Willie Lloyd Turner v. Gary Bass, Superintendent

4,600 marijuana. pounds This sentence by Congress. within the limits set appel-

After a consideration of all of the arguments, the decision of the trial

lant’s

court is affirmed.

AFFIRMED. TURNER, Lloyd Appellant,

Willie

Gary BASS, Superintendent, Appellee.

No. 84-4004. Appeals,

United States Court of

Fourth Circuit.

Argued Oct. 1984.

Decided Jan. Snook, III, Charlottesville, Lloyd

J. Va. (Paxson, Smith, Scott, & Charlottes- Gilliam ville, Va., brief), appellant. for Anderson, III, Atty. Robert H. Asst. Baliles, Gen., Richmond, (Gerald Va. L. Va., Richmond, Va., brief), Atty. Gen. of appellee. for WIDENER, HALL and PHIL- Before LIPS, Judges. Circuit WIDENER, Judge: Circuit Lloyd Turner In December 1979 Willie Northampton by jury Coun- was tried guilty capital found ty, Virginia and § 19.2- murder.1 Pursuant to Va.Code 264.4, Turner to death. sentenced unsuccessfully appealed his convic- Virginia Supreme tion and sentence Commonwealth, 221 Va. Court. Turner (1980). The United 273 S.E.2d Northampton Southampton County, granted Coun- and he was tried in indicted in 1. Turner was ty. change Virginia. of venue was A motion for a peti- Supreme Court denied Turner’s then told Smith to turn the States alarm off and 1011, keep filling bags jewelry. tion for a writ certiorari. 68 L.Ed.2d Turner soon became concerned that other police officers would respond to the alarm. petition filed Turner then a writ pistol He then fired a shot into the back court of corpus habeas circuit South- Officer store. Bain tried to assure County, Virginia. petition ampton That policemen no other be Virginia Supreme was denied. Court answering the alarm. Without warn- denial. The United affirmed that States ing provocation, and no with Turner then again once denied Turner’s Court owner, Smith, shot store the head. The petition a writ of certiorari. 462 U.S. for shot in the head not kill did Smith. It 2465, 1112, S.Ct. 77 L.Ed.2d 1341 103 passed through scalp, apparently but (1983). through the skull. bleeding It caused sought in the Turner next relief federal coverings on the of the brain and bruised 1983, 27, July he peti- courts. On filed a slumped brain’s surface. Smith and corpus tion for a writ of habeas helplessly then fell to the floor. Officer United District for States the East- pleaded Bain any- with Turner not to shoot Virginia, ern raising District numerous else, one any- and offered to take Turner petition constitutional issues.2 That was go. where he wanted to Turner then 20, March petition amended on 1984. The stated he “going was to kill ... initially May was denied on and a snitching on He then [Smith] [him].” motion alter judgment or amend that Smith, shot help- who was still living, then 19, July was denied 1984. The district less “gurgling,” twice the chest. cause, probable court issued certificate of One of these shots lungs, was in the one in allowing appeal thus Turner to the denial the heart. Officer was Bain then able corpus of habeas relief. This denial serves disarm and subdue Turner. Smith died present appeal.3 the basis We wounds his chest. affirm. summary A facts leading brief I necessary conviction for an We turn now to the several issues raised understanding presented. of the issues On First, appeal. Turner contends that the 1978, July 12, Turner entered Smith Jewel- district in upholding court erred the trial Franklin, ers in Virginia, armed awith permit court’s refusal to examination of the shotgun, sawed-off and demanded that the concerning on voir dire preju- racial give money store W. Jack him owner Smith dice. He contends that because is black A jewelry. employee store and a cus- and the murder victim was white the trial present tomer were also store at the questioned have jurors should about time. during Another customer entered prejudice, existence racial and that the robbery. Smith set off store’s si- rights constitutional ato fair trial were alarm, momentarily lent police officer by violated court’s refusal.4 A.D. Bain arrived on scene and in- quired about the activation of the alarm. A criminal defendant such as the pistol Bain’s was taken Turner. Turner here defendant has a right constitutional defendant, Turner, 2. Turner has exhausted his state Lloyd remedies as Willie is a mem- 509, required Lundy, victim, Rose v. 455 Negro U.S. ber of the race. The W. Jack 1198, (1982). S.Ct. L.Ed.2d Smith, Jr., was a white Caucasian. Will those prejudice you against Lloyd facts Willie Turn- September 3. Turner's execution date set for your ability er or affect to render a fair and 19, 1984, August 1984. On this court entered- impartial solely verdict based on the evi- stay pending further order of this court. dence? requested jurors Turner’s counsel that the 4. following: asked the special present Amend- factors in Ham. “The cir- and Fourteenth the Sixth under by an suggest significant to be tried cumstances did not to the Constitution ments Louisiana, 391 jury. Duncan v. impartial prejudice might likelihood that racial infect L.Ed.2d 491 trial.” 424 Ross’ U.S. at 96 S.Ct. at defendant, (1968). This does not entitle Thus, prejudice voir dire on racial however, voir dire jurors examine constitutionally mandated. may prejudice every matter about Turner contends that his case involves But, where against the defendant. juror special requiring circumstances voir dire on exist, a criminal de- special charged prejudice racial because he is right may a constitutional have fendant in and of capital murder and that itself is a preju- questioned on racial veniremen special circumstance. He also contends Ross, dice. Ristaino that defendants who murder whites are 1017, 47 L.Ed.2d 258 likely more to be sentenced to death and special found such Supreme Court special circumstance is therefore a created Carolina, in Ham v. South by this likelihood. 