Derek Tice v. Gene Johnson

Filing 19

BRIEF filed by Appellant Gene M. Johnson in electronic and paper format. Type of Brief: Reply. Method of Filing Paper Copies: hand delivery. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 03/19/2010.. Is this a redacted brief?No. If yes, have you verified that the redacted material cannot be revealed by cutting and pasting text? N/A. [998302345] [09-8245] (SRM)

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Derek Tice v. Gene Johnson Doc. 19 Record No. 09-8245 In the United States Court of Appeals for the Fourth Circuit DEREK TICE, Petitioner-Appellee. v. GENE M. JOHNSON, Director Virginia Department of Corrections Respondent-Appellant, __________________________________ On Appeal from the United States District Court for the Eastern District of Virginia __________________________________ REPLY BRIEF KENNETH T. CUCCINELLI, II Attorney General of Virginia E. DUNCAN GETCHELL, JR. State Solicitor General STEPHEN R. MCCULLOUGH Virginia State Bar No. 41699 Senior Appellate Counsel smccullough@oag.state.va.us Counsel of Record VIRGINIA B. THEISEN Virginia State Bar No. 23782 Senior Assistant Attorney General March 19, 2010 CHARLES E. JAMES, JR. Chief Deputy Attorney General G. MICHAEL FAVALE Acting Deputy Attorney General OFFICE OF THE ATTORNEY GENERAL 900 East Main Street Richmond, Virginia 23219 Telephone: (804) 786-2436 Facsimile: (804) 786-1991 Counsel for Respondent /Appellant Dockets.Justia.com TABLE OF CONTENTS Page TABLE OF AUTHORITIES ......................................................................ii STATEMENT OF FACTS ......................................................................... 1 ARGUMENT ............................................................................................. 3 I. COUNSEL WERE NOT INEFFECTIVE FOR FAILING TO SEEK THE SUPPRESSION OF TICE'S FIRST CONFESSION ................................................................................ 3 A. Any factual findings by the state trial court receive no deference when that judgment is reversed ..................................................................................... 3 B. Counsels failure to recall the reason for a course of action at trial does not eviscerate the presumption of effective assistance. ........................................ 4 C. Tices plea negotiation statements exposed him to the risk of a devastating rebuttal. ................................ 5 D. Tices statement, in context, was ambiguous as to whether he was requesting a break from questioning to have time to think or whether he was invoking his right to remain silent.............................. 7 II. GIVEN THE DEFERENTIAL STANDARD OF REVIEW UNDER THE AEDPA, THE FINDING OF THE SUPREME COURT OF VIRGINIA OF NO PREJUDICE SHOULD BE SUSTAINED.......................................................... 10 CONCLUSION ........................................................................................ 15 CERTIFICATE OF COMPLIANCE WITH RULE 32(A) ....................... 17 CERTIFICATE OF SERVICE................................................................. 18 i TABLE OF AUTHORITIES Page CASES Arizona v. Strayhand, 911 P.2d 577 (Ariz. Ct. App. 1995) ........................................................ 9 Bynum v. Lemmon, 560 F.3d 678 (7th Cir. 2009) ................................................................. 13 Calhoun v. Virginia, 546 S.E.2d 239 (Va. Ct. App. 2001) ....................................................... 6 Campbell v. Kincheloe, 829 F.2d 1453 (9th Cir. 1987) ................................................................. 6 Griffin v. Warden, 970 F.2d 1355 (4th Cir. 1992) ................................................................. 7 Henning v. Thomas, 366 S.E.2d 109 (Va. 1988)...................................................................... 5 Lemmons v. Texas, 75 S.W.3d 513 (Tex. Ct. App. 2002)................................................. 9, 10 Maryland v. Shatzer, 175 L. Ed. 2d 1045, ___ U.S. ___, No. 08-680, 2010 WL 624042 (Feb. 24, 2010) ......................................................... 10 Moore v. Czerniak, 574 F.3d 1092 (9th Cir. 2009) ............................................................... 14 Robinson v. Florida, 707 So. 2d 688 (Fla. 1998) ..................................................................... 6 Strickland v. Washington, 466 U.S. 668 (1984) ............................................................................ 3, 4 Wiggins v. Smith, 539 U.S. 510 (2003) .............................................................................. 15 ii TABLE OF AUTHORITIES - CONTINUED Page Wisconsin v. Howard, 604 N.W.2d 304, 1999 WL 970857 (Wis. Ct. App. 1999) .............................................................................. 6 Wong v. Belmontes, 130 S. Ct. 383 (2009) ........................................................................ 4, 15 STATUTES 28 U.S.C. § 2254(e)(1) ................................................................................ 