Willie Leroy Jones, Petitioner-Appellant,
v.
Edward W. Murray, Director of the Virginia
Department of Corrections,
Respondent-Appellee.
No. 90-4004
Federal
Circuits, 4th Cir.
October 1, 1991
Before ERVIN,
Chief Judge, and WIDENER and WILKINSON, Circuit
Judges.
OPINION
WIDENER, Circuit Judge:
Willie Leroy Jones challenges a
Virginia state court judgment sentencing him to
death. The United States District Court for the
Eastern District of Virginia denied his petition for
a writ of habeas corpus. We affirm.
In January 1984, Jones was tried
by a jury in York County, Virginia and found guilty
of the capital murders of Graham and Myra Adkins.
Pursuant to Va.Code Ann. § 19.2-264.2, the jury on
each count found that Jones' "conduct in committing
the offense is outrageously or wantonly vile,
horrible or inhuman in that it involved torture,
depravity of mind, or aggravated battery to the
victim beyond the minimum necessary to accomplish
the act of murder...."
The jury fixed his penalty at
death and the trial court entered judgment accepting
the jury's recommendation and confirming the
verdicts. Jones unsuccessfully appealed his
conviction and sentence to the Virginia Supreme
Court. Jones v. Commonwealth, 228 Va. 427, 323
S.E.2d 554 (1984). The United States Supreme Court
denied Jones' petition for a writ of certiorari.
Jones v. Virginia,
472 U.S. 1012 , 105 S.Ct. 2713, 86 L.Ed.2d 728
(1985).
Jones then filed a petition for a
writ of habeas corpus in the Circuit Court of York
County. This petition was denied. The Virginia
Supreme Court found no error in the denial and
refused Jones' petition for appeal. Jones v. Bair,
No. 86-1152 (June 15, 1987). The United States
Supreme Court subsequently denied Jones' petition
for a writ of certiorari. Jones v. Bair,
484 U.S. 959 , 108 S.Ct. 358, 98 L.Ed.2d 383
(1987).
Jones next sought relief in the
federal courts and on March 22, 1988 filed a
petition for a writ of habeas corpus in the United
States District Court for the Eastern District of
Virginia. The district court referred the matter to
a United States Magistrate, who filed a report
recommending that the petition be denied and
dismissed. In a final order entered on January 4,
1990, the district court denied and dismissed Jones'
petition. A motion to alter or amend this judgment
was filed by Jones and denied by the district court
in an order filed April 9, 1990. This appeal
followed.
A brief summary of the facts
surrounding the crimes of which Jones was convicted
is necessary for an understanding of the issues
presented.
Testimony given at Jones' trial indicated that at
approximately 1:00 p.m. on May 13, 1983, smoke was
noticed coming from the home of Graham and Myra
Adkins, an elderly couple living in Charles City
County.
Several persons approached the
house and, finding that no one responded to their
knocking on the locked front door, broke the door
open. They found the body of Mr. Adkins, aged
seventy-seven, lying near the door. They succeeded
in carrying the body out of the house, but further
rescue efforts were prevented by the intensity of
the fire and smoke.
When the police and other local
authorities later examined the remains of the Adkins'
home, they found evidence of petroleum distillates
indicating that the fire was of incendiary origin.
They found an empty safe in a bedroom and the door
of the safe in another room. In addition, the
severely burned remains of the seventy-eight year-old
Myra Adkins were found in a bedroom closet.
When the authorities examined the
bodies of Mr. and Mrs. Adkins, they found that both
had been shot in the head at close range. Both
bodies had also been doused with accelerant. The
medical examiner who performed the autopsies on the
bodies testified that Mr. Adkins had died within a
short interval after a bullet was fired into his
face and penetrated his brain. Mrs. Adkins, on the
other hand, received a head wound that would not
have brought about death for several hours.
The medical examiner testified
that Mrs. Adkins, who had been placed bound and
gagged in the closet, had died from carbon monoxide
poisoning due to smoke inhalation. Jones had bound
and gagged and shot her, set her on fire while she
was still living, and left her to die, which she did.
We turn now to the several issues
raised on appeal. In asking that we reverse the
judgment of the district court, Jones argues that:
(I) his trial counsel rendered constitutionally
ineffective assistance; (II) the jury instructions
given at the penalty phase of his trial contained a
constitutionally infirm aggravating factor; and (III)
the jury instructions failed to satisfy
constitutional requirements concerning mitigating
factors.
I.
Jones' allegation of ineffective
assistance involves a number of distinct elements.
We will consider each of these claims in turn.
