Tuggle v. Thompson

• Decision Date: 08 June 1994
• Docket Number: Civ. A. No. 92-0737-R.
• Citation: 854 F. Supp. 1229
• Parties: Lem Davis TUGGLE, Petitioner, v. C.E. THOMPSON, Respondent.
• Court: U.S. District Court — Western District of Virginia

854 F. Supp. 1229

Lem Davis TUGGLE, Petitioner, v. C.E. THOMPSON, Respondent.

Civ. A. No. 92-0737-R.

United States District Court, W.D. Virginia, Roanoke Division.

June 8, 1994.

COPYRIGHT MATERIAL OMITTED

Helen L. Konrad, Timothy Kaine, Mezzullo & McCandlish, Richmond, VA, for petitioner.

Robert Bartos Condon, Office of the Atty. Gen., Richmond, VA, for respondent.

Memorandum Opinion

TURK, District Judge.

Petitioner Lem Davis Tuggle, through counsel, has filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, Tuggle claims that the following constitutional errors tainted his conviction and sentence:

1) The trial court failed to appoint an independent psychiatrist and an expert pathologist to assist in the preparation of Tuggle's defense;

2) The conduct of the trial court and the prosecution worked to deny Tuggle of his right to a trial by an impartial jury;

3) There was insufficient evidence to convict Tuggle of murder during the commission of rape 4) The trial court erred in allowing Dr. Arthur Centor to testify that Tuggle posed a "future danger" to society because such testimony was based on discussions with Tuggle outside the presence of counsel without a waiver of his Fifth and Sixth Amendment rights;

5) The prosecutor argued that Tuggle should be put to death because he would otherwise be released on parole;

6) The "vileness" instruction given to the jury was unconstitutionally vague;

7) The trial court prevented Tuggle's appointed trial counsel from rendering effective assistance of counsel to Tuggle at trial because it prohibited them from presenting the kind of defense to which their client was constitutionally entitled;

8) Tuggle's conviction and sentence were so infected with error as to deprive him of the protections provided by the Eighth Amendment;

9) The Virginia Supreme Court upheld Tuggle's death sentence after striking the "future dangerousness" aggravating circumstance;

10) The Virginia death penalty statute is unconstitutional because of the vagueness of the "vileness" aggravating circumstance.

Petitioner requests that the court set aside his conviction and sentence of death.

Respondents, through counsel, filed a motion to dismiss the petition on November 12, 1992. Petitioner, through counsel, responded to the motion on March 12, 1993. Petitioner also filed a separate motion requesting that an evidentiary hearing be held on the motion. A hearing was held on March 15, 1994. After hearing and considering the arguments of counsel on that date, the court finds this case to be ripe for disposition.

Procedural History

Petitioner was charged with capital murder in the Circuit Court of Smyth County in 1983. The Commonwealth alleged that he committed the murder of Jessie Geneva Havens during the commission of rape.¹ Petitioner was represented at trial by two court-appointed counsel: Joseph S. Tate and John H. Tate, Jr. On January 18, 1984, petitioner was convicted of capital murder.² On January 19, 1984, the sentencing jury concluded that the crime was vile and that Tuggle posed a future danger. Based on these statutory "aggravating circumstances," the jury recommended a sentence of death. The trial court imposed that sentence on March 22, 1984.

Tuggle appealed his conviction and sentence to the Virginia Supreme Court. On November 30, 1984, that Court, after conducting mandatory sentence review, affirmed the lower court judgment based on the presence of both statutory aggravating circumstances. Tuggle v. Commonwealth, 228 Va. 493, 323 S.E.2d 539 (1984).

Petitioner filed a petition for writ of certiorari to the United States Supreme Court. The Supreme Court vacated the sentence and remanded the case to the Virginia Supreme Court in light of its holding in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).³ Tuggle v. Virginia, 471 U.S. 1096, 105 S.Ct. 2315, 85 L.Ed.2d 835 (1985).

