*1 punitive damages and the re- Alabama in concur with by the courts enunciated Oil, Hammond, and Central Ala mainder. Green by referred
bama [as Mut. Ins. in Co. v. Pacific Life — U.S. -,
Haslip, (1991)].
L.Ed.2d problem, however, majority
To cure the existing Rule jurisprudence
discards procedures” adopts “new review by hereafter
used in Alabama to be used
Circuit,
in
even
federal courts
this
while
BUNCH,
Timothy
Petitioner-
Dale
post-verdict
recognizing that the Alabama
Appellant,
process process
review
is a de novo
anticipates the court’s consideration of
jury.
facts
not before the
and matters
THOMPSON, Warden,
Charles
sweeping
disposes
That
of two hundred
act
Respondent-Appellee.
in
years
jurisprudence
the federal courts
(Two Cases)
verdicts, Mattison,
reviewing jury
see
90-4001,
Nos.
90-4005.
110-112,
directly
947 F.2d at
conflicts
in
with our recent en banc decision Defend
Appeals,
United States Court of
Indus.,
(holding
jority opinion express violate the limita
tions Amendment which Seventh apply every
must federal district court
sitting diversity in a case. The Seventh that “no fact tried
Amendment demands jury, shall be otherwise reexamined States, than ac United
cording of the common law.” rules Const, And the common amend. VII. incorporated
law into Seventh Amend permit
ment a court to substitute does jury weighing judgment
its
for that of
Mattison,
the facts.
Moreover, permit, it does not as Alabama allows, judge consider
apparently facts jury not before the other matters when jury. committed to the
reviewing a matter
Id. develop fully
For more reasons that we Mattison, I find the law that would awarding applied puni- case for this damages due pro-
tive denied the defendant Amendment,
cess in violation of the Fifth
and therefore stand. cannot respectfully majority
I from the dissent
opinion insofar affirms the as it award *2 225 Va. S.E.2d
See also *4 Jackson,
Amy Anthony Berman Karl Ra- cine, Venable, Civiletti, Baetjer, & Howard D.C., Washington, argued (Gerard Trea- F. nor, Jr., brief), petitioner-appellant. for on Gen., McLees, Jr., Atty. H. Asst. John Richmond, Va., argued (Mary Terry, Sue brief), Atty. Virginia, on for re- Gen. spondent-appellee. WIDENER, SPROUSE,
Before WILKINSON, Judges. Circuit OPINION WILKINSON, Judge: Circuit by Timothy jury Bunch was convicted trial and sentenced to death for murder in robbery the commission of while armed deadly weapon violation Va. 18.2-31(d) (1988). Code Ann. His convic- § tion and sentence were affirmed Virginia appeal. on direct courts have considered and petition dismissed Bunch’s state of habeas corpus. Bunch is now before this court appealing the district court’s dismissal of petition. alleges his federal habeas He nu- error but for cussed another matter with Bunch sev- points of constitutional merous leave, got confession was up his eral minutes. As Cahill primarily rights cooperate under the Bunch of his told Cahill would in violation admitted gun he was denied him that the was at moth- informed Fifth Amendment ring in violation er’s house in Indiana and that Thomas’ of counsel effective assistance Finding Japan. no merit was Cahill and the Common- Amendment. Sixth judgment attorney interroga- claims, wealth’s decided we affirm in Bunch’s tion should not continue unless Bunch court. of the district signed another consent form. Bunch When I. form, refused sign the interview ended. January 31, Bunch killed On Bunch, couple military custody, Thomas. The still
girlfriend Su Cha
house,
go
transported
Quantico,
from
preparing
Japan
out
at Thomas’
back to
forty-two
Although
downstairs which took
when Bunch hid
hours.
mil-
dinner
shooting itary personnel
question Bunch,
her. After
lure
bathroom
head,
upstairs
they
during
flight
informed him
Thomas in the
Bunch went
of his
rights
spent
drinking
again. Upon
an hour or so
wine
Miranda
arrival at
Quantico,
proceeded through
He
listening
pro-
to the stereo.
then ransacked
*5
watch,
house,
cessing
delivery
a
taking Thomas’ Rolex
to state authorities.
