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Joseph Earl BATES

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Torture
Number of victims: 1
Date of murder: August 11, 1990
Date of arrest: August 30, 1990
Date of birth: May 1, 1968
Victim profile: Charles Edwin Jenkins
Method of murder: Shooting
Location: Yadkin County, North Carolina, USA
Status: Executed by lethal injection in North Carolina on September 26, 2003
 
 
 
 
 
 

Summary:

Upset and trying to discover who had fired shots into his house two weeks earlier, Bates and Gary Shaver agreed to give an acquaintance, Charles Edward Jenkins, a ride home from a bar.

During the ride, the car was stopped and Bates struck Jenkins three times on the back of the head with a shovel, appearing to knock him unconscious. When Jenkins began to moan, Bates struck him again, hog-tied him, and then placed him in the vehicle.

On the way back to his campsite, Bates stopped at another friend's house and said, "I’ve got one of the guys that’s been messing with me. Do you want to watch or help?"

All his friends declined and Bates drove to a campsite, and tied Jenkins to a tree, continuing to beat and threaten him for information. Bates then untied Jenkins, took him to the back of the truck, and shot him in the neck.

Upon questioning, Bates gave a complete confession to police.

Citations:

State v. Bates, 497 S.E.2d 276 (N.C. 1998) (Discovery Motion).
State v. Bates, 473 S.E.2d 269 (1996). (Direct Appeal After Remand)
Bates v. North Carolina, 510 U.S. 984, 114 S.Ct. 487, 126 L.Ed.2d 438 (1993) (Cert. Denied).
State v. Bates, 428 S.E.2d 693 (N.C. 1993) (Direct Appeal - Reversed).

Final Meal:

Fried pork chops, French fries, hush puppies, apple pie, a Pepsi and a Dr. Pepper.

Final Words:

"I haven't really give it any thought," Bates said when asked by prison warden Marvin Polk for last words before being wheeled into the steel-walled execution chamber. "Let's see. Hebrews, Chapter 13, Verse 6, they can read it." The verse says: "So that we may boldly say, the Lord is my helper, and I will not fear what man shall do unto me."

ClarkProsecutor.org

 
 

North Carolina Department of Corrections

DOC Number: 0023098

Joseph E. Bates

Execution date set for Joseph Bates

RALEIGH - Correction Secretary Theodis Beck has set September 26, 2003 as the execution date for death row inmate Joseph Earl Bates. The execution is scheduled for 2 a.m. at Central Prison in Raleigh.

Bates, 35, was first sentenced to death on March 2, 1991 in Yadkin County Superior Court for the August 1990 murder of Charles Edwin Jenkins. On appeal, the North Carolina Supreme Court awarded Bates a new trial. After a second trial, Bates received the death sentence on November 9, 1994. He also received a 40-year sentence for one count of kidnapping.

A media tour is scheduled at Central Prison on Monday, Sept. 22. Interested media representatives should arrive at Central Prison's visitor center promptly at 10 a.m. on the tour date. Warden Marvin Polk will explain the execution procedures. The session will last approximately one hour. This will be the only opportunity to photograph the execution chamber and death watch area before the execution.

Journalists who plan to attend the tour should contact the Department of Correction Public Information Office at 919-716-3700.

 
 

ProDeathPenalty.com

Joseph Bates, 35, was first sentenced to death on March 2, 1991 in Yadkin County Superior Court for the August 1990 murder of Charles Edwin Jenkins. On appeal, the North Carolina Supreme Court awarded Bates a new trial. After a second trial, Bates received the death sentence on November 9, 1994. He also received a 40-year sentence for one count of kidnapping.

On August 25, 1990, two fishermen discovered Charles Jenkins’ body floating in the Yadkin River, in Yadkin County, North Carolina. Charles’s ankles and wrists were bound by rope, his legs and arms were hog-tied, and a rope was tied around his neck.

While investigating the murder, two police officers went to Bates’ house to speak with him. At that time, the officers obtained a piece of paper and some molding from Bates’ home having what appeared to be bloodstains on it.

The following day, Bates gave a thirteen-page confession, in which he admitted to beating, hog-tying, kidnapping, and then shooting the victim in the neck. Bates was indicted for kidnapping and murder.

The facts surrounding the crime are undisputed. Sometime in late July or early August 1990, someone broke into and fired gunshots into Bates’ home, causing Bates to set up a temporary campsite on his employer Hal Eddleman’s property. Around this same time Bates told his friend, Gary Shaver, that he could kill someone.

On August 10, Bates called Eddleman and told Eddleman to meet him at the bridge later that evening because something was "going down." Eddleman went to the bridge as instructed, but Bates never came to meet him.

The next evening Bates and Shaver went to a night club. At approximately 1:45 a.m., Bates instructed a waitress to ask Billy Grimes, another friend, to telephone Eddleman. Bates told her that Grimes and Eddleman would know what was going on.

At approximately 2:00 a.m., Jenkins asked Bates and Shaver for a ride home. During the ride, Bates asked Jenkins if he knew Bates’ ex-wife and her new boyfriend, and Jenkins replied that he did. Bates stopped twice during the ride.

During the second stop, Bates struck Jenkins three times on the back of the head with a shovel, appearing to knock him unconscious. When Jenkins began to moan, Bates struck him again, hog-tied him, and then placed him in the vehicle.

On the way back to his campsite, Bates stopped at Eddleman’s house and told Eddleman that he "got one of the MF’s." He then told Grimes, "I’ve got one of the guys that’s been messing with me. Do you want to watch or help?" Grimes declined to help, as did Shaver and Eddleman.

Bates drove Jenkins back to his campsite around 4:00 a.m. At the campsite, Bates loosened the ropes on Jenkins and began asking Jenkins who had shot into his home. Jenkins mentioned two people who were involved, but did not say anything else.

Unsatisfied with Jenkins’ response, Bates then tied Jenkins to a tree and went to his tent to retrieve a gun that he had borrowed from Eddleman. Bates put the gun up to Jenkins throat, but Jenkins repeated that he did not know for sure who had shot into Bates’ home. Bates then untied Jenkins, took him to the back of the truck, and shot him in the neck. Jenkins was lying face-up near the back of the truck when Bates shot him.

In his confession, Bates said he "shot him . . . because he acted like he knew who had shot into my house, he spit on me and told me to go to hell, and this made me mad and I shot him." After rummaging through Jenkins’ pockets, Bates retied Jenkins’ hands and feet and loaded him into the jeep.

Bates drove back to Eddleman’s house, returned Eddleman’s gun, and asked, "what do you think I should do with the body." Bates then left and threw the body into the Yadkin River.

Later that day Bates discussed the murder with both Eddleman and Grimes. Bates told Eddleman, "Well, it don’t bother me all that bad." Bates told Grimes that he killed the victim because he would get no more time for murder than for kidnapping. Bates was indicted for kidnapping and murder. The State sought the death penalty.

A jury found Bates guilty of one count of first degree murder and one count of first degree kidnapping. He was sentenced to death for the first degree murder conviction.

On appeal, the North Carolina Supreme Court awarded Bates a new trial based on an improper denial of Bates’ motion for an ex parte hearing regarding his request for funds to employ a forensic psychologist. Bates was retried, and a second jury found Bates guilty of one count of first degree kidnapping and one count of first degree murder on the basis of both the felony murder rule and premeditation and deliberation.

The jury recommended the death sentence on the basis of the kidnapping and the especially heinous, atrocious, or cruel nature of the crime. On November 9, 1994, Judge Julius Rousseau sentenced Bates to death for the first degree murder conviction and to an additional forty years in prison for the kidnapping conviction.

 
 

N.C. Man Executed for 1990 Slaying

By Estes Thompson - Raleigh News & Observer

AP September 26, 2003

RALEIGH, N.C. (AP) - A Yadkin County man executed early Friday for a 1990 slaying he blamed on brain damage referred to a Bible verse just before he was put to death.

