McHone v. Polk

• Decision Date: 28 December 2004
• Docket Number: No. 04-14.,04-14.
• Parties: Steven Van McHONE, Petitioner — Appellant, v. Marvin POLK, Warden, Central Prison, Raleigh, North Carolina, Respondent — Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

392 F.3d 691

Steven Van McHONE, Petitioner — Appellant, v. Marvin POLK, Warden, Central Prison, Raleigh, North Carolina, Respondent — Appellee.

No. 04-14.

United States Court of Appeals, Fourth Circuit.

Argued: September 28, 2004.

Decided: December 28, 2004.

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ARGUED: Cynthia Francine Adcock, Chapel Hill, North Carolina, for Appellant. Valerie Blanche Spalding, North Carolina Department of Justice, Raleigh, North Carolina, for Appellee. ON BRIEF: Kenneth J. Rose, Center for Death Penalty Litigation, Inc., Durham, North Carolina, for Appellant. Roy Cooper, Attorney General of North Carolina, North Carolina Department of Justice, Raleigh, North Carolina, for Appellee.

Before WILKINS, Chief Judge, and LUTTIG and GREGORY, Circuit Judges.

Affirmed by published opinion. Judge LUTTIG wrote the opinion, in which Judge WILKINS concurred. Judge GREGORY wrote a separate opinion concurring in part and dissenting in part.

LUTTIG, Circuit Judge.

Petitioner, Steven Van McHone, appeals from the district court's denial of his 28 U.S.C. § 2254 habeas petition. In accordance with 28 U.S.C. § 2253(c), we granted McHone a certificate of appealability in order to address the claims he raises under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because we conclude that the North Carolina Supreme Court's disposition of these claims was neither contrary to, nor an unreasonable application of, established federal law, we affirm.

I.

The North Carolina Supreme Court and the district court have thoroughly recounted the facts of Steven McHone's murders of his mother, Mildred Adams, and his stepfather, Wesley Adams, Sr., see State of North Carolina v. McHone, 334 N.C. 627, 435 S.E.2d 296, 298-301 (1993); J.A. 817-22. We set forth only the facts relevant to the issues on appeal, as established by the witnesses who testified at McHone's trial.

Wendy Adams testified that at 12:30 a.m. on June 3, 1990 she, her husband Wesley Adams, Jr., their son Alex, and Wesley, Jr.'s parents Mildred Adams and Wesley Adams, Sr., returned to Mildred and Wesley, Sr.'s home after a day of fishing. Steven McHone, an occupant of the house, was already there. While getting Alex ready for bed, Wendy overheard Wesley, Sr. and Mildred arguing with McHone about money. Thereafter, Mildred came to their room inquiring about a missing pistol. Subsequently, Wesley, Jr. and Wendy heard three gunshots. As Wesley, Jr. went out into the hall to investigate, Wendy heard someone coming up the basement stairs and then overheard Wesley, Sr. tell Wesley, Jr. to call 911.

Wesley, Jr., a Captain in the United States Air Force, testified that while he was talking with the 911 operator he briefly saw McHone wrestling with Wesley, Sr. before they disappeared from sight. About a minute later, Wesley, Sr. reappeared and told Wesley, Jr. that his mother was "face down out back." As Wesley, Sr. approached Wesley, Jr., McHone appeared in the doorway and shot Wesley, Sr. in the chest with a shotgun. Wesley, Jr., after a lengthy scuffle, managed to disarm McHone. Thereafter, McHone cursed at Wesley, Jr. and threatened that if Wesley, Jr. did not kill him he would hunt Wesley, Jr. and his family down and "finish them off." McHone, 435 S.E.2d at 299.

McHone did not dispute that he killed Mildred and Wesley, Sr. and assaulted Wesley, Jr. Rather, he presented a voluntary intoxication defense, claiming that his consumption of alcohol and LSD prevented him from forming the requisite mental state for first degree murder. During sentencing, McHone presented his impaired mental state in mitigation. McHone attempted to establish his impairment through the testimony of Jimmy McMillian and Tammy Bryant.

McMillian testified that over the course of June 2, 1990 he and McHone split one and one-half pints of Jack Daniels and that, in addition, McHone drank a pitcher of beer. McMillian testified that McHone's physical and mental faculties were appreciably impaired because he had a "slushy mouth." Id. at 300.

Bryant, McHone's girlfriend, testified that she saw McHone on the evening of June 2 at a party at the home of Ronald Speaks. Bryant testified that, when McHone arrived at the party, his speech was slurred and that he was staggering. She further testified that McHone got into a fight while at the party and began "swinging a gun around in everyone's face, threatening everybody, moving real swiftly and quickly." When Bryant asked McHone "what he was on," McHone responded, "I have taken a couple of hits of acid." Id.

