Opinion
3:87cv184-V
December 3, 1996
MEMORANDUM AND RECOMMENDATION
THIS MATTER is before the court upon petitioner's Motion for Summary Judgment and respondent's Motion for Summary Judgment. Having considered those motions carefully, conducted an evidentiary hearing, and reviewed the pleadings, including the extensive record of proceedings in the state court, the undersigned enters the following findings, conclusions, and recommendations.
FINDINGS AND CONCLUSIONS
I. Facts Developed At Trial
The evidence presented in the December 1980 trial of this matter revealed that on or about August 25, 1980, Shelly Diane Chalflinch, 26, and her nine-year-old daughter, Christina, were stabbed to death in their apartment at the Married Quarters Apartments in Pinehurst, North Carolina. The bodies were mutilated sadistically by petitioner.
During an autopsy conducted by the state medical examiner in Chapel Hill on Tuesday, August 26, 1980, a ring, which was quickly identified as being identical to one constantly worn by petitioner, was found under Ms. Chalflinch's live examination by the medical examiner of the body of Ms. Chalflinch revealed approximately 100 stab and cut wounds, at least 20 of which were in the facial area, 12 in the neck area, and 16 on the right arm which appeared to be defensive in nature In addition to the numerous wounds to the chest and shoulder area, a large, gaping cut extended down the left leg from buttock to ankle, and a V-shaped, penetrating stab wound in the vaginal and rectal area created a virtual hole in the body. The pathologist who performed the autopsy testified, "I could place my own hand and arm through the wound in her genital area up to the area where the ring was." The ring was silver in color and had a large rectangular surface with a heraldic pattern consisting of two animals on each side, two shields, and a crown on top. As the state court found, and as exhibits submitted by the state in this proceeding indicate, Ms. Chalflinch's body had been mutilated beyond recognition, and several feet of her intestines protruded from a large wound to her abdomen. He further testified that given the condition of the body and the temperature of the Chaiflinch apartment, death could have occurred on Monday night, 25 August."
Christina's body also bore multiple stab wounds, and a brown electrical cord had been wrapped around her neck. An autopsy performed on the body of Christina revealed multiple stab wounds, slashes, puncture marks, and extensive mutilation of the genital area, with a portion of the tissue removed. The head had a large number of stab wounds, one of which extended through the brain from right to left. Four wounds in the chest area penetrated into the tissues of the chest and abdomen. Seven of the multiple stab wounds in the abdominal region penetrated internal organs. The pathologist opined that Christina died as a result of multiple stab wounds to the head, chest and abdomen.
After the remains of the victims were removed from the apartment and other evidence gathered, the apartment was secured and remained padlocked until the time of trial. Sergeant Don Davis of the Pinehurst Police Department was placed in charge of the investigation and kept the only key to the apartment.
As was testified at the evidentiary hearing, securing a crime scene until the time of trial is atypical, inasmuch as the landlord usually wants to regain possession of the premises as soon as possible to defray financial loss.
Police officers who entered the apartment saw blood on the floors and walls. Pieces of flesh were scattered throughout the living area of the apartment. Small pieces of furniture had been overturned, and several chairs were broken. A latent palm print of petitioner's was found on a bloody portion of the wall directly above where Ms. Chalflinch had been murdered. A latent trail of blood matching that of the victims was discovered leading from the Chalflinch apartment to petitioner's apartment at the other side of the apartment building. State investigators also discovered a bloody knife blade, broken at both ends, with the inscription "R. H. Forschner." That blade was from a rare, imported, professional chefs knife, identical to those owned by petitioner and used by him in his work as a cook at the Pinehurst Hotel.
On Thursday, August 28, 1980, SBI Agent Wade Anders obtained permission from the petitioner to search his apartment at the Married Quarters complex. Petitioner signed a consent-tosearch form after the document was read to him and after he talked with a friend about said form. The apartment was searched in petitioner's presence. Items seized during the search included the tool box in which petitioner kept knives bearing the inscription "R. H. Forschner" on the blades. Forensic tests revealed bloody prints, resembling bare feet, in the victims' apartment, on the stairs leading to petitioner's apartment, and in petitioner's apartment.
The whereabouts of petitioner on the night of Sunday, August 24, and the early morning hours of Monday, August 25, are well documented. Petitioner was the disc jockey at a party on Sunday evening, August 24, 1980. He drank alcoholic beverages throughout the evening and took at least five "Black Beauties," an amphetamine. It is undisputed that petitioner was wearing his ring during the party. At approximately 11:30 p.m., petitioner and a group left the party and went to a nightclub known as the Crash Landing. Patrol officers of the Southern Pines Police Department observed petitioner walking on the highway near the Crash Landing at approximately 2:10 a.m. on Monday, August 25, 1980. He was staggering, carrying his shoes, and barefooted. The officers gave him a ride to the kitchen entrance of the Pinehurst Hotel, leaving him there at approximately 2:45 a.m.
Petitioner's coworker testified that she saw the ring in question on Saturday, August 23, 1980, but that when she saw petitioner at work the following Monday at approximately 7:00 a.m., he had two band-aids on his left hand in the thumb area, and she did not observe the ring at that time. Petitioner was in pain and told her that he had cut his hand. Several of petitioner's friends testified that the ring found in Ms. Chalflinch's body was the ring normally worn by petitioner.
Evidence presented on behalf of petitioner at trial tended to show that the night-shift supervisor at the Pinehurst Hotel saw petitioner in the hotel's front office between 2:30 and 3:00 a.m. on Monday, August 25, 1980, and that he left the front of the hotel at approximately 3:00 a.m. A coworker and friend of petitioner's testified that petitioner had been in the Chalflinch apartment before August 25, 1980. Two residents of the Married Quarters testified that they had been at home on the night of Sunday, August 24, and had not heard anything unusual. According to the evidence presented at trial, Ms. Chalflinch was last seen alive at around 12:30 or 1:00 am. on Monday, August 25, heading toward the complex laundry.
Becky Mills, a nurse at nearby Moore Memorial Hospital, testified that she first saw petitioner at approximately 11:00 p.m. on August 25, 1980, at which time he was recovering from surgery resulting from cut tendons on his left hand and had a cast on his left arm. He left the hospital at approximately 4:10 a.m. on Tuesday, August 26.
Gaston Yarborough and Raymond Pate, employees of the hotel, testified that they passed by the Married Quarters on their way home from work on Monday, August 25. They left work at approximately 11:00 p.m. They heard a lady hollering from the direction of the Married Quarters and a banging noise. Yarborough drove by the Married Quarters and saw that lights were on only in the end apartment on the corner. Pate testified that he did not see Ms. Chalflinch's car in the parking lot when he went to work at approximately 2:30 p.m. on Tuesday, August 26, 1980. At 11:00 p.m., as he was walking to his truck to leave work, he heard noises from the direction of the Married Quarters. He heard a young girl's voice say, "Leave her alone, leave her alone." He then drove by the Quarters. He saw lights on only in the apartment in the right-hand corner. He looked up toward the lighted apartment and saw a white male with sandy blonde hair jump from the balcony. Pate told the police about this incident on Wednesday, August 27. He saw the person again on the following weekend and followed him into the hotel, but lost him. He reported this to the police the same day, but they never inquired about it further until the Sunday prior to trial. On cross-examination, Pate testified that the person jumped off the balcony outside of apartment 12, not apartment 9 where the Chalflinches resided, which is located at the opposite end of the apartment building, and that he saw no one near apartments 9 and 10.
II. Testimony Developed at the Evidentiary Hearing
While it appears that the time limitations created by the Antiterrorism and Effective Death Penalty Act of 1996 do not apply to this particular civil action, see infra, a transcript of the three-day evidentiary hearing could not be prepared in time for rendering a prompt recommendation as is suggested by the Act. The undersigned has, however, directed by separate Order that a transcript be expeditiously prepared at government expense to aid the parties and reviewing courts in subsequent proceedings. The following summary of testimony is, therefore, drawn from the notes and recollection of the court.
A. Clarence Harding
Mr. Harding testified at the hearing that he lived in the apartment which was located at the base of the stairs leading to the Chalflinches's apartment. He was familiar with Ms. Chalflinch because they worked together in the same shop on the Pinehurst property. Mr. Harding stated that he saw Ms. Chalflinch between 12 midnight and 1 a.m. on Monday, August 25, 1980, and that they spoke for 15 to 20 minutes. He testified that she had parked her car in front of his apartment because another car was in the place where she usually parked. He recalled that Ms. Chalflinch stated that she had to do laundry and go to bed and that she later came down with a laundry basket. He further stated that Ms. Chalflinch did not show up for work on Monday and that her car had been moved during the night. Concerned for Ms. Chalflinch, he stated that he went to her apartment during lunch on Monday, saw a broken window, but did not notice anything unusual about the door.
After the crimes, but before trial, Mr. Harding moved to Columbus, Georgia, for health reasons. He stated that he was flown to Charlotte for the trial in December, picked up at the airport by two officers, sequestered in a hotel, testified, and flown back home. He testified that while at the hotel, he was approached by two attorneys for petitioner, but that he was told by the district attorney not to talk with them. Once he was found by defense counsel, he stated, the district attorney had him moved to a different hotel.
B. James Van Camp
Petitioner was arrested and charged by complaint with the Chalflinch murders. James Van Camp of the Moore County Bar was appointed to represent him. Van Camp associated a member of his firm, Doug Gill, to assist him in preparing petitioner's defense. In addition to Messrs. Van Camp and Gill, Jim Griffin was also appointed to represent petitioner when the trial venue was moved to Union County. It is undisputed that in 1980 and to this day, Mr. Van Camp is the most skilled and experienced capital case defense attorney in the 20th Judicial District. In fact, of the numerous capital cases he had taken to trial prior to petitioner's, he had always secured acquittals.
