Tice v. Johnson
| Citation | 647 F.3d 87 |
| Decision Date | 20 April 2011 |
| Docket Number | No. 09–8245.,09–8245. |
| Parties | Derek Elliott TICE, Petitioner–Appellee,v.Gene M. JOHNSON, Director of Virginia Department of Corrections, Respondent–Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
OPINION TEXT STARTS HERE
ARGUED: Stephen R. McCullough, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellant. Christopher Todd Handman, Hogan Lovells US LLP, Washington, D.C., for Appellee. ON BRIEF: Kenneth T. Cuccinelli II, Attorney General of Virginia, E. Duncan Getchell, Jr., State Solicitor General, Virginia B. Theisen, Senior Assistant Attorney General, Charles E. James, Jr., Chief Deputy Attorney General, Steven T. Buck, Deputy Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellant. Melissa N. Henke, Georgetown University Law Center, Washington, D.C.; E. Desmond Hogan, Thomas J. Widor, Liana G.T. Wolf, Hogan & Hartson, LLP, Washington, D.C., for Appellee.Before NIEMEYER and KING, Circuit Judges, and ROBERT J. CONRAD, JR., Chief United States District Judge for the Western District of North Carolina, sitting by designation.
Affirmed by published opinion. Judge KING wrote the opinion, in which Judge NIEMEYER and Judge CONRAD joined.
William Bosko, stationed aboard the frigate USS Simpson following Navy basic training, debarked to the pier in Norfolk, Virginia, during the afternoon of July 8, 1997, having spent the week at sea. Bosko hoped to reunite at the pier with his bride of three months, Michelle. When Michelle failed to show up, Bosko supposed that his wife had started her new job and was unable to meet him as arranged, so he took a taxicab to the apartment they shared.
Bosko called out to Michelle as he entered the apartment, but he received no response. He looked for a note but found none. Bosko decided to shower, change clothes, and surprise Michelle at work. As he strode into the bedroom, Bosko discovered his lifeless wife on the floor, clad only in a black T-shirt and lying in her own blood. Someone had strangled Michelle while using a steak knife to stab her several times in the chest. The police found the bloody knife under a chest of drawers, the serrated blade bent at nearly a right angle to its handle.
Two weeks earlier, another woman living nearby had been severely beaten. Ten days after Michelle's murder and scarcely more than a mile away, a 14–year–old girl was raped. On March 22, 2000, Omar Ballard, who was by then serving a long prison sentence for both of those crimes, pleaded guilty to the rape and murder of Michelle Bosko. In return for Ballard's guilty pleas, prosecutors agreed to forgo any attempt to have him put to death. Ballard had confessed to the Bosko murder not long after being confronted with a letter he wrote a female acquaintance from prison:
And one last thing you Remember that night i went to Mommie's house and the Next morning Michelle got killed guess who did that, Me HA, HA. It wasn't the first time.... if i was out i would have killed that Bitch down the street from you too.
Upon being forwarded the letter, the police had a forensic lab compare DNA extracted from Ballard's blood to that derived from biological samples taken from Michelle's vagina and beneath her fingernails, and from a blanket used to cover her. In each and every instance, the DNA found at the crime scene was highly correlative to that of Ballard. For his despicable acts against Michelle Bosko, Omar Ballard was sentenced to serve the rest of his life in prison.
This appeal, though inextricably entwined with the Bosko murder, has almost nothing to do with Omar Ballard. It is instead an appeal by the Director of the Virginia Department of Corrections (the “Director”) of the district court's grant of a writ of habeas corpus to the appellee, Derek Elliott Tice, who has twice been convicted in the Circuit Court for the City of Norfolk of raping and murdering Michelle Bosko. The first time was on February 14, 2000, following a jury trial conducted by Judge Charles E. Poston. That conviction, however, was overturned by the Court of Appeals of Virginia, which concluded that Tice's jury had been improperly instructed. See Tice v. Commonwealth, 38 Va.App. 332, 563 S.E.2d 412 (2002).
On January 31, 2003, on retrial before Judge Poston, a different jury found Tice guilty of rape and murder, for which he was sentenced to concurrent terms of life imprisonment. At this second trial, the Commonwealth built its case on two evidentiary pillars. The first was the eyewitness testimony of Joseph Dick, who, in 1999, had himself pleaded guilty to Michelle's rape and murder. Dick lived with Danial and Nicole Williams, in an apartment catercornered to that where the Boskos resided. According to Dick, on the evening before Michelle's body was discovered, he was at his apartment with Danial Williams, Eric Wilson, and four other men whom Dick hardly knew: Geoffrey Farris, Rick Pauley, John Danser, and Tice. After listening to Williams speak provocatively about Michelle, the seven men became excited and knocked on her door, but she would not let them enter. The group dispersed to the parking lot, where they encountered Ballard, whom Michelle had met and trusted. Ballard knocked on Michelle's door, and when she opened it, everyone rushed in. Dick testified that all of the men raped Michelle and then took turns stabbing her.