524, 848, 46 35 L.Ed.2d U.S. 93 S.Ct. 409 reject We both contentions. Ham, man, (1973). a was convicted black special must exist circum There some possession of court of in a South Carolina surrounding particular stance in the facts trial was that marijuana. His defense at is case before such voir dire constitutional enforcement offi- framed law he was required. opinion ly We that the rights activities. of his civil cials because punishment of the crime or itself is nature throughout the communi- was known Ham special circumstance. Nor is the fact not rights The trial court his civil work. ty for the victim is white and the possi- that question jurors about refused to defendant black, specifically so held. prejudice against Ham. as Ristaino We racial ble process opinion due violation the fact that a found a are also Court interrogate jur- failure to larger percentage trial court’s of white victims’ assail of racial on the issue bias. ors ants are executed than are other races is special “There no not a circumstance. Ham, years its decision Three after presumption juror bias for constitutional per create a Supreme Court refused to particular against any racial members preju- dire on racial requiring se rule voir infra, groups.” Rosales-Lopez, or ethnic is of a case where the defendant dice 190, at 101 S.Ct. at 1635. U.S. race from the victim. Ristaino different male, Ross, Ross, was tried supra. black pronouncement An even more recent armed Massachusetts court for rob- in a involving a Mexi- from the dangerous battery with a bery, assault “[o]nly when can defendant confirms battery weapon assault and are more indications there substantial [than The victim was a to commit murder. intent and the defendant of a victim of one race rejected security guard. The Court white any particular another or a defendant of appeals’ that such voir court of decision or ethnic of the likelihood of racial race] required the case should be because dire affecting jurors particu- in a prejudice by a a violent crime committed involved denial of a case does the trial court’s lar against security guard. Such a white black request juror’s to examine defendant’s said, interpreted holding, Ham the Court subject ability impartially with the to deal spe- broadly. represented a fact too Ham dis- abuse of amount to an unconstitutional racial issues were situation which cific States, Rosales-Lopez cretion.” v. United up with the conduct of “inextricably bound 1629, 1635, 451 U.S. S.Ct. Ristaino, supra, the trial.” L.Ed.2d 22 597, concluded at 1021. The Court 96 S.Ct. must inquiry in each case The broad victim was mere fact that circum all of the “... whether under less be white and the defendant was black a constitution- presented there was stances distort the trial than were likely to that, ques- Well, significant Cypress: likelihood absent Mr. I ally can’t see where it helps any. prejudice, jurors tioning racial about [they ‘indifferent as would not be stand] argues Cypress’ responses ” Ristaino, p. 424 U.S. at unsworne.’ do not show that he was irrevocably com- An p. 1021. examination of all 96 S.Ct. at mitted trial against before to vote presented here does of the circumstances penalty. particular, death In Turner chal- constitutionally indicate there was a lenges interpretation court’s question- likelihood that absent significant Cypress’ response that he did not see that prejudice jurors ing about racial would helped any queried it when about whether indifferent as stood unsworn. impose he could penalty. death concedes, nothing spe- As Turner there is Illinois, Witherspoon 391 U.S. surrounding cial in the facts this case to (1968), 20 L.Ed.2d 776 antagonism. suggest being racial That Texas, again in Adams v. true, the trial court did not commit consti- (1980), 65 L.Ed.2d 581 the Court by refusing jurors error to ask the tutional may held that the State strike for cause question copied footnote 4 in the jurors opposition whose penal- to the death margin. ty prevent considering them from all penalties provided by state law. That opposition must be such as juror to lead the II ignore to either the law or violate his oath Turner next contends that the exclusion juror. juror as a The fact that may be juror Cypress Samuel for cause violated opposed penalty pro- death does not and Fourteenth Sixth Amendment grounds vide to strike him for cause as rights. Cypress was struck for cause over long as imposition he could consider objections following defense after the collo- penalty death in an appropriate case. quy: case, In this the state judge, trial Now, Cypress, you Mr. do have reli- after questioning Cypress observing gious scruples objec- or conscientious or demeanor, determined that cause exist against imposition tions of the death jury panel. ed to strike him from the The penalty? district court refused to disturb the trial Well, Cypress: really, Mr. go I don’t judge’s findings, agree. and we penalty. the death § 2254(d), Under 28 U.S.C. factual find- you say yes The Court: Can or no to that ings such as those of a state trial court5 question? presumed to be correct in a habeas Cypress: Mr. No. corpus unless, in action federal court yes? The Court: Or among things here, applicable other not I Cypress: any objection? Mr. Do those determinations are fairly sup- ported by the record. ap- That standard The Court: Yes. plies to our Cypress’ quali- consideration of Cypress: Mr. Yes. fication to jury. serve In Patton v. your objection The Is Court: to the death — Yount, —, U.S. penalty absolute? (1984), L.Ed.2d 847 a case involving the Well, Cypress: Mr. I say yes. partiality juror, of a much ques- the same you proper The Court: Could case here, presented tion as that the Court de- impose penalty? the death that, review, cided corpus on habeas when Cypress: Mr. Didn’t hear. question juror was whether or not a you The proper Court: Could in a case opinion, presumption could set aside an impose 2254(d) penalty? the death applied, “special and that def- finding specifically p. 5. The trial court's was af- at S.E.2d 43. by Virginia Supreme firmed Court. 273 given finding gument right erence” should be his constitutional to an impartial The Court held that the the trial court. was violated because death properly was seated de- juror question qualified jury is claimed to biased answers, ambiguous much spite some prosecution. favor was re- Keeten expected in- “Jurors thus cannot be here. cently reaffirmed this court in Briley v. variably express carefully themselves Booker, (1984). Every consistently. judge

