused alcohol and gambled excessively and defendant, when he was a child, often spent time with his father in bars while his father drank and gambled,” “[d]efendant often witnessed arguments between his father and mother,” “[d]efendant, while he resided with his father, was often left alone at night, without supervision, while his father worked third shift,” and “[d]efendant, while he resided with his father, often had to reside in undesirable places.” Id. at 579-80, 583-84.
Despite this comprehensive presentation of mitigating evidence supported by direct witness testimony and the thorough investigative efforts of Dr. Warren, McHone claims his counsel was ineffective because their investigation failed to uncover information contained in the post-conviction affidavit of Dr. Glenn E. Rohrer. J.A. 576. McHone claims that counsel would have uncovered the information in this affidavit if they had retained a mitigation expert or conducted a more thorough investigation.
This claim is meritless. Dr. Rohrer‘s affidavit is almost entirely cumulative with the testimony that McHone‘s counsel presented at trial. See, e.g., J.A. 576 (Rohrer averring that “Bobby McHone was drunk and abusive,” that “family problems and dysfunction permeated Steven‘s social history,” that “he began medicating with drugs and alcohol when he was approximately 12 years old,” that “Bobby McHone exposed Steve to ... heavy drinking, marijuana use and gambling,” that “Steven was
And, the portions of Dr. Rohrer‘s affidavit that purportedly differ from the trial testimony, namely that McHone witnessed Bobby “regularly inflict brutal beatings on Mr. McHone‘s mother and his sister,” id. at 575, and that Bobby “made repeated sexual advances towards Steven‘s half-sister,” id. at 576, are not sufficient to establish either that counsels’ decision not to investigate further was objectively unreasonable or that McHone was prejudiced by that decision. Indeed, Bobby testified that he had violent fights with Mildred and that McHone, though young, witnessed these arguments. Moreover, Dr. Rohrer‘s affidavit does not conflict with the time-line established during Bobby‘s testimony, namely that the bulk of the drinking and violence during their marriage occurred before McHone was five years old and that, after McHone was five, Bobby stopped drinking and gambling. Finally, Dr. Rohrer has provided no indication that McHone was aware of his father‘s sexual advances toward his half sister. Accordingly, we hold that where, as here, counsel has investigated and presented mitigating evidence pertaining to petitioner‘s childhood and that the jury has credited such evidence and nonetheless imposed the death penalty, that counsel‘s decision not to investigate further, particularly where such investigation would bear little—if any—fruit, cannot support a Strickland claim. The state court‘s identical conclusion, J.A. 752-52, was therefore not objectively unreasonable.
IV.
Judge Gregory, in dissent, concludes that McHone is entitled to relief under Strickland because of counsel‘s failure to investigate and present evidence of specific intent, because of counsel‘s failure to object to the prosecutor‘s improper closing argu-
Judge Gregory maintains that counsel erred by not procuring testimony regarding McHone‘s blood alcohol content on the night of the murder. But he concedes, as he must, that circuit precedent dictates that McHone is not entitled to relief for ineffectiveness attributable to his expert, even if it could be said that McHone‘s expert was ineffective, which he clearly was not. Post at 63. While Judge Gregory claims that this authority is inapplicable because “counsel failed to give [Dr. Warren] all the necessary information” to calculate petitioner‘s blood alcohol content, post at 62, such a conclusion ignores the district court‘s finding that “Dr. Warren testified” that he reviewed Dr. Groce‘s report where Dr. Groce “set out the amounts of alcohol [McHone] consumed.” J.A. 848. Indeed, the dissent makes no attempt whatsoever to reconcile Dr. Warren‘s trial testimony with his claim in his post-conviction affidavit that he “received no specific information regarding the
amount and types of alcohol ingested by McHone,” a claim that is belied by the contents of Dr. Groce‘s report. Such merely serves to highlight that the state court‘s conclusion that Dr. Warren‘s failure to testify to McHone‘s blood alcohol content was indeed an entirely reasonable application of Strickland.
In the same vein, Judge Gregory concludes that counsel performed unconstitutionally by failing to interview and present as witnesses Mark Tuttle and McHone‘s jailors, Leroy Snow and Charles Collins. Judge Gregory suggests that Tuttle could have offered “key testimony on McHone‘s state of mind,” post at 64, that “McHone was not threatening his parents that night,” post at 71, and could have testified as to McHone‘s “impairment.” Post at 70. But Tuttle could not have testified to McHone‘s impairment because he did not observe McHone on the night of the murders. Moreover, testimony that McHone was “upset and crying” is plainly cumulative with the testimony of virtually every witness that did observe McHone on the night of the murders and does not bear on whether McHone formed specific intent in any event. And any benefit McHone might have received from Tuttle‘s testimony that McHone was “upset” and “asked him to come over there and see him,” J.A. 611, would obviously have been offset by McHone‘s revelation to Tuttle that “somebody was gonna die that night” and Tuttle‘s observation that McHone had been “backsliding” from his efforts to reduce his drug and alcohol dependency—testimony that no counsel would want placed before the jury. Id. at 610-11.
