Clozza v. Murray

• Decision Date: 13 September 1990
• Docket Number: No. 89-4009,89-4009
• Parties: Albert J. CLOZZA, Petitioner-Appellant, v. Edward W. MURRAY, Director, Virginia Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1092

913 F.2d 1092

Albert J. CLOZZA, Petitioner-Appellant, v. Edward W. MURRAY, Director, Virginia Department of Corrections, Respondent-Appellee.

No. 89-4009.

United States Court of Appeals Fourth Circuit.

Argued Feb. 6, 1990.

Decided Sept. 13, 1990.

Christopher Matthew Malone, Thompson & McMullan, argued (Stephen A. Northup, Mays & Valentine, Richmond, Va., on brief), Richmond, Va., for petitioner-appellant.

Robert Quentin Harris, Asst. Atty. Gen., argued (Mary Sue Terry, Atty. Gen., on brief), Richmond, Va., for respondent-appellee.

Before WIDENER, HALL and WILKINS, Circuit Judges.

WIDENER, Circuit Judge:

Albert J. Clozza attacks a Virginia state court judgment sentencing him to death. The United States District Court for the Eastern District of Virginia denied his petition for a writ of habeas corpus. We affirm.

Clozza's death sentence was based upon the aggravating circumstance of vileness as well as on the aggravating circumstance of future dangerousness. One of the issues he raises concerns the proportionality review of the Virginia Supreme Court, so the circumstances surrounding the crime are quite pertinent. On Thursday, January 13, 1983, about 6:30 p.m. Patty Bolton, aged 13 years, left her family's residence in the Derby Run Trailer Park to walk alone to a bookmobile that routinely stopped near the Park. ¹ She had not returned home by about 8:00 p.m. and her father began searching the neighborhood without success. The police were called about 9:00 p.m., and the father continued searching until later in the evening.

The next morning, the father found a French book on the lawn of his home. He resumed his search and discovered his daughter's T-shirt and a blue notebook, with Clozza's name in it, behind a residence near the Bolton home.

On that day, January 14, a search of the Derby Run area for the missing child was supervised by a Virginia Beach detective. Approximately 150 persons, mostly military personnel, participated in the search. Eventually, the search was concentrated in a large field adjacent to the trailer park that separated the park from higher, brush-covered, wooded ground.

About 3:00 p.m., five stacked books were found in the field with one of the child's tennis shoes. Stains from two puddles of blood were discovered near the books. Next, the victim's bra and her other shoe were found farther into the field from the residential area. Then the child's blue jacket, corduroy trousers, underwear, and sock were discovered still farther into the field.

At 4:30 p.m. the child's body, unclothed except for one sock, was found by a member of the search party. The body was lying face down at the bottom of an embankment in the wooded area and was barely visible due to the surrounding brush and undergrowth. The body was encrusted with blood, vegetation-type debris, and mud.

Testimony from the medical examiners described the condition of the body. Externally, the entire front of the face was swollen and bruised. The lips were bruised, torn and crushed. The upper lip had been stripped off the bone. The lower jaw was dislocated. The fat of the cheek was crushed and bruised from the inside.

There were scrapes on the knuckles of the hands and numerous scratch marks on the forearms, buttocks, backs of the thighs, legs, and front of the trunk. These marks apparently were made by bristles and thorns. There was bruising on the front of the knees and dirt driven into the skin. The area around the genitals was bruised. An elongated abrasion was found on the front, inside portion of the left thigh.

Internally, there was bleeding on the surface of the brain and hemorrhage of the scalp. The outer and inner lips of the vagina were bruised. There was a laceration near an area of attachment at the lower end of the inner lips of the vagina. There was tearing and bruising of the lining of the vagina. A piece of twig, three and three-quarters inches in length, had penetrated the vagina, perforated the vaginal wall, and protruded into the abdominal cavity.

Internally in the head and neck region, there was bleeding in the floor of the mouth and the soft tissues of the face. A piece of vegetation resembling a corn husk was wedged in the upper throat.