even trial under- this, it system and under our is that stands IV who is situated judge best to determine Turner claims error in the district at—, competency impartially.” to serve an court’s denial of evidentiary hearing on S.Ct. at 2893. his claim that he was denied effective as question must we address therefore sistance of at penalty phase counsel support is whether there is fair his trial. He does claim ineffective record for the trial court’s conclusion that stage assistance at the of the trial ascer opposition to Cypress’ penalty the death taining guilt or innocence. The district absolute. We hold record found that Turner’s trial not a supports Cypress that conclusion. stated case which present counsel had failed to imposition opposed death any evidence, only marginal evidence of penalty. Following questioning, further value, and concluded that Turner’s attor Cypress opposition said that this was abso- neys presented had psycho evidence of his response lute. While his trial logical history and mental at the state time question may last judge’s ambig- have been murder, which are in mitiga matters uous, ambiguity such has resolved been specifically tion included in Code judge trial whose “... resolution § 19.2-264.4. It concluded that counsel entitled, questions such even direct complied had with the standard set out in at—, appeal, special deference.” Maryland, (4th Marzullo v. 561 F.2d 540 judge S.Ct. trial asked the Cir.1977), cert. den. 435 questions required proper by Witherspoon 1885, (1978), 56 394 L.Ed.2d and that no in position and Adams. He was the best to evidentiary hearing required. was We Cypress’ observe demeanor and intonation agree. during voir dire. We refuse to disturb his Cypress’ opposition decision to the petitioner a When habeas penalty death was absolute. which, presents proved, facts if would en We do not construe Keeten Gar relief, him corpus title to habeas a federal rison, 1984), (4th Cir., 742 F.2d 129 to court can receive that at evidence a hear require us a de to make novo review of Sain, 293, ing. 312, Townsend v. 372 U.S. qualification Cypress’ jury, to serve on the (1963). 83 S.Ct. L.Ed.2d An Rather, argues. Turner think as we it is evidentiary hearing in a habeas federal cor But, assuming consistent with Patton. ar pus proceeding required only is if the habe Keeten, guendo Turner’s construction of petitioner establishes one or more of the holding our would be the same. trial 2254(d) enumerated of criteria 28 U.S.C. concluded, reasonably could judge have af Townsend, 312-318, supra, inor at 83 S.Ct. considering in Cypress’ responses ter toto Martin, 756-759. at Shaw 733 F.2d 304 imposition that he could not consider of the (4th Cir.1984). Where a state court has penalty circumstance, the proper in death of decided the merits a claim made no but finding supported by and we think his is fact, express findings of the district court record. the may findings be able to reconstruct those hearing a hearing. without Of course no is

III required alleged by petition if the facts the brief, As Turner his — U.S.—, Washington, of facts included the fact that oral which Strickland —, prof-

