Peterson v. Murray
| Decision Date | 18 June 1990 |
| Docket Number | No. 89-4012,89-4012 |
| Citation | 904 F.2d 882 |
| Parties | Derick Lynn PETERSON, Petitioner-Appellant, v. Edward W. MURRAY, Director of the Virginia Department of Corrections, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Joe Gray Lawrence, Jr., Howell, Daugherty, Brown & Lawrence, Norfolk, Va., for petitioner-appellant.
Richard Bain Smith, Asst. Atty. Gen. (argued), Mary Sue Terry, Atty. Gen., on brief, Richmond, Va., for respondent-appellee.
Before HALL, SPROUSE, and WILKINSON, Circuit Judges.
Through this habeas corpus proceeding, Derick Lynn Peterson collaterally attacks a Virginia state court judgment convicting him of capital murder and sentencing him to death. The United States District Court for the Eastern District of Virginia dismissed his petition for a writ of habeas corpus. We affirm.
Peterson was convicted of fatally shooting Howard Kauffman during the robbery of a Hampton, Virginia, grocery store on February 7, 1982. The details of the crime are recounted in the opinion affirming his conviction on direct appeal. Peterson v. Commonwealth, 225 Va. 289, 292-93, 302 S.E.2d 520, 523, cert. denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 reh'g denied, 464 U.S. 1004, 104 S.Ct. 515, 78 L.Ed.2d 702 (1983). Peterson was tried before a jury and found guilty of capital murder, robbery, and use of a firearm in the commission of a felony. The jury fixed his punishment at life imprisonment for the robbery and three years for the firearm count. A separate proceeding was then held before the same jury to set Peterson's penalty for the capital murder. See Va.Code Ann. Sec. 19.2-264.3(C). The Commonwealth sought the death penalty, urging that there was a probability Peterson "would commit criminal acts of violence that would constitute a continuing serious threat to society." Va.Code Ann. Sec. 19.2-264.4(C). 1
During the penalty trial, the Commonwealth presented three witnesses. Two of them, Sheila Coffey and Carrie Ann Baize, were victims of other armed robberies by Peterson. Baize testified that Peterson held up a drug store the morning after Kauffman's murder and--apparently by accident--shot a woman. Baize also said Peterson had threatened her when she testified at a preliminary hearing. The Commonwealth's third witness was a probation officer who testified about Peterson's record, including several adult felony convictions and a number of juvenile charges, some of which were resolved at intake, dismissed, or not prosecuted. Peterson's trial counsel did not object. Peterson's mother testified on his behalf.
During its deliberations, the jury asked the court whether it was possible to give a life sentence without parole. The court responded:
The only response I can give you on that, Mrs. [Forewoman], is that it's the function of the jury, duty of the jury, to impose such sentence as they consider just under the evidence and the instructions of the Court.
And you should not concern yourself with what may thereafter happen. It may not be a very satisfactory answer, but it's the only one I can give you.
The jury recommended the death sentence. Peterson's convictions and sentences were affirmed on direct appeal. Peterson v. Commonwealth, 225 Va. 289, 302 S.E.2d 520, cert. denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 reh'g denied, 464 U.S. 1004, 104 S.Ct. 515, 78 L.Ed.2d 702 (1983).
Peterson next petitioned for a writ of habeas corpus in the Circuit Court of the City of Hampton. The petition was dismissed and Peterson appealed to the Virginia Supreme Court, which transferred his case to the Virginia Court of Appeals. A panel of the intermediate appeals court dismissed the death penalty part of the appeal, 2 holding it did not have jurisdiction to consider a case in which a sentence of death had been imposed. 3 Peterson v Bass, 2 Va.App. 314, 316-18, 343 S.E.2d 475, 477-78, aff'd en banc by an equally divided court, 349 S.E.2d 409 (1986). Peterson appealed that jurisdictional question to the Virginia Supreme Court, which affirmed the decision of the Court of Appeals but also "reviewed the issues presented to but not decided by the Court of Appeals" and concluded they were without merit. Peterson's petitions for rehearing and certiorari were denied. 484 U.S. 933 (1987).
Peterson then sought relief in federal district court, which denied his petition for a writ of habeas corpus. It is from this order that Peterson now appeals.
Peterson raises constitutional challenges concerning the future dangerousness factor in Virginia's capital sentencing scheme, the introduction of his juvenile records, the failure to inform the jury about parole, and the proportionality review conducted by the Virginia Supreme Court. Peterson also asserts that he was denied effective assistance of counsel at trial. We review these contentions seriatim.