3 RULES VA. S. CT. R. 3A:8(C)(5) ............................................................................ 15 OTHER AUTHORITIES Black's Law Dictionary (7th ed. 1999) ...................................................... 6 iii REPLY BRIEF The Attorney General of Virginia submits this Reply Brief. For the reasons detailed below, the judgment of the district court should be reversed. STATEMENT OF FACTS A few factual matters merit mention. Tices view is that "this should have been a straightforward case for the police." Tice Br. 7. If the record shows anything, it is that this case is not simple and straightforward. Armed with the benefit of hindsight, Tice faults the police for ignoring Ballard and focusing initially on Danial Williams. Tice Br. 7-8. The police focused on Williams because, the night the victims body was discovered, police learned about his obsession with the victim and then, Williams­an adult in the military­confessed. App. 67-78, 723-34. As soon as Ballards connection with the crime came to the attention of law enforcement agents, they promptly investigated his involvement. App. 830; Tr. 9/12/06 at 326.1 On brief, Tice cites Ballards sworn testimony at the state habeas hearing that he acted alone in the crimes. Tice Br. 21. Ballard also testified at the hearing that he had consensual sex with the victim 1 1 Citing his own habeas testimony, Tice also contends that his interrogation was "highly coercive," Tice Br. 14, and that he was "being interrogated and worn down for almost 14 hours in police custody." Tice Br. 31. The state habeas court heard the evidence of purported coerciveness and rejected Tices testimony­a finding Tice did not appeal. App. 1074. While Tice was clearly in custody for more than 14 hours before he confessed, Tices own testimony established that he was not interrogated for 14 hours. During his travel from Florida to Norfolk, from 4:30 a.m. to 1:30 p.m., he was not interrogated except for two questions. Tr. 09/12/06 at 289. See also App. 1046. Tice also contends that Joseph Dick has "significantly limited mental capabilities." Tice Br. 11. For this proposition, Tice cites testimony proffered at the habeas trial that the state trial court excluded from the hearing. Tr. 9/11/2006 at 16. before he killed her, App. 871, 873, and that he had lied under oath App. 874. 2 ARGUMENT I. COUNSEL WERE NOT INEFFECTIVE FOR FAILING TO SEEK THE SUPPRESSION OF TICE'S FIRST CONFESSION. A. Any factual findings by the state trial court receive no deference when that judgment is reversed. Tice contends that the findings of the state trial court are entitled to deference under 28 U.S.C. § 2254(e)(1). The Virginia Supreme Court, however, granted the Directors appeal with respect to the claim that counsel were ineffective for failing to seek the suppression of Tices first confession. The judgment of the trial court was then reversed by the Supreme Court of Virginia. The judgment under review here is the judgment of the Supreme Court of Virginia. Tice argues that the Virginia Supreme Court did not "disturb" the circuit courts ruling regarding the performance prong of Strickland v. Washington, 466 U.S. 668 (1984). Tice Br. 40. However, the Virginia Supreme Court, following the directive of Strickland, addressed only the prejudice prong of the two-part test. See Strickland, 466 U.S. at 3 697. See also Wong v. Belmontes, 130 S. Ct. 383, 386 (2009).2 No deference is due to the circuit courts conclusion regarding the performance prong. Rather, that issue is subject to de novo review in federal habeas. B. Counsels' failure to recall the reason for a course of action at trial does not eviscerate the presumption of effective assistance. Lead counsel, a highly experienced criminal defense attorney, testified that he reviews all statements clients make to the police with the clients. App. 927-29, 923-26, 935-36. Counsel acknowledged that he had relinquished his files in Tices case to other counsel and had not seen them in several years. App. 929. He said that "there must have been some reason I didnt file" a motion to suppress on Miranda grounds, but he could not recall, "six years later, what that reason was." App. 911. Counsels failure to recollect does not reverse the presumption of effective assistance into a presumption of ineffective assistance. And here, the evidentiary record does include cogent reasons why competent counsel could decline to file a suppression Because a habeas petitioner is required to prove both prongs of the Strickland test in order to obtain relief, if the habeas court concludes that either prong has not been proved, the government will prevail. 