Tuggle v. Thompson

• Decision Date: 29 June 1995
• Docket Number: No. 94-4005,94-4005
• Citation: 57 F.3d 1356
• Parties: Lem Davis TUGGLE, Petitioner-Appellee, v. C.E. THOMPSON, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1356

57 F.3d 1356

Lem Davis TUGGLE, Petitioner-Appellee, v. C.E. THOMPSON, Warden, Respondent-Appellant.

No. 94-4005.

United States Court of Appeals Fourth Circuit.

Argued Feb. 2, 1995.

Decided June 29, 1995.

ARGUED: Donald Richard Curry, Sr. Asst. Atty. Gen., Office of Atty. Gen., Richmond, VA, for appellant. Timothy Michael Kaine, Mezzullo & McCandlish, Richmond, VA, for appellee. ON BRIEF: James S. Gilmore, III, Atty. Gen. of Virginia, Richard B. Smith, Asst. Atty. Gen., Office of Atty. Gen., Richmond, VA, for appellant. Helen L. Konrad, Mezzullo & McCandlish, Richmond, VA; Barry A. Weinstein, Donald R. Lee, Jr., Virginia Capital Representation Resource Center, Richmond, VA, for appellee.

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

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

OPINION

CHAPMAN, Senior Circuit Judge:

This is an appeal by the warden of the Mecklenburg Correctional Center from a judgment of the United States District Court for the Western District of Virginia which granted a writ of habeas corpus to Lem Davis Tuggle (Tuggle), who was convicted of capital murder committed during or subsequent to the rape of Mrs. Jessie Geneva Havens and was given a death sentence. The murder and rape occurred on or about May 28, 1983.

The verdict and sentence resulted from a jury trial which concluded on March 21, 1984. Tuggle's conviction and sentence were affirmed by the Supreme Court of Virginia on November 30, 1984. Tuggle v. Virginia, 228 Va. 493, 323 S.E.2d 539 (1984) (Tuggle I ). A writ of certiorari was filed with the Supreme Court of the United States. On May 13, 1985, the court, in a summary disposition, held "[M]otion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Ake v. Oklahoma, 470 U.S. 68 [105 S.Ct. 1087, 84 L.Ed.2d 53] (1985)." Tuggle v. Virginia, 471 U.S. 1096, 105 S.Ct. 2315, 85 L.Ed.2d 835 (1985).

Upon remand, the parties briefed and argued to the Supreme Court of Virginia the issue of Ake 's impact on Tuggle's conviction and sentence. In Tuggle v. Virginia, 230 Va. 99, 334 S.E.2d 838 (1985) (Tuggle II ), the court held that the trial court had erred under Ake in failing to provide Tuggle with an independent psychiatrist to assist him at the penalty-stage of the trial, and as a result, the jury's finding of "future dangerousness" could not stand; however, the court concluded that the jury's separate finding of "vileness" was sufficient and independently supported Tuggle's death sentence under Virginia law and under Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). Tuggle II, 334 S.E.2d at 844-46.

Tuggle again petitioned for a writ of certiorari in the Supreme Court of the United States and raised most of the issues upon which the United States District Court ultimately granted the Great Writ; however, this petition was denied on June 30, 1986. Tuggle v. Virginia, 478 U.S. 1010, 106 S.Ct. 3309, 92 L.Ed.2d 722 (1986).

Tuggle then filed for habeas corpus in the criminal court of Smyth County, and after briefing and oral argument, the court denied and dismissed his petition. The Supreme Court of Virginia refused his petition to appeal on November 14, 1991, and his third petition for certiorari was denied by the Supreme Court of the United States on April 20, 1992. Tuggle v. Bair, 503 U.S. 989, 112 S.Ct. 1681, 118 L.Ed.2d 397 (1992).

On September 25, 1992, claiming constitutional errors in his trial, Tuggle filed his habeas corpus petition in the United States District Court for the Western District of Virginia.

On June 8, 1994, the district court granted Tuggle's petition, vacated his conviction and sentence, and ordered the Commonwealth to retry him within six months. Shortly thereafter, the district court granted the Commonwealth's motion to stay the retrial and release pending appeal to this court.

We have had the benefit of excellent briefs and oral arguments of counsel, and we find that the district court made numerous errors of law in granting Tuggle habeas corpus relief. Therefore, we reverse and remand this action to the district court with instructions to dismiss the petition.

I.

The facts relating to Tuggle's guilt were uncontroverted as he presented no evidence at that stage of the trial. The Virginia Supreme Court summarized the facts as follows:

On Saturday night, May 28, 1983, Tuggle attended a dance at the American Legion Lodge in Marion, and upon his arrival, he asked if he could "check" a gun. He was advised that he could not. Tuggle was told that he should lock the gun in the trunk of his car. He left the building briefly, and when he returned, said, "That's taken care of."

The victim, Jessie Geneva Havens, and two friends also were at the dance. The defendant introduced himself to them as David Tuggle. He sat at a table with the three women and danced with them throughout the evening.

When the dance ended at 1:00 a.m. Sunday, Havens' two friends left together and she left with Tuggle. The defendant had agreed to drive Havens to her home; she advised him that she had to go directly home because her granddaughters were staying with her. As her two friends were leaving the parking lot, they observed that Havens was standing next to the passenger side of the defendant's automobile, and Tuggle was opening the trunk. Havens was wearing blue jeans, a blue and white striped blouse, and moccasin-type shoes.

Shortly thereafter, State Trooper G.N. Smith stopped the defendant's automobile because it was weaving on the highway near Seven Mile Ford in Smyth County. Tuggle was driving, and the trooper observed a large, middle-aged, white female sitting in the front seat of the automobile "right next to the driver." The woman was wearing jeans and a blue, green, or aqua blouse. After the trooper determined that the defendant was not intoxicated, Tuggle drove away in the direction of Hubble Hill Road. Havens never returned home, and at six o'clock that evening, the police were notified that she was missing.

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 I, 323 S.E.2d at 543-44.

The trial was conducted from January 17-19, 1984, and in the penalty phase, the jury found both "future dangerousness" and "vileness" which are statutory predicates to a death sentence in Virginia. See Va.Code Ann. Sec. 19.2-264.2 (1990). The trial court confirmed the jury's verdict and sentenced Tuggle to death on March 21, 1984. He appealed his conviction and...