Bacon v. Lee

• Decision Date: 03 May 2000
• Docket Number: No. 99-21,CA-97-395-5-HC-BR,No. 99-23,99-23,99-21
• Citation: 225 F.3d 470
• Parties: (4th Cir. 2000) ROBERT BACON, JR., Petitioner-Appellee, v. R. C. LEE, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellant. ROBERT BACON, JR., Petitioner-Appellee, v. R. C. LEE, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellant. () Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 470

225 F.3d 470 (4th Cir. 2000)

ROBERT BACON, JR., Petitioner-Appellee, v. R. C. LEE, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellant.

ROBERT BACON, JR., Petitioner-Appellee, v. R. C. LEE, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellant.

No. 99-23 No. 99-21 (CA-97-395-5-HC-BR)

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: May 3, 2000

Decided: August 30, 2000

Appeals from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. [Copyrighted Material Omitted] COUNSEL ARGUED: Edwin William Welch, Special Deputy Attorney General, Teresa Lynn Harris, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellant. Gretchen Marie Engel, CENTER FOR DEATH PENALTY LITIGATION, INC., Durham, North Carolina, for Appellee. ON BRIEF: Stephen R. Greenwald, AUDREY COHEN COLLEGE, New York, New York, for Appellee.

Before NIEMEYER, TRAXLER, and KING, Circuit Judges.

Affirmed in part and reversed in part by published opinion. Judge Niemeyer wrote the opinion, in which Judge Traxler joined. Judge King wrote a separate opinion concurring in the judgment in part and dissenting in part.

OPINION

NIEMEYER, Circuit Judge:

A North Carolina jury convicted Robert Bacon of the murder of Glennie Clark and sentenced him to death. On appeal, the North Carolina Supreme Court vacated the death sentence, ruling that there was sufficient evidence to support a statutory mitigating circumstance that the trial court had failed to submit to the jury. Following a second sentencing hearing, a second jury again imposed the death penalty.

After exhausting his direct appeals and state post-conviction remedies, Bacon petitioned the district court for a federal writ of habeas corpus, raising 28 claims of error that he contended justified issuance of the writ under 28 U.S.C. § 2254. The district court entered summary judgment in favor of the State on all of the claims except one. With respect to the one claim -that Bacon was denied effective assistance of counsel by the failure of his attorneys at the resentencing hearing to introduce evidence that he aided in the apprehension of his accomplice -the district court ordered an evidentiary hearing. After conducting this hearing, the court determined that Bacon had received ineffective assistance of counsel, rendering the result of his resentencing hearing "fundamentally unfair, or at the very least, unreliable." Accordingly, the court granted the writ on this claim.

North Carolina filed this appeal to challenge the district court's order granting the writ, and Bacon filed a cross-appeal challenging the court's rulings rejecting six of his other claims for relief. For the reasons that follow, we reverse the district court's grant of the writ based on the ineffective assistance of counsel and affirm its rulings rejecting Bacon's other claims for relief.

I

Robert Bacon was convicted and sentenced to death for the February 1, 1987 murder of Glennie Clark, the estranged husband of Bacon's lover, Bonnie Sue Clark.

Bonnie Sue and Glennie Clark were married in 1982 and had two children. Because Glennie became an alcoholic and physically abusive, see State v. Clark, 377 S.E.2d 54, 57-58 (N.C. 1989); State v. Bacon, 390 S.E.2d 327, 330 (N.C. 1990) (hereinafter "Bacon I"), Bonnie Sue moved out of the house in 1986 and took up residence with Bacon, who was a coworker, and another friend, see Clark, 377 S.E.2d at 58. Despite their separation, Glennie continued to harass Bonnie Sue by telephone, and "`the worse things got' between her and her husband, the closer she drew emotionally and romantically to Bacon." Id.

Bonnie Sue confided in Bacon about her difficulties with Glennie and "at some point . . . told [Bacon] that she wished her husband was dead and did he know of anyone who would kill him." Bacon I, 390 S.E.2d at 330. Bacon "finally agreed to kill [Glennie]," and Bonnie Sue and Bacon planned the murder for January 31, 1987. Id. Bonnie Sue was the beneficiary of Glennie's life insurance policies totaling $130,000, and Bacon reportedly told acquaintances that he expected to receive a large inheritance. See State v. Bacon, 446 S.E.2d 542, 565 (N.C. 1994) (hereinafter "Bacon II").

