Spencer v. Murray

• Decision Date: 16 September 1993
• Docket Number: No. 92-4006,92-4006
• Citation: 5 F.3d 758
• Parties: Timothy W. SPENCER, Petitioner-Appellant, v. Edward W. MURRAY, Director, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 758

5 F.3d 758

Timothy W. SPENCER, Petitioner-Appellant, v. Edward W. MURRAY, Director, Respondent-Appellee.

No. 92-4006.

United States Court of Appeals Fourth Circuit.

Argued Oct. 28, 1992.

Decided Sept. 16, 1993.

J. Lloyd Snook, III, Snook & Haughey, Charlottesville, VA, argued (William T. Linka, Boatwright & Linka, Richmond, VA, on brief), for petitioner-appellant.

Donald Richard Curry, Sr. Asst. Atty. Gen., Richmond, VA (Mary Sue Terry, Atty. Gen. of Virginia, on brief), for respondent-appellee.

Before WIDENER, PHILLIPS, and WILLIAMS, Circuit Judges.

OPINION

WIDENER, Circuit Judge:

Timothy Wilson Spencer attacks a Virginia state court judgment sentencing him to death for the murder of Debbie Dudley Davis. We affirm.

I

The gruesome details of the murder of Debbie Davis can be found in the Supreme Court of Virginia's opinion on direct review, Spencer v. Commonwealth, 238 Va. 295, 384 S.E.2d 785 (1989), cert. denied, 493 U.S. 1093, 110 S.Ct. 1171, 107 L.Ed.2d 1073 (1990). For our purposes, a brief recitation will suffice. Miss Davis was murdered sometime between 9:00 p.m. on September 18, 1987 and 9:30 a.m. on September 19, 1987. The victim's body was found on her bed by officers of the Richmond Bureau of Police. She had been strangled by the use of a sock and vacuum cleaner hose, which had been assembled into what the Virginia Court called a ligature and ratchet-type device. The medical examiner determined that the ligature had been twisted two or three times, and the cause of death was ligature strangulation. The pressure exerted was so great that, in addition to cutting into Miss Davis's neck muscles, larynx, and voice box, it had caused blood congestion in her head and a hemorrhage in one of her eyes. In addition her nose and mouth were bruised. Miss Davis's hands were bound by the use of shoestrings, which were attached to the ligature device. 384 S.E.2d at 789.

Semen stains were found on the victim's bedclothes. The presence of spermatozoa also was found when rectal and vaginal swabs of the victim were taken. In addition, when the victim's pubic hair was combed, two hairs were recovered that did not belong to the victim. 384 S.E.2d at 789. The two hairs later were determined through forensic analysis to be "consistent with" Spencer's underarm hair. 384 S.E.2d at 789. Further forensic analysis was completed on the semen stains on the victim's bedclothes. The analysis revealed that the stains had been deposited by a secretor whose blood characteristics matched a group comprised of approximately thirteen percent of the population. Spencer's blood and saliva samples revealed that he is a member of that group. 384 S.E.2d at 789.

Next, a sample of Spencer's blood and the semen collected from the bedclothes were subjected to DNA analysis. The results of the DNA analysis, performed by Lifecodes Corporation, a private laboratory, established that the DNA molecules extracted from Spencer's blood matched the DNA molecules extracted from the semen stains. Spencer is a black male, and the evidence adduced at trial showed that the statistical likelihood of finding duplication of Spencer's particular DNA pattern in the population of members of the black race who live in North America is one in 705,000,000 (seven hundred five million). In addition, the evidence also showed that the number of black males living in North America was approximately 10,000,000 (ten million). 384 S.E.2d at 790.

On September 22, 1988 a Richmond jury found Spencer guilty of rape, burglary, and capital murder. The jury unanimously fixed Spencer's punishment at death, which was affirmed on direct appeal. Spencer then filed a petition for habeas corpus with the state trial court, which was dismissed. He appealed to the Virginia Supreme Court, but because his appeal was filed one day out of time, the Virginia Supreme Court refused the petition. Spencer then filed a petition for a writ of habeas corpus with the United States District Court for the Eastern District of Virginia. The district court denied his petition. Spencer v. Murray, No. 3:91CV00391 (E.D.Va. April 30, 1992).

On appeal, Spencer raises essentially five issues ¹: (1) the DNA evidence in this case is unreliable; (2) defense counsel was denied an opportunity to adequately defend against the DNA evidence because the trial court denied a discovery request for Lifecodes' worknotes and memoranda, the trial court refused to provide funds for an expert defense witness, ² and the prosecution did not reveal evidence of problems with Lifecodes' testing methods; (3) the trial court should not have admitted the DNA evidence; (4) the prosecution improperly struck Miss Chrita Shelton from the jury for racially-motivated reasons as prohibited by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); and (5) the future dangerousness aggravating factor in Virginia's capital sentencing scheme is unconstitutionally vague.