The second pillar was Tice's own signed confession, given to Detective Robert G. Ford of the Norfolk Police Department, on June 25, 1998:
Q. Tell me in your own words what you know in reference to this offense.
A. Okay. On the night in question Rick Pauley and myself went over to Daniel [sic] Williams' apartment planning on going to a bar called the Ban [que]. When we got there Daniel's [sic] wife, Nicole, was feeling ill, so we decided to stay there and talk. Nicole went to bed.
The guys, which was Daniel [sic] Williams, Eric Wilson, Joseph Dick, Jeffrey Farris, Rick Pauley, and myself, were there talking, and we got onto the subject of females. We talked about which ones we'd like to have, if we could. Daniel [sic] Williams talked about Michelle and wanting her above all other females.
* * *
We then sat down and decided what all was going to be done. I made the statement that if we did this that we shouldn't leave her alive.
* * *
We went over. It was either Eric or Dan with their thumb over the peep hole of her door. Myself, I believe it was Dan and Jeff, also knocked on the door. Because she could not see through the peep hole she asked who it was. Dan made the statement that it was himself and some friends, and that we had come over to talk. She said that she didn't want to talk and to leave her alone. I made the statement that all we wanted to do was to come in and talk. She refused.
At that time Daniel [sic] Williams left, came back with a claw hammer. Him and Jeff clawed at the door. The rest of us pushed our way inside. Dan was the first one inside, grabbed her around the back of the head and around the mouth so she couldn't scream.
When the rest of us got inside, we disrobed her, held her down.... Dan was the first to have intercourse with her, I was the second, Eric was third. It was Jeff, Joe, and then Rick.
After that a couple of us had forgotten about the killing of Michelle as planned. She started to get up. Jeff and Joe, as well as Dan, proceeded to bring her on up to standing. Dan started to strangle her, keep her from talking and to kill her. I made the statement that she could just pass out and she could still live. I also made the statement to just get a knife and stab her.
Jeff went, grabbed the knife from the kitchen— Q. Do you remember your exact words at that point?
A. Just go ahead and stab the bitch, I believe is what I said.
When Jeff came back, he stabbed her. Cupped her mouth with his hand so she could not scream, then Dan stabbed her, I stabbed her, then Eric stabbed her, Joe stabbed her, and Rick Pauley also stabbed her.
* * *
Q. Did Michelle Bosko fight the entire time?
A. Yes, sir, she did put up a struggle the whole time.
Q. Was she pleading with you all to leave her alone?
A. We could not tell, because the whole time she was kept from saying anything by hands being put over her mouth, but I could see in her eyes that she was pleading for help.
* * *
Q. You were the second to rape her; is that correct?
A. Yes, sir.
Q. Did you ejaculate?
A. Yes, sir.
* * *
Q. And before the six of you went to this house you had decided that you were going to rape and kill Michelle Bosko; is that correct?
A. Yes, sir.
J.A. 600–08.1 Tice's graphic and poignant account of what occurred in Michelle's apartment could not fail to resonate with any jury, but his recitation contains three incontrovertible errors or omissions of fact. First, there was no evidence of forced entry into the premises, whether from marks made by a claw hammer or otherwise. Second, although Tice said that he ejaculated, the only DNA evidence found at the crime scene was linked to Omar Ballard; Tice and his alleged confederates were all flatly ruled out as donors of the tested samples. Third, Ballard undeniably raped Michelle, but one will search in vain to find Ballard's name or any reference to him anywhere in Tice's confession.
In his questions to Detective Ford concerning Tice's confession and again during closing argument, defense counsel James Broccoletti aimed skillful jabs at his client's affirmative misstatements. But it was during his cross-examination of Joseph Dick that Mr. Broccoletti landed several haymakers. Dick had concluded his testimony on direct examination by averring that no one had promised him anything in exchange for his testimony, but counsel effectively impeached that assertion by confronting Dick with his plea agreement. The agreement permitted Dick to plead guilty to first-degree murder and thereby avoid trial on the initial charge of capital murder;...
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