Smith v Sielaff Brief in Opposition to Petition for Writ of Certiorari

    NO. 85-5487

IN THE
SUPREME COURT OF THE UNITED STATES

October Term, 1985

MICHAEL MARNELL SMITH,
Petitioner,

v.

ALLYN R. SIELAFF, DIRECTOR,
VIRGINIA DEPARTMENT OF CORRECTIONS, •

Respondent.

BRIEF IN OPPOSITION TO PETITION 
FOR A WRIT OF CERTIORARI

WILLIAM G. BROADDUS 
Attorney General of Virginia

JAMES E. KULP*
Senior Assistant Attorney General 
101 North Eighth Street 
Richmond, Virginia 23219
(804) 786-6565

*Counsel of Record



QUESTIONS PRESENTED

1. Whether Petitioner is entitled to have his 
Fifth Amendment claim considered by federal 
courts where he failed to raise the claim 
pursuant to state procedural rules.

2. Whether the Fifth Amendment is implicated 
when the state introduces testimony of 
Petitioner's volunteered statement to a 
private psychiatrist.

3. Whether Petitioner received the effective 
assistance of counsel during sentencing.

4. Whether the instructions during the 
sentencing phase were adequate.

i



TABLE OF CONTENTS

Page

QUESTION PRESENTED.................................................i
TABLE OF CONTENTS.................................................ii
TABLE OF AUTHORITIES............................................ iii
STATEMENT OF THE CASE............................................. 1
STATEMENT OF FACTS.................................................2
SUMMARY OF ARGUMENT AGAINST GRANTING OF CERTIORARI................3
ARGUMENT I......................................................... 5

PETITIONER'S FIFTH AMENDMENT CLAIM IS 
BARRED FROM CONSIDERATION UNDER THIS 
COURT'S DECISION IN WAINWRIGHT V. SYKES,
433 U.S. 72 (1977).

ARGUMENT II ..................................................... 8
PETITIONER’S FIFTH AMENDMENT 
RIGHTS WERE NOT VIOLATED.
A. DR. PILE'S TESTIMONY WAS ADMISSIBLE

AND DID NOT VIOLATE PETITIONER'S 
FIFTH AMENDMENT PRIVILEGE AGAINST 
SELF-INCRIMINATION............................. 9

B. THE FOURTH CIRCUIT CORRECTLY APPLIED
ZANT V. STEPHENS, 462 U.S. 862 (1983)......... 11

C. THE TESTIMONY OF DR. PILE WAS INSIGNIFICANT 
AND DID NOT INFLUENCE THE JURY'S DECISION
TO IMPOSE THE DEATH SENTENCE..................16

ARGUMENT III .................................................... 18
PETITIONER RECEIVED THE EFFECTIVE ASSISTANCE 
OF COUNSEL DURING THE SENTENCING PHASE 
OF HIS TRIAL.
A. COUNSEL DID NOT FAIL TO PROTECT PETITIONER’S

FIFTH AMENDMENT PRIVILEGE AGAINST SELF- 
INCRIMINATION..................................19

B. COUNSEL WAS NOT INEFFECTIVE IN
THE EXAMINATION OF DR. PILE.................... 21

C. COUNSEL DID CONDUCT AN ADEQUATE
INVESTIGATION FOR MITIGATION...................2 5

ARGUMENT IV .................................................... 26
THE JURY INSTRUCTIONS AT THE SENTENCING 
PHASE WERE CONSTITUTIONALLY SUFFICIENT.

CONCLUSION .................................................... 30
CERTIFICATE OF SERVICE



TABLE OF AUTHORITIES
Cases

Pa9£
Adams v. Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983)..... 22
Ake v. Oklahoma, ___U.S.___, 36 Cr.L. 3159 (1985).............. 24
Alvord v. Wainwriqht, 725 F.2d 1282,

cert, denied, 105 S.Ct. 355 (1984)............................7
Barefoot v. Estelle, U.S. , 72 L.Ed.2d

1090 (1983)................................................... 25
Bell v. Wolfish, 441 U.S. 520, 531 n. 13 (1979)................. 5
Briley v. Bass, 750 F.2d 1238 (4th Cir. 1984),

cert, denied, 105 S.Ct. 1855 (1985)....................... 4,28
Brown v. United States, 411 U.S. 223 (1973).................... 17
Bruton v. United States, 391 U.S. 123 (1968)................... 17
Carrier v. Hutto, 724 F.2d 396 (4th Cir. 1983), 

cert, denied sub nom. Carrier v. Sielaff,
105 S.Ct. 3523 (1985).......................................... 8

Cole v. Stevenson, 620 F.2d 1055 (4th Cir. 1980)................ 6
Cupp v. Nauqhten, 414 U.S. 141, 147 (1973)..................... 28
Engle v. Isaac, 456 U.S. 107, 130 n. 36 (1982)................ 7,8
Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866

(1981).............................................. 7,9,10,11,19
Evans v. Commonwealth, 228 Va. 468, 323 S.E.2d 114 (1984)..... 15
Gardner v. Florida, 430 U.S. 349 (1979)........................... 13
Gibson v. Commonwealth, 216 Va. 412, 219 S.E.2d

845 (1975)............................................... 7,11,19
Gray v. Lucas, 677 F.2d 1086, 1096 n. 9 (5th Cir.

1982), cert, denied, 103 S.Ct. 3099 (1983).................. 7
Henderson v. Kibbe, 431 U.S. 145, 154 (1977)................... 28
Jones v. Barnes, 463 U.S. 745 (1983)...............................7
Jurek v. Texas, 428 U.S. 262 ( 1976)............................. 29
Knetsch v. United States, 364 U.S. 361 (1960).................... 5
Milton v. Wainwright, 407 U.S. 371 (1972)....................... 17
Morgan v. Zant, 743 F.2d 775 ( 11th Cir. 1984)..................  28
Norris v. Wainwriqht, 588 F.2d 130 (5th Cir. 1979)...............6
Proffitt v. Wainwriqht, 685 F.2d 1227 (11th Cir. 1982)........  23
Quintana v. Commonwealth, 224 Va. 127, 295 S.E.2d

127 (1982), cert, denied, 460 U.S. ___(1983)................ 16
Reynolds v. Mabry, 574 F.2d 978 (8th Cir. (1978)............... 23



Skillern v. Estelle, 720 F.2d 839 (5th Cir.),
cert, denied, ___U.S.___, 105 S.Ct. 224 (1983).............. 14

Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135,
139 n. 1 (1978).................................................5

Smith v. Wainwriqht, 741 F.2d 1248 (11th Cir. 1984)............10
Spivey v. Zant, 661 F.2d 464 (5th Cir. 1981)................... 28
State v. Campbell, 664 S.W.2d 281 (Tenn. 1984)................. 14
Strickland v. Washinqton, U.S. , 104 S.Ct.

2052 (1984)................................................ 18,23
United Parcel Service v. Mitchell, 451 U.S. 56, 60 n.

2 (1981)........................................................ 5
Wainwriqht v. Sykes, 433 U.S. 72 (1977)..................... 3,5,8
Section 19.2-264.4, Code of Virginia............................ 25
Section 19.2-264.4C, Code of Virginia........................... 16
Zant v. Stephens, 462 U.S. 862 (1983)......................4,11,13

STATUTES AND RULES
Section 19.2-264.4, Code of Virginia............................ 25
Section 19.2-264.4C, Code of Virginia........................... 16
Rule 5:21 (now 5:17 and 5:25) Rules of the Supreme Court

of Virginia..................................................... 6

iv



NO. 85-5487

IN THE
SUPREME COURT OF THE UNITED STATES

October Term, 1985

MICHAEL MARNELL SMITH,
Petitioner,

v.

ALLYN R. SIELAFF, DIRECTOR, 
DEPARTMENT OF CORRECTIONS,

Respondent.

