Bond v. Procunier

• Decision Date: 02 January 1986
• Docket Number: No. 84-6530,84-6530
• Parties: Lewis Turner BOND, Jr., a/k/a Omar Ameen Hameen, Appellant, v. Raymond K. PROCUNIER, Director of the Virginia Department of Corrections, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 461

780 F.2d 461

Lewis Turner BOND, Jr., a/k/a Omar Ameen Hameen, Appellant, v. Raymond K. PROCUNIER, Director of the Virginia Department of

Corrections, Appellee.

No. 84-6530.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 7, 1985.

Decided Jan. 2, 1986.

Christopher Varner (Randolph & Truitt, Washington, D.C., on brief), for appellant.

Todd E. LePage, Asst. Atty. Gen. (William G. Broaddus, Atty. Gen., Richmond, Va., on brief), for appellee.

Before HALL and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge.

K.K. HALL, Circuit Judge:

Lewis Turner Bond, Jr., appeals from the district court's order denying his petition for habeas corpus relief pursuant to 28 U.S.C. Sec. 2254. We affirm.

I.

Bond was convicted by a jury on February 8, 1977, of first degree murder in the shooting death of Michael Victor Brown. In a discovery motion which he filed before trial, Bond requested, inter alia:

All material now known to the Commonwealth or which may become known or which through due diligence could become known from the investigating officers or the witnesses in this case, which is exculpatory in nature or favorable to the accused, or which is or may lead to exculpatory material. This request includes reports of any investigations carried out by the police of suspects other than the defendant.

The trial court granted this request; however, it denied other defense requests for summaries of statements obtained by the police during the investigation.

The evidence presented against Bond at trial consisted principally of the testimony of Edward Charles Roberts. Roberts had initially been charged with the murder. He was later granted immunity from prosecution, established in a new identity and job under the federal witness protection program, and given other benefits in exchange for his cooperation and testimony against Bond. Roberts testified that Bond said he was going to "bump off" Brown because Brown was a "snitch." Roberts further stated that subsequently he, Bond, Brown, and a man named Pop Murray, all went driving in Brown's car. According to Roberts, Brown drove the car while Bond sat in the back seat directly behind Brown. Roberts testified that he sat in the passenger's seat next to Brown and that Murray sat behind him (Roberts) in the back seat. Roberts stated that during the drive Bond shot Brown in the back of the head. The medical examiner testified that Brown died from four bullet wounds to the back of the head.

Bond did not testify at trial but attempted to undermine Roberts' credibility by demonstrating inconsistencies between his testimony and prior statements. Bond also introduced evidence that he was left-handed while the bullet wounds were to the right side of Brown's head.

Following the close of the case, the trial court instructed the jury, inter alia, as follows:

The Court instructs the jury that a person is presumed to intend the natural and probable consequences of his acts; and where a mortal wound is inflicted with a deadly weapon, in the previous possession of the slayer, without any, or upon slight provocation, the killing is presumed to be willful, deliberate and premeditated, and throws upon the accused the necessity of proving extenuating circumstances.

Bond's counsel did not object to this instruction. The jury convicted Bond of first degree murder, and he was sentenced to life imprisonment.

Subsequently, Bond appealed his conviction to the Supreme Court of Virginia, and his appeal was dismissed. He also petitioned the Supreme Court of Virginia for a writ of habeas corpus, which was denied on September 14, 1981. Thereafter, he filed this action for habeas relief in federal district court alleging, inter alia, non-disclosure of exculpatory evidence, unconstitutional jury instructions, and ineffective assistance of counsel.

In support of his claim of non-disclosure of exculpatory evidence, Bond submitted an affidavit of Haywood Williams, Jr., which was notarized on December 11, 1981. In that affidavit, Williams stated that he had been a suspect in Brown's murder. According to Williams' affidavit, an unnamed police officer had told him that the officer had overheard a telephone conversation between Williams and Roberts in which Roberts had told Williams that he had shot Brown. Williams further stated that the police recorded a statement in which he recounted the substance of his telephone conversation with Roberts and that he agreed to testify against Roberts. The district judge noted that Williams' prior convictions and criminal activity were "well known" to him. He found "no credibility in the statements made in [Williams'] affidavit" and therefore rejected Williams' statements as "not believable."

