Barfield v. Harris

Decision Date21 May 1982
Docket NumberNo. 82-245-HC.,82-245-HC.
Citation540 F. Supp. 451
CourtU.S. District Court — Eastern District of North Carolina
PartiesMargie Bullard BARFIELD, Petitioner, v. Kenneth W. HARRIS, et al., Respondents.

COPYRIGHT MATERIAL OMITTED

James D. Little, Singleton, Murray, Harlow & Little, Fayetteville, N. C., Richard H. Burr, III, Southern Prisoners' Defense Committee, Nashville, Tenn., for petitioner.

Richard N. League, Sp. Deputy Atty. Gen., Raleigh, N. C., for respondents.

MEMORANDUM OF DECISION AND ORDER

DUPREE, Chief Judge.

Petitioner, Margie Bullard Barfield, frequently referred to in these proceedings as Velma Barfield, was convicted in the Superior Court of Bladen County, North Carolina, on 2 December 1978 of first-degree murder by poisoning of one Stewart Taylor. At the sentencing phase of the trial the jury having found three aggravating circumstances attending the murder and no mitigating circumstances, judgment of death by execution was pronounced as mandated by North Carolina law.

On November 6, 1979, the Supreme Court of North Carolina affirmed this judgment, State v. Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979). Following denial by the Supreme Court of the United States of her petition for certiorari on June 30, 1980, Barfield v. North Carolina, 448 U.S. 907, 100 S.Ct. 3050, 65 L.Ed.2d 1137, and her petition for rehearing on September 17, 1980, id. at 918, 101 S.Ct. at 41, 65 L.Ed.2d at 1181 Barfield's execution date was set for October 17, 1980.

Pursuant to a motion for post-conviction relief filed by Barfield in the state court on October 3, 1980, a stay of execution was entered pending a full-blown evidentiary hearing which was conducted by the Honorable E. Maurice Braswell, Judge of the Superior Court, during the week of November 17, 1980. In a thirty-seven-page judgment containing plenary findings of fact and conclusions Judge Braswell denied Barfield's motion for post-conviction relief on 26 November 1980. The Supreme Court of North Carolina declined to review this judgment by denying Barfield's petition for a writ of certiorari, and thereafter certiorari as to the state post-conviction proceedings was also denied by the United States Supreme Court on October 19, 1981. Barfield v. North Carolina, 454 U.S. 957, 102 S.Ct. 494, 70 L.Ed.2d 261 rehearing denied, ___ U.S. ___, 102 S.Ct. 693, 70 L.Ed.2d 655 (1981).

Again condemned to die during the week of March 15, 1982, Barfield filed her petition for habeas corpus in this court on March 9, 1982 pursuant to 28 U.S.C. § 2254 alleging numerous constitutional infirmities in her trial and conviction in 1978. Pending hearing on the petition this court issued a stay of execution which remains in effect. The hearing was held on March 26, 1982, and in this memorandum of decision the court will record its findings and conclusions.

As indicated above the week-long hearing which was held on Barfield's motion for post-conviction relief in the state court resulted in exhaustive findings and conclusions by the presiding judge, and all parties here are agreed that Barfield has exhausted all of her state remedies prior to invoking the jurisdiction of this court. The parties have also agreed that this court might consider the voluminous records compiled in the trial and post-conviction proceedings in the state court and it has been stipulated that this court might consider all of the testimony offered by petitioner in the state post-conviction proceedings and excluded on objection by the state. The court has done this, and the parties have further agreed that this obviates the necessity for any further evidentiary hearing in this court.

Counsel for petitioner were invited to identify any factual findings of Judge Braswell in the state court post-conviction proceedings which were claimed not to be supported by the evidence adduced at that hearing. They have been unable to do so in any material respect, and this court's own review of the more than 2,000 pages of testimony considered by Judge Braswell has persuaded this court that the merits of the factual dispute were fully resolved in the state court proceedings; that the factfinding procedure there employed was adequate to afford a full and fair hearing; that all material facts were adequately developed; that the court had jurisdiction of the subject matter; that petitioner was represented by exceptionally able counsel at all stages of the post-conviction proceedings; that she received a full, fair and adequate hearing; and that she was not otherwise denied due process of law in that proceeding. Accordingly, this court, as required by 28 U.S.C. § 2254(d), presumes Judge Braswell's findings to be correct and adopts them as its own.1Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

