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Arthur Martin
BOYD Jr.
Classification: Murderer
Characteristics: Unsuccessfully attempting a reconciliation
Number of victims: 1
Date of murder: August 7,
1982
Date of birth:
December 3,
1945
Victim profile: Wanda
Philips Hartman (his
former girlfriend)
Method of murder: Stabbing
with knife 37 times
Location: Surry County, North Carolina, USA
Status: Executed
by lethal injection in North Carolina on October 21,
1999
United States Court of
Appeals For the Fourth Circuit
Arthur Boyd, on death row since
1983, was convicted for the Aug.7, 1982, stabbing death of Wanda
Hartman outside a shopping mall in Mount Airy in Surry County.
Hartman was stabbed 37 times in
front of her young daughter and mother.
Chronology of Arthur
Martin Boyd execution
North Carolina Department of
Corrections
Boyd's execution -
Oct. 21, 1999
Boyd entered the execution chamber at 1:50 a.m.
The lethal drugs were administered at 2:01 a.m. Boyd was pronounced
dead at 2:18 a.m.
Boyd's last words - Oct. 21, 1999
I love you, Laura.
Boyd's last meal
Two bacon mushroom melts from Wendy's and a pint
of chocolate milk.
Boyd moved to death watch area , 6 p.m.
Oct. 20, 1999
Boyd execution scheduled for Oct. 21,
1999
Death row inmate Arthur Martin Boyd is scheduled
for execution Thursday, Oct. 21, 1999, at 2 a.m. at Central Prison
in Raleigh.
Boyd was convicted March 22, 1983, in Surry
County Superior Court of the stabbing murder of Wanda Phillips
Hartman at a curb in front of a bank at a Mt. Airy shopping center
Aug. 7, 1982.
Boyd execution stayed - April 9, 1999
The North Carolina Supreme Court issued a stay
April 9 halting the scheduled execution of Arthur Martin Boyd.
Arthur Martin
Boyd Jr., 53, 99-10-21, North Carolina
Arthur Martin Boyd Jr., was executed Thursday for stabbing his
girlfriend 37 times 17 years ago.
His execution marks the 2nd year in a row that North Carolina has
executed 3 killers, the state's highest number in a year since the
U.S. Supreme Court restored capital punishment 23 years ago.
That record could be broken if a 4th convicted killer, David Junior
Brown, is executed as scheduled next month.
Boyd, 53, was pronounced dead at 2:18 a.m.
Boyd, on death row since 1983, was convicted for the Aug.7, 1982,
stabbing death of Wanda Hartman outside a shopping mall in Mount
Airy in Surry County. Hartman was stabbed 37 times in front of her
young daughter and mother.
Boyd and Hartman had lived together, but several months before the
killing, Hartman and her daughter moved into her parents' home.
On the day of the killing, Boyd, who had been trying to reconcile
with Hartman, purchased a lock-blade knife - the murder weapon.
Boyd confronted Hartman, accompanied by her mother and daughter,
outside the shopping mall. He followed her to a nearby bank, where a
church group was conducting a car wash. The victim's father was the
church's pastor.
Boyd and Hartman talked quietly at the curb in front of the bank
until the victim's mother said they had to leave.
When Boyd asked to continue the conversation, Hartman told him they
had nothing further to discuss and that if he was going to kill her,
"he should hurry up and get it over with."
Reaching into his pocket, Boyd pulled out the knife and began
stabbing Hartman. The victim's mother pulled Boyd away but he pushed
the 76-year-old woman aside, and then, holding Hartman by the hair,
continued stabbing her.
Hartman was stabbed 37 times, suffering wounds to her neck, chest,
left arm, left thigh, back and each hand.
About a week before the murder, Boyd had threatened Hartman: "I'll
see you like a German submarine, when you are not expecting it."
Boyd had a long criminal record. From age 14, he had either been in
prison, on parole or on probation.
His crimes included larceny, assault with intent to commit rape of a
14-year-old girl, driving under the influence, assault on an officer
and resisting arrest.
Boyd becomes the 3rd condemned inmate to be put to death this year
in North Carolina and the 14th overall since the state resumed
capital punishment in 1984.
(sources: Charlotte Observer & Rick Halperin)
Victim: Wanda Hartman
Arthur Boyd and his
eventual victim Wanda Hartman had lived together, but Hartman had
returned to her parents several months before the murder. Boyd, who
had a long history of drug and alcohol abuse, tried repeatedly to
resume the relationship.
On Aug. 7, 1982, Boyd talked to
Hartman on the phone and learned that she planned to go shopping and
attend a church-sponsored car wash nearby. According to court
records, he spent the morning at a tavern, took a taxi to the mall
and bought a lock-blade knife. He approached Hartman and her mother
at the mall, then followed them to the car wash, where Hartman and
Boyd sat and talked.
When Hartman tried to leave, Boyd
tried to stop her. She said she had nothing further to discuss and
told Boyd that "if he was going to kill her go ahead and kill her
and get it over with."
Boyd brandished a knife and
assured her he would not hurt her, but then began stabbing her
repeatedly in a Mount Airy shopping center parking lot in front of
her young child and her mother. Before the murder, Boyd had been
convicted of a number of crimes, including assault with intent to
commit rape.
U.S. Supreme Court
BOYD v. NORTH CAROLINA , 471 U.S. 1030 (1985)
471 U.S. 1030
Arthur Martin BOYD, Jr.
v.
NORTH CAROLINA
No. 84-5819
Supreme Court of the United States
April 15, 1985
On petition for writ of certiorari to the Supreme
Court of North Carolina.
The petition for a writ of certiorari is denied.
Justice MARSHALL, with whom Justice BRENNAN joins,
dissenting.
Petitioner was sentenced to death after a hearing
in which the judge prevented the jury from considering evidence that
it might well have considered highly relevant to petitioner's motive
at the time of his crime and to the relationship of his character
and record to the offense he had committed. As a result, the jury
was called on to decide whether death was the appropriate punishment
but was deprived of the evidence petitioner offered in mitigation of
his crime. The death sentence must thus be vacated, for it stands in
glaring conflict with one of the most basic requirements of the
Eighth Amendment-" 'that the sentencer . . . not be precluded from
considering, as a mitigating factor, any aspect of a defendant's
character or record and any of the circumstances of the offense that
the defendant proffers as a basis for a sentence less than death.' "
Eddings v. Oklahoma, 455 U.S. 104, 110 , 874 (1982) (quoting Lockett
v. Ohio, 438 U.S. 586, 604 , 2964 (1978)).1
I
Petitioner Boyd was convicted of murdering his
former girlfriend after unsuccessfully attempting a reconciliation.
They had lived together for three years but had separated several
months prior to the murder. On the day of the murder, Boyd met the
victim at a local shopping mall. They sat and talked quietly for
some time, sitting in the midst of a church- sponsored event run by
the victim's father, a local pastor.
Eventually, the victim's mother approached her
daughter and said it was time to leave, but Boyd asked the daughter
to stay and talk to him a little longer. After talking some more,
the victim said she would leave. She was also reported to have said
that if Boyd was going to kill her "he should hurry up and get it
over with." Boyd took out a knife but also assured her that he would
not hurt her. He then began to stab her rapidly and repeatedly until
bystanders dragged the two apart. The victim died from the multiple
stab wounds.
At his capital sentencing hearing, Boyd offered
in mitigation expert testimony by a sociologist, Dr. Humphrey, who
had interviewed Boyd and previously had done academic research into
the behavioral dynamics of suicide and homicide. Most relevantly,
Dr. Humphrey had coauthored a study of people who had murdered their
relatives or intimates. The trial judge excluded the entirety of his
testimony.