Jones first argues that his trial
counsel rendered ineffective assistance by failing
to advise him properly with regard to an offered
plea agreement. The state habeas court found that on
the morning of the first day of Jones' trial, the
Commonwealth's Attorney offered Jones' counsel a
plea bargain, the essence of which was that Jones,
in return for guilty pleas to capital murder and
arson charges, would receive two consecutive life
terms and some additional time on the arson charge.
Counsel communicated this offer
to Jones and discussed it with him on at least two
occasions. Counsel reviewed with Jones the evidence
against him and discussed the strengths and
weaknesses of the prosecution's case. He informed
Jones that, in his estimation, there was a seventy
percent probability of conviction and a forty to
fifty percent chance of receiving the death penalty.
He advised Jones that he would probably receive
eventual parole if he accepted the plea, but
cautioned that the estimates were no more than
guesses about future outcomes.
The state court found that these
estimates were reasonable under the circumstances.
Having communicated this information, counsel made
no recommendation and left the decision of whether
to accept the plea offer to Jones. Jones rejected
the offer for the stated reason that he was innocent.
Under 28 U.S.C. 2254(d), written
findings of historical fact by the state habeas
court are presumed to be correct and entitled to
deference unless shown to be erroneous by enumerated
statutory conditions. Our review of the record as a
whole discloses no evidence of such conditions set
forth in § 2254(d) and we conclude that the findings
of fact by the state court are fairly supported by
the record. See Sumner v. Mata, 449 U.S. 539, 550,
101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981).
In considering Jones' claim that
his counsel's assistance was so defective as to
require reversal of his death sentence, we follow
the standard set forth in Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Jones must therefore show that his counsel's
performance was so deficient "that counsel was not
functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment" and that this
deficient performance prejudiced the defense.
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The
first prong of this test requires us to evaluate
counsel's performance in light of an "objective
standard of 'reasonably effective assistance' under
'prevailing professional norms.' " Briley v. Bass,
750 F.2d 1238, 1247 (4th Cir.1984), cert. denied,
470 U.S. 1088 , 105 S.Ct. 1855, 85 L.Ed.2d 152
(1985).
Jones contends that his counsel
acted in what he calls a "professionally
unreasonable" manner by neither recommending that he
accept the plea bargain nor attempting to persuade
him to do so. Jones argues that the district court's
rejection of this claim was improper in view of
prevailing precedent and professional standards. We
cannot agree. Our review of the relevant authorities
does not support the contention that Jones' counsel
violated prevailing professional norms.
The American Bar Association's
standards, recognized by the Supreme Court as "guides
to determining what is reasonable," Strickland, 466
U.S. at 688, 104 S.Ct. at 2065, provide the
following guidelines concerning the proper
relationship between defense counsel and client in
the plea agreement context:
(a) Defense counsel should
conclude a plea agreement only with the consent of
the defendant, and should ensure that the decision
whether to enter a plea of guilty or nolo contendere
is ultimately made by the defendant.
(b) To aid the defendant in
reaching a decision, defense counsel, after
appropriate investigation, should advise the client
of the alternatives available and of considerations
deemed important by defense counsel or the defendant
in reaching a decision.
III American Bar Association
Standards for Criminal Justice, Standard 14-3.2 (2d
ed. 1986 Supp.).
We are in agreement with the
conclusion reached in the district court that
counsel's performance did not violate professional
standards. In accordance with Standard 14-3.2(a),
counsel notified his client when he received the
plea bargain offer from the Commonwealth's Attorney
and informed him of the terms of the offer. Counsel
advised his client concerning the available
alternative of proceeding with trial, as suggested
by Standard 14-3.2(b), and presented an opinion
concerning the probable outcomes of both the guilt
and sentencing phases that we have found to have
been reasonable under the circumstances. See also II
American Bar Association Standards for Criminal
Justice, Standard 4-5.1 ("[T]he lawyer should advise
the accused with complete candor concerning all
aspects of the case, including a candid estimate of
the probable outcome.").
As further suggested by Standard
14-3.2(b), counsel advised his client of the
important consideration of the strengths and
weaknesses of the Commonwealth's case against him.
He also responded to his client's questions
concerning the potential for parole if he accepted
the plea bargain. After offering Jones this advice
and assistance, counsel followed Standard 14-3.2(b)
by allowing his client to make the ultimate decision.
See also II American Bar Association Standards for
Criminal Justice, Standard 4-5.2(a)(1).
