Epperly v. Booker, 92-6128

• Decision Date: 15 June 1993
• Docket Number: No. 92-6128,92-6128
• Citation: 997 F.2d 1
• Parties: Stephen M. EPPERLY, Petitioner-Appellant, v. E.L. BOOKER, Warden; Attorney General of the Commonwealth of Virginia, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1

997 F.2d 1

Stephen M. EPPERLY, Petitioner-Appellant, v. E.L. BOOKER, Warden; Attorney General of the Commonwealth

of Virginia, Respondents-Appellees.

No. 92-6128.

United States Court of Appeals,

Fourth Circuit.

Argued Feb. 3, 1993.

Decided June 15, 1993.

Edward Leigh Hogshire, Buck, Hogshire & Tereskerz, James Albert Trigg, Charlottesville, VA, argued, for petitioner-appellant.

Robert H. Anderson, III, Asst. Atty. Gen., Office of the Attorney General, Richmond, VA, argued (Mary Sue Terry, Atty. Gen. of

VA, Office of the Attorney General, on the brief), for respondents-appellees

Before PHILLIPS, WILKINSON, and WILLIAMS, Circuit Judges.

OPINION

PHILLIPS, Circuit Judge:

In 1980, Stephen M. Epperly was convicted by a Virginia jury of the first-degree murder of Gina Hall. He received a life sentence. Neither Hall's body nor a weapon was ever found; there were no eyewitnesses to the killing; and Epperly never confessed. Thus, the evidence of Hall's death and of Epperly's complicity in it was entirely circumstantial.

Epperly's conviction was affirmed on direct appeal. Epperly v. Commonwealth, 224 Va. 214, 294 S.E.2d 882 (1982). He exhausted his state post-conviction remedies, Epperly v. Booker, 235 Va. 35, 366 S.E.2d 62 (1988), and was denied relief on his federal habeas corpus petition by the United States District Court for the Western District of Virginia. On this appeal from the district court's order denying relief, we affirm.

I

The facts of the case are recited in detail in Epperly, 294 S.E.2d at 885-90. We recapitulate the evidence leading to Epperly's conviction in the light most favorable to the state as the basis for considering his principal contention on appeal that the evidence was constitutionally insufficient under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) to support his conviction.

Gina Hall was an eighteen-year old college student when she first met Epperly and his childhood friend Bill King at the Marriott Hotel in Blacksburg, Virginia on a Saturday night in June 1980. Hall had decided to go dancing to celebrate the conclusion of her final exams. She was a petite woman (5 ft. tall, 107 lbs.), in excellent physical and emotional health. Her relationships with family and friends were close and stable. She was conspicuously modest, however, and self-conscious about physical relationships due to extensive scarring from a childhood accident in which she was severely burned.

Before arriving at the Marriott that night, Epperly and King had stopped at a lake house owned by King's parents. King was responsible for keeping the lake house secure during his parents' absence, and the two men checked the house over thoroughly. Later that night, after dancing with Hall several times at the Marriott, Epperly borrowed the key to the lake house from King. He then left with Hall in the brown Chevrolet she had borrowed from her sister Dlana. According to King, Hall appeared "confused as to what car was going and exactly who was going" to the lake house. J.A. 211. She was last heard from when she telephoned Dlana between 1:00 and 1:30 a.m. sounding "very uneasy or out of character ... very nervous." J.A. 144, 147. She told Dlana that she was "at the lake with a man named Steve." J.A. 508.

King and a woman named Robin Robinson arrived at the lake house between 3:45 and 4:00 a.m. J.A. 214. They saw the brown Chevrolet parked in the driveway in front of the garage. Realizing that their arrival was probably unexpected, King entered noisily through the kitchen, which was located on the middle level of the house, along with a bedroom and bathroom. A spiral staircase connected the kitchen with the lower level, which contained a recreation room, a utility room, and a bathroom. The recreation room opened onto the lake via sliding glass doors. The utility room contained a refrigerator, a table, and assorted odds and ends.

Epperly called up to King from the lower level. As the men spoke, Robinson looked down the spiral staircase and saw Epperly coming from the direction of the utility room, dressed only in pants and wiping his shoulders with a blue towel. J.A. 282. Neither King nor Robinson saw or heard Hall during this interchange, although Epperly told King "we're leaving ... she's got to be getting back." J.A. 215-16.