Joseph Earl Bates, 35, was executed by injection at Central Prison in Raleigh. He was pronounced dead at 2:14 a.m., said Department of Correction spokeswoman Pam Walker. "I haven't really give it any thought," Bates said when asked by prison warden Marvin Polk for last words before being wheeled into the steel-walled execution chamber. "Let's see. Hebrews, Chapter 13, Verse 6, they can read it." The verse says: "So that we may boldly say, the Lord is my helper, and I will not fear what man shall do unto me."

None of Bates' relatives witnessed the execution. Bates stared straight ahead as four law enforcement officers and two relatives of the victim watched as he died. "It's just an ending of the case," said Yadkin County Sheriff Michael Cain. "Certain crimes are going to be met with certain penalties." Bates confessed to killing Charles Edward Jenkins of Yadkin County after agreeing to give him a ride home from a bar.

Bates was convicted of first-degree murder and kidnapping in 1991 but his conviction and death sentence were overturned because he didn't receive funds for a mental health expert. The expert in his second trial in 1994 didn't know about his brain injury. He was convicted and resentenced to death for the 1990 slaying.

Defense lawyers appealed to the U.S. Supreme Court while Bates visited relatives hours before the execution was scheduled. They also sought clemency from North Carolina Gov. Mike Easley. Both requests were denied on Thursday. "I find no compelling reason to invalidate the sentence recommended by two juries and affirmed by the courts," Easley said in a statement issued by his office.

The federal appeal said Bates was poorly represented by appeals lawyers after he was convicted. The petition said one lawyer spent very little time on the case, billing only 12 minutes in 1998, and the other was ineffective because he was depressed. Justices of the North Carolina Supreme Court denied an appeal on Wednesday.

Bates' family and friends said he was coerced into the killing by two other men, one of whom received a suspended sentence for aiding in the kidnapping. Prosecutors and Jenkins' family said the killing was premeditated and brutal. Jenkins' body was thrown into a river.

Two other inmates have been executed in North Carolina in the past five weeks. Another execution is scheduled next week for convicted killer Edward Hartman. Hartman, 38, was convicted of the 1993 murder of Herman Smith Jr. in Northampton County.

 
 

Bates Executed for 1990 Slaying in Yadkin County

News 14 Carolina

September 26, 2003

(RALEIGH) -- A Yadkin County man was executed Friday morning at Raleigh's Central Prison. Joseph Earl Bates was put to death by lethal injection for a 1990 murder. A Correction Department official says Bates died at 2:14 a.m. He was 35 years old. Bates confessed to shooting Charles Edward Jenkins. His body was dumped in a river.

Governor Easley and the U.S. Supreme Court declined on Thursday night to stop his execution. Bates' death row attorneys had said he deserved a life sentence. They say jurors never heard about the brain damage he suffered from a car wreck three years before the murder.

They also say he was poorly represented by his former appeals lawyers after he was convicted. Attorneys for the state and Jenkins' family argued the slaying was a premeditated, brutal killing.

Bates is the third death row prisoner executed in North Carolina in the past five weeks. Another execution is set for next week.

 
 

State Executes Joseph Earl Bates For 1990 Slaying

NBC Channel 17 News

September 26, 2003

RALEIGH, N.C. -- A Yadkin County man was executed early Friday for a 1990 slaying he blamed on brain damage he suffered from a car wreck three years earlier. Joseph Earl Bates, 35, was put to death by lethal injection at Central Prison in Raleigh. He was pronounced dead at 2:14 a.m., said Department of Correction spokeswoman Pam Walker.

Bates confessed to killing Charles Edward Jenkins of Yadkin County after agreeing to give him a ride home from a bar. Bates was convicted of first-degree murder and kidnapping in 1991 but his conviction and death sentence were overturned because he didn't receive funds for a mental health expert. The expert in his second trial in 1994 didn't know about his brain injury. He was convicted and resentenced to death for the 1990 slaying.

Defense lawyers had appealed to the U.S. Supreme Court while Bates visited relatives hours before the execution was scheduled. They also sought clemency from North Carolina Gov. Mike Easley. Both requests were denied on Thursday. "I find no compelling reason to invalidate the sentence recommended by two juries and affirmed by the courts," Easley said in a news release, refusing to commute Bates' sentence to life in prison.

The federal appeal said Bates was poorly represented by appeals lawyers after he was convicted. The petition said one lawyer spent very little time on the case, billing only 12 minutes in 1998, and the other was ineffective because he was depressed. "This petitioner, locked on death row, experienced the illusion of two counsels acting on his behalf," the petition said. Justices of the North Carolina Supreme Court denied an appeal on Wednesday. State prosecutors have said Bates had no claims that warrant a stay of execution and a review by appeals courts.

Bates' family and friends said he was coerced into the killing by two other men, one of whom received a suspended sentence for aiding in the kidnapping. Attorneys for the state and Jenkins' family said the killing was premeditated and brutal. Jenkins' body was thrown into a river.

Two other inmates have been executed in North Carolina in the past five weeks. Another execution is scheduled next week for convicted killer Edward Hartman. Hartman, 38, was convicted of the 1993 murder of Herman Smith Jr. in Northampton County.

 
 

Easley Holds Clemency Hearing For Bates, Convicted Of Kidnapping, Murder

NBC Channel 17 News

September 23, 2003

RALEIGH, N.C. -- Gov. Mike Easley heard Tuesday from prosecutors and defense attorneys arguing whether a Yadkin County man should be executed later this week. Joseph Earl Bates is set to die early Friday at Raleigh's Central Prison. He was convicted of kidnapping and killing a man he met at a bar in 1990.

Bates confessed to fatally shooting Charles Jenkins, but his attorneys say jurors didn't hear evidence about how Bates' suffered brain damage after a serious car accident three years before the murder. They also told reporters after the clemency hearing that at least one of his appellate lawyers didn't give enough time to the case.

Yadkin County District Attorney Tom Horner spoke with Easley Tuesday morning at the governor's office in Raleigh. Easley can commute the sentence to life in prison.

Bates' attorneys say they plan late Tuesday or Wednesday to ask the state Supreme Court for a stay of the execution.

 
 

N.C. Supreme Court Denies Stay Of Execution For Bates

NBC Channel 17 News

September 24, 2003

RALEIGH, N.C. -- The state Supreme Court on Wednesday denied a request for a stay from a death row inmate who said brain damage suffered in a car wreck changed him from a kind man into a killer. The court denied the request from Joseph Earl Bates, who is scheduled to be executed at 2 a.m. Friday.

Bates, 35, confessed to killing Charles Edward Jenkins after agreeing to give him a ride home from a bar in 1990, three years after his car accident. A Yadkin County judge Monday denied a request for a stay of the execution. His attorneys filed an appeal late Tuesday to the state Supreme Court, saying brain injury evidence and allegations of ineffective counsel need to be considered.

In a response filed Wednesday, state prosecutors said "Bates has presented nothing warranting a stay of execution and certiorari review." Bates was convicted of first-degree murder and kidnapping in 1991 but his conviction and death sentence were overturned because he didn't receive funds for a mental health expert. The expert in his second trial in 1994 didn't know about his brain injury. He was convicted and resentenced to death.

Bates' family and friends say he was coerced into the killing by two other men, one of whom received a suspended sentence for the aiding in the kidnapping. At a clemency hearing Tuesday, Bates' attorneys asked Gov. Mike Easley to commute his sentence to life behind bars. Bates had several friends and family members pleading his case outside Easley's office, recalling a Joe Bates who worked hard in school and on the football field before his accident made him paranoid and irrational. "He doesn't deserve the death penalty," said his sister, Tricia Bullins of Sandy Ridge, while carrying an old Bible, embossed with her brother's name. "This is totally out of character."

Attorneys for the state and Jenkins family' told Easley earlier Tuesday the execution should go forward, saying it was a premeditated, brutal killing. Jenkins' body was thrown into a river. "Life is a valuable thing and my brother's life was taken," said David Jenkins, the victim's brother. "Life is so valuable that it requires a life be paid."