The crimes occurred in Moore County, located in the Middle District of North Carolina, but the trial was moved to Union County, located in the Western District, based on pretrial publicity.
Soon after appointment, petitioner's defense team moved for a probable cause hearing. The elected district attorney, Carroll Lowder, strategically had the hearing continued and returned with a true bill of indictment from the grand jury charging petitioner with the Chalflinch murders before the rescheduled probable cause hearing was to be conducted. Evidence submitted at the hearing revealed that Mr. Lowder resisted petitioner's pretrial motion for access to the crime scene, which motion was denied, but reasserted at the beginning and during the course of the trial. Mr. Van Camp testified that Mr. Lowder again resisted the motion, improperly stating that the defense team had failed to raise such request prior to trial, and that the motion was interposed only because the petitioner wanted "to fish, and confuse matters." Again, the requests for access to the crime scene were denied by the court. Mr. Van Camp stated at the hearing that it was his usual practice to visit the crime scene, that he had never before or since been denied an opportunity to view the crime scene, and that such a view was important to get a sense of what the crime scene was like and to put meaning to testimony. He further stated that he wanted to look for receipts, newspapers, or other items which might have narrowed the window of opportunity to exclude his client as the culprit. Mr. Van Camp testified that the state court also denied his request for appointment of a private investigator, but that he then used his in-house investigator.
Mr. Van Camp stated that he perceived that Mr. Lowder was upset at Van Camp's string of capital victories and that denial of access to the crime scene was the penance Lowder imposed. He further opined that Mr. Lowder's displeasure was also made clear through avoidance of a probable cause hearing at which discovery could have been obtained, instructing lay and professional witnesses not to talk to the defense team, and the moving of Mr. Harding from one hotel to another after defense attorneys discovered his whereabouts during the course of trial.
On cross-examination, Mr. Van Camp testified that his requests to inspect all physical and photographic evidence was honored; he was given an opportunity to inspect evidentiary items, tests, and results; and that he stated to Honorable Julius A. Rousseau, Jr., Superior Court Judge, that he had seen and reviewed all evidence, including measurements of the crime scene. He admitted that other than a Brady request, he made no specific requests concerning receipts and prescription bottles. In a hearing held by Judge Rousseau, Mr. Gill argued that the defense wanted access to the crime scene to confirm state measurements and envision circumstances concerning testimony; however, no mention was made about wanting to go through the trash. Mr. Van Camp also admitted on cross that he was given an opportunity to examine Special Agent Joel W. Morris of the State Bureau of Investigation, who led the investigation of the Chalflinch murders. Agent Morris stated that he did not inventory the trash, did not remember any food slips, and did not look in the medicine cabinet. Mr. Van Camp argued to the jury the state's lack of investigation of those potential items of evidence. Mr. Van Camp further admitted that while his request for appointment of an investigator was denied, he was appointed an expert in forensic chemistry, a weapon's expert, a fingerprint expert and a psychiatric expert. Mr. Van Camp conceded that despite his best efforts, he could not account for petitioner's whereabouts for the entire time in which the crime could have been committed; the circumstantial evidence was overwhelming; and there was "no way to overcome the ring found in the body." He further stated that his initial defense was that someone else did the crime, but that petitioner could find no favorable evidence other than the jumper story, the child screaming on Monday night, the lack of petitioner's blood being found at the scene, and the unexplained movements of Ms. Chalflinch's car. Mr. Van Camp stated that the defense team's strategy was to show "reasonable doubt."
C. Doug Gill
Doug Gill, Mr. Van Camp's associate in 1980, also testified at the evidentiary hearing. Such testimony bore little fruit for either the petitioner or the respondent and will not be summarized herein. The major impression from his testimony was that petitioner was not only represented by a lead attorney experienced in capital cases, but that the second chair was filled by a skilled, accomplished, and meticulous attorney with notable credentials from years of service with North Carolina's Institute of Government.
D. Willie Squires
The petitioner also called Willie Squires, who supervised 17 Country Cupboards convenience stores in the Sandhills region of North Carolina in 1980. He testified that he recalled seeing the victims in the company of a "healthy" woman in the early morning hours of Monday, August 25, 1980, somewhere between 4:30 and 4:45 a.m. He knew the person he saw was Ms. Chalflinch because she worked as a "floater" for him when he needed to fill a shift. Mr. Squires stated that he remembered it was the early morning hours of Monday because it was one John Henry Brown's regular shift, and Brown had called just before the shift was to begin to tell Squires he could not make it to work. Squires testified that for the 17 stores he managed, he was required to fill any shift when an employee could not make it in. When asked what his working hours were, Mr. Squires replied that he "worked 24 hours a day." Prior to trial, local officers interviewed Mr. Squires, but that information was not disclosed to petitioner's defense team.
No relation to petitioner.
E. John Henry Brown
Rebutting Mr. Squires's testimony is that of John Henry Brown at the evidentiary hearing. In response to questions on direct and cross, he stated that even though it was difficult to recall events that occurred 16 years ago, his memory was unfettered as to whether he missed a shift from 11 p.m. Sunday through 7 a.m. Monday. He stated that he did not remember ever missing a shift while working for Mr. Squires at the Kwik-E Mart or at the Country Cupboard and, in any event, could not have missed a Sunday/Monday shift because he never worked that shift, his last day of his work weel being Saturday night/Sunday morning. When asked why his memory was so clear as to working Sunday night/Monday morning, he stated that he would never work that shift because of Sunday nigh church services, which could occasionally run past 11 p.m. The undersigned found Mr. Brown's testimony to be highly credible.
F. Carroll Lowder The petitioner also called Carroll Lowder, who was during the relevant period the elected district attorney for North Carolina's 20th Judicial District. He testified that this matter went to trial within four months because it was a simple case. He further testified that he opposed allowing the defense team access to the crime scene because his interpretation of North Carolina law at the time did not allow petitioner's counsel to visit the crime scene; the request was just a "fishing expedition" on the part of defense counsel; and this case made new law concerning crime-scene access. Mr. Lowder stated that he had no recollection as to whether he had denied Mr. Van Camp access to the crime scenes in earlier cases.
As to instructing officers and state witnesses not to talk to defense counsel, Mr. Lowder testified that he did not remember ever telling anyone not to talk, but did recall telling them they did not have to talk to defense counsel. Even so, he stated that if Special Agent "Morris says I did then I did." Mr. Lowder did admit that he moved Mr. Harding during trial "so he couldn't be approached again."
Petitioner also contended that Mr. Lowder "cherry picked" Judge Rousseau. On direct examination, Mr. Lowder admitted candidly that he had a "very keen interest" in who the presiding judge would be in this matter. Mr. Lowder stated that it was the Administrative Office of the state courts that picked the presiding judge, but that he had complete calendaring authority and could have put the case over had he been dissatisfied with the judge.
Testimony was also elicited from Mr. Lowder concerning an alleged incident of retaliation for pleadings filed in this case. In a 1992 Motion for Discovery, counsel for petitioner, Bruce Cunningham, made an allegation concerning Mr. Lowder's handling of pretrial discovery to which Mr. Lowder took exception. At the evidentiary hearing, Mr. Lowder characterized the discovery allegations as "spurious." He admitted that in response to that motion, he instructed his assistants not to negotiate pleas with Mr. Cunningham and that the impact on Cunningham's practice and clients was "his concern not mine." When confronted by petitioner's counsel with a similar incident involving and resulting in similar sanctions against another Moore County attorney of whose style of practice Mr. Lowder also disapproved, Mr. Lowder stated that attorney's "client got crucified on account of his attorney's actions."
G. Joel W. Morris
On the second day of the evidentiary hearing, retired Special Agent Joel W. Morris, State Bureau of Investigation, testified for the respondent. Morris was the lead investigator assigned to the Chalflinch murders and was on the scene the day the victims' bodies were discovered. That same day — Tuesday, August 26 — Morris interviewed Robin Jarrell, a neighbor of the Chalflinches, who stated that she saw Ms. Chalflinch after 11 p.m. on Sunday, August 24, at which time Ms. Chalflinch was coming back from the complex laundry, had her hair in a towel, and was wearing shorts. Morris also testified that he assisted in the search of the crime scene, went through the papers and trash and a large brown paper bag containing trash, but found nothing of any significance. He further stated that he found no receipts or handwritten notes, but recalled going through books and finding a note concerning Christina's trips to bible school. Morris also recalled searching the complex trash dumpsters, but finding nothing significant to the investigation.
On cross, Morris testified that he did not inventory the contents of the refrigerator and did not compare food remnants in the sink with food in the refrigerator. He further stated that one could not get the true feeling of the crime scene without being there. He testified that James F. Yount, a former boyfriend of Ms. Chalflinch, told him about the date with David Martin and about the note she found from Martin when she stood him up. Yount further reported to Morris that Ms. Chalflinch told him that she was just getting over a relationship with a man named Billy Brown. Morris also reviewed an interview of Bonnie Thompson, a friend of Ms. Chalflinch whom petitioner contends was with her in the early morning hours of Monday, August 25, at the Country Cupboard. Thompson stated to a local officer that she was with Ms. Chalflinch when she bought a T-Shirt for a boyfriend at Roses on Sunday, but that she had never been out late with Ms. Chalflinch.