argument petitioner's attorneys had 80 L.Ed.2d attorneys (1984) defense had . It fered that the not that standard that psychiatrist than attorneys consulted other Dr. to be measured. attorneys Bransfield and that defense So, attorneys’ ac examine the we capital not adequately had researched mur- testi respect psychiatric with to the tions regard- jurisdictions in other der statutes with, mony. begin they To moved ing application and definition employ permitted that to a court be Virginia mitigating factors set forth § Turner. private psychiatrist examine finding, latter Code 19.2-264.4B. This appointed certain Dr. The court instead a however, here in does not concern us view Jr., Daughtrey, general practitioner, a W.F. appeal of the the trial and this course and evaluate Turner and to to examine Court denied taken. The writing report a to the court and make petition appeal a for from the trial court’s ef in accordance then petition attorneys with corpus dismissal of the habeas on Virginia. of the it relied fective 19.2-169 Code of January that order in his Daughtrey reported opinion Dr. family witnesses, Officer Bain. The mentally competent to stand course, Turner was good things had to say about Turn however, Being opinion, trial. that more er, how good family he was to his and had examination, extensive evaluation and ob- a very disadvantaged had childhood. His desirable, was then servation the court testified, mother also in corroboration of Hospi- committed Turner Central State Bransfield, Dr. that at or about time of tal, hospital, a mental for additional exami- shooting she had had to call the local nation, and evaluation observation. The police about an incident at home and that hospital was report ordered to to the court police she had told the that Turner needed attorneys, and to the which it did. While treatment for his mind. She said that he .there, psy- psychiatric, underwent been a had in daze and that she was afraid chological sociological and evaluation might that he hurt somebody they if would report the staff. The from Central State push him. Dr. Bransfield had testified that Hospital was that Turner suffered from if Turner believed he was cornered he personality per- disorders and anti-social might react a way violent and he felt sonality, each mild. It recommended that if Turner had had treatment at the disposition he be to the for returned shooting time of the that Smith would not charges. pending Turner’s attor- have been killed. however, neys persisted, need- that Turner examination, ed further and the court or- Bransfield, all, Dr. quite all a was attorneys permitted dered that the good gist witness Turner. The of his Bransfield, employ Dr. Bransfield.6 af- Dr. testimony is contained one his an- psy- ter examination of Turner and after swers cross-examination: Sacks, chological testing by Dr. Erwin F. “He psychotic symptoms had which were associates, PhD one of Dr. Bransfield’s present for at least three weeks before long report submitted and detailed July day murder], 12th I [the competent effect that Turner was to stand could symptoms list what those are. trial. While Dr. Bransfield did feel They seemed to influence I his behavior. schizophrenia, that Turner had he was prove could not was no evidence —there opinion psychiatrists diag- few that I shooting could show that his Mr. having nose Turner as schizophrenia. latent Smith fully completely psy- He opinion also was of that Turner in times act; however, chotic I do feel that he was might display paranoid stress tendencies by psychotic problems but affected paranoid that Turner had not which im- shown psychosis. thought paired perform He also that Turner ability his in a rational personality had an anti-social had, symptoms manner and the I impulse under an irresistible at the time of could list.” the murder. Earlier, the conclusion of Dr. Bransfield’s sentencing phase, At the Turner called direct examination was as follows: psychiatrists one of the had who examined Q you opinion ... have an [D]o Bransfield, him, mother, as Dr. well certainty medical reasonable as to wheth- and his aunt. He cousin also called er this crime while was committed Willie police Officer Bain and the chief. The offi Turner was under the of influence ex- obviously prove cers were called treme mental or emotional disturbance? ¡Turner placed in position a was of stress A, Yes, I qpinion. do an upon finding out that the silent alarm had upon appearance off Q been set and the of opinion, And what is that sir? psychi- probable 6. We that the note orders for the various ascertain and a cause decide whether atric of Turner were entered grand jury. examinations be to a defendant will cuit bound Cir- the General District Court before Turner was general juris- are the courts Courts trial Virginia, indicted. In the General District Court diction. things jurisdiction in the usual course has testify, psychiatrist influ- one so advised was under the I feel he A That he was the court in the record. Dr. Bransfield’s while of mental disturbance ence testimony good as it could have was as committing the crime. attorneys, in han- been. We think Turner’s testimony Thus, tended Bransfield’s Dr. defense, psychiatric profes- a dling the did may tend to the facts which one of to show every sional in sense of the word. specifically mitigation mentioned show jobj' They good had a who testified witness statute, influence of ex- “the Virginia favorably Turner’s as could have behalf disturbance,” or emotional treme mental of the wanted. Their examination been upon another like statuto- touched and also conducted in a skillful and witness was factor, capacity the defendant to “the ry knowledgeable are thus of manner. We criminality of his conduct or appreciate the performance in Turner’s opinion that their requirements to the conform conduct prevailing reasonable under behalf was 19.2-264.4. law.” See Va.Code present re- professional norms. Turner’s testimony, it is of Dr. Bransfield’s view possible liance on other theories defense petitions in both that the contention seen afterthoughts, we nothing are more than attorneys corpus, for habeas think, play brought into after best de- develop present adequately and “failed to fense, that of direct evidence the direct sup- sufficient to psychiatric evidence involved, question had been tried but found presence mitigating finding a of the port attorneys. wanting through no fault of the abnormalities,” little than better mental of mind and question of Turner’s state for the The evidence was there frivolous. responsibility for his acts degree of his jury simply chose jury to consider. shooting purely a at the time of upon mitigat- its not to found verdict By jury sim- jury question. its verdict ing circumstance. mitigating ply found that the factors were appeal is that The claim now made on insufficient, entirely a matter within its attorneys “the “mishandl[ed]” can laid province. No fault kind testimony mitigating evi- psychiatric attorneys for this result.7 “essentially product which was dence” ignorance.” goes The claim that the attor- V implica- diagnostic neys “did know challenges the use of the vileness potential dangers from cross tions or being in this case as violative of diagnosis of a of anti-social criterion examination rights Eighth and Fourteenth they “had not discussed with under personality;” definitions of the miti- Amendments to Constitution. Dr. Bransfield the gating aggravating penalty law the death Under comment;” expected he would be which imposed upon a defendant if the may be acquire degree exper- and “did not beyond finds doubt that reasonable psychiatric necessary matters to ful- tise probability upon “there is a based evidence psychiatric ly develop the defense.” or of prior history of the defendant surrounding the commis- charges. The at- the circumstances The record belies of the offense of which is accused torneys caused three examinations of sion had Turner, would commit criminal acts of vio- preliminary examination that he continuing lence that would constitute practitioner by psychiatric two general society; dangerous- serious threat to experts. are not told what While we [the or that his conduct com- implications potential dan- ness diagnostic or criterion] outrageously mitting diagnosis of a the offense gers from cross examination horrible, inhuman, vile, wantonly personality, attorneys of an anti-social torture, depravity of mind or obviously prepared more than it involved to have were Harris, (4th Cir.1983), attorneys 719 F.2d affirm- respect v. ing With to the claim that (E.D.N.C.1982), F.Supp. psychi- 451 and we do shopped 540 around for another should have atrist, any validity ground claim has here. not think the we have excluded Barfield