The medical opinion was that direct blows to the head by a blunt object or a fist caused the extensive injuries in that area. The medical examiner further testified that the twig caused perforation of the abdominal cavity, either at the time of death or just after the victim died. The other vaginal injuries were caused by the penetration of "a firm, cylindrical object, anything from three, four to five, six inches in circumference and penetrating or up to about two or three inches." He opined that the injuries to the knees were consistent with falling down and being pushed down repeatedly. Finally, the medical examiner testified to the cause of death as follows: "She died as a result of shock from bleeding and aspiration of some of the blood; that is, bleeding into the windpipe, swallowing, inhaling the blood into the windpipe and bleeding and shock and hemorrhaging resulting from blunt-force blows about the head and face." She died, he opined, within several hours after eating a meal.

On the evening of the child's disappearance, the defendant, who had worked in the trailer park but lived nearby in the Sandbridge area, was seen in the bookmobile during the period between 6:30 p.m. and 7:30 p.m. About 10:30 p.m. he entered a Seven-Eleven store that was located across the street from the bookmobile. He was "covered in blood." There was blood on his face, arms, and clothes. The fly to his trousers was unzipped. There was blood on the trousers about the opening. He told the store clerk, whom he knew, that he had been "rolled" by two men who had "beat him up." Defendant said that his arm and ribs had been injured in the fight. After helping defendant clean the blood from his person, the clerk called the police. The defendant left the store before officers arrived.

Clozza was taken into custody by the Virginia Beach Police and the first of a series of interviews with the police began shortly after 8:00 p.m. on Friday, January 14th. Clozza was arrested on a warrant that was executed about 11:30 p.m. that day.

Initially, the defendant denied any involvement with the child. Then, over a period of time, he admitted the crimes with which he was charged except rape. Finally, in an interview that he initiated with the police on June 27, 1983, he admitted raping the victim. The series of confessions reveal the following account of this tragedy.

Clozza had observed the child, who appeared to him to be older than her 13 years, carrying books in the area of the bookmobile. He said he had consumed 15-16 beers earlier in the day but he testified later that he was not intoxicated at the time of the offenses. He stated that he followed her to a point near the front of her residence, "grabbing" her from behind and putting his hand over her mouth and on her arm. He forced her behind a trailer home and told her to remove her coat and shirt. She complied, and he struck her several times. She began to bleed about the mouth. He told her to remain quiet. He forced her to walk through the residential area to the edge of the field. There he ordered her to remove her coat again and her bra. He struck her three times after she followed his directions. He said that she was "[n]ot very badly" injured at that time, but it was "possible" that her teeth had been knocked loose.

Then, they started across the field and after they had walked one-fourth of the way across, the child ran, trying to escape. Clozza caught her, struck her twice while she was standing and forced her to disrobe. She fell to the ground and he hit her three or four times while she was on the ground. He stated he raped her at that point and ejaculated on the ground. He did not remove his clothes but unzipped his trousers. He said her condition then was "fair," but he thought her nose was broken and that she was "missing" several teeth.

Next, while the child was on the ground, Clozza forced her to commit an act of fellatio on him. Then, he pulled her to her feet and pushed her toward the wooded area. He stated that she was not speaking to him, but that he probably was saying, "isn't this nice or I'm having fun or something on that order."

As they reached a hill where the tree line began, Clozza struck her and made her commit fellatio again. He said her condition was "poor" at that time, she was bleeding from her nose and mouth, and one eye was swollen closed. Next, he "put a stick in her mouth," and another in her vagina. Asked by the interrogator the purpose of placing the stick in her vagina, Clozza answered: "I don't know. Maybe cruelty."

They continued on a path in the wooded area with the defendant striking the child in the back of the head and then in the face. Finally, she fell and, according to Clozza, her condition was "very poor." At this point, Clozza stated, he ordered the child to get up and to go down an embankment. He said that he did not give her an opportunity to comply but that he pushed her "down into the valley" when he saw a light from a flashlight approaching him at a distance. Clozza stated that he left the area, walked back down the path, and went to the Seven-Eleven store.

On November 3, 1983, a jury convicted Clozza of capital murder, aggravated sexual battery, sexual penetration with an inanimate object, abduction with intent to defile, and two counts of forcible sodomy. It fixed his sentence as life imprisonment for each of the non-capital offenses except aggravated sexual battery, and as twenty years imprisonment for the aggravated sexual battery offense. The next day, November 4th, the jury sentenced Clozza to death for capital murder committed during or after rape. The court imposed sentence on November 22, 1983. The Virginia Supreme Court affirmed the convictions of ...