In this regard, various Standards
placed upon counsel an affirmative duty to avoid
exerting "undue influence on the accused's decision"
and to "ensure that the decision ... is ultimately
made by the defendant." American Bar Association
Standards for Criminal Justice, Standards 4-5.1(b) &
14-3.2(b). We cannot conclude that counsel's
decision, at this point and in the context of his
client's rejection of the plea offer for the stated
reason that he was innocent, to refrain from a
vigorous attempt to change his client's mind was "outside
the wide range of professionally competent
assistance." Strickland, 466 U.S. at 690, 104 S.Ct.
at 2066.
Jones next argues that his
counsel rendered ineffective assistance by failing
to investigate available mitigating evidence that
could have been introduced at the penalty phase of
Jones' trial. Specifically, he contends that his
counsel did not seek any psychiatric evaluation to
determine why Jones, who had no prior criminal
record, would have committed the murders, and did
not investigate other sources of character testimony
that could have evoked mercy from the jury.
The state habeas court found that
prior to his trial, Jones was examined by James C.
Dimitris, M.D.; Henry O. Gwaltney, Ed.D., a forensic
clinical psychologist; and William M. Lee, Ph.D., a
forensic clinical psychologist. Pursuant to a court
order, these doctors directly examined Jones at
Central State Hospital and had access to information
concerning his alleged crimes, including
investigative reports of the Virginia State Police,
statements made by Jones to the authorities, and
information from the office of the Commonwealth's
Attorney. Jones was found to be competent to stand
trial and legally sane at the time of his alleged
crimes.
The state court further found
that Dr. Lee and Dr. Gwaltney conducted examinations
of Jones focusing on the issue of mitigating mental
factors and circumstances. Dr. Lee and Dr. Gwaltney
both reported finding no evidence that Jones was
under the influence of extreme mental or emotional
disturbance at the time of the crimes. Neither
doctor found any evidence that Jones, at the
relevant time, did not have the capacity to
appreciate the criminality of his conduct or to
conform his conduct to the requirements of the law.
Jones' counsel was fully aware of the doctors'
findings prior to trial. The state court, as an
additional finding of fact, found that there is no
evidence that, at the time Jones committed the
murders, any mitigating mental circumstances existed.
Jones disputes the state court's
account and, in particular, the factual finding that
Dr. Lee and Dr. Gwaltney conducted their
examinations with an eye towards sentencing
mitigation issues. Jones has not, however, pointed
to any evidence to meet his burden of establishing
by convincing evidence that the state court's
findings were erroneous. See Sumner, 449 U.S. at
550, 101 S.Ct. at 770. Our own review of the record
leads us to conclude that the findings of the state
court presented above were not erroneous. These
findings of historical fact will therefore provide
the basis for our consideration of Jones' claims of
ineffective assistance in this regard.
Jones argues that his counsel was
ineffective in that he "utterly failed to conduct
any investigation of appellant's psychiatric makeup"
and did not seek any "independent" psychiatric
evaluation. The first portion of this claim is
rebutted by the fact that Jones, as discussed above,
was indeed examined by a physician skilled in the
diagnosis of insanity, who was a board certified
psychiatrist and the medical director of the
forensic unit of the hospital, a mental institution,
and as discussed above, two clinical psychologists
who testified, at the state habeas court's
evidentiary hearing, that they conducted a complete
series of psychological tests on Jones and assessed
him for possible mitigating mental or emotional
factors at the time he committed the murders.
The psychologists testified that
they were familiar with Virginia's statutory
provisions regarding mitigating mental conditions.
They ultimately concluded that there was no evidence
of any such mitigating mental factors. Counsel,
according to his own testimony corroborated by that
of the two psychologists, was in regular
communication with the doctors during the course of
their examinations of Jones. This communication
included written reports, phone conversations, face-to-face
meetings, and a conference lasting several hours on
the eve of trial. In view of these efforts, we
conclude that counsel was not deficient in his
investigation of his client's psychiatric make-up.
Jones further argues that counsel
should have sought what he calls "independent"
evaluation. We note that Jones has pointed to no
evidence indicating that counsel did in fact suspect,
or should have suspected, that either the physician
or the psychologists were biased in the performance
of their duties. He simply recites the fact that
they were state employees and contends that this
alone made it unreasonable for counsel to rely on
their objectivity.
Counsel, on the other hand, had
the opportunity to work with Dr. Dimitris, Dr. Lee,
and Dr. Gwaltney and observed the psychologists, at
least, first-hand during the performance of their
tasks. There is no indication that he found any
reason to doubt their objectivity. To the contrary,
he reached the conclusion that their expertise would
be helpful to Jones' case and utilized the
psychologists in selecting the jury and as witnesses
for the defense. We believe that this reliance on
their work has not been shown to have been
unreasonable.
