Savino v. Murray

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOSEPH JOHN SAVINO,
Petitioner-Appellant,
v.
No. 95-4006
EDWARD W. MURRAY, Director,
Virginia Department of Corrections,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CA-93-869-R)
Argued: December 7, 1995
Decided: April 30, 1996
Before MURNAGHAN, LUTTIG, and WILLIAMS, Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Judge Murnaghan wrote the opinion,
in which Judge Luttig and Judge Williams joined.
_________________________________________________________________
COUNSEL
ARGUED: Gerald Thomas Zerkin, GERALD T. ZERKIN & ASSO-
CIATES, Richmond, Virginia, for Appellant. Eugene Paul Murphy,
Assistant Attorney General, OFFICE OF THE ATTORNEY GEN-
ERAL, Richmond, Virginia, for Appellee. ON BRIEF: Melanie A.
Hopper, GERALD T. ZERKIN & ASSOCIATES, Richmond, Vir-
6350 46 12 ginia; Donald R. Lee, VIRGINIA CAPITAL REPRESENTATION
RESOURCE CENTER, Richmond, Virginia, for Appellant. James S.
Gilmore, III, Attorney General of Virginia, OFFICE OF THE
ATTORNEY GENERAL, Richmond, Virginia, for Appellee.
_________________________________________________________________
OPINION
MURNAGHAN, Circuit Judge:
Virginia death row inmate Joseph John Savino, Jr., has appealed a
federal district court's decision dismissing his petition for a writ of
habeas corpus and denying his motion to alter or amend the judg-
ment. Savino contends that the district court improperly found no
merit in his constitutional claims concerning ineffective assistance of
counsel, improper acceptance of his guilty plea, and impermissible
use of expert testimony to be without merit. Because we agree with
the district court's analysis and conclusions, we affirm the judgment
below.
I.
On the night of November 29, 1988, Thomas McWaters was mur-
dered at his farmhouse in Bedford County, Virginia. Two days later,
Joseph Savino confessed to killing McWaters by repeatedly striking
him on the head with a hammer and stabbing him in the neck and
back.
At the time of the murder, Savino and McWaters lived together on
McWaters's farm. They had met in 1980 when Savino worked for
McWaters's construction firm while on parole from a New York
prison sentence. In 1982, Savino was convicted of two counts of rob-
bery and reincarcerated. During the next six years, McWaters fre-
quently visited Savino in prison, communicated with him by
telephone and gave him money. In return, Savino wrote affectionate
letters to McWaters suggesting that they begin a homosexual relation-
ship.
When Savino was paroled from prison in February 1988, he moved
into McWaters's home. The two men became lovers. Later that year,
2
Savino began using cocaine. Without permission, he wrote checks on
McWaters's checking account in order to purchase drugs. When he
overdrew the account, Savino faced twenty-six forging and uttering
charges in Bedford County. Before Bedford authorities could find
him, however, police in Roanoke, Virginia, arrested him on Novem-
ber 22, 1988, for possessing cocaine and drug paraphernalia. Released
on a bail bond November 29, 1988, Savino returned to McWaters's
farm.
That same evening, Savino spoke with a friend by telephone about
killing McWaters, as he had done on previous occasions.1 Later that
night, Savino used cocaine, then joined McWaters in bed. When
Savino refused to have sex, McWaters told him that he was "washing
his hands of [him]." Savino went downstairs, thought a while and
decided to "eliminate the problem." He picked up a hammer and
returned to the upstairs bedroom where McWaters was sleeping. He
struck McWaters on the head several times with considerable force.
Believing McWaters still to be alive, Savino retrieved two knives
from downstairs and stabbed him repeatedly in the neck and back.
Leaving the knives in the victim's body, Savino took about $100 in
cash and drove to Roanoke to purchase cocaine. Later that night, he
revisited McWaters's house, loaded a car with his own property and
some items belonging to McWaters, and then returned to Roanoke.
The next day, November 30, 1988, police arrested Savino in Roanoke
for failure to appear in court on the earlier drug charges.
Bedford authorities picked up Savino in Roanoke and took him
back to their county jail to process him on the forging and uttering
charges. They reported that, at first, Savino appeared lethargic and
under the influence of drugs, but that by the time they arrived in Bed-
ford County, he seemed substantially improved. Bedford police ques-
tioned Savino about the forgeries of McWaters's checks until he
requested counsel. As officers processed the forgery warrants, a ser-
geant asked Savino why he had killed McWaters. Savino ended the
interview, but after sleeping for several hours in a jail cell, he asked
_________________________________________________________________
1 These facts were derived mostly from Savino's own testimony at the
state plea proceeding on June 13-15, 1989, and the state habeas hearing
on July 21-22, 1992.