Judge Gregory also suggests that if Collins and Snow had testified that their testimony would have been “in direct contradiction to the testimony of the state‘s law enforcement officers.” Post at 64. But such a conclusion mischaracterizes the possible content of the jailor‘s testimony; they
Similarly, Judge Gregory concludes that counsels’ failure to object to the prosecutors’ statements regarding McHone‘s voluntary intoxicatiоn defense warrants relief under Strickland because the jury might have been “confused on the correct standard.” Post at 74. But Judge Gregory concedes that “the judge did give a proper jury instruction,” id. at 73. Thus, in order to reach the conclusion that he does, Judge Gregory must disregard the Supreme Court‘s teaching that juries are presumed to follow such instructions, particularly where, as here, the trial court instructed the jury that “I would expect only that you apply the law which I have given you to the facts as you find them.” J.A. 68. In addition to his necessary disregard of Supreme Court precedent and the particular instructions given to McHone‘s jury, Judge Gregory‘s conclusion ignores the standard of review, set forth by Congress, that peti
Judge Gregory‘s conclusion that McHone‘s counsel was ineffective for failing to present additional mitigating evidence relating to McHone‘s childhood is similarly untenable. As noted above, unlike in Wiggins where counsel did not present any evidence of mitigation, here counsel submitted ample evidence of the hardships McHone endured during his childhood and the jury credited this evidence when it found the related mitigating factors. Judge Gregory‘s description of counsels’ actions and the purported prejudice therefrom simply fails to confront this fundamental point. Judge Gregory suggests that a mitigation investigation “would have revealed” that “McHone has a history of chronic violence from birth through the divorce of his parents,” that “McHone‘s childhood was marked by deprivation,” that “McHone‘s parents agreed to an unconventional custody arrangement,” and that “McHone self-medicated with drugs and alcohol from age 12.” Post at 67-68. But McHone‘s counsel presented this evidence to the jury. Bobby McHone testified that early in McHone‘s life that Bobby was continually drunk, “gave Mildred no peace whatsoever,” that McHone witnessed his parents arguing, and that Mildred and Bobby agreed to an unconventional custody arrangement. J.A. 532-34. Moreover, as described in detail above, both Dr. Warren and Bоbby McHone testified that McHone used drugs and alcohol from an early age and suffered various forms of deprivation.
Despite counsels’ introduction of this substantial mitigating evidence, Judge Gregory maintains that counsels’ mitigation investigation was inadequate because the jury might have been confused by the mitigating factor that McHone “enjoyed a normal childhood until the time his parents separated, and after that, he began using alcohol and drugs.” But the phrasing of one mitigating factor does not bear on the propriety of the scope of counsels’ mitigation investigation. And, while Judge Gregory suggests that this mitigating factor could have caused the jury to conclude that McHone‘s childhood difficulties did not begin until his parents’ divorce, he does not identify any evidence that rebuts Bobby McHone‘s testimony that from the time he quit drinking—when McHone was five years old—until the time he separated from Mildred—when McHone was ten years old—that there were “a few arguments” but that it “wasn‘t like it was when I was drinking.” J.A. 534.
V.
For the reasons stated, the judgment of the district court is affirmed.
AFFIRMED
GREGORY, Circuit Judge, concurring in part and dissenting in part.
The majority denies McHone habeas relief finding that the North Carolina Supreme Court‘s disposition of his Brady and Strickland claims was not contrary to, nor an unreasonable application of, clearly established federal law. I concur with the majority that McHone‘s Brady claim must fail. However, I write separately because I believe that while the withheld evidence
Respectfully, I must dissent from the majority‘s analysis and conclusion on McHone‘s Strickland claim. McHone‘s counsel rendered objectively unreasonable performance by failing to seek expert testimony on McHone‘s blood alcohol level, interview or present testimony from several witnesses that had either spoken with or observed McHone on the night of the murders, object to the State‘s improper closing argument, and investigate McHone‘s childhood for mitigation evidence adequately. These errors prejudiced both the guilt and sentencing phases, and the state court was objectively unreasonable in ruling otherwise.
I.
Because the majority fails to state the facts related to the night of the killings in detail, facts which are essential to analyzing McHone‘s claims, I fully recount them here. On June 3, 1990, Wesley, Sr. and Mildred returned to their home in Siloam, North Carolina around 12:30 a.m. with Wesley, Jr., McHone‘s half-brother; Wendy, Wesley, Jr.‘s wife; and Alex, Wesley, Jr. and Wendy‘s two-year old son. Wesley, Jr. and Wendy, both Captains in the United States Air Force, were on leave and visiting Wesley, Sr. and Mildred and the family had gone on a fishing trip. McHone, who lived with Wesley, Sr. and Mildred, and Randy Adams, McHone‘s half-brother, were there when the family arrived.1
Upon arriving, Wesley, Sr. drove Randy home, who lived just down the street. When he returned, McHone, Mildred, and Wesley, Sr. began arguing in the kitchen apparently about money.2 As the argument got louder, Wendy and Alex went to bed and Wesley, Jr. took a shower. The argument continued until after Wesley, Jr. got out of the shower but shortly thereafter he heard his father, Wesley, Sr. state, “We‘ll talk about it tomorrow,” at which time McHone went down to his bedroom, which was in the basement. J.A. 252. A few minutes later, Mildred came to the bedroom that Wesley, Jr. and Wendy were in and asked if they had moved a gun that was in the camper the family took on the earlier fishing trip. They told her that they had not and she said that the gun was missing.
A few minutes later, three shots were heard from the back yard. Upon hearing the shots, Wesley, Jr. ran into the hallway where he saw Wesley, Sr. coming up from the basement stairs, shouting for him to call 911. Wesley, Jr. went to the phone in the kitchen and called 911 while his father ran out to the backyard.
Shortly thereafter, Wesley, Sr. and McHone came through the back door into the kitchen wrestling with each other over a gun in McHone‘s hand. Wesley, Jr.
As McHone began to bring the shotgun back up, Wesley, Jr. went for it and began to struggle with McHone. They fought for several minutes, but Wesley, Jr. got the shotgun away from McHone, placed it on the floor beside them, and was then able to subdue McHone. Wesley, Jr. testified that McHone then began crying and said, “Oh, my God. What have I done?” but moments later reached for the shotgun on the floor. J.A. 269. They fought again and Wesley, Jr. took the shotgun and held it over McHone, who was laying on the floor. It took Wesley, Jr. approximately ten minutes to subdue McHone.