BRIEF IN OPPOSITION TO PETITION 
FOR A WRIT OF CERTIORARI

STATEMENT OF THE CASE

Michael Marnell Smith was convicted by a jury on November 2, 
1977, of the capital murder and rape of Audrey Jean Weiler. The 
following day, pursuant to the bifurcated trial procedure, the 
jury heard evidence on the question of penalty and recommended a 
sentence of death. A post-sentence report was filed and, 
following another hearing, the trial court affirmed the jury's 
verdict and entered final judgment on November 30, 1977.

The Supreme Court of Virginia granted Smith an automatic 
appeal, and after full briefing and argument, affirmed his 
conviction and sentence of death in a written opinion on October 
6, 1978. Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135 
(1978). This Court denied a petition for a writ of certiorari on 
May 21, 1979. 441 U.S. 967 (1979).

Smith thereafter filed a petition for a writ of habeas 
corpus in the trial court. The trial court denied all issues, 
except the claim of ineffective assistance of counsel, on the



grounds they had been previously decided or were procedurally 
barred. An evidentiary hearing was conducted by the trial court 
on November 8, 1979, and the trial court issued written findings 
of fact and conclusions of law denying Smith's petition on March 
14, 1980.

The Supreme Court of Virginia denied Smith's appeal on April 
24, 1981, and this Court again denied certiorari on December 14, 
1981. 454 U.S. 1128 (1981).

Smith then filed a petition for a writ of habeas corpus in 
the United States District Court on June 28, 1982. The United 
States Magistrate issued several reports and recommended the 
petition be denied. After reviewing Smith's objection to the 
Magistrate's various reports, the District Court entered an order 
on December 4, 1984, denying the petition.

The United States Court of Appeals for the Fourth Circuit 
affirmed the district court's denial of habeas corpus in an 
opinion of May 10, 1985. A petition for rehearing and suggestion 
for rehearing en banc were denied on June 26, 1985, no member of 
the Court requesting a poll on the suggestion for rehearing en 
banc. Petitioner's execution is scheduled for October 24, 1985.

STATEMENT OF FACTS1

In the early afternoon of May 23, 1977, Smith left his home 
and went for a walk on a beach which ran along the James River.
He observed Audrey Jean Weiler also walking on the beach. Smith 
approached Mrs. Weiler, and after a short conversation, placed 
his arm around her waist and forced her into a wooded area.
Smith pulled a knife and forced Mrs. Weiler to disrobe. Despite 
her pleas to be left alone, Smith raped her. After the rape 
Smith stated to choke Mrs. Weiler as she begged for her life.
When she became limp, he dragged her into the water where he

^Petitioner is not contesting the guilt phase of his 
trial. Petition, page 5. The facts concerning the offense will 
therefore be stated briefly to allow the Court to be familiar 
with the offense.

2



submerged her head. Smith then stabbed her in the back several 
times. A medical examination found the cause of death was 
attributable to three clusters of lethal injury; asphyxia, 
drowning, and multiple stab wounds.

David F. Pugh was appointed to represent Smith on May 26, 
1977, and he immediately requested a psychiatric examination by 
Dr. Palmaz, who was of the opinion Smith was competent to stand 
trial. Mr. Pugh requested an additional examination and Smith 
was hospitalized at the Forensic Unit of Central State Hospital 
from July 5 to August 23, 1977. Dr. Dimitris diagnosed Smith as 
having an "inadequate personality," and concluded that he was 
sane at the time of the offense.

Mr. Pugh then requested the Court to allow Smith to be 
examined by Dr. Wendell Pile, a private psychiatrist. Dr. Pile 
diagnosed Smith as a "sexually deviant sociopath." Dr. Pile also 
reported an incident which had been volunteered by Smith 
involving an assault on a girl on a school bus.

During the sentencing phase of the trial the Commonwealth 
called Dr. Pile to relate the school bus incident, and Dr. 
Dimitris to give his opinion on Smith's competency to stand trial 
and sanity at the time of the offense. Smith examined each 
psychiatrist about his diagnosis and presented numerous witnesses 
in mitigation.

SUMMARY OF ARGUMENTS AGAINST 
GRANTING CERTIORARI

Petitioner's Fifth Amendment claim is not properly before 
this Court due to procedural default. Wainwright v. Sykes, 433 
U.S. 72 (1977). The district court refused to consider this 
claim, and the Fourth Circuit avoided confronting this procedural 
issue since it found that Petitioner was nonetheless not entitled 
to any relief.

The Fifth Amendment is not implicated in this case, since 
the testimony complained of came from a private psychiatrist who 
was not an agent of the state. Estelle v. Smith, 451 U.S. 454

3



(1981). Furthermore, Petitioner's statement was not the result 
of any compelling influence but was voluntarily given despite the 
repeated warnings from his attorneys to remain silent.

Petitioner's sentence of death was based upon two separate 
and independent aggravating factors, one of which is not 
challenged. The Fourth Circuit properly concluded Zant v. 
Stephens, 462 U.S. 862 (1983), controlled the disposition of 
Petitioner's case. Even if the testimony of the psychiatrist was 
inadmissible, it related to the history and background of 
Petitioner and did not inject any misleading, inaccurate or 
arbitrary factor into Petitioner's sentencing hearing.

Petitioner's attorneys sought out psychiatric evidence in 
order to establish mitigation, and no evidence has been presented 
to establish that any such mitigation exists. Counsel's cross- 
examination of the psychiatrist was for the purpose of laying a 
foundation to argue to the jury that Petitioner could be helped 
by treatment.

The jury in Petitioner's case was adequately instructed that 
they had the power to sentence him to life even if they found the 
existence of aggravating circumstances. There exists no conflict 
between the Fourth Circuit's Opinion and other circuits on the 
question of instructions. This Court has previously rejected 
this same argument in Briley v. Bass, 750 F.2d 1238 (4th Cir. 
1984), cert, denied, 105 S.Ct. 1855 (1985).

4



ARGUMENT
I.

PETITIONER'S FIFTH AMENDMENT CLAIM IS 
BARRED FROM CONSIDERATION UNDER THIS 

COURT'S DECISION IN WAINWRIGHT V. SYKES,
433 U.S. 72 (1977).

Throughout the federal proceedings in this case, Respondent 
has consistently maintained that federal courts were barred from 
consideration Petitioner's Fifth Amendment claim. Respondent 
asserted this defense since this claim had not been considered by 
state courts due to a procedural default. Without ruling on the 
state's default argument, the Fourth Circuit found that 
Petitioner was not entitled to relief.

During pretrial preparation Petitioner was examined by Dr. 
Pile, a private psychiatrist. During this examination Petitioner 
volunteered that while driving a school bus he had assaulted a 
girl by tearing off her clothes. In the sentencing phase of 
Petitioner's trial, the Commonwealth called Dr. Pile to relate 
this bus incident. Petitioner's attorney objected to this 
testimony but was overruled by the trial judge. (A. 51-54).* 2 * 
Petitioner concedes that this issue was not raised on appeal in 
the Supreme Court of Virginia. (Petition, p. 9).2

In Wainwright v. Sykes, 433 U.S. 72 (1977), this 
Court established the doctrine that federal courts may not take 
cognizance of constitutional issues which could have been but 
which were not raised before the state trial court when the state 
procedural law requires that such matters be raised at trial in

^References will be to the Appendix filed with the Petition
and designated (A. _____), and to the Supplemental Appendix filed
with this Brief In Opposition and designated (S.A. ____).