3
to speak with a particular investigator, Steve Rush. In two separate
statements, Savino then confessed to killing McWaters.
A Bedford County grand jury indicted Savino on capital murder
and robbery charges on December 2, 1988.2 The court appointed
counsel to represent Savino. On April 24, 1989, the day his jury trial
was set to begin, Savino pled guilty to the charges. Pursuant to Vir-
ginia's bifurcated-trial procedure, the trial judge heard three days of
testimony at the penalty phase.3 On June 15, 1989, the judge found
Savino to be a future danger and imposed a sentence of death. After
reviewing the post-sentence report, he entered final judgment on July
20, 1989, sentencing Savino to death for the capital murder and to life
imprisonment for the robbery.
On direct appeal, the same court-appointed counsel represented
Savino. The Virginia Supreme Court affirmed Savino's convictions,
then independently reviewed Savino's sentence and found it neither
excessive nor disproportionate. The United States Supreme Court
denied certiorari on October 1, 1990. Savino then filed a habeas
corpus petition in the Circuit Court of Bedford County, raising
numerous challenges to his death sentence. After two evidentiary
hearings, the circuit court entered an order dismissing the petition on
June 5, 1992. The Virginia Supreme Court denied Savino's appeal on
October 30, 1992, and the United States Supreme Court again denied
certiorari on March 22, 1993.
Savino filed a federal habeas petition pursuant to 28 U.S.C. § 2254in the United States District Court for the Western District of Virginia
on November 17, 1993. He raised fourteen claims. The district court
dismissed the petition on March 1, 1995, and denied a motion to
amend or alter the judgment on June 7, 1995. Savino filed a timely
_________________________________________________________________
2 The indictment charged that Savino "did willfully, deliberately, felo-
niously and with premeditation, kill and murder Thos`Thomas'
McWaters, Jr. in the commission of robbery while armed with a deadly
weapon," in violation of Va. Code Ann. § 18.2-31(d). The indictment
also charged the underlying robbery.
3 Under Va. Code Ann. § 19.2-264.4, the guilt and penalty phases of a
capital murder case are conducted in separate proceedings.
4
appeal, challenging the district court's decision only with respect to
his legal representation, guilty plea and future dangerousness.
II.
We review the district court's legal determinations de novo, keep-
ing in mind, however, that any state court factual findings underlying
those determinations are presumed to be correct and binding, as long
as they were made after a hearing on the merits. 28 U.S.C. § 2254(d);
see also Sumner v. Mata, 449 U.S. 539, 550 (1981). The habeas peti-
tioner bears the burden of establishing by convincing evidence that a
state court's factual determinations were erroneous. Sumner, 449 U.S.
at 550.
A. Ineffective Assistance of Counsel
The record shows that Savino insisted upon pleading guilty against
the defense counsel's advice. Before he entered his plea, Savino's
appointed attorneys worked to prepare his case, consulting capital
defense experts and investigating possible defenses. They discussed
alternative strategies with Savino and advised him that by pleading
guilty he would waive his rights to appeal his conviction. At the plea
hearing, the state court judge reviewed a signed memorandum of
understanding between Savino and his counsel.4 Savino told the judge
that his attorneys had reviewed the document with him and explained
in detail the items it contained.5 In open court, Savino told the judge
that he understood everything in the memorandum, that he was satis-
_________________________________________________________________
4 Such memoranda are routinely required by the judges in that circuit.
5 In the memorandum, Savino stated that he had told his lawyers all of
the facts and circumstances surrounding the case and that his lawyers had
discussed with him the nature of the charges against him and the possible
defenses he might have. Savino further represented that his attorneys had
explained, and that he understood, all of the elements of the offenses
with which he had been charged and that would have had to be proved
before he could be found guilty. The memorandum set forth all of the
rights that Savino would have if he entered a plea of not guilty and con-
veyed his understanding that by pleading guilty he would waive those
rights and "all objections to the admissibility of the statement to Investi-
gator Rush and all other evidence."
5
fied with the service of his attorneys, and that he was pleading guilty
voluntarily.