351 (the aggravated battery to the victim” vile- ness criterion was sufficient. Briley pp. at § criterion) (em- ness Va.Code 19.2-264.4C 165-166. Because we cannot be sure which added). phasis upon jury factor the relied in awarding the case, death sentence this we consider Virginia Supreme con- Court has on attacks the vileness criterion.10 § component of 19.2- strued the vileness dis- separate to include three and 264.4C Turner does attack the consti features, torture, being depravi- tinct those tutionality this aggravating of factor on its ty battery. aggravated of mind or Proof face, disposed as issue been has of in only of one of these factors sufficient to 153, Gregg Georgia, v. 96 S.Ct. support a of sentence death. Bunch v. (1976). Instead, 49 L.Ed.2d 859 he Commonwealth, 225 304 Va. constitutionality applied attacks its to (1983). importantly, Even S.E.2d 271 more him, relying upon Godfrey Georgia, 446 given limiting has Virginia Court also 64 L.Ed.2d 398 components to of vile- construction two (1980) (plurality opinion). Depravity ness criterion. of mind has been In Godfrey Supreme Court reversed “a of degree construed to mean moral tur- imposition of the death penalty in a pitude physical surpassing and debasement capital murder case because Georgia ordinary that inherent in of the definition vileness criterion was unconstitutionally legal premeditation.” Aggrava- malice and applied to the defendant. Godfrey had battery battery qualitative- ted is “a which having problems been marital with his ly culpable wife quantitatively and is more than years. history He had a drinking necessary accomplish the minimum an problem Commonwealth, and violent behavior act of murder.” toward his Smith v. Godfrey’s wife. had 219 Va. S.E.2d wife left him and had filed attempts suit for His divorce. at rec- given The jury here was a verdict onciliation Godfrey were rebuffed. Mrs. setting statutory form aggravat out both mother, moved in Godfrey with her who vileness) ing (dangerousness factors and encouraged separation. felt conjunctive connected “and/or”. evening One immediately arguing after jury unanimously imposed a sentence telephone, with his over death,8 returning Godfrey wife the verdict form with shotgun took his and walked striking way out or a short either “and” the “or”.9 Thus, his Bass, peered mother-in-law’s home. He Briley this case differs from (4th Cir.1984), through wife, jury the window and saw his his F.2d where the year unanimously daughter, struck “or” old and the word and his mother-in- There, aggravating immediately law. He found both factors. shot his wife in the forehead, killing the court did not need to consider a instantly. similar her He then constitutional attack the vileness criteri entered the trailer and injured struck and dangerous- daughter. 19.2-264.4Cbecause the his He then fired one shot at jury having 8. The verdict read as follows: mitiga- considered the evidence in offense, "We, unanimously pun- tion Jury, joined, having fix his on the issue guilty Capital ishment at death.” found defendant Murder Jr., Smith, as'charged Jack of W. the Indict- that, agree ment, 9. We with the having found practice past that the would after consideration criminal record better the trial probability aggravating is a com- poll that there mit that would as to which Turner, supra, con- criminal acts violence factor found. 273 S.E.2d at continuing society, stitute serious threat to 45 n. 12. and/or committing out- his conduct rageously the offense is challenge dangerousness 10. Turner does not vile, wantonly horrible inhu- ample criterion. There is evidence torture, depravity man in that it involved Turner, supra, support record to such a verdict. mind; aggravated battery be- victim 273 S.E.2d 44 n. 11 273 S.E.2d at 45. necessary accomplish yond the minimum murder, act Thus, present. gravated battery head the