Wesley, Jr. testified at trial that McHone then began to goad Wesley, Jr. into killing him stating, “I killed him. Now I want you to kill me, because I don‘t want to spend the rest of my life in jail. Just shoot me. Just get it over with.” J.A. 272-73. McHone also began using profanity and stated that this was Wesley, Jr.‘s fault because he was Mildred‘s “golden boy” and that he did not have the guts to kill McHone. Id. at 138, 270. Wesley, Jr. testified that McHone said, “if I didn‘t kill him and he got out of jail he‘d hunt me down and hunt my family down and finish us off.” Id. at 270. Then Wendy, who had been in the bedroom with Alex since the initial shots, called out to see if Wesley, Jr. was alright and before Wesley, Jr. answered, McHone stated, “I killed your mama and your daddy. And I would have killed you and your damn baby too.” Id. at 272.
Medical personnel and officers from the Surry County Sheriff‘s Department arrived a little after 2:00 a.m. Wesley, Sr. was dead upon their arrival, and Mildred died later by a wound from a gunshot to the back of her head. McHone was arrested and made statements acknowledging his guilt. During this time, the phone, which Wesley, Jr. had dropped, was still on the line with 911. A 911 tape recorded the sequence of events from after Mildred was shot until the Sheriff‘s deputies arrived on the scene. The tape, however, is missing.3
At trial, McHone claimed that he was too intoxicated to form the necessary specific intent of premeditation and deliberation for first-degree murder. The testimony disclosed that McHone had spent the afternoon and evening of June 2 with Jim
At that time, McMillian started driving back to Mount Airy. Around 10:00 p.m., a state trooper pulled over their car and arrested McMillian for driving while under the influence of alcohol. J.A. 322, 381. The state trooper testified that he observed that McHone had been drinking and asked Sawyers to drive. Id. at 328. McMillian was taken to the Dobson, North Carolina police station, and, after following the state trooper back to the station, McHone and Sawyers left and drove to McHone‘s house. McHone went into the house and then came back out to the car with a gun and a couple of cassette tapes.6 He told Sawyers that the gun was to protect her in case McMillian got out of jail that night and tried to hurt her.
They then went to a party at Ronald Speaks‘s house in Mount Airy arriving around 12:00 a.m.7 J.A. 385. There, McHone encountered Tammy Long Bryant, who he had met at a Narcotics Anonymous mеeting and had been dating for a couple of weeks. They split approximately a fifth of liquor with another person. Bryant testified that McHone consumed more than 1/3 of the fifth but less than 1/2 of it. Id. at 333. During the party, McHone pointed his gun at a Johnny Swaim as a result of an argument over Bryant. Then, Sawyers, Bryant, and McHone went back to Sawyers‘s car and drove to a convenience store to purchase beer for people at the party.8 While in the
The testimony at trial regarding McHone‘s level of impairment, from alcohol and possible drug use, varied. In general, the witnesses for the State (with the exception of Wesley, Jr., who never acknowledged that McHone had been drinking) testified that while McHone had been drinking, he was not “drunk” or intoxicated to the point that his actions were impaired.10 Specifically, these witnesses testified as follows:
- Wendy Adams: Testified that when she first observed McHone at the house after they returned from the fishing trip, he walked normally (did not stagger or stumble) and made it up the steep basement steps. He did not slur his speech but was talking louder than normal. J.A. 122-23. Testified that she had undergone several hours of training in the Air Force to recognize whether an individual is impaired/under the influence. Id. at 151. Testified that Wesley, Sr. and Mildred did not talk to McHone in her presence about alcohol or him being drunk when they got home from the fishing trip. Id. at 159.
- William Kent Hall, First medical responder: Testified that when he was in the kitchen with Wesley, Sr.‘s body, McHone called out to “Give me a cigarette.” Id. at 164.
- Jimmy Inman, Deputy Sheriff, Surry County Sheriff‘s Department: Testified that he arrived shortly after 2:00 a.m., arrested McHone, and that McHone started “cussing” the Sheriff‘s department and stating “What have I done? Why did I do it?“. Id. at 169-171. Testified that McHone recognized the “Air Care” helicopter as it flew in to pick up Mildred and that he stated “Oh, God, it‘s bad. There‘s Air Care.” Id. at 172. Testified that he was able to hear and understand McHone‘s speech and that McHone was able to respond to his questions. Id. at 172-73. Testified that given his experience in law enforcement in observing drunk peoplе, that McHone “was not drunk. He had been drinking.” Id. at 179. He “define[d] drunk as a person‘s mental and physical capabilities are impaired to the point that he cannot walk, talk, or act in a proper fashion.” Id. at 178. He stated that he based his opinion “on [McHone‘s] smell of alcohol about him, the way he talked to me, and the way he did walk.” Id. at 180.
- Terry Miller, Detective, Surry County Sheriff‘s Department: Testified that when he entered the house McHone said, “Terry Miller, you pussy, I‘ll kill you too, you son-of-a-bitch ... I know what I‘ve done, and I‘ll have to pay for it. Why don‘t you just shoot me and get it over with.” Id. at 212. Testified that, “Based
- Larry Norman, Officer, Dobson Police Department: Testified that he observed McHone when he was brought into jail and that he did not slur or mumble his speech and could walk. Id. at 220. He testified that, “It was obvious in my opinion that he was drinking, intoxicated. But, he was not drunk as I would term drunk.” Id. at 221.