string
During
a
ring,
pearls
gold
processing,
Major
Bunch
diamond
a
met with
left,
Jillisky,
attorney
tied
chain. Before he
he
a knot in the Donald
an
with the Ma-
pulled
wearing,
Judge
her un-
rine
scarf Thomas was
Advocate General’s Office. Jil-
body
hung
by lisky
conscious
to a door and
her
informed Bunch that he was not
According
attorney,
to present
the scarf from the doorknob.
as Bunch’s
but
to
there
a
him of
to
the medical examiner
was combined advise
his situation and
transfer
gunshot
military
death —“a
him to
at-
cause of
wound to
state authorities.
secondary complication,
torney
charges
head
a
told Bunch of the
he
... with
was
facing
asphyxiation by hanging.”
and that he would either have to
attorney
appointed
or have one
obtain an
murder,
Following
pawned
Bunch
Jillisky
for him.
also instructed Bunch
report
pawn
A
that the
Thomas’ watch.
say anything
did not have
“he
to
until
shop
police set off an
filed with the
investi-
lawyer,
he
with his
it
consulted
Bunch,
a
gation
sergeant
who was
in the
probably
say
in his
was
best interest to
Corps.
United
Marine
Bunch had
States
anything until he consulted with his law-
temporarily
met
Thomas while
stationed
yer.”
Quantico in Virginia, but had since re-
Japan.
Following completion
military pro-
permanent
turned to
station
cessing, Bunch was turned over to Investi-
Virginia
police inspector
Two
officials—
transportation
gator Cahill for
Donald
Common-
Cahill and
assistant
drive,
police
During
station.
Cahill
Japan
attorney
wealth’s
—traveled
ready
Bunch “if he felt he
sit
asked
was
question
They
Bunch.
informed Bunch of
go
down
case.” Cahill in-
over the
rights
Arizona,
under
Miranda
formed Bunch that he
under no
obli-
before
right
of his confession violated both his
probably
prostitute.
He decided on
right
counsel and his
to remain silent. We
“she was a slut and she
Thomas because
shall address each claim in turn.
him much of his
and he
reminded
too
wife
that he
money.”
her
He told Cahill
wanted
A.
Thomas in the head from behind and
shot
orgasm
doing so. After
had a sexual
when
Supreme
Court ruled
house,
ransacking
dragged
Thomas
appeal
on direct
that admission of Bunch’s
scarf,
hung
her
her
right
to the doorknob and
confession did not violate his
to coun
becoming sexually
review,
aroused. He
again
sel. On collateral
our examination
gathered
jewelry
ruling
her
and left the house. of the
Court’s
is
guided by the “new rule” doctrine an
during
Bunch was tried for murder
Lane,
nounced in such cases as Teague v.
robbery.
armed
The trial
commission of
103 L.Ed.2d
incriminating state-
suppressed
court
McKellar,
and Butler v.
Japan,
ments that Bunch had made
con-
cluding they had been obtained
violation (1990).
Teague,
Court held
The court held
of his
to counsel.
that “new constitutional rules of criminal
gave
admissible the confession Bunch
to procedure
applicable
will not be
to those
Virginia,
ruling
that he
Cahill
however
cases which have become final before the
freely
“intelligently, wittingly,
had
and vol-
new rules are announced” and decided that
untarily”
rights.
juryA
con-
waived his
“a case announces a new rule if the result
*6
capital
sen-
victed Bunch of
murder and
by precedent existing at
was not dictated
him
on
tenced
to death based
the “vile-
the time the defendant’s conviction became
ness” of the crime. See Va.Code Ann.
301, 310,
final.”