mother-in-law, hitting her in the immediately instantly. Godfrey limiting murders within killing her did not fit the crite- police, surrendered and confess- Georgia Supreme the out called ria set the Court. 424-426, to the murders. ed in Godfrey The Court held that the 1763-1764. vile, phrase “outrageously wantonly or hor- guilty found of two counts Godfrey was or in and itself had not rible inhuman” aggravated one count of murder and given constitutional construction been sentenced to death under He was assault. Georgia Supreme The Court Court. providing aggravating Georgia’s statute petitioner’s concluded that crimes “[t]he the offense was “outra- cannot be said to reflected con- vile, or wantonly or horrible inhu- geously materially ‘depraved’ sciousness more than torture, depravity of in that involved man it guilty any person that of of murder. His mind, battery to the vic- aggravated or an instantaneously. They were killed victims trial, sentencing stage of At tim.” his family were members of who were the case prosecutor conceded that did causing him extreme emotional trauma. aggravated battery. or not involve torture Shortly killings, acknowledged after the that “the offense of murder The found responsibility heinous nature of vile, outrageously wantonly or horrible his crimes.” Id. 446 U.S. at 100 S.Ct. Georgia Supreme Court The or inhuman.” at 1767. penal- imposition the death affirmed Supreme appeal, On direct ty- rejected argument Court Supreme reversed. The Court The Court Godfrey required reversal his death sen- sentencing noted that State’s first require It tence. construed statute meaningful “a provide basis scheme must only outrageously vile, wantonly or few in distinguishing the cases which conduct, or horrible inhuman but also that imposed from the penalty] death [the torture, ag- such involve an conduct either it is not.” Id. at many cases in which victim, gravated battery of the or the 1764, quoting Furman 100 S.Ct. at perpetrator’s depravity mind. The Georgia, 408 U.S. found, applying limiting Court then its (White, concurring). 33 L.Ed.2d J. Commonwealth, precedent of Smith given must be clear and The sentencer aggrava- evidence an established applica- in the objective follow standards “ which, ‘battery ted is a battery which penalty. “specific Those tion of death quantitatively, qualitatively is more guidelines enable courts and detailed” necessary culpable than the minimum imposed. rationally review sentence ” accomplish act of murder.’ guidance no The Court found such 149; S.E.2d 273 S.E.2d at 45. Nothing in present Godfrey. words that, events, danger- then found all wantonly vile, or horrible “outrageously ousness had» criterion statute been distinguished this murder inhuman” alone previously met. Turner had been convicted pen- eligible for death from others maiming, escape, unlawful of malicious reached alty. The this conclusion wounding, wounding, and malicious second Georgia reviewing giving case law after murder, degree four of the offenses occur- that re- phrase a limited construction prison. ring validity while he was the offense quired demonstration questioned appeal. finding this is not torture, depravity ag- mind or involved agree analysis by the Vir- We mind gravated battery. Depravity of had ginia Court. The fatal weakness Georgia to mean the state been defined unconstitutionally was the aggravated Godfrey leading of mind to torture or given the vileness crite- Godfrey’s prose- broad construction battery. But in case torture and ág- rion the absence both cution had that no torture conceded 11. This language 19.2-264.4C. is identical to that of Va.Code aggravated battery Georgia the Su- death penalty.” We not do think that God- preme Court. That is requires weakness not frey jury be instructed on present Virginia Supreme here. The Court each aggravating term the circumstanc- given a has limited construction to the vile- es. see why We reason jury no this should applied ness criterion that limited and con- not have understood the terms the in- struction here. given. Francis, structions Cape v. 741 (11th Cir.1984). F.2d 1287

We facts this also note that the ease upon not even similar facts to those The constitutional of Godfrey, flaw the which the Court relied God- Georgia give Court’s failure to a constitu- contrast, frey. In the murder here was criterion, tional construction to the vileness calculated, involving cold-blooded and no present is not Virginia here. The element of emotional trauma as was has limited the breadth of the criterion in present initially in Godfrey. Turner shot application such a manner that its here was Smith for no reason at all. While Smith arbitrary capricious.12 neither nor The lay helpless but alive and while Officer jury properly Nothing instructed. else Bain pleaded, Turner fired two shots into was constitutionally required. stating Smith’s chest after that he was going snitching kill him for on him. No VI comparison can be drawn the between facts deliberating While on the sentence the Godfrey and deliberate malicious imposed, to be the jury returned and asked presented in reject murder this case. We judge imprisonment what life entailed. Turner’s contention that crime was not judge The responded jury must justify imposition so vile as to of death. only consider the two alternatives set out The case fits constitutionally within the instructions, being those death or life limited construction of the criteri- vileness imprisonment. Virginia Supreme established process contends that the due Court, opinion Virginia’s and we are of requires jury that the instructed that death penalty provisions were constitution- prisoner may parole be entitled and that ally applied. parole permitted grant board is pa- subject, On a related we find no only role finding prisoner’s after that the deficiency constitutional in the instructions will release serve his interests and the in- given jury sentencing stage society. terests of the trial. The set the ap instructions out It is settled that such an instruction is propriate mitigating factors of 19.2-264.- permissible under law. Clark 4, jury and also instructed as to Commonwealth, v. supra; Hinton v. Com- limiting aggravated definition of bat monwealth, 492, 219 Va. 247 704 S.E.2d tery expressed in The trial Smith.