Dr. Humphrey would have testified, based on his
study and his personal interview with Boyd, that Boyd's crime and
life history conformed to a common pattern that distinguishes those
who kill intimates from those who kill others. According to the
sociologist, those in the former group are more likely to have had
lives characterized by repeated deep personal losses (such as death
of loved ones or abandonment by parents) and strong feelings of self-destruction:
" 'The more loss in someone's life, the more
likely they are to become self-destructive. And it seems that
killing a family member or killing a close friend is an act of self-destruction.
They are after all, killing something that is a part of them, very
close to them, very important to their self. They are destroying
them. So in the act of killing another person they are in fact
destroying part of their self, a self-destructive act.' " 311 N.C.
408, 439, 319 S.E.2d 189, 209 (1984) (Exum, J., dissenting) (quoting
voir dire testimony of Dr. Humphrey).
In Dr. Humphrey's view, Boyd's life history
conformed to the pattern he had found in his research; Boyd's life
had involved repeated and intense personal losses that had generated
strong self-destructive feelings in him.
2
Dr. Humphrey thus understood Boyd's crime "primarily [ as] a
depression caused self-destructive act, closely related to the
impulse that leads to suicide, resulting from a life history of an
inordinate number of losses beginning with the abandonment by the
defendant's father and the death of his grandfather and culminating
with the threatened loss of [the victim]." Id., at 419, 319 S.E.2d,
at 197.
Boyd's counsel sought to introduce the expert's
testimony to provide the jury with a perspective on Boyd's personal
history, on his mental and emotional condition, and on how these
factors may have led to the crime. In that sense, it was evidence of
motive; but more broadly, the proposed testimony was an effort to
"link together all of the defendant's mitigating evidence into a
unified whole which explained the apparent contradiction of killing
the person the defendant loved the most." Ibid.
3
On the prosecutor's motion, the trial court
excluded Dr. Humphrey's explanation of why Boyd killed his former
girlfriend, but the prosecutor nevertheless argued vigorously for an
alternative explanation of Boyd's motive. According to the
prosecutor, Boyd was selfish and mean; he killed the victim because
if he could not have her he wanted to make sure that no one else
could. Id., at 436, 319 S.E.2d, at 207 (Exum, J. dissenting).
In the words of the dissenting opinion below, the
State's theory was "a motive theory that is easy to sell in this
kind of case . . . . Defendant's motive theory was different, less
apparent to the average observer, and probably more difficult to
sell. It was a theory which does not excuse the crime but which
might have mitigated it in the eyes of the jury." Ibid. The legal
question, obviously, is not which of these theories is more worthy
of belief, but whether petitioner had a right to offer evidence in
support of his theory. Lockett and Eddings leave no doubt as to the
correct answer to that question; he had such a right.
With two justices in dissent, the State Supreme
Court affirmed the sentence of death. In the court's view the
proffered testimony only " placed [the] various 'stressful events' [of
Boyd's life] in a context suggesting that defendant's act [of murder]
was predictable." 311 N.C., at 423, 319 S.E.2d, at 199. It had "merely
constructed a profile of a murderer into which the defendant fits."
Ibid. The court doubted that this information could have much weight
in mitigation, especially because, in the court's view, some of the
traumas in Boyd's life (e.g., imprisonment) could not "extenuate or
reduce the moral culpability of the killing." Ibid.
II
Lockett and Eddings have at their core an
understanding that the factors that can rationally militate against
the appropriateness of death are varied, subjective, and not subject
to prior itemization. See also McGautha v. California, 402 U.S. 183
, 204-208, 1465-1468 (1971). Moreover, those cases clearly stand for
the proposition that, within a broad range of relevance, the weight
of any offered factor of mitigation is for the sentencer to
determine. Here the sentencers were the jurors. Although evidence of
various events in Boyd's personal history was admitted, expert
evidence that might have been highly useful to the sentencer's
attempt to understand Boyd's crime and its relation to those events
of personal history was excluded.
Expert knowledge of human motivation might well
have been considered highly relevant in the eyes of the jurors, for
it might have offered an alternative explanation for why Boyd killed.
Without that evidence, the scattered personal history evidence might
have had little apparent significance, but the expert evidence might
well have provided a link between the personal history evidence and
that "extenuat[ion] or reduc[ tion of] the moral culpability of the
killing" that might call for a sentence of less than death.
The exclusion of the expert evidence thus
violated Lockett and Eddings. Behind the State Supreme Court
decision stand certain premises concerning punishment. Most
apparently, the court took the view that it would be highly
questionable to mitigate punishment based on a criminal's conformity
to a social psychology profile that traces the crime's origins to
the traumas of the criminal's life and to the self-destructive
impulses that those traumas may produce. But under the Constitution,
the weight of mitigating factors is a judgment for the capital
sentencer, and neither court nor legislature may usurp the
sentencer's role.
In a jury's eyes, the fact that a killer is moved
by self-destructive tendencies might make a crime seem more
generally tragic and less demanding of retribution, and it might
make the criminal seem less clearly evil and more capable of
rehabilitation. Moreover, the jury might become less concerned with
the prospect of future dangerousness where a defendant's violence
stemmed from intimacy and the likely alternative to death is that he
spend his life in prison far from loved ones.
4
Although these possible uses of the proffered but
excluded evidence show that it was of clear relevance within even
the most traditional views of mitigation, its possible power with
the jury is even clearer when we consider the inherent subjectivity
of capital sentencing decisions. Put simply, viewing the defendant's
behavior in terms of a pattern that has governed a far greater
number of persons than the defendant alone might lead a jury to step
beyond initial revulsion and attempt to understand the crime in more
human terms. As one commentator has speculated, in many cases a
jury's ability to take precisely that step might be what determines
whether or not a defendant will be sentenced to die:
"[It may be that] many jurors vote to execute
when they are repelled by the defendant, because he presents the
threatening image of gratuitous, disruptive violence that they
cannot assimilate into any social or psychological categories they
use in comprehending the world. Jurors can probably give mercy to
even the most vicious killers if they can somehow understand what
might cause this person to be a killer. . . . A juror votes to expel
the defendant who presents an image of violence he or she cannot
assimilate into any stabilizing categories, and who thereby
threatens his or her sense of comfortable order in the world."
Weisberg, Deregulating Death, 1983 S.Ct.Rev. 305, 391.
It was our recognition of the importance to a
defendant of just this sort of subjective but intensely human
analysis of mitigation that stood behind this Court in Lockett and
Eddings. Relying on those cases, Boyd sought to place his crime
within the jury's understanding. The state courts denied him the
right to make that effort.
III
We have broadly declared that the law cannot
preclude a capital sentencer's consideration of " 'any aspect of a
defendant's character or record and any of the circumstances of the
offense that the defendant proffers as a basis for a sentence less
than death.' " Eddings, 455 U.S., at 110 (quoting Lockett, 438 U.S.,
at 604 ). Accordingly, a constitutional death sentence cannot result
from a process wherein the State may portray a defendant's acts as
so "inhuman," bizarre, and cruel as to be beyond the reach of human
sympathy, but a defendant is legally precluded from offering in
mitigation those " 'diverse frailties of humankind' " an
understanding of which might place the barbaric act within the realm
of the tragic but nonetheless human. 455 U.S., at 112 , n. 7, n. 7 (quoting
Woodson v. North Carolina, 428 U.S. 280, 304 , 2991 (1976)).
The Lockett-Eddings principle stems from the "
'fundamental respect for humanity underlying the Eighth Amendment,'
" Eddings, supra, 455 U.S., at 112 (quoting Woodson v. North
Carolina, supra, 428 U.S., at 304 ), and rests on the requirement
that "[a] jury must be allowed to consider on the basis of all
relevant evidence not only why a death sentence should be imposed,
but also why it should not be imposed." Jurek v. Texas, 428 U.S.