This
followed.
tion,
sup
claims of
dictated that his confession be
Bunch raises numerous
con- viction
argument
his
on Ed
pressed.
error.
shall address his two
He bases
stitutional
We
Arizona,
im-
major claims—that his confession was
wards
and claims
properly admitted and that he was denied
per
se rule that
clearly
of counsel—in the first
case
established
effective assistance
custody
invoked his
then
discuss the
an accused
who has
two sections. We
will
right
allegations.
right to counsel cannot waive
remaining
485-86,
451 U.S. at
conver- valid waiver.”
initiates further
he himself
unless
Powell, concurring
maintains
Justice
police. Bunch
with
sation
Edwards,
further ex-
one
in the result
he
initiated
never
he
police
directly
meaning
after
invoked
of “initi-
changes
to address
with
under the
and that
right
“interrogation”
counsel
in this context:
his
ation” and
confession
his
rule of Edwards
clear
re-
impermissibly
not
‘initiate’
do
[P]olice
According
suppressed.
been
should have
interrogation by engaging
newed
in rou-
Bunch,
Supreme
Virginia
Court
suspects
tine
about
conversations
reached the issue
should never
legit-
police
And
unrelated matters.
knowingly
intelligently and
he
whether
imately
inquire
suspect
may
whether a
issue
rights
arises
his
because
waived
changed
speaking to
has
his mind about
suspect initiates conversa-
only when the
attorney.
is
un-
them without an
It
not
tion.
person
custody
previ-
who
usual
the time
the law at
examination of
Our
expressed
unwillingness to
ously has
decision,
Court
lawyer,
or
a desire to have a
talk
however,
that the admissibili-
convinces us
change
mind
his
and even welcome an
“susceptible to
of the confession
ty
Nothing
to talk.
in the Con-
opportunity
among reasonable minds.”
Vir-
debate
preclude
erects obstacles that
stitution
Supreme
ruled the confession
ginia
ascertaining
a sus-
police from
whether
“intelligent-
because Bunch
admissible both
original
his
pect
reconsidered
deci-
has
freely
voluntarily”
wittingly,
ly,
sion.
right
counsel and because
waived
(citations
490,
The defendant was
State,
Johnson v.
Ga.
303 S.E.2d
“any
“express questioning” nor to
words
(1983) (“Police may legitimately inquire
(other
part
police
or actions on the
suspect
changed
whether a
has
his mind
normally attendant to arrest
than those
speaking to them with or without an
about
custody)
police should
that the
know
attorney.”).
reasonably likely to elicit an incrimi-
are
nating response
suspect.”
from the
The
Court deci
Innis).
(citing
at 1178
429 So.2d
sion is similar to those of other states
interpreting
meaning
of Connecticut
of initiation and
interrogation
a similar conclusion
the immediate aftermath
reached
State
Acquin, 187
F.2d 1487 doctrine, namely, of under had been informed his Miranda meritless. any subsequent times, he had con- received le- what circumstances rights numerous silent, been gal suspect remain he had versations between a officials advice to required speak was not of interro- he could be considered a reinitiation informed that Cahill, gation by Virginia Supreme he had understood that his state. penal- ruling result in the death re- point could that warrants confession Court’s on stated, ty. Court spect As from a federal court as one habeas of an individual jurists case this was that reasonable could make. See Butler, 110 at 1217-18.1 who, despite warnings of his repeated contrary “not rights and to sound advice B. anything,” ready “he say decided story” tell the and “wanted to whole his Bunch also that confes before get it off his chest.” Moments suppressed sion should have been because confessing, writing in that he he stated right remain silent asserted he was lawyer not want a did investigators Japan Virginia did can willing questions. to answer We re as “scrupulously honor” “ case of of no clearer ‘know- conceive 96, quired by Mosley, 423 Michigan v. U.S. relinquishment intelligent or ing and 321, 326, 96 S.Ct. ” rights. of abandonment’ ] \Miranda this Bunch raised claim When Fields, (citing Wyrick petition, at 277 v. the Common S.E.2d his state habeas Dismiss,” 214 wealth, respond 103 S.Ct. L.Ed.2d in its “Motion to (1982)). procedurally had ed that the claim been it had not been raised defaulted because on dismiss Bunch’s claim therefore We appeal. trial on See either at or direct Teague on the basis of v. collateral attack Va. Slayton Parrigan, v. require progeny. its Those cases Lane and (1974). The Commonwealth S.E.2d 680 Supreme ruling Virginia be that the opposing the arguments made other no against backdrop of other case judged claim. The circuit court dismissed of its decision on direct law at time in the Motion claim “for the reasons stated against may appeal, not the law Thus, clearly the circuit court to Dismiss.” during case the time Bunch’s evolved grounds the claim on the of dismissed its various rounds on collateral re- made procedural state default. See Coleman grant To the writ would hold the view. — -, application Thompson, Virginia Supreme Court’s 2559-61, (1991) (grant of a pale beyond be Edwards “reasonable, procedural interpretation[ on good-faith of motion to dismiss ] Parks, grounds neither rests on nor is interwoven existing precedents.” Saffle law). 