2Smith notes that this issue was raised and fully briefed by 
Amicus (Petition, p. 9). The Supreme Court of Virginia was 
unmistakable in its ruling that it would not consider any 
arguments by Amicus which had not been raised at trial and not 
addressed by Smith on appeal. Smith v. Commonwealth, 219 Va.
455, 460, 248 S.E.2d 135, 139 n. 1 (1978). An Amicus cannot 
expand the issues or arguments raised by the parties. United 
Parcel Service v. Mitchell, 451 U.S. 56*, 60 n. 2 (1981); Bell v. 
Wolfish, 441 U.S. 520, 531 n. 13 (1979); Knetsch v. United 
States, 364 U.S. 361, 370 (1960).

5



order for them to be considered on appeal. This doctrine arose 
from the Court's concern for comity, federalism and the orderly 
administration of justice. This Court was of the opinion that
the trial itself should be the main event, and federal courts 
should not be reviewing issues years after the trial when a 
defendant failed to follow the state’s procedural rules.4

Virginia has a procedural rule as contemplated in Sykes.
Rule 5:21 (now 5:17 and 5:25), Rules of the Supreme Court of
Virginia, provided in part:

Error will not be sustained to any ruling 
below unless the objection was stated 
with reasonable certainty at the time of 
the ruling, except for good cause shown 
or to enable this Court to attain the 
ends of justice. Only errors assigned in 
the petition for appeal will be noticed 
by this Court and no error not so 
assigned will be admitted as a ground for 
reversal of a decision below. [Emphasis 
added].

When a state like Virginia, refuses to review an alleged 
constitutional error because a defendant has failed to comply
with a state procedural rule, then federal courts may not 
adjudicate such constitutional claim unless there was justifiable 
cause for the default and actual prejudice resulting from the
default. 433 U.S. at 87. The burden of proof for the cause and 
prejudice prongs of Sykes rests upon the Petitioner.

During the state habeas hearing Petitioner's counsel was 
asked why the now asserted claim of self-incrimination was not 
raised on appeal in the Virginia Supreme Court. He responded by
saying:

We had the various objections that 
we were going to raise to the 
Supreme Court of Virginia, sort of 
underlined each objection that we 
made during the course of the trial, 
thinking to make that an appealable 
point, and we didn't find —  we 
didn't think at that time there was 
any merit to that particular claim.

4The Fourth Circuit has held that the Sykes doctrine is 
applicable when the state's procedural rule requires an issue to 
be specifically raised on appeal before it can be considered. 
Cole v. Stevenson, 620 F.2d 1055 (4th Cir. 1980). Accord Norris 
v. Wainwriqht, 588 F.2d 130 (5th Cir. 1979).

6



(S.A. 1).
Mr. Pugh testified that while he did not. personally.' research any 
federal law relating to this issue, research was conducted which 
might have included federal case law. (S.A. 2-3). The results 
of the research were discussed among counsel, and a decision was 
made not to raise this issue on appeal. (S.A. 2-3). This 
process of examining the record to select the most promising 
issues for review is exactly what this Court has held appellate 
counsel is expected to do. Jones v. Barnes, 463 U.S. 745 (1983).

This case was tried in November, 1977, and counsel was aware 
of controlling state authority that Dr. Pile's testimony was 
admissible. See Gibson v. Commonwealth, 216 Va. 412, 219 S.E.2d 
845 (1975). Counsel felt that the issue would not be successful. 
(S.A. 3). This Court has held that "[s]ince the cause and 
prejudice standard is more demanding than Fay's deliberate bypass 
requirement...we are confident that perceived futility alone 
cannot constitute cause." Engle v. Isaac, 456 U.S. 107, 130 n.
36 (1982).

Counsel cannot be considered ineffective for not raising 
this claim on appeal. In its decision in this case the Fourth 
Circuit noted that "[a]t the federal level, the law precluding 
such testimony on Fifth Amendment grounds, at the time of the 
trial in November, 1977, was not certain." (A. 5). Both the 
Fifth and Eleventh Circuits have held that failure of counsel to 
anticipate Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866 (1981), 
and timely enter an objection to similar testimony did not 
constitute ineffective assistance of counsel. Gray v. Lucas, 677 
F.2d 1086, 1096 n. 9 (5th Cir. 1982), cert, denied, 103 S.Ct.
3099 (1983); Alvord v. Wainwriqht, 725 F.2d 1282, cert, denied, 
105 S.Ct. 355 (1984) .

Petitioner's counsel raised 17 issues on direct appeal, and 
deliberately chose to omit Petitioner's Fifth Amendment claim 
while pursuing other avenues of defense. "[T]he Constitution 
guarantees criminal defendants only a fair trial and a competent 
attorney. It does not insure that defense counsel will recognize

7



and raise every conceivable constitutional claim. 
Isaac, 456 U.S. 107, 134 (19820-

Engle v.

Petitioner suggests that the Fourth Circuit in choosing to 
address the merits of this claim, implicitly ruled that 
Petitioner had demonstrated sufficient "cause" and "prejudice" to 
satisfy the requirements of Sykes. (Petition, p. 15 n. 4). A 
reading of the Fourth Circuit's opinion does not support 
Petitioner's assertion. The Fourth Circuit simply chose not to 
reach the state's claim of procedural default since in the Fourth 
Circuit's opinion the Petitioner was not entitled to relief. (A. 
4-6). The Fourth Circuit specifically noted that the question 
was very clouded as to whether the representation of trial 
counsel was, in fact, ineffective or that any prejudice resulted 
from not having raised this claim on appeal. (A. 7 n. 4). The 
Fourth Circuit also observed that "there is reason to doubt 
whether counsel for Smith could muster sufficient reason to 
constitute trial counsel's failure to object inexcusable 
neglect." (A. 5). See Carrier v. Hutto, 724 F.2d 396 (4th Cir. 
1983), cert, granted sub nom. Carrier v. Sielaff, 105 S.Ct. 3523 
(1985). Such statements by the Fourth Circuit refute 
Petitioner's assertion that the court implicitly found sufficient 
"cause" and "prejudice" to satisfy Sykes.

For these reasons Petitioner has failed to establish "cause" 
for his default on the Fifth Amendment issue and is barred from 
having his claim adjudicated in the federal courts. The Fourth 
Circuit should have found that Petitioner's Fifth Amendment claim 
was barred by procedural default. Under the clear pronouncement 
in Wainwriqht v. Sykes, supra, this Court should not consider 
Petitioner's Fifth Amendment claim.

ARGUMENT
II.

PETITIONER'S FIFTH AMENDMENT 
RIGHTS WERE NOT VIOLATED.

8



A. DR. PILE'S TESTIMONY WAS ADMISSIBLE 
AND DID NOT VIOLATE PETITIONER'S FIFTH 
AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION.

The record establishes that after Petitioner had been 
examined by Dr. Palmaz and the Forensic Unit of Central State 
Hospital, his counsel made the decision to seek a psychiatric 
evaluation by Dr. Wendell Pile, a private psychiatrist. On more 
than one occasion counsel advised Petitioner not to discuss prior 
offenses with anyone. (S.A. 4). After Petitioner returned from 
Central State Hospital, and before the examination by Dr. Pile, 
counsel again advised Petitioner not to make any statements about 
past offenses. (S.A. 5-6). Counsel testified at the state 
habeas hearing that in view of the repeated advice he had given 
Petitioner about not discussing prior offenses with anyone, he 
believed Petitioner would heed his advice. (S.A. 6).

During the initial stages of the examination, Dr. Pile asked
Petitioner if he had been involved in any prior sexual
episodes. Petitioner advised Dr. Pile that his attorney had
warned him not to discuss any incidents which were not related to
the present offense. Thereafter, Dr. Pile made no request for
such information. At a later time during the examination,
Petitioner volunteered the information about the bus incident.*
(A. 68). On this evidence the state judge found:

Thus, the Court finds that petitioner was 
carefully advised by his attorney not to 
discuss the offense with anyone and also 
not to divulge anything about prior 
offenses, that petitioner was fully aware 
of this advice when he was examined by 
Dr. Pile and exhibited such knowledge 
when he advised Dr. Pile that his 
attorney had told him not to discuss any 
past offenses, and that petitioner 
voluntarily waived his right against 
self-incrimination.

