Stout v. Netherland

Citation95 F.3d 42
Decision Date03 September 1996
Docket Number95-4007,Nos. 95-4008,s. 95-4008
PartiesNOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Larry Allen STOUT, Petitioner-Appellee, v. J.D. NETHERLAND, Warden, Respondent-Appellant. Larry Allen STOUT, Petitioner-Appellant, v. J.D. NETHERLAND, Warden, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

ARGUED: Robert H. Anderson, III, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellant. Arthur Patrick Strickland, Roanoke, Virginia, for Appellee. ON BRIEF: James S. Gilmore, III, Attorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellant. Mark E. Olive, VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER, Richmond, Virginia, for Appellee.

Before WILKINSON, Chief Judge, and HAMILTON and WILLIAMS, Circuit Judges.

OPINION

PER CURIAM:

Larry Allen Stout brought this action pursuant to 28 U.S.C.A. § 2254 (West 1994), challenging the constitutionality of his convictions for robbery and capital murder and his respective sentences of life imprisonment and death. 1 The district court granted relief as to Stout's conviction and sentence for capital murder, ordering that Stout be granted leave to withdraw his guilty plea and replead; the court denied relief as to the robbery count. Virginia now appeals, asserting that the district court erred in concluding that Stout received constitutionally deficient representation during the penalty phase of the state-court proceedings. Stout cross-appeals the district court's ruling that certain of his claims were not properly before the court. Because we conclude that Stout did not receive ineffective assistance of counsel, we reverse the portion of the district court's order granting habeas relief on Stout's conviction and sentence for capital murder and remand with instructions to reinstate Stout's death sentence. We affirm the district court's order in all other respects, and thereby reject Stout's cross-appeal.

I.

Stout pleaded guilty in a Virginia court to the robbery and capital murder of Jacqueline Kooshian, the proprietress of a dry cleaning establishment known as Trimble's Cleaners. Virginia offered the following evidence in support of Stout's guilty plea. On February 19, 1987, Stout, wearing a camouflage jacket, entered Trimble's Cleaners near closing time when Kooshian was alone in the store. Stout's girlfriend and accomplice, Debra Littrell, waited for him a short distance from the entrance to Trimble's Cleaners. Using a fictitious name, Stout told Kooshian he was there to pick up some clothing. When Kooshian turned to the racks of clothing, Stout approached her from behind, grabbed her by her hair, and slashed her throat with a knife. Clutching her bleeding throat, Kooshian ran into the street. A passing motorist stopped to offer assistance, but Kooshian bled to death en route to a hospital. Littrell left the scene upon seeing Kooshian run out of the store.

After Kooshian exited Trimble's Cleaners, Stout absconded with two bank deposit bags and a purse belonging to Kooshian; these items had been sitting on a countertop when Stout entered Trimble's. Stout returned to the apartment he and Littrell shared with her mother, Carole Lauber, and Lauber's boyfriend, Harley Rathburn. Later, Stout told Littrell that "the girl could not live the way I cut her." (J.A. at 149.) The next day, upon learning of Kooshian's death, Stout stated that he felt "more at ease." (J.A. at 150.)

Littrell confessed her and Stout's involvement in the crime to Lauber upon learning that Rathburn intended to use a suitcase he owned in which Stout had hidden evidence of the robbery and murder. Rathburn later consented to a search of the suitcase, which revealed a prescription issued to Jacqueline Kooshian, a telephone card issued to Trimble's Cleaners, checks payable to Trimble's Cleaners, a purse, later identified as Kooshian's, that contained photographs of Kooshian's children, 2 and a camouflage jacket.

Other evidence at the plea hearing tended to show that Stout and Littrell premeditated the robbery. First, Kooshian's mother testified that two days before the murder, Stout came into Trimble's and spoke briefly with Kooshian. A Trimble's employee testified that Littrell entered the store three days before the murder and inquired when Trimble's closed; the employee also testified that she had observed Stout "walking past [Trimble's] at different times of that week of the 19th. He would disappear and then would show back up standing across the street, directly across from" Trimble's. (J.A. at 124.) In addition, there was testimony that Stout had "cased" another dry cleaning establishment up the street.