262, 271 , 2956d 929 (1976).
Without the Lockett-Eddings principle, the
uniqueness of a person's life, including how that life may have led
to the crime, may be casually ignored in determining whether that
person should live or die. The Constitution cannot tolerate the
execution of people "not as uniquely individual human beings, but as
members of a faceless, undifferentiated mass to be subjected to the
blind infliction of the penalty of death." Woodson v. North
Carolina, supra, 428 U.S., at 304 . This Court should not stand by
and allow the Lockett-Eddings principle to erode. I would thus grant
review, and I dissent from the denial of certiorari.
*****
Footnotes
[
Footnote 1
] I
continue to adhere to my view that the death penalty is in all
circumstances cruel and unusual punishment prohibited by the Eighth
and Fourteenth Amendments. Gregg v. Georgia, 428 U.S. 153, 231 ,
2973 (1976) (MARSHALL, J., dissenting). But even if I did not take
this view, I would grant review in this case because of the
important issue raised concerning the proper interpretation of
Lockett and Eddings.
Unfortunately, this case is illustrative of a
disturbing trend in a number of state courts to read our holdings in
Eddings and Lockett in an unjustifiably narrow manner, and to
declare, in spite of these holdings, that an increasing number of
proffered bases of mitigation are simply irrelevant. See Eutzy v.
Florida, 471 U.S. 1045 d 336 (MARSHALL, J., dissenting from denial
of certiorari); Patterson v. South Carolina, 471 U.S. 1036 (MARSHALL,
J ., dissenting from denial of certiorari).
[
Footnote 2
] Boyd's
lawyers had introduced evidence that Boyd's father had been an
alcoholic who abandoned his family when Boyd was a child, that his
grandfather-whom he had come to view as a father-had then died, that
he had a history of losing jobs and repeated imprisonment, and that
his life since adolescence had been characterized by drug and
alcohol abuse. When Dr. Humphrey interviewed Boyd, Boyd said that he
had so feared the loss of his girlfriend that he had contemplated
suicide shortly before the murder.
[
Footnote 3
] The
proffered evidence would of course also have been quite relevant to
such issues as future dangerousness and prospects of rehabilitation.
[
Footnote 4
] There
is some ambiguity in the State Supreme Court's opinion as to whether
the affirmance rested on a view that the proffered evidence was
properly excludable as irrelevant or was simply of so little weight
as to not be a basis for vacating the sentence in this case. Either
basis would of course be improper. The former would clearly be
contrary to the discussions of relevance in Lockett v. Ohio, 438 U.S.
586 (1978), and Eddings v. Oklahoma, 455 U.S. 104 (1982), and the
latter would ignore those cases' determination that the sentencer be
the judge of the proper weight to be given to mitigating factors.
Whatever might be the circumstances, if any, that might allow a
court to speculate as to the possible harmlessness of an improper
exclusion of a properly proffered mitigating factor, cf. Eddings,
supra, at 119 (O'CONNOR, J., concurring); see also Songer v.
Wainwright, 469 U.S. 1133 , 1140, and n. 13, and n. 13 (1985) (BRENNAN,
J., dissenting from denial of certiorari), the standard can
certainly be no less than the constitutional harmless-error standard
we have otherwise endorsed. The court below did not engage in any
determination that there was error that could be found harmless
beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18
(1967). Moreover, there is no reason to believe that any such
determination could reasonably have been made in a case such as this.
147 F.3d 319
Arthur Martin Boyd, Jr.,
Petitioner-appellant, v.
James B. French, Warden, Central Prison, Raleigh,
North Carolina; Michael F. Easley, Attorney General
Of North Carolina, Respondents-appellees
United States Court of Appeals,
Fourth Circuit.
Argued March 4, 1998.
Decided June 19, 1998
Before MURNAGHAN, ERVIN, and
WILKINS, Circuit Judges.
Affirmed by published opinion.
Judge WILKINS wrote the opinion, in which Judge
ERVIN joined. Judge MURNAGHAN wrote a concurring
opinion.
WILKINS, Circuit Judge:
Appellant
Arthur Martin Boyd, Jr. filed this petition
for habeas corpus relief1
from his North Carolina capital conviction
and death sentence for the murder of his
former girlfriend, 32-year-old Wanda Mae
Phillips Hartman. See 28 U.S.C.A. § 2254 (West
1994).2
The district court denied the petition,
holding inter alia that the state trial
court committed harmless error in failing to
permit Boyd to present mitigating expert
testimony at sentencing. Finding no
reversible error in any of Boyd's numerous
arguments, we affirm.
Boyd met
Hartman in November 1978 while the two were
employed by the same company. Within days
Boyd moved in with Hartman, and the two
resided together for approximately three and
one-half years. In April 1982, Hartman
decided to move into her parents' residence
with her daughter. Boyd was not supportive
of this decision and persistently attempted
to reconcile with Hartman.
Ultimately,
on Friday, July 30, 1982, eight days before
the murder, Boyd attempted to visit with
Hartman in the front yard of her parents'
residence, but Hartman's father, Lawrence
Phillips, instructed Boyd "to get off of [his]
property and stay off of it." S.J.A. 102.
Boyd then threatened Hartman saying, "I'll
see you like a German submarine, when you
are not expecting it." S.J.A. 103 (internal
quotation marks omitted). And, Boyd also
told Phillips, "I'll meet you in heaven or
hell one day." Id. (internal quotation marks
omitted). Following this encounter, Phillips
sought a warrant for Boyd's arrest for
trespassing, and the warrant was served on
Boyd on Monday, August 2.
On the
morning of Saturday, August 7, following a
night of drinking and drug use, Boyd called
Hartman at 8:00 a.m. and talked to her for
approximately two hours. During this
conversation, Boyd learned that Hartman
planned to go to the Mayberry Mall in Mount
Airy, North Carolina to shop and attend a
church-sponsored car wash. Boyd then went to
a bar and began drinking and using drugs
again. At approximately 12:00 noon, when the
bartender declined to serve him any more
alcohol, Boyd hailed a taxi to take him to
the mall.
Upon
arriving at the mall, Boyd entered a store
that sold knives and asked the salesman for
a lock-blade knife. The owner of the store
testified that "[a] lock-blade knife is a
knife that once it's opened it is locked in
an open position. It cannot come back
against your hands or fingers or cut you in
any way. It's locked in." S.J.A. 9. Boyd
purchased the knife and left the store.
Boyd then
saw Hartman and her mother, approached them,
and asked Hartman if she would go outside
with him. Boyd and Hartman sat together on a
curb outside the mall in close proximity to
the ongoing car wash, apparently discussing
again the possibility of a reconciliation.
After some period of time had passed, at
approximately 2:00 p.m., Hartman's mother
approached them and indicated that it was
time to leave. Hartman stood up, but Boyd
attempted to prevent her from leaving,
asking her repeatedly to stay with him a few
more minutes. Hartman responded to Boyd "that
she had lived in hell for three months, that
if he was going to kill her just go ahead
and kill her and get it over with." S.J.A.
36.
Boyd
brandished the knife he had just purchased,
but offered Hartman assurances that he meant
her no harm. Despite these assurances, Boyd
began to stab Hartman. As Boyd attacked,
Hartman screamed for help and her mother
attempted to intervene, trying to pull Boyd
away from Hartman. Boyd, however, threw the
76-year-old woman to the ground and resumed
his onslaught on Hartman. Forcing Hartman to
the ground on her stomach and holding her by
her hair, Boyd stabbed her repeatedly.
Throughout the attack, numerous witnesses
looked on powerless to stop it, including
Hartman's shrieking eight-year-old daughter.