Billy Brown is not related to petitioner or John Henry Brown.
Morris also conducted an interview on Wednesday, August 27, with Linda Boyette Ross, who stated that her friend, Ms. Chalflinch, stopped dating Billy Brown because she feared him. Ms. Ross further stated, however, that Billy Brown never hit or hurt her friend in any way.
Petitioner also cross-examined Morris on the issue of access to the crime scene. Morris stated that Lowder never instructed him not to talk with defense counsel, but that it was always his practice not to talk with defense counsel about an ongoing investigation unless the district attorney was present. Petitioner also questioned Morris concerning the importance of seeing the crime scene before it is disturbed through the removal of the bodies.
The court notes at this point that there is no constitutional right or logical reason to assert that a defendant should or could have access to a crime scene at any point during the evidence-gathering stage. Indeed, petitioner was not even charged until several days after the offense occurred.
On redirect, Morris testified that the William Squires lead concerning Ms. Chalflinch was not followed because the information concerning Ms. Chalflinch's hair being in a towel was consistent with finding a yellow towel in proximity to her body. He further stated that leads concerning Billy Brown were not followed based on the discovery of petitioner's ring beneath Ms. Chalflinch's liver and the cuts on petitioner's hand. He stated that such evidence refocused the investigation on petitioner and that investigators later learned that Billy Brown was not in the area at the time the crimes were committed.
H. Tony A. Underwood
The state also called Special Agent Tony A. Underwood of the State Bureau of Investigation. Agent Underwood testified concerning supplemental investigations conducted in 1992, which, in substance, followed up on leads that were abandoned in 1980 when overwhelming evidence pointed to petitioner as the culprit. Summaries of interviews he conducted were either admitted into evidence or proffered after admission was denied. Upon request of petitioner, correspondence from the Attorney General of North Carolina to Agent Underwood was reviewed in camera for indicia that Underwood was instructed to create evidence favorable to the state's position. The court only found one instructive note — "Show David Martin in Georgia. . ." — which was disclosed to counsel for petitioner. Finding the remainder of the material to be privileged communications between an attorney and a client and that its relevance to this litigation did not outweigh the compelling interest in preserving such confidence, the court sealed the remaining material for future review. As with Mr. Gill, Agent Underwood's testimony did little to advance either the respondent's or petitioner's position and will not be further summarized.
I. Bruce Cunningham
Bruce Cunningham, counsel for petitioner, also took the stand on the issue of cause and prejudice concerning petitioner's failure to call Mr. Lowder during postconviction proceedings in state court. Under Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), petitioner has an affirmative duty to show cause and prejudice excusing his failure to develop a material fact — denial of access to the crime scene — in state-court proceedings. Mr. Cunningham, a long-standing member of the Moore County Bar and a seasoned criminal law practitioner, testified that even though he had subpoenaed Mr. Lowder to testify in the 1984 postconviction proceedings, he decided not call him because he feared incurring Mr. Lowder's wrath. Mr. Cunningham stated that prior to 1984, Mr. Lowder had cut him off from the plea-bargaining process when he zealously represented criminal defendants. Mr. Cunningham testified that he believed it was the role of a defense attorney to be an advocate for the individual defendant and to seek the best possible result in every case. He stated that Mr. Lowder's view of defense attorneys was that their responsibility was primarily to an efficient system of justice and that Mr. Lowder believed unrelated cases were interconnected and there was a connection between the resolution of cases. If Mr. Lowder determined that an attorney had unreasonably decided to try out a case, he or she would be punished through less favorable treatment in cases of other clients and that those cases would be called for trial without notice. In addition, Mr. Cunningham stated that he decided not to put Mr. Lowder on the stand the day of the hearing in state court because the judge to whom the case was assigned was a former employee of Mr. Lowder and had made a comment from which Cunningham inferred that Mr. Lowder should not be called. As further evidence of Mr. Lowder's wrath, Mr. Cunningham submitted a letter which he sent to Mr. Lowder in 1992 concerning retaliation by Mr. Lowder against Mr. Cunningham for allegations (discussed above) made in a pleading filed in this matter. In that incident, Mr. Lowder cut Mr. Cunningham out of the plea-bargaining process for a period of time. Mr. Lowder has since retired from public service.
J. Don Davis
1. Testimony Concerning Employment
On the third day of the evidentiary hearing, petitioner called Don Davis. In 1980, Mr. Davis was employed by the Pinehurst Police Department and was the officer in charge of securing the crime scene. Since 1980, Mr. Davis has retired from the police force and now serves as a security guard at the Pinehurst Hotel. It was undisputed that the Pinehurst Corporation owned and operated Pinehurst until 1977, when the Village of Pinehurst was incorporated.
2. Testimony Concerning the Crime Scene
Mr. Davis testified that he took charge of the crime scene on Tuesday, August 26, 1996, at 9 a.m., padlocked the apartment, and kept the key to that padlock through the trial three and a half months later. Mr. Davis indicated that whenever any officer needed access to the scene, he would be present. He did not recall assistant district attorneys Pope and Church entering the apartment. He testified that Lieutenant Wilson was the first officer on the scene. When asked whether he compiled an inventory of all items in the apartment, Mr. Davis responded that he only inventoried items seized as evidence. He further stated that he drew a diagram indicating the location of all items seized. When asked whether the entire apartment was dusted for fingerprints, he responded that efforts toward recovering prints were directed at areas where officers believed crime scene activity took place. He stated that the so-called "bloody palm print" was not found by him during his initial search of the apartment. The court notes that the evidence tended to show that the print was latent, with only a few ridges positive for blood.
Petitioner also inquired whether the discovery at the crime scene of clothing belonging Ms. Chalflinch's former boyfriend, Billy Brown, would make comparing prints found with those of Billy Brown a priority. Mr. Davis answered that it would; however, information he received that Billy Brown was out of town when the crime occurred made a print comparison with Billy Brown not a priority. Mr. Davis further stated that it was routine in such an investigation to exchange interview summaries with other agents so everyone would have the same information. Petitioner also examined Mr. Davis as to the bags of trash found at the scene. Mr. Davis testified that he did not recall going through the trash or that anyone else in his presence went through the trash. As to access to the crime scene, Mr. Davis testified that Carroll Lowder instructed him not to allow James Van Camp into the apartment. On cross-examination, Mr. Davis testified that he never found the "David Martin note" in the apartment.
In addition to access to the crime scene itself, petitioner also examined Mr. Davis concerning the car. Mr. Davis testified that even though Ms. Chalflinch's car had items in it, no inventory of its contents was made, and the car was released to the victims' family at the end of the week of the murders.
Finally, petitioner examined Mr. Davis on his discovery of Willie Squires. Mr. Davis testified that he spoke with Willie Squires on August 28, 1980, because he had information that Ms. Chalflinch had worked for him. He related that he asked Mr. Squires whether he knew about the murders and Squires responded that he had heard. When asked when he had last seen Ms. Chalfi inch, he replied that he saw her between 4:30 and 4:45 a.m. on Monday, August 25. According to Davis, Squires said that Ms. Chalflinch was in the store with another woman, but Davis did not inquire further of Squires concerning a description of that other woman. Mr. Davis admitted that he put the word "Bonnie" on his interview notes. On cross-examination, Mr. Davis could not recall why he did not follow the lead given by Mr. Squires.
K. Bonnie Thompson
Although it was indicated at the second day of the hearing that petitioner would call Bonnie Thompson, who was supposedly the large woman seen by Mr. Squires with Ms. Chalflinch, she was not called to testify. Counsel for petitioner stated that between the second and third hearing day, it was decided not to subpoena Ms. Thompson.
While not an issue in this case, the undersigned notes that petitioner had an absolute right to be present and attend the evidentiary hearing in Asheville. Upon inquiry, counsel for petitioner informed the court that they had discussed the matter with him and that he specifically declined the opportunity to attend.
A. Amendment of the Petition
In accordance with Rule 15(a), Federal Rules of Civil Procedure, petitioner was granted leave to amend his petition to conform to evidence presented at the hearing. In addition to claims asserted in the original petition, the following contentions were added: (1) petitioner was denied a fair trial due to the fact his trial attorneys were denied access to the crime scene, and (2) petitioner was denied due process due to the fact the district attorney failed to disclose the Willie Squires report, thereby violating the requirements of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny.
B. Applicability of the Antiterrorism Act
Respondent contends that the Antiterrorism and Effective Death Penalty Act of 1996 applies retroactively to this habeas corpus action, which was filed in 1987. In light of petitioner's amendment of the petition after the effective date of the Act, respondent further contends that the issue of retroactivity is moot and the Act applies. In addition to limiting the scope of habeas petitions and imposing firm deadlines on federal review, the Act requires federal courts to defer to state-court determinations of a petitioner's federal constitutional claims. Noting that the North Carolina Supreme Court found for respondent on petitioner's federal constitutional claims, respondent argues that the Act applies.
Petitioner, in arguing that Congress did not intend and could not have intended retroactive application of the Act, seems to have the upper hand. Most notably, Congress failed, as it usually does, to state clearly whether the Act was to be applied by the courts retroactively. The Act only states an effective date for Chapter 154 of Title 28, which provides, in relevant part, that "Chapter 154 ... shall apply to cases pending on or after the date of enactment of this Act." 28 U.S.C. § 2266. Chapter 154 addresses "opt-in provisions," and this court has already determined that "the State of North Carolina does not meet the qualifications established in Chapter 154...
See the Civil Rights Act of 1991 and ensuing litigation on the issue of retroactivity.
Under the three-part test established by the Court in Landgraf v. USI Film Products, 128 L.Ed.2d 229 (1994), a statute is to be applied retroactively only when:
(1) Congress has expressly prescribed the statute's proper reach;
(2) absent clear expression, whether congressional intent favors retroactivity; and
(3) whether the statute would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed.Id., at 262.
The first part of the test, as discussed above, provides little guidance, inasmuch as Congress failed to "expressly prescribe" the statute's reach. As to the second prong, a well-established rule of statutory construction — expressio unious est exciuslo alteris — leads the undersigned to determine that the inclusion of an effective date in Chapter 154, without corresponding provisions in other parts of the Act relevant to habeas corpus proceedings, indicates a clear congressional intent to have only Chapter 154 apply retroactively. As to the third part of the test, it appears that the Act would, midgame, change the rules to petitioner's substantial detriment. Had this court acted upon the petition between 1987 and March 1996, petitioner would have, without question, been entitled to de novo review of his federal constitutional claims. The third factor also favors a finding that the Act should not be applied retroactively.
Deferring to Judge Mullen's earlier determination that North Carolina does not qualify as an opt-in state, Chapter 154 has no application to this case. Based upon congressional intent and the fundamental unfairness which would ensue through retroactive application, the remainder of the Act should not be applied to this case. Finally, respondent has argued that petitioner's post-April 1996 amendment of his petition brings the Act into play. The undersigned can find no rationale in reported Section 2254 cases or the body of federal civil decisions to support a contention that amendment of a pleading makes a statute applicable that would not have been applicable when the original pleading was filed. The undersigned will recommend that the Act not be applied to this particular case.
C. Petitioners Motion for Discovery
Petitioner argues that North Carolina's recently passed "Act to Expedite the Post-Conviction Process," Chapter 15A-1415(f), North Carolina General Statutes, requires respondent to turn over to petitioner its complete investigative and prosecutorial file. It is clear to this court that the statute applies only to postconviction proceedings in state court; indeed, to hold as petitioner suggests would subject discovery in federal habeas corpus matters to the variance and, perhaps, caprice of state law — a result plainly precluded by the Supremacy Clause of the United States Constitution. The Supreme Court clearly has held that, pursuant to Rule 6 of the Rules Governing Section 2254 Cases, discovers is governed by the Federal Rules of Civil Procedure, which authorize a district judge to invoke discovery in the exercise of discretion and for good cause shown. Harris v. Nelson, 394 U.S. 286, 299-300 (1969). Discovery in Section 2254 cases, however, is not left to the discretion of state legislative bodies. This court has gone to great lengths to ensure that petitioner has been afforded every opportunity for discovery under Rule 6 and is confident that all needed discovery has, in time, been provided by respondent. By separate order, the undersigned has denied petitioner's motion for discovery.
D. Waiver of Exhaustion
Prior to review by federal courts under Section 2254, a petitioner is required to exhaust available state review as to each claim raised. Exhaustion ensures that the state courts have the first opportunity to review federal constitutional challenges to state convictions and preserves the role of state courts in protecting federally guaranteed rights. Preiser v. Rodriguez, 411 U.S. 475 (1973). Exhaustion is not a jurisdictional prerequisite to habeas relief, but, rather, a matter of comity. Granberry v. Greer, 481 U.S. 129 (1987). As noted by the Court of Appeals for the Fourth Circuit and stipulated to by respondent during the hearing, the requirement of exhaustion has been waived in this case by respondent.
E. Admission of Carroll Lowder's Testimony
In state postconviction proceedings, petitioner specifically declined an opportunity to call and examine Mr. Lowder on his access-to-the-crime-scene claim. In this action, petitioner subpoenaed Mr. Lowder and respondent moved to quash. In the interests of creating a complete record, the undersigned denied that motion, compelled Mr. Lowder's testimony, and admitted that testimony into evidence pending a showing under Keeney v. Tamayo-Reyes, supra, of cause and prejudice excusing petitioner's failure to develop a material fact in state-court proceedings.
As discussed above, petitioner's postconviction counsel, Bruce Cunningham, stated that he believed Mr. Lowder would retaliate against him personally if he pursued the scheduled examination. Mr. Lowder's testimony clearly indicated that it was his common practice to punish attorneys (and their subsequent clients) who decided to adhere to the North Carolina Rules of Professional Conduct and zealously represent their clients. It was also apparent that had Mr. Cunningham conducted the examination, he would have been punished by Mr. Lowder in a manner which would have hindered his ability to practice law and that his other clients would be treated less favorably in the plea-bargaining process. Rather than pay the price, Mr. Cunningham folded his tent. The power afforded district attorneys in North Carolina over criminal defendants and their attorneys is grossly disproportionate. See N.C. Gen. Stat., Chapter 7A-61. Although it has been the undersigned's experience that the vast majority of district attorneys exercise their power judiciously, the ability to calendar and call a matter for trial, coupled with remedial use of the plea-bargaining process, can turr public servants into petty tyrants who exact a toll on those least able to pay. Let it be clear, however, that Mr. Cunningham's duty in the postconviction proceeding was to this petitioner, not to the profitability of his own law practice or even the liberty interests of other clients. It was grave error to not examine Mr. Lowder in the postconviction proceeding.
The cause asserted by Mr. Cunningham may not, as presented, be sufficient to show cause. Review of the transcript of the postconviction hearing reveals that when Mr. Cunningham announced to the state court that he would not examine Mr. Lowder, Mr. Lowder insisted that petitioner, who was present, be asked whether he agreed. He did. What is absent from the record, however, is any mention that petitioner's waiver was made knowingly. The record developed at the hearing before this court is also silent as to whether petitioner was informed that he was foregoing examination of Mr. Lowder not for his own benefit, but for the benefit of Mr. Cunningham's law practice and other clients.
Finding that petitioner did not make a knowing and voluntary waiver of his right to examine Mr. Lowder, the undersigned respectfully determines that cause has been shown. Determining that Mr. Lowder's testimony is necessary in order for petitioner to pursue fully his issues as to access to the crime scene and due process, the undersigned further finds that petitioner would be prejudiced to such an extent that, but for allowing the testimony, a fundamental miscarriage of justice could occur. In an abundance of caution, the undersigned has considered fully the testimony elicited from Mr. Lowder on the remaining guilt-phase contentions.
IV. Discussion of Petitioners Contentions Remaining After Remand and Raised Through Amendment
1. Introduction
A. Guilt-Phase Contentions
Although respondent has argued strenuously that all that remains after remand from the Court of Appeals for the Fourth Circuit are the sentencing-phase contentions, the undersigned has given petitioner great leeway in presenting evidence and arguments on guilt-phase contentions he believes still exist. In Brown v. Dixon, 891 F.2d 490 (4th Cir. 1989), the Court of Appeals for the Fourth Circuit held and noted the following:
Leaving out of the picture the affidavits of Brown's lawyers, and viewing the case solely as it appeared to the district court at the time of its hearing in the summer of 1987, we uphold the district court's conclusions that "there is no reasonable probability that [Brown's] inspection of the crime scene would have changed the outcome of the proceedings..., "... and that "the [State's] interference was not of a sufficient magnitude to give rise to the presumption that the adversarial process broke down"....
F.N. 10 Should the issue arise in proceedings on the new evidence, we note that North Carolina waived the exhaustion requirement before the district court in the interest of expedition.Id., at 495 (citations omitted). Based on that passage, the undersigned, in an abundance of caution, determined that the appellate court anticipated that petitioner would move to reassert guilt-phase contentions based on the new evidence he discovered after the district court reviewed his initial petition. Petitioner was allowed to amend his petition and put on evidence concerning denial of access to the crime scene and failure to disclose the statements of Willie Squires. Petitioner also added a contention that the state improperly denied him access to witnesses.
2. Standard of Review
In his Memorandum of Law in Support of Petitioner's Showing of Prejudice, petitioner argues that the United States Supreme Court's decision in Kyles v. Whitley, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), would apply to his contentions regarding the guilt phase and the sentencing phase. The Kyle Court held that in determining whether undisclosed evidence was "material" under Brady v. Maryland. supra, the cumulative effect of all suppressed evidence favorable to a defendant must be considered, rather than considering each item of evidence individually. The Court held that a violation of due process occurs and habeas relief is warranted where the favorable evidence the state failed to disclose, viewed cumulatively, would have made a different result "reasonably probable."
Favorable evidence is material as to which there is a "reasonable probability" that had it been disclosed, the result of the proceeding would have been different. Petitioner, however, is not required to demonstrate by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in his acquittal. A violation of due process is shown where it is demonstrated that the suppressed evidence could reasonably be taken to put the case in such a different light as to undermine confidence in the verdict, If constitutional error is found, further harmless-error review ends, because the materiality standard imposes a higher burden than the harmless-error standard of Brecht v. Abrahamson, 507 U.S. 619 (1993). Finally, the obligation imposed on a state by the guarantee of due process turns on the cumulative effect of all suppressed evidence favorable to the defense, not on the evidence considered item by item. The responsibility to come forward with such evidence rests on the shoulders of the prosecutor, regardless of any failure by the police to bring favorable evidence to the prosecutor's attention. The undersigned will view each of petitioner's guiltphase contentions independently, then consider the cumulative effect of all evidence suppressed by the state.
