Tuggle v. Netherland

• Citation: 79 F.3d 1386
• Decision Date: 03 April 1996
• Docket Number: No. 94-4005,94-4005
• Parties: Lem David TUGGLE, Petitioner-Appellee, v. J.D. NETHERLAND, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1386

79 F.3d 1386

Lem David TUGGLE, Petitioner-Appellee, v. J.D. NETHERLAND, Warden, Respondent-Appellant.

No. 94-4005.

United States Court of Appeals, Fourth Circuit.

Argued March 12, 1996.

Decided April 3, 1996.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, District Judge. (CA-92-737-R)

ARGUED: Donald Richard Curry, Senior Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellant. Timothy Michael Kaine, Mezzullo & McCandlish, Richmond, Virginia, for Appellee. ON BRIEF: James S. Gilmore, III, Attorney General of Virginia, Office of the Attorney General, Richmond, Virginia, for Appellant. Helen L. Konrad, Mezzullo & McCandlish, Richmond, Virginia; Donald R. Lee, Jr., Virginia Capital Representation Resource Center, Richmond, Virginia, for Appellee.

Before WIDENER and HAMILTON, Circuit Judges, and CHAPMAN, Senior Circuit Judge.

Remanded with instructions by published opinion. Judge HAMILTON wrote the opinion, in which Judge WIDENER and Senior Judge CHAPMAN joined.

OPINION

HAMILTON, Circuit Judge.

In Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 1096, 84 L.Ed.2d 53 (1985), the Supreme Court held, inter alia, that when the prosecutor in a capital sentencing hearing presents psychiatric evidence of an indigent defendant's future dangerousness, due process requires that the state provide the defendant expert psychiatric assistance. This case, which is before us on remand from the Supreme Court of the United States, see Tuggle v. Netherland, --- U.S. ----, 116 S.Ct. 283, 133 L.Ed.2d 251 (1995), presents the questions of whether harmless-error analysis is applicable to this type of Ake error, and, if so, whether the error was harmless in this case. We conclude this type of Ake error is amenable to harmless-error analysis and that the Ake error in this case was harmless under the harmless-error standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Accordingly, we remand the case to the district court with instructions to dismiss Tuggle's petition for writ of habeas corpus, see 28 U.S.C. § 2254.

I

In 1984, Lem Davis Tuggle was convicted of capital murder committed during or subsequent to the rape of Jessie Geneva Havens. As recounted by the Virginia Supreme Court on direct appeal, the facts surrounding Havens' murder are:

In the early morning of June 2, 1983, State Trooper R.M. Freeman was dispatched to an area on Interstate Highway 81 in Pulaski County to look for a black pickup truck equipped with a camper. Shortly after his arrival, Freeman stopped a truck meeting that description and recognized Tuggle as the driver. When the trooper asked the defendant if he had been near the Riverside Exxon Station, Tuggle responded: "Yes, I robbed it, the money's in my pocket, the gun's in the truck."

Thereupon, Freeman took possession of a .25 caliber automatic weapon. (Ballistics tests established that this gun fired the bullet which killed Havens.) While Freeman was taking Tuggle to the Pulaski County Sheriff's Office, Tuggle volunteered that he was connected with a missing person's report relating to Jessie Havens and said that he would have a "long talk" with Smyth County authorities later.

Later that morning, a Smyth County Sheriff's Office investigator interviewed Tuggle concerning Havens' disappearance. The officer advised Tuggle of his Miranda rights. Tuggle waived these rights and told the officer that he could find Jessie Havens over a bank at a certain spot on Hubble Hill Road near Seven Mile Ford. When the officer asked the defendant what had happened to Havens, Tuggle responded: "I don't know but she's there." The defendant then told the officer that he did not want to discuss the matter further until he had spoken to an attorney. He specifically stated: "From past experience, I would like to talk to an attorney. I'll probably tell you the full story later."

Approximately 9:30 a.m. on June 2, the investigator went to the place where Tuggle said Havens would be found. He found Havens' body at the site. Havens was clad in jeans "down around her knees," a blue and white striped blouse "pulled up to about the armpits," and "black silk panties ... rolled down somewhat." A portion of the victim's pantyhose was "sticking out of the top" of her jeans, and one of her legs was out of the pantyhose.

An autopsy revealed that the victim's body had an abrasion and a bruise on the left frontal area of the forehead, a small abrasion on the right frontal area of the forehead, an abrasion on the neck, a bite mark on the lower, inner quadrant of the right breast, a number of small bruises on the upper, inner aspect of the right arm, and a bruise on the right thumb and right wrist. Havens also had sustained a large bruise on the upper, inner thigh, bruises on the vaginal vault at the posterior aspect and near the bottom, and a gunshot wound in the chest.