After stabbing Hartman 37 times, Boyd calmly
walked away. He was apprehended quickly as
he hid between two parked vehicles; the
murder weapon was recovered from where Boyd
had thrown it under a nearby automobile.
Emergency
medical personnel were summoned and arrived
on the scene at approximately 2:20 p.m.
These technicians characterized Hartman's
condition as requiring advanced life support
treatment and explained that they were
unable to transport Hartman until they could
control her bleeding. They described the
extreme difficulty Hartman was having
breathing and the severe pain she was
experiencing, recounting how Hartman moaned
and "rak[ed her hands] back and forth in the
dirt" where she was lying. S.J.A. 165.
The
examining pathologist later identified
wounds to Hartman's throat, chest, left
thigh, and back. Among these were two wounds
that punctured Hartman's right lung, three
that pierced her left lung, one that entered
her stomach, and one that penetrated her
sternum. Additionally, several defensive
wounds to Hartman's hands and left arm were
present. Loss of blood from these wounds led
to hypovolemic shock, and Hartman died of
exsanguination while being transported to a
hospital.
Boyd was
charged with first-degree murder. In light
of the numerous witnesses to the murder,
Boyd did not dispute that he had inflicted
the fatal wounds. However, Boyd presented
the testimony of two friends with whom he
had been drinking on the morning of the
murder and of the bartender who had declined
to serve him to support his argument that he
was intoxicated at the time of the murder.
The jury convicted Boyd of first-degree
murder in violation of N.C. Gen.Stat. §
14-17 (1993).
At
sentencing, Boyd testified concerning his
relationship with Hartman, their break-up,
and his attempts at reconciliation. Boyd
also professed his love for Hartman, saying,
"[It was the m]ost beautiful thing that's
ever happened to me. It's the best thing
that ever happened in my life. I loved her,
more than anybody, I guess, could ever love
anybody." J.A. 583. Boyd related that when
Hartman ended their relationship, he began
to seek mental health assistance because he
was having thoughts of killing people,
including himself and Hartman. Boyd
recounted his almost daily attempts to
reunite with Hartman. Further, Boyd
explained the difficulties he was
experiencing in sleeping and his heavy use
of alcohol and illegal drugs.
Boyd also
testified concerning various emotional
losses he had experienced as a child. Boyd's
father deserted their family when Boyd was
very young, and his grandfather, with whom
he was very close, died when Boyd was five
years old. Boyd's mother corroborated the
losses of his father and grandfather.
Boyd then
called Dr. Jack Humphrey, a professor of
criminology at the University of North
Carolina.3
The State objected, and Dr. Humphrey was
examined outside the presence of the jury.
Dr. Humphrey testified about a study he had
performed over a two-year period in
conjunction with the North Carolina
Department of Corrections. The study had two
elements. First, researchers compared prison
records, social histories, and psychiatric
histories of North Carolina prisoners
convicted of homicide with those convicted
of property offenses. He concluded that
prisoners convicted of homicide had suffered
over the course of their lives more
stressful events than nonviolent offenders.
The second
aspect of the study dealt with whether there
was a difference between individuals who had
killed strangers and individuals who had
killed family members or those close to them.
Dr. Humphrey concluded that individuals
whose victims were close to them tended to
have experienced more loss in their lives
than those who had killed strangers:
Now, one thing here is a
loss has been found to be associated with or
precipitate or lead to suicide over and over
and over. The more loss in someone's life,
the more likely they are to become self-destructive.
And it seems that killing a family member or
killing a close friend is an act of self-destruction
They are, after all, killing something that
is part of them, very close to them, very
important to their self. They are destroying
them. So in the act of killing another
person they are in fact destroying part of [themselves,
committing] a self-destructive act.
J.A.
684-85. Dr. Humphrey then described the
types of losses to which he was referring--for
example the loss of a parent or sibling.
Further, Dr. Humphrey testified that he had
interviewed Boyd and learned of the losses
Boyd had experienced. Dr. Humphrey testified,
"And what struck me [was] the consistency of
Mr. Boyd's life with what we found to be
true of homicide offenders in general." J.A.
687. Dr. Humphrey continued:
It seems that people who
are threatened with loss, and mainly these
are losses of someone very close to them,
wife, girlfriend, some close relationship,
at that point that they are threatened with
this loss they become depressed, very
commonly depressed, and depression is in a
sense anger turned toward yourself. Now, at
that point people react either toward
themselves totally or they will react
outwardly and inwardly at the same time.
Those people who destroy someone or
something at that point will not destroy a
stranger, will not indiscriminately kill.
They don't constitute a threat to the public.
They constitute a threat to that which they
fear losing the most, the person closest to
them. And it is that person that is
unfortunately in harm's way. And having
extended that aggression toward other people
they are in fact aggressing toward
themselves. They are destroying that which
they fear losing the most.
J.A. 688.
Following voir dire, the State argued that
Dr. Humphrey's testimony should not be
admitted, asserting that the study was not "scientific"
and that the testimony told the jury "[n]othing."
J.A. 715. The trial court sustained the
objection. The jury sentenced Boyd to death,
finding two aggravating factors--that the
murder was especially heinous, atrocious, or
cruel and that Boyd previously had been
convicted of a felony of violence.
The North
Carolina Supreme Court affirmed Boyd's
conviction and sentence, holding that the
exclusion of Dr. Humphrey's testimony was
not error because the testimony was not
mitigating. See State v. Boyd, 311 N.C. 408,
319 S.E.2d 189, 197-99 (1984). The United
States Supreme Court denied certiorari on
April 15, 1985. See Boyd v. North Carolina,
471 U.S. 1030, 105 S.Ct. 2052, 85 L.Ed.2d
324 (1985).
Thereafter,
Boyd sought postconviction relief from his
convictions and sentences in state court by
filing a motion for appropriate relief
(MAR). See N.C. Gen.Stat. § 15A-1415 (1997).
The state court conducted an evidentiary
hearing and denied relief. The North
Carolina Supreme Court subsequently denied
certiorari.
In
February 1989, Boyd filed a § 2254 petition
in the district court. This petition was
held in abeyance pending a decision by the
Supreme Court in McKoy v. North Carolina,
494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d
369 (1990), and during Boyd's unsuccessful
attempt to obtain postconviction relief
under McKoy in state court. In October 1996,
a magistrate judge recommended granting the
State's motion for summary judgment as to
all claims. The district court adopted the
magistrate judge's recommendation and denied
Boyd's application for a certificate of
probable cause to appeal.
Boyd now
seeks review in this court of the decision
of the district court denying his petition
for habeas corpus relief.4
He raises five allegations of error: (1)
that the sentencing court deprived him of
his Eighth and Fourteenth Amendment rights
to present mitigating evidence by refusing
to permit Dr. Humphrey to testify; (2) that
a reasonable likelihood exists that the
instructions to the sentencing jurors
concerning their consideration of mitigating
evidence led the jurors to conclude that
they could not consider a factor as
mitigating unless the jurors unanimously
concluded that the factor was mitigating in
violation of the Eighth and Fourteenth
Amendments; (3) that the prosecutor's
closing argument in the sentencing phase was
so inherently flawed that it deprived Boyd
of a fair trial in violation of the Due
Process Clause of the Fourteenth Amendment;
(4) that the prosecution's knowing use of
perjured testimony violated his Fourteenth
Amendment right to due process; and (5) that
the district court erred in concluding that
Boyd's argument relating to the use of his
state nolo contendere plea as a basis for a
prior conviction was procedurally defaulted.
We address these arguments in turn.
