Wilbert Lee Evans v. Virginia, 471 U.S. 1025 (1985)
Content
471 U.S. 1025
105 S.Ct. 2037
85 L.Ed.2d 319
Wilbert Lee EVANS
v.
VIRGINIA
No. 84-1224
Supreme Court of the United States
April 15, 1985
On petition for writ of certiorari to the Supreme Court of Virginia.
The petition for a writ of certiorari is denied.
Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.
1
I continue to adhere to my view that the death penalty is under all
circumstances cruel and unusual punishment forbidden by the Eighth and
Fourteenth Amendments, and I would vacate the judgment of the Supreme
Court of Virginia insofar as it left undisturbed the death sentence imposed in
this case. Gregg v. Georgia, 428 U.S. 153, 231, 96 S.Ct. 2909, 2973, 49
L.Ed.2d 859 (1976) (MARSHALL, J., dissenting). However, even if I believed
that the death penalty could constitutionally be imposed under certain
circumstances, I would grant certiorari to decide the constitutional validity of
the death sentence imposed here.
2
* Petitioner Wilbert Lee Evans was convicted of capital murder in April 1981.
At his sentencing hearing, the State urged the jury to recommend the death
sentence based on Evans' "future dangerousness." To prove future
dangerousness, the State relied principally upon the records of seven purported
out-of-state convictions. The State's prosecutor later admitted that he knew, at
the time he introduced the records into evidence, that two of them were false.
App. to Pet. for Cert. 50a-52a. One of the seven "convictions," for assault on an
officer with a deadly weapon, had been dismissed on appeal. Another, for
engaging in an affray with a deadly weapon, had been vacated on appeal, and
Evans had been reconvicted in a trial de novo; the conviction for one crime
was, however, counted as two convictions.1 After considering Evans' prior
"history," the jury determined that there was a probability that he would
commit criminal acts of violence that would constitute a continuing serious
threat to society, see Va.Code § 19.2-264.4 C (1983), and it recommended the
death penalty based solely upon its finding of future dangerousness. 228 Va.
468, 323 S.E.2d 114 (1984). Evans was sentenced to death on June 1, 1981.
3
On October 16, 1981, while Evans' direct appeal was pending, the Supreme
Court of Virginia ruled that, when a capital defendant's right to a fair and
impartial jury is violated during the sentencing phase of trial, a death sentence
must be commuted to life imprisonment. Patterson v. Commonwealth, 222 Va.
653, 283 S.E.2d 212 (1981). The court premised its decision on a construction
of the then-existing death-penalty statute under which only the jury that finds a
capital defendant guilty can fix his punishment. Because the original jury,
tainted by the constitutional error, could not be reconvened to resentence the
defendant, the death sentence had to be reduced automatically to life
imprisonment. Id., at 660, 283 S.E.2d, at 216.
4
This ruling was in effect when the Virginia Supreme Court considered Evans'
direct appeal. Therefore, had that court known of the error in the sentencing
hearing and vacated Evans' death sentence, he would very likely have received
a life sentence.2 But the State not only failed to confess its error, it listed all the
purported convictions, including the erroneous ones, in its brief. App. to Pet. for
Cert. 42a. In sustaining Evans' death sentence, the State Supreme Court relied,
in part, on this inaccurate record. Id., at 31a. When Evans petitioned this Court
for a writ of certiorari, the State again relied on the misleading records of
convictions in its brief in opposition. Id., at 46a. Certiorari was denied. 455
U.S. 1038, 102 S.Ct. 1741, 72 L.Ed.2d 155 (1982).
5
The State did not notify Evans that it would confess its error regarding the false
evidence until March 28, 1983. App. to Pet. for Cert. 73a. On that day, the
Virginia Governor signed into law a bill that amended the state death-penalty
statute to allow for resentencing by a different jury after a death sentence was
set aside, thus effectively overruling Patterson. See Va.Code § 19.2-264.3 C
(1983). The State subsequently confessed error to the trial judge on April 12,
1983. At a hearing to consider the propriety of resentencing Evans, the
prosecutor at Evans' trial admitted that he knew the evidence that he introduced
at the sentencing hearing was false. The judge then ordered a new sentencing
hearing. A new jury recommended the death penalty, and petitioner was again
sentenced to death.