On remand, the Virginia Supreme Court found that the sentencing was unconstitutional because the prosecution psychiatrist had testified as to petitioner's "future dangerousness," despite the fact that petitioner had been denied the appointment of an independent psychiatrist to help him prepare a defense. Tuggle v. Commonwealth, 230 Va. 99, 107-08, 334 S.E.2d 838, 843-44 (1985). Moreover, the Virginia Attorney General conceded that petitioner was entitled to a new sentencing on the basis of Ake.⁴ Rather than granting a new sentencing, the Virginia Supreme Court struck down the "future danger" aggravating circumstance, but held that the jury's finding of "vileness" independently supported the death sentence. 230 Va. at 111, 334 S.E.2d at 846. The Court did not discuss the effect that the improper psychiatric testimony had on petitioner's sentencing jury, nor did it reconduct a sentence review after the "future dangerousness" aggravator was eliminated.⁵ Tuggle petitioned for a rehearing, but his petition was denied on October 11, 1985.⁶

In October 1986, petitioner filed a petition for writ of habeas corpus in the Circuit Court of Smyth County. The court dismissed the petition, without an evidentiary hearing, on March 18, 1991. Petitioner filed a Petition for Appeal in the Virginia Supreme Court which was dismissed by an unpublished order on November 14, 1991. Petitioner then filed a petition for writ of certiorari with the United States Supreme Court which was denied on April 20, 1992. Tuggle v. Bair, ___ U.S. ___, 112 S.Ct. 1681, 118 L.Ed.2d 397 (1992). The instant petition is the first Tuggle has filed in federal court.

Factual Background

The offense for which petitioner was convicted occurred on May 29, 1983. The victim was Jessie Geneva Havens. The facts from the original trial court proceeding indicated that petitioner had met Havens at a dance on May 28, 1983 and had offered to give Havens a ride home, which she accepted. When Havens did not return home, the police were notified that she was missing.

The next day, Tuggle volunteered to police that he was connected with a missing persons report relating to Jessie Havens. Tuggle told police that he did not know what had happened to Havens, but he did know where her body was located. The police then went to the place where Tuggle had said Havens body would be and found her partially-clothed body. Petitioner was subsequently charged with murder during the commission of rape, sodomy and use of a firearm to commit murder.

Several months prior to trial, petitioner's trial counsel filed a motion for the appointment of various experts, including a pathologist, a forensic serologist, a ballistics examiner and an odontologist, to examine the scientific evidence on behalf of the defense. The trial court denied petitioner's motion.

Petitioner's trial counsel later filed a motion for the appointment of a mental health professional to examine petitioner's sanity at the time of the offense and his competence to stand trial. The court granted this motion and ordered state mental health professionals to examine petitioner with respect to these two issues. Based on the court's order, the state doctors obtained a waiver from petitioner. The doctors, including Dr. Arthur Centor, interviewed petitioner and informed the court that, in their opinion, petitioner was sane and could assist in his own defense. The state doctors also informed the court that they had formed an opinion as to Tuggle's "future dangerousness."

Fourteen days before trial, Tuggle's counsel was informed of Centor's opinion. They immediately requested the appointment of an independent psychiatrist to assist Tuggle in his defense to the capital murder charge. The trial court denied the request. Trial counsel then offered to pay for such an investigation from their own funds and requested that the court transfer Tuggle to a county jail in the community where their expert was located. The trial court again denied the motion.

Several weeks before trial, Tuggle's trial counsel moved for a change of venue due to the extensive publicity that the case had received in the months leading up to trial. Some of the publicity reported that petitioner had previously been convicted of second-degree murder and at least one article mistakenly indicated that the prior conviction also included rape. Another article repeated this information and also indicated that Tuggle was a suspect in the rape of a 15 year-old girl for which he was never charged. The trial court denied the motion, but conditioned the denial on the ability to select an unbiased jury during voir dire.

The jury panel in petitioner's case was chosen from a venire that had previously been called for duty in other cases during the same month. On the night before the trial, John Tate learned from a call from a potential juror that some members of the panel from which the Tuggle jury was selected had been contacted by a member of the Sheriff's Department and by Terry Hawthorne, a reporter for the Smyth County News, apparently concerning their performance as jurors in a murder trial that had occurred a few days earlier. In that trial, the defendant had been convicted of a lesser crime than the first-degree murder charge and the prosecutor had expressed his dissatisfaction with the jury verdict to a local reporter. Tate refused to discuss the matter with the juror.

The next day, however, Tuggle's counsel revealed to the trial court that some members of the jury venire had been contacted concerning their service on the previous jury. Counsel asked for the opportunity to voir dire the jury about such contacts or to summon the reporter who had contacted members of the venire for questioning. The trial court denied both requests. Tuggle's counsel also sought the opportunity to voir dire members of the jury panel individually about pretrial publicity, so as to explore the effects of such publicity without infecting other potential jurors with bias. The trial court again denied counsel's request.

When the...