108 L.Ed.2d with federal Butler). Virginia appeal (1990) petition (quoting This we de- refused “[u]pon this case ruling court was review of the record cline to do. The warnings gave dissenting opinion quite appreci- on no less Bunch his 1. The fails Miranda fact the rule announced in Edwards separate ate the than the state three occasions not define all terms which rule Japan his confession in courts in fact threw out implemented. holding The Edwards would right to counsel. violative *9 concepts upon and the of initiation inter- rested plain regard, we wish to make In same thdt rogation, precise boundaries of which the refusing ap- courts federal intermediate legitimately determine were state courts could ply state convictions on reverse new rules to dissent, Unlike the we decline to undefined. criticizing not lack of are collateral attack hindsight number of in the substantial hold decisions, but clarity in earlier concepts struggling courts these state Teague acknowledging and its what are higher any way upon disregarding au- in thority. intent acknowledge require us to progeny indication, now example, no for We have —that ques- leave decisions will some even the clearest attempting anything do good courts to re- the state faith conscientiously apply tions for than the Miranda other Indeed, military state solve. doctrine. authorities argument having produced just on as a sub result.” Id. and consideration at 2064. S.Ct. support opposition of and in mitted granting appeal.” of an This order of court-ap Bunch asserts that his provides no pointed attorneys performed inadequately evidence that that court considered by failing investigate present poten “the last rea claim on the merits. Where tially mitigating sentencing factors at the impos opinion explicitly on the claim soned phase. presented to the state habe- default, procedural presume a we will es containing court numerous affidavits rejecting that a later decision the claim mitigating evidence that he asserts was disregard consider silently that bar and easily during available the trial. Those — Nunnemaker, the merits.” Ylst v. family affidavits came from various mem U.S. -, 2590, 2594, 115 L.Ed.2d friends, neighbors, bers and a few a law circumstances, pro such military student who interviewed officers ade must considered an cedural default be Bunch, who had some contact with ground that quate independent state attorney Bunch’s state in habeas who had claim in federal forecloses review of the argues terviewed Bunch’s ex-wife. Bunch Coleman, 111 court. S.Ct. at 2557-61.2 that his counsel should have offered
jury mitigating simply more evidence than testimony. Pey his mother’s See Coles v. III. ton, (4th Cir.1968). 889 F.2d Bunch next that he was denied unpersuaded. becoming We are It is all counsel to effective assistance of commonplace charge diligent too even Amendment. His in violation of the Sixth counsel in midst of difficult circum primary point is that trial counsel was inef- capi stances with the adverse outcome in a mitigat- preparing presenting fective examining tal case. ineffective as When sentencing phase ing at the evidence however, claims, appreci sistance we must additionally allega- trial. He raises other practical ate the limitations and tactical performance tions of deficient trial counsel faced. “It is all decisions that government urges procedurally are barred. tempting for a to second- too defendant arguments We shall address these in turn. guess counsel’s assistance after conviction sentence, easy and it is all too or adverse A. court, examining counsel’s defense for unsuccessful, proved after it has to con for ineffective standard review particular act or omission of clude that a of counsel claims is a familiar assistance Strickland, counsel was unreasonable.” Washington, one. Under Strickland v. S.Ct. at 2065. Particu 466 U.S. 668, 687, 2052, 2064, 466 U.S. evaluating decisions not to in larly when (1984), in order L.Ed.2d 674 to establish further, vestigate regard we must coun rights, violation of Sixth Amendment eye for sel’s choices with “reasonable per- Bunch must show that his counsel’s circumstances, applying ness all the formance was deficient and that the defi- heavy measure of deference to counsel’s ciency prejudiced his as to de- so defense judgments.” 