- Wesley, Jr.: Testified that McHone was not slurring his speech during his fight with Mildred and Wesley, Sr. and was able to walk and negotiate the basement steps. Id. at 241-42. Testified that McHone seemed to be very aware of what was happening and that his answers to his parents questions were responsive. Id. at 251. Testified that he had training on several occasions in the Air Force on detecting alcohol impairment and that, “I neither heard, saw, or felt any type of impairment on his part, on the part of the defendant during that entire time.” Id. at 282. He explained that, “By impairment I meant that any dysfunction of his physical movements; any slow movement, jerking, stumbling, tripping; any impairment in his voice characteristics by slurring his speech or not being able to finish a sentence; or not being able to recognize me. All the attributes that I looked at and dealt with in extremely close quarters, I did not see any impairment other than what any other normal person would do.” Id. Testified that he did not notice any odor of alcohol on McHone that night and that “[t]he only indication that I had, the only mention of drinking at all during the argument was the fact that my father told him to go to bed and sleep it off.” Id. at 290.
Finally, the State presented witnesses who stated that Mildred told them that McHone threatened to kill Mildred when he was twelve to thirteen years old.11 Id. at 307-309.
McHone presented two witnesses, McMillian and Bryant. McMillian testified to the amount of alcohol that he and McHone drank and that McHone was “mush-mouthed,” and that his eyes were red and glassy. Id. at 314-27. Bryant testified in more detail. She stated that McHone was drunk and staggering when he arrived at the party at Speaks‘s house; that he was crying and fighting with people, swinging his gun around; and that McHone was real pale, sweating, and moving rapidly with wide eyes. Id. at 333-339. Bryant testified that later at the party she asked McHone what he was on and, “he told me that he was eating acid.” Id. at 340.
The State presented Sawyers as its rebuttal witness. Sawyers testified to the sequence of events, described above, from the time she picked up McHone until she brought him back later that night. She testified that McHone was not slurring his words “much” when she brought him home that night and that he was coherent. Id.
During the jury‘s deliberations, they twice asked the judge “to go over the law of murder of Wesley Adams, Sr., and six qualifying things that we need to prove for first degree murder.” Id. at 474, 479. In response, the judge re-read the instructions. The jury returned a verdict finding McHone guilty of first-degree murder in the deaths of both Mildred and Wesley, Sr.
The State did not present any new evidence during the sentencing phase. The defense presented expert testimony concerning McHone‘s history of substance abuse and diagnosis of adjustment disorder with depressed mood. Dr. James Groce, the State‘s psychiatrist, testified to this diagnosis, but on cross-examination by the State testified that he had concluded in evaluating McHone that his “intoxication does not appear to be severe enough to make Mr. McHone unable to perform specific intent or to meet the standard for not being responsible for his behavior.” Id. at 493. Dr. John Warren, McHone‘s expert, testified that “at the time of the crime [McHone] was intoxicated or impaired, at least to the extent that people around him noticed that he smelled of alcohol and he was acting intoxicated.” Id. at 503. However, he stated on cross-examination that he could not state how impaired McHone was and that “[o]ne drink will impair a person.” Id. at 525.
Bobby McHone also testified as to McHone‘s childhood. He related how under a joint custody agreement between him and Mildred, McHone was exposed to his alcohol use and the related problems it caused in raising McHone. Id. at 530-546. A former neighbor of McHone testified that McHone helped her run errands and mow the lawn. Id. at 526-28. Finally, a parent of one of McHone‘s former coworkers testified that McHone once helped her with her car. Id. at 528.
The jury found fourteen mitigating factors to exist regarding the killing of Wesley, Sr., and eleven to exist regarding the killing of Mildred.12 However, for both murders, they also found that the aggravating circumstance that the murders were part of a course of conduct in which McHone engaged and that the course of conduct included the commission of other crimes of violence against others. Id. Additionally, they found another aggravating circumstance as to the murder of Wesley, Sr.—that the murder was committed while McHone was engaging in an attempt to commit a homicide on a person other than the deceased.13 Id. They then found the aggravating circumstances to outweigh the mitigating circumstances and recommended that McHone be sentenced to death for both murders. Id.
II.
The court will review “de novo a district court‘s decision on a petition for writ of
In this case, McHone contends that the state court unreasonably applied clearly established federal law. A state court‘s adjudication of a claim constitutes an unreasonable application of clearly established federal law “if the state court correctly identifies the governing legal principle from [the Supreme Court‘s] decisions, but unreasonably applies it to the facts of the particular case.”
III.
McHone contends that the state court unreasonably applied Brady and United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985), to the facts of his case. In Brady, the Supreme Court held that due process requires state agents to disclose evidence favorable to the defendant which is material to guilt or punishment. 373 U.S. at 86, 83 S. Ct. 1194. A Brady violation contains three elements: (1) the evidence must be favorable to the accused; (2) it must have been suppressed by the government, either willfully or inadvertently; and (3) the suppression must have been material, i.e., it must have prejudiced the defense at trial. Monroe v. Angelone, 323 F.3d 286, 299 (4th Cir. 2003) (citing Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999)). Both impeachment evidence and exculpatory evidence fall within the scope of Brady. Bagley, 473 U.S. at 682, 105 S. Ct. 3375; Monroe, 323 F.3d at 299. Moreover, the prosecution‘s failure to disclose “evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Kyles v. Whitley, 514 U.S. 419, 432, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995).
Because I believe the majority confuses the favorability and materiality prongs in their Brady analysis, I write separately.15 McHone argues that the State failed to reveal favorable evidence from seven witnesses related to whether he killed with the necessary specific intent for first-degree murder. The majority finds that the withheld evidence was not favorable to McHone.
