Larry v. Branker

Decision Date05 January 2009
Docket NumberNo. 07-7.,07-7.
Citation552 F.3d 356
PartiesThomas Michael LARRY, Petitioner-Appellant, v. Gerald J. BRANKER, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee. North Carolina Academy of Trial Lawyers, Amicus Supporting Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Elizabeth Ann Hambourger, Center for Death Penalty Litigation, Durham, North Carolina, for Appellant. Diane Appleton Reeves, North Carolina Department of Justice, Raleigh, North Carolina, for Appellee. ON BRIEF: Gretchen M. Engel, Center for Death Penalty Litigation, Durham, North Carolina, for Appellant. Roy Cooper, North Carolina Attorney General, Raleigh, North Carolina, for Appellee. Burton Craige, Patterson Harkavy, L.L.P., Raleigh, North Carolina, for Amicus Supporting Appellant.

Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Judge SHEDD wrote the opinion, in which Judge TRAXLER and Senior Judge HAMILTON joined.

SHEDD, Circuit Judge:

Thomas Michael Larry was sentenced to death after a North Carolina jury found him guilty of first-degree murder and robbery with a firearm. Larry unsuccessfully challenged his conviction and sentence in state court, both on direct appeal and in collateral proceedings, and then filed a petition for writ of habeas corpus in federal district court. The district court denied Larry's petition. We granted Larry a certificate of appealability to consider two issues: (1) whether the state court erred by rejecting his request for a second-degree murder jury instruction and (2) whether he is ineligible for capital punishment because of mental retardation. For the following reasons, we affirm the district court's judgment.

I.
A.

We begin with a summary of the facts pertaining to Larry's underlying crimes, as articulated by the North Carolina Supreme Court:1

"The evidence at trial tended to show that on 15 January 1994, at approximately 9:30 p.m., Larry robbed a Food Lion employee who had access to the safe, saw Larry standing in the front part of the store and asked if she could help him. He said that she could open the safe for him and that if she did not, she was a dead woman. He pointed a small black revolver at her. Pennell went to the safe and opened it. Larry took at least $1,700 from the safe and put it in a box. He put the box under his arm and went outside. Throughout the robbery, he pointed the gun at others in the store, telling them not to move.

"The murder victim, Robert Buitrago, an off-duty police officer, was a customer waiting in line at a register when the robbery occurred. One witness, Chastity Adams, saw Larry point the gun at Buitrago and say, `If you move, you're dead.' The cashier for Buitrago's line had her back to Larry but heard him say, `Don't move or I'll kill you.' Larry ran from the store, and Buitrago chased him. When Buitrago caught up with Larry outside the store, near the front doors, a struggle ensued, and Larry fatally shot Buitrago with the handgun. Some witnesses said there was one shot, and some said there were two or more shots. Buitrago died from a single gunshot wound to the chest. Larry fled on foot.

"After witnesses identified Larry as the perpetrator, police obtained arrest warrants and subsequently found Larry hiding in a residence in Winston-Salem." State v. Larry, 345 N.C. 497, 481 S.E.2d 907, 913 (1997).2

After the close of evidence, the trial judge excused the jury and conducted a charge conference. During this conference, Larry asked the judge to instruct the jury on second-degree murder. In response, the prosecutor stated:

I think out of an abundance of precaution, the Court should probably instruct on second degree. I say that for this reason: There was testimony from one individual . . . that the defendant appeared surprised . . . [w]hen he was confronted by Officer Buitrago. And based on that, the jury could find that he didn't actually premeditate the murder or deliberate upon the murder, just fired instinctively.

J.A. 185.

Ultimately, the trial judge denied Larry's request for a second-degree murder instruction and instead instructed the jury on first-degree murder and robbery with a firearm. With respect to first-degree murder, the judge instructed the jury that it could find Larry guilty under either one of two theories (or both): (1) malice, premeditation, and deliberation; or (2) felony murder. After deliberating, the jury found Larry guilty of first-degree murder under both theories, and it also found him guilty of robbery with a firearm. Larry, 481 S.E.2d at 913.

The North Carolina Supreme Court summarized the facts regarding the sentencing phase of Larry's trial as follows:

"At the sentencing proceeding, the State presented evidence that Larry previously had been convicted once for common law robbery and three times for armed robbery. The jury found as four separate aggravating circumstances that Larry previously had been convicted of a violent felony. The jury also found as an aggravating circumstance that the murder was committed while Larry was engaged in the commission of a robbery. The jury found the statutory mitigating circumstances that the murder was committed while Larry was mentally or emotionally disturbed and that Larry's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired. The jury also found five nonstatutory mitigating circumstances as well as the catchall mitigating circumstance. However, the jury recommended a sentence of death. The court sentenced Larry to death for the first-degree murder conviction and to a consecutive term of forty years' imprisonment for the armed robbery conviction." Larry, 481 S.E.2d at 913-14.