Savino now argues, and argued below, that his plea was not know-
ing and voluntary because his lawyers misadvised him. Savino con-
tends that three viable defenses existed which counsel failed to
disclose or pursue. He contends that he would not have pled guilty if
he had known about these defenses, but rather, would have chosen to
pursue them at trial because each was supported by substantial evi-
dence. Savino maintains that his plea is particularly questionable
because he received no benefit from it--no promise of a shorter sen-
tence or a lesser charge in exchange. Whether counsel's performance
was constitutionally adequate is a mixed question of law and fact
which we review de novo. Ostrander v. Green, 46 F.3d 347, 354 (4th
Cir. 1995); Poyner v. Murray, 964 F.2d 1404, 1416 (4th Cir.), cert.
denied, 506 U.S. 958 (1992).
The standard set forth in Strickland v. Washington, 466 U.S. 668(1984), governs Sixth Amendment ineffective assistance of counsel
claims. In order to succeed, a criminal defendant must show, first, that
he received deficient legal representation, and second, that the unpro-
fessional errors prejudiced his case. Id. at 688, 694. Competency is
measured against what an objectively reasonable attorney would have
done under the circumstances existing at the time of the representa-
tion. Id. at 687-88. Because counsel's conduct carries a strong pre-
sumption of reasonableness, reversal is warranted only if the
defendant can affirmatively prove prejudice. Id. at 689, 693. In the
context of a guilty plea, the prejudice inquiry is"whether counsel's
constitutionally ineffective performance affected the outcome of the
plea process." Hill v. Lockhart, 474 U.S. 52, 59 (1985). The defendant
must show that "there is a reasonable probability that, but for coun-
sel's error, he would not have pleaded guilty and would have insisted
on going to trial." Id. Because a guilty plea is valid only if it repre-
sents a knowing and voluntary choice among alternatives, Hill, 474
U.S. at 56, a client's expressed intention to plead guilty does not
relieve counsel of their duty to investigate possible defenses and to
advise the defendant so that he can make an informed decision, see
Via v. Superintendent, Powhatan Correctional Center , 643 F.2d 167,
174 (4th Cir. 1981) (discussing obligations of defense counsel). How-
ever, if there exists no reasonable probability that a possible defense
6
would have succeeded at trial, the alleged error of failing to disclose
or pursue it cannot be prejudicial. Hill, 474 U.S. at 59.
Reviewing each of Savino's allegations of ineffectiveness in turn,
we find no constitutionally deficient performance. In light of both the
circumstances and the law at the time, Savino's attorneys made rea-
sonable determinations and provided adequate representation. There-
fore, we need not analyze for prejudice.
1. Illegal Confession
Before Savino entered his guilty plea, his attorneys discussed the
police questioning with him and advised him that a motion to sup-
press his confession was unlikely to succeed. He now argues that his
attorneys should have filed a motion to suppress anyway because, at
the very least, the Commonwealth would have been forced to prove
his confession untainted. Savino maintains that a suppression motion
was likely to be granted, however, because police officers violated his
Fifth Amendment rights by questioning him about McWaters's mur-
der after he had asked for a lawyer. Because Savino responded to the
questioning by saying he would talk with investigators in the morn-
ing, he contends that the improper interrogation led to his confession
later that day, rendering it tainted and inadmissible.6
In Edwards v. Arizona, 451 U.S. 477, 484 (1981), the Supreme
Court ruled that once a defendant has invoked his constitutional rights
and requested an attorney under Miranda v. Arizona, 384 U.S. 436(1966), any confession obtained by interrogation reinitiated by police
in the absence of counsel is inadmissible. See also Arizona v.
Roberson, 486 U.S. 675, 687-88 (1988) (holding Edwards bars
police-initiated interrogation following a suspect's request for counsel
in the context of a separate investigation). If, however, the defendant
reinitiates discussion with police and then confesses, the statement
may be admissible.7 Minnick v. Mississippi, 498 U.S. 146, 156
_________________________________________________________________
6 Savino actually made two incriminating statements on December 1,
1988--one at 1:00 p.m., and another at 4:25 p.m.
7 The Edwards rule was designed to preserve the integrity of the
accused's choice to communicate with police only through counsel.
7
(1990); Edwards, 451 U.S. at 485. A defendant who ends police-
initiated interrogation by requesting counsel, then specifically calls
for an officer with whom to talk about the incident in question, has
reinitiated further conversation for Edwards purposes. United States
v. Comosona, 848 F.2d 1110, 1112-13 (10th Cir. 1988); McCree v.
Housewright, 689 F.2d 797, 802 (8th Cir. 1982), cert. denied sub
nom., 460 U.S. 1088 (1983).