First, McHone points to the pretrial statements of Wesley, Jr. who made statements to the police within hours of the crime indicating that McHone was “obviously drunk” and had a strong odor of alcohol on him but testified at trial that McHone was not impaired and did not smell of alcohol. The majority reasons that these two statements are consistent because in their view Wesley, Jr. maintained in both his pretrial and trial statements that McHone was aware of what he was doing throughout the commission of the murders and was not impaired by alcohol. I cannot agree. Wesley, Jr.‘s statements are inconsistent because in Wesley, Jr.‘s pretrial statements he told the police that McHone was drunk and smelled strongly of alcohol but he stated at trial that McHone did not smell of alcohol, was not impaired in anyway by alcohol, and that the only indication that he had that McHone had been drinking was that Wesley, Sr. told McHone to go to bed and “sleep it off.”16 J.A. 282, 290.
The extent to which this inconsistent statement would be of impeaching value in undermining Wesley, Jr.‘s testimony is a question which goes to materiality under Brady but does not detract from the statement‘s impeaching nature in and of itself. Wesley, Jr.‘s undisclosed pretrial statement is not merely “neutral evidence.” Rather, it had the potential to alter the jury‘s assessment of the credibility of Wesley, Jr., a significant prosecution witness. See United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998) (discussing the nature of impeachment evidence under Brady).
Second, Wendy made statements to the police that Randy Adams told her when they arrived home that night that McHone was drunk; she noted that McHone was always “real smooth” while sober but was cussing and screaming that night, indicating he was drunk; and she also described McHone and Wesley, Sr.‘s fight and said that it sounded like Wesley, Sr. was beating McHone and dragging him up the stairs. J.A. 603-609. These pretrial statements, when considered with Wendy‘s
Third, Randy, who was not called as a witness, made statements to the police that Mildred described McHone‘s condition that night as drugged or drunken and as the “worse I‘ve ever seen him.” Id. at 622, 660. This latter statement was noted on the state‘s witness list beside Randy‘s name. Id. Randy also told the police that McHone called on the night of the killings and asked if he could bring a girl to the house and that when Randy said no, McHone threatened to kill him. Id. at 622. Randy‘s statements concerning what Mildred said are favorable to McHone. That other testimony was presented concerning McHone‘s intoxication does not detract from the exculpatory value of McHone‘s mother, who was one of the murder victims, believing that McHone was intoxicated. Whether the evidence was simply cumulative, as the majority relies on, when considered with the other trial testimony, may mean it was not “material” under Brady, but it does not mean that it is not “favorable.” Randy‘s statement that McHone threatened to kill him does not undermine the favorability of his overall statement to the police, especially in light of the fact that other testimony was presented that McHone threatened to kill himself and others that night. Such testimony could have even been favorable to McHone as it contradicted the State‘s argument that McHone wаs targeting Mildred and Wesley, Sr. that night.
Finally, statements by Deputy Sheriff Inman and Hall, the first medical responder, were suppressed.18 Deputy Sheriff In-
B.
The standard for determining whether the favorable evidence withheld is material is whether “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682, 105 S. Ct. 3375. “The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles, 514 U.S. at 434, 115 S. Ct. 1555. A defendant can rely on the cumulative effect of all suppressed evidence in determining whether a Brady violation has occurred.19 Kyles, 514 U.S. at 436-37, 115 S. Ct. 1555; Monroe, 323 F.3d at 302. Because McHone alleges that undisclosed Brady material affected both the guilt and the sentencing phases, I look at the cumulative effect of the evidence on each phase separately to determine if there is a reasonable probability that the result of the proceeding would be different as constrained by the deference standards of AEDPA.
In considering the effect of the Brady material on the guilt phase, the most important question is the effect it would have had on the jury‘s finding of first-degree murder, which implicitly carried with it a rejection of McHone‘s defense of voluntary intoxication. Of the seven witnesses whose statements were not produced, Wesley, Jr.‘s statement is arguably the most valuable to McHone because it contains a direct contradiction of his trial testimony and because the State relied heavily on Wesley, Jr.‘s testimony. Wendy, the only other adult present at the house during the murder, was also a key witness at trial. Her statements to the police indicate that she had some personal knowledge that McHone was impaired. While not a direct contradiction of her trial testimony, the statement would have had some impeaching value, at least to the extent that she would have to explain her statement that she did not “pick up” on Mildred or Randy thinking that McHone was drunk. Wendy also downplayed the fight between Wesley, Sr. and McHone, failing to mention that it sounded like Wesley, Sr. was beating on McHone. If McHone‘s counsel had Randy‘s statement and he had testified at trial, the jury could have heard,
It is more difficult to determine the value of the statements of Deputy Sheriff Inman and Hall. Deputy Sheriff Inman‘s testimony of McHone as being able to walk, talk and act in a normal fashion would be somewhat impeached by his earlier statement that McHone was not steady on his feet. Hall‘s statement describing McHone‘s erratic behavior in the police car would have added more support to McHone‘s voluntary intoxication defense but it would probably not have outweighed the impact of Hall‘s trial testimony—that McHone asked for a cigarette while Hall was with Wesley, Sr.‘s body.
Despite the exculpatory and impeaching value of these statements, I do not think that the state court was unreasonable in concluding that in their absence, McHone still received a fair trial. While the cumulative effect of the statements would have been helpful in his voluntary intoxication defense, they were not such that the jury‘s verdict of first-degree murder is unworthy of confidence. Rather, the statements would have only demonstrated that the witnesses were somewhat downplaying the extent of McHone‘s impairment—a fact hardly surprising given that all of the witnesses presented testimony favorable to the State (with the possible exception of Sawyers).
In examining the sentencing phase, the withheld statements would have provided more evidence of McHone‘s intoxication such that the jury may have found
IV.
McHone contends that the state court unreasonably applied Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In Strickland, the Supreme Court set forth the test for an ineffective assistance of counsel claim. First, a defendant must show that defense counsеl‘s performance fell below an objective standard of reasonableness, the proper measure of which is prevailing professional norms. Id. at 687-88, 104 S. Ct. 2052. Second, a defendant must show that he or she was prejudiced by defense counsel‘s objectively unreasonable performance. Id. at 687, 104 S. Ct. 2052.