Similarly, we conclude that
counsel's decision, based upon the advice of these
psychologists that his client suffered from no
mitigating psychiatric conditions at the time of his
crimes, not to devote additional time and effort to
further evaluation was within the range of
reasonable professional judgment. We accordingly
find no error in the district court's rejection of
Jones' ineffective assistance claim relating to
psychiatric evaluation.
We also agree with the district
court's rejection of Jones' claim that his counsel
rendered ineffective assistance by failing to
investigate "numerous obvious sources of character
testimony that could have evoked mercy on the part
of the jury." The alleged sources may usefully be
broken down into three groups. The first potential
witness group includes individuals whose names were
suggested to counsel by Jones.
The state habeas court found that
counsel pursued all of Jones' suggestions of
character witnesses, but found that nearly all of
them, including two church deacons and personnel at
the high school and community college attended by
Jones, were not willing or able to testify. With
regard to Michelle Ford, one of the individuals who
apparently was willing to testify, the state court
found that counsel believed that she would be a
hostile witness because she was testifying for the
Commonwealth and decided not to contact her.
Although particular objection was
not made to the attorney's failure to call Jones'
girlfriend, she being grouped in the most general
terms with witnesses supposedly favorable to Jones
which were not called, no showing has been made of
the purport of her proposed testimony; therefore, a
finding of ineffective counsel for not calling her
may not be sustained. On this factual basis, we
conclude that counsel's investigation of these
individuals was not deficient and his actions under
the circumstances might well "be considered sound
trial strategy." Strickland, 466 U.S. at 689, 104
S.Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S.
91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)).
A second group of potential
witnesses consists of several people who apparently
were not suggested by Jones to his counsel, but who
testified in the state habeas court that they would
have been willing to testify at trial had they been
asked to do so. With regard to these potential
witnesses, the state court found that their
testimony was merely cumulative of testimony
actually presented during Jones' trial by Jones'
mother and Jay Scales, a friend of Jones.
Finding nothing in the record to
contradict this finding, we conclude that Jones was
not prejudiced by not having their testimony
presented. A third group of potential witnesses
consists of several individuals who, in affidavits
submitted to the district court, stated that they
would have testified favorably for Jones at the
penalty phase of the trial if they had been asked to
do so.
One of these affiants was Jones'
sister. Jones has done nothing to rebut the state
court's finding that counsel made a conscious
decision not to call her as a witness because he
perceived that she, as had Jones' mother, would
display a cool and reserved demeanor before the jury
that would be unhelpful to his case. We therefore
agree that the decision not to call her was a
reasonable exercise of professional judgment.
With regard to the remainder of
the affiants, we also agree with the district court
that their proffered testimony does not raise a
reasonable probability that the result of the
proceedings would have been a sentence other than
death if they had testified. See Strickland, 466
U.S. at 694, 104 S.Ct. at 2068. Having found this
lack of sufficient prejudice, we need not address
the other component of the Strickland inquiry and
reject this aspect of Jones' ineffective assistance
claim.
466 U.S. at 697, 104 S.Ct. at 2069.
Jones presents one further
argument to support the claim that his counsel acted
unreasonably in development of the case in
mitigation. He points to the Commonwealth's closing
argument, during which the following statement was
made:
Was [Jones] honorably discharged
from the Army? If he had had some valuable
characteristics, some valuable acts that he had done
there, I think that they would have been in front of
you.
Jones argues that he did in fact
receive an honorable discharge from the Army and
that counsel's failure to present this fact to the
jury constituted ineffective assistance. The state
court addressed this claim and made a factual
finding that Jones' counsel had made a timely
attempt to obtain the relevant records from the Army.
Through no fault on his part, however, the records
were not received until after trial. Jones has not
disputed these factual findings and we find no basis
for holding that counsel acted outside the range of
competence demanded of attorneys in criminal cases.
Another element of Jones'
argument on appeal is that the district court erred
in rejecting his claim that counsel rendered
ineffective assistance by failing to call his client
to testify during the sentencing phase of the trial.
The state habeas court found that Jones had
incriminated himself with a confession made during a
custodial interrogation, which the trial court had
excluded on Miranda grounds, but ruled that the
confession had been made voluntarily and was
therefore competent for purposes of impeachment.
Jones' counsel advised him not to
take the stand at the penalty phase of his trial.
Counsel based this advice on his concern that Jones'
suppressed confession might be brought before the
jury. He apparently felt that if Jones took the
stand to testify, the door might be opened for the
prosecution to impeach him through the confession.