2066. Id. at 104 S.Ct. at him trial. This no prive of a fair is insub- burden, as stantial benchmark Our review of the record reveals “[t]he judging any claim of ineffectiveness must attorneys made reasonable Bunch’s under- deciding whether counsel’s conduct so how best be determinations in example, proper functioning present of the adver- For mitigating mined the factors. psychiatrist who process that the trial cannot relied sarial counsel did not have ell, Relying concurring on Justice O’Connor's 428 U.S. reviewing Eagan, (1976) (federal opinion courts in Duckworth v. habeas apply will not the exclu the Com criminal convictions *10 violations). sionary Amendment monwealth that federal courts for Fourth should rule apply this decision on narrower exclusionary not on collateral review the rest Because we question. grounds, not address this rule for Miranda violations. See we need Stone v. Pow facility the mitigating officer of correctional where potential Bunch for evaluated as well sentencing jury. Bunch had last been stationed as testify the evidence before sergeant facility. with the first of that psychiatrist could that the Bunch contends commanding reported officer that Bunch Bunch’s stress- jury of have informed the unsatisfactory working relationships had childhood, included domestic vio- which ful had from peers, follow- with his been dismissed his lence, of self-esteem and of his loss marriage. position drug problems related and for of his ing the dissolution have testified not have been recommended re- addition, could would the doctor sergeant The first had taken prior criminal record enlistment. of a Bunch’s lack post his Bunch had been arrested but ability to control his behav- after some indicated pressure reputation at was his and was familiar with ior, under extreme that he was any positive information. murder, had the to offer unable of the the time Additionally, military counsel the contacted capacity for rehabilitation. liaison for Bunch’s case officer ob- this beneficial tes- of Counsel was aware copies military of record to tained Bunch’s of risks cognizant the timony was also but provide evaluating psychiatrist. the With had psychiatrist if the taken involved ease, finite in the hours and other demands had evaluated psychiatrists stand. State spend counsel not to time chose valuable damaging findings of Bunch and made pursuing appeared unfruitful what to be an prosecution Had was aware. which a investigation. line of too was rea- This psychiatrist, their attorneys Bunch’s called decision. sonable emerged on harmful evidence would feared that crossexamination. Counsel Counsel contacted and interviewed testimony impact psychiatric hope overall of Although initially parents. Bunch’s negative to all the as- be reinforce would as presenting ful Bunch’s father about pects witness, of Bunch’s self-destructive behavior. was concerned favorable counsel lawyers additionally Bunch’s worried reliability possibility about his both sexual orientation as- by “some unusual example, contradictory testimony. of For way no pects of the case that we in wanted up for an Bunch’s father not show jury Having to inter- hear about.” meeting important with counsel because he psychiatrists to viewed addition Also, gotten night had drunk before. witness, made a their own counsel reasoned mitigation strategy was to much of strategic psychiatric choice offer tes- childhood, not to Bunch’s in highlight traumatic as timony. To use that decision a basis for father cluding the facts Bunch’s had finding assistance would to home, ineffective be mostly had a been absent from the testimony psychiatric a rule institute abusive to drinking problem had been sentencing always offered in the should Bunch’s mother. Counsel worried counterproductive phase, no matter how or history downplay father would this Bunch’s damaging. refuse to Trial This we do. up they end im and that would in effect placed frequently is too in a no-win counsel They made peaching their own witness. respect possible mitigat- situation with strategic put him defensible decision sentencing phase ing at the of a evidence on the stand. put capital case. The failure on such prepared for Bunch’s mother was evidence, presentation or the evidence family Bunch’s ready testify trial and backfires, may equally expose which then histories, disciplinary and social lack charges of counsel to collateral ineffective- schools, problems in criminal his lack course for a federal habeas ness. best record, with reconcile his efforts to strategic judg- plausible court is to credit testified, actually wife. When she how in the a state ments trial of case. ever, ask a number lead counsel had to ing disposition questions our in order to elicit favor governs view This Her affect mitigation able emotional remaining claims. With information. well, diminishing her respect possible military mitigating wit was also blunted nesses, commanding a witness. spoke counsel effectiveness as