Boyd first
asserts that the state trial court deprived
him of his rights under the Eighth and
Fourteenth Amendments by refusing to permit
his expert witness, Dr. Humphrey, to present
mitigating evidence during sentencing. " '[T]he
Eighth and Fourteenth Amendments require
that the sentencer ... not be precluded from
considering, as a mitigating factor, any
aspect of a defendant's character or record
and any of the circumstances of the offense
that the defendant proffers as a basis for a
sentence less than death.' " Eddings v.
Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869,
71 L.Ed.2d 1 (1982) (second alteration in
original) (quoting Lockett v. Ohio, 438 U.S.
586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973
(1978) (plurality opinion)).
Such
evidence includes evidence of a defendant's
troubled upbringing, see id. at 115, 102
S.Ct. 869, as well as evidence bearing on
whether the defendant will pose a danger in
the future, see Skipper v. South Carolina,
476 U.S. 1, 5, 106 S.Ct. 1669, 90 L.Ed.2d 1
(1986). See also id. at 4, 106 S.Ct. 1669 (noting
"that the sentencer may not refuse to
consider or be precluded from considering
any relevant mitigating evidence" (internal
quotation marks omitted)). The Due Process
Clause of the Fourteenth Amendment may
require the admission of mitigating evidence
even if state-law rules of evidence (e.g.,
hearsay) would exclude it. See Green v.
Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 60
L.Ed.2d 738 (1979) (per curiam).
Similarly,
this court has observed that "the Supreme
Court has been very sensitive to any
impediment to the consideration of any type
of mitigating evidence in a death sentencing
hearing" and that "subject only to the loose
evidentiary requirement of relevance,
capital defendants have a right to offer any
evidence they choose on character or record
or circumstances of the offense." Hutchins
v. Garrison, 724 F.2d 1425, 1437 (4th
Cir.1983) (internal quotation marks omitted);
see Howard v. Moore, 131 F.3d 399, 418 (4th
Cir.1997) (en banc) (recognizing that the
Eighth Amendment requires that all proffered
relevant mitigating circumstances be
presented to the sentencer for consideration
in determining whether to impose a death
sentence), petition for cert. filed, 66
U.S.L.W. ---- (U.S. May 22, 1998) (No.
97-9263); see also McKoy, 494 U.S. at 440,
110 S.Ct. 1227 (explaining that "[r]elevant
mitigating evidence is evidence which tends
logically to prove or disprove some fact or
circumstance which a factfinder could
reasonably deem to have mitigating value" (internal
quotation marks omitted)). The question of
whether an evidentiary ruling excluding
testimony prevented the jury from
considering mitigating evidence is a mixed
question of law and fact that this court
reviews de novo. See Howard, 131 F.3d at
418.
As
discussed by the district court, Dr.
Humphrey's proffered testimony addressed two
distinct potentially mitigating factors.
First, Dr. Humphrey explained that, based on
his research, individuals in North Carolina
who had committed a homicide of someone
close to them had been subjected to more
stressful life events in the form of losses
and that based on his interview of Boyd,
Boyd fit the profile of these individuals.
Second, Dr. Humphrey opined that individuals
who have suffered significant losses become
depressed to the point that they act in a
self-destructive manner, which may include
the destruction of that which they most fear
losing.
The
district court concluded that a portion of
Dr. Humphrey's testimony was not mitigating,
reasoning:
Dr. Humphrey's opinion
testimony that Petitioner Boyd, as a result
of losses in his life, fit the profile of a
man more likely to kill a friend than to
kill a stranger is simply not mitigating.
Standing alone, it is neutral on the
question of future dangerousness, and it is
also entirely without implication or
inference that could affect a jury in
forming a reasoned moral response to the
question of whether Boyd should be given the
death penalty.
J.A. 299 (internal
quotation marks omitted). From this portion
of Dr. Humphrey's testimony, Boyd argues, a
reasonable juror could conclude that he
would not pose a future danger because
unlike some other first-degree murderers, he
was not likely to kill at random and those
circumstances under which he might be
dangerous would be unlikely to reoccur in
prison. Cf. Skipper, 476 U.S. at 5, 106 S.Ct.
1669 (explaining that "evidence that the
defendant would not pose a danger if spared
(but incarcerated) must be considered
potentially mitigating").
Additionally, he asserts that this portion
of Dr. Humphrey's testimony provided the
basis for a conclusion that Boyd fit within
the category of offenders who act in a self-destructive
manner in taking the life of someone close
to them. Although we have serious questions
concerning whether this portion of Dr.
Humphrey's proffered testimony accurately
may be characterized as mitigating,5
we agree with the conclusion of the district
court that the portion of Dr. Humphrey's
testimony concerning the self-destructive
motivation of those who have suffered great
loss was mitigating because Boyd could have
argued that he acted out of a self-destructive
impulse rather than the selfish impulse
advanced by the State.
While we
conclude that the trial court committed
constitutional error in excluding relevant
mitigating evidence, the question remains
whether that error was harmless. It is now
well established that not all errors of
constitutional dimension warrant a federal
court to overturn a state conviction or
sentence. See Chapman v. California, 386 U.S.
18, 23-24, 87 S.Ct. 824, 17 L.Ed.2d 705
(1967); Sherman v. Smith, 89 F.3d 1134, 1137
(4th Cir.1996) (en banc), cert. denied, ---
U.S. ----, 117 S.Ct. 765, 136 L.Ed.2d 712
(1997); Smith v. Dixon, 14 F.3d 956, 974-75
(4th Cir.1994) (en banc). Although federal
habeas courts play an important role in
protecting the constitutional rights of
state criminal defendants, that role is
circumscribed and secondary to that of state
courts. See Brecht v. Abrahamson, 507 U.S.
619, 633, 113 S.Ct. 1710, 123 L.Ed.2d 353
(1993).
Once the
principal avenue for review of a state
criminal conviction and sentence--direct
review--has been completed, " 'a presumption
of finality and legality attaches to the
conviction and sentence.' " Id. (quoting
Barefoot v. Estelle, 463 U.S. 880, 887, 103
S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). Respect
for the finality of a presumptively valid
state-court conviction and sentence dictates
that a federal court may not grant habeas
corpus relief on the basis of trial error of
constitutional dimension unless the court is
convinced that "the error 'had substantial
and injurious effect or influence in
determining the jury's verdict,' " id. at
637, 113 S.Ct. 1710 (quoting Kotteakos v.
United States, 328 U.S. 750, 776, 66 S.Ct.
1239, 90 L.Ed. 1557 (1946)), or at a minimum
entertains grave doubt that it had such an
effect, see O'Neal v. McAninch, 513 U.S.
432, 437, 115 S.Ct. 992, 130 L.Ed.2d 947
(1995) (holding that when "the record is so
evenly balanced that a conscientious judge
is in grave doubt as to the harmlessness of
an error," the judge must resolve that doubt
in favor of the habeas petitioner).6
In
applying this standard, a federal habeas
court does not ask whether the evidence of
guilt was sufficient, whether the jury would
have reached the same conclusion if the
error had not occurred, or whether the jury
reached the correct result based on the
evidence presented. See Satcher v. Pruett,
126 F.3d 561, 567-68 (4th Cir.), cert.
denied, --- U.S. ----, 118 S.Ct. 595, 139
L.Ed.2d 431 (1997). Rather, the court
reviews the record de novo to determine
whether the error "substantially sway[ed] or
substantially influence[d] the response" of
the jury to the question put to it--i.e., in
the guilt context, whether the defendant is
guilty or not guilty and in the penalty
context, whether the defendant should
receive the death penalty. Cooper v. Taylor,
103 F.3d 366, 370 (4th Cir.1996) (en banc),
cert. denied, --- U.S. ----, 118 S.Ct. 83,
139 L.Ed.2d 40 (1997); see O'Neal, 513 U.S.
at 436, 115 S.Ct. 992 (explaining that in
making the harmlessness determination, a
federal habeas judge must review the record
to assess whether "the judge[ ] think[s]
that the error substantially influenced the
jury's decision" (internal quotation marks
omitted)); Brecht, 507 U.S. at 637, 113 S.Ct.