One additional threshold matter is respondents' contention that this court is barred from considering certain of petitioner's claims because of petitioner's procedural default in the state courts. See Engle v. Isaac, ___ U.S. ___, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Cole v. Stevenson, 620 F.2d 1055 (4th Cir.), cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980). All issues raised here, however, were considered either by the North Carolina Supreme Court on direct appeal or by Judge Braswell on the motion for appropriate relief, and neither court relied on any procedural default to bar consideration of any issue raised. Instead, the Supreme Court "combed the record" and considered all issues raised in addition to certain issues not brought forward on appeal. State v. Barfield, supra, 298 N.C. at 354-355, 259 S.E.2d at 544. Judge Braswell considered each of petitioner's contentions and concluded that none of them had merit. Where the state has not enforced any default, the federal court is not barred from consideration of the issue. Engle v. Isaac, supra, ___ U.S. at ___ n.44, 102 S.Ct. at 1575 n.44; County Court of Ulster County v. Allen, 442 U.S. 140, 147-154, 99 S.Ct. 2213, 2219-23, 60 L.Ed.2d 777 (1979). Cf., Gardner v. Florida, 430 U.S. 349, 361, 97 S.Ct. 1197, 1206, 51 L.Ed.2d 393 (1977).

We turn, then, to the grounds which petitioner claims warrant habeas relief in this court. Of the numerous alleged constitutional deficiencies in her trial and conviction those meriting serious consideration will be addressed under the several headings to follow.

INEFFECTIVENESS OF COUNSEL

Following her indictment on the murder charge petitioner was found to be indigent, and Attorney Robert D. Jacobson of the Robeson County, North Carolina, bar was appointed to represent her. When it became known to Mr. Jacobson that petitioner was suspected of having committed at least four other murders by poisoning in addition to the one for which she was indicted, he moved the court for the appointment of additional counsel to assist him in representing petitioner. This motion was denied, and Mr. Jacobson continued to represent petitioner throughout the trial and the appeals.2 In the post-conviction proceedings petitioner has been represented by Mr. James D. Little of the Fayetteville, North Carolina bar and Mr. Richard H. Burr, III, of the Southern Prisoners' Defense Committee, Nashville, Tennessee.

Petitioner alleges that her former counsel, Mr. Jacobson, ineffectively represented her in six major areas:

1. The investigation and presentation of psychiatric evidence in both phases of her trial.

2. The investigation and presentation of general testimony in mitigation of punishment.

3. The handling of various critical pretrial motions.

4. The presentation of argument to the jury on her behalf.

5. The making of requests for specific instructions to the jury that were critical to her case.

6. The presentation and development of issues on the direct appeal of her case.

Counsel for both parties have recognized in all of the post-conviction proceedings that the acts and omissions of defense counsel in a criminal case are to be judged by the "range of competence" standard established in Marzullo v. Maryland, 561 F.2d 540 (4th Cir. 1977), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978). Judge Braswell also applied this standard in the state post-conviction proceedings. In Marzullo the Fourth Circuit expressly disavowed the "farce and mockery of justice test" which had previously been approved in this circuit and adopted the standard established in McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), which involves the answer to this inquiry: "Was the defense counsel's representation within the range of competence demanded of attorneys in criminal cases?" Reference was made to the earlier Fourth Circuit case of Coles v. Peyton, 389 F.2d 224 (1968), where the principles for judging competency of criminal defense counsel as taken from previous cases were listed as follows:

1. Counsel for an indigent defendant should be appointed promptly.

2. Counsel should be afforded a reasonable opportunity to prepare to defend an accused.

3. Counsel must confer with his client without undue delay and as often as necessary to advise him of his rights and to elicit matters of defense or to ascertain that potential defenses are unavailable.

4. Counsel must conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself enough time for reflection and preparation for trial.

In Coles the court stated further that the failure to conform to these requirements would constitute a denial of effective representation of counsel "unless the state, on which is cast the burden of proof once a violation of these precepts is shown, can establish lack of prejudice thereby."

In Marzullo, however, the court went on to say:

"By this range of competence standard, effective representation is not the same as
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