According to the medical examiner, "the bruises of the vagina indicate penetration of the vaginal vault by something, a penis, a finger, an object, something." The medical examiner testified that both the bite mark on the breast and the bruising around the vagina occurred while Havens was alive. He also testified that no semen or spermatozoa was found in Havens' vagina, but that semen was found in the rectum, indicating "penetration and ejaculation into the rectum."

A forensic odontologist testified that he examined the bite mark on the victim's right breast. He compared the mark with models of Tuggle's teeth and concluded "with all medical certainty these marks on the body of Ms. Havens were made by the teeth of Mr. Tuggle." He further opined that Havens was alive and moving when she was bitten.

Tuggle v. Virginia, 228 Va. 493, 323 S.E.2d 539, 543-44 (1984) (Tuggle I ).

At Tuggle's sentencing hearing, the state introduced evidence on the two aggravating circumstances, "vileness" and "future dangerousness," either of which will support the imposition of death as punishment for murder under Virginia law. ¹ As to the "vileness" aggravating circumstance, the state relied on the circumstances surrounding the murder, which included rape, sodomy, and a gunshot wound to the chest. As to the "future dangerousness" aggravating circumstance, the state introduced: (1) evidence that Tuggle murdered Havens while on parole for murder; (2) evidence of Tuggle's criminal history, which in addition to another murder, included escape and armed robbery; and (3) the psychiatric testimony of Dr. Centor, a licensed clinical psychologist, who testified that Tuggle demonstrated "a high probability of future dangerousness." (J.A. 202). After its deliberations, the jury found both the "vileness" and "future dangerousness" aggravating circumstances were established and exercised its discretion to sentence Tuggle to death.

Tuggle's conviction and sentence were affirmed by the Virginia Supreme Court on direct appeal. See Tuggle I, 323 S.E.2d at 554. On appeal to the Supreme Court of the United States, the Court vacated the judgment of the Virginia Supreme Court and remanded the case for further consideration in light of Ake. See Tuggle v. Virginia, 471 U.S. 1096, 105 S.Ct. 2315, 85 L.Ed.2d 835 (1985) (summary disposition). In Ake, the Court held that due process, under certain circumstances, requires the states to provide an indigent criminal defendant with expert psychiatric assistance. The Court held:

[W]hen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.

470 U.S. at 83, 105 S.Ct. at 1096. Additionally, the Court held that when the prosecutor in a capital sentencing hearing presents psychiatric evidence of an indigent defendant's future dangerousness, due process requires that the state provide the defendant expert psychiatric assistance. Id. Because Tuggle had been denied expert psychiatric assistance after the state introduced Dr. Centor's testimony, the Supreme Court vacated the Virginia Supreme Court's judgment and remanded the case in light of Ake.

On remand, because of the Ake error, the Virginia Supreme Court merely invalidated the future dangerousness aggravating circumstance. See Tuggle v. Virginia, 230 Va. 99, 334 S.E.2d 838, 844-46 (1985) (Tuggle II ). Notwithstanding the Ake error, the Virginia Supreme Court in Tuggle II reaffirmed Tuggle's death sentence, id. 334 S.E.2d at 845-46, relying on Zant v. Stephens, 462 U.S. 862, 884, 103 S.Ct. 2733, 2746, 77 L.Ed.2d 235 (1983), which held that if one aggravating circumstance supports a death sentence in a "non-weighing" state, like Virginia, the sentence need not be vacated merely because the jury also found an invalid aggravating circumstance. The Virginia Supreme Court reasoned that the death sentence could stand under Zant because the jury, in addition to finding the "future dangerousness" aggravating circumstance, found the "vileness" aggravating circumstance. Tuggle II, 334 S.E.2d at 845-46. In Tuggle II, the Virginia Supreme Court reviewed the evidence as to vileness and stated:

In Tuggle, the jury made a separate, specific finding that the "vileness" predicate had been proved beyond a reasonable doubt. Although Ake requires the conclusion that the trial court erred in denying Tuggle an independent psychiatrist once the Commonwealth had submitted psychiatric evidence on the issue of future dangerousness, we hold, nonetheless, that the error neither impairs nor invalidates the jury's finding of vileness.

Id. 334 S.E.2d at 846.

Tuggle filed a petition for a writ of certiorari in the Supreme Court of the United States. This petition was denied on June 30, 1986. See Tuggle v. Virginia, 478 U.S. 1010, ...