II
6
In Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), this
Court reversed a conviction obtained through the use of false evidence that was
known to be false by representatives of the State. Since Napue, this Court has
adhered to the principle that a conviction obtained by the knowing use of false
evidence is fundamentally unfair. See, e.g., United States v. Agurs, 427 U.S. 97,
103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976); Miller v. Pate, 386 U.S. 1, 7,
87 S.Ct. 785, 788, 17 L.Ed.2d 690 (1967). The rule of Napue is undoubtedly
applicable to the sentencing phase of a capital trial. In this case, the prosecutor
admitted that he knowingly introduced false evidence at Evans' sentencing
hearing to demonstrate "future dangerousness." Evans was therefore deprived
of the fundamental fairness due him under the Fourteenth Amendment.
7
To remedy this injury, the state court ordered a new sentencing hearing free
from the taint of false evidence. This remedy, however, was inadequate to undo
the harm suffered by Evans. For the State compounded its original misconduct
by concealing the deception during both Evans' direct appeal and his petition
for certiorari to this Court. Had the State honestly confessed the error,
petitioner's sentence would almost certainly have been commuted to life
imprisonment under the then-existing statute. Instead, the State did not confess
error until nearly two years after the original death sentence had been imposed,
by which time the death-penalty statute had been amended.
8
The court below ruled that, even assuming that the prosecutor's handling of the
sentencing hearing involved serious prosecutorial misconduct, the State was not
barred from seeking the death penalty a second time. In doing so, it relied on
the holding in United States v. Morrison, 449 U.S. 361, 101 S.Ct. 665, 66
L.Ed.2d 564 (1981), that drastic remedies should not be used to redress
"deliberate" and "egregious" violations of constitutional rights "absent
demonstrable prejudice, or substantial threat thereof," to the defendant. Id., at
365, 101 S.Ct., at 668. The court concluded that Evans' resentencing hearing
removed any prejudice. But the court considered only the prejudice suffered by
Evans at the initial sentencing. It failed to account for the harm done to Evans
afterwards, during his direct appeal. Had the State not continued to rely on the
false evidence, very likely the death sentence would have been commuted to
life imprisonment.
9
The State argues, nevertheless, that this Court cannot consider the harm done to
Evans by its conduct during the appeal. It directs our attention to the finding by
the trial judge that the State did not delay its confession of error until after the
death-penalty statute was amended just to have a second chance to sentence
Evans to death. App. to Pet. for Cert. 20a. This argument misses the point.
Regardless of its purpose in regard to the amendment, the State's continued,
knowing use of false evidence during the direct appeal and petition for
certiorari, and its failure to disclose this misconduct, constituted egregious
conduct that seriously harmed Evans.3
III
10
To my mind, the only way to remedy the federal constitutional violation Evans
has suffered would be for the Virginia courts to consider, nunc pro tunc, how
Patterson would have applied to this case. I would grant the petition for
certiorari to consider whether the court below was constitutionally obligated to
make this inquiry. Accordingly, I dissent from the denial of certiorari.
1
2
3
In addition, several of the other convictions had been obtained when Evans
was without the benefit of counsel. App. to Pet. for Cert. 3a-4a.
In its brief in opposition, the State urges that the opinion of the Virginia
Supreme Court implied that the court would not have applied the
Patterson rule to Evans' sentence. A fair reading of the opinion below,
however, indicates that the court was not rejecting Evans' contention that
Patterson would have controlled his case had it not been legislatively
overruled; rather, the court was rejecting Evans' ex post facto argument,
which was based on the subsequent overruling of Patterson. See 228 Va.
468, 476-477, 323 S.E.2d 114, 118-119 (1984).
Further, whether the delay of nearly two years in confessing error was
intentional or merely negligent has no bearing on the degree of prejudice
suffered by Evans. "Clearly, a deliberate attempt by the government to use
delay to harm the accused, or governmental delay that is 'purposeful or
oppressive,' is unjustifiable. . . . The same may be true of any
governmental delay that is unnecessary, whether intentional or negligent
in origin." Dickey v. Florida, 398 U.S. 30, 51, 90 S.Ct. 1564, 1576, 26
L.Ed.2d 26 (1970) (BRENNAN, J., concurring).
Nor does it matter whether the state attorney who appeared at the
sentencing hearing, and who admitted that he knew the evidence on which
the State relied was false, took part in preparing the State's briefs in the
Virginia Supreme Court or in this Court. The prosecutor's office is an
entity, not just a group of isolated individuals, and the prosecutor is
responsible for assuring that relevant information is communicated among
the lawyers in the office. See Giglio v. United States, 405 U.S. 150, 154,
92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); Moore v. Illinois, 408 U.S. 786,
810, 92 S.Ct. 2562, 2575, 33 L.Ed.2d 706 (1972) (MARSHALL, J.,
concurring in part and dissenting in part).