II Issues and Claims Precluded From Review

The majority of Spencer's claims under issues (1) and (2) cannot be considered. The Circuit Court of the City of Richmond dismissed Spencer's habeas petition on October 10, 1990. Spencer v. Murray, No. ML2223 (Cir.Ct. for the City of Richmond, Manchester Courthouse, Oct. 10, 1991). Spencer's habeas appeal to the Virginia Supreme Court was filed on January 11, 1991, which was one day after the deadline for filing set by Rule 5:17(a)(1), Rules of Va.Sup.Ct., had expired. Spencer also filed a request to extend the time for filing that petition for appeal. On March 18, 1991, the Supreme Court of Virginia denied Spencer's motion for extension of time and dismissed the habeas appeal, citing Rule 5:17(a)(1). Spencer v. Murray, No. 910055 (Va. March 18, 1991) (two documents). Because the reason for dismissing Spencer's habeas appeal given by the Virginia Supreme Court was a clearly stated adequate and independent state ground, federal habeas review of claims raised in his state habeas appeal is foreclosed unless those claims were otherwise exhausted by being raised on direct appeal. See Harris v. Reed, 489 U.S. 255, 262-63, 109 S.Ct. 1038, 1042-43, 103 L.Ed.2d 308 (1989); see also Coleman v. Thompson, --- U.S. ----, 111 S.Ct. 2546, 115 L.Ed.2d 640 (U.S.1991); Grundler v. North Carolina, 283 F.2d 798, 800 (4th Cir.1960) ("If a question is presented and adjudicated by the state's highest court once, it is not necessary to urge it upon them a second time under an alternate procedure."). The claims barred from consideration include the claims now made as we have detailed herein about the unreliability of the DNA evidence (issue 1), as well as the claim that the defense could not adequately prepare because the trial court did not provide a defense expert (a part of issue 2).

The claim that the defense could not adequately prepare because the trial court did not grant its request for discovery of Lifecodes' worknotes and memoranda (a part of issue 2) appears to have been raised on direct appeal, see Opening Brief of Appellant in the Supreme Court of Virginia, Nos. 890096 & 890097, at 10. We do not consider this claim, however, because it was not raised in the district court. McGowan v. Gillenwater, 429 F.2d 586 (4th Cir.1970) (per curiam). The claim that the defense could not adequately prepare because the prosecution, and its agent, Lifecodes, failed to disclose problems with Lifecodes' testing methods that they knew or should have known existed ³ (a part of issue 2) is not considered because it appears never to have been raised in any state court and therefore is not exhausted. See 28 U.S.C. Sec. 2254(b). Although one claim nominally has been denominated as a Brady claim in the federal habeas petition, the district court correctly held that to have been precluded from consideration by the late filing of the state habeas appeal.

The claims properly before us because they were raised in Spencer's direct appeal to the Virginia Supreme Court are issues 3, 4, and 5.

III Admissibility of the DNA Evidence

Spencer's first claim that we consider is whether Spencer was denied due process of law because the trial court improperly admitted the results of the DNA testing. It has been settled in this circuit for years that a claim about the admissibility of evidence under state law rarely is a claim upon which federal habeas corpus relief can be granted. In 1960 we decided:

Normally, the admissibility of evidence, the sufficiency of evidence, and instructions to the jury in state trials are matters of state law and procedure not involving federal constitutional issues. It is only in circumstances impugning fundamental fairness or infringing specific constitutional protections that a federal question is presented. The role of a federal habeas corpus petition is not to serve as an additional appeal.

Grundler v. North Carolina, 283 F.2d 798, 802 (4th Cir.1960).

The Supreme Court recently issued a similar holding in Estelle v. McGuire, --- U.S. ----, 112 S.Ct. 475, 116 L.Ed.2d 385 (U.S.1991). In McGuire, the Supreme Court was confronted with a ruling under California law that allowed prosecutors to introduce evidence of prior injuries to a child to prove "battered child syndrome" in the context of a murder trial. The Court of Appeals held that the defendant's due process rights were violated in part because the court concluded that the evidence was improperly admitted under state law. The Supreme Court stated that "[s]uch an inquiry" into the application of state evidence law

is no part of a federal court's habeas review of a state conviction. We have stated many times that federal habeas corpus relief does not lie for errors of state law. Today we reemphasize that it is not the province of a federal habeas court to reexamine state court determinations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United...