2 4 motion: the ambiguity of Tices statement and avoiding opening the door to a devastating rebuttal case by the prosecution. C. Tice's plea negotiation statements exposed him to the risk of a devastating rebuttal. Tice asserts that it would have been "mere speculation as to whether the Commonwealth might have turned to the plea negotiation statements if the trial court had suppressed" Tices first confession. Tice Br. 54. With the first confession admissible, prosecutors were reluctant to inject an appellate issue into the case by introducing Tices other statements during the rebuttal phase. App. 1120-23. Had the first confession been suppressed, however, there can be no question that the prosecution would have sought to introduce these subsequent statements during the rebuttal phase of trial. To contend otherwise ignores the reality of criminal prosecutions. Tice contends that presenting evidence of his many subsequent statements would have been beyond the scope of rebuttal. Tice Br. 55. "The question whether or not to admit certain evidence in rebuttal is generally left to the sound discretion of the trial court." Henning v. Rebuttal Thomas, 366 S.E.2d 109, 114 (Va. 1988) (citation omitted). evidence is nothing more than ",,[e]vidence offered to disprove or 5 contradict the evidence presented by an opposing party." Calhoun v. Virginia, 546 S.E.2d 239, 241 (Va. Ct. App. 2001) (quoting Black's Law Dictionary 579 (7th ed. 1999)). Tices many statements would have been admissible to rebut introduction of DNA evidence offered to show that he was not at the scene of the crimes. That would certainly be relevant and responsive evidence. In Tices view, no reasonable counsel would forego suppressing a key piece of evidence because other­and even more damaging statements­might come in during rebuttal. Tice Br. 45. This assertion is insupportable. See, e.g., Campbell v. Kincheloe, 829 F.2d 1453, 1462 (9th Cir. 1987) (upholding counsels actions as reasonable because counsel sought to avoid ,,opening the door to possible damaging rebuttal evidence by the state."); Robinson v. Florida, 707 So. 2d 688, 697 (Fla. 1998) (noting that the trial court could have concluded that trial counsel was not ineffective in not opening the door to potentially devastating rebuttal evidence). Counsel must look at the entirety of the trial. A myopic focus on the case-in-chief could simply lead to a different claim of ineffective assistance of counsel. See Wisconsin v. Howard, 604 N.W.2d 304, 1999 WL 970857 (Wis. Ct. App. 1999) (table case) (inmate complaining that 6 "counsel was ineffective because he offered defense witnesses, thereby opening the door for the State to present rebuttal witnesses."). Griffin v. Warden, 970 F.2d 1355 (4th Cir. 1992), cited by the petitioner, does not support his position. In that case, counsel failed to file the required notice of alibi, and did not call alibi witnesses. Id. at 1356-57. This Court rejected the arguments that this decision was a matter of tactics, dismissing the arguments as "exercises in retrospective sophistry." Id. at 1358. That is because "no reasonable excuse for failing to notify the state of [the petitioner]s alibi and to secure the attendance of alibi witnesses appears or is even suggested in the evidentiary record. Indeed, [counsels] statements at the bench conference are unambiguous admissions of unpardonable neglect." Id. In contrast, the record here does suggest sound reasons for declining to file a suppression motion: success would have placed the petitioner in an untenable position tactically. D. Tice's statement, in context, was ambiguous as to whether he was requesting a break from questioning to have time to think or whether he was invoking his right to remain silent. Detective Crank recorded that Tice "asked me if he could have some time to think about it, if he decide to tell me could he talk to me 7 and Wray that he did not care for the other guy. He told me he decide not to say anymore, that he might decide to after he talks with a lawyer or spends some time alone thinking about it." App. 614. The petitioner contends that his statement contains "two distinct parts." Tice Br. 33. But the police officer, who is listening to the statement and acting on the spur of the moment, does not have the hindsight luxury of engaging in a detailed grammatical exegesis of an arrestees statement. Here, given the context­with police providing Tice with frequent breaks from questioning­and the totality of the statement, Tices statement is conditional and ambiguous with respect to a right to remain silent. It is not clear whether Tice was requesting a momentary break from questioning or was asking for questioning to cease altogether. The respondent does not suggest that the responsibility rests with the petitioner to "familiarize himself with principles of constitutional law" or to "issue-spot potential legal challenges." Tice Br. 39. Rather, Tice, an intelligent, "very engaged" client, never told his attorneys that he had invoked the right to remain silent. App. 961, 950-52. This, naturally, would have factored into the tactical calculus of counsel with respect to what happened between Tice and Detective Crank. 