Boggs v. Bair
| Decision Date | 26 September 1988 |
| Docket Number | Civ. A. No. 88-0360-R. |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | Richard Thomas BOGGS, Petitioner, v. Toni V. BAIR, Warden, Mecklenburg Correctional Center; Edward Murray, Director, Virginia Department of Corrections; and Mary Sue Terry, Attorney General of Virginia, Respondents. |
Bruce R. Genderson, Jefferson M. Gray, Washington, D.C., Mark S. Levinstein, Falls Church, Va., for petitioner.
Robert H. Anderson, III, Associate Atty. Gen., Richmond, Va., for respondents.
This matter is before the Court on the respondent's motion to dismiss a federal habeas corpus petition filed by Richard Boggs on May 26, 1988, and Boggs' cross-motion for summary judgment. The Court finds no merit in any of Boggs' contentions except his assertion that portions of his confession should have been redacted before it was admitted into evidence. Thus, for the reasons stated in this opinion, the Court GRANTS respondent's motion to dismiss as to all claims except the redaction of the confession, GRANTS petitioner's cross-motion as to that issue, and REMANDS the case to the Portsmouth Circuit Court for a new sentencing proceeding.
In the early evening of January 25, 1984, Treeby Shaw, an 87-year-old widow, was murdered in her Portsmouth home. The medical examiner reported that she was beaten on the head several times with a blunt object, and then stabbed with a kitchen knife found beside the body. There was only one stab wound, but the knife had been partially withdrawn and rethrust three times. One thrust penetrated some eleven inches and pierced the wall of Shaw's heart to cause her death. There were also injuries to her neck, skull, ear and ribs. Silver candlesticks, rings and silver flatware were missing from the home.
Within a week, police began to suspect Boggs, a neighbor of Mrs. Shaw, on a tip that he had been trying to sell silver that matched the description of Shaw's missing items. In the early morning hours of February 17, 1984, Boggs, who is white, was arrested by the Portsmouth police for the hit-and-run death of a black pedestrian earlier that night. He was also charged with driving under the influence. Despite testimony from several police officers that over the next few hours Boggs did not seem drunk, a breathalyzer test registered a blood alcohol level of .22 at 2:10 a.m. Boggs has a long history of drug and alcohol abuse, and later testified that he had consumed a six pack of beer, most of a fifth of whiskey, amphetamines and marijuana since 9:00 p.m. that night.
Boggs and his car were taken to the station, and when questioned Boggs said he knew nothing about the Shaw murder. Meanwhile, police conducted what they alleged was a routine warrantless inventory search of Boggs' car, which Boggs now claims was a pretext for an investigatory search. In the car the officer found a blue knapsack that contained silver candlesticks and flatware engraved "Treeby" and "Shaw."
The search was completed at 6:25 a.m., and officers told Boggs they had evidence linking him to the Shaw murder and that he was a suspect in the crime. They gave him Miranda warnings, after which he signed a written waiver and made a statement that was transcribed and that he signed at 7:10 a.m. In the confession, Boggs stated that he had gone to Shaw's home at 7 p.m. the night of the murder, on the pretext of borrowing a book, intending to kill her and take valuables to support his drug habit. He had tea with Shaw for approximately an hour, and then hit her repeatedly with a four-inch "hunk of steel." Shaw fell to the floor at the first blow. Because she was unconscious but still breathing, Boggs said in his confession, he took a butcher knife from the kitchen and stabbed her. In the confession he also stated:
At a suppression hearing, Boggs' counsel moved to suppress the items taken from the knapsack and exclude the confession as fruit of an illegal search. Counsel also requested the court to redact the "I want to kill niggers" sentence as irrelevant since both Boggs and Shaw were caucasian. The court denied all motions.
During these proceedings, the case received some newspaper publicity. The articles contain portions of Boggs' confession and convey the impression that Shaw was a well-liked member of the neighborhood and that no one could believe Boggs, an "average" neighbor, had killed her. Newspapers also covered Boggs' trial and conviction in the hit-and-run case, which was completed shortly before the murder trial began.