McHone also presented expert testimony from Dr. James Groce and Dr. John Frank Warren, III. Both testified that McHone had a serious substance abuse problem. Id. at 301.

The state presented the testimony of Tammy Sawyers to rebut McHone's intoxication defense. Sawyers, who did not drink any alcohol on June 2, testified that she and McHone had a conversation while driving to Speaks' house and that McHone's speech was fine and that McHone was able to walk "fine" to and from her vehicle. She also testified that she was with McHone from 3:00 p.m. on June 2 until 2:00 a.m. the next morning, that she was never out of his presence for more than five minutes, and that she did not observe him take any controlled substances. Id.

The jury convicted McHone of two counts of first degree murder, one each for killing his mother, Mildred, and his step-father, Wesley, Sr. The jury also convicted McHone of one count of assault with a deadly weapon with intent to kill, for his attack on his step-brother, Wesley, Jr. After finding one aggravating factor and eleven mitigating factors as to the murder of Mildred, id. at 579-81, and two aggravating factors and ten mitigating factors as to the murder of Wesley, Sr., id. at 582-85, the jury recommended, and the trial court imposed, the death penalty for each first degree murder. McHone, 435 S.E.2d at 298. McHone unsuccessfully sought direct and post-conviction review in the North Carolina courts, id.; J.A. 731-775; State of North Carolina v. McHone, 350 N.C. 825, 539 S.E.2d 642 (1999), and his federal habeas petition was denied on the merits by the district court. J.A. 873. Pursuant to the certificate of appealability issued by this court, the instant appeal followed.

II.

McHone claims that the state's failure to disclose evidence located in State Bureau of Investigation (SBI) files entitles him to relief under Brady v. Maryland. McHone's Brady claims did not receive extensive treatment in the Superior Court and in the North Carolina Supreme Court. J.A. 774; McHone, 539 S.E.2d at 642 ("This court having thoroughly considered the matters raised ... and having determined that none require further evidentiary hearing and that none merit any further grounds for relief, the motion is therefore denied."). Nonetheless, the determination by those courts that McHone was not entitled to relief under Brady constitutes an adjudication on the merits of that claim. See Bacon v. Lee, 225 F.3d 470, 478 (4th Cir.2000). Accordingly, under section 2254(d), we "confine our review to whether the [state] court's determination resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law." Bell v. Jarvis, 236 F.3d 149, 158 (4th Cir.2000) (en banc). The district court concluded that petitioner did "not [meet] the AEDPA standards for this claim," and we agree.

In order for a petitioner to obtain relief under Brady, "(1) the evidence must be favorable to the accused; (2) it must have been suppressed by the government, either willfully or inadvertently; [and] (3) the suppression must have been material, i.e., it must have prejudiced the defense at trial." Monroe v. Angelone, 323 F.3d 286, 299 (4th Cir.2003); Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (exculpatory evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.") (emphasis added). Materiality is not considered item by item, rather it must be assessed collectively. Id. at 436, 115 S.Ct. 1555.

The district court assumed that the government did not turn over the evidence in question, J.A. 835, and we assume the same.

A.

McHone identifies the statements of seven individuals — Wesley Adams, Jr., Wendy Adams, Randy Adams, Tammy Sawyers, Mark Tuttle, Deputy Inman, and William Kent Hall — that he contends were improperly withheld by the government.

As to the first statement, that of Wesley Adams, Jr., Officer L. Perry summarized Wesley, Jr.'s statement to investigators immediately after the crime as follows:

Wes ... overheard Steve and his mother quarreling in the kitchen. Steve was obviously drunk and was complaining to his mother that he wanted his money which she was holding for him. J.A. 617;

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Steve continued to argue with his mother and step-father. Wesley, Sr. told Steve to go downstairs in the basement and sleep it off. Id.;

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Wes advised that he smelled a strong odor of alcohol on Steve on this occasion. He was not aware of what amount Steve may have drunk or if he had taken any drugs. Steve was not stuttering and appeared to know what he was doing the entire time. He was able to fight both him (Wes) and his father and was able to "put up a pretty good fight." Steve was not remorseful at all after the shooting was over. Steve even told Wes ... that "You'd better kill me or I'll come back and kill you, your wife, and child." Id. at 619[.]

Wesley, Jr. testified at McHone's trial. He testified as follows:

Q. Did you notice any odor of alcohol about Steve that night? A. I didn't notice any. Q. During this argument did you know that he had been drinking? A. The only indication I had, the only mention of drinking at...