Peterson submits that imposition of the death penalty based on a jury finding of future dangerousness is unconstitutionally arbitrary because future dangerousness cannot be accurately or reliably predicted. The Supreme Court has explicitly rejected this contention, explaining that
prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system.... [A]ny sentencing authority must predict a convicted person's probable future conduct when it engages in the process of determining what punishment to impose. For those sentenced to prison, these same predictions must be made by parole authorities. The task that a ... jury must perform in answering the statutory question in issue is thus basically no different from the task performed countless times each day throughout the American system of criminal justice.
Jurek v. Texas, 428 U.S. 262, 275-76, 96 S.Ct. 2950, 2957-58, 49 L.Ed.2d 929 (1976) (footnotes omitted); see also Barefoot v. Estelle, 463 U.S. 880, 896-97, 103 S.Ct. 3383, 3396, 77 L.Ed.2d 1090 (1983). In light of Jurek, we have held the constitutionality of Virginia's future dangerousness provision to be "beyond question." Briley v. Bass, 750 F.2d 1238, 1245 (4th Cir.1984), cert. denied, 470 U.S. 1088, 105 S.Ct. 1855, 85 L.Ed.2d 152 (1985); Giarratano v. Procunier, 891 F.2d 483, 489 (4th Cir.1989). These cases control the result here. See also Smith v. Commonwealth, 219 Va. 455, 476-79, 248 S.E.2d 135, 148-49 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979).
Peterson asserts that his constitutional rights were violated when a probation officer recounted Peterson's juvenile record during the penalty trial. He urges that Virginia has established a statutory scheme designed to strictly limit access to juvenile records, see Va.Code Ann. Secs. 16.1-299 et seq., and that no provision of Virginia law authorizes the introduction of juvenile records in a capital sentencing proceeding before a jury. Peterson claims that by departing from its own regulations the Commonwealth denied him due process of law. See generally Bluth v. Laird, 435 F.2d 1065, 1071 (4th Cir.1970). 4
We find no merit to Peterson's contention that Virginia proscribes the use of a defendant's juvenile record in capital sentencing. In fact, the opposite is true: the Virginia Supreme Court has held that "evidence relating to juvenile offenses and unadjudicated criminal activity" is admissible because "a trier of fact called upon to decide whether or not to impose the death sentence is entitled to know as much relevant information about the defendant as possible." Beaver v. Commonwealth, 232 Va. 521, 528-30, 352 S.E.2d 342, 346-47, cert. denied, 483 U.S. 1033, 107 S.Ct. 3277, 97 L.Ed.2d 781 (1987); O'Dell v. Commonwealth, 234 Va. 672, 700, 364 S.E.2d 491, 507, cert. denied, 488 U.S. 871, 109 S.Ct. 186, 102 L.Ed.2d 154 (1988). The court applied this principle in Peterson's direct appeal, explicitly stating that Virginia's capital sentencing provisions do "not restrict the admissible evidence to the record of convictions." 225 Va. at 298, 302 S.E.2d at 526.
Contrary to Peterson's assertions, this line of cases does not conflict with Virginia statutory law governing juvenile court records. Indeed, the same provision that protects the confidentiality of juvenile records makes those records available for preparation of presentence reports. See Va.Code Ann. Sec. 16.1-305(A)(4). 5 We therefore do not reach the constitutional issue advanced by Peterson. 6
Peterson next asserts that the sentencing jury should have been "told of the effects of parole," presumably that, under a life sentence, Peterson would have been ineligible for parole for twenty years. 7 The Virginia Supreme Court rejected this argument on Peterson's direct appeal, stating that "it is improper to inform the jury as to the possibility of parole." 225 Va. at 297, 302 S.E.2d at 525. See Williams v. Commonwealth, 234 Va. 168, 178-80, 360 S.E.2d 361, 367-68 (1987) (collecting cases), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 681 (1988). Peterson urges that this holding is unconstitutional because it prevents the jury from considering relevant mitigating evidence. See McCleskey v. Kemp, 481 U.S. 279, 304, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987); Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978) (plurality opinion); see generally McKoy v. North Carolina, --- U.S. ----, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). He points to California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), in which the Supreme Court upheld California's requirement that a capital sentencing jury be instructed that the governor has the power to commute a life sentence. Peterson urges that, if the Supreme Court's wide-ranging evidentiary standard for capital sentencing proceedings supports the result in Ramos, it certainly mandates that juries be...
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