judge carefully jury instructed the “[wjhere susceptible Ramos, 992, the evidence is two v. 463 U.S. California interpretations, 3446, (1983), the im one consistent with 77 L.Ed.2d 1171 position penalty, upheld of the death and the other Court as constitutional a California imposition imprisonment, with the of life requiring jury capital law that a in a case you adopt interpretation governor’s power should be instructed imposition which is consistent with commute a sentence of life without 66, Virginia Supreme mind); Commonwealth, consistently Whitley Court has v. 223 Va. applied limiting provisions (1982) v. (aggravated Smith Com- battery); 286 S.E.2d 162 monwealth, supra, in (James) Commonwealth, 563, its review of cases involv- Briley v. 221 Va. ing penalty. death Stockton v. Common- (1980) (aggravated battery 273 S.E.2d 57 124, wealth, (1984) (ag- 227 Va. 314 S.E.2d 371 Commonwealth, mind); depravity of Clark v. mind); gravated battery depravity of Bunch 201, (1979) (depravity 220 Va. 257 S.E.2d 784 423, Commonwealth, v. 225 Va. 304 S.E.2d 271 mind). (1983) (aggravated battery depravity Rosales-Lopez United parole. clear As I read possibility of Court made States, 1629, that while such disclosure constitutional 101 S.Ct. constitutionally re permissible it is not Ross, ly (1981); Ristaino L.Ed.2d refus upheld It also failure or quired. U.S. 96 S.Ct. 47 L.Ed.2d 258 to instruct of the trial court al Carolina, and Ham v. (1976); South a death power to commute governor’s (1973), 35 L.Ed.2d 46 decision, its arriving at sentence. in conjunction, yield following in conclusion is not noted: “[o]ur principles. contrary judgment to override the tended The fact alone that defendant is of a capital sentencing legislatures that of state race than victim is different the crime not a permitted not be in their state should juries process giving to the due circumstance rise power com governor’s to to consider Ristaino, right, at In footnote 30 the mute a sentence.30” 1021, 1022; by S.Ct. at nor is this altered “[mjany state courts Court stated that ‘ charged the nature of the crime or the improper jury held it for to have con Ristaino, punishment possible, see 424 U.S. through argument or to be sider informed — (generally at 596 n. 96 S.Ct. at 1021 n. 8 possibility of commu instruction —of the rejecting per se approach upon based non- at-, tation, pardon Id. parole.” factors case-specific such as violent nature exactly point, not at 3459. While S.Ct. crime). special think Ramos giv- indicates that the Court of But circumstances we decide it is constitutional ing right that while may present rise to the be in a permissible instruct on the ly to “inextricably in racial case which issues are parole, an instruction is not subject such up bound with the conduct of the trial.” constitutionally required. We so hold. Ac Id. (so interpreting at at 1021 Estelle, O’Bryan esp. 714 F.2d cord Ham where right recognized in basis of (5th Cir.1983). against prejudice racial defendant was merits). And, defense raised as on the each the issues

We have considered issues, specific aside from appeal Turner in that trial “more sub- raised and find constitutionally fair indications he had a trial. stantial race differences [than of the likelihood of racial or ethnic alone] stay of the state court’s order to Our prejudice affecting particu- in jurors a hereby impose its sentence is dissolved. may trigger right. lar case” Rosales- judgment of the district court is Lopez, 451 U.S. at 101 S.Ct. at 1635 AFFIRMED. (dicta: in apply- constitutional test stated ing supervisory broader rule for federal PHILLIPS, Circuit JAMES DICKSON Ristaino, also courts); see Judge, specially concurring: (constitutional right might at 1022 judgment I in and in all of the concur only from trial specific arise not issues but except part opinion dealing that comparable sig- from “racial factors ... in process refusing due denial to claim of nificance”). prospective jurors possi- about the question majority opinion, I read But as it point bility racial that I bias. On believe restrictively reads these decisions more in opinion majority puts too a restrictive only holding “special reading may on the circumstances that en- particular surrounding the facts trial” defendant, as a a criminal matter of title right, and that invoke constitutional to process, prospective jurors so due larger percentage “the fact that a white I questioned. But because further believe may assailants are executed” victims’ giving the circumstances rise If special be this such circumstance. were not here under a right demonstrated Ham- only when saying is majority application principle, I proper concur up in the type issues are bound pro- racial the court’s that no due conclusion pro- criminal can the due merits of a trial cess denial established. arise, agree. killing I right cannot Obvious- blacks receiving cess whites the death correct, ly, compared if were it would follow that this sentence to 1.3% whites likely juror atti- solely killing factors related whites and killing blacks 0.60% independent specific tudes issues blacks. white No had received the death particular including statistical dem- penalty killing Virgin- a black under case— of jury propensities onstrations al- capital punishment ia’s 1977 statute. —would ways irrelevant. evidence, general This whatever its statisti-