A.
In considering McHone‘s Strickland claims, it is clear that McHone‘s counsel did fall below prevailing professional norms in several areas and that the state court was unreasonable in concluding otherwise.20 First, despite proffering a de-
Second, McHone‘s counsel failed to interview or present the testimony of Tuttle, the jailors who observed McHone that
Likewise, the failure to interview the jailors is unreasonable given that they werе in one of the best positions to observe McHone shortly after his arrest. The jailors’ affidavits reveal, in direct contradiction to the testimony of the State‘s law enforcement witnesses, that McHone appeared to have ingested a significant amount of alcohol and/or drugs and was “messed up.”22 J.A. 681, 689. The failure to interview his substance abuse counselors or probation officer is also objectively unreasonable in light of the fact that counsel presented arguments to the jury about McHone‘s substance abuse problems and family relationship and these witnesses should have at least been interviewed. His substance abuse counselor‘s affidavit stated that in the counselor‘s opinion, McHone‘s actions that night were very out of character and would not have been committed unless McHone was severely intoxicated. Id. at 679-80. His probation officer‘s affidavit noted that McHone had been complying with the terms of his probation and that Mildred and Wesley, Sr. had voiced very few complaints. Id. at 571.
Third, McHone‘s counsel failed to object to the State‘s improper closing argument that McHone bore the burden of proof on voluntary intoxication and that his burden was higher than that required by law. Specifically, the prosecutor argued:
One of the first things I want to talk to you about is the defense of intoxication .... [i]f we are going to apply that defense to the facts of this case then we really need to, ought to know what it‘s about....
... Surely, a man can‘t go out, whether he be that side of the one-eyed Jack or this side of the one-eyed Jack, and drink some alcohol or take some drugs and then kill somebody and walk away with it. Surely, that can‘t be, can it? Well, you‘re right. That can‘t be. It‘s not just me saying that. That‘s what it says right here in State vs. Bunn, North Carolina Supreme Court, in the spring term of 1973. Said, “The defense to the charge of murder is that he was so drunk that he was utterly incapable of forming a deliberate and premeditated purpose to kill.” That‘s what he said. This is what the Court said about
that .... “For it to constitute a defense—” And that‘s just a defense to the first degree murder charge this is what you must show. And the burden is on the defendant to show this, ... It‘s his burden to show this, not the State of North Carolina. But his. This is what he has to show. “For it to constitute a defense it must appear that the defendant was not able by reason of the drunkenness to think out beforehand what he intended to do.”
J.A. 442-443.
He continued:
... [I]t says in State vs. Medlin in Supreme Court of North Carolina. “Evidence must show at the time of the killing the defendant‘s mind and reason were so completely intoxicated and overthrown as to render him—” Now this important word, ladies and gentleman of the jury. “—as to render him utterly incapable of forming a deliberate and premeditated purpose tо kill.” Utterly, it says. Not just drunk. Not just impaired. We‘re not talking about drunk driving and not being safe to drive an automobile. We‘re talking about utterly incapable of forming a deliberate and premeditated purpose to kill. “For it to constitute—” Says it right here, ladies and gentleman of the jury. It‘s not just me. This is what the North Carolina Supreme Courts have said about that defense.
You see, ladies and gentleman, they recognize the abuse you can have with this defense.
Id. at 447.
Under North Carolina law, voluntary intoxication can be a defense to first-degree murder by negating the elements of premeditation and deliberation. State v. Mash, 323 N.C. 339, 372 S.E.2d 532, 536-37 (1988). In Mash, the North Carolina Supreme Court held that the trial court‘s jury instruction was erroneous because to find for the defendant on intoxication, “the jury does not have to conclude that his intoxication rendered Defendant ‘utterly incapable’ of forming the necessary intent; it need only conclude that because of his intoxication either Defendant did not form the requisite intent or there is at least a reasonable doubt about it.”23 Id. at 537. The Mash court also found that the jury instruction at issue could lead a rational jury to find that the defendant bore a heightened burden of persuasion, which “would impermissibly and unconstitutionally shift the burden of persuasion on essential elements of the crime of first degree murder from the state to the defendant.”24 Id. Here, the prosecutor made the same argument rejected in Mash, which both heightened and shifted the burden of proof on voluntary intoxication to McHone. By failing to object, McHone‘s counsel were objectively unreasonable.
Finally, McHone‘s counsel, while presenting some mitigating evidence that revealed a troubled childhood, failed to go further and discover the extent of abuse.
- McHone has a history of chronic violence from birth through the divorce of his parents.
- McHone‘s childhood was marked by deprivation.
- McHone‘s parents agreed to an unconventional custody arrangement where he spent one year with Bobby and one year with Mildred and that while with Bobby he resided in a series of rooming houses and motels, sometimes sleeping in bars while his father drank.
- Due to the effects of his childhood, McHone self-medicated with drugs and alcohol from the age of 12.
McHone‘s counsel were clearly unaware of the extent of his abuse during his childhood because they submitted as a mitigating factor to the jury the statement that McHone “enjoyed a normal childhood until the time his parents separated, and after that, he began abusing alcohol and drugs.” This statement could have misled the jury into believing that his parents’ divorce triggered his history of substance abuse, when in reality he experienced abuse and deprivation from an early age. This failure to investigate further, given what counsel already knew, was unreasonable. See Wiggins, 539 U.S. at 527, 123 S. Ct. 2527 (“In assessing the reasonableness of an attorney‘s investigation, however, a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.“).
B.
Undoubtedly, the prejudice prong is more difficult for McHone to meet. Because McHone claims that counsels’ errors prejudiced both his guilt and sentencing phases, I analyze them separately.25
1.