8 Tice cites a number of cases in which a person in custody made a statement invoking the right to silence or counsel. Tice Br. 32-33. None of the statements at issue in those cases was freighted with additional statements or a context that created a qualification or ambiguity as to an invocation of the right to remain silent. For example, in Arizona v. Strayhand, 911 P.2d 577 (Ariz. Ct. App. 1995), upon which Tice relies, Tice Br. 34, the suspect said "well I dont want [to] answer anymore. I mean Im in, fuck it." Strayhand, 911 P.2d at 588. That statement simply does not resemble Tices statement, which he began by asking for "time to think about it" and ended by saying that he might be willing to talk after he had some time to think about it. Finally, Tice says that the "cases cited by the Commonwealth have nothing to do with the precise question before this Court" because in those cases "the defendants statements in each of these cases suggested an equivocal desire to suspend present questioning." Tice Br. 35 n. 7 (emphasis in original). But that is precisely the import of Tices statement. The gravamen of Tices statement was a request for time to think or to consult with a lawyer, exactly the situation in Lemmons v. 9 Texas, 75 S.W.3d 513, 520 (Tex. Ct. App. 2002) (refusing to suppress statement on Miranda grounds).3 When a suspect unambiguously asks for questioning to cease, period, the police must honor that request. When the import of a suspects statement is for interrogation to temporarily cease, police do not violate the suspects constitutional rights by temporarily ceasing questioning and then resuming it after the defendant received or obtained his request, which is time to think. This does not penalize future cooperation, it simply respects the suspects wishes. II. GIVEN THE DEFERENTIAL STANDARD OF REVIEW UNDER THE AEDPA, THE FINDING OF THE SUPREME COURT OF VIRGINIA OF NO PREJUDICE SHOULD BE SUSTAINED. Tice contends that the fact that the charges against Pauley, Danser, and Farris were "nolle prossed" constitutes an implicit recognition that Dicks testimony would not suffice to carry the burden of proof. Tice Br. 45. However, these individuals stood on a different Maryland v. Shatzer, 175 L. Ed. 2d 1045, ___ U.S. ___, No. 08-680, 2010 WL 624042 (Feb. 24, 2010) is irrelevant. The Court there explained that police may not reinitiate questioning when a suspect makes an unequivocal invocation of the right to counsel, questioning must cease for 14 days. Id. at *4. The issue in Shatzer did not, as here, turn on a conditional or ambiguous invocation of the right to remain silent. 3 10 evidentiary footing. Pauley and Danser, for example, unlike Tice, produced substantial evidence of their whereabouts at the time of the crime. App. 497-553. The petitioner stresses the absence of DNA evidence tying him to the crime. As forensic expert Robert Scanlon testified, however, if there is no ejaculation, "typically I dont expect to detect anything." App. 451. A wealth of DNA evidence in every case is a staple of television shows, but it does not reflect the reality of criminal trials. Moreover, Dr. Kinnisons testimony is hardly dispositive of Tices single perpetrator theory. She testified it was possible that one person committed the crime and possible that multiple perpetrators did so. App. 189, 201. The multiple superficial knife wounds also are inconsistent with a violent career criminal seeking to dispatch his victim, but they are consistent with the Dicks account that each participant took turns stabbing the victim. The Supreme Court of Virginia recognized the unusual nature of Dicks testimony. Omar Ballard simply refused to testify once he received his two life sentences. App. 455-57. Dick easily could have done the same. Instead, in spite of his two life sentences, he voluntarily 11 testified against Tice. Dick explained that he did not initially mention Omar Ballard because he, understandably, was scared of him. App. 215. Dick further explained that the participants engaged in a pact not to say anything about the crime. App. 210, 215. Dicks account was bolstered by Tamika Taylors testimony regarding Danial Williams obsession with the victim, App. 75-78, 208, and intersected with an account of the events provided by Omar Ballard. Dick explained that "we all" had attempted to enter the victims apartment, and she refused to let them in. App. 209. The men went to the parking lot to smoke, and Omar Ballard arrived. App. 210, 490-92. It was then that the group, with Ballards help, made a pact to go into the apartment and rape the victim. App. 210-11, 490-92. Tice also states that during closing argument, "the prosecutors focused almost exclusively" on Tices confession. Tice Br. 22. During summation, the prosecution began by dismantling the single perpetrator theory. Tr. 01/29/03 at 158-67. The prosecutor then turned to Joseph Dicks testimony, stressing that it was "believable." Tr. 01/29/03 at 158-72, 171. The prosecutor did discuss Tices confession. Tr. 01/29/03 at 172-78. The prosecutor then returned to Joseph Dicks 12 testimony, stressing that he "was being truthful." Tr. 01/29/03 