A jury was empaneled from a venire of 36. Though 18 had heard of the case, all stated they could lay aside any impressions they had and judge the case on the evidence presented. Three jurors were dismissed for cause when they stated their opposition to the death penalty. They said that under no circumstances could they impose the penalty, though they were not asked whether they could set those convictions aside and follow the law. Boggs now challenges that decision as a denial of the right to a jury selected from a fair cross-section of the community. Boggs also challenges the trial judge's refusal to exclude four other jurors, three of whom thought the defendant had the burden of proof and one who thought the biblical "eye for an eye" maxim required that death be imposed for most murders. All four said they could lay these opinions aside and follow the judge's instructions.
Boggs was convicted and the same jury heard evidence on sentencing. Prosecution witnesses in the penalty phase testified about Shaw's injuries. The defense presented a psychiatrist, Boggs' father, and Boggs himself. The jury recommended death, and after the required presentence hearing the judge adopted the jury's recommendation. The conviction and sentence were affirmed by the Supreme Court of Virginia. Boggs v. Commonwealth, 229 Va. 501, 331 S.E.2d 407 (1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1240, 89 L.Ed.2d 347 reh'g denied, 475 U.S. 1133, 106 S.Ct. 1666, 90 L.Ed.2d 207 (1986).
Boggs then brought a habeas petition in Portsmouth Circuit Court. The Court dismissed the petition in a memorandum order that did not discuss any of the issues but merely adopted the arguments of the state in its opposition brief. The Supreme Court of Virginia likewise rejected Boggs' habeas appeal in a summary order, and the Supreme Court denied certiorari. Boggs v. Bair, ___ U.S. ___, 108 S.Ct. 1302, 99 L.Ed.2d 512 (1988).
Arguing that the search of his car and knapsack was investigatory and not a routine inventory, Boggs claims that probable cause was lacking and that the silver and his confession should be suppressed as fruit of an illegal search.
Ordinarily, fourth amendment claims may not be relitigated on federal habeas, see Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), but Boggs argues that Stone is inapplicable because he did not receive a full and fair hearing on the merits. See id. at 482, 96 S.Ct. at 3046. Specifically, Boggs points to the Supreme Court's decision in Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987), decided after direct appeal and before state habeas, as a changed circumstance that requires a new hearing. The Court finds no merit in this claim.
In Bertine, the Supreme Court upheld 7-2 the validity of an inventory search like the one here. Bertine was arrested for drunk driving, and the search uncovered narcotics. In a concurring opinion, joined by two other Justices, Justice Blackmun emphasized that he voted with the plurality only because standardized inventory procedures in the case limited the officers' discretion and suggested that the search had not been a mere pretext. Boggs argues that the state has the burden of justifying its warrantless search, Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 1971, 26 L.Ed.2d 409 (1970), and the state here presented no evidence that standardized procedures exist or were followed.
However, the state apparently met its burden of proof, for the trial court and the Virginia Supreme Court on direct appeal found that the search was conducted according to routine procedure. Boggs v. Commonwealth, 221 Va. 501, 331 S.E.2d 407, 414 (1985). Under 28 U.S.C. § 2254(d), these factual findings are entitled to deference, and the Court may not grant an evidentiary hearing on the existence of standardized procedures unless Boggs can show that the state courts' finding was contrary to the evidence or that the state courts did not adequately develop the facts. Boggs argues only that the police suspected him of the murder before the search, but this mere circumstance does not justify a redetermination of the factual issue. Even if the police were hopeful that they would uncover evidence, that fact alone does not suggest that they violated established procedure when they inventoried the contents of Boggs' car.
Boggs further argues that the state court did not sufficiently develop the facts, because the Supreme Court's emphasis on standardized procedures in Bertine would have prompted him to litigate the issue more fully in the trial court. But Justice Blackmun's concurrence did not fundamentally change the law of inventory searches; Boggs could have pressed this claim under existing law at the time of trial. See, e.g., Illinois v. Lafayette, 462 U.S. 640, 647, 103 S.Ct. 2605, 2610, 77 L.Ed.2d 65 (1983); South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). He therefore had an opportunity to litigate his claim, and that is all that Stone requires. See Doleman v. Muncy, 579 F.2d 1258 (4th Cir.1978).
Boggs next claims that his confession should not have been introduced because he was drunk when he signed it and its use therefore violated his privilege against...
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Boggs v. Bair, s. 88-4010
..."I want to kill the enemy on the other side, which is me, the white all over the world. I want to kill niggers." 4 Boggs v. Bair, 695 F.Supp. 864, 869-70 (E.D.Va.1988). Finding that the evidence of Boggs' guilt was overwhelming, the district court concluded that the admission of the stateme......