Counsel did not believe that the court would limit
cross-examination to prevent the exposure of Jones
to impeachment on this ground. Counsel further
believed that if the jury learned about the
confession, they would certainly sentence Jones to
death.
Jones argues that it was
unreasonable for counsel not to put his client on
the stand and not to seek a ruling from the court
that would have allowed Jones to testify, without
denying guilt, about his "character and background."
In response to this argument, the magistrate and the
district court observed that if Jones had in fact
taken the stand at any time without denying that he
committed the murders, the effect would have been
much the same as airing a confession before the jury.
Under this reasoning, even if Jones' counsel acted
improperly by not calling his client to the stand in
the manner now suggested, the effect would not have
been prejudicial to the defense.
Jones urges us to reject the
reasoning embodied in the opinion of the district
court. But while Jones now insists that he was
prepared to testify as to "numerous compelling
aspects" of his character and background that "could
have had a significant impact" on the jury's
sentencing decision, we emphasize that a defendant
must do more than show that an alleged error on the
part of counsel "conceivably could have influenced
the outcome." Strickland, 466 U.S. at 693, 104 S.Ct.
at 2067.
Rather, the defendant must
affirmatively show that there is a reasonable
probability that, if Jones had testified about his
character and record, the jury would not have
imposed the death penalty.
On the record before us, we find
that Jones has simply not made such a showing. His
references to "compelling," "numerous," but
unspecified aspects of his character and record
provide us with no basis for reversing the decision
of the district court. We therefore affirm the
district court's rejection of this portion of Jones'
ineffective assistance claim.
II.
In addition to his claims
concerning ineffectiveness of counsel, Jones argues
that the jury instructions given during the penalty
phase of his trial were constitutionally defective.
Because these instructions were drawn from the
language of Virginia's death penalty statute, Jones
advances several claims concerning the structure and
application of Virginia's statutory scheme.
Under Virginia law, the death
penalty may be imposed if the jury finds beyond a
reasonable doubt that "there is a probability based
upon evidence of the prior history of the defendant
or of the circumstances surrounding the commission
of the offense of which he is accused that he would
commit criminal acts of violence that would
constitute a continuing serious threat to society,
or that his conduct in committing the offense was
outrageously or wantonly vile, horrible or inhuman,
in that it involved torture, depravity of mind or
aggravated battery to the victim." Va.Code Ann. §
19.2-264.4.C. Because the trial court did not
instruct the jury on the future dangerousness
component of the statute, and the sentence was not
based on that aspect of the statute, Jones focuses
his attack solely upon the vileness aggravating
factor.
We have previously upheld the
facial validity of this aggravating factor against
constitutional challenge in Clozza v. Murray, 913
F.2d 1092, 1105 (4th Cir.1990), cert. denied, ---
U.S. ----, 111 S.Ct. 1123, 113 L.Ed.2d 231 (1991)
and as applied in Turner v. Bass, 753 F.2d 342, 351
(4th Cir.1985), reversed in part on other grounds,
476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986),
based upon the Supreme Court's approval of such
language. Godfrey v. Georgia, 446 U.S. 420, 422-23,
100 S.Ct. 1759, 1761-62, 64 L.Ed.2d 398 (1980);
Gregg v. Georgia, 428 U.S. 153, 201, 96 S.Ct. 2909,
2938, 49 L.Ed.2d 859 (1976) (opinion of Stewart,
Powell, and Stevens, JJ.). Jones, however, claims
three constitutional deficiencies concerning the
vileness aggravating factor as it was applied to him.
His first argument calls
attention to the portion of the statute, Va.Code
Ann. 19-2-264.2, which states that vileness must
involve "torture, depravity of mind or aggravated
battery to the victim." He contends that because the
jury's instructions and verdict forms contained a
disjunctive formulation of these three limiting
modifiers, there is no assurance that his sentencing
jury reached a unanimous decision as to which
component of vileness was presented by his crimes.
Jones urges us to hold that this wording is an
ambiguity which renders his sentence
unconstitutional.
In Coleman v. Thompson, 895 F.2d
139 (4th Cir.1990), aff'd on other grounds, --- U.S.
----, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), we
considered a similar argument from a petitioner who
claimed that Virginia's death penalty statute had
been unconstitutionally applied to him because the
record did not indicate that the jury had
unanimously found the existence of a statutory
aggravating circumstance. Relying upon Cabana v.
Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704
(1986) and Hildwin v. Florida, 490 U.S. 638, 109
S.Ct. 2055, 104 L.Ed.2d 728 (1989),
Coleman recognized that "the
Constitution does not require a jury for the
imposition of the death penalty." 895 F.2d at 146.