1365 (vii) object to gun. makes much of the outcome to admission of the He now Bunch witness, disappoint alleges other only one who was also instances of ineffective in his Yet coun at the ing, sentencing phase. behalf. when assistance testified preparing sentencing phase for the was sel affirm the judgment We district court’s parents both Bunch and his for and asked procedural- that these additional claims are potential of witnesses with informa names only ly barred. claim of ineffective provide, they did they tion that could not of counsel presented assistance that Bunch suggest any. not While counsel was aware to Court for collat- members, they family of other believed duty concerned in- eral review counsels’ cumula testimony that such would present vestigate mitigating evidence of Bunch’s mother. One of tive with that sentencing phase. at These other argues Bunch now that coun those whom are therefore barred Whitley claims under sel should contacted is his ex-wife. 1487, Bair, (4th Cir.1986), 802 F.2d 1500 v. trial, however, Bunch instructed Before the Sykes, 72, Wainwright v. 433 U.S. 97 to contact his ex-wife or to his counsel not 2497, (1977). S.Ct. her in the case. It is difficult for involve failing fault counsel for to obtain us to IV. client him testimony additional when the points Bunch asserts other of error forthcoming names. self not See during guilt phase which occurred of 691, Strickland, at 466 U.S. at S.Ct. the trial. We shall address each in turn. 2066; Kemp, F.2d Tucker v. (11th Cir.1985). A. these circumstances we conclude
Under
protests
the introduction into evi-
pro-
that Bunch’s counsel made reasonable
photographs
dence of two
of Thomas: one
render con-
judgments
fessional
showing
hanging
her
from the doorknob as
stitutionally defective assistance of coun-
found,
she was
and one black and white
potential
sel.
“did interview all
Counsel
autopsy ta-
photograph of Thomas on the
who had been called
witnesses
[their]
photographs
ble. He
these
attention and
there was
reasonable
[]
inflammatory and that his conviction
strategic
basis
decision^].”
[their]
cannot have been the result
794-95,
and sentence
Kemp, 483
Burger v.
a reasoned and rational determination.
(1987). of
3114, 3125-26,
800, S.Ct. 92 (1972). friends Bunch’s testified One spoke him weeks be that Bunch two
B. wanting to rob fore the murder about a Hut. Bunch at trial and on argued Pizza that the evi Bunch also maintains appeal that was direct this evidence too to establish a at trial was insufficient dence from the relevant as remote crime to be to during of a rob the commission murder habeas, his intent to rob Thomas. On state capital for his bery, which the basis against argument Bunch enhanced his this conviction. Va.Code Ann. murder See testimony’s by asserting admissibility that 18.2-31(d)(1988). that He where § unduly prejudicial character evi it was taking killing are two and unlawful claim preserved He asserts that his dence. intent and no to separate acts there was irrelevancy enough to incor was broad killing, there is the time of the no steal at grounds the newer of inadmissibili porate Commonwealth, robbery. See Branch v. ty- (1983). 760 Va. 300 S.E.2d 225 intent to that he had no rob Bunch asserts objection Bunch’s at trial was framed took her prior to murder and Thomas however, solely irrelevancy, in terms of and disguise only attempt in an
jewelry deprivations. in terms of constitutional not crime. The state habeas court considered Bunch’s granted argument government’s considered appeal grounds on and summa- to dismiss the claim on the argument direct motion this adequate “overwhelming” procedural evidence that default. This is an rized the independent ground for during killed commission of state decision Bunch Thomas That forecloses of the claim robbery. evidence included Bunch’s consideration a the murder federal habeas review. Coleman statements friends before on v. — -, badly, money Thompson, he needed should (1991); up City and knock that Ylst v. Nunne “go there Dale — maker, U.S. -, get rings things,” off ... and her S.Ct. bitch (1991). confession, Bunch’s he said his L.Ed.2d 706 We see no reason in wherein go any “to and take her the discretion of the plan had been down event disturb evidentiary ruling. kill the area.” on jewelry and her and leave state trial court this than This is more sufficient evidence that had the intent to Thomas when
Bunch rob V. he killed her. also numerous claims of asserts sentencing phase errors made at the of his C. these claims too in trial. We shall address
Bunch also asserts that his Sixth order. witness Amendment to crossexamine rights his Fourteenth Amendment
es and
A.
equal protection
process
to due
pro
the trial
failed to
violated when
court
capital
Virginia’s
Under
sen
pathologist.
hire
vide funds
Bunch to
a
scheme,
tencing
a
cannot
death sentence
beyond
imposed
jury
claim at trial and
unless
determines
Bunch waived this
repre
appeal
it on
or at
doubt
the defendant
present
direct
reasonable
danger
society
It
is therefore
sents a future
or
phase of state habeas.