Applying these principles, Savino clearly reinitiated contact before
confessing to investigators. Following his arrest, Bedford police offi-
cers questioned Savino about forged check charges until he requested
an attorney. When an officer subsequently--and improperly--asked
Savino why he killed McWaters, Savino responded"you're crazy,"
but gave no inculpatory answer. Officers apparently continued dis-
cussing McWaters's killing with Savino, at one point tossing a picture
of the dead man's body on the table before him. Finally, Savino said
he would speak with officers in the morning after he had gotten some
sleep. When he awoke about 1 p.m., Savino asked to speak with
Investigator Rush by name. He then sent a note requesting to see the
investigator. At the onset of the interview, Savino both orally and in
writing waived his constitutional rights. He confirmed that he had ini-
tiated the contact with police. Only then did Savino confess to the
crimes. The record shows that Savino reaffirmed the voluntary nature
of his statements throughout the interrogation. At the start, he asked
Rush to allow him to tell his story straight through without questions.
After doing so, Savino indicated that he knew his confession was
against his best interests because it eliminated any possible defense
to the crime, but he observed: "[W]hat I did was so terrible that . . .
I don't really deserve a day in court."8
_________________________________________________________________
Patterson v. Illinois, 487 U.S. 285, 291 (1988). Specifically, Edwards
and its progeny seek "to prevent police from badgering a defendant into
waiving his previously asserted Miranda rights." Minnick v. Mississippi,
498 U.S. 146, 150 (1990) (quoting Michigan v. Harvey, 494 U.S. 344,
350 (1990)).
8 A few hours later, Savino gave the second statement in which he
again confessed to the crimes after being reminded of his constitutional
rights.
8
Savino later described the interrogation to his attorneys. Savino
explained that he had wanted to talk to the officers, that nothing they
said or did caused him to confess, and that his statements were true.
Applying the existing law to these facts, we find that it was reason-
able for Savino's attorneys to conclude that their client had voluntar-
ily reinitiated contact with police. Furthermore, it was logical to
surmise that his statements would be ruled admissible if challenged.
Even assuming, as Savino contends, that the officer's question dur-
ing processing was improper interrogation and that defense counsel
failed to recognize it as such, the statement elicited was not self-
incriminatory and thus not protected by Edwards , 451 U.S. at 485-86.
Furthermore, the fact that Savino initiated the later police contact
eliminates any taint that might have arisen from the earlier question-
ing. In Edwards, the Supreme Court explained that once a defendant
initiates discussion with authorities, "nothing in the Fifth and Four-
teenth Amendments would prohibit the police from merely listening
to his voluntary, volunteered statements and using them against him
at trial." Edwards, 451 U.S. at 485.
Finally, we find little if any evidence in the record to support
Savino's contention that his physical condition at the time of his state-
ments precluded their voluntariness. Savino advised his attorneys that
he was not under the influence of cocaine at the time he confessed.
Even if he had been intoxicated when arrested in Roanoke, officers
testified that he seemed normal by the time he reached Bedford
County. In addition, Savino slept several hours before meeting with
police again after the initial interview. Savino initiated that contact
and expressly waived his Miranda rights after being reminded of
them. Defense attorneys testified that they did consider moving to
suppress Savino's statements on the basis of his mental and physical
state, but after reviewing his medical evaluation and discussing his
mental condition, they decided that there was no evidence to support
a claim of involuntary confession.
In light of all of the evidence regarding Savino's statements to
police and the information known to his attorneys, we cannot say that
Savino's counsel performed unreasonably or inconsistently with
existing law in their treatment of his confession.
9
2. Robbery Predicate Challenge
Savino also contends that counsel provided poor representation by
failing to challenge the robbery predicate to the capital murder
charge. We disagree.
Under Virginia law, murder in the commission of a robbery is "a
killing which takes place before, during, or after the robbery and is
so closely related thereto in time, place, and causal connection as to
make the killing part of the same criminal enterprise as the robbery."
George v. Virginia, 411 S.E.2d 12, 20 (Va. 1991) (citing 1981 and
1982 opinions), cert. denied, 503 U.S. 973 (1992); see also Harward
v. Virginia, 330 S.E.2d 89, 91 (Va. 1985) (explaining that the lan-
guage "during the commission of" in § 18.2-31 can include a killing
before, during or after the underlying felony). Thus, robbery need not
be the sole motive to sustain a charge of capital murder during the
commission of a robbery in Virginia. George, 411 S.E.2d at 21. To
prove a defendant guilty, the prosecution must show that the murder
and the robbery "were interdependent objects of a common criminal
design." Quesinberry v. Virginia, 402 S.E.2d 218, 224 (Va.), cert.
denied, 502 U.S. 834 (1991). The fact that stealing occurs after the
killing does not prove that the decision to steal was an afterthought
and the two crimes were unrelated. Whitley v. Virginia, 286 S.E.2d
162, 166-67 (Va.), cert. denied, 459 U.S. 882 (1982).