To demonstrate prejudice at the guilt phase, a defendant must show that there is a reasonable probability, absent the errors, that the factfinder would have a reasonable doubt respecting guilt. Strickland, 466 U.S. at 695, 104 S. Ct. 2052. Thus, McHone must show that the factfinder would have a reasonable doubt respecting his culpability for the first-degree murder charge, which he could do most readily through his defense of voluntary intoxication.
The failures of counsel to investigate and present evidence of McHone‘s specific intent, including the failure to obtain expert testimony on McHone‘s blood alcohol level and to interview Tuttle and the jailors, were substantial. Because of these errors, his counsel were unable to rebut the State‘s picture that McHone was unimpaired and only slightly intoxicated. Specifically, Tuttle and the jailors26 could have
Counsel also failed by not investigating evidence that could help rebut the State‘s argument concerning McHone‘s motive. The State argued that McHone had a “plan” to be free of his parents. The most effective rebuttal of that argument would have been evidence of McHone‘s relationship with Wesley, Sr. and Mildred in the months preceding the shootings. McHone‘s probation officer offered a post-conviction affidavit stating that McHone was following the rules of his probation and that Mildred and Wesley, Sr. did not complain about his behavior. J.A. 571. McHone‘s substance abuse counselor also offered a post-conviction affidavit which, while conclusory, would have helped rebut the State‘s theory that McHone had a “plan” with evidence that these actions were very out of character for McHone and that he never expressed animosity towards his family.28 Id. at 679. Tuttle‘s testimony would have shown that McHone was not threatening his parents that night and was seeking help. Such testimony of McHone‘s more recent actions would have acted in marked contrast to the State‘s evidence that Mildred had expressed concerns about McHone threatening her when he was twelve and thirteen years old.
Finally, counsel substantially failed by not objecting to the prosecutor‘s improper closing argument, which may have confused the jury as to McHone‘s proper burden on his voluntary intoxication defense. In determining the prejudicial effect of this argument, Fourth Circuit case law on when an improper closing argument violates due process is instructive. The court has noted that such a “determination requires the court to look to ‘the nature of the comments, the nature and quantum of the evidence before the jury, the argu-
Looking first to the nature of the comments, the prosecutor incorrectly argued to the jury that North Carolina law mandated that McHone had to be “utterly incapable” of forming a deliberate and premeditated purpose to kill to succeed on the defense of voluntary intoxication. North Carolina law holds that this is the proper standard that the judge must consider in deciding whether to submit a voluntary intoxication instruction to the jury. In contrast, the jury must only have a reasonable doubt that defendant could form the necessary specific intent because of his intoxication. The prosecutor also improperly shifted and heightened the burden of proof onto McHone by stating that McHone bore the burden to show this defense.
The prosecutor‘s reference to the incorrect standard was not isolated. The trial transcript of the prosecutor‘s references to North Carolina case law on voluntary intoxication spans several pages and consistently misstates the law. As noted, McHone‘s counsel offered no “opposing argument” to these incorrect references because they did not object and the judge did not intervene. While the judge did give a proper jury instruction on this defense, he did not instruct the jury as to McHone‘s burden of proof on voluntary intoxication. The instruction stated:
Now, members of the jury, as to the defense of voluntary intoxication, I instruct you that if you find there is evidence which tends to show that the defendant was intoxicated from alcohol or other impairing substances at the time of the acts alleged in this case then you should consider the following instructions: Generally voluntary intoxication from such a substance is not legal excuse for crime. However, if you find that the defendant was intoxicated from alcohol or other impairing substance you should consider whether this condition affected his ability to formulate the specific intent which is required for a conviction of first degree murder; .... In order for you to find the defendant guilty of first degree murder by premeditation and deliberation you must find beyond a reasonable doubt that he killed with malice, and in the execution of actual specific intent to kill formed after premeditation and deliberation. If as a result of intoxication from alcohol or other impairing substance the defendant did not have a specific intent to kill the deceased in either of the three cases, ... he would not be guilty of such offense.
Supp. J.A. 66-67. Given the prosecutor‘s improper closing argument, the jury could have believed that they could not consider evidence of intoxication until McHone showed he was “utterly incapable” of forming premeditation and deliberation. At the least, the jury could have been confused on the correct standard given the prosecutor‘s repeated references to case law and the jury instruction that did not specifically address McHone‘s burden.
Viewed as a whole, counsels’ errors undermine confidence in the outcome of the guilt phase because a reasonable probability exists that but for these errors the jury could have concluded that there was a reasonable doubt about McHone‘s mens rea for first-degree murder and thus have found him guilty of the lesser-included charge of second-degree murder. Particularly significant in this regard is the weak case that the State had on first-degree murder. The State had no eyewitnesses to the murders and little evidence of motive. Indeed, McHone‘s actions in threatening to kill others that night undermines
2.
In the sentencing phase of a capital trial, a defendant establishes prejudice by showing “there is a reasonable probability that, absent [his trial counsel‘s objectively unreasonable performance], the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.”