(A. 68).5
In Estelle v. Smith, supra, this Court held that 

introduction of a court-appointed psychiatrist's testimony to

5Although Petitioner was present at the state plenary 
hearing he chose not to testify. Therefore, the evidence stands uncontradicted.

9



prove a capital defendant's future dangerousness, based on 
information gleaned from a custodial examination of the accused 
who neither requested the examination nor introduced psychiatric 
evidence on the issue and who was not warned of his right to 
remain silent and that any statement he made could be used 
against him at sentencing, violated his Fifth Amendment rights. 
Smith is distinguishable from this case. The evidence is clear 
that, unlike Smith, Petitioner requested the examination by Dr. 
Pile. Further, Dr. Pile was a private psychiatrist who was 
selected by Petitioner.®

Under circumstances strikingly similar to those present in 
this case, the court in Smith v. Wainwright, 741 F.2d 1248 (11th 
Cir. 1984), held that no Fifth Amendment claim existed. In that 
case the defendant took the stand in his own defense and 
testified that he was home sleeping off a drunk at the time of 
the murder. The state called Dr. Niswonger, a psychiatrist who 
had examined the defendant before trial. Dr. Niswonger testified 
that during the examination the defendant claimed amnesia 
concerning the events of the murder. The state then argued to 
the jury that this testimony contradicted the defendant's alibi 
that he was home during the murder. The defendant contended that 
under Estelle v. Smith, Dr. Niswonger's testimony was 
inadmissible. In rejecting this argument the Eleventh Circuit, 
stated:

The record in this case shows that the 
trial court did not appoint Niswonger to 
examine Smith, as was the case in Estelle 
v. Smith. On the contrary, Smith 
retained Niswonger (through his trial 
counsel) to conduct an examination 
regarding a possible claim of insanity.
In such a case, Estelle v. Smith does not 
require that the psychiatrist give 
Miranda warnings. The protections of 
Estelle do not apply unless the 
psychiatrist is "essentially... an agent 
of the State...." 451 U.S. at 467. *

^Petitioner was the moving party for this examination, but 
since he was indigent, the trial court entered an order to allow 
payment to Dr. Pile. Such a circumstance cannot be construed to 
change this private psychiatric examination into a court-ordered 
examination referred to in Estelle v. Smith.

10



741 F.2d at 1258, 1259.
Furthermore, in Estelle v. Smith, this Court reaffirmed that 

"[v ]olunteered statements... are not barred by the Fifth 
Amendment." 451 U.S. at 469. The state court has found upon the 
evidence that Petitioner had' been carefully advised by his 
attorney not to discuss with anyone any prior offenses, and that 
Petitioner clearly understood this warning. (A. 68). 
Notwithstanding his attorney's advice, Petitioner voluntarily 
told Dr. Pile about the bus incident. (A. 68).

Under the facts of this case, Petitioner's revelation about 
the bus incident was given freely and voluntarily without any 
compelling influence to a private psychiatrist who was not an 
agent of the state.7 Under such circumstances Dr. Pile's 
testimony was admissible and Petitioner's Fifth Amendment rights

• ftwere not violated.

B. THE FOURTH CIRCUIT CORRECTLY APPLIED
ZANT V. STEPHENS, 462 U.S. 862 (1983).

Petitioner asserts that the Fourth Circuit has given too 
broad a reading to this Court's decision in Zant v. Stephens. In 
the present case the jury found both the "dangerousness" and 
"vileness" aggravating circumstances. Petitioner does not 
challenge the jury's finding of the "vileness" aggravating 
circumstance. (A. 8), but contends that the admission of Dr. 
Pile's testimony on the "dangerousness" circumstance precluded 
the Fourth Circuit from applying Zant.

In Zant the jury having found three separate and distinct 
aggravating factors sentenced the defendant to death. While the 
case was on direct appeal the Supreme Court of Georgia held that

7There exists no physician-patient privilege in a criminal 
prosecution in Virginia. See Gibson v. Commonwealth, supra.

^Throughout the Petition the Petitioner seeks to insert a 
Sixth Amendment claim. (Petition, p. 11-12, 16 n. 5, 24-25, 27- 
31). These Sixth Amendment arguments were raised for the first 
time on appeal in the Fourth Circuit and are not properly before 
the Court.

11



the aggravating circumstance "a substantial history of serious 
assaultive criminal convictions" was. invalid as-being, «■. 
unconstitutionally vague. The Georgia Supreme Court nevertheless 
concluded that the two other aggravating circumstances adequately 
supported Zant's sentence of death.

The major focus of this Court in Zant was an examination of 
the reason the aggravating circumstance had been found to be 
invalid by the Georgia Supreme Court. This Court found that the 
aggravating circumstance had not been found invalid for some 
impermissible reason, such as, treating constitutionally 
protected conduct as an aggravating circumstance; and concluded 
that the death sentence need not be set aside as long as at least 
one valid aggravating circumstance remained.

This was the ruling of the Fourth Circuit in the present 
case. The Fourth Circuit noted that "[t]he jury found 
separately, with respect to each aggravating circumstance, that 
it alone merited imposition of the death penalty," (A. 3), and 
that "[t]he testimony in the guilt phase of the case amply 
provided a basis for decision that the crime was vile." (A. 8). 
Because of this posture of the case, the Fourth Circuit deemed it 
unnecessary to examine Petitioner's claim relating to the 
statement concerning an earlier attack Petitioner described 
during a private psychiatric interview.

Petitioner argues that such a disposition was incorrect.
The thrust of his argument is that the state introduced 
inadmissible evidence at the sentencing phase through the 
testimony of Dr. Pile.^ For the reasons presented in Argument II 
A, supra, Petitioner is incorrect in his conclusion that Dr. 
Pile's testimony was inadmissible. For this reason Petitioner's 
argument fails since it is based upon a false premise, and the 
Fourth Circuit correctly applied Zant. * *

^Petitioner's assertion that the Fourth Circuit assumed Dr. 
Pile's testimony was in fact inadmissible (Petition, p. 16), is 
not supported by the record. The Fourth Circuit's opinion is
silent on this question.

12



In Zant this Court noted that when responding to the Court's
certified question the Georgia Supreme Court stated, "A different 
result might be reached in a case where evidence was submitted in 
support of a statutory aggravating circumstance which was not 
otherwise admissible, and thereafter the circumstance failed." 
Zant, 103 S.Ct. at 2750. (Emphasis added). This observation by 
this Court is of no benefit to Petitioner for several reasons.
This Court in Zant reserved for another day the question of 
whether a death sentence would be impaired if the jury's finding 
of an aggravating circumstance relied on materially inaccurate or 
misleading information. Zant, 103 S.Ct. at 2748 n. 24. The 
testimony in this case concerning an earlier attack by Petitioner 
was neither misleading nor inaccurate.10 Although this testimony 
was adduced at the sentencing hearing, where it could have been 
denied or explained by Petitioner, see Zant, 103 S.Ct. at 2748, 
it has never been denied nor shown to be inaccurate.

Furthermore, the "dangerousness" aggravating circumstance 
would not fail even if the testimony relating the earlier attack 
were to be discarded. The jury had before it evidence that 
Petitioner had previously been convicted of rape in 1973, and 
committed this vicious rape and murder not quite four months 
after his release from serving his sentence for the prior rape. 
The jury also had before it Petitioner's confession which 
contained his statement that he killed Mrs. Weiler because "[a]ll 
I could think about was going back to the penitentiary. I was 
afraid she could send me back." (S.A. 7). The jury was entitled 
to infer that Petitioner would kill again whenever necessary to 
avoid being returned to the penitentiary. It takes an 
unreasonable view of the evidence to conclude that the jury would 
not have found the "dangerousness" aggravating circumstance but 
for the presence of the testimony about the earlier attack. This 
is especially so in view of the fact that the earlier attack had

10The fact that the contested evidence was neither 
misleading nor inaccurate disposes of Smith's reliance upon 
Gardner v. Florida, 430 U.S. 349 (1979). (Petition, p. 17).

