United States v. Torrez

• Citation: 869 F.3d 291
• Decision Date: 28 August 2017
• Docket Number: No. 14-1,14-1
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jorge Avila TORREZ, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

869 F.3d 291

UNITED STATES of America, Plaintiff-Appellee,

v.Jorge Avila TORREZ, Defendant-Appellant.

No. 14-1

United States Court of Appeals, Fourth Circuit.

Argued: May 9, 2017

Decided: August 28, 2017

ARGUED: Julie L.B. Stelzig, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. James L. Trump, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland; Robert E. Lee, Jr., VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER, Charlottesville, Virginia, for Appellant. Dana J. Boente, United States Attorney, Richard D. Cooke, Jonathan L. Fahey, Michael E. Rich, Assistant United States Attorneys, Robert J. Heberle, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Before DIAZ, FLOYD, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge Thacker wrote the opinion, in which Judge Diaz concurred. Judge Diaz wrote a separate concurring opinion. Judge Floyd wrote an opinion concurring in part and dissenting in part.

THACKER, Circuit Judge:

Jorge Avila Torrez ("Appellant") was convicted of first-degree murder and sentenced to death. In this appeal, he raises a host of challenges to his conviction and death sentence. We find the challenges to his conviction to be without merit. As for sentencing, we focus on three specific challenges: (1) whether Appellant's death sentence was unconstitutional because it was based solely on post-offense conviction aggravators; (2) whether the district court erred in failing to apply the categorical approach to state convictions that made him death penalty eligible; and (3) whether the district court erred by allowing Appellant to forego a mitigation defense without conducting a second competency evaluation and hearing. For the reasons explained below, we find no reversible error in the sentencing proceedings. Accordingly, we affirm Appellant's conviction and sentence.

I.Factual Background

We view the facts in the light most favorable to the Government, the prevailing party at trial. See United States v. Said , 798 F.3d 182, 186 n.2 (4th Cir. 2015).

A.The Murder

On July 13, 2009, Amanda Snell was found dead in her room at Joint Base Myer-Henderson Hall, a residence hall on a military base located near Arlington, Virginia. When the 20-year-old Navy Intelligence Specialist did not show up for duty on Sunday night, July 12, two officers investigated and discovered her body in her room early the next morning. She was lying in an unnatural position at an angle on the floor of a wall locker, with her knees pressed into her torso and her feet pushed against a drawer. Her head was covered by a pillowcase and pushed down into her chest.

The Naval Criminal Investigative Service ("NCIS") arrived at 7:45 a.m. on Monday, July 13, and began its investigation. Agents conducted a walk-through and inventory, took the temperature of the room and Snell's body, took photographs, and took impressions of shoeprints in the vinyl floor in front of the wall locker. The agents noticed that the bed was made, with only a fitted sheet and a comforter, and the room was clean. Based on the information gathered on the morning of July 13, the medical examiner believed Snell had been dead for 24 to 36 hours or more. After conducting an autopsy, the examiner listed the cause of death as "undetermined." J.A. 4099.¹ He noted there was "no recent or remote evidence of significant injury." Id . at 4101. He did note moderate dysplasia

of the atrioventricular nodal artery in the heart, which "has been associated with cardiac arrhythmias and sudden death," but he did not attribute Snell's death to this condition. Id . at 4104. The Government later retained a second medical examiner.

Based on the circumstances at the scene, this second medical examiner concluded that the cause of death was asphyxia

, which can occur without any visible injury.

Appellant lived down the hall from Snell. He, like others who lived near Snell, complied with NCIS's request to complete a personal data sheet, in which he indicated that he did not know Snell and had never been in her room. He also consented to a search of his room and gave a DNA sample.

B.The Arlington Crimes

Snell's murder remained unsolved until 2010, when Appellant was arrested for other crimes in Arlington County, Virginia. On February 10, 2010, Appellant attempted to abduct and assault M.N., a 26-year-old female who was walking to her boyfriend's house in Arlington County. Appellant approached her from behind, grabbed her jacket, showed her a gun, and told her to keep quiet and keep walking. M.N. told Appellant, "[J]ust take my bag," but he kept pushing her toward a tan Dodge Durango. J.A. 3631. He also pulled out a knife and "urge [d] [her] along to get into the car." Id. at 3634. M.N. dropped her bag and ran away. Once she reached a nearby friend's house, her friends called the police, but neither Appellant nor M.N.'s bag was located.