But, indicated, reliability cal as a of community I do not read the au- measure expanses attitudes over the wide thoritative Court decisions limit of area covered, I time right -type simply Ham situations. be- too diffused only specific depiction likely lieve racial issues in community, its hence particular case juror, but demonstrated like- particular attitudes this case affecting prejudice lihood of racial right. invoke the But I prepared am not “particular” jury, irrespective specific hold, of as I think the majority opinion, im- issues, may right. invoke the constitutional likelihood, plies, requisite hence prepared flatly And I would not be to rule process right, due can never be shown means, others, among possible out as of by statistically particular sound evidence demonstrating such a likelihood scientifical- community attitudes as reflected in suffi- ly sound statistical evidence related com- ciently contemporary jury verdicts in com- munity jury per- as reflected in attitudes parable situations. samples compara-

formance sufficient

ble cases. propensi-

But to demonstrate that such a

ty sufficiently likely “par- afflict the ease, given

ticular” I think the

evidence offered —whatever its source and be much more

content —would fo- geographical cussed in time and terms America, Appellee, UNITED STATES upon very community from which particular jury venire drawn than was v. the evidence here advanced Turner. HAWKES, Appellant. David Thomas only That evidence consisted of the follow- ing: America, Appellee, UNITED STATES (1) study by A Bowers and Pierce of post-Furman Georgia data collected Sylvia HAWKES, Appellant. Ines through Georgia, December 1977 from

Florida, Texas, Ohio, Alabama and which 84-5125(L), Nos. 84-5126. killing revealed that of blacks 14.59% Appeals, United States Court of penalty, whites received the death com- Fourth Circuit. whites, pared killing 2.66% whites blacks, killing blacks 0.54% 0.50% Argued Nov. 1984. blacks; killing of whites Decided Jan. (2) study by a 1983 Gross and Mauro Oklahoma, through of data from Carolina, Mississippi, Virginia

North data

Arkansas. focused homicides, out of

19 cases 1389 criminal being

these eases chosen to control for degree atrocity

attitudes about the

involved the homicide. The statistical

analysis Virginia data showed 8.2% notes this court’s er assumed to be true are insufficient opinion precludes support recent in Keeten his ar- a claim. to Richardson, 759, McMann v. Turner confínes himself whol- appeal, On 1441, (1970), attorneys' treatment of L.Ed.2d 763 and Mar- ly to the defense penalty zullo, the supra. evidence at the psychological Court of trial, if stage of we include side certiorari. 462 States denied United attorneys produce 2465, claim did 1112, 77 L.Ed.2d 1341 necessary corroborating to “the evidence mitigating psychological or make credible Next, applied Turner for federal habeas in prop- this place To contention defense.” corpus relief in the district court of the claim perspective, a brief review er Virginia at Eastern District of in the case conviction, Following order. petition, allegations quot- hand. his prosecute counsel to employed other he petition above in the state ed from attorneys are the same who appeal. These That copied court were in haec verba. repre- They the case. presently The first petition was likewise dismissed. May least since sented Turner any made in time mention was ever brief in the Su- filing of Turner’s date any missing re- this case of witness with appeal preme Court case, phase spect sentencing of the conviction. the criminal psychiatrist, failure consult another or Turner’s convic- Following affirmance of respect failure with other tion, corpus in petition for habeas filed evidence, psychiatric treatment of the court. So far as concerns us the state 2,1984 July made on when motion was here, only pertinent there contention judgment district alter amend the of the develop made that “counsel failed to court. At that time it was claimed that the present adequately psychiatric evi- attorneys Turn- defense should have called finding support dence sufficient sister, younger uncle, peo- er’s and two mitigating presence mental abnormali- willing ple say who were petition was dismissed and no ties.” That opening shop to back Turner a barber explanation elucidation or written Also, prison. after release from brought ever to the atten- contention was explain seeking then filed his affidavit prior to its order of tion the trial surrounding his earlier petition. February dismissing crimes, together some cor- documents April 6, however, Turner’s attor- On roborating ca- good incidents in his some giv- neys paper with trial court filed a imprisoned. reer while facts, ing their statement version per- proper attorney “The measure place including hearing. took at the what simply did formance remains reasonableness The Commonwealth likewise. On June prevailing professional norms.” judge signed trial a statement under

Case Details

Case Name: Willie Lloyd Turner v. Gary Bass, Superintendent

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jan 25, 1985

Citation: 753 F.2d 342

Docket Number: 84-4004

Court Abbreviation: 4th Cir.