13



occurred some 15 years prior to the murder of Mrs. Weiler and 
when Petitioner was about 15 years of age.

. Other courts when confronted with the claim that a death 
sentence should be set aside when inadmissible11 evidence has 
been admitted during sentencing have concluded that such fact 
alone is insufficient to warrant such action. The defendant in 
State v. Campbell/ S.W.2d 281 (Tenn. 1984), was sentenced to
death upon conviction of murder during a robbery. The jury found 
three aggravating circumstances, one being that the defendant had 
been previously convicted of one or more felonies other than the 
present charge which involved the use or threat of violence to 
the person. During the appeal the Tennessee Supreme Court found 
that the State's introduction of convictions 'for grand larceny 
and burglary were inadmissible as they were not related to the 
use or threat of violence to the person. Nevertheless, the Court 
found the remaining evidence sufficient to support the 
aggravating circumstance. The court was convinced beyond a 
reasonable doubt that the admission of this evidence was 
harmless. Further, the court found the evidence of the other 
aggravating circumstances overwhelming and in no way dependent on 
proof of the convictions of the non-violent felonies.

Skillern v. Estelle, 720 F.2d 839 (5th Cir.), cert.
denied, ____U.S.____, 105 S.Ct. 224 (1983), presents an analogous
situation. During the sentencing phase the state introduced 
evidence from a forensic pathologist that there was a probability 
that the defendant would commit acts of violence that would 
constitute a continuing threat to society. The Texas Court of 
Criminal Appeals had found this evidence to have been 
inadmissible because the doctor was incompetent to testify as an 
expert and lacked firsthand familiarity with the defendant's 
personality to testify as a lay witness. Nevertheless, the Texas 
court found the admission of this evidence was harmless due to 11

11The Respondent has set forth the reasons that the 
testimony of Dr. Pile was admissible but will assume only for the 
sake of argument that the contested evidence was inadmissible.

14



the other evidence of Skillern's violent propensities adduced by 
the prosecution. The Fifth Circuit concluded that federal habeas «• 
relief was not justified since the admission of the prejudicial 
testimony was not "material in the sense of a crucial, critical, 
highly significant factor." 720 F.2d at 852.

Contrary to Petitioner's assertion (Petition, p. 22), the 
affirmance in this case will not allow prosecutors to introduce 
any and every kind of evidence at sentencing. Introduction of 
evidence which misleads the jury or injects an arbitrary factor 
into the sentencing phase can still be dealt with. See Zant, 103
S.Ct. at 2748 n. 23. An example of the application of this 
principle is found in Evans v. Commonwealth, 228 Va. 468, 323 
S.E.2d 114 (1984). Evans had been convicted of capital murder 
and sentenced to death. His conviction and sentence had been 
affirmed by the Virginia Supreme Court and certiorari had been 
denied by this Court. During the proceedings on state habeas 
corpus it became apparent that many of the records of convictions 
presented to the jury had been seriously misleading or otherwise 
defective. The Commonwealth confessed error and acknowledged 
that Evans' death sentence should be vacated.

The testimony of Dr. Pile concerning Petitioner's admission 
of an earlier attack was not inherently inadmissible. The 
background of a defendant is a legitimate area of focus in 
capital cases. Such evidence did not inject any arbitrary factor 
into this case such as race, religion, political affiliation, or 
expressions protected under the First Amendment which were the 
expressed concerns of this Court in Zant.

The facts in the present case establish that the 
Commonwealth did not inject into the sentencing phase of 
Petitioner's trial any misleading or inaccurate information, nor 
any arbitrary factor which would have impacted upon the sentence 
of death. Furthermore, the "dangerousness" aggravating 
circumstance remains sufficient even if the objected to evidence 
is removed. For these reasons, the Fourth Circuit properly 
applied Zant to this case.

15



c. THE TESTIMONY OF DR. PILE WAS INSIGNIFICANT 
AND DID NOT INFLUENCE THE JURY'S DECISION 
TO IMPOSE THE DEATH SENTENCE.

Petitioner maintains that Dr. Pile's testimony was 
demonstrably prejudicial, but fails to compare it to the 
remaining evidence which was before the jury on the issue of 
"dangerousness." When viewed in relation to the other un­
challenged evidence introduced by the Commonwealth to establish 
the "dangerousness" aggravating circumstance, Dr. Pile's 
testimony concerning the bus incident pales into insignificance.

The Commonwealth introduced evidence that Petitioner had 
previously been convicted of rape in 1973. Further, the evidence 
established that Petitioner had been released from the 
penitentiary and placed on parole from this prior rape conviction 
on January 25, 1977, not quite four months before he raped and 
murdered Mrs. Weiler. The jury also had before it Petitioner's 
confession which contained his statement that he killed Mrs. 
Weiler because "[a]11 I could think about was going back to the 
penitentiary. I was afraid she could send me back." (S.A. 7).

Although the prosecutor mentioned the bus incident during 
argument to the jury, it was hardly the focus of the 
Commonwealth's case. There were three passing references to this 
incident in fourteen pages of argument.

The jury also had before it the heinous nature of the 
offense itself.12 Under Virginia law the "dangerousness" 
aggravating circumstance can be proven by reference to the 
circumstances surrounding the commission of the offense. See § 
19.2-264.4C, Code of Virginia. In Quintana v. Commonwealth, 224
Va. 127, 295 S.E.2d 127 (1982), cert, denied, 460 U.S. ___(1983),
the Court said:

As to the factor that defendant will pose 
a continuing serious threat to society, 
we need only refer again to the heinous

12The jury was instructed to consider the circumstances 
surrounding the offense when determining the punishment to be 
imposed. (A. 64).

15



circumstances surrounding this homicide, 
committed upon a 72-year-old woman during 
the course of robbery.^ The jury and ■ -•
trial court could properly conclude that 
if defendant has.killed once under these 
circumstances for the mere purpose of 
obtaining a sum of money, he is likely to 
kill again, whether incarcerated or not, 
for an equally devious purpose.

224 Va. at J.51.
/ \

This Court has recognized that the admission into evidence
of a defendant's confession in violation of the Fifth Amendment
can be harmless. In Milton v. Wainwriqht, 407 U.S. 371 (1972),
the Court held that assuming arguendo an involuntary confession
was improperly admitted into evidence, such admission was
harmless beyond a reasonable doubt when the jury had before it
overwhelming evidence of the defendant's guilt. In so- holding,
the Court made a cogent observation:

The writ of habeas corpus has limited 
scope; the federal courts do not sit to 
re-try state cases de novo but, rather, 
to review for violation of federal 
constitutional standards. In that 
process we do not close our eyes to the 
reality of overwhelming evidence of guilt 
fairly established in the state court 
years ago by use of evidence not 
challenged here; the use of the 
additional evidence challenged in this 
proceeding and arguably open to challenge 
was, beyond reasonable doubt, harmless.

407 U.S. at 377, 378.
Likewise, in 3rown v. United States, 411 U.S. 223 (1973), 

the Court found that the erroneous admission of a co-defendant's 
extrajudicial confession implicating the defendant in violation 
of Bruton v. United States, 391 U.S. 123 (1968), was harmless.
The Court, upon an independent examination of the record, 
concluded that the testimony erroneously admitted was merely 
cumulative of other overwhelming and largely uncontroverted 
evidence properly before the jury.