Bates' attorneys also have presented sworn statements from two former lawyers who handled Bates' post-conviction appeals. One said he suffered from clinical depression while handling a Bates motion, seriously harming If his appeals fail, Bates would be the third death row prisoner to be executed in North Carolina in five weeks.

On Wednesday, the state Correction Department named witnesses for Bates' execution. Official witnesses are: David Jenkins and Karl Jenkins, both victims' family members; Ron Perry and Frank Brown, both of the State Bureau of Investigation; Yadkin County Sheriff Michael Cain; and Yadkin County sheriff's Maj. Raymond Wells Swain. Media witnesses are: Andy Matthew of the Yadkin Ripple; Scott Sexton of the Winston-Salem Journal; and Estes Thompson of The Associated Press.

 
 

A questionable case

Here's one more example of N.C.'s flawed system

Charlotte Observer

Here's the theory: A person accused of first-degree murder in North Carolina is entitled to a vigorous, competent defense and a comprehensive review of the sentence before being put to death.

Here's the reality: Those accused of murder often have incompetent lawyers who don't thoroughly investigate the facts, bring those facts to the jury's attention and aggressively pursue appeals after conviction. Defendants go to their death in the sure knowledge that the state allows some killers to get off with life in prison while others convicted of similar crimes get the Big Needle.

If usual practice continues this week, convicted murderer Joseph Earl Bates will be put to death early Friday at Central Prison in Raleigh without a single juror ever considering some critical facts in his case. The sorry truth is that Mr. Bates' lawyers never told his trial jurors that the defendant had suffered brain damage in an auto accident that rendered him paranoid, anxious and depressed -- factors the federal courts have said should be considered in murder cases. Four jurors later said they might have voted differently had they known of his background.

There is no doubt that Joseph Earl Bates killed Charles Jenkins, a stranger, after offering him a ride home from a bar in 1990. There is also no question that Mr. Bates, who had been borderline mentally retarded prior to suffering the brain damage in 1987, underwent significant personality changes after the accident. Experts now say he was suffering from severe mental disturbances, but his trial lawyers never brought that up at trial.

One of his appellate lawyers also suffered from mental problems, quit working on the case and left town, Mr. Bates' lawyers say. That lawyer, David Williams, later said his condition had an adverse impact on his ability to represent Mr. Bates.

These kinds of circumstances often cloud the death sentences handed out in North Carolina. Gov. Mike Easley, who has the constitutional duty to make the final person on whether justice was done in death penalty cases, appears to view his role narrowly -- as an appellate judge making sure there was no overriding legal error in the process.

We believe the governor should take a broader view and answer the questions that trouble many North Carolinians -- even those who support the death penalty. Is it fair that some murderers are sentenced to life in prison while others found guilty of similar crimes are put to death? Is it fair that prosecutors in some parts of the state seek the death penalty for crimes that prosecutors elsewhere would not treat as capital cases? Is it fair that, with few exceptions, murderers sentenced to death had lousy or inexperienced lawyers?

We believe the answers to these questions are no, no and no. Gov. Easley should impose a moratorium on further executions until the state demonstrates that it can prosecute capital cases and apply the death penalty in an equitable fashion. This won't spare Joseph Earl Bates' life. But it would spare the people of North Carolina the awful knowledge that our system of criminal justice is so fatally flawed.

 
 

National Coalition to Abolish the Death Penalty

Joseph Bates, North Carolina - Sept. 26, 2003

The state of North Carolina is scheduled to execute Joseph Bates, a white man, Sept. 26 for the 1990 murder of Charles Jenkins. Bates has serious mental health issues that were not presented at trial or pursued in court. He suffers from the effects of serious and repeated traumatic head injuries that were suffered in the years before his crime and subsequently altered his personality. He has been diagnosed as paranoid and delusional and has attempted suicide twice while in prison.

Four jurors have stated that they would have handed down a different verdict had they known of Bates’s mental problems.

The National Mental Health Association, the nation's oldest and largest organization that conducts research on mental illness, estimates that as many as 370 people with severe mental illnesses currently sit on death row—more than 1 of every 10 prisoners awaiting execution. The justice system "inadequately addresses the complexity of cases involving criminal defendants with mental illness," the group has concluded, calling for a complete suspension of the death penalty until the courts devise "more just, accurate and systematic ways of determining and considering a defendant's mental status."

In fact, there are currently few provisions in place that require judges and juries to spare the lives of those with severe mental illnesses. Even defendants who suffer from extreme delusions are deemed mentally "competent" to stand trial for their life if they simply understand that they are being executed and why they are being executed. "You may believe that your thoughts are controlled by aliens who are beaming rays into your brain," says Stephen Bright, an attorney who heads the Southern Center for Human Rights in Atlanta, "but that won't necessarily have any bearing when it comes to assessing your competence to be executed."

"Mentally ill or not, most people facing capital charges are poor," notes Collie Brown, senior director for criminal justice programs at the National Mental Health Association. "They don't have the resources to retain expert witnesses," and they often get court-appointed attorneys who don't even raise their condition at trial."

The state sanctioned termination of the mentally ill can not be allowed to continue. Please contact Gov. Mike Easley and urge him to commute the death sentence of Joseph Bates.

 
 

Bates v. North Carolina, 473 S.E.2d 269 (1996). (Direct Appeal After Remand)

Defendant's initial conviction of murder and sentence of death was reversed for new trial by the Supreme Court, 333 N.C. 523, 428 S.E.2d 693. Following jury trial before the Superior Court, Yadkin County, Rousseau, J., defendant was again convicted of first-degree murder and first-degree kidnapping and sentenced to death. Defendant appealed. The Supreme Court, Frye, J., held that: (1) defendant was properly denied instruction on second- degree murder; (2) refusal to submit separately four nonstatutory mitigating circumstances either not supported by evidence or subsumed in other mitigating circumstances was not error; (3) trial court correctly refused to peremptorily instruct jury regarding mitigating circumstances on which evidence was controverted; (4) aggravating circumstances that murder was especially heinous, atrocious or cruel and that murder was committed in course of commission of felony were supported by separate evidence and thus both circumstances were properly submitted; (5) prosecutor's comments on defendant's demeanor were not improper comments on defendant's failure to testify; (6) defendant was not prejudiced by refusal to allow him to inquire whether jurors would hold his election not to testify against him; (7) defendant was not in custody when he made statements prior to being Mirandized; (8) trial court did not unduly restrict defendant's voir dire of prospective jurors; (9) prosecutor's exercise of eight of 12 peremptory challenges against women did not show prima facie case of gender discrimination; and (10) death sentence was not excessive or disproportionate to penalty imposed in similar cases. No error.

FRYE, Justice.

Defendant, Joseph Earl Bates, was indicted on 29 October 1990 for the murder and the first-degree kidnapping of Charles Edwin Jenkins. He was tried capitally in February 1991, found guilty of one count of first-degree murder and one count of first-degree kidnapping, and sentenced to death for the first- degree murder conviction. On appeal, we awarded defendant a new trial. State v. Bates, 333 N.C. 523, 428 S.E.2d 693, cert. denied, 510 U.S. 984, 114 S.Ct. 487, 126 L.Ed.2d 438 (1993)

During defendant's second capital trial, the jury returned verdicts of guilty of one count of first-degree kidnapping and guilty of one count of first-degree murder on the basis of premeditation and deliberation and under the felony murder rule. During a capital sentencing proceeding conducted pursuant to N.C.G.S. § 15A-2000 the jury recommended a sentence of death for the first-degree murder conviction. The jury found as aggravating circumstances that the murder was committed while defendant was engaged in the commission of a kidnapping, N.C.G.S. § 15A- 2000(e)(5) (1988) ; and that the murder was especially heinous, atrocious, or cruel, N.C.G.S. § 15A-2000(e)(9) (1988).