Based on the evidence before us, a reasonable person could find
that Savino committed robbery in connection with McWaters's mur-
der. The record shows that Savino was in possession of McWaters's
wallet when he was arrested. He admitted that he took McWaters's
cash immediately after the murder and that he stole jewelry and other
property belonging to the victim when he returned to the house later
that night. He also told police that he had been planning to murder
McWaters and then to escape with a friend to "South America or
Mexico or something like that" afterward. Although there was some
evidence that the plan never existed, a reasonable person could find
the scheme linked to Savino's theft of McWaters's money and jew-
elry. In addition, because Savino also told police,"all I wanted is the
cocaine," the Commonwealth could have succeeded in arguing that
Savino's drug habit induced both the killing and the robbery. Either
10
theory would satisfy the capital murder requirement that robbery was
a motive that existed at the time of the killing.
Savino's attorneys testified that they knew the state of Virginia law
regarding capital murder during the commission of a robbery at the
time they handled Savino's case. They stated that they considered the
evidence against Savino and the possible prosecution arguments. The
attorneys discussed the matter with Savino, among themselves, and
with experts at the Washington & Lee Capital Litigation Project.
Based on the information before them and the requirements of Vir-
ginia law, we find that the attorneys had sufficient reason to conclude
that there was little chance of defeating the Commonwealth's proof
that Savino murdered McWaters during the commission of a robbery.
It was not an unreasonable strategy to forego the defense.
3. Intoxication Defense
Finally, Savino maintains that his attorneys should have pursued,
or at least discussed with him, a defense of diminished capacity due
to intoxication to both the capital murder charge and the lesser
included offense of first degree murder. Again, we cannot agree.
Under Virginia law, mere intoxication does not negate premedita-
tion. Fitzgerald v. Virginia, 292 S.E.2d 798, 807 (Va. 1982), cert.
denied, 459 U.S. 1228 (1983); Giarratano v. Virginia, 266 S.E.2d 94,
99 (Va. 1980), cert. denied, 498 U.S. 881 (1990). A defendant may
avoid conviction of capital or first degree murder if he can prove that
he was so greatly intoxicated at the time of the killing that he could
not deliberate or premeditate. Essex v. Virginia , 322 S.E.2d 216, 220
(Va. 1984); Fitzgerald, 292 S.E.2d at 807; Johnson v. Virginia, 115
S.E. 673, 675-76 (Va. 1923). Even in the face of evidence of extreme
intoxication from alcohol or drugs, the factfinder may find willful-
ness, premeditation and deliberation if there is proof that the defen-
dant was "in full control of his faculties and knew exactly what he
intended to do." Fitzgerald, 292 S.E.2d at 807; see also Johnson, 115
S.E. at 675.
We do not believe that Savino could have presented a viable intoxi-
cation defense. Although Savino admitted he had used cocaine on the
night of the murder and a defense expert concluded that he was suf-
11
fering from a cocaine-linked psychosis and possibly delusions at the
time of the killing, the evidence is more than sufficient to show pre-
meditation. Savino has offered no proof that cocaine made him inca-
pable of deliberation or that he did not intend to kill.
Savino's statements to police reveal the actions of a person who,
although possibly "high," was thinking in a logical, deliberate and evil
manner. He admitted that he had discussed with a friend the idea of
killing McWaters and even a possible method: strangulation with a
phone cord. Savino explained that he sat downstairs contemplating
the murder before he actually committed it. Then, he got a hammer,
went upstairs, beat McWaters, returned downstairs for knives, and
stabbed McWaters until he was dead. Savino told police that he knew
that it was risky to use the telephone at the house after the killing, so
he decided to use a pay phone. Finally, Savino seemed to display
complete and clear recall of the events when recounting the killing to
police and to defense counsel.
Savino's attorneys testified that they considered his conduct before
and around the time of the killing and researched the extent of intoxi-
cation necessary to preclude premeditation in Virginia. They con-
cluded that the Commonwealth could prove that premeditation had
been present and that Savino's deliberate acts before, during and after
the murder demonstrated no inability to know right from wrong or to
make a deliberate decision. Again, we conclude that, in light of the
facts before them, the attorneys' decision was consistent with control-
ling Virginia law and constitutionally sufficient.
Because the record so clearly indicates that Savino's attorneys
investigated possible defenses, made strategic choices, and then ren-
dered advice and representation consistent with both controlling law
and the circumstances of the case, we agree with the district court that
there has been no showing of deficiency. There is, therefore, no need
to determine whether Savino was prejudiced by counsel's conduct.