Bond also challenged the trial court's jury instruction as impermissibly shifting the burden to him. He raised counsel's failure to object to that instruction as a ground for ineffective assistance of counsel. Bond further asserted "attorney error" in failing to object as a basis for finding cause under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), so as to permit federal habeas review of the jury instruction despite counsel's failure to object at trial or to raise the issue on appeal.

The district court found that Bond's counsel was not ineffective in failing to object because the instruction was in accordance with the law of Virginia as it existed in 1977, and because the Supreme Court decision establishing the unconstitutionality of the instruction was still two years away. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). The district court further found that Bond was not prejudiced by his counsel's failure to object.

Finding no merit in any of Bond's claims, the district court denied Bond's petition for habeas relief. Bond appeals.

II.

On appeal, Bond alleges, as he did below, that the trial court's instruction to the jury at the close of the case was unconstitutional because it improperly shifted the burden of proof to him. Although Bond no longer claims ineffective assistance of counsel, he contends that the district court should have found cause for his attorney's failure to object to the instruction under Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984), and Carrier v. Hutto, 724 F.2d 396 (4th Cir.1983), aff'd en banc, 754 F.2d 520 (4th Cir.), cert. granted, --- U.S. ----, 105 S.Ct. 3523, 87 L.Ed.2d 649 (1985). Because those cases had not yet been decided at the time of his federal habeas hearing, Bond urges this Court to remand the case to the district court for an evidentiary hearing as to whether his attorney's failure to object resulted from a tactical decision or from inadvertance or ignorance. Finally, petitioner contends that he was denied due process because the prosecution failed to make exculpatory evidence available to him. We reject as meritless all of Bond's contentions.

We do not reach the merits of Bond's claim that the trial court's instruction was unconstitutional because we find that, under Wainwright, he has failed to show prejudice. Under the Wainwright test, both cause and prejudice must be shown in order to permit federal habeas review in situations such as the present one. Roberts' testimony that petitioner murdered Brown because Brown was an informant, and the evidence that Brown had been shot four times in the back of the head, clearly established intent, malice, and premeditation. Bond's attempt to undermine Roberts' credibility was ultimately unsuccessful, and there was no evidence before the jury suggesting that the murder occurred otherwise than as testified to by Roberts.

Because the evidence of intent, malice, and premeditation was uncontradicted, petitioner was not prejudiced by the challenged instruction and it cannot be said that his conviction violated due process standards. Cf. Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977) (where the instruction is alleged to have shifted the burden of proof, the proper inquiry on habeas is " 'whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process' ") (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973) ). Because we find that Bond has failed to make a showing of actual prejudice, we need not address the issue of cause. Griffin v. Aiken, 775 F.2d 1226, 1232 (4th Cir.1985).

III.

Bond's remaining contention is that the district court erred in dismissing, without an evidentiary hearing, his claim that the prosecution failed to disclose exculpatory evidence. In support of this claim, Bond relies upon Williams' affidavit, arguing that the information contained therein should have been disclosed to him during discovery.

In reply to Bond's claim, respondent maintains that the district court acted properly in determining from its prior experience that Williams' affidavit lacked credibility, and argues that an evidentiary hearing was not necessary to resolve any factual issues. Respondent further asserts that Bond made only a general request for exculpatory material, and that Williams' affidavit did not create a reasonable doubt about petitioner's guilt which did not otherwise exist. See United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342 (1976). We find that an evidentiary hearing was unnecessary, and that the alleged non-disclosure did not affect the outcome of petitioner's trial.

There is no evidence that Williams and Roberts were even acquainted at the time that Roberts allegedly made the admission to Williams. Nor are there any circumstances that indicate the trustworthiness of Williams' statement. To the contrary, the district judge commented that he was familiar with Williams, and he found that the affidavit was unworthy of belief. Furthermore, it is significant to note that Williams' affidavit did not identify the police officer who allegedly...