King and Robinson then went down to the lake. After a few moments, Epperly called, "Bill, I'll see you later; we're leaving." King and Robinson did not see or hear the Chevrolet leave. Id. Less than ninety minutes

later, however, a police officer discovered the car parked near the New River with its trunk open. The car was still there at midnight, but because it had not been reported stolen the officer took no action

Shortly after Epperly left, King and Robinson reentered the lake house via the downstairs recreation room. King stepped in a wet spot on the carpet several feet inside and to the left of the sliding glass doors. King did not examine the spot at the time or later on Sunday morning, when he and Robinson tidied up. Throughout their visit, they found the house to be in good order, although neither of them entered the utility room. J.A. 268, 310-11.

On Sunday afternoon, Epperly rejoined King at the lake house and spent what King thought was an unusually long time in the house while getting himself a drink. King also noticed that the spot on the carpet was still damp, J.A. 267, but again found the house to be in good order.

Because Hall had not returned by Sunday evening, her sister called friends to begin a search. They found the car by the river Monday afternoon. Although the car had been clean when Hall borrowed it, it had trash in it when they found it. Although Hall needed the driver's seat to be pulled all the way forward in order to drive, the seat was pushed all the way back. Epperly is six feet tall.

On Tuesday, King heard a "lookout" broadcast on the local radio station for a person matching Hall's description. He told Epperly to contact the police quickly so they wouldn't think he had anything to hide. Epperly asked King whom he had told about the matter and urged King to return and tell those friends "not to say anything, just kinda talk it down, not broadcast it." J.A. 228. The same day, Epperly asked another close friend, William Cranwell, whether Cranwell's brother, an attorney, might represent him. Epperly twice asked Cranwell to inquire of his brother "if there was anything that they could do to [Epperly] if they didn't find a body." J.A. 620. During that conversation, no one other than Epperly had initiated use of the term "body" to describe Gina Hall.

King then went to the police and, while accompanying them on a search of the lake house, found in it a broken ankle bracelet that matched the one that Hall was wearing when her sister had last seen her. When King asked Epperly whether he had killed Hall, he said, "I don't know anything about it.... We'll just have to wait and see." J.A. 233. He also said that he had engaged in a "little fondling" with Hall at the lake house. J.A. 278.

On close inspection, bloodstains and hairs were discovered in various locations around the lake house. The stains had been partially cleaned up, but sufficient residue remained for investigators to determine that several of them matched Hall's blood type. The stains were located primarily in two rooms. In the downstairs utility room, minute stains were scattered on items located in various parts of the room: a juice pitcher, dustpan, a table, a mattock, and a pair of brown shoes. Many of these stains were much smaller than those to be expected from a cut finger or similar accidental injury.

Larger bloodstains were found in the utility room, on the front of the refrigerator door and on the rubber seal on the interior side of the door. The stain on the front of the door had been partially cleaned up, but embedded in the stain were hairs similar to hairs found on Hall's curlers and fibers similar to samples taken from the recreation room carpet. A smeared stain was also found near the cleat of a golf shoe that was next to the refrigerator; a pubic hair removed from the cleat was inconsistent with Epperly's.

Bloodstains were also found in the recreation room, in two places. A bleached-out stain measuring some eighteen inches in diameter was found on the carpet, three or four feet inside and slightly to the left of the sliding glass door. J.A. 361. Another stain was found on the wooden leg of a chair to the left of the sliding glass door. Smaller stains were found on the light switch and faucet handle of the mid-level bathroom and on the light switch in the downstairs bathroom. Finally, minute stains were found on the walkway in front of the sliding glass doors and in the driveway near the garage door, where

Dlana's Chevrolet had been parked. J.A. 249

According to King's parents, the house had been in good order when they left, and they could give no reason for the presence of any of the bloodstains or for the presence of the broken ankle bracelet. They also noticed that, in addition to items seized by police, several other things were missing when they returned to the house: a blue towel, a striped towel, and a bath mat from the mid-level bathroom; a quilt from the mid-level bedroom; a can of bathroom cleaner; and a roll of paper towels. King's mother later discovered the cap to the can of bathroom cleaner near a trash can in the utility room. The cap had upon it a head hair similar to Hall's. Neither the bath mat, the quilt, nor the paper towels were recovered.

Within several days of Hall's disappearance, however, searchers did find the missing bath towels, along with her clothes and the contents of her purse. All of these items were discovered either in the woods near the river where the Chevrolet had been found previously, or a short distance away. Hall's clothes were not ripped or torn. Like the towels and the trunk of the Chevrolet,...