3. Access to the Crime Scene
After consideration of all the evidence and testimony presented, it is indisputable that the following conclusion can be drawn: trial counsel was denied access to the crime scene by Carroll Lowder. In addition to that conclusion, Mr. Lowder's testimony indicates unequivocally that he denied access to prevent trial counsel from conducting what he deemed "a fishing expedition" to find things with which to "confuse" the jury. Mr. Lowder's frank testimony revealed that he made that decision based on a string of defeats at the hands of petitioner's lead trial counsel in earlier capital cases.
When the issue of access to the crime scene was first visited by the district court in 1987, the late Honorable James McMillan, United States District Judge, held that the trial court and district attorney had not, by inhibiting Brown's investigation, committed a due-process error requiring habeas relief because there was no reasonable probability that the investigation could have turned up anything that would have changed the outcome of the trial. Brown v. Rice, 693 F. Supp. 381 (W.D.N.C. 1988). Judge McMillan stated, as follows:
Had defendant's counsel been allowed to view the crime scene he may have become slightly better informed, but what he would have found there would have been what the North Carolina Supreme Court described as overwhelming evidence of defendant's guilt.Id., at 387. The Court of Appeals for the Fourth Circuit affirmed Judge McMillan's disposition of that issue. Brown v. Dixon, supra.
As to what may have been found at the crime scene in 1980, petitioner could, by the very nature of his claim, offer scarcely more than speculation and a wish list of evidence he would like to have found. The additional testimony presented has added little to the proof that was before Judge McMillan as to what could have been uncovered at the crime scene.
Petitioner argues that had his trial counsel been allowed access, he would have searched (1) garbage bags for receipts showing that the victims were alive after the window of opportunity he had to commit the crimes closed; (2) searched the refrigerator for expiration dates; (3) searched the medicine cabinet for prescription medications filled on August 25, 1980, or later; (4) looked at the date on the newspaper which was laying on the floor of the living room; and (5) searched for men's jewelry or other articles that would tend to show that someone other than petitioner committed the crimes. In addition, petitioner argues that had he been allowed access, he could have determined the contents (if any) of the bowls on the kitchen table, compared the scraps of food in the sink with items in the refrigerator, searched for the "David Martin note," and determined whether a person could reach into the apartment through a broken window and open the front door. A great deal of emphasis was placed by petitioner on trial counsel's desire to view the apartment not just to look for and gather physical evidence, but to get a "feel" for the crime scene that would assist the defense at trial.
As discussed above, Mr. Morris testified that he went through the papers and trash scattered throughout the apartment, including a large brown paper bag containing trash, but found nothing of any significance. He further stated that he found no receipts or handwritten notes and recalls searching the complex trash dumpsters, but finding nothing significant to the investigation. Mr. Morris's testimony has, for all practical purposes, eliminated the possibility of exculpatory evidence being found in the trash bags, the medicine cabinets, and the apartment dumpster. Consistent with Mr. Van Camp's testimony on the first day of the evidentiary hearing, Mr. Morris stated that one could not get the true feeling of the crime scene without being there.
Mr. Lowder's decision to maintain the crime scene for months after the murders and through trial remains unexplained. His decision to deny petitioner's trial attorneys access to the crime scene based on personal animosity or to gain an additional advantage is inexcusable, but expected in a system that gives the district attorney so much control of the trial calendar, that district attorneys like Mr. Lowder run the courts like their own private fiefdom. This gamesmanship is especially abhorrent when a person's life is at stake. That said, this court must put aside its own disgust with Mr. Lowder's behavior and determine whether his misconduct amounted to a violation of petitioner's right to due process. The evidence presented at the hearing was antithetical to petitioner's claim, inasmuch as the probability of exculpatory evidence being found at the crime scene was greatly diminished by Mr. Morris's testimony. In all, the testimony indicated to this court that, despite Mr. Lowder's errors, state and local authorities conducted a thorough examination of the crime scene which lead to the discovery of overwhelming evidence of petitioner's guilt, including petitioner's ring found behind Ms. Chalflinch's liver; petitioner's palm print located directly above a bed where one or more of the victims was slaughtered; a broken, rare knife matching those used by petitioner in his trade; and a trail of blood leading from the inside of the Chalflinch apartment down the stairs and into and throughout the apartment maintained by petitioner. Considering the evidence which petitioner contends he could have discovered in the victims' apartment, there is not a reasonable probability that had access been allowed and the evidence been disclosed, the result of the proceeding would have been different.
North Carolina is, to the undersigned best reckoning, the only state in the country that allows the district attorney to control the court's calendar.
3. The Statement of Willie Squires
Mr. Davis's summary of Willie Squires's 1980 statement was admitted into evidence during the hearing of this matter. That statement places the Chalflinches approximately 10 miles away from their apartment on the morning of Monday, August 25, 1980, as late as 4:45 a.m. A fair summary was made by petitioner's habeas counsel that had the Squires statement been disclosed, it would have reduced petitioner's window of opportunity to commit the crimes by 50 percent. Further evidence presented at the hearing reveals that Squires's statement was tendered to the state trial court, the presiding judge determined it was not discoverable, the report was sealed, and the sealed document and decision were never reviewed by the North Carolina Supreme Court through error of the state or petitioner's trial counsel in compiling the record on appeal. Respondent has waived procedural default.
The state called into question the reliability of Mr. Squires's statement by calling John Henry Brown, a man who had worked for Squires at two different convenience stores. In response to a number of questions posed by petitioner's counsel, Mr. Brown stated that due to the lapse of 16 years, he could not recall and could not answer completely. He did testify, however, that because of his extensive Sunday night religious commitments, he could recall clearly whether he ever worked a Sunday night/Monday morning shift for Mr. Squires. Mr. Brown unequivocally stated that the last day of his work week was Saturday night/Sunday morning, because he was in church on Sunday nights, sometimes very late. The state's evidence tended to discredit Mr. Squires's testimony, making it possible that he had confused Monday morning with Sunday morning.
For the sake of review, however, the undersigned has given Mr. Squires's testimony its full impact, which would reduce petitioner's window of opportunity by 50 percent. Had the statement closed that window completely, the undersigned would be compelled to find that there was a reasonable probability that the result of the proceeding would be different. Even placing the Chalflinches back at home at 5 a.m., petitioner would have had ample opportunity to commit the crimes and report for his shift at 7 a.m. at the Pinehurst Hotel kitchen, which was located a short walking distance from the apartments. Under the clear teachings of Brady v. Maryland, supra, at 87 and its progeny, it was error for the prosecutor and the trial court to withhold Mr. Squires's statement. Even so, the undersigned finds that there is no reasonable probability that had that evidence been disclosed, the result of the proceeding would have been different.
4. Access to Witnesses
In a contention that was not anticipated when the court allowed petitioner to amend his petition, he asserts that his right to due process was violated by the prosecutor instructing law enforcement and lay witnesses not to talk with petitioner's trial counsel before trial. The testimony of Mr. Van Camp, summarized above, indicates that this issue is not new and, to the extent it was not raised earlier, is procedurally barred.
Petitioner's contention that Mr. Lowder instructed law enforcement officers not to talk with defense counsel is contradicted by the evidence. Mr. Morris, who was in charge of the investigation from start to finish, testified that Mr. Lowder never issued such a directive, but that it was his own practice not to talk to anyone about an ongoing investigation without having the local district attorney present. Mr. Lowder testified that he did not recall instructing either officers or witnesses not to talk with defense counsel, only that they did not have to talk unless they wanted to do so. The only evidence of a witness being instructed not to talk came from Mr. Harding, who stated that the district attorney told him not to talk to defense counsel. In addition, Mr. Lowder admitted that he moved Mr. Harding during trial once defense counsel discovered where Harding was being housed. Though not a substitute for pretrial investigation, the state court record reveals that defense counsel was afforded an opportunity to cross-examine the state's professional and lay witnesses at trial.
This is, however, another example of Mr. Lowder improperly using his position.
What is absent from this contention is any indication that pretrial interviews of any of the state's professional witnesses or Mr. Harding, had they wanted to talk, would have led to any exculpatory evidence or information tending to discredit or impeach the credibility of a state witness. The only variances which has been shown in Mr. Harding's testimony before this court and that provided in 1980 are a change in the time he saw Ms. Chalflinch from 11 p.m. to 12 midnight and the absence of her wearing a black dress when she stopped at his door. Under Kyles v. Whitley, supra, there is no reasonable probability that had defense counsel been allowed unfettered access to the state's witnesses, the result of the proceeding would have been different.
5. The Cumulative Effect of the State's Nondisclosure
While asserted separately, petitioner contends in each guilt-phase contention that the errors of the district attorney frustrated his access to exculpatory evidence and violated his right to due process, thereby entitling him to a new trial. Under the reasoning of Kyles v. Whitley, supra, the undersigned will consider the cumulative effect of the denial of access to the crime scene, the nondisclosure of the statement by Mr. Squires, and the prosecutor's instruction to witnesses that they not talk with defense counsel. Petitioner is not required to demonstrate by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in his acquittal. Id. A due-process violation is shown where it is demonstrated that the suppressed evidence could reasonably be taken to put the case in such a different light as to undermine confidence in the verdict. Id. Having considered all of the evidence and arguments, the undersigned concludes that petitioner has not demonstrated that the suppressed evidence could, within the bounds of reason, be taken to place his case in such a different light as to undermine the outcome reached by the jury.