Under the plan, Bonnie Sue was to accompany Glennie to a movie theater, where Bacon would kill him, but Bacon "`chickened out' when it came time to execute the plan." Id. The following night, February 1, 1987, again pursuant to plan, see Clark , 377 S.E.2d at 58, Bonnie Sue and Bacon drove to Glennie's house to pick him up. Glennie reacted angrily when he saw Bacon in the back seat of Bonnie Sue's car, and a heated discussion ensued about Bonnie Sue's relationship with Bacon. See Bacon I, 390 S.E.2d at 329-30. At some point, Glennie called Bacon a "nigger," see id., prompting Bacon to grab a knife that he had earlier placed on the floor of the car and fatally stab Glennie 16 times, see Bacon II, 446 S.E.2d at 565. Bonnie Sue then drove to a movie theater parking lot, where Bacon's car was parked. Bacon and Bonnie Sue decided to fake a robbery to cover up the murder, and pursuant to this ploy, Bacon knocked Bonnie Sue unconscious and went home in his car. See id.

Shortly after 11:00 p.m. on the same day, the police found Bonnie Sue slumped over the steering wheel of her car next to Glennie's dead body. See Bacon II, 446 S.E.2d at 565. Bonnie Sue told Jacksonville Police Officer J. J. Phillips that she and Glennie had been sitting in the car when the car doors were suddenly opened and she heard her husband exclaim, "Oh God, don't," before she was knocked unconscious. Bonnie Sue repeated this story to members of the rescue squad and to Sergeant Donna Waters who transported her to a hospital. She also told investigating officers that her two children were at home with a babysitter and gave them her home address.

Several hours later, at 1:15 a.m. on February 2, 1987, Sergeant Dennis Dinota picked Bonnie Sue up at the hospital and drove her to the Jacksonville police station where she again repeated the story she had told Officer Phillips and Sergeant Waters, and at approximately 2:00 a.m., she began writing out a statement describing how she had been attacked in the movie theater parking lot by two unknown individuals.

In the meantime, Jacksonville Deputy Chief Delma Collins went to the home shared by Bacon and Bonnie Sue to check on Bonnie Sue's children. Officer Collins arrived at 1:20 a.m. and was met at the door by Bacon, who invited Collins and other officers in the house and allowed them to "look around." After the officers discovered bloody clothing and shoes, Bacon confessed that he had killed Glennie Clark and directed the officers to other incriminating evidence. Bacon recounted that he "had been in the automobile with Bonnie Sue Clark and the victim, Glennie Leroy Clark; the victim called him a `nigger' and pulled a knife on him; he grabbed the knife from the victim and stabbed him; and, all of this took place while Bonnie Sue Clark was in the vehicle." Bacon I, 390 S.E.2d at 335. Bacon denied, however, that Bonnie Sue was involved in the crime.

Back at the police station, Bonnie Sue completed writing out her statement for Sergeant Dinota at 2:45 a.m. After Deputy Chief Collins informed Sergeant Dinota of the information he had learned about Bacon's involvement in the crime, the officers confronted Bonnie Sue with the information and, at 3:05 a.m., informed her of her Miranda rights. Later, Bacon admitted that parts of the story he had originally told to officers were false and admitted that he and Bonnie Sue had planned the crime.

Bacon was tried and convicted of first-degree murder and conspiracy to commit murder and sentenced to death.¹ Bacon I, 390 S.E.2d at 328. On direct appeal, the North Carolina Supreme Court upheld Bacon's conviction but found that evidence presented to the jury concerning Bacon's role in the police investigation of Bonnie Sue's involvement in the murder supported a jury instruction on the statutory mitigating circumstance of "aid[ing] in the apprehension of another capital felon." N.C. Gen. Stat. § 15A-2000(f)(8). Because no such "(f)(8)" instruction was given, the Supreme Court remanded the case for resentencing. See Bacon I, 390 S.E.2d at 328-29.

At Bacon's resentencing hearing, Bacon's counsel presented testimony by character witnesses who had testified in the first sentencing hearing. They also presented testimony by an expert witness, Dr. Billy Royal, a psychiatrist who testified about Bacon's family background and psychological profile. Unlike at the first sentencing hearing, the State did not introduce testimony by the officers who investigated the murder, relying instead primarily on Bacon's own testimony in the first sentencing hearing. The trial court submitted to the jury one aggravating circumstance -that the murder was committed for pecuniary gain -and 21 mitigating factors. The court did not, however, submit the (f)(8) mitigating factor because no evidence had been presented by the State or by Bacon that"showed the exact timing of [Bacon's] statements [to police] or their relation to the custodial status of [Bonnie Sue] Clark." Bacon II, 446 S.E.2d at 560.

The jury found the existence of the single aggravating circumstance that the murder had been committed for pecuniary gain and also found the existence of nine mitigating circumstances: that Bacon

had no significant history of prior criminal activity; acted under the domination of another person; had no history of violent behavior; had character, habits, mentality, propensities and activities indicating that he is unlikely to commit another violent crime; had committed the murder as the result of circumstances unlikely to recur; had established that his co-defendant, Bonnie Sue Clark, had received a life sentence; had shown remorse since...