A forensic pathologist, Dr. William Massello, testified that Kooshian suffered "a cutting wound to the left side of the neck" that "show[ed] a direction from left to right going slightly downward, cutting into the soft tissue of the neck and running to the voice box." (J.A. at 179.) The cut was approximately two inches deep at its deepest point; it became progressively deeper from left to right. The cut severed one of Kooshian's jugular veins and was "rapidly lethal." (J.A. at 183.) Dr. Massello testified that the wound was characteristic of one inflicted by coming behind the victim and slashing left to right with the right hand. Another witness identified the murder weapon by comparing the tool marks on Kooshian's larynx to the tool marks made by a hunting knife retrieved from Stout's person upon his arrest.

Stout offered no evidence during the plea hearing, and his counsel, William Bobbitt, engaged in only limited cross-examination of the witnesses. Based on the evidence presented to it, the trial court accepted Stout's guilty plea and proceeded directly to the penalty phase of the proceeding.

Over Stout's objection, Virginia introduced the testimony of three women whom Stout had robbed in separate incidents during the two months preceding the attack on Kooshian, while Stout was living in Florida. Two of the women testified that just before closing, Stout had entered the convenience stores where they worked alone. Brandishing a knife, Stout ordered the women to lie on the floor while he took money from the cash register. The third woman testified that Stout had snatched her purse outside a restaurant.

Debra Littrell testified that she and Stout made their living by committing robberies like those described above. Littrell also testified that she had overheard Stout and her ex-husband discussing the murder of two drug dealers; according to Littrell, Stout and her ex-husband had been hired to commit the murders after the victims reneged on a narcotics transaction.

Stout then presented his case in mitigation. Stout first called the chief correctional officer for the facility in which he was incarcerated, who testified that Stout had not presented any disciplinary problem. The parties stipulated that one of Stout's former employers in Florida would have testified that Stout was an excellent employee. Stout also called his cellmate, who testified that he had been helping Stout, who was almost entirely illiterate, learn to read. The trial court then adjourned the hearing so that a presentencing report could be prepared.

The sentencing hearing was reconvened several months later, at which time the presentencing report was received in evidence. The report contained the following information regarding Stout's family history:

[Stout] was reared in a substandard economic situation with very little parental guidance and without the benefit of an appropriate male role model. [Stout] is the youngest child born to his mother, Sylvia Stout, and during our interviews indicated he did not know who his father was but had always been told he was an Indian.... 3 The domestic situation was such that when [Stout] was approximately four years old he was placed in a foster home for a short period of time due to problems which existed between Stout and Calvin Stout[, Stout's stepfather, described elsewhere in the report as "an indolent alcoholic,"] as [Calvin] Stout would not accept [Stout] due to his dark skin color. Stout recalled being physically abused by [Calvin] Stout which was in fact confirmed by [Stout's] mother. The family was said to have remained in the Des Moines, Iowa area until around 1970 or 1971 when they moved to the Cedar Rapids, Iowa area. It was stated shortly after this the family became involved in migrant work[,] ... living in states such as California, Florida, Washington, Oregon, and Ohio. Stout himself was very much involved in the work force, therefore, making it impossible for him to receive any formal education.

(J.A. at 44.) Bobbitt also introduced a letter from Stout's mother stating that Stout was not a violent person but that his migratory childhood and racially mixed parentage had been hard on him. Bobbitt elected not to introduce a psychological report that, in addition to discussing in detail Stout's background of physical and sexual abuse, noted that Stout suffered from anti-social personality disorder.

Stout testified, relating his history of moving from state to state to follow harvesting work. Stout told the court that he became addicted to cocaine at the age of eighteen and acknowledged committing the convenience store robberies, in addition to other crimes, to support his drug habit. Regarding the Kooshian murder, Stout stated that he entered Trimble's Cleaners, asked Kooshian for some clothing, walked up behind her with the knife, and told her to lie on the floor. Stout then said that "[s]he throwed [sic] her hands up and started hollering and I felt like she grabbed my wrist or she did it somehow and I went to shove her and in the...

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