The jury also found seven of the seventeen statutory and nonstatutory mitigating circumstances submitted to it. On 9 November 1994, Judge Rousseau sentenced defendant to forty years in prison for his first-degree kidnapping conviction, and upon the jury's recommendation, he imposed a sentence of death for defendant's first-degree murder conviction.

Defendant appeals to this Court as of right from the first-degree murder conviction; he does not appeal the kidnapping conviction. Defendant makes twenty-four arguments on appeal, supported by thirty-one assignments of error. We reject each of these arguments and conclude that defendant's trial and capital sentencing proceeding were free of prejudicial error and that the death sentence is not disproportionate. Accordingly, we uphold defendant's conviction of first-degree murder and his sentence of death.

The State's evidence presented at trial tended to show the following facts and circumstances: At approximately 9:30 p.m. on 10 August 1990, defendant spoke with Hal Eddleman, his employer, inside defendant's tent, which was located on Eddleman's land. Eddleman allowed defendant to set up a campsite on his property after someone had broken into and fired gunshots into defendant's house.

Defendant told Eddleman, "There's something going down at [the] Donnaha [bridge]. This guy got in touch with me, and told me to meet him over at Donnaha, we'd get it over with." As a result of this conversation, at approximately 11:30 p.m. on 10 August 1990, Eddleman and his wife went to the Donnaha bridge, which extends across the Yadkin River. They remained there for approximately two to two and one-half hours. After seeing no one, they returned home and went to bed.

At around 9:00 or 9:30 p.m. on 11 August 1990, defendant and Gary Shaver went to LaDan's Night Club. Janette Turner, a part-time waitress at LaDan's, and Billy Grimes, Turner's boyfriend and defendant's friend, were also at LaDan's that night. Grimes left LaDan's at around 12:30 or 1:00 a.m. on 12 August 1990.

Grimes and Turner planned to meet at Bran's Game Room at the end of Turner's shift. At about 1:45 a.m., defendant asked Turner to ask Grimes to telephone Eddleman and said that Grimes and Eddleman would know what was going on. When Turner left LaDan's at around 2:00 or 2:30 a.m., she went to Bran's to meet Grimes. When she arrived at Bran's, Turner relayed defendant's message to Grimes.

Grimes testified at trial that when Turner relayed defendant's message to telephone Eddleman and tell him that something was "going down" and that they knew what it was all about, he did not know what it was all about. Nonetheless, Grimes and Turner left Bran's and went to the Pineview Restaurant, where Grimes telephoned Eddleman from an outside pay telephone. Grimes apologized for waking Eddleman and relayed defendant's message to him. Grimes said, "[Defendant] wanted me to call you and tell you there's something going down and he wants to know if you want anything to do with it." Eddleman said, "Well, I went to the river last night and spent about two and a half, maybe three hours. Nothing didn't happen then. Hell, no, I don't want nothing to do with it." Eddleman then went back to sleep. Grimes and Turner returned to Bran's and departed in their separate vehicles.

Meanwhile, at approximately 2:00 a.m., the victim, Charles Edwin Jenkins, asked defendant for a ride home. The victim left LaDan's with defendant and Shaver. During the ride, defendant asked the victim whether he knew defendant's ex-wife, Lisa Bates, or her boyfriend, Jeff Goins. The victim responded, "Yeah, isn't Lisa the one that has big breasts" and "long blond hair." According to Shaver's testimony at trial, although defendant's ex-wife had long blond hair at that time, she did not have "big breasts."

During the ride, defendant stopped twice. The first time, he stopped for fifteen or twenty minutes along the side of the road in Iredell County so that defendant and Shaver could "use the bathroom." The victim did not exit the vehicle at this time. After driving for about fifteen or twenty minutes more, defendant stopped the vehicle a second time. This time, the victim and Shaver got out of defendant's vehicle to "use the bathroom."

Shaver was standing on the passenger side of the vehicle, and the victim was standing at the rear of the vehicle. Defendant exited the vehicle, went around to the rear of the vehicle, and struck the victim at least three times on the back of the head with a shovel handle that had been in the vehicle. The victim fell to the ground. Defendant then gave the handle to Shaver, took some rope from the vehicle, and tied the victim's hands.

The victim appeared to be unconscious at this point. However, the victim started moaning, and defendant told Shaver to hit the victim with the shovel handle. Shaver refused so defendant took the handle from Shaver and struck the victim on the back of the head again. The victim stopped moaning and again appeared to be unconscious. Defendant then bound the victim's arms and legs behind his back, or hog-tied him.

Defendant asked Shaver to help him place the victim into defendant's vehicle, and Shaver did so. Defendant then told Shaver that he believed that the victim was one of the persons who had been "messing around his house and stuff." Defendant said that he was "going to find out some answers." Defendant believed that the persons who had shot into his house were friends of his ex-wife and her boyfriend, and he thought the victim was setting him up and leading him into a trap.

Defendant and Shaver got into the truck and headed towards defendant's campsite. Defendant was driving, Shaver was in the passenger seat, and the victim was hog-tied and lying on the floor of the rear of the vehicle. At some point, the victim propped his head up, and defendant asked him for directions. The victim responded that he could not see because his glasses had been lost.

The victim then asked defendant what he had done and what was going on. Defendant told the victim to shut up. About fifteen or twenty minutes later, defendant noticed a sign indicating that they were entering Yadkin County. Defendant proceeded towards his campsite.

On the way back to his campsite, defendant stopped at Eddleman's house. Defendant and Shaver exited the vehicle. Defendant knocked on the front door and entered Eddleman's house; Shaver waited outside in front of defendant's vehicle. Defendant remained inside the house for fifteen or twenty minutes. While inside Eddleman's house, defendant told Eddleman, "We got one of the MF's."

Eddleman asked, "Who is he?" Defendant said, "His name is Chuck." Eddleman asked, "How do you know he's one of them?" Defendant said, "He's told us." Eddleman asked, "Where's he at?" Defendant responded, "He's hogtied in the jeep. You want to see him?" Eddleman said, "No, the best thing you can do is take him back where you got him, apologize to him and do anything he wants you to do, and hope that he don't prosecute you for kidnapping him." Defendant and Eddleman then stepped out onto the porch.

While defendant and Eddleman were outside on the porch talking, Billy Grimes drove up in his white Mitsubishi pickup truck and parked behind defendant's vehicle. Defendant walked up to Grimes' pickup truck and spoke with Grimes. According to Grimes, defendant said, "I've got one of the guys that's been messing with me. Do you want to watch or help?" Grimes declined, left, and went home.

Meanwhile, Eddleman had stepped off the porch to talk with Shaver. Eddleman said to Shaver, "Gary, you don't want nothing to do with this either." Eddleman also told Shaver, "Gary, you better talk to [defendant]." Eddleman then said to defendant, "Joe, you better listen." Defendant then walked over to Shaver and told him that he could get out of the situation if he wished. Shaver stated that he wanted out because he had sole custody of his daughter and did not want to jeopardize his custody.

Defendant told Shaver that he would take Shaver back to his vehicle, which was parked at defendant's campsite. Defendant and Shaver then got back into defendant's vehicle and left. When they arrived at defendant's campsite, Shaver got into his vehicle and left. The victim was alive at this time. Shaver went home, set his alarm clock, and went to bed. It was approximately 4:00 a.m. at this time.

Defendant returned to Eddleman's house later that morning and again awoke Eddleman. It was still dark outside. Defendant returned Eddleman's gun, which he had borrowed at some time earlier. Eddleman took the gun and placed it in one of his bedrooms in his house. Defendant asked Eddleman, "What do you think I should do with the body?" Eddleman said, "What?" Defendant repeated the question.

Eddleman said, "Man, if you've got a body, you've only got about three choices. You either take him to the sheriff's office, bury him or throw him in the river." After some further conversation, defendant asked, "Do you reckon I should tie cement blocks to him?" Eddleman answered, "If you do, or not, he will come up in from nine to eleven days." Defendant then said, "I guess I can load him by myself," and he left.

Eddleman went back to bed and awoke at 9:30 or 9:45 a.m. that morning. Eddleman went to look at the gun to determine whether there was blood on it. He discovered what appeared to be flesh and blood on the gun. He then cleaned the gun. Later that day, Eddleman spoke with defendant.

During the conversation, defendant said, "I was just thinking about what happened last night." Eddleman said, "Man, you better quit thinking. You're going to have a hard enough day as it is." Defendant said, "Well, it don't bother me all that bad." Eddleman responded, "It will." When defendant left Eddleman's house, he packed up his tent and left the campsite.

Grimes saw defendant at about noon that day. Defendant was at defendant's home unloading his vehicle. Defendant was placing his tent and the other items from his campsite into his residence. Grimes noticed that there was blood all over the contents of defendant's vehicle. Defendant took some items inside his house and washed the blood off in the sink. Grimes remained at defendant's house for about thirty minutes.

Grimes again saw defendant later that day at Bran's Game Room. Defendant told Grimes that he shot the victim through the neck and threw his body into the river. Grimes asked defendant why he killed the victim, and defendant said that he could not let him live after what defendant had done to the victim and that he would get just as much time for murder as he would for kidnapping.

A couple of days later, Shaver saw defendant at Eddleman's house. Shaver asked defendant what happened, and defendant said that it was best if Shaver did not know. A few days before, defendant had told Shaver that he thought he could kill someone.

On 25 August 1990, two fishermen discovered the victim's body floating in the Yadkin River and contacted the police. The victim's ankles and wrists were bound by rope, his legs and arms were pulled backwards behind his back and tied together, and a rope was tied around his neck. The victim's body was in an early stage of decomposition. His belt buckle was undone, and his pants were unzipped.

On 26 August 1990, an autopsy was performed on the victim's body. The medical examiner noted that the victim's wrists and ankles had been bound together with rope and that his arms and legs had been fastened behind his back in a "hogtie" configuration. There was also a loop of rope around the victim's neck and a separate rope around his knee area.

The medical examiner further noted that there was considerable decomposition of the body. He discovered a gunshot wound to the back of the victim's neck. The medical examiner was unable to testify with any degree of medical certainty whether the victim experienced any pain as a result of the gunshot wound but testified that the victim could have died instantaneously.

Prior to the autopsy, police officers took fingerprints from the victim to establish his identity. Because the State Bureau of Investigation (SBI) was unable to determine his identity from these prints, the victim's hands were surgically removed and turned over to an agent of the SBI so that they could be processed and better fingerprints obtained. The SBI processed the fingerprints they obtained from the hands and determined that the victim was Charles Edwin Jenkins.

On 30 August 1990, while investigating the victim's murder, two law enforcement officers went to defendant's house and spoke with him. Before leaving the residence, they asked defendant's permission to search his vehicle. Defendant gave them permission and assisted them into the vehicle. One of the officers found a newspaper on the floor of defendant's vehicle.

The newspaper had a front-page story about the officer's uncle, so he asked defendant if he could have the newspaper. Defendant agreed to let him have it. Inside the newspaper, the officer found a receipt that had what appeared to be bloodstains on it. The officers also asked defendant's permission to have a small piece of rope that was in a bucket on defendant's front porch.

Defendant allowed the officers to take the rope. Also, a piece of molding containing what appeared to be blood was taken from defendant's vehicle. The receipt and the molding were examined by the SBI, and the substance on them was determined to be blood. However, no useable fingerprints were taken from the molding, and no determination could be made as to whether the blood matched the victim's blood since the victim's body contained no blood when it was found.

On 31 August 1990, defendant gave a thirteen-page confession to the police in which he admitted beating the victim, binding him with ropes, kidnapping him, tying him to a tree, and questioning him at gunpoint. Defendant also admitted shooting the victim in the neck after the victim would not tell him who had shot into his house and after the victim had spat on him. Defendant further admitted tying a cement block around the victim's neck, removing the cement block when he discovered it made the body too heavy to throw off the bridge, and throwing the victim's hog-tied body into the Yadkin River.

Defendant did not testify at trial. However, defendant presented the testimony of two witnesses, Eddleman's wife and Eddleman's daughter-in-law, which tended to show that Shaver's vehicle was parked at defendant's campsite until 6:00 or 7:00 a.m. on the morning of the victim's death.

 
 

State v. Bates, 428 S.E.2d 693 (N.C. 1993) (Direct Appeal - Reversed).

Defendant was convicted and sentenced to death in the Superior Court, Yadkin County, Rousseau, J., for crimes of first-degree murder and first-degree kidnapping. Defendant appealed. Following grant of defendant's motion to bypass, the Supreme Court, Whichard, J., held that denial of defendant's pretrial motion to have his preliminary showing of need for funds to hire forensic psychologist heard ex parte jeopardized defendant's constitutional rights and could not be deemed harmless. New trial ordered.

 
 

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

JOSEPH EARL BATES, Petitioner-Appellant
v.
R. C. LEE, Warden, Central Prison, Respondent-Appellee.

Argued: September 26, 2002
Decided: October 23, 2002

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., District Judge.(CA-99-742-1)

Before WILKINSON, Chief Judge, WIDENER, Circuit Judge, and HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Chief Judge Wilkinson wrote the opinion, in which Judge Widener and Senior Judge Hamilton joined.

Appellant Joseph Earl Bates was sentenced to death for the murder of Charles Edwin Jenkins. Bates does not contest the fact that he com- mitted the murder. After exhausting state challenges to the sentence imposed by the state courts, Bates petitioned the United States District Court for the Middle District of North Carolina for a writ of habeas corpus under 28 U.S.C. § 2254. The district court found no merit in his claims and dismissed the petition. We now affirm.

I.

On August 25, 1990, two fishermen discovered Charles Jenkins' body floating in the Yadkin River, in Yadkin County, North Carolina. The victim's ankles and wrists were bound by rope, his legs and arms were hog-tied, and a rope was tied around his neck. While investigat- ing the murder, two police officers went to Bates' house to speak with him.

At that time, the officers obtained a piece of paper and some molding from Bates' home having what appeared to be bloodstains on it. The following day, Bates gave a thirteen-page confession, in which he admitted to beating, hog-tying, kidnapping, and then shooting the victim in the neck. Bates was indicted for kidnapping and murder.

The facts surrounding the crime are undisputed. Some time in late July or early August 1990, someone broke into and fired gunshots into Bates' home, causing Bates to set up a temporary campsite on his employer Hal Eddleman's property. Around this same time Bates told his friend, Gary Shaver, that he could kill someone.

On August 10, Bates called Eddleman and told Eddleman to meet him at the bridge later that evening because something was "going down." Eddleman went to the bridge as instructed, but Bates never came to meet him. The next evening Bates and Shaver went to a night club. At approximately 1:45 a.m., Bates instructed a waitress to ask Billy Grimes, another friend, to telephone Eddleman. Bates told her that Grimes and Eddleman would know what was going on.

At approximately 2:00 a.m., Jenkins asked Bates and Shaver for a ride home. During the ride, Bates asked Jenkins if he knew Bates' ex- wife and her new boyfriend, and Jenkins replied that he did. Bates stopped twice during the ride. During the second stop, Bates struck Jenkins three times on the back of the head with a shovel, appearing to knock him unconscious. When Jenkins began to moan, Bates struck him again, hog-tied him, and then placed him in the vehicle.

On the way back to his campsite, Bates stopped at Eddleman's house and told Eddleman that he "got one of the MF's." He then told Grimes, "I've got one of the guys that's been messing with me. Do you want to watch or help?" Grimes declined to help, as did Shaver and Eddleman. Bates drove Jenkins back to his campsite around 4:00 a.m.

At the campsite, Bates loosened the ropes on Jenkins and began asking Jenkins who had shot into his home. Jenkins mentioned two people who were involved, but did not say anything else. Unsatisfied with Jenkins' response, Bates then tied Jenkins to a tree and went to his tent to retrieve a gun that he had borrowed from Eddleman. Bates put the gun up to Jenkins throat, but Jenkins repeated that he did not know for sure who had shot into Bates' home.

Bates then untied Jenkins, took him to the back of the truck, and shot him in the neck. Jen- kins was lying face-up near the back of the truck when Bates shot him. In his confession, Bates said he "shot him . . . because he acted like he knew who had shot into my house, he spit on me and told me to go to hell, and this made me mad and I shot him."

After rummaging through Jenkins' pockets, Bates retied Jenkins' hands and feet and loaded him into the jeep. Bates drove back to Eddleman's house, returned Eddleman's gun, and asked, "[w]hat do you think I should do with the body." Bates then left and threw the body into the Yadkin River.

Later that day Bates discussed the murder with both Eddleman and Grimes. Bates told Eddleman, "[w]ell, it don't bother me all that bad." Bates told Grimes that he killed the victim because he would get no more time for murder than for kidnapping.

Bates was indicted for kidnapping and murder. The State sought the death penalty. A jury found Bates guilty of one count of first degree murder and one count of first degree kidnapping. He was sen- tenced to death for the first degree murder conviction. On appeal, the North Carolina Supreme Court awarded Bates a new trial based on an improper denial of Bates' motion for an ex parte hearing regarding his request for funds to employ a forensic psychologist. State v. Bates, 428 S.E.2d 693 (N.C. 1993). Bates was retried, and a second jury found Bates guilty of one count of first degree kidnapping and one count of first degree murder on the basis of both the felony murder rule and premeditation and deliberation.

During the closing argument of the penalty phase of the second trial, the prosecutor pointed out that Jenkins' mother, Bates' mother, and Bates' sister each cried while on the stand. The prosecutor then asked whether the jurors saw Bates cry during the trial, or whether Bates had presented any evidence of remorse. The prosecutor also commented that Bates had been given the benefit of a lengthy trial and two good lawyers who would stand up and ask the jurors not to return the death penalty, because it was a lawyer's job to do so.

The jury recommended the death sentence on the basis of the kid- napping and the especially heinous, atrocious, or cruel nature of the crime. On November 9, 1994, Judge Julius Rousseau sentenced Bates to death for the first degree murder conviction and to an additional forty years in prison for the kidnapping conviction. The Supreme Court of North Carolina affirmed the conviction and sentence, State v. Bates, 473 S.E.2d 269 (N.C. 1996), and the United States Supreme Court denied certiorari, Bates v. North Carolina, 519 U.S. 1131 (1997).

Bates then filed a motion for appropriate relief. The North Carolina Superior Court entered an order denying Bates' claims, and the Supreme Court of North Carolina affirmed. State v. Bates, 539 S.E.2d 297 (N.C. 1999).

Next, Bates filed a petition for habeas corpus in the United States District Court for the Middle District of North Carolina. On February 14, 2002, the district court adopted the magistrate's recommendation to dismiss Bates' petition. Bates v. Lee, No. 1:99CV00742 (M.D.N.C. Feb. 14, 2002). Finding no substantial issue presented, the district court also declined to issue a certificate of appealability. Id. Bates now appeals.

Federal courts entertaining collateral attacks on state convictions have only limited powers of judicial review. See Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under 28 U.S.C. § 2254(d)(1) (2002), federal courts may not grant a writ of habeas corpus when a state court has already resolved the merits of a claim unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1) (2002).

A state court decision is contrary to clearly established federal law if the state court "applies a rule that contradicts the governing law set forth in [the Court's] cases" or "confronts a set of facts that are materially indistinguishable from a decision of the Court and nevertheless arrives at a result different from [its] precedent." Williams, 529 U.S. at 405-06, 120 S.Ct. 1495.

A state court decision involves an unreasonable application of Supreme Court precedent if the state court "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case," id. at 407-08, 120 S.Ct. 1495, or "was unreasonable in refusing to extend the governing legal principle to a context in which the principle should have controlled." Ramdass v. Angelone, 530 U.S. 156, 166, 120 S.Ct. 2113, 147 L.Ed.2d 125 (2000) (opinion of Kennedy, J.). The Supreme Court has stressed the importance of the word "unreasonable" in the standard of review. "Under § 2254(d)(1)'s `unreasonable application' clause ... a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 411, 120 S.Ct. 1495.

In this case, Bates argues that the North Carolina Supreme Court's decision was an unreasonable application of clearly established federal law because (1) the trial court erroneously failed to instruct the jury on second degree murder; (2) the prosecutor's closing comments during the penalty phase violated the defendant's Fifth Amendment right to remain silent and his due process rights; and (3) the jury instructions on the "heinous, atrocious or cruel" aggravating circumstance were vague and overbroad in violation of the Fifth, Eighth and Fourteenth Amendments. We address each argument in turn.

First, Bates contends that the North Carolina courts unreasonably applied federal law by failing to instruct the jury on the lesser included offense of second degree murder. Bates argues that Jenkins provoked him to commit the murder. This, in combination with other circumstances in his life at the time, constituted enough evidence to negate deliberation, and the trial court should have therefore instructed the jury on second degree murder.

In capital cases, due process requires the court to give an instruction on any lesser included offense when the evidence warrants such an instruction. Beck v. Alabama, 447 U.S. 625, 637-38, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). But "[a] defendant is not entitled to have the jury instructed as to lesser degrees of the crime simply because the crime charged is murder." Briley v. Bass, 742 F.2d 155, 164 (4th Cir.1984). Instead, "due process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction." Hopper v. Evans, 456 U.S. 605, 611, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). "The decision of whether there is enough evidence to justify a lesser included offense charge rests within the sound discretion of the trial judge." United States v. Chapman, 615 F.2d 1294 (10th Cir.1980).

Further, "[w]here ... the highest court of a state has reviewed a defendant's request for a lesser included offense instruction and concluded that it is not warranted by the evidence elicited at trial, that conclusion is axiomatically correct, as a matter of state law. Accordingly, the circumstances that would induce a federal court to overturn the state court determination would need to be extraordinary, indeed." Bagby v. Sowders, 894 F.2d 792, 795 (6th Cir.1990). Because "federal habeas corpus relief does not lie for errors of state law," Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990), our only question here is whether the North Carolina courts' finding that there was insufficient evidence to support a second degree murder instruction was so wrong as to amount to a fundamental miscarriage of justice. E.g., Nichols v. Gagnon, 710 F.2d 1267, 1269 (7th Cir.1983).

North Carolina law recognizes three degrees of homicide, two of which are relevant here. Murder in the first degree is the unlawful killing of another human being with malice and with premeditation and deliberation. N.C. Gen.Stat. § 14-17 (2002); State v. Watson, 338 N.C. 168, 449 S.E.2d 694, 699 (1994). Murder in the second degree is the unlawful killing of a human being with malice, but without premeditation and deliberation. State v. Duboise, 279 N.C. 73, 181 S.E.2d 393, 398 (1971).

Premeditation means that "defendant formed the specific intent to kill the victim for some period of time, however short, before the actual killing. Deliberation means that the intent to kill was formed while defendant was in a cool state of blood and not under the influence of a violent passion suddenly aroused by sufficient provocation." State v. Misenheimer, 304 N.C. 108, 282 S.E.2d 791, 795 (1981) (citations omitted).