B. Guilty Plea
Savino next complains that the trial court violated his Fourteenth
Amendment rights by accepting his guilty plea without affirmatively
establishing on the record that the plea was knowing and voluntary.
12
We agree with the Commonwealth that the claim is both procedurally
defaulted and without merit.
Under Virginia law, trial errors that could have been but were not
presented on direct appeal may not be raised in habeas corpus pro-
ceedings. Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974), cert.
denied sub nom., 419 U.S. 1108 (1975). Such claims are also barred
on federal habeas review. Harris v. Reed , 489 U.S. 255, 262 (1989);
Wainwright v. Sykes, 433 U.S. 72, 87 (1977). Only when the peti-
tioner shows "cause for the default and actual prejudice as a result of
the alleged violation of federal law, or demonstrates that failure to
consider the claims will result in a fundamental miscarriage of jus-
tice," may the federal habeas court consider the challenge. Coleman
v. Thompson, 501 U.S. 722, 750 (1991); Harris, 489 U.S. at 262.
Savino alleges a trial court error of the sort barred by Slayton and
Dodson. He argues, however, that his claim should be considered on
the merits because it is akin to an ineffective assistance of counsel
claim which could not have been raised on direct appeal. The compar-
ison fails, however. The error was allegedly committed by the court,
not counsel, and thus Savino's attorneys would not have had to con-
cede ineffectiveness in order to present the challenge. Savino's own
argument that the error is obvious from the transcript of the plea pro-
ceeding further demonstrates that the claim could have been raised on
direct appeal. Because Savino failed to present the issue on direct
appeal when he could have done so, the state habeas court found the
claim procedurally defaulted under Slayton. The Virginia Supreme
Court then refused to review the claim as procedurally defaulted, thus
foreclosing federal court review under Sykes and its progeny. See
Coleman, 501 U.S. at 750 (the procedural default is considered an
adequate and independent state ground that forecloses review of the
claim in federal court); Bunch v. Thompson, 949 F.2d 1354, 1363 (4th
Cir. 1991). Because Savino has shown neither "cause" and "preju-
dice" for his default nor alleged a fundamental miscarriage of justice,
we are precluded from considering his claim on the merits.
Even if we did reach the substance of Savino's claim and review
it de novo, see Marshall v. Lonberger , 459 U.S. 422, 431 (1983) (stat-
ing that voluntariness of a plea is a mixed question of law and fact
appropriate for de novo review), we would not rule it meritorious. The
13
record indicates that Savino was adequately informed of the nature
and the consequences of his guilty plea. Before taking the plea, the
trial judge reviewed the memorandum of understanding with him in
open court. The judge confirmed that Savino read and understood the
memorandum, then signed it with full knowledge. In response to the
judge's questions, Savino declared that his plea was free and volun-
tary. The colloquy, coupled with the substance of the memorandum,
more than satisfies the concerns articulated in Boykin v. Alabama, 395
U.S. 238, 243-44 (1969) (finding that courts may not presume from
a silent record a waiver of constitutional rights associated with a not
guilty plea, but must engage in a thorough, on-the-record inquiry to
establish that the defendant voluntarily and understandingly enters his
guilty plea). See also Wade v. Coiner, 468 F.2d 1059, 1060 (4th Cir.
1972) (holding that a state judge may satisfy Boykin concerns by
ensuring that an attorney has advised the defendant of the nature of
the charge and the consequences of his plea). In addition, such in-
court representations from the defendant are treated as conclusive
with regard to the validity of the plea and may not be controverted
later absent some compelling reason, which Savino has failed to pres-
ent. See Via, 643 F.2d at 171. Moreover, when a defendant making
a guilty plea is represented by counsel, as Savino was, his plea is
strongly presumed to be valid in subsequent habeas proceedings.
United States v. Custis, 988 F.2d 1355, 1363 (4th Cir. 1993), aff'd,
114 S.Ct. 1732 (1994). For these reasons, we would agree with the
district court's conclusion that the record demonstrates that Savino's
plea was knowing and voluntary.
C. Mental Health Expert Testimony
Savino's final argument is that testimony by the Commonwealth's
mental health expert regarding future dangerousness violated his Fifth
Amendment right against compelled self-incrimination and his Sixth
Amendment right to effective assistance of counsel. We find no such
violations.
