Clagett v. Angelone

• Decision Date: 25 January 2000
• Docket Number: CA-98-438-2,No. 99-20,99-20
• Citation: 209 F.3d 370
• Parties: (4th Cir. 2000) MICHAEL D. CLAGETT, Petitioner-Appellant, v. RONALD ANGELONE, Director of the Virginia Department of Corrections, Respondent-Appellee. (). . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 370

209 F.3d 370 (4th Cir. 2000)

MICHAEL D. CLAGETT, Petitioner-Appellant, v. RONALD ANGELONE, Director of the Virginia Department of Corrections, Respondent-Appellee.

No. 99-20 (CA-98-438-2).

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: January 25, 2000.

Decided: April 5, 2000.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk.

Raymond A. Jackson, District Judge.

[Copyrighted Material Omitted] COUNSEL ARGUED: Patrick Hugh O'Donnell, Norfolk, Virginia; Charles Russell Burke, Virginia Beach, Virginia, for Appellant. Pamela Anne Rumpz, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee. ON BRIEF: Mark L. Earley, Attorney General of Virginia, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee.

Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.

Dismissed by published opinion. Judge Luttig wrote the opinion, in which Judge Widener and Judge Michael joined.

OPINION

LUTTIG, Circuit Judge:

A Virginia jury convicted Michael D. Clagett of five counts of capital murder and various other offenses, and returned a verdict of death on each murder count. After appealing his convictions in state court on direct review and in state habeas proceedings, Clagett filed a petition for writ of habeas corpus in federal court. See 28 U.S.C. § 2254. The district court dismissed Clagett's petition, and he now appeals that dismissal. Because he has failed to make a substantial showing of the denial of a constitutional right, we deny his application for a certificate of appeal-ability and dismiss his petition for writ of habeas corpus.

I.

The Virginia Supreme Court outlined the facts of the discovery of the crime as follows:

Richard T. Reed, a regular patron, arrived at the Witchduck Inn (the Inn), a tavern and restaurant in Virginia Beach, about midnight on June 30, 1994. Although the Inn usually remained open until 2:00 a.m., Reed found that the front door was locked. Reed could hear music playing inside.

Although he knew that it would normally be kept locked, Reed went to the rear door entrance to the Inn and found it unlocked. Upon entering the Inn, he discovered the bodies of Lam Van Son, the Inn's owner, Inn employees Wendell Parish and Karen Sue Rounds, and Abdelaziz Gren, an Inn patron. Each victim had been shot once in the head. The Inn's cash register was open and empty.

Based upon information supplied by Denise Holsinger, Clagett's girlfriend, Clagett was identified as a suspect in the killings.

Clagett v. Commonwealth, 472 S.E.2d 263, 266 (Va. 1996).

On July 1, 1994, Police Officer Donna Malcolm, responding to a citizen call reporting that a man was "sleeping in the bushes," J.A. 27, found Clagett "passed out" in bushes outside an apartment building at which he did not reside. J.A. 440. At that time, approximately 11:33 p.m., Officer Malcolm noticed that Clagett smelled of alcohol, was "a little bit unsteady on his feet," and had bloodshot eyes. J.A. 36. She arrested Clagett for public intoxication, he was taken into custody, and he was read his Miranda rights.

At the police station, Clagett was turned over to Detective Paul C. Yoakum. Detective Yoakum began interviewing Clagett at 12:13 a.m. on July 2, 1994. At this point Detective Yoakum noticed that Clagett had bloodshot eyes, but Clagett's speech was not slurred and he did not appear to have difficulty walking. Clagett informed Detective Yoakum that he had only slept one hour in the previous forty-eight hours. Detective Yoakum could smell alcohol on Clagett's person, although he said that "[h]is body odor was stronger than the smell of alcohol on him."

In the initial minutes of the two and a half hour interview with Detective Yoakum, Clagett denied that he had been at the Witchduck Inn on the night of the killings. He continued to deny that he had been at the Inn after Detective Yoakum falsely told him that Navy men had identified Clagett from a photo spread. However, having been told, truthfully, that Holsinger had talked to the police about him, Clagett began to refer to Holsinger as "little miss innocent" and commented that she was probably going to "walk away" from the crimes after having pointed the finger at him. Detective Yoakum then, in a ruse, told Clagett that the Inn had security cameras and that the police could place him at the Inn on the night of the murders.