As to the crime scene, little was offered by petitioner other than speculation, much of which was diminished by the testimony of Mr. Morris. As to the Squires statement, counsel for petitioner has stated that Squires's testimony would not have closed the window of opportunity, only diminished it by 50 percent. Finally, the alleged instruction to law enforcement officers and apparent instruction to Mr. Harding that he not talk with defense counsel, although evidence of bad motive on the part of the prosecutor, has not been connected with any nondisclosure of exculpatory evidence, with the exception of Mr. Squires's statement. Petitioner has also presented evidence concerning statements made by Mr. Pate as to the "jumper;" the man with long, blonde hair; and the presence of Billy Brown's clothes in the apartment; however, this court has attempted to remain focused on petitioner's contentions. Considering the cumulative effect of denial of access, the suppressed statement by Mr. Squires, and hinderance of petitioner in the discovery process by instructing the state's witnesses not to talk, the undersigned cannot, in light of the overwhelming evidence of this petitioner's guilt, find that a reasonable probability exists that the result of the proceeding would have been different. Although the suppressed evidence would have tightened the window of opportunity and afforded defense counsel a better "feel" for the crime scene, the evidence of petitioner's guilt — his ring found inside Ms. Chalflinch, his palm print above a bed where human butchery took place, and the trail of blood from the victims' apartment to his own — remains unassailed.
In his Memorandum of Law in Support of Petitioner's Showing of Prejudice, petitioner poignantly asks, "How should this Court remedy the harm inflicted by the State's interference with petitioner's ability to mount a defense?" Docket Entry 105, at 1. The answer does not lie in letting a guilty man escape justly imposed punishment. This court is one of limited jurisdiction and, in a habeas proceeding, may only mete out remedies where the "harm" is of constitutional dimension. Where the harm does not undermine confidence in the jury's verdict, this court's inquiry must end. Lacking a reasonable probability of a different outcome, this court has no ability to sanction a rogue prosecutor who abuses the power of his office. The remedy for such abuse, absent constitutional foul, is found at the polls and in the state legislature. The undersigned is compelled to recommend to the district court that the relief sought on petitioner's guilt-phase contentions, VII, VIII, and IX, be denied and that judgment be entered in respondent's favor as to those contentions.
B. Sentencing-Phase Contentions
1. Contentions V(A) and V(B): Introduction of Confession During Penalty Phase
Petitioner contends that the introduction of his post-arrest jailhouse admissions and the procedure used in the introduction of that evidence violated his rights under the eighth and fourteenth-amendments to the United States Constitution. This issue was raised before the North Carolina Supreme Court, which rejected the arguments and held that even though the testimony in question by Roy Junior Brown had not been presented during the guilt phase, it was admissible at the sentencing phase, inasmuch as it was relevant and had probative value. Petitioner also argued that the trial court erred by refusing to allow voir dire of then assistant district attorney Tom Church concerning promises of leniency to Roy Junior Brown. Again, the North Carolina Supreme Court found no error in this procedure, noting that petitioner failed to elicit this information from Roy Junior Brown on cross-examination despite having "sufficient information to pursue his concern that Roy Brown's testimony was in exchange for favorable treatment by the State," and that "the appropriate avenue of inquiry into the bias of a witness is to ask the witness himself." State v. Brown, 306 N.C. 151, 180-81 (1982).
If this case were governed by the Antiterrorism and Effective Death Penalty Act of 1996, the decision by the North Carolina Supreme Court on direct appeal is a reasonable application of federal law as announced at that time, and this court would be compelled to defer to that state-court determination. Independent of the decision of the state court, this court can find no violation of the eighth or fourteenth amendment.
Roy Brown, petitioner's cell mate prior to trial, testified during the sentencing phase that petitioner said to him that he had killed two people with a knife, had left his ring in one of them, and that he did not understand why the ring was not given back to him. Facing charges of driving under the influence and forgery, Roy Brown was first interviewed by state agents several days after his initial conversation with petitioner. Agents asked Roy Brown to let them know if petitioner told him anything else; thereafter, Roy Brown stated that petitioner told him that during the murder of the child's mother. the child bit him on the hand.
Before allowing Roy Brown to testify as to petitioner's jailhouse admissions, the presiding judge conducted a voir dire inquiry. Although petitioner's trial counsel cross examined Roy Brown extensively on voir dire concerning the circumstances of his conversations with state agents, his criminal record, and how he made bail, he failed to ask him whether any concessions were made by the state on his criminal charges in exchange for his testimony. Rather than question Roy Brown during voir dire, petitioner's defense team called Assistant District Attorney Church and attempted to examine him on what promises were made to Roy Brown in exchange for his testimony.
At trial, petitioner asserted as a mitigating factor that he was impaired at the time of the crime, North Carolina General Statutes 15A-2000(f)(6), and that he had not "shown himself otherwise evil," even though he committed a harmful act. As the state contends, Roy Brown's testimony was probative as to those issues, for it showed petitioner's alleged impairment was not so severe as to prevent him from remembering the details of the crimes, reacting to his acts callously, and demonstrating a lack of any remorse. Evidence presented through the testimony of Roy Brown related to rebutting mitigating factors. State v. Brown, supra. Even if it was unrelated,
the constitution does not prohibit consideration at the sentencing phase of information not directly related to either statutory aggravating or statutory mitigating factors as long as that information is relevant to the character of the defendant or the circumstances of the crime.Barclay v. Florida, 463 U.S. 939, at 967 (1983) (Brennan, J., concurring). The evidence presented in the form of Roy Brown's testimony related to rebuttal of mitigating circumstances; was relevant to petitioner's character; and touched on circumstances of the crime, i.e that the child, forced to watch the murder of her mother, heroically attempted to come to her aid.
This last jailhouse statement was not admitted into evidence by the presiding judge in apparent reliance on Massiah v. United States, 377 U.S. 201 (1964).
Petitioner also takes issue with the procedure employed by the presiding judge. The trial judge determined, in accordance with state law then in effect, that petitioner was not entitled to review Roy Brown's statements (1) because they did not contain any Brady material and (2) even though Ro Brown reviewed his statements prior to taking the stand. A general denial of discovery does not, standing alone, entitle a habeas petitioner to federal relief. Weatherford v. Bursey, 429 U.S. 545, 559 (1977). Absent a showing that Roy Brown's statements contained exculpatory or impeaching information, the Due Process Clause is not brought into play.
Finally, petitioner contends that the presiding judge improperly sustained the state's objections to his questions to Assistant District Attorney Church concerning inducements offered to Roy Brown. As argued before the state court, the purpose of the voir dire was to determine whether Roy Brown's testimony was competent, not whether it was impeachable. On the issue of inducement, petitioner could have (1) cross-examined Roy Brown during voir dire or when he testified before the jury; (2) attempted to call Assistant District Attorney Church before the jury; or (3) called one the State Bureau of Investigation agents who participated in the debriefing of Roy Brown. Finding no possible error of constitutional magnitude, the undersigned is compelled to recommend that the relief sought by petitioner on contentions V(A) and V(B) be denied and judgment entered in respondent's favor as to those contentions.
2. Contention V(C): Admission Into Evidence of Photographs of Victims
Petitioner claims that the admission into evidence of family photographs of the Chalflinches — one showing the two sitting in front of a Christmas tree in 1979, and the other being a school photograph of Christina — violated his rights under the eighth and fourteenth amendments in that their prejudicial effect necessarily outweighed their probative value and served only to inflame the passions of the jury. This contention was raised on direct appeal to North Carolina Supreme Court or a nonconstitutional basis, and that court rejected the argument on the merits, holding that the photographs were properly admitted into evidence. State v. Brown, supra, at 172.
Respondent has argued that habeas review of this claim is barred through petitioner's failure to exhaust state remedies. Although the substance of this contention was raised before the North Carolina Supreme Court on direct review, petitioner failed to first raise the substance of the federal habeas claim before the state court. Absent valid excuse, a petitioner must first present his federal claims to state courts. 28 U.S.C. § 2254 (b). The exhaustion requirement ensures that state courts have the first opportunity to review federal constitutional challenges to state convictions and preserves the role of state courts in protecting federally guaranteed rights. Preiser v. Rodriguez, supra. Exhaustion, however, is a matter of comity, not a jurisdictional prerequisite to habeas relief. Granberry v. Greer, supra. If the Antiterrorism and Effective Death Penalty Act of 1996 were applicable, however, the jurisdiction of this court would be curtailed to only denying the relief sought by petitioner, presumably even where the state has waived the requirement of exhaustion. 28 U.S.C. § 2254 (c).
Putting aside the issue of exhaustion, respondent also argues that this claim is procedurally barred to the extent that petitioner now raises the eighth- and fourteenth-amendment claims on the basis of admission of the family photographs. N.C. Gen. Stat. § 15A-1419(a) (1988). Petitioner's burden here would be to show cause and prejudice, Coleman v. Thompson, 501 U.S. 722 (1991), which he has not done.
Even considering the merits of petitioner's claim — including review of the family photographs — petitioner is entitled to no relief. In Payne v. Tennessee, 501 U.S. 808 (1991), the Court held that the eighth amendment does not per se bar the jury from considering the characteristics of the victim or the impact on the victim's family, either in evidence or in the prosecutor's argument. Payne overruled Booth v. Maryland, 482 U.S. 496 (1987), on which petitioner based his contention. Although the Payne Court recognized that some evidence or argument as to victim impact may be so unfair as to deny due process,Payne v. Tennessee, supra, at 825, that level of unfairness was not exceeded here by the admission into evidence of the two very simple photographs of the victims. As to this contention, the undersigned will recommend that the relief sought by petitioner be denied and judgment entered in favor of respondent.