Larry appealed his conviction and sentence to the North Carolina Supreme Court arguing, inter alia, that the trial court erred by not instructing the jury on second-degree murder. However, the state supreme court held that the trial court did not err because the evidence did not support a second-degree murder instruction since "there was positive, uncontradicted evidence of each element of first-degree murder." Larry, 481 S.E.2d at 919. The state supreme court thus affirmed Larry's conviction and sentence, id. at 929, and the United States Supreme Court denied his petition for certiorari, Larry v. North Carolina, 522 U.S. 917, 118 S.Ct. 304, 139 L.Ed.2d 234 (1997).

B.

Thereafter, Larry filed a number of collateral, post-conviction challenges in state court. He filed his first Motion for Appropriate Relief ("MAR") in state superior court in 1998 (the "First MAR"). The superior court denied Larry's First MAR, and the North Carolina Supreme Court denied his petition for certiorari. State v. Larry, 355 N.C. 755, 566 S.E.2d 84 (2002).

After Larry filed his First MAR, the North Carolina General Assembly passed a law prohibiting the execution of mentally retarded individuals. See N.C. Gen.Stat. § 15A-2005.3 The statute defines mental retardation as "[s]ignificantly subaverage general intellectual functioning, existing concurrently with significant limitations in adaptive functioning, both of which were manifested before the age of 18." Id. § 15A-2005(a)(1). The statute defines "[s]ignificantly subaverage general intellectual functioning" as "[a]n intelligence quotient of 70 or below." Id. The statute also provides that "[a]n intelligence quotient of 70 or below on an individually administered, scientifically recognized standardized intelligence quotient test administered by a licensed psychiatrist or psychologist is evidence of significantly subaverage general intellectual functioning." Id. § 15A-2005 (a)(2). The statute defines "[s]ignificant limitations in adaptive functioning" as "[s]ignificant limitations in two or more of the following adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure skills and work skills." Id. § 15A-2005 (a)(1).

In cases, as here, where a capital defendant had been sentenced to death prior to the statute's effective date, another state statute authorized defendants to file an MAR to seek relief from their capital sentence on the basis of mental retardation. See N.C. Gen.Stat. § 15A-2006 (repealed Oct. 1, 2002). In these cases, the capital defendant bears the burden of proof and must establish mental retardation by a preponderance of the evidence. See id.; see also id. § 15A-1420.

In light of North Carolina's new statute, Larry filed a second MAR (the "Second MAR") in state superior court on January 30, 2002 (the "Second MAR Court"). In his Second MAR, Larry claimed that he was mentally retarded within the meaning of state law and, therefore, ineligible for capital punishment. The Second MAR Court held an evidentiary hearing in June 2003, see J.A. 408-693, to consider Larry's mental retardation claim.

At the hearing, the Second MAR Court heard from a number of witnesses. Larry's expert, clinical forensic psychologist Dr. Brad Fisher, testified that Larry received a full scale score of 69 on the WAIS-R intelligence test and that Larry put forth his best effort on the test. However, Dr. Fisher admitted that he did not test Larry for malingering. Dr. Fisher also testified that Larry suffered significant limitations in more than two adaptive skill areas.

In contrast, the State's expert, clinical psychologist and forensic psychologist Dr. Mark Hazelrigg, testified that Larry received a full scale score of 74 on the WAIS-III intelligence test. Dr. Hazelrigg also stated that the WAIS-R test was outdated. Moreover, Dr. Hazelrigg stated that he administered a specific test to check for malingering, and he concluded that Larry put forth an adequate amount of effort on the WAIS-III, but probably not his best effort. Additionally, based on Larry's performance on the Street Skills Survival...

To continue reading

Request your trial
94 cases
  • Warren v. Polk
    • United States
    • U.S. District Court — Middle District of North Carolina
    • January 20, 2017
  • Pevia v. Bishop
    • United States
    • U.S. District Court — District of Maryland
    • July 26, 2019
  • Hill v. Shoop
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 20, 2021
  • Ogle v. Mohr
    • United States
    • U.S. District Court — Southern District of Ohio
    • March 10, 2017
    ...judgments, the state court's error must be stark and clear." Otte v. Houk, 654 F.3d 594 (6th Cir. 2011), quoting Larry v. Branker, 552 F.3d 356, 370 (4th Cir. 2009). Here, the jury, as the trier of fact, was in the best position to resolve conflicts in testimony, weigh evidence, assess cred......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT