Evans v. Thompson

Decision Date28 August 1989
Docket NumberNo. 88-4007,88-4007
Citation881 F.2d 117
PartiesWilbert Lee EVANS, Petitioner-Appellant, v. Charles THOMPSON, Superintendent, Respondent-Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

Thomas Francis Connell (Arthur F. Mathews, Thomas W. Jeffrey, Washington, D.C., Wilmer, Cutler & Pickering, Jonathan Shapiro, on brief) for petitioner-appellant.

Robert H. Anderson, III, Richmond, Va., (Mary Sue Terry, Atty. Gen. of Va., Stuart, Va., Donald R. Curry, Sr. Asst. Atty. Gen., on brief) for respondent-appellee.

Before HALL and WILKINSON, Circuit Judges, and DOUMAR, United States District Judge for the Eastern District of Virginia, sitting by designation.

WILKINSON, Circuit Judge:

Petitioner was convicted of capital murder and sentenced to death. Following a confession of error by the prosecution, he was resentenced to death by a new jury. Petitioner contends that his resentencing was barred by the Ex Post Facto Clause, the Equal Protection Clause, and the Due Process Clause. He further argues that during resentencing he was denied his constitutional right to confront and cross-examine witnesses and that the trial judge improperly instructed the jury. Finally, he claims ineffective assistance of counsel both on direct appeal and during his first trial.

The district court rejected petitioner's claims. We affirm.


On January 27, 1981, petitioner Wilbert Lee Evans shot and killed Deputy Sheriff William Truesdale while attempting to escape from state custody. Truesdale was escorting petitioner, at the time a North Carolina prisoner, to Alexandria, Virginia, where he was to testify as a witness for the Commonwealth of Virginia. Petitioner had pretended to be a willing witness for the Commonwealth for the sole purpose of escaping during his transportation from North Carolina to Virginia. He planned to kill anyone who attempted to prevent his escape and acted on this intent when he killed Truesdale.

In June 1981, petitioner was convicted of capital murder and sentenced to death in the Circuit Court of Alexandria, Virginia. The Supreme Court of Virginia affirmed his conviction and death sentence on December 4, 1981, 222 Va. 766, 284 S.E.2d 816. On March 22, 1982, the Supreme Court denied certiorari.

In April 1982, petitioner filed a petition for a writ of habeas corpus in Alexandria Circuit Court. He amended his petition in May 1982 and again in December 1982.

On April 12, 1983, the Commonwealth formally confessed error in petitioner's sentencing proceedings and acknowledged that his death sentence should be vacated because erroneous evidence of his prior convictions had been admitted at trial. The circuit court vacated petitioner's sentence and directed that a hearing be held to determine whether petitioner should be resentenced by a new jury or have his sentence reduced to a life term. Following a determination on October 12, 1983 that resentencing under the amended statute could proceed, the court impaneled a new jury which heard evidence of petitioner's history of violent criminal conduct. That jury recommended the death penalty based upon a finding of petitioner's "future dangerousness." On March 7, 1984, the trial court imposed the death penalty. The Virginia Supreme Court affirmed the sentence and the United States Supreme Court denied certiorari.

In May 1985, petitioner filed a third amended petition for a writ of habeas corpus in Alexandria Circuit Court. The circuit court dismissed his petition on May 19, 1986. The Virginia Supreme Court denied review as did the United States Supreme Court.

On October 5, 1987, petitioner filed for a writ of habeas corpus in the Eastern District of Virginia. In response to petitioner's request for discovery of the Commonwealth's files, the court conducted an in camera review of the files and, finding nothing relevant to petitioner's assertions, denied his request. On August 4, 1988, the court rejected Evans' petition.

Petitioner appeals.


Petitioner contends there are three bars to his resentencing: A) the Ex Post Facto Clause; B) the Equal Protection Clause; and C) the Due Process Clause. We address each argument in turn.


On March 28, 1983, Virginia enacted emergency legislation, amending its procedures for trial by jury in capital cases to permit capital resentencing by a newly impaneled jury where a prior death sentence was vacated due to sentencing errors. Va.Code Ann. Sec. 19.2-264.3C. Prior to this amendment, if the Commonwealth failed to secure a valid death sentence due to errors in the sentencing process it was foreclosed from seeking capital resentencing and the defendant received an automatic sentence of life imprisonment. Patterson v. Commonwealth, 222 Va. 653, 283 S.E.2d 212 (1981). Petitioner contends that to resentence him to death pursuant to the March 1983 legislation, when both his offense and trial occurred before that date, retroactively deprives him of his right to have his death sentence converted to life imprisonment. We hold, however, that no violation of the Ex Post Facto Clause occurred.

The Ex Post Facto Clause exists to assure individuals fair notice of the nature and consequences of criminal behavior and to prevent the alteration of preexisting rules subsequent to the commission of an act. Two elements must exist for a law to fall within the ex post facto prohibition: 1) the law "must be retrospective, that is, it must apply to events occurring before its enactment," and 2) "it must disadvantage the offender affected by it." Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981) (footnotes omitted). Central to the ex post facto inquiry is whether the law merely changes " 'modes of procedure which do not affect matters of substance,' " and hence is permissible; or whether it impacts on defendant's " 'substantial personal rights,' " and thus is prohibited. Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977), quoting Beazell v. Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 70 L.Ed. 216 (1925). "[N]o ex post facto violation occurs if the change in the law is merely procedural and does 'not increase the punishment, nor change the ingredients of the offence or the ultimate facts necessary to establish guilt.' " Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 2452-53, 96 L.Ed.2d 351 (1987), quoting Hopt v. Utah, 110 U.S. 574, 590, 4 S.Ct. 202, 210, 28 L.Ed. 262 (1884). See also United States v. Juvenile Male, 819 F.2d 468, 470-71 (4th Cir.1987); United States v. Mest, 789 F.2d 1069,1071 (4th Cir.1986).

The 1983 amendment does no more than change the procedures surrounding the imposition of the death penalty. It provides only that if a capital sentence is set aside, then a resentencing before a new jury can be held. When the offense was committed, the "willful, deliberate and premeditated killing of a law-enforcement officer ... for the purpose of interfering with the performance of his official duties" was an offense for which the death penalty could be imposed. See Va.Code Ann. Secs. 18.2-31(f); 18.2-10(a). Fair warning of punishment was thus afforded petitioner. The change in Sec. 19.2-264.3C was merely an "adjustment[ ] in the method of administering [petitioner's] punishment that [was] collateral to the penalty itself." Evans v. Commonwealth, 228 Va. 468, 323 S.E.2d 114, 119 (1984).

In a case analogous to the present one, Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), a capital sentencing statute in effect when Dobbert committed murder was later held to be invalid. Dobbert, who had been sentenced to death pursuant to a subsequent statute, under which the judge had overruled the jury's recommendation of life imprisonment, argued that application of the new sentencing law violated his substantial rights. The Court concluded that ex post facto concerns were satisfied because the applicable statute when Dobbert committed murder warned him of the penalty Florida prescribed for first-degree murder. Id. at 298, 97 S.Ct. at 2300. The test of whether a change in law ran afoul of the Ex Post Facto Clause was not whether it worked to the detriment of a particular defendant. Rather, it was whether the changes "made criminal a theretofore innocent act," or "aggravated a crime previously committed," or "provided greater punishment," or "changed the proof necessary to convict." Id. The Virginia amendment neither increased the punishment attached to petitioner's crime, nor altered the ingredients of the offense, nor changed the ultimate facts necessary to establish petitioner's guilt. It thus survives petitioner's ex post facto challenge.

Petitioner's reliance on Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883), is misplaced. Unlike in Kring, the petitioner here has not been convicted of a lesser offense for which the death penalty was not authorized, nor has he been acquitted of any offense for which the death penalty was authorized. Moreover, unlike Kring, the petitioner was not deprived of a defense available to him when he committed murder. Kring simply provides that if at the time of the offense, a defendant is on notice he can never be subjected to a death sentence, imposition of a death sentence violates the Ex Post Facto lause. Here petitioner was on notice when he murdered Deputy Sheriff Truesdale that the imposition of death was a possible penalty.

Petitioner contends that the new Virginia law abrogated his right to be sentenced by the same jury which decided his guilt. He argues that a juror who sat through both phases of a capital trial might entertain doubts which, though not enough to defeat conviction, might convince him that the ultimate penalty should not be exacted. "Residual doubts" at the penalty stage of a capital trial, however, are constitutionally insignificant. Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 2327 n. 6, 101 L.Ed.2d...

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