When examining the present case in light of the opinions of 
this Court in Milton and Brown, it becomes clear that Dr. Pile's 
testimony was merely cumulative of the other overwhelming 
uncontroverted evidence properly before the jury. In view of the

17



overwhelming evidence of "dangerousness" it is unrealistic to 
believe the jury in this case would not have found the 
"dangerousness" aggravating circumstance in the absence of the 
testimony of Dr. Pile concerning the bus incident.

For this additional reason Petitioner suffered no prejudice
by the admission of

1 -5incident. J
Dr. Pile's testimony concerning the bus

ARGUMENT
III.

PETITIONER RECEIVED THE EFFECTIVE ASSISTANCE 
OF COUNSEL DURING THE SENTENCING PHASE 

OF HIS TRIAL.

This Court rendered a landmark decision in Strickland v.
Washington, ___U.S.__104 S.Ct. 2052'(1984), concerning claims
of ineffective assistance of counsel. 104 S.Ct. at 2064. In 
reviewing claims of ineffective assistance of counsel this Court 
noted that it was not necessary to address both counsel's 
performance and prejudice if the petitioner makes an insufficient 
showing on one. "In particular, a court need not determine 
whether counsel's performance was deficient before examining the 
prejudice suffered by the defendant as a result of the alleged 
deficiencies." 104 S.Ct. 2069, 2070. Indeed, this Court 
suggested that it was not only proper, but usually preferable, to 
dispose of an ineffectiveness claim under the prejudice prong 
without even reaching the issue of whether counsel's performance 
was deficient. Id.

A review of the Petition concerning Petitioner's claim of 
ineffective assistance of counsel (Petition, p. 33-46) 
establishes that his claim mainly concerns counsel's performance 
as it relates to the testimony of Dr. Pile. As previously

■'■^Petitioner claims it is noteworthy that neither the state 
habeas judge nor the federal magistrate found that Dr. Pile's 
testimony was not prejudicial. (Petition, p. 32 n. 15). Both 
the state habeas judge and the federal magistrate held that 
Petitioner was barred by procedural default from pressing any 
attack upon Dr. Pile's testimony. Under such a circumstance 
there was no occasion for either to rule on the prejudice issue.

18



observed, Dr. Pile's testimony bore only on the question of the 
"dangerousness" aggravating circumstance. As -noted, the'’ 
"vileness" aggravating circumstance is sufficient in itself to 
sustain Petitioner's sentence of death, and Petitioner cannot 
carry his burden of establishing prejudice from any alleged 
deficiency |n counsel's performance. Accordingly, this Court 
need go no further m  reviewing Petitioner's claim of ineffective 
assistance of counsel.

A. COUNSEL DID NOT FAIL TO PROTECT PETITIONER’S 
FIFTH AMENDMENT PRIVILEGE AGAINST SELF- 
INCRIMINAT^ION.

The record establishes that Petitioner's counsel made the 
decision to seek a psychiatric evaluation by Dr. Pile. Since 
counsel was aware of the holding in Gibson v. Commonwealth, 
supra, (S.A. 8), he advised Petitioner on more than one occasion 
not to discuss prior offenses with anyone. After Petitioner 
returned from Central State Hospital, counsel again advised him 
not to make any statements about past offenses.

Counsel is taken to task for not giving Petitioner careful 
and explicit advice immediately before his examination with Dr. 
Pile, and not accompanying him to the examination. (Petition, p. 
34,35). Counsel testified at the state habeas hearing that in 
view of the repeated advice he had given Petitioner about not 
discussing prior offenses with anyone, he believed Petitioner 
would heed the advice. (S.A. 6). The fact of the matter is that 
Petitioner did understand this advice from his attorneys. For 
when Dr. Pile asked Petitioner about prior episodes, Petitioner 
told Dr. Pile that his attorneys had warned him not to discuss 
instances which were not related to the present crime. (A.
68). This evidences a clear understanding by Petitioner of the 
explicit warning given him by his attorneys. There does not 
appear to be any constitutional right to have counsel actually 
present during the examination. Estelle v. Smith, 451 U.S. at 
470 n. 14, therefore, it is difficult to perceive of what benefit 
would have been gained by counsel accompanying Petitioner to Dr.

19



Pile's office.
After Petitioner told Dr. Pile that his attorneys" had'Warned 

him not to discuss any prior offenses, Dr. Pile did not 
thereafter press or request any such information. (A. 68). At a 
later time during the examination, Petitioner voluntarily told 
Dr. Pile about the |us incident. (A. 68). Counsel exercised 
reasonable care in advising Petitioner not to discuss prior 
offenses. With full knowledge of this advice, Petitioner chose 
to ignore it. Counsel cannot be faulted when a client chooses 
not to heed his advice.

Additionally, Petitioner asserts that counsel was 
ineffective in not appreciating the conflict between his advice 
to Petitioner to remain silent and his efforts to explore 
possible psychiatric defenses. There appears to exist a conflict 
within the psychiatric community about the ability of a 
psychiatrist to make a diagnosis if a defendant declines to 
discuss his recollection about the circumstances before, during 
and after the offense. Dr. Dimitris testified that 95% of the 
defendants he examines either say they don't remember the events 
or didn't commit the act. (S.A. 9,10). While admitting such 
information is helpful, it is not essential for diagnostic 
purposes or the forensic unit would have to be closed. (S.A.
11). Dr. Showalter testified that he could not give an informed 
opinion in such circumstances. Whatever the resolution of this 
controversy, it is of no moment. Petitioner, as in the case of 
prior incidents, chose to ignore the advice of his attorneys and 
did discuss with the psychiatrists the events surrounding the 
crime. Petitioner has waived his right to attack the guilt phase 
of his trial, therefore, the issue of his sanity at the time of 
the offense is not before the court. Since Petitioner did 
discuss the circumstances of the offense with the psychiatrists, 
they were able to have enough information upon which to base an 
expert opinion regarding mitigation. Regardless of the advice 
given by counsel, Petitioner has failed to establish actual 
prejudice.

20



B. COUNSEL WAS NOT INEFFECTIVE IN 
THE EXAMINATION OF DR. PILE.

The record establishes that after the prosecutor asked Dr.
Pile about the bus incident, Petitioner's attorneys conferred.
(S .A . 12). After this conference counsel asked Dr. Pile about
his diagnosis. (S.^. 12). Counsel asked Dr. Pile over what
period of time this antisocial personality develops, to which Dr.
Pile responded "develops around the time of puberty." (S.A. 13).
Counsel also developed from Dr. Pile that people, like
Petitioner, could be helped in changing a personality, when Dr.
Pile testified, "An attempt is made with psychiatric help and
maximum security type prison or hospital, to see if something can
be done." (S.A. 14). Counsel then developed this evidence into
an impassioned plea to save Petitioner's life. Counsel argued,

Well, this problem that Michael Smith has is 
not something that he could have helped. Mr.
Person (the prosecutor) asked us well, who do 
we blame? He said, "I blame it on him." At 
three years of age, at three years of age, Mr.
Person —  Mr. Person would have expected 
Michael Smith to say, "No, I don't want this 
illness. Take it away. Take it away. I 
don't want it." What caused this illness? I 
don't know.

(S.A. 15,16).
In argument counsel stressed that Petitioner’s mental condition
caused his behavior, and he could be treated:

I'm asking you to give Michael Smith that 
opportunity to give Michael Smith the 
opportunity to have some treatment for this 
illness. We don't take someone out that has 
pneumonia or cancer and take him up to Spring 
Street in Richmond and strap him in a chair 
and throw thousands of volts to them. We 
treat them. True, they have not committed a 
crime. But their illness did not cause them 
to commit a crime either.

* * * *

He can be helped, and all we ask you ladies 
and gentlemen is that you conserve human life, 
as I believe it is proper. That you conserve 
his life and allow him the opportunity to be 
treated for his illness, just as if a person 
with pneumonia can be treated for theirs.