Wainwright
particularly
Sykes,
defendant’s conduct was
vile.
barred.
(1977);
19.2-264.2, -264.4(C)
Ann.
depravity of
19.2-264.4(0)
miscarriage
Ann.
such a fundamental
Va.Code
the victim.”
§
*13
(1990).
justice
that the trial court’s
that
is still
Bunch
review
available. See
penalty
91,
regarding the death
Sykes,
instructions
433 U.S.
913 F.2d
D.
B.
de
finally requests
we
Bunch
statute and
penalty
death
alleges
that the trial court
clare the
facially uncon
to be
failing
sentencing procedures
to strike for cause two
erred in
observed,
district court
As the
were biased
favor of
stitutional.
jurors who
upheld statutes
Court has
yielding
jury
“a
uncom
penalty,
death
thus
Virginia’s
as to future dan
die.”
similar to
both
monly willing to condemn a man to
Texas,
Illinois,
510, 521,
428 U.S.
gerousness, see Jurek v.
Witherspoon v.
391 U.S.
2950, 2957-58,
262, 269, 274-76,
1770, 1776,
(1968).
96 S.Ct.
as to
claim L.Ed.2d 929
vileness. See
Although Bunch did not raise this
n.
201 &
appeal
Gregg Georgia,
it is
either at trial or on direct
barred,
Carrier,
2938 & n.
49 L.Ed.2d
procedurally
Murray v.
responded
police-initi-
to further
also concluso-
Bunch’s claim is
interrogation even if he
disregards the multitude
ated custodial
ry
in nature
rights.
Virgi-
advised of his
We
application
has been
challenges to
fur-
accused,
hold that an
such as Ed-
punishment scheme which
ther
capital
nia’s
wards, having expressed his
desire
rejected.
been
through
police only
with the
coun-
deal
sel,
interroga-
subject
is not
VI.
further
tion
until counsel
authorities
reasons,
foregoing
we hold
For
him,
been
unless
has
made available
merit. The
to be without
Bunch’s claims
*14
initiates
the accused
further
himself
hereby
is
the district court
judgment of
communication,
or
exchanges,
conver-
AFFIRMED.
police.
with the
sations
484-85,
at
at
451 U.S.
1884-85
Id.
SPROUSE,
Judge, dissenting:
Circuit
added).
six-justice majority
(emphasis
The
opinion
majority
in all of
I concur
the
in
hold-
could not have been
clearer
its
respectfully
I
II.A. to
except Part
which
ing
suspect
right
once a
to
invokes
dissent.
counsel, only
by
communication initiated
language
the
majority believes that
The
provide
accused can
the basis for fur-
the
Supreme
in
by
used
the
Court
Edwards
interrogation.
ther
confusing
rule
and that the Edwards
was
in
Burger
only
Justice
concurred
Chief
bright
It is
nor linear.
the
was neither
disagreed
judgment
the
because
majority's
until
was
view
not
Solem
majority
“special”
need for a
about the
establishing
clarified as
“a
Edwards
concerning
right
of a
to
rule
the waiver
suspect
rule that
a
can
bright-line
before
interrogation opining
from
free
—
right
counsel he
his invoked
to
must
waive
validity of such waivers should be deter-
party
subsequent
commu-
be the
initiate
facts
particular
mined under the
and cir-
nication.”
Zerbst,
cumstances standard of Johnson
view,
bright-line
rule
L.Ed.
my
In
was
join
refused to
in
Justice Powell also
clearly announced Edwards. Solem
Burger,
modify
majority. Like
he was
alter or
the Edwards rule.