105 S.Ct. 2037
85 L.Ed.2d 319
Wilbert Lee EVANS
v.
VIRGINIA
No. 84-1224
Supreme Court of the United States
April 15, 1985
On petition for writ of certiorari to the Supreme Court of Virginia.
The petition for a writ of certiorari is denied.
Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.
1
I continue to adhere to my view that the death penalty is under all
circumstances cruel and unusual punishment forbidden by the Eighth and
Fourteenth Amendments, and I would vacate the judgment of the Supreme
Court of Virginia insofar as it left undisturbed the death sentence imposed in
this case. Gregg v. Georgia, 428 U.S. 153, 231, 96 S.Ct. 2909, 2973, 49
L.Ed.2d 859 (1976) (MARSHALL, J., dissenting). However, even if I believed
that the death penalty could constitutionally be imposed under certain
circumstances, I would grant certiorari to decide the constitutional validity of
the death sentence imposed here.
2
* Petitioner Wilbert Lee Evans was convicted of capital murder in April 1981.
At his sentencing hearing, the State urged the jury to recommend the death
sentence based on Evans' "future dangerousness." To prove future
dangerousness, the State relied principally upon the records of seven purported
out-of-state convictions. The State's prosecutor later admitted that he knew, at
the time he introduced the records into evidence, that two of them were false.
App. to Pet. for Cert. 50a-52a. One of the seven "convictions," for assault on an
officer with a deadly weapon, had been dismissed on appeal. Another, for
engaging in an affray with a deadly weapon, had been vacated on appeal, and
Evans had been reconvicted in a trial de novo; the conviction for one crime
was, however, counted as two convictions.1 After considering Evans' prior
"history," the jury determined that there was a probability that he would
commit criminal acts of violence that would constitute a continuing serious
threat to society, see Va.Code § 19.2-264.4 C (1983), and it recommended the
death penalty based solely upon its finding of future dangerousness. 228 Va.
468, 323 S.E.2d 114 (1984). Evans was sentenced to death on June 1, 1981.
3
On October 16, 1981, while Evans' direct appeal was pending, the Supreme
Court of Virginia ruled that, when a capital defendant's right to a fair and
impartial jury is violated during the sentencing phase of trial, a death sentence
must be commuted to life imprisonment. Patterson v. Commonwealth, 222 Va.
653, 283 S.E.2d 212 (1981). The court premised its decision on a construction
of the then-existing death-penalty statute under which only the jury that finds a
capital defendant guilty can fix his punishment. Because the original jury,
tainted by the constitutional error, could not be reconvened to resentence the
defendant, the death sentence had to be reduced automatically to life
imprisonment. Id., at 660, 283 S.E.2d, at 216.
4
This ruling was in effect when the Virginia Supreme Court considered Evans'
direct appeal. Therefore, had that court known of the error in the sentencing
hearing and vacated Evans' death sentence, he would very likely have received
a life sentence.2 But the State not only failed to confess its error, it listed all the
purported convictions, including the erroneous ones, in its brief. App. to Pet. for
Cert. 42a. In sustaining Evans' death sentence, the State Supreme Court relied,
in part, on this inaccurate record. Id., at 31a. When Evans petitioned this Court
for a writ of certiorari, the State again relied on the misleading records of
convictions in its brief in opposition. Id., at 46a. Certiorari was denied. 455
U.S. 1038, 102 S.Ct. 1741, 72 L.Ed.2d 155 (1982).
5
The State did not notify Evans that it would confess its error regarding the false
evidence until March 28, 1983. App. to Pet. for Cert. 73a. On that day, the
Virginia Governor signed into law a bill that amended the state death-penalty
statute to allow for resentencing by a different jury after a death sentence was
set aside, thus effectively overruling Patterson. See Va.Code § 19.2-264.3 C
(1983). The State subsequently confessed error to the trial judge on April 12,
1983. At a hearing to consider the propriety of resentencing Evans, the
prosecutor at Evans' trial admitted that he knew the evidence that he introduced
at the sentencing hearing was false. The judge then ordered a new sentencing
hearing. A new jury recommended the death penalty, and petitioner was again
sentenced to death.