The United States Supreme Court has held that a capital defendant
who undergoes psychological evaluation and faces the results of that
examination as evidence at the penalty stage is protected by both the
Fifth and Sixth Amendments. Estelle v. Smith, 451 U.S. 454, 471
(1981). Under the Fifth Amendment, the defendant is entitled to
14
warning before the evaluation that he has the right to remain silent
and that if he waives that right by cooperating, his statements to the
evaluator may be used against him at the penalty phase. Id. at 462-63.
The defendant also has a Sixth Amendment right to effective assis-
tance from his attorney regarding the decision of whether to cooper-
ate, which requires that his attorney receive notice of the scope,
nature and intended uses of the evaluation. Id. at 470-71. Both amend-
ments thus require clear notice to the defendant and his counsel
regarding any psychiatric evaluation by the prosecution. Id. at 471.
In Smith, the Court differentiated between a defendant who intends
to introduce psychiatric evidence on his own behalf and one who
"neither initiates a psychiatric evaluation nor attempts to introduce
any psychiatric evidence." Id. at 468, 472. When a defendant asserts
a mental status defense and introduces psychiatric testimony in sup-
port of that defense, he may face rebuttal evidence from the prosecu-
tion taken from his own examination or he may be required to submit
to an evaluation conducted by the prosecution's own expert.
Buchanan v. Kentucky, 483 U.S. 402, 422-23 (1987); Smith, 451 U.S.
at 465. That defendant has no Fifth Amendment protection against the
introduction of mental health evidence in rebuttal to the defense's
psychiatric evidence. Powell v. Texas, 492 U.S. 680, 684-85 (1989);
Buchanan, 483 U.S. at 422-23. In essence, the defendant waives his
right to remain silent--but not his right to notice--by indicating that
he intends to introduce psychiatric testimony. Powell, 492 U.S. at
685.
In Virginia, the statutory scheme set forth in Va. Code Ann. § 19.2-
264.3:1 governs the use of psychiatric testimony in a capital case.9
_________________________________________________________________
9 In subsection A, the statute provides that upon the request of an indi-
gent capital defendant, the trial court must appoint a mental health expert
to evaluate the defendant and assist the defense with regard to the defen-
dant's history, character, or mental condition. According to subsection E,
a capital defendant planning to present the expert's testimony at sentenc-
ing in support of mitigation must notify the Commonwealth. Only then,
subsection F specifies, may the Commonwealth seek appointment of its
own expert to examine the defendant concerning mitigating circum-
stances. If the defendant refuses to cooperate, he may lose the right to
use his own expert's testimony in mitigation.
15
The provisions operate to notify the defense that its decision to intro-
duce psychiatric testimony constitutes a waiver of the defendant's
right to remain silent during examination by the Commonwealth's
mental health examiner. The statute treats the defendant's waiver as
a condition precedent to the prosecution's use of psychiatric evidence.
See Washington v. Murray, 952 F.2d 1472, 1480 (4th Cir. 1991) (con-
struing Virginia statute). It details the conditions under which the
Commonwealth is entitled to have an examiner evaluate the defendant
and outlines the scope and permissible uses of that examination. Va.
Code Ann. § 19.2-264.3:1(F) & (G).
In preparation for the penalty phase of the trial, Savino's counsel
moved the court for appointment of a mental health expert, pursuant
to Va. Code Ann. § 19.2-265.3:1(A). Several months later, the
defense gave notice that it intended to present information from the
court-appointed expert, Dr. Lisa Hovermale, to support a claim in
mitigation. Soon after, the court granted the Commonwealth's motion
for appointment of a second expert under § 19.2-265.3:1(F). The
Commonwealth indicated that, if Savino were convicted, it would
present at sentencing the report of that expert, Dr. Arthur Centor. At
the penalty phase, Dr. Centor did testify, stating that there was a "high
probability" that Savino would be a future danger to society.
It is clear that Savino waived his Fifth Amendment rights by
requesting a psychiatric evaluation pursuant to the applicable statute.
The statute, both on its face and by operation, provided the defense
with adequate notice of the waiver. That notice was supplemented by
the Smith line of cases. See Buchanan , 483 U.S. at 425 (stating that
Smith put defense counsel on notice of the waiver). Furthermore, both
defense counsel and the Commonwealth's expert had warned Savino
beforehand that any information he gave to the psychiatrist could be
used in the capital sentencing phase. Under our precedent, such
advice precludes a defendant's Fifth Amendment claim. Giarratano
v. Procunier, 891 F.2d 483, 487-88 (4th Cir. 1989), cert. denied, 498
U.S. 881 (1990).