If authorized by state law, "an appellate court can
determine whether an aggravating factor has been
proved and can impose the death penalty ... even
when the jury may not have found an aggravating
factor." Coleman, 895 F.2d at 146.
Based on these principles,
Coleman directed that a federal court's inquiry
should not be confined to the jury instructions, but
should "examine the entire course of the state court
proceedings against the defendant in order to
determine whether, at some point in the process, the
requisite finding as to defendant's culpability has
been made." Coleman, 895 F.2d at 146 (quoting Cabana
v. Bullock, 474 U.S. at 387, 106 S.Ct. at 697).
In the present case, as in
Coleman, the Virginia Supreme Court exercised the
broad power conferred upon it by section 17-110.1 of
the Virginia Code and conducted its automatic review
of Jones' death sentence in a consolidated
proceeding that also considered Jones' appeals.
Jones v. Commonwealth, 228 Va. at 434-35, 323 S.E.2d
at 567.
It compared Jones' case to others
"where the jury based a death penalty upon the
vileness predicate" and independently determined
that the evidence at Jones' trial was sufficient to
support findings of aggravated battery and depravity
of mind within the definitions established by its
prior decisions. Jones v. Commonwealth, 228 Va. at
445-50, 323 S.E.2d at 564-567.
We are of opinion that Jones has
not overcome the presumption of correctness to which
such state court findings are entitled, see Sumner
v. Mata, 449 U.S. at 546-47, 101 S.Ct. at 768-69,
and conclude that the Virginia Supreme Court's
review of Jones' sentence meets the constitutional
requirements that Jones argues were left unsatisfied
by the disjunctive phrasing of the jury's verdict.
Specific findings authorizing the imposition of the
death penalty have been made "in an adequate
proceeding before [an] appropriate tribunal." Cabana
v. Bullock, 474 U.S. at 392, 106 S.Ct. at 700.
The second argument presented by
Jones is that the Virginia Supreme Court failed to
adopt any limiting construction of the vileness
aggravating factor. The United States Supreme Court
has held that aggravating circumstances based on
vileness are unconstitutionally vague unless given
some limiting construction. Godfrey v. Georgia, 446
U.S. 420, 428-29, 100 S.Ct. 1759, 1764-65, 64 L.Ed.2d
398 (1980).
We note that the Virginia Supreme
Court has construed the vileness component so that
it must include one of the three separate and
distinct statutory elements of torture, depravity of
mind, or aggravated battery. Proof of only one of
these factors is sufficient to support a death
sentence. Bunch v. Commonwealth, 225 Va. 423, 432,
304 S.E.2d 271, 282, cert. denied,
464 U.S. 977 , 104 S.Ct. 414, 78 L.Ed.2d 352
(1983).
The Virginia Court has also given
additional limiting constructions to two elements of
the vileness component. Aggravated battery has been
defined as "a battery which, qualitatively and
quantitatively, is more culpable than the minimum
necessary to accomplish an act of murder." Smith v.
Commonwealth, 219 Va. 455, 478, 248 S.E.2d 135, 149
(1978), cert. denied,
441 U.S. 967 , 99 S.Ct. 2419, 60 L.Ed.2d 1074
(1979). Depravity of mind has been defined to
mean "a degree of moral turpitude and psychical
debasement surpassing that inherent in the
definition of ordinary legal malice and
premeditation." Smith, 219 Va. at 478, 248 S.E.2d at
149.
We have previously recognized
that the Virginia Supreme Court has thus provided a
constitutionally limited construction of its
vileness aggravating factor. Boggs v. Bair, 892 F.2d
1193, 1197 (4th Cir.1989), cert. denied, --- U.S.
----, 110 S.Ct. 2193, 109 L.Ed.2d 521 (1990); Turner
v. Bass, 753 F.2d at 351-53.
We further hold that the Virginia
Supreme Court properly applied this limited
construction to the facts of Jones' case. The Court
stated as follows:
Mrs. Adkins, an elderly,
defenseless lady who had befriended the defendant,
was a victim of a series of vicious assaults, only
the last of which proved fatal. Her assailant tied
her hands behind her back, stuffed a sock down her
throat, taped her mouth and neck to hold the gag in
place, forced her into a closet, shot her at point-blank
range in the face, doused her clothing with an
accelerant, struck a match, and left her, still
alive and breathing, to die of smoke inhalation.
Although the evidence does not
show whether or how long she remained conscious
before she expired, it is reasonable to believe that
the fire, which ultimately consumed one arm and most
of both legs, could have caused her to suffer
intense pain and terror for some period of time.