1710 (holding that an error does not have a
substantial and injurious effect on a jury
verdict unless "it resulted in 'actual
prejudice' " to the habeas petitioner (quoting
United States v. Lane, 474 U.S. 438, 449,
106 S.Ct. 725, 88 L.Ed.2d 814 (1986))).
Boyd
contends that because neither his guilt nor
the circumstances surrounding the murder
were subject to serious dispute, his trial
strategy was to show that the murder of his
victim was the product of two factors--his
significant impairment as a result of drug
and alcohol consumption and his background
of repeated losses of those closest to him.
The State, in turn, attempted to portray
Boyd as a cold, selfish man who, faced with
imprisonment on an unrelated criminal charge,
killed Hartman to prevent her from seeing
other men.
We agree
with the district court that the refusal of
the state trial court to permit Dr. Humphrey
to testify did not have a substantial or
injurious effect on the determination of the
jury that Boyd should be sentenced to death.
Boyd's actions were indisputably
premeditated. He had threatened Hartman in
the weeks prior to the murder and had
purchased a lock-blade knife just prior to
his attack. Immediately before the murder,
Boyd talked to Hartman calmly, assuring her
that he would not hurt her.
His sudden
attack on Hartman was a brutal and hideous
one in which he inflicted a total of 37
wounds while her family--including her young
daughter--and friends watched in horrified
helplessness. Hartman suffered a physically
agonizing death. Furthermore, the underlying
circumstances upon which Boyd was to argue
that this was an act of self-destruction
were before the jury. Boyd testified about
the loss of his father and grandfather and
about his love for Hartman.7
We cannot
conclude that, viewed in this context, any
juror's sentencing decision would have been
substantially influenced by hearing an
expert criminologist opine that murderers
who have experienced great personal losses
are more likely to kill a family member or
someone close to them than a stranger and
are more likely to murder as an act of self-destruction
and that Boyd's history of loss fit the
pattern of someone in this category. Dr.
Humphrey's testimony simply was not adequate
to have had such an effect in the
circumstances of this case. Thus, we hold
that any error in refusing to permit Dr.
Humphrey to testify does not provide a basis
for federal habeas corpus relief.
Boyd next
challenges the instructions provided to the
jury concerning the use of mitigating
evidence. Jury instructions that require
jurors to find unanimously the existence of
a mitigating factor before that factor may
be weighed in determining whether mitigating
evidence outweighs aggravating factors are
unconstitutional under the Eighth and
Fourteenth Amendments. See McKoy, 494 U.S.
at 439-44, 110 S.Ct. 1227; Mills v. Maryland,
486 U.S. 367, 374-75, 108 S.Ct. 1860, 100
L.Ed.2d 384 (1988).
Although
Boyd concedes that the trial judge did not
give the jurors an explicit direction that
they could not consider mitigating evidence
unless they found its existence unanimously,
he contends that read as a whole, there is a
reasonable likelihood that the jury
understood the instructions to have required
such unanimity.
The
instructions that Boyd challenges are
identical to those recently held not to be
violative of the Constitution in Noland v.
French, 134 F.3d 208, 213-14 (4th Cir.1998).
We view our decision in Noland as dictating
a conclusion that Boyd's challenge to the
jury instructions lacks merit.
Boyd also
maintains that the prosecutor's closing
argument during the sentencing phase of his
trial deprived him of due process. He
contends that during the closing argument in
the sentencing phase of the trial, the
prosecutor made repeated references to his
personal opinions concerning various matters,
including Boyd's credibility; the
credibility of Boyd's witnesses; the weight
to be given various mitigating factors;
certain biblical quotations and references;
and the appropriateness of the death penalty
for Boyd, including a reading of a North
Carolina Supreme Court case suggesting that
mercy was not appropriate in death cases,
and referring to a later-repudiated system
of mandatory capital punishment.
In
determining whether a closing argument by a
prosecutor violates due process, this court
must look to "whether the proceeding at
issue was rendered fundamentally unfair by
the improper argument." Bennett v. Angelone,
92 F.3d 1336, 1345 (4th Cir.) (internal
quotation marks omitted), cert. denied, ---
U.S. ----, 117 S.Ct. 503, 136 L.Ed.2d 395
(1996). This determination requires the
court to look to "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." Id. at
1345-46 (internal quotation marks omitted).
Undoubtedly, all of the arguments of which
Boyd complains were improper. A prosecutor
should refrain from stating his personal
opinions during argument and misleading the
jury about the law. See Drake v. Kemp, 762
F.2d 1449, 1459-60 (11th Cir.1985) (en banc).
Furthermore, religiously based arguments are
"universally condemned." Bennett, 92 F.3d at
1346. The remaining factors, however, weigh
in favor of a conclusion that the
prosecutor's argument did not deprive Boyd
of a fair trial. The evidence that Boyd
committed the offense was overwhelming.
Further, the murder unquestionably was
heinous, atrocious, or cruel, and Boyd had
entered a stipulation that he had committed
a prior felony of violence.
In
addition, although the improper remarks
occurred intermittently throughout the
prosecution's argument, some of the biblical
references were invited by Boyd's testimony
concerning his salvation experience while in
prison awaiting trial and Boyd's explanation
of the murder as having resulted from his
being beguiled by Satan. Cf. United States
v. Young, 470 U.S. 1, 12-13, 105 S.Ct. 1038,
84 L.Ed.2d 1 (1985) (explaining that in
determining whether prosecutor's improper
argument was prejudicial to defendant,
reviewing court must consider whether
prosecutor's comments were invited response
to defense and "did no more than respond
substantially in order to right the scale" (internal
quotation marks omitted)).
Additionally, the state trial judge
instructed the jurors that they were to
decide the facts based on the evidence
presented. Cf. Bennett, 92 F.3d at 1346-47 (concluding
prosecutor's improper argument did not deny
due process in part because trial court
instructed jury: "What the lawyers say is
not evidence. You heard the evidence. You
decide what the evidence is." (internal
quotation marks omitted)). Our review leads
us to determine that the prosecutor's
closing argument did not deprive Boyd of a
fair trial.
Boyd
further asserts that his conviction resulted
from the prosecution's knowing use of
perjured testimony. A conviction acquired
through the knowing use of perjured
testimony by the prosecution violates due
process. See Napue v. Illinois, 360 U.S.
264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217
(1959). This is true regardless of whether
the prosecution solicited testimony it knew
to be false or simply allowed such testimony
to pass uncorrected. See Giglio v. United
States, 405 U.S. 150, 153, 92 S.Ct. 763, 31
L.Ed.2d 104 (1972); Napue, 360 U.S. at 269,
79 S.Ct. 1173. And, knowingly false or
misleading testimony by a law enforcement
officer is imputed to the prosecution. See
Wedra v. Thomas, 671 F.2d 713, 717 n. 1 (2d
Cir.1982); Curran v. Delaware, 259 F.2d 707,
712-13 (3d Cir.1958) (citing Pyle v. Kansas,
317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214
(1942)); cf. Boone v. Paderick, 541 F.2d
447, 450-51 (4th Cir.1976) (recognizing that
withholding of exculpatory evidence by
police is imputed to the prosecution). But
see Koch v. Puckett, 907 F.2d 524, 530-31
(5th Cir.1990) (rejecting habeas
petitioner's claim that sheriff and
investigators testified falsely at trial on
the basis that petitioner had failed to show
that the prosecutor knew the testimony was
perjurious). As this court has explained:
The police are also part
of the prosecution, and the taint on the
trial is no less if they, rather than the
State's Attorney, were guilty of the
nondisclosure. If police allow the State's
Attorney to produce evidence pointing to
guilt without informing him of other
evidence in their possession which
contradicts this inference, state officers
are practicing deception not only on the
State's Attorney but on the court and the
defendant.
Barbee v.
Warden, Md. Penitentiary, 331 F.2d 842, 846
(4th Cir.1964) (footnote omitted). The
knowing use of perjured testimony
constitutes a due process violation when " 'there
is any reasonable likelihood that the false
testimony could have affected the judgment
of the jury.' " Kyles v. Whitley, 514 U.S.
419, 433 n. 7, 115 S.Ct. 1555, 131 L.Ed.2d
490 (1995) (quoting United States v. Agurs,
427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d
342 (1976)); see United States v. Ellis, 121
F.3d 908, 915 n. 5 (4th Cir.1997), cert.
denied, --- U.S. ----, 118 S.Ct. 738, 139
L.Ed.2d 674, 675 (1998); United States v.
Kelly, 35 F.3d 929, 933 (4th Cir.1994).
During
Boyd's trial, each of the State's witnesses
who testified regarding Boyd's condition
either immediately before or just after the
murder indicated that Boyd was not
intoxicated. For example, the taxi driver
who drove Boyd to the mall stated that Boyd
did not appear to be intoxicated. The two
salesmen in the store where Boyd purchased
the knife immediately before the murder
testified that Boyd did not appear to have
been drinking or under the influence of
anything. Hartman's father and a family
friend both testified that they saw Boyd
just prior to the murder and that he did not
appear to be intoxicated.
Following
this evidence, the State presented the
testimony of officers who observed Boyd just
after the murder. Officer Sumner gave an
opinion that Boyd was not under the
influence. Agent Perry stated his opinion
that Boyd did not appear to be drunk or
intoxicated. Detective Armstrong, the chief
investigating officer, was asked by defense
counsel, "[B]ased upon your observation of
the defendant out there on the occasion you
have described, in your opinion was he drunk
or intoxicated?" J.A. 410. Detective
Armstrong responded, "He didn't appear to me
to be, no, sir." Id.
At the
state MAR hearing, Boyd's attorney had the
following colloquy with Detective Armstrong:
Q.... [T]hinking back on
the day that you saw Mr. Boyd, do you have
an opinion, yourself, on that date based on
the limited time you had to observe him as
to whether or not he was subject to some
impairing substance at that time?
A. I felt like he was at
the time, yes.
Q. What [made you think
so?]
A. Well, I had seen him
sober. And I had seen him drunk on many
occasions over the years.
Q. What observation about
him did you make that day that caused you to
think he was subject to some impairing
substance?
A. I just felt like he
was effected [sic] to some degree, that he
was under the influence. I was a right good
distance from him. But I've been at this
same distance from him in the past when he
was drinking. And just the way, the way he
called my name and said that he was, what
had we arrested him for, being under the
influence.
Q. To what extent do you
think that he was impaired? Do you have a
word that you can describe the extent of his
impairment with?
A. It would be
appreciably.
Q. Appreciably means to
you noticeably or clearly?
A. To me. It may have not
been noticeable to someone else that didn't
know him. But to me he had been, he was
under the influence of something.
J.A.
883-84. When confronted during cross-examination
by the State with the inconsistency of his
testimony, Detective Armstrong admitted that
he had not remembered his prior testimony.
When asked by the State whether he told the
truth when he testified at trial that Boyd
was not intoxicated, Detective Armstrong
answered affirmatively. And, Detective
Armstrong agreed with the State that his
trial testimony was closer to the murder,
and he was a law enforcement officer at the
time.
At the
state MAR proceeding, Officer Perry was
asked, "From the observations that you were
able to make of [Boyd] that afternoon do you
have an opinion as to whether he was under
the influence of or intoxicated from any
kind of drug or alcohol?" J.A. 914. He
responded:
In my
opinion he was not under the influence. He
did appear to have either been drinking or
maybe have taken some drugs. He was somewhat
glassy-eyed. But he was walking, he was not
swaying or staggering. He, in my opinion,
was not under the influence of--to an
appreciable degree.
Id.
The state
MAR court determined that the State did not
withhold exculpatory evidence from Boyd and
that even if the evidence from the habeas
hearing had been presented at trial it would
not have affected the outcome of the
proceedings. However, the state habeas court
failed to render an express factual finding
with respect to whether the officers
knowingly presented misleading testimony.
Because the state MAR court failed to make a
factual finding on the question of whether
the law enforcement officers knowingly
presented false or misleading testimony, a
federal evidentiary hearing to resolve this
issue normally would be required. See
Townsend v. Sain, 372 U.S. 293, 312-13, 83
S.Ct. 745, 9 L.Ed.2d 770 (1963).
Such a
hearing is not necessary in this instance,
however, because we conclude that there is
no reasonable likelihood that the officers'
testimony, if false, could have affected the
judgment of the jury. The jury heard a
wealth of testimony concerning the amount of
alcohol and drugs that Boyd had ingested in
the hours prior to the murder; undoubtedly
the jury recognized that Boyd must have been
impaired to some degree. However, the
testimony of the lay witnesses and police
officers established that despite the
alcohol and drugs, Boyd's demeanor prior to
and immediately after the murder was calm
and controlled. As such, testimony by the
officers that Boyd was under the influence
would not have affected the verdict of the
jury.
Finally,
Boyd contends that the district court erred
in holding federal habeas review of his
argument concerning the use of his nolo
contendere plea to establish a prior violent
felony was barred because Boyd procedurally
defaulted the claim. Absent cause and
prejudice or a miscarriage of justice, a
federal habeas court may not review
constitutional claims when a state court has
declined to consider their merits on the
basis of an adequate and independent state
procedural rule. See Harris v. Reed, 489 U.S.
255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308
(1989). Such a rule is adequate if it is
regularly or consistently applied by the
state court, see Johnson v. Mississippi, 486
U.S. 578, 587, 108 S.Ct. 1981, 100 L.Ed.2d
575 (1988), and is independent if it does
not "depend[ ] on a federal constitutional
ruling," Ake v. Oklahoma, 470 U.S. 68, 75,
105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).
Boyd seeks
to argue that his prior nolo contendere plea
to a 1963 violent felony--assault with
intent to commit rape--did not constitute a
prior conviction for a felony involving the
use of violence against the person of
another within the meaning of N.C. Gen.Stat.
§ 15A-2000(e)(3) (1997). He contends that a
conviction qualifies under § 15A-2000(e)(3)
only if it was treated as a conviction under
state law at the time and that North
Carolina law prior to 1981 did not permit
such treatment for pleas of nolo contendere.
Boyd
recognizes that he did not raise this claim
at trial--indeed, counsel stipulated that
Boyd had a prior conviction within the mean
ing of § 15A-2000(e)(3)--or on direct
appeal. Further, the attorney who
represented Boyd in his first state MAR
proceeding failed to review personally trial
counsel's files, in which the information
concerning Boyd's prior conviction was
contained, or to investigate the basis for
the prior conviction. Because counsel did
not discover the claim, it was not raised in
Boyd's first MAR.
However, attorneys for
Boyd ultimately discovered this information
and returned to state court to exhaust the
claim. The state court that heard Boyd's
second MAR found that "Boyd presented no
evidence to show he was prevented by some
objective factor external to the defense
from raising the claim." J.A. 1036.
Therefore, the state habeas court ruled that
the claim was procedurally defaulted under
N.C. Gen.Stat. § 15A-1419(a)(1) (1997). The
North Carolina Supreme Court summarily
denied Boyd's petition for certiorari. See
Ylst v. Nunnemaker, 501 U.S. 797, 805-06,
111 S.Ct. 2590, 115 L.Ed.2d 706 (1991)
(holding that in applying procedural default
provisions an unexplained appellate state-court
decision is presumed to be based on the last
reasoned decision).
Boyd
acknowledges that the state court expressly
relied on an independent state procedural
ground to refuse to consider the merits of
this claim, but argues that the state
procedural rule is not "adequate" because it
is not regularly or consistently applied.8
This court has consistently held, however,
that § 15A-1419 is an adequate and
independent state-law ground for decision
foreclosing federal habeas review. See
Williams v. French, 146 F.3d 203, 208-09
(4th Cir.1998); Ashe v. Styles, 39 F.3d 80,
87-88 (4th Cir.1994) (explaining that a
federal habeas petition should have been
denied on the basis of procedural default
because the state court denied relief
pursuant to § 15A-1419(a) which is "an
adequate and independent state law ground of
decision"); see also O'Dell v. Netherland,
95 F.3d 1214, 1241 (4th Cir.1996) (en banc)
(holding that unambiguous procedural rules
derived from state statutes or court rules
are necessarily "firmly established" (internal
quotation marks omitted)), aff'd, 521 U.S.
151, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997);
Smith, 14 F.3d at 965-72 & n. 10 (concluding
that § 15A-1419 is an adequate and
independent state-law ground for decision).
In sum, we
conclude that the refusal of the state trial
court to permit Boyd to present the
mitigating testimony of his expert witness,
Dr. Humphrey, did not have a substantial or
injurious effect on the verdict. Similarly,
we are convinced that the verdict of the
jury would not have changed if it had heard
the police officers testify that Boyd was
impaired on the day of the murder. And,
Boyd's remaining arguments lack merit.
Accordingly, we affirm the judgment of the
district court.
AFFIRMED.
*****
MURNAGHAN,
Circuit Judge, concurring:
I concur
in the result the majority has reached but,
with respect to Part II, I find necessary
and sufficient only the initial paragraph
and the conclusion that Dr. Humphrey's
testimony was not erroneously excluded since
it was not mitigating:
[W]e have serious
questions concerning whether this portion of
Dr. Humphrey's proffered testimony
accurately may be characterized as
mitigating ... we conclude that the refusal
of the state trial court to permit Boyd to
present the mitigating testimony of his
expert witness, Dr. Humphrey, did not have a
substantial or injurious effect on the
verdict.
The
proffered testimony of Dr. Humphrey was that
"prisoners convicted of homicide had
suffered over the course of their lives more
stressful events than nonviolent offenders"
and that "individuals whose victims were
close to them tended to have experienced
more loss in their lives than those who had
killed strangers." Even if that proffered
testimony was mitigating, it was harmless
error to exclude it.
Boyd named James B.
French, Warden of Central Prison, where Boyd
was then incarcerated, and Michael F. Easley,
Attorney General of North Carolina, as
Respondents in this action. For ease of
reference, we refer to Respondents as "the
State" throughout this opinion
Because Boyd's petition
for a writ of habeas corpus was filed on
February 16, 1989, prior to the April 24,
1996 enactment of the Antiterrorism and
Effective Death Penalty Act (AEDPA) of 1996,
Pub.L. No. 104-132, 110 Stat. 1214,
amendments to 28 U.S.C.A. § 2254 effected by
§ 104 of the AEDPA do not govern our
resolution of this appeal. See Lindh v.
Murphy, 521 U.S. 320, ----, 117 S.Ct. 2059,
2067, 138 L.Ed.2d 481 (1997). The State does
not maintain that it has satisfied the opt-in
requirements of § 107 such that those
provisions of the AEDPA apply
Dr. Humphrey earned a
Ph.D. in sociology with a concentration in
criminology from the University of New
Hampshire. Employed by the University of
North Carolina since 1972, Dr. Humphrey
taught classes in criminology, criminal
justice, juvenile delinquency, and deviant
behavior. He had conducted a number of
studies and published extensively in the
areas of homicide and suicide
Boyd's request for a
certificate of probable cause to appeal is
granted because at least one judge on the
panel concludes that Boyd "has made a
substantial showing of the denial of a
constitutional right." 4th Cir. R. 22(a).
There has been no argument concerning
whether Boyd should be granted a certificate
of probable cause to appeal, as he requested,
or a certificate of appealability. And, we
need not address that question here because
the certificate would be granted based on
the conclusion that Boyd made a substantial
showing of the denial of a constitutional
right irrespective of which type of
certificate technically should be issued
under these circumstances. Compare Lozada v.
Deeds, 498 U.S. 430, 431-32, 111 S.Ct. 860,
112 L.Ed.2d 956 (1991) (per curiam) (explaining
that to warrant the grant of a certificate
of probable cause to appeal, a habeas
petitioner must "make a substantial showing
of the denial of [a] federal right" and that
to satisfy this showing, the petitioner "must
demonstrate that the issues are debatable
among jurists of reason; that a court could
resolve the issues [in a different manner];
or that the questions are adequate to
deserve encouragement to proceed further" (alterations
in original) (internal quotation marks
omitted)), with Murphy v. Netherland, 116
F.3d 97, 101 (4th Cir.) (denying certificate
of appealability under 28 U.S.C.A. § 2253 (West
Supp.1998) in habeas corpus action seeking
relief from death sentence when petitioner
failed to make a substantial showing of the
denial of a constitutional right), cert.
denied, --- U.S. ----, 118 S.Ct. 26, 138
L.Ed.2d 1050 (1997)
The State contends that
this evidence could not be mitigating
evidence of Boyd's lack of future
dangerousness because Dr. Humphrey never
testified that Boyd was not homicidal or
that he would not kill again. Rather, the
State maintains that this portion of Dr.
Humphrey's testimony could at most support a
conclusion that Boyd was dangerous only to
those who "established an intimate or family-type
relationship with him." Brief of Appellees
at 24. The evidence, the State asserts, is
not mitigating and, on the contrary, is
aggravating because it demonstrates that
Boyd is precisely the dangerous killer of
those close to him the State attempted to
portray him as
We need not address this
argument because even if we were to agree
with the State that this portion of Dr.
Humphrey's testimony--that Boyd's history of
personal loss typifies the profile of a
killer who murders those who are emotionally
closest to him when he fears losing them--is
not mitigating with respect to Boyd's future
dangerousness, the testimony nevertheless
would have been admissible to provide the
foundation for Dr. Humphrey's opinion that
killers who have experienced this type of
repeated personal loss may kill as a self-destructive
act, which we determine is mitigating. Thus,
for purposes of this opinion, we assume that
both of these portions of Dr. Humphrey's
testimony are mitigating.
The Brecht Court left
open the possibility that under unusual
circumstances "a deliberate and especially
egregious error of the trial type, or one
that is combined with a pattern of
prosecutorial misconduct, might so infect
the integrity of the proceeding as to
warrant the grant of habeas relief, even if
it did not substantially influence the
jury's verdict." Brecht, 507 U.S. at 638 n.
9, 113 S.Ct. 1710. This does not appear to
be such a case
We recognize that the
testimony of Boyd and his mother may not
substitute for Dr. Humphrey's expert
testimony concerning these issues. However,
we note that the state trial court did not
compound the error by excluding the
underlying mitigating factual evidence or
prohibiting Boyd from arguing that the
underlying facts were mitigating
Boyd also asserts that
"cause" exists to excuse the default because
the attorney who represented him during his
first MAR was constitutionally ineffective
in failing to raise this issue. This
argument lacks merit. See Mackall v.
Angelone, 131 F.3d 442, 446-49 (4th
Cir.1997) (en banc), cert. denied, --- U.S.
----, 118 S.Ct. 907, 139 L.Ed.2d 922 (1998)