North Carolina courts consider several factors in determining the existence of premeditation and deliberation, including (1) provocation by the deceased; (2) the defendant's conduct and statements before and after the killing; (3) "threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of [the] deceased"; (4) "ill-will or previous difficulty between the parties"; (5) "the dealing of lethal blows after the deceased has been felled and rendered helpless"; and (6) "evidence that the killing was done in a brutal manner." State v. Fisher, 318 N.C. 512, 350 S.E.2d 334, 338 (1986). Provocation by the deceased can negate deliberation, so long as it is strong "enough to arouse a sudden and sufficient passion in the perpetrator...." State v. Salmon, 140 N.C.App. 567, 537 S.E.2d 829, 834 (2000). However, "[i]f the State's evidence establishes each and every element of first-degree murder and there is no evidence to negate these elements, it is proper for the trial court to exclude second-degree murder from the jury's consideration." State v. Flowers, 347 N.C. 1, 489 S.E.2d 391, 407 (1997).

Bates argues that two circumstances negate the element of premeditation and deliberation. First, he contends that the circumstances of his life at the time of the murder demonstrate that he was distressed and thus unable to form the mental state to commit first degree murder. Bates points out that he had been recently estranged from his wife, that someone had broken into and shot at his home, and that he believed Jenkins was setting him up. Second, Bates argues that his confession, where he stated that Jenkins made him mad by spitting on and cursing at him, in combination with the circumstances of his life at the time, negates deliberation. Bates, however, misinterprets the quantum of evidence necessary to negate this element.

Under North Carolina law, a showing of mere anger is not sufficient to prove that a defendant lost his ability to reason and thus to negate deliberation. "Anger and emotion frequently coincide with murder, but a court should instruct on murder in the second degree only when the evidence would permit a reasonable finding that the defendant's anger and emotion were strong enough to disturb the defendant's ability to reason." State v. Perry, 338 N.C. 457, 450 S.E.2d 471, 474 (1994).

Bates introduced evidence that he was angry and distressed before the killing occurred. He did not, however, introduce any evidence tending to show that his ability to reason had been disturbed. In fact, Bates' confession tends to contradict that inference. Bates clearly states in his confession that when he brought Jenkins back to his campsite he "was not drunk or doing drugs at the tim[e]. I knew what was going on." Nothing in his confession suggests that Bates lost the ability to formulate rational thought.

Furthermore, the uncontroverted evidence at trial demonstrates premeditation and deliberation. The factors that North Carolina courts use in evaluating the existence of premeditation and deliberation strongly suggest their existence here. Bates relies on the first factor, provocation by the deceased, to negate deliberation. He ignores, however, the evidence demonstrating that before Jenkins spat on and cursed at him, Bates had already kidnapped, hogtied, and then beat and questioned Jenkins for a period of several hours.

Furthermore, Bates' conduct prior to and after the killing overwhelmingly supports the existence of premeditation and deliberation. Prior to the killing Bates told Shaver that he could kill someone, and then repeatedly told his friends that something would be "going down." After the murder, Bates told Grimes that he killed Jenkins because Bates couldn't let Jenkins live after Bates tortured him, and that he would get no more time for murder than for kidnapping. These statements contradict any suggestion that Bates shot Jenkins because Jenkins made him so angry that he lost the ability to reason. In fact, they suggest just the opposite — that the murder was a calculated act, however twisted that calculus might be.

We acknowledge that under North Carolina law provocation by the deceased can suffice to negate deliberation. See State v. Watson, 338 N.C. 168, 449 S.E.2d 694, 700 (1994). The North Carolina courts found that it did not, however, suffice in this case. The sole evidence Bates offers to support a second degree murder instruction is his statement that the victim spat on and cursed at him which made him mad. That evidence does not tend to establish that his ability to reason had been disturbed. Furthermore, Bates' confession, where Bates states that the victim was lying on his back face-up when he shot him, suggests that there was some period of time between the alleged provocation and the actual murder.

Nothing in the North Carolina jury instructions approached a due process violation. And while the parties argue extensively over state law, "[i]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Beck requires a trial court to give a lesser included offense instruction when the evidence so warrants.

The North Carolina trial court, in the face of overwhelming evidence of premeditation and deliberation, reasonably determined that under North Carolina law the evidence did not warrant such an instruction. Thus, we must reject Bates' argument and hold that the North Carolina Supreme Court did not unreasonably apply the relevant Supreme Court precedent to the facts of this case.

Next, Bates argues that the prosecutor's closing arguments at sentencing violated his Fifth Amendment right to remain silent and his due process rights. We also review these claims for whether the North Carolina Supreme Court's decision was contrary to, or an unreasonable application of, clearly established Federal law. See Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

Bates made no objection at any time to the prosecution's sentencing argument. He contends, however, that the trial court erred by failing to intervene ex mero motu to prevent the prosecutor from commenting on his right to remain silent. Bates contends that by pointing out to the jury that other witnesses in the case had gotten on the stand and cried, and then asking the jurors whether they had observed Bates crying, the prosecutor implicitly argued that Bates should have testified.

The Constitution "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). A prosecutor improperly comments on the defendant's failure to testify when "the language used [is] manifestly intended to be, or ... [is] of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." United States v. Anderson, 481 F.2d 685, 701 (4th Cir.1973), aff'd, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974).

During the sentencing portion of the trial, the prosecutor argued:

Have you heard any evidence at all that the Defendant is sorry for what he did? Think about that for a minute. Any evidence at all that he's sorry?

...

[H]e was bragging about ... bragging about throwing this body in the river. Bragging. Is he sorry?

When he said to Hal, "It doesn't bother me. I[t] doesn't bother me," was he sorry. When he talked to Gary Shaver, "Chill out. Don't worry about it. I don't."

...

You saw three women get on the stand and cry. You saw [the victim's mother], and briefly ... she lost her composure, and she cried. Did the Defendant shed any tears as she cried? Anybody look? Did you see any show of emotion of him as she cried for the loss of her son.

[The defendant's] mother, his own mother got on the stand and cried. Any tears over there? Did you see any?

[The defendant's] sister, who's done so well. She cried for her brother. Did he? Did he cry for what he'd done to her? For what he'd done to Charlie?

We do not think this closing argument, pungent though it was, violated the defendant's Fifth Amendment right to remain silent at sentencing. And in so holding, the North Carolina Supreme Court did not unreasonably apply clearly established federal law. This court has found that prosecutorial comments about the lack of remorse demonstrated by a defendant's demeanor during trial do not violate a defendant's Fifth Amendment right not to testify. Howard v. Moore, 131 F.3d 399, 421 (4th Cir.1997); Gaskins v. McKellar, 916 F.2d 941, 951 (4th Cir.1990); see also Six v. Delo, 94 F.3d 469, 476-77 (8th Cir.1996).

The prosecutor's comments in this case fall within the scope of Howard and Gaskins. The prosecutor never commented directly or indirectly on Bates' failure to testify. Rather, as the Supreme Court of North Carolina observed, "the prosecutor commented on the demeanor of the defendant, which was before the jury at all times. Such statements are not comparable to those which this Court has previously held to be improper comments on a defendant's failure to testify." State v. Bates, 343 N.C. 564, 473 S.E.2d 269, 281 (1996) (internal citation omitted). Moreover, reference to Bates' remarks immediately following the murder constituted nothing more than a repetition of the evidence already presented at trial.

Bates' reliance on Lesko v. Lehman, 925 F.2d 1527 (3d Cir.1991), is misplaced. In Lesko, the prosecutor asked the jury to consider Lesko's arrogance on the witness stand and argued that Lesko did not even have the "common decency to say I'm sorry for what I did." Id. at 1544. The Third Circuit judged this an impermissible comment on Lesko's failure to testify because it suggested that Lesko had an obligation to address the charges against him. Id. at 1544-45. No such thing happened here. As the magistrate judge noted, while comments on what the defendant "failed to say may very well penalize a defendant for exercising his right to remain silent ... asking the jury whether the evidence presented of [Bates'] demeanor during trial shows remorse ... does not." Bates v. Lee, No. 1:99CV00742.

Bates was not, of course, obligated to show remorse for his murder of Jenkins either before or during trial. However, the absence of any indication of contrition on his part for the taking of another human life was not beyond the range of prosecutorial comment during sentencing. Since this court has already determined in Howard and Gaskins that comments referring to a defendant's demeanor during trial do not violate the Fifth Amendment, we find that the North Carolina courts' application of Griffin and Doyle was not unreasonable.