Jones, 228 Va. at 447-48, 323
S.E.2d at 565. The Virginia Court found that
evidence of these facts and circumstances supported
a jury finding of aggravated battery and depravity
of mind with regard to the murder of Mrs. Adkins.
In reaching this conclusion, the Court relied upon
its limiting precedent of Smith v. Commonwealth and
its decision in Mason v. Commonwealth, 219 Va. 1091,
254 S.E.2d 116, cert. denied,
444 U.S. 919 , 100 S.Ct. 239, 62 L.Ed.2d 176
(1979).
Mason sustained a finding of
vileness upon evidence that an elderly victim,
following a vicious assault and rape had been "set
on fire while still alive, although in extremis."
Mason, 219 Va. at 1099, 254 S.E.2d at 121. The Court
in Mason found that torture and aggravated battery
had been proven.
With regard to the murder of Mr.
Adkins, the Virginia Supreme Court recognized that
Mr. Adkins had died almost instantaneously, thereby
avoiding the agonies of gradual incineration
inflicted upon his wife, and noted that it had said
in a prior decision following Godfrey, that " '[a]
death sentence based upon vileness is not supported
by the evidence where the victim dies almost
instantaneously from a single gunshot wound.' "
Jones, 228 Va. at 448, 323 S.E.2d at 566 (quoting
Peterson v. Commonwealth, 225 Va. 289, 296, 302
S.E.2d 520, 525, cert. denied,
464 U.S. 865 , 104 S.Ct. 202, 78 L.Ed.2d 176
(1983)).
Cognizant of these strictures,
the Court nonetheless found that the evidence
concerning the murder of Mr. Adkins supported a jury
finding that Jones' actions displayed depravity of
mind. This conclusion was supported by prior
decisions establishing that depravity of mind was a
discrete underpinning of Virginia's vileness
standard capable of existing "independently of the
presence of torture or aggravated battery." Jones,
228 Va. at 448-49, 323 S.E.2d at 565 (quoting Bunch,
225 Va. at 442, 304 S.E.2d at 282).
The court then held that "an
aggravated battery such as mutilation, gross
disfigurement, or sexual assault committed upon a
corpse or an unconscious body" evinced depravity of
mind within the meaning of Virginia's death penalty
statute.
Jones, 228 Va. at 448, 323 S.E.2d at 565. Reviewing
the record before it, the court found that Jones had
soaked the clothing of Mr.
Adkins with accelerant and was
prevented from burning the body only by "the chance
intervention of a stranger." Jones, 228 Va. at 449,
323 S.E.2d at 566. The fact that Jones' effort to
mutilate the body was not successful, the court
stated, did not undermine its holding that the
murder of Mr. Adkins involved conduct evincing
depravity of mind.
Having considered the review
conducted in this case, we reject Jones' contention
that the Virginia Supreme Court was guilty of the
practice, condemned in Maynard v. Cartwright, 486
U.S. 356, 363, 108 S.Ct. 1853, 1858, 100 L.Ed.2d 372
(1988), of deciding that a particularly shocking set
of facts were sufficient in themselves, and without
applying some narrowing principle, to warrant the
imposition of the death penalty. We find that the
Virginia Supreme Court has given a constitutionally
limited construction to the vileness criterion and
applied that limited construction to the facts of
Jones' case.
As his third argument concerning
the Virginia vileness factor, Jones contends that
the instructions given the jury were
unconstitutionally vague. As mentioned previously,
the trial court instructed the jury concerning
vileness by using the statutory language which
describes vileness as conduct involving torture,
depravity of mind, or aggravated battery. Jones
appears to argue that the term "depravity of mind"
is facially unconstitutional because of vagueness.
This contention is without merit.
The Supreme Court in Gregg
scrutinized this identical language within the even
broader section which included the phrase and stated
that "there is no reason to think that juries will
not be able to understand it." Gregg v. Georgia, 428
U.S. at 202 n. 54, 96 S.Ct. at 2939 n. 54. We have
specifically reached the same conclusion with regard
to the Virginia vileness language. See, e.g., Turner
v. Bass, 753 F.2d at 351.
Jones also argues that the trial
court's further explanation of depravity of mind as
meaning "a degree of moral turpitude and psychical
debasement surpassing that inherent in the
definition of ordinary legal malice and
premeditation" merely served to exacerbate the
vagueness inherent in the term depravity of mind. We
have previously recognized the language in question
to be a "limiting construction" of the term
depravity of mind, Turner v. Bass, 753 F.2d at 351,
and do not agree with Jones' argument that it is "utterly
unintelligible to the average juror." We therefore
reject Jones' vagueness argument.