A little more than two weeks later, on February 27, 2010, two female graduate students, J.T. and K.M., were walking to K.M.'s house in Arlington County. As they stopped in front of the house, Appellant emerged from behind a parked car. He moved his sweatshirt to the side to show the women he had a gun and demanded their wallets. After the women told him they had no money, he forced them into K.M.'s house and ordered them to kneel down next to the couch. He bound their hands with a vacuum cord. At one point when Appellant left the room, the women were able to loosen their hands. Appellant returned to the room with a knife and retied J.T.'s hands with an iron cord, and ordered the women to go to the bedroom. They complied, and when Appellant left the room again, J.T. managed to grab her cell phone and call 911. Appellant returned to the room, threw the cell phone against the wall, and then grabbed J.T. and led her outside to his SUV. He "showed [her] [his] gun" again and told her to get in his vehicle. J.A. 3649. After he drove for some time, he stopped, got in the back seat with J.T., and told her he was going to rape her. He forced her to perform oral sex on him, and then he put on a condom (saying, "I'm not an idiot") and raped her. Id. at 3652. He forced her to perform oral sex again, and then covered her face with packing tape. He drove to a secluded area and forced J.T. to perform oral sex one more time. He then took J.T.'s scarf and tightened it around her neck until she was unconscious. When she regained consciousness, she was face down in the snow with her hands above her head. Eventually, a passerby found her and called an ambulance.

Based on the description of Appellant's vehicle and the similarities and locations of the two Arlington crimes, officers arrested Appellant on February 27, 2010, at Joint Base Myer-Henderson Hall.² Police searched Appellant's Durango and found J.T.'s university ID and earring, packing tape, and a stun gun. In his barracks room, they found a loaded Glock 22 pistol (which was purchased on February 5) and multiple rounds of ammunition. They also seized his laptop and accessories, which contained dozens of sexually explicit videos and images depicting violent rapes and sexual assaults, and which were stored between April 2009 and February 2010. Many videos were "sleeping rape" videos, meaning "someone is sleeping and is attacked or raped." J.A. 3731.

Appellant was convicted in Arlington County Circuit Court for abduction with intent to defile, robbery, use of a firearm in a felony, abduction, rape, breaking and entering while armed, and forcible sodomy. On December 10, 2010, the circuit court entered judgment, imposing five life sentences, followed by consecutive sentences totaling 168 years.

C.The Zion Crimes

Five years prior to the Arlington crimes, on May 8, 2005, two young girls (Laura Hobbs and Krystal Tobias) were murdered in a park in Zion, Illinois, Appellant's hometown. One witness saw the girls talking to someone who looked like Appellant, who at the time was 16 years old. When the girls did not return home that evening, a search party was deployed, and Hobbs's father and grandfather eventually found the girls the next morning in a wooded area of the park. Authorities arrived and confirmed the girls were dead; their bodies had sustained multiple stab wounds

. Hobbs was stabbed 20 times, including wounds to her abdomen, side, back, and horizontal stab wounds perforating her eyelids. One of the wounds punctured her liver. Officials also discovered a significant amount of male DNA in Hobbs's right hand. Tobias was stabbed 11 times, in her stomach, intestines, liver, neck, windpipe, and cervical spine, causing significant hemorrhaging in her neck.

Within days, officials arrested and charged Jerry Hobbs, Laura Hobbs's father, who had a felony record. But after evidence collected during the autopsy was sent to the crime laboratory, Jerry Hobbs was excluded as a suspect based on DNA analysis. The lab also tested semen found on Hobbs's clothing, vagina, rectum, and mouth, but officials were unable to determine a source. The DNA records were put into a nationwide database, and periodically, the state DNA forensic examiner would check for a match. In June 2010, after Appellant was arrested for the Arlington crimes and his DNA entered into the system, the examiner found he was a potential match. Further testing showed that Appellant was indeed a match for the clothing and vagina DNA, as only one in every 985 quadrillion individuals would be expected to have the same profile. He also could not be excluded as the source of the other DNA found in Hobbs's right hand, anus, and mouth.³

D.Osama El-Atari

While he was awaiting trial for the Arlington crimes, Appellant was held in the Arlington County Detention Facility. Because police officers suspected Appellant was planning to threaten and/or intimidate witnesses in the...