Immediately after Detective Yoakum told Clagett about the security cameras, Clagett repeated his request for a cigarette, and the Detective left the room to find cigarettes for Clagett. When the Detective returned and before he asked another question of Clagett, Clagett confessed to the killings:

You can fry me. Thats (sic) what I'm going to ask for when we go to court. Fry me, I'm not gonna live. I don't want the tax payers supporting me. I did it. Yeah I did it. I did it all.

All by my f***ing self. Let that little c*** go free. I did it all. I did it all buddy. And the worst thing was . .. Lam[, the bar owner,] was my buddy . . . .

J.A. 162 (Taped Interview of Clagett, at 8).

Clagett then explained to Detective Yoakum that he planned the robbery at the request of Holsinger, and that while Holsinger took $400 from the cash register, he used a .357 Magnum to murder the four individuals. He also described how and where he shot each of the victims, explaining that he shot one victim in the forehead and the other three victims in the back of the head.

The same day that Clagett confessed to Detective Yoakum and while he was still in police custody, he confessed a second time to the killings, but this time to a television news reporter. A reporter from WTKR Channel 3 asked Clagett "Are you guilty of these charges?" And Clagett replied: "Yes. I shot every one of them." J.A. 226-27.

A grand jury returned two indictments against Clagett on October 3, 1994: one charging him with robbery, use of a firearm in the commission of a robbery, four counts of capital murder during the commission of a robbery, and four counts of use of a firearm in the commission of a murder; and the other indictment charging him with one count of multiple homicide capital murder for killing all four individuals as part of the same act or transaction.

On December 12, 1995, the Virginia Beach Circuit Court held a hearing on Clagett's motion to suppress his videotaped confession to Detective Yoakum. There were four grounds for the motion to suppress: lack of probable cause for the arrest for public intoxication; Clagett's assertion of his right to counsel during the course of the police interrogation; the use of misrepresentations by police to overbear Clagett's will; and the pretextual nature of the arrest for public intoxication. The court denied the motion to suppress, finding that there was probable cause for the arrest, that Clagett had not asserted his rights to counsel and to remain silent, that Clagett's will was not unlawfully overborne by police misrepresentations, and that the arrest for public intoxication was not pretextual.

During the jury trial which spanned ten days, the prosecution presented, in addition to the two videotaped confessions, the following evidence. Clagett and Holsinger were seen with a gun on the day of the killings. Police found a .357 Magnum in Clagett's home on the morning of July 2, but a crime laboratory analyst was unable to match bullet fragments from the Inn with the gun found in Clagett's home. A medical examiner testified that only one victim was not shot in the back of the head. After the killings, the cash register at the Inn was empty. And when Clagett was arrested, he had $137.00 on his person. Holsinger did not testify at trial.

The jury convicted Clagett of all charges in the two indictments. A sentencing hearing was held on July 12 and 13, 1995. During the hearing, the jury heard evidence that Clagett had a history of brutal domestic violence against his former wife and of drug use, but that he showed great remorse for the murders during his confession to Detective Yoakum.

During deliberation on sentencing for the non-capital charges, the jury requested further instruction on two issues:

(1) What does "life imprisonment" mean in the law as relates to parole?

(2) Are the standing mandatory sentences to be served? concurrently? consecutively?

J.A. 235 (note from jury to court). The court instructed the jury as follows:

The Court instructs the jury that you should impose such punishment as you feel is just under the evidence and within the instructions of the court. You are not to concern yourselves with what may happen afterwards.

J.A. 234. The jury returned a verdict of five death sentences in the capital charges on findings of future dangerousness and vileness, and sentenced Clagett to forty-three years of imprisonment on the noncapital charges. The trial court entered judgment on the jury verdict.

The Virginia Supreme Court affirmed the individual capital murder convictions and corresponding death sentences, but set aside the fifth conviction for multiple homicide capital murder on double jeopardy grounds. Clagett, 472 S.E.2d at 272-73. The United States Supreme Court denied Clagett's petition for writ of certiorari. See Clagett v. Virginia, 117 S. Ct. 972 (1997). Represented by new counsel, Clagett then sought state habeas relief in the Virginia Supreme Court on April 18, 1997, and on December 15, 1997, the petition was dismissed.

The Circuit Court of Virginia Beach set Clagett's date of execution for April 28, 1998.

Clagett then filed his federal habeas petition in the Eastern District of Virginia, along with a motion for appointment of counsel and a petition for stay of execution. On April 24, 1998, the district court granted Clagett's petition for stay of execution and his motion for appointment of counsel. On July 13, 1998, Clagett filed his formal federal habeas petition. United States Magistrate Judge Miller...