3. Contentions V(D) and V(E): Prosecutor's Penalty-Phase Arguments
Petitioner claims that the prosecutor's jury arguments during the sentencing phase concerning the biblical authorities which support capital punishment, his statement that "the people" wanted the death penalty in the case, and his comments concerning petitioner's apparent lack of remorse violated the fifth, eighth, and fourteenth amendments. The undersigned finds no merit to those contentions. Again, if provisions of the Antiterrorism and Effective Death Penalty Act of 1996 were applicable to this particular case, the undersigned would be compelled to find binding the well- reasoned decisions of the superior court, which addressed those contentions and denied them on petitioner's Motion for Appropriate Relief.
The standard for reviewing the penalty-phase argument of a prosecutor is found in Darden v. Wainwright, 477 U.S. 168, 181 (1986), which provides for a narrow due-process review rather than an exercise of supervisory power. It is not enough that prosecutorial remarks are undesirable or even universally condemned; what is required for relief is a finding that the remarks so infected the trial with unfairness that the resulting conviction is a denial of due process. Darden v. Wainwright, supra; United States v. Weatherless, 734 F.2d 179 (4th Cir.) (court does not assess prosecutor's character, but considers whether remarks prejudiced defendant and denied him fair trial), cert denied, 469 U.S. 1088 (1984). Four factors are central to determining whether improper prosecutorial comment was so damaging to petitioner's trial as to require reversal:
(1) the degree to which remarks misled the jury and prejudiced petitioner;
(2) whether the remarks were isolated or extensive;
(3) whether, absent the remarks, competent proof established guilt; and
(4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters.United States v. Harrison, 716 F.2d 1050 (4th Cir. 1983), cert. denied, 466 U.S. 972 (1984). In United States v. Brockington, 849 F.2d 872 (4th Cir. 1988), the Court of Appeals for the Fourth Circuit advised courts to look to whether the prosecutor's remarks were pronounced and persistent, the strength of properly admitted evidence, and the curative actions, if any, taken by the trial court.
In this case, although the prosecutor referenced the Ten Commandments and the 21st Chapter of Exodus, he immediately stated that those biblical references did not "mean under our present law that all persons convicted of murder in the first degree shall suffer death." Transcript, at 1740. Two decisions rendered since this matter was decided have held that the sentencing phase calls for a reasoned moral decision. California v. Brown, 479 U.S. 939, 950 (1983); Barclay v. Florida supra, at 950. In this case, the prosecutor's biblical references were but a small portion of his argument; the majority of his time was spent on the sentencing steps in North Carolina. Indeed, the prosecutor was not the only one to invoke religion — defense counsel appealed to Christian principles of mercy and discussed the crucifixion of Jesus Christ. Transcript, at 1745. The prosecutor's religious remarks were neither pronounced nor persistent, the strength of properly admitted and argued evidence as to aggravating factors was overwhelming, and curative actions were taken by the prosecutor himself.
Finally, petitioner takes issue with an alleged remark of the prosecutor referring to petitioner's silence. The undersigned cannot find that the prosecutor referenced petitioner's silence. Instead, he stated, as follows:
Have you heard any of his witnesses tell about any remorse he has? Any regret?
You have had a chance to look at him in the courtroom. You may take into account his appearance and demeanor in the courtroom.... Do you know of anything in this case that indicates he really has any pangs of conscience.
Transcript, at 1737. See Lockett v. Ohio, 438 U.S. 586, 595 (1978). Those comments in no way impinged on petitioner's guilt-phase right to remain silent and were relevant to the factor of remorse. In Gaskins v. McKellar, 916 F.2d 941 (4th Cir. 1990), the Court of Appeals for the Fourth Circuit instructed that courts should apply a "fundamental fairness" standard to such challenges. Clearly, the prosecutor's comments appear directed toward petitioner's demeanor rather than his silence, and courts are not inclined to infer that a prosecutor's comments made during jury argument were intended to have the most damaging meaning. Donnelley v. DeChristoforo, 416 U.S. 637, 647 (1974). The undersigned will recommend that as to these contentions, the relief sought by petitioner be denied and judgment entered in favor of respondent.
4. Contention V(F): Trial Court's Failure to Submit Non-Statutory Mitigating Circumstance that the Petitioner Did Not Act In Calculating Manner and Murders Not Committed For Pecuniary Gain
Petitioner next contends that it was constitutional error for the trial court to fail to submit the nonstatutory mitigating circumstances that he did not act in a calculating manner and that the murders were not committed for pecuniary gain. He asserts under the reasoning of Lockett v. Ohio, supra, that such decision violated his rights under the eighth and fourteenth amendments. On direct appeal, the North Carolina Supreme Court rejected this argument on the merits, holding that the fact "the murder was not committed in a calculated manner is not, in our opinion, a mitigating circumstance"; that a review of the record revealed no evidence that petitioner did not act in a calculated manner; and that even assuming arguendo that the evidence showed that petitioner did not act for pecuniary gain, "the evidence merely shows the absence of an aggravating circumstance and not the presence of a mitigating one." State v. Brown, supra, at 178-79. Again, if the Antiterrorism and Effective Death Penalty Act of 1996 were applicable to this case, this court would be compelled to defer to the well-reasoned decision of the North Carolina Supreme Court, which is a reasonable application of federal law.
It is beyond dispute in this case that the Court's decision in Lockett requires a trial court to allow a capital sentencing jury to consider all aspects of a defendant's character, record, or circumstances of an offense. Lockett v. Ohio, supra, at 604. Lockett, however, does not preempt state courts from administering their own rules of evidence.Hutchins v. Garrison, 724 F.2d 1425, 1437 (4th Cir. 1983) (a state court could strike testimony from witnesses presenting mitigating evidence when they strayed from the subject before the court), cert. denied, 464 U.S. 1065 (1984). Review of the transcript reveals that the trial court instructed the jury that it was its duty to consider in mitigation any circumstance that the petitioner contended was a basis for a sentence less than death and any other circumstance arising from the evidence which the jury deemed to have mitigating value. Transcript, at 1773-75.
Further review of the transcript reveals that petitioner's defense team argued the nonstatutory mitigating circumstances asserted in this contention in the context of the substantiality of the aggravating circumstances, placing these factors before the jury for its consideration. Transcript, at 1752. The jury, therefore, was authorized to consider these mitigating circumstances, and no issue under Lockett is raised. As to this contention, the undersigned will recommend that the relief sought be denied and judgment entered in favor of respondent.
5. Contention V(G): Trial Court's Submission of "Course of Conduct" Aggravating Circumstance
Petitioner next asserts that submission of the "course of conduct" aggravating circumstance (N.C. Gen. Stat. § 15A-2000(e)(11)) violated his rights under the fifth, eighth, and fourteenth amendments. His theory is that it is constitutional error in a simultaneous double homicide case to use each homicide as an aggravating circumstance for the other. On direct appeal, the North Carolina Supreme Court rejected this argument based on State v. Pinch, 306 N.C. 1, 29-32, cert. denied, 459 U.S. 1056, reh'g denied, 459 U.S. 1189 (1982), which held that submission of each homicide in a double homicide case as an aggravating factor of the other did not violate a defendant's fifth amendment right to due process. State v. Brown, supra, at 182-83. If the Antiterrorism and Effective Death Penalty Act of 1996 was applicable to this case, the undersigned would be compelled to defer to the decision of the North Carolina Supreme Court, which is a reasonable application of federal law.
Review of a state court's finding of an aggravating circumstance is limited to the rational fact finder standard provided in Jackson v. Virginia, 443 U.S. 307 (1979). See Lewis v. Jeffers, 497 U.S. 764, 781 (1990). The evidence of record satisfies that standard, and the fact that the "course of conduct" aggravating circumstances were reciprocal is solely a matter of state law, not reviewable in this federal habeas proceeding. As to this contention, the undersigned will recommend that the relief sought by petitioner be denied and judgment entered in favor of respondent.
6. Contention V(H): Trial Court's Instruction that the Jury Must Recommend the Death Penalty if it Found the Aggravating Circumstances Outweighed the Mitigating Circumstances
Petitioner next contends that his rights under the eighth and fourteenth amendments were violated by the trial court's sentencing instructions that the jury "must" recommend the death penalty it found that the aggravating circumstances outweighed the mitigating circumstances. Transcript, at 1776. On direct appeal, the North Carolina Supreme Court rejected this contention based on its earlier reasoning inState v. Pinch, supra, at 32-34. State v. Brown, supra, at 184. If the Antiterrorisn and Effective Death Penalty Act of 1996 were applicable to this case, the undersigned would be compelled to defer to the decision of the North Carolina Supreme Court, which is a reasonable application of federal law.
Reviewing this claim independently of the decision of the state court, it appears that the contention finds no support in law. In McDougall v. Dixon, 921 F.2d 518 (4th Cir. 1990), cert. denied, 501 U.S. 1223 (1991), the Court of Appeals for the Fourth Circuit found no constitutional infirmity in the trial court's use of the word "duty" to explain the jury's responsibility to recommend the death penalty after making the requisite unanimous findings that the aggravating circumstances outweighed the mitigating circumstances and that the aggravating circumstances were sufficiently substantial to warrant the death penalty. Id., at 528-29. See also Walton v. Arizona, 497 U.S. 639 (1990) (statute directing death penalty if one or more aggravating circumstances is found and no mitigating factors "sufficient to call for leniency" held not violative of the violate eighth amendment). Finding no support in law for this contention, the undersigned will recommend that the relief sought by petitioner on this claim be denied and judgment entered in favor of respondent.