(S.A. 17-19).
During the state habeas hearing Mr. Pugh testified that he

21



butcould not then recall why he asked for Dr. Pile's diagnosis, 
did so after a discussion with co-counsel. (S.A. 20).14

A reading of counsel's argument makes it patently clear why 
Dr. Pile was asked for his diagnosis. The only reasonable 
defense for Petitioner was to attempt to convince the jury that 
he was suffering from an illness for which he was not 
responsible, and that such illness could be treated. Without 
such evidence, counsel could not have made this argument.

On this issue the state court found:
While petitioner's counsel may have been 
uncertain at the evidentiary hearing why 
he questioned Dr. Pile as he did, I find 
that the trial transcript adequately 
explains the reasons behind his 
inquiries. During cross examination of 
Dr. Pile, petitioner's counsel inquired 
as to (1) whether sociopaths have 
compulsions to commit crimes, (2) the 
causes of the sociopathic personality,
(3) the length of time it takes to 
develop such a condition, (4) whether the 
condition could be categorized as an 
emotional illness or sickness, and (5) 
whether such a condition can be treated.
In addition, during his closing statement 
petitioner's counsel argued that 
petitioner was suffering from an illness 
that he could not help and asked the jury 
to give him the opportunity to obtain 
treatment, which the Court finds to be 
reasonable trial strategy in light of the 
confession of the petitioner and the 
overwhelmingly aggravating facts 
exhibited by testimony in the case.

*  Ar - k  Ar

I find that counsel elicited Dr. Pile's 
testimony in an effort to establish that 
petitioner was suffering from a mental 
illness which could be treated. The 
necessity of placing petitioner's mental 
state in question, not counsel's 
incompetence, produced the prejudicial 
statements.

Ar *  *  -k

Furthermore, Dr. Pile's testimony was not 
entirely prejudicial or void of strategic

^4It is to be noted that the state hearing occurred two 
years after trial, and further that Petitioner was represented by 
two attorneys, Mr. Pugh and Mr. Wood. Petitioner did not call 
Mr. Wood to testify at the state hearing, and has offered no 
explanation as to how Mr. Wood would have testified on this 
point. See Adams v. Wainwriqht, 709 F.2d 1443, 1445 (11th Cir. 
1983) .

22



value. On the crucial question of the 
likelihood of future criminal conduct,
Dr. Pile's testimony that in certain-'-** - "-a 1 rr- 
cases a sociopathic personality can be 
treated actually weighed in petitioner's 
favor. I thus conclude that counsel's 
cross examination was the product of 
informed, professional deliberation, and 
thus competent under the standards 
discussed supra.

(A. 73-74).’ ,
Petitioner challenges these findings as being nothing more 

than speculation. What Petitioner overlooks, however, is that a 
habeas court must "indulge a strong presumption that counsel's 
conduct falls within the wide range of reasonable professional 
assistance; that is, the defendant must overcome the presumption 
that, under the circumstances, the challenged action 'might be
considered sound trial strategy.'" Strickland v. Washington, ___
U.S.___, 104 S.Ct. at 2065, 2066. The fact that Petitioner's
present counsel may have tried the case differently is not the 
issue. "There are countless ways to provide effective assistance 
in any given case. Even the best criminal defense attorneys 
would not defend a particular client in the same way." Id. 104 
S.Ct. at 2066. The record amply supports these findings and 
Petitioner has failed to overcome the presumption that all 
significant decisions were made in the exercise of reasonable 
professional judgment.

In Reynolds v. Mabry, 574 F.2d 978 (8th Cir. 1978), the 
court concluded that counsel was not ineffective when he 
introduced highly prejudicial information in order to establish 
the only available defense. The Eleventh Circuit refused to find 
counsel ineffective in his handling of the psychiatric evidence 
at the sentencing phase of his trial in Proffitt v. Wainwright, 
685 F .2d 1227 (11th Cir. 1982). While hindsight might show the 
attorney's performance was less than stellar, the court can not 
conclude that it fell below the standard of reasonably effective 
assistance.

Petitioner also contends that an adequately prepared defense 
attorney would have had no difficulty impeaching Dr. Pile's

23



testimony. This assumes, of course, that counsel wanted to 
discredit Dr. Pile's testimony. The converse is true, however-,' - 
in that counsel wanted Dr. Pile's diagnosis in order to make the 
argument to the jury that Petitioner was suffering from a disease 
which could be treated.

Petitioner makes much of the fact that Dr. Showalter 
disagreed with Dr. Pile's diagnosis. Dr. Pile, who has been 
practicing psychiatry since 1946, had examined many persons to 
determine their sanity at the time of the offense. The fact that 
he usually testified for defendants led Petitioner's counsel to 
choose him. Dr. Pile testified that he felt he had sufficient
information to render his opinion. Even though Dr. Showalter 
didn't believe he could have arrived at Dr. Pile's diagnosis 
based upon the evidence available, he would not commit himself 
that such a diagnosis couldn't be made. (S. A. 21-22).15

That there was some disagreement between the psychiatrists
does no more than confirm what this Court found in Ake v .
Oklahoma, ___U.S.___, 36 Cr.L. 3159 (1985):

Psychiatry is not, however, an exact 
science, and psychiatrists disagree 
widely and frequently on what constitutes 
mental illness, on the appropriate 
diagnosis to be attached to given 
behavior and symptoms, on cure and 
treatment, and on likelihood of future 
dangerousness.

U.S. at, 36 Cr.L. at 3163.

Based upon this disagreement the state court found that "the 
expert opinion was equivocal and in basis disagreement." (A.
75), and that counsel was not ineffective for not attacking Dr. 
Pile's one-hour examination.* 1®

It must be noted that Dr. Showalter has never examined 
Petitioner, and was not in a position to say whether or not he 
was a sociopath.

1®Dr. Dimitris testified at trial that it's possible to make 
a diagnosis of sociopathy in an hour's examination. He even said 
it could be done in fifteen minutes if the right material came 
through.

24



Petitioner's argument about the predictability about future 
dangerousness has clearly been rejected' in: Barefoot v-~.~
Estelle, ___U.S.___, 72 L.Ed.2d 1090 (1983).

C. COUNSEL DID CONDUCT AN ADEQUATE 
INVESTIGATION FOR MITIGATION.

\
To claim that counsel did not conduct an adequate investi­

gation for mitigation is simply to ignore the record. At the 
state habeas hearing Dr. Dimitris testified that Mr. Pugh "was 
very eager to know...(whether there] were any other extenuating 
circumstances that could be of help to him." (S.A. 23). Dr. 
Dimitris further testified that "Mr. Pugh showed special 
consideration in regard to what was the finding. He was not 
satisfied with the basics. He wanted to go into another facet of 
his life." (S.A. 24). Dr. Dimitris continued by saying Mr. Pugh 
wanted to know if there was "any mitigation whatsoever." (S.A. 
25) .

Petitioner places his entire focus upon the fact that his 
counsel did not point out to the examining psychiatrists the 
statutory mental mitigating abnormalities found in § 19.2-264.4, 
Code of Virginia. Such a position, however, does no more than 
attempt to exhault form over substance.

During the state habeas hearing, both Drs. Dimitris and Pile 
testified unequivocally that their respective examinations were 
sufficiently broad enough to allow them to have formed an opinion 
on the statutory mitigating factors, and that they did not find 
either statutory factor.17 Upon this evidence the state court 
found:

The mitigating mental factors to be 
considered under the statute revolve 
around petitioner's mental state at the 
time of the offense, a question on which 
both examinations focused. On this

17While Dr. Showalter testified that he could not render an 
opinion on the statutory mitigating factors after an hour's 
examination, he was unwilling to say that others could not do so. 
This is nothing more than the familiar disagreement among 
professionals.