III.
Jones' final argument on appeal
attacks the manner in which the jury instructions
given at his trial dealt with mitigating
circumstances.
He contends that the instructions
at the penalty stage were in conflict with the
Supreme Court's opinion in Penry v. Lynaugh, 492
U.S. 302, 328, 109 S.Ct. 2934, 2951, 106 L.Ed.2d 256
(1989), which stated that:
In order to ensure 'reliability
in the determination that death is the appropriate
punishment in a specific case,' the jury must be
able to consider and give effect to any mitigating
evidence relevant to the defendant's background and
character, or the circumstances of the crime. (citation
omitted).
The jury instruction in question
told the jury that "[i]f you find from the evidence
that the Commonwealth has proven beyond a reasonable
doubt that the offense was outrageously or wantonly
vile, horrible or inhuman then you may fix the
punishment of the defendant at death or if you
believe from all the evidence that the death penalty
is not justified, then you shall fix the punishment
of the defendant at life imprisonment."
Jones argues that this
instruction did not tell the jury to consider
mitigating circumstances. He contends that from the
instruction quoted above, the jury could well have
inferred that if it found an aggravating factor, it
had no option but to impose the death penalty
without considering mitigating factors.
We have previously considered a
quite similar claim involving a jury instruction
almost identical to that now before us.
In Briley v. Bass, 750 F.2d 1238 (4th Cir.1984),
cert. denied,
470 U.S. 1088 , 105 S.Ct. 1855, 85 L.Ed.2d 152
(1985), we considered the question of whether
instructions given at the penalty stage of a trial
were constitutionally flawed in that they failed to
inform the jury of its option to recommend life
imprisonment and its obligation to consider
mitigating evidence. We found that the instructions
presented no constitutional error.
Jones argues, however, that
Briley does not foreclose his claim because the
Supreme Court's intervening opinion in Penry
requires us to depart from our prior decision. We
cannot agree. The instruction given to the jury at
the sentencing phase of Jones' trial cannot be said
to have left a reasonable juror with the belief that
there was no vehicle for expressing the view that
Jones did not deserve to be sentenced to death,
based upon his mitigating evidence. See Penry, 492
U.S. at 323, 324, 109 S.Ct. at 2948, 2949.
Taken as a whole,
the instructions leave no doubt that the jury was
free to consider mitigating evidence and recommend
life imprisonment. The trial court, for example, and
to repeat, explicitly charged the jury in the
ultimate paragraph of the instruction on the
sentence to impose:
If you find from the evidence
that the Commonwealth has proven beyond a reasonable
doubt that the offense was outrageously or wantonly
vile, horrible or inhuman, then you may fix the
punishment of the defendant at death or if you
believe from all the evidence that the death penalty
is not justified, then you shall fix the punishment
of the defendant at life imprisonment.
And in a separate instruction the
trial court charged the jury:
The Court instructs the Jury that
even if you believe beyond a reasonable doubt that
such facts and circumstances have been proven so as
to permit the Death Penalty, it is still the
prerogative of the Jury to decide whether death
should be the punishment or not, and the Jury is
under no obligation or compulsion to find the
punishment should be death.
The term "all the evidence"
necessarily includes the evidence in mitigation as
well as that in aggravation. Furthermore, the
statutory jury verdict form used by the jury stated
that it had "considered the evidence in mitigation
of the offense." We believe that, as in Briley, the
instructions given to the jury "leave the definite
impression that the jury was to take into account
such evidence as was presented in mitigation and to
exercise discretion in reaching a verdict on
sentencing, rather than automatically imposing the
death sentence upon finding an aggravating
circumstance." Briley, 750 F.2d at 1244.
This conclusion fully accords
with Penry 's requirement that a jury must be able "to
consider and give effect to any mitigating evidence
relevant to a defendant's background and character,
or the circumstances of the crime." 492 U.S. at 328,
109 S.Ct. at 2951; see Boyde v. California, 494 U.S.
370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990).
By allowing the jury to consider
all relevant mitigating evidence, the procedure by
which Jones was sentenced satisfied the requirement
of the Eighth and Fourteenth Amendments of
individualized sentencing in capital cases. Blystone
v. Pennsylvania, 494 U.S. 299, 306-08, 110 S.Ct.
1078, 1083-84, 108 L.Ed.2d 255 (1990); Lockett v.
Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57
L.Ed.2d 973 (1978).
While we grant the petitioner's
request for a certificate of probable cause, see
Fed.R.App.P. 22(b), the judgment of the district
court is accordingly
AFFIRMED.
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