The statute also provided adequate warning of the scope of the
Commonwealth's evaluation and the possible uses of the mental
health information gathered. While Savino argues that he deserved
specific notice that his evaluation could be used to establish future
16
dangerousness, Smith and its progeny do not require such specific
notice. In Woomer v. Aiken, 856 F.2d 677, 681-82 (4th Cir. 1988),
cert. denied, 489 U.S. 1091 (1989), we applied Buchanan to reject a
nearly identical claim. There, we found no Fifth or Sixth Amendment
violation because defense counsel had requested one mental health
evaluation and consented to the other, and thus had actual notice of
the examinations. Id. at 682. We further concluded that the Constitu-
tion does not require that a defendant be specifically notified that a
psychiatric evaluation might provide a basis for a future dangerous-
ness argument. Id. Given that the facts before us are nearly identical
to those in Woomer, we reach the same result.
Finally, Va. Code Ann. § 19.2-264.3:1 differentiates between a
defendant's statements made during psychiatric evaluation and an
expert's opinion based upon such statements. The statute forbids the
use of statements or disclosures made by the defendant during a capi-
tal sentencing evaluation as evidence against the defendant for the
purpose of proving aggravating circumstances, but it allows the use
of those statements or disclosures in rebuttal to issues raised by the
defense in mitigation. Va. Code Ann. § 19.2-264.3:1(F) & (G).
Because the statute does not preclude use of the opinion of the Com-
monwealth's examiner for establishing an aggravating circumstance,
however, the Virginia Supreme Court has determined that its provi-
sions permit the expert's opinions on future dangerousness. Stewart
v. Virginia, 427 S.E.2d 394, 407-08 (Va.), cert. denied, 114 S.Ct. 143(1993); Edmonds v. Virginia 329 S.E.2d 807, 813 (Va.), cert. denied,
474 U.S. 975 (1985); see also Barefoot v. Estelle, 463 U.S. 880, 896-
903 (1983) (holding espert psychiatric testimony admissible on issue
of predicting furture dangerousness). Not only are we bound by deci-
sions of state courts on state questions when we sit in habeas review,
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991), but we find the inter-
pretation consistent with the constitutional standards set forth in
Buchanan, 483 U.S. at 410-11. We further conclude that Dr. Centor's
testimony abides by these rules and principles.
At sentencing, the Commonwealth's expert did not disclose any
statement that Savino made during his evaluation. Dr. Centor merely
rendered an opinion as to Savino's future dangerousness. The doctor
testified that he based his opinion on evidence other than Savino's
statements to him, naming three factors that he considered--Savino's
17
past criminal history, the nature of the crime, and Savino's history of
substance abuse. Upon cross-examination by the Commonwealth,
however, the defense expert read aloud a fourth factor from Dr. Cen-
tor's report: Savino's "stated conviction from an early age that he'll
die before his time and therefore there's no use in trying to make any-
thing out of himself." Dr. Hovermale read the statement of her own
accord.
Even if the testimony constituted error, it was harmless. Under Vir-
ginia law, the circumstances of the criminal offense in and of them-
selves may constitute sufficient evidence of future dangerousness. Va.
Code Ann. § 19.2-264.4(C); Delong v. Virginia, 362 S.E.2d 669, 677
(Va. 1987), cert. denied, 485 U.S. 929 (1988). At sentencing, the
Commonwealth presented compelling evidence of Savino's prior
criminal record and his own statements of his criminal history. The
nature of the crime and the circumstances surrounding it certainly
revealed viciousness and dangerousness. Dr. Centor presented his
opinion that Savino represented a future danger, but he specified that
his opinion was based on Savino's criminal history and drug addic-
tion, as well as the nature of the crime. In addition to Savino's state-
ments during the evaluation, Dr. Centor said he reviewed numerous
outside materials.10 Excluding Savino's statements, therefore, would
probably have had little if any impact on Dr. Centor's assessment.
Moreover, Dr. Centor never mentioned his interview with Savino
upon direct examination; he did so on only upon questioning by the
defense. Thus, the alleged error cannot be said to have had a "substan-
tial and injurious effect or influence in determining the[ ] verdict."
Brecht v. Abrahamson, 113 S.Ct. 1710, 1713 (1993).
Consequently, we find that Savino's constitutional rights were not
violated by Dr. Centor's testimony regarding future dangerousness.
_________________________________________________________________
10 Dr. Centor said he reviewed police reports, Savino's statements to
police, FBI reports of previous convictions and sentences, the medical
examiner's report, Dr. Hovermale's report, copies of twenty-six warrants
for Savino's arrest, and photographs of the crime scene.
18
III.
For the foregoing reasons, the district court's order denying habeas
relief is
AFFIRMED.
19