25



point, both examining doctors testified 
that their examinations were sufficient 
to render an opinion concerning-the 
statutory mitigating mental conditions. I 
thus find that petitioner was adequately 
examined with regard to the statutory 
defense.

* * * *

In addition, in light of the testimonies 
of the examining psychiatrists that no 
evidence was found to support a defense 
of mitigating mental conditions, I find 
that petitioner suffered no prejudice 
from counsel's failure to direct the 
psychiatric examinations toward these 
issues.

(A. 76,77).
The district court not only found these findings adequately

supported by the record, but concluded:
[Njo proof was offered at the state 
hearing (even though petitioner's expert 
psychiatric witness testified at length) 
nor is it now asserted that an 
examination conducted by a psychiatrist 
different from Drs. Pile and Dimitris 
would develop testimony concerning 
mitigating mental conditions not found by 
the psychiatrists who in fact examined 
petitioner.

(S.A. 26).
The Fourth Circuit has also found that counsel were not 
ineffective for not specifically directing the psychiatrists to 
the statutory mitigating factors. (A. 9).

It follows that if counsel failed to perform properly by not 
specifically pointing out the statutory mitigating factors, 
Petitioner has failed to establish the necessary predicate of 
prejudice.

ARGUMENT
IV.

THE JURY INSTRUCTIONS AT THE SENTENCING 
PHASE WERE CONSTITUTIONALLY SUFFICIENT.

Petitioner's argument with respect to instructions at the

26



penalty phase is that they established a presumption in favor of

At the sentencing phase the trial court gave two 
instructions along with the verdict forms. Instruction 1 charged 
"that the penalty of death shall not be imposed unless you find

>eyond a reasonable doubt [one

This was immediately followed by "you may fix his punishment at 
death." This instruction then concluded by telling the jury that 
if ic found "that the Commonwealth has failed to prove either 
[aggravating circumstance] beyond a reasonable doubt, or if you 
find that other mitigating circumstances do not justify a 
sentence of death, you may fix the defendant's punishment at life 
imprisonment." (A. 63) (Emphasis added).

The trial court also gave Instruction A which told the jury 
"that when determining the punishment to be imposed... you shall 
consider...any other facts in mitigation of the offense." This 
instruction went on to set out the two mental mitigating 
abnormalities and Petitioner's age as nonexclusive factors to be 
considered.

These instructions not only mandated that the jury consider 
mitigating circumstances, but told the jury twice that they were 
free to impose a life sentence even if they found one of the 
aggravating factors, or if they found that mitigating 
circumstances did not justify a sentence of death. The trial 
court further instructed the jury that they may impose death even 
if they found an aggravating circumstance. (S.A. 27-31).

Taken as a whole, the instructions leave no doubt that the 
jury was free to recommend a sentence of life. Courts must

T O  ,^Petitioner's entire argument on direct appeal was 
contained in one paragraph, and he only argued that Instruction 1 
emphasized the aggravating circumstances. There was no argument 
concerning his present claims that the instruction unduly 
restricted the jury's prerogative to return a life sentence or 
failed to give the jury adequate guidance regarding the 
circumstances under which it was permitted to return a life 
sentence. These latter arguments are not properly before this 
Court as a result of procedural default.

the death penalty. 8

(A. 63) (Emphasis added).

27



resist the temptation to read jury instructions myopically. In 
Henderson v. Kibbe, 431 U.S. 145, 154 (1977), this - Court* stated:,^ f: 
"the burden of demonstrating that an erroneous instruction was so 
prejudicial that it will support a collateral attack on the 
constitutional validity of a state court's judgment is even 
greater thaa the shewing required to establish plain error on 
direct appeal." When a petitioner bases a collateral attack upon 
an allegedly erroneous instruction, the burden is upon him to 
demonstrate that the alleged error, by itself, "...so infected 
the entire trial that the resulting conviction violates due 
process." Cupp v. Nauqhten, 414 U.S. 141, 147 (1973).

Petitioner contends that this Court should grant a writ of 
certiorari to resolve an alleged conflict among the circuit 
courts of appeal concerning whether jury instructions which 
define the nature and function of mitigating circumstances are 
constitutionally required. He contends that the decision of the 
Fourth Circuit in this case is in direct conflict with decisions 
of the Fifth and Eleventh Circuits. See e.g., Soivey v. Zant,
661 F.2d 464 (5th Cir. 1981), cert, denied, 458 U.S. 1111 (1982); 
Morgan v. Zant, 743 F.2d 775 (11th Cir. 1984).

This Court has just recently rejected this very argument in
Briley v. Bass, 750 F.2d 1238, (4th Cir. 1984), cert, denied, ___
U.S.___, 105 S.Ct. 1855 (1985). There would appear to be no
principled reason to grant certiorari in this case on this issue.

The line of cases upon which Petitioner relies stems from 
Spivey v. Zant, 661 F.2d 464 (5th Cir. 1981). In that case, 
however, the Court recognized that "[i]n some instances, it will 
be possible for the judge clearly to instruct the jury so as to 
guide and focus its consideration of the particularized 
circumstances of the individual offense and the individual 
offender without explicitly defining the nature and function of

19Smith's reliance upon Spivey v. Zant, 661 F .2d 464 (5th 
Cir. 1981), and other Fifth and Eleventh Circuit Cases is 
inappropriate. No such arguments were presented to the Supreme 
Court of Virginia, and are procedurally barred.

28



mitigating circumstances...." 661 F.2d at 471 (emphasis added, 
footnote omitted). As an example of such an instance,*:the Court 
cited Jurek v. Texas, 428 U.S. 262 (1976). The Court in Spivey 
acknowledged that this Court had upheld the sentencing procedure 
in Jurek, even though under Texas law the jury was given no
explicit instructions concerning mitigating circumstances. The1Court did so because the Texas procedure, by requiring the jury 
to determine, among other things, "whether there is a probability 
that the defendant would commit criminal acts of violence that 
would constitute a continuing threat to society" necessarily 
focused the jury's consideration on whatever mitigating evidence 
the defendant was able to present. Spivey, 661 F.2d at 471 n.
10. This Court's decision in Jurek was premised upon assurances 
by the Texas Court of Criminal Appeals that the so-called "future 
dangerousness" factor would be construed "...so as to allow a 
defendant to bring to the jury's attention whatever mitigating 
circumstances he may be able to show...." Jurek, 428 U.S. at 
272.

Given the fact that Spivey recognized that an instruction 
defining the nature and function of mitigating circumstances is 
not constitutionally required in a situation such as that 
involved in Jurek, there is no logical reason to conclude that 
such an instruction was constitutionally required in Petitioner's 
case. As was the case in Jurek, the jury in Petitioner's case 
was required to determine the "future dangerousness" issue.

In terms of the jury's consideration being sufficiently 
focused upon mitigating circumstances in the absence of an 
explicit instruction defining the concept of mitigation, 
Petitioner's case cannot be distinguished from Jurek in any 
meaningful way. Thus, by Spivey’s own terms, no instruction 
defining the nature and function of mitigating circumstances was 
constitutionally required in this case.

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CONCLUSION
Each of the arguments asser-te-d- by Petitioner has -been 

carefully considered and rejected by the district court and the 
Fourth Circuit. It is significant that not a single judge of the 
Fourth Circuit was impressed by Petitioner's argument. The 
Fourth Circuit has decided the issues in this case in keeping 
with precedent not only of this Court but with- other circuit 
courts.

There do not exist any special reasons or circumstances for 
reviewing the decision in this case, and no new constitutional 
rule would be developed by any decision. For these reasons the 
Petition should be denied.

Respectfully submitted,
WILLIAM G. BROADDUS 
Attorney General of Virginia

AMES E. KULP
Senior Assistant Attorney General 
101 North Eighth Street 
Richmond, Virginia 23219
Counsel for Respondent 
Allyn R. Sielaff, Director 
Virginia Department of Corrections

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