7. Contention V(I): Trial Court's Failure to Instruct Sentencing Jury that if Deadlocked the Court would Impose a Life Sentence
Petitioner next contends that his rights under the eighth and fourteenth amendments were violated by the trial court's failure to instruct the sentencing jury that, if it deadlocked, a life sentence would be imposed by the court automatically. On direct appeal, this contention was considered and rejected by the North Carolina Supreme Court based upon its reasoning in State v. Hutchins, 303 N .C. 321, 353 (1981). State v. Brown, supra, at 184-85. If the Antiterrorism and Effective Death Penalty Act of 1996 were applicable to this case, the undersigned would be compelled to defer to the decision of the North Carolina Supreme Court, which is a reasonable application of federal law.
As recently as 1989, this theory of habeas relief was rejected by the Court of Appeals for the Fourth Circuit. Evans v. Thompson, 881 F.2d 117, 123 (4th Cir. 1989), cert. denied, 497 U.S. 1010 (1990). See also Barfield v. Harris, 540 F. Supp. 451, 472 (E.D.N.C. 1982), aff'd 719 F.2d 58, 63 (4th Cir. 1983), cert. denied, 467 U.S. 1210 (1984). Finding no support in law for this contention, the undersigned will recommend that the relief sought by petitioner be denied and judgment entered in favor of respondent.
8. Contention V(J): Trial Court's Refusal to Instruct On Parole Eligibility
In his final contention, petitioner asserts that it was constitutional error for the trial court to refuse to instruct the jury on his parole eligibility after receiving a question from the jury concerning his chances for parole and how long he would have to serve. He contends that the alleged error by the trial court violated his rights under the eighth and fourteenth amendments, thereby entitling him to a new sentencing hearing. On direct appeal, this contention was considered and rejected by the North Carolina Supreme Court, which found that the trial court properly instructed the jury not to consider parole eligibility in recommending the punishment to be imposed. State v. Brown, supra, at 181. If the Antiterrorism and Effective Death Penalty Act of 1996 were applicable to this case, the undersigned would be compelled to defer to the decision of the North Carolina Supreme Court, which is a reasonable application of federal law.
In Simmons v. South Carolina, 512 U.S. 154 (1994), the Court held that a defendant has a due-process right to inform the jury that if it recommends life imprisonment, existing state law would make that defendant ineligible for parole where the prosecution argues to a capital sentencing jury it should impose the death penalty due to the defendant's future dangerousness. The Simmons Court limited its decision to states offering life without parole as an alternative to imposition of the death penalty and exempted from that rule those states which provide for parole eligibility on a life sentence. In State v. Price, 337 N.C. 756 (1994)cert denied, 115 S.Ct. 1368, reh'g denied, 115 S.Ct. 1993 (1995), the North Carolina Supreme Court recognized that the Simmons decision is inapplicable to North Carolina. In this case, Simmons has no application because petitioner would have been eligible for parole on a life sentence under North Carolina law. See N.C. Gen. Stat. § 15A 1371 (a1). Indeed, if Simmons were applicable in North Carolina, which it patently is not, its retroactive application would be barred under Teague v. Lane, 489 U.S. 288, 305-10 (1989). As to this contention, the undersigned finds no support in law for the claim, will recommend that the relief sought by petitioner be denied and judgment entered in favor of respondent.
V. Conclusion
A. Summary of Disposition of Contentions
The undersigned has reviewed the evidence and arguments presented in a light most favorable to petitioner, but can find no factual or legal basis for recommending that the relief sought be granted. At times, evidence presented lapsed into contentions that have already been disposed o or that had not been asserted. For example, a great deal of time was spent on whether the district attorney "cherry picked" the trial judge and whether he sought issuance of a bill of indictment to avoid providing petitioner with a probable cause hearing and an opportunity for discovery; however, no showing was made that the trial judge was biased,see Tumey v. Ohio, 273 U.S. 510 (1927), or that imperfections in the process deprived petitioner of a fair trial. In Sherman v. Smith, 89 F.3d 1134 (4th Cir. 1996), the Court of Appeals for the Fourth Circuit held:
Criminal defendants in this country are entitled to a fair, but not a perfect trial. "[G]iven the myriad safeguards provided to assure a fair trial, and taking into account the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial," and the Constitution does not demand one. United States v. Hasting, 461 U.S. 499, 508, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96 (1983). This focus on fairness, rather than on perfection, protects society from individuals who have been duly and fairly convicted of crimes, thereby promoting "public respect for the criminal process." Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986).
With this in mind, the Supreme Court has recognized that most errors do not automatically render a trial unfair and thus, can be harmless. Fulminante, 499 U.S. at 306-07, 111 S.Ct. at 1262-64. Fulminante enumerated the wide variety of constitutional errors subject to harmless error analysis. They include improper admission of an involuntary confession, id. at 306-12, 111 S.Ct. at 1262-66; overbroad jury instructions at the sentencing stage of a capital case, Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990); improper admission of evidence at the sentencing stage of a capital case, Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988); jury instructions containing erroneous conclusive or rebuttable presumptions, Carella v. California, 491 U.S. 263, 266-67, 109 S.Ct. 2419, 2421-22, 105 L.Ed.2d 218 (1989) (per curiam); Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986); erroneous exclusion of a defendant's testimony regarding the circumstances of a confession, Crane v. Kentucky, 476 U.S. 683, 691, 106 S.Ct. 2142, 2147, 90 L.Ed.2d 636 (1986); improper restriction on a defendant's right to cross-examine witnesses for bias, Van Arsdall, 475 U.S. at 673, 106 S.Ct. at 1432; denial of a defendant's right to be present at trial, Rushen v. Spain, 464 U.S. 114, 117-19 and n. 2, 104 S.Ct. 453, 454-56 and n. 2, 78 L.Ed.2d 267 (1983) (per curiam); improper comment on a defendant's silence at trial, Hasting, 461 U.S. at 499, 103 S.Ct. at 1975; improper prohibition on the provision of a lesser included offense instruction in a capital case, Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982); failure to instruct the jury on the presumption of innocence, Kentucky v. Whorton, 441 U.S. 786, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979) (per curiam); improper admission of identification evidence, Moore v. Illinois, 434 U.S. 220, 232, 98 S.Ct. 458, 466, 54 L.Ed.2d 424 (1977); erroneous admission of an out-of-court statement of a nontestifying codefendant, Brown v. United States, 411 U.S. 223, 231-32, 93 S.Ct. 1565, 1570-71, 36 L.Ed.2d 208 (1973); improper admission of a confession made to an undercover officer, Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); admission of evidence obtained in violation of the Fourth Amendment, Chambers v. Maroney, 399 U.S. 42, 52-3, 90 S.Ct. 1975, 1981-82, 26 L.Ed.2d 419 (1970); and improper denial of counsel at a preliminary hearing, Coleman v. Alabama, 399 U.S. 1, 10-11, 90 S.Ct. 1999, 2003-04, 26 L.Ed.2d 387 (1970). Indeed, "if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis." Rose, 478 U.S. at 579, 106 S.Ct. at 3106-07; see also United States v. Blevins, 960 F.2d 1252, 1261-62 (4th Cir. 1992).Id., at 1138. Petitioner argued that his contentions, taken together, point to structural error entitling him to a new trial. In Arizona v. Fulminante, 499 U.S. 279 (1991), the Supreme Court held that certain structural errors are so severe as to render a trial inherently unfair, taking habeas review beyond harmless-error analysis Id., at 309-10. A structural error impacts the "entire conduct of the trial from beginning to end." Id., at 309. No doubt, there were errors committed by the district attorney during the discovery process, and the district attorney fully used the power vested in his office by the state legislature to bring this matter to trial when he wanted it. In addition, while there is no evidence that the district attorney usurped the power of the North Carolina Administrative Office of the Courts in selecting a judge or that such judge was biased, Mr. Lowder's testimony indicated that had he not been satisfied with the judge assigned to the December 1980 session, petitioner's case would not have appeared on that particular calendar. North Carolina should review a system which allows the district attorney to create an advantage in a criminal case. Taking everything into account, it is now time for the litigation to be resolved. In the case at bar, a murder conviction has hung in the balance for years, not for lack of evidence, but because a prosecutor wanted to improve his odds of getting a conviction in a virtually open-and-shut case. Focusing on this particular case, there was no structural error, the error that was committed was harmless, and the denial of access to the crime scene, the withholding of the report concerning Willie Squires, and the instruction to witness(es) not to talk with defense counsel, while abhorrent, would not, taken together, lead to a reasonable probability that, but for those actions, the result would have been different.
B. Recommendation that Writ be Granted/Denied
Counsel for petitioner and respondent should be commended for their diligent and tenacious work on this federal case for nearly the last decade. The undersigned will recommend that the relief sought by petitioner in his Amended Petition be denied and judgment entered in respondent's favor. It will be the further recommendation of the undersigned that the stay of execution entered by Judge McMillan in 1987 be lifted by the district court at the appropriate time.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that
(1) petitioner's Motion for Summary Judgment be DENIED;
(2) respondent's Motion for Summary Judgment be GRANTED;
(3) the relief sought by petitioner be DENIED and JUDGMENT entered in respondent's favor; and
(4) at the appropriate time, the district court lift the stay of execution imposed by Judge McMillan in 1987.
The parties are hereby advised that, pursuant to 28, United States Code, Section 636(b)(1)(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal. Thomas v. Arn, 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208 (1984).
This Memorandum and Recommendation is entered in response to petitioner's Motion for Summary Judgment (#___) and respondent's Motion for Summary Judgment (#__).
This 3rd day of December, 1996.