at 178. Defense counsel took a similar tack, addressing first the forensic evidence and the defense theory that Ballard was the sole perpetrator, and then turning to Dicks testimony. Tr. 01/29/03 at 180-212. Again during the rebuttal argument, the prosecution began by addressing the forensic evidence. Then the prosecution discussed Joseph Dicks testimony as well as the defendants confession. Tr. 01/29/03 at 229240. The record does not support Tices argument that the confession was the near exclusive focus of closing argument. Tice cites cases that do not resemble the case at bar. Joseph Dick was a participant in the crime, as he consistently acknowledged. This scenario does not resemble, for example, Bynum v. Lemmon, 560 F.3d 678 (7th Cir. 2009). In Bynum, had the defendants statement been suppressed, "the prosecution would have been left to depend on the testimony of a thirteen-year old boy who, after meeting Bynum only once, merely heard a voice from another room that he thought was Bynums." Id. at 684. Clearly, Joseph Dicks testimony stands on a different and much stronger footing. 13 Moore v. Czerniak, 574 F.3d 1092 (9th Cir. 2009), upon which Tice relies, does not shed any light on the present case. Judge Reinhardt, writing for the court, concluded that, due to a confession that should have been suppressed but was not, the petitioners guilty plea should be vacated. Id. at 1094. The court rejected the States argument that the petitioners two other "informal" confessions obviated any prejudice. Id. The court further held that the State had defaulted any other arguments of lack of prejudice based on additional evidence of guilt in the States possession. The court reached this conclusion over a vigorous dissent from denial of en banc review from a number of judges on the court. Id. at 1136, 1162. The procedural posture in Moore in no way resembles the case at bar. If anything, Moore appears to be an outlier decision. Finally, as noted above, Tice made additional and highly damaging statements. With Tices first confession admissible, and the prosecution already having suffered an appellate reversal, the prosecution did not employ these statements during a rebuttal case. See App. 1120-23. However, if Tice had gained suppression of his first confession, the prosecution would have been left with no choice but to 14 use these additional statements, which would have been admissible during the rebuttal phase of the case. Va. S. Ct. R. 3A:8(C)(5) (statements made in contemplation of plea negotiations not admissible during "case-in-chief."). Belmontes confirms that prejudice analysis is not a static construct, but should take into account the prosecutions response to defense moves. 130 S. Ct. at 383. That response would have been devastating here. At the end of the day, in order for a federal court to grant habeas relief and reject the state courts ruling, the state courts application of United States Supreme Court precedent "must have been more than incorrect or erroneous . . . . [It] must have been ,,objectively unreasonable." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citations omitted). Under this deferential standard, the decision of the Supreme Court of Virginia should not have been overturned. CONCLUSION For the reasons set forth above, the Judgment of the United States District Court for the Eastern District of Virginia granting habeas relief should be reversed. 15 Respectfully submitted, KENNETH T. CUCCINELLI, II Attorney General of Virginia E. DUNCAN GETCHELL, JR. State Solicitor General STEPHEN R. MCCULLOUGH Virginia State Bar No. 41699 Senior Appellate Counsel smccullough@oag.state.va.us Counsel of Record VIRGINIA B. THEISEN Virginia State Bar No. 23782 Senior Assistant Attorney General March 19, 2010 CHARLES E. JAMES, JR. Chief Deputy Attorney General G. MICHAEL FAVALE Acting Deputy Attorney General OFFICE OF THE ATTORNEY GENERAL 900 East Main Street Richmond, Virginia 23219 Telephone: (804) 786-2436 Facsimile: (804) 786-1991 Counsel for Defendant/Appellant 16 CERTIFICATE OF COMPLIANCE WITH RULE 32(A) 1. This brief has been prepared using fourteen point, proportionally spaced, serif typeface: Schoolbook, 14 point. 2. Microsoft Word 2007, Century Exclusive of the table of contents, table of authorities and the certificate of service, this brief contains 2,960 words. /s/Stephen R. McCullough Counsel 17 CERTIFICATE OF SERVICE This is to certify that on March 19, 2010, I electronically filed the foregoing REPLY BRIEF with the Clerk of Court using the CM/ECF System, which will send notice of such filing to the following registered CM/ECF users: CHRISTOPHER T. HANDMAN E. DESMOND HOGAN THOMAS J. WIDOR Hogan & Hartson, LLP 555 13th Street, N.W. Washington, DC 20004 Telephone:(202) 637-5600 Facsimile:(202) 637-5910 MELISSA N. HENKE Georgetown University Law Center 600 New Jersey Avenue, N.W. Washington, D.C. 20001 Telephone: (202) 661-6584 /s/ Stephen R. McCullough Counsel 18

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