Justice
issue of
parameters of the waiver of coun- of the view that
Edwards’
Since the
in
have been con-
requirements
Ed-
of counsel should
sel
were established
waiver
wards,
under the
standard. Justice
Teague’s
consideration of
retroac-
sidered
Zerbst
appears
principles
simply misplaced.
is
Ac-
also criticized “what
to be
tivity
Powell
undefined,
undue,
emphasis
Virginia
on a
cordingly, the
courts should have
an
”
single
suppressed
element: ‘initiation.’
Id.
observed Edwards and
Bunch’s
491-92,
Although
Cahill.
at
at 1888.
statement
Ed-
majority
challenged
wards
within
majority
Oregon
The
here claims
by
separate opinions,
Supreme Court
two
Bradshaw,
and,
majority rejected
challenges
those
days
six
decided
Solem,
Bradshaw,
persist-
as shown
appeal,
after Bunch’s state
demonstrates
defendant
ed
its view
once a
invokes
rule.
that Edwards
an uncertain
counsel,
right to
the accused must initi-
Bradshaw, however, eight members of the
ate conversation
establish a valid waiver.
Supreme Court
waiver
restated
Edwards,
ruling
plu-
realiz-
absolute. The
Edwards was
ing
safeguards
rality opinion
that additional
neces-
stated:
protect
request
sary accused’s
Oregon
Appeals
We think the
counsel,
that:
held
laid down in Ed-
misapprehended the test
right
not there hold that the
when an accused has invoked his
wards. We did
by
present during
counsel
custodial in-
“initiation”
a conversation
defen-
have
right
terrogation,
respondent
a valid
of that
such
would amount
waiver
dant
showing
previously
right
by
be established
to a waiver
invoked
cannot
counsel;
after the
have
we held that
established a new rule because it nei-
by
to counsel had
asserted
an ac-
ther extended nor
been
modified Edwards.
cused,
interrogation
further
of the ac-
majority
here holds that the
place
cused should not take
“unless the Supreme Court could
reasonably
in-
accused himself initiates further commu-
terpreted
type
Edwards to sanction the
nication, exchanges, or conversations
reinterrogation
Cahill,
conducted Officer
police.”
with the
because not until
was it
Solem
clear that
the interrogation
violated the rule estab-
The issue in Solem v.
465
became
U.S.
final.
104 S.Ct.
Teague
wards established a new test for when (March 5, 1990). L.Ed.2d 347 Not even in acceptable waiver would be once the generous recognition comity, the most of suspect had invoked his to counsel: however, suggest could we that a state suspect subsequent had to initiate interpretation court’s of a United States communication____ Supreme Court decision on federal constitu- Edwards, question
Before whether tional law is reasonable when the United the authorities questioning Supreme could resume clearly States Court has reached a after a contrary defendant has asked for an attor- conclusion.
ney
acknowledged
to be unsettled.
opinion
The majority here relies on the
of
Solem,
646, 648,
tween concerns protection
and fundamental fairness other,
truth-finding procedures on the the finali cannot undermine
court decisions States Su
ty of of the United decisions Court, for
preme under various determining re- issues of mulations for America, UNITED STATES Ken Teague; troactivity. See Griffith Plaintiff-Appellee, tucky, (1987); Mackey v. United States, LOGAN, Jr. and Eddie William N. (1971); Desist v. United L.Ed.2d Stanley, Defendants- *16 States, U.S. 89 S.Ct. Appellants. Denno, (1969); Stovall No. 90-1827. Walker, (1967); Linkletter v. Appeals, United States Court (1965); Palko L.Ed.2d Fifth Circuit. Connecticut, 302 State of Dec. majori 149, L.Ed. here, however, interpret opinion
ty would render
Teague allowing lower courts to Supreme un clear decision
clear; produces very lack of the result
finality majority panel here decries. judi- respectable state
So no matter how be, might we are concerned
cial authorities
here constitutional issue. with a federal
Although some courts have reacted to if its intentions unclear
Edwards as confusing, majori-
and the announced test has
ty consistently announcing bright-line test.
treated it as is no different than in test Solem were dictated Its results
Edwards.
existing precedent of Edwards. Edwards suspect
clearly that once a invokes the held counsel, police interrogation must
right to suspect initiates
not be renewed unless
the conversation. “if
Here Detective asked Cahill go ready
felt he over to sit down Cahill, Bunch, clearly initi-
the case”—