Next, Bates argues that the prosecutor's rhetoric at sentencing deprived him of a fair trial. Specifically, Bates argues that the prosecutor commented on the exercise of his right to counsel and his right to a jury trial in a manner which penalized him for exercising those rights. Furthermore, Bates argues that the prosecutor improperly discredited defense counsel in a way that also caused severe prejudice.

In considering Bates' argument, we first recognize that prosecutors enjoy considerable latitude in presenting arguments to a jury, Sizemore v. Fletcher, 921 F.2d 667, 670 (6th Cir.1990), because "the adversary system permits the prosecutor to `prosecute with earnestness and vigor.'" United States v. Young, 470 U.S. 1, 7, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935)).

Committed advocates do not always present antiseptic closing statements, and the jury is entrusted within reason to resolve such heated clashes of competing views. Moreover, the scope of our review is narrow, because "not every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a `failure to observe that fundamental fairness essential to the very concept of justice.'" Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974) (quoting Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 86 L.Ed. 166 (1941)).

Thus, our review is limited to whether the comments rendered the proceeding so fundamentally unfair as to constitute a denial of due process. Donnelly, 416 U.S. at 643, 94 S.Ct. 1868. This determination requires us to look at "the nature of the comments, the nature and quantum of the evidence before the jury, the arguments of opposing counsel, the judge's charge, and whether the errors were isolated or repeated." Boyd v. French, 147 F.3d 319, 329 (4th Cir.1998) (internal quotation marks omitted).

Bates attacks the following portion of the prosecutor's argument:

The Defendant sits here today with the benefit of, all the benefit we can give him that this system has to grant a person on trial. He gets all the ordinary benefits of this system, and it's not perfect, but it's as good as we could do. He sits here and he has this benefit. He has the benefit of a lengthy trial. He has the benefit of placing the burden of beyond a reasonable doubt on the shoulders of the State and say, "Here carry it. And, carry it straight up that mountain."

...

He's been given the benefit of two lawyers, two good lawyers, two good men, who will stand in a moment and talk to you, and ask you not to return the death penalty. That's their job.

...

Did [the victim] have a trial? ... But, did, did [the victim] have the benefit of people getting up and begging for his life?

These comments did not run afoul of the due process clause. They were based upon facts established during trial or were aspects of the trial which were readily apparent to the jurors. That Bates had received the benefit of a lengthy trial and two good lawyers was obvious to everyone. And although we recognize the impropriety of a prosecutor vouching for a witness or impugning the ethics of defense counsel, we do not have that situation here. See United States v. Moore, 710 F.2d 157, 159 (4th Cir.1983)(noting that improper prosecutorial comment might mislead the jury into thinking the prosecution obtained extra-judicial information not available to the jury). Here, the prosecutor's comments were not misleading and thus not prejudicial either.

Even if we assumed arguendo that the prosecutor's comments at sentencing were improper, we cannot ignore the fact that Bates at no time objected to them. Moreover, the evidence of both the nature of the crime and the fact that Bates committed it was overwhelming. Given the indisputably gruesome circumstances attending the murder and the fact that Bates indisputably committed it, any denial of fundamental fairness from prosecutorial comments seems highly unlikely. See, e.g., Bennett v. Angelone, 92 F.3d 1336, 1345-47 (4th Cir.1996).

The trial judge also instructed the jurors to consider the evidence for themselves rather than to rely on the arguments of the attorneys, thus curing any possible improprieties in the prosecutor's statements. Finally, the remarks were not pervasive, comprising only one and one half pages of the prosecutor's twenty-seven page argument. The North Carolina Supreme Court, "[a]fter carefully reviewing the prosecutor's argument in its entirety ... conclude[d] that it was not so grossly improper as to have necessitated intervention ex mero motu by the trial court." State v. Bates, 473 S.E.2d at 284. Under the circumstances, we cannot hold that this was an unreasonable application of clearly established federal law.

Bates argues finally that the jury instructions on the "heinous, atrocious or cruel" aggravating circumstance were vague and overbroad in violation of the Fifth, Eighth and Fourteenth Amendments. We also review this claim for whether the state court adjudication resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court. Williams v. Taylor, 529 U.S. at 413, 120 S.Ct. 1495; 28 U.S.C. § 2254(d)(1).

It has long been settled that a state's capital sentencing scheme must be tailored to avoid the arbitrary and capricious infliction of the death penalty. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Thus, a state must "define the crimes for which death may be the sentence in a way that obviates `standardless [sentencing] discretion.'" Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (quoting Gregg v. Georgia, 428 U.S. 153, 196 n. 47, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). A state does so by providing "a meaningful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which it is not." Gregg, 428 U.S. at 188, 96 S.Ct. 2909 (quoting Furman, 408 U.S. at 313, 92 S.Ct. 2726 (White, J., concurring)).

In the case of statutory aggravating circumstances in a capital punishment scheme, the Supreme Court has held that, standing alone, an instruction to determine whether the murder was "especially heinous, atrocious, or cruel," runs afoul of the Eighth Amendment prohibition against the imposition of cruel and unusual punishments. Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). However, an unconstitutionally vague statutory circumstance can be cured by an accompanying limiting instruction which does provide sufficient guidance. See Shell v. Mississippi, 498 U.S. 1, 3, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990) (Marshall, J., concurring); Walton v. Arizona, 497 U.S. 639, 653, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), overruled in part by Ring v. Arizona, ___ U.S. ___, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

Thus, since the Supreme Court has already determined that the "especially heinous, atrocious, or cruel" language alone violates the Eighth Amendment, we must now "determine whether the state courts have further defined the vague terms and, if they have done so, whether those definitions are constitutionally sufficient, i.e., whether they provide some guidance to the sentencer." Walton, 497 U.S. at 653, 110 S.Ct. 3047.

With these principles in mind, we turn to the instruction given by the trial court at the conclusion of the sentencing phase of Bates' trial. Under North Carolina law, a person may be sentenced to death if the jury finds, as an aggravating circumstance, that "the capital felony was especially heinous, atrocious, or cruel." N.C. Gen.Stat. § 15A-2000(e)(9) (2002). The trial court instructed the jury as follows:

Was this murder especially heinous, atrocious or cruel?

Now, ladies and gentlemen, in this context, heinous means extremely wicked or shockingly evil. Atrocious means outrageously wicked and vile. And, cruel means designed to inflict a high degree of pain with utter indifference or even enjoyment of the suffering of others.

However, it's not enough that this murder be heinous, atrocious or cruel, as those terms have just been defined to you, this murder must have been especially heinous, atrocious or cruel. And, not every murder is especially so.

For this murder to have been especially heinous, atrocious or cruel, any brutality which [was] involved in it, must have exceeded that which is normally present in any killing ... or this murder must have been a conscienceless or pitiless crime, which was unnecessarily torturous to the victim.

This court recently considered an Eighth Amendment challenge to precisely the same aggravating circumstance instruction in Fullwood v. Lee, 290 F.3d 663 (4th Cir.2002). There, we concluded that the North Carolina Supreme Court's rejection of the challenge was neither contrary to nor an unreasonable application of clearly established Supreme Court precedent. Id. at 694.

We further noted that this court had recently rejected that argument in two other capital cases involving the same North Carolina statutory aggravating circumstance. Id. (citing Fisher v. Lee, 215 F.3d 438, 457-59 (4th Cir.2000), and Frye v. Lee, 235 F.3d 897, 907-08 (4th Cir.), cert. denied, 533 U.S. 960, 121 S.Ct. 2614, 150 L.Ed.2d 769 (2001)). Given our recent consideration of this issue, we reiterate that the North Carolina Supreme Court decision was neither contrary to nor an unreasonable application of clearly established Supreme Court precedent.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

 

 

 
 
 
 
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