In the contеxt of the sentencing phase, counsels’ errors are equally, if not more, prejudicial. If the jury rejected McHone‘s voluntary intoxication defense in the guilt phase, there is a reasonable probability that at least one juror could have still believed that McHone did not deserve a death sentence because his intoxication prevented him from understanding the criminality of his actions. Here, the fact that the jury rejected
Counsels’ failures to investigate adequately mitigating evidence were also damaging. The charge conference during the sentencing phase is especially significant. In the course of debating whether the mitigating factor that McHone “enjoyed a normal childhood until the time his parents separated, and after that, he began abusing alcohol and drugs,” J.A. 580, 584, McHone‘s counsel argued that Bobby McHone‘s testimony was the basis for submitting this mitigating factor, Supp. J.A. 116-17. The colloquy is instructive because the prosecutor stated in response that there was only evidence of “some hard times” in McHone‘s childhood, and then the judge stated that “there‘s some evidence that he saw [Bobby] drinking.” Id. at 117 (emphasis added). McHone‘s counsel never interrupted this colloquy or corrected the prosecutor and the judge. Clearly, counsel failed to investigate McHone‘s childhood adequately because if they had they would have uncovered that Mildred and Bobby‘s marriage was characterized by physical and mental abuse; that Bobby chronically abused drugs, alcohol, and gambled frequently; and that McHone was exposed to all of this both during the marriage and after his parents’ divorce. Rather than the divorce being the event that triggered McHone‘s troubles,32 an ad-
Such mitigating evidence of McHone‘s childhood in conjunction with evidence from McHone‘s probation officer and substance abuse counselors, would have done much to explain how McHone came to shoot his parents. In this respect, McHone‘s counsel failed utterly. In the prosecutors’ closing statements during the sentencing phase, they portrayed McHone as a “bad seed,” as a kid that despite a somewhat troubling childhood had always rebelled and mistreated his mother and step-father. See Supp. J.A. 155-208. They characterized him as a person that had never accepted the consequences for anything that he had done and was now trying to use drinking as his excuse. Id. They argued that McHone now should face the consequences of killing Mildred and Wesley, Sr.-for killing them just because he wanted to get out from under their “rules.” Id.
All of these arguments were proper but McHone‘s counsel had little to rebut them. They could not rebut the assertion that McHone only had a somewhat troubling childhood because they only had the testimony of Bobby, who gave some insight into McHone‘s childhood but could hardly paint the full picture as he was a main perpetrator of the abuse McHone experienced. They could not rebut the assertion that McHone was using alcohol as a excuse, because without effective expert testimony they only had the testimony of McMillian, Bryant, and Sawyers, none especially believable witnesses, to support his defense of impairment. Lastly, they could not rebut the assertion that McHone had a “plan” to get out from under his parents, the State‘s explanation for motive, because they had absolutely no evidence about McHone‘s relationship with Mildred and Wesley, Sr. or his willingness to follow the conditions of his parole. These failures were not strategic and they were not a result of failing to investigate “every conceivable” line of mitigating evidence. See Wiggins, 539 U.S. at 533, 123 S. Ct. 2527; Strickland, 466 U.S. at 690-91, 104 S. Ct. 2052. Rather, they were plain and pervasive.
Viewed as a totality, these errors were prejudicial. If McHone‘s counsel had been able to make these arguments, arguments essential to rebut the State‘s evidence, there is a reasonable probability that at least one juror after weighing the evidence in mitigation and evidence in aggravation, would have decided that McHone did not deserve death. The state court‘s conclusion otherwise, given the gravity of these errors and their prejudicial effect, was objectively unreasonable.
V.
For the foregoing reasons, I concur with the majority‘s decision to deny relief as to McHone‘s Brady claim but dissent from their decision on his Strickland claims. Counsels’ plain and pervasive errors in this case prejudiced both McHone‘s guilt and sentencing phases and the state court was objectively unreasonable in denying relief on McHone‘s Strickland claim.
Notes
I received no specific information regarding the amount and types of alcohol ingested by Mr. McHone during the night of the crime, other than information obtained from my interview of Mr. McHone. I was aware only of conflicting reports regarding whether or not Mr. McHone appeared “drunk” on the night of the crimes.
Had I been provided this information regarding Mr. McHone‘s alcohol intake on the night of the crime prior to my testifying at trial, my testimony would have been substantially different. I would have testified at the guilt phase, among other things, that Mr. McHone‘s capacity to calmly function and plan was severely impaired because he was intoxicated. I would have also testified that Mr. McHone‘s mind and reason were so overborn as to render him utterly incapable of forming the specific intent to kill at the time of the commission of the crime. I would have testified that Mr. McHone was unable to reflect about his actions or think about the consequences of his actions at the time of the commission of the crime. I would have testified at the sentencing phase, among other things, that Mr. McHone‘s capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of the law was substantially impaired. J.A. 677.
The majority relies on the R & R‘s finding that Dr. Warren could have learned of the amounts of alcohol that McHone consumed from Dr. Groce‘s report. Dr. Groce‘s report states that McHone “report[ed] voluntary intoxication [on the day of killings] with one or two joints of marijuana, a fifth of Jack Daniels liquor, five hits of LSD and approximately a case of beer.” J.A. 592. This information, given to Dr. Groce by McHone, does not belie Dr. Warren‘s assertions in his post-conviction affidavit because it is entirely consistent with his affidavit statement that he received no specific information on the amount of alcohol ingested by McHone other than the information he obtained from McHone himself. The only information that either Dr. Groce or Dr. Warren had on the amount of alcohol that McHone consumed was from McHone himself and conflicted with statements from other witnesses. Yet, McHone‘s counsel never sought out this information from the witnesses in advance of trial or presented any of it to Dr. Warren for a blood alcohol analysis.
At Mr. McHone‘s sentencing trial, I was called to testify as a witness for the defendant as to mitigating circumstances regarding Mr. McHone‘s drug and alcohol use, as well as other mitigating factors regarding his psychiatric profile. I testified on cross-examination that Mr. McHone‘s polysubstance abuse disorder affected him at the time of the crime, but that his intoxication was not severe enough to make Mr. McHone unable to form specific intent or to meet the standard for not being responsible for his behavior.... Since the trial, I have been shown materials by counsel for the defendant which were attached as exhibits to the defendant‘s post-conviction motions which I had not seen at the time of the trial. After considering these materials, I no longer have the opinion that Mr. McHone could form the specific intent to kill at the time of the crime. Consequently, I retract that part of my testimony at Mr. McHone‘s trial. J.A. 687-88.