II
6
In Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), this
Court reversed a conviction obtained through the use of false evidence that was
known to be false by representatives of the State. Since Napue, this Court has
adhered to the principle that a conviction obtained by the knowing use of false
evidence is fundamentally unfair. See, e.g., United States v. Agurs, 427 U.S. 97,
103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976); Miller v. Pate, 386 U.S. 1, 7,
87 S.Ct. 785, 788, 17 L.Ed.2d 690 (1967). The rule of Napue is undoubtedly
applicable to the sentencing phase of a capital trial. In this case, the prosecutor
admitted that he knowingly introduced false evidence at Evans' sentencing
hearing to demonstrate "future dangerousness." Evans was therefore deprived
of the fundamental fairness due him under the Fourteenth Amendment.
7
To remedy this injury, the state court ordered a new sentencing hearing free
from the taint of false evidence. This remedy, however, was inadequate to undo
the harm suffered by Evans. For the State compounded its original misconduct
by concealing the deception during both Evans' direct appeal and his petition
for certiorari to this Court. Had the State honestly confessed the error,
petitioner's sentence would almost certainly have been commuted to life
imprisonment under the then-existing statute. Instead, the State did not confess
error until nearly two years after the original death sentence had been imposed,
by which time the death-penalty statute had been amended.
8
The court below ruled that, even assuming that the prosecutor's handling of the
sentencing hearing involved serious prosecutorial misconduct, the State was not
barred from seeking the death penalty a second time. In doing so, it relied on
the holding in United States v. Morrison, 449 U.S. 361, 101 S.Ct. 665, 66
L.Ed.2d 564 (1981), that drastic remedies should not be used to redress
"deliberate" and "egregious" violations of constitutional rights "absent
demonstrable prejudice, or substantial threat thereof," to the defendant. Id., at
365, 101 S.Ct., at 668. The court concluded that Evans' resentencing hearing
removed any prejudice. But the court considered only the prejudice suffered by
Evans at the initial sentencing. It failed to account for the harm done to Evans
afterwards, during his direct appeal. Had the State not continued to rely on the
false evidence, very likely the death sentence would have been commuted to
life imprisonment.
9
The State argues, nevertheless, that this Court cannot consider the harm done to
Evans by its conduct during the appeal. It directs our attention to the finding by
the trial judge that the State did not delay its confession of error until after the
death-penalty statute was amended just to have a second chance to sentence
Evans to death. App. to Pet. for Cert. 20a. This argument misses the point.
Regardless of its purpose in regard to the amendment, the State's continued,
knowing use of false evidence during the direct appeal and petition for
certiorari, and its failure to disclose this misconduct, constituted egregious
conduct that seriously harmed Evans.3
III
10
To my mind, the only way to remedy the federal constitutional violation Evans
has suffered would be for the Virginia courts to consider, nunc pro tunc, how
Patterson would have applied to this case. I would grant the petition for
certiorari to consider whether the court below was constitutionally obligated to
make this inquiry. Accordingly, I dissent from the denial of certiorari.
1
2
3
In addition, several of the other convictions had been obtained when Evans
was without the benefit of counsel. App. to Pet. for Cert. 3a-4a.
In its brief in opposition, the State urges that the opinion of the Virginia
Supreme Court implied that the court would not have applied the
Patterson rule to Evans' sentence. A fair reading of the opinion below,
however, indicates that the court was not rejecting Evans' contention that
Patterson would have controlled his case had it not been legislatively
overruled; rather, the court was rejecting Evans' ex post facto argument,
which was based on the subsequent overruling of Patterson. See 228 Va.
468, 476-477, 323 S.E.2d 114, 118-119 (1984).
Further, whether the delay of nearly two years in confessing error was
intentional or merely negligent has no bearing on the degree of prejudice
suffered by Evans. "Clearly, a deliberate attempt by the government to use
delay to harm the accused, or governmental delay that is 'purposeful or
oppressive,' is unjustifiable. . . . The same may be true of any
governmental delay that is unnecessary, whether intentional or negligent
in origin." Dickey v. Florida, 398 U.S. 30, 51, 90 S.Ct. 1564, 1576, 26
L.Ed.2d 26 (1970) (BRENNAN, J., concurring).
Nor does it matter whether the state attorney who appeared at the
sentencing hearing, and who admitted that he knew the evidence on which
the State relied was false, took part in preparing the State's briefs in the
Virginia Supreme Court or in this Court. The prosecutor's office is an
entity, not just a group of isolated individuals, and the prosecutor is
responsible for assuring that relevant information is communicated among
the lawyers in the office. See Giglio v. United States, 405 U.S. 150, 154,
92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); Moore v. Illinois, 408 U.S. 786,
810, 92 S.Ct. 2562, 2575, 33 L.Ed.2d 706 (1972) (MARSHALL, J.,
concurring in part and dissenting in part).
