Lynch v. Polk

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-13

DAVID CLAYTON LYNCH,

Petitioner - Appellant,

versus

MARVIN POLK, Warden, Central Prison, Raleigh,
North Carolina,

Respondent - Appellee.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CA-02-365-3-V)

Argued: September 18, 2006 Decided: November 2, 2006

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by unpublished opinion. Judge Michael wrote the opinion,
in which Judge Niemeyer and Judge Motz joined.

ARGUED: Matt C. Stiegler, ACLU CAPITAL PUNISHMENT PROJECT, Durham,
North Carolina, for Appellant. Valerie Blanche Spalding, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee. ON BRIEF: Mark Melrose, MELROSE, SEAGO & LAY, P.C.,
Sylva, North Carolina, for Appellant. Roy Cooper, Attorney General
of North Carolina, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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MICHAEL, Circuit Judge:

David Lynch was convicted in North Carolina of two counts

of first-degree murder, five counts of assault with a deadly weapon

upon a law enforcement officer, three counts of assault with a

deadly weapon with intent to kill inflicting serious injury, six

counts of discharging a firearm into occupied property, two counts

of injury to real property, and seven counts of injury to personal

property. He was sentenced to death for each murder conviction and

to seventy-eight and one-half years’ imprisonment for the other

convictions. Lynch has petitioned for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254 on the grounds that his Fifth and

Sixth Amendment rights were violated (1) when the prosecutor made

inflammatory comments during closing argument in the guilt phase of

his trial and (2) when the jury foreperson read from the Bible

during the penalty phase. The district court denied his petition,

and we affirm. The state courts did not make an unreasonable

determination of either claim. See 28 U.S.C. § 2254(d). Moreover,

we have concluded independently that the prosecutor’s improper

comments at closing did not render Lynch’s trial fundamentally

unfair.

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 I.

David Lynch was arrested after he killed two persons and

wounded several others in an extended shooting spree in Gaston

County, North Carolina. He confessed to his crimes, including the

two murders. The following facts are not in dispute. On December

9, 1991, Lynch got out his .223-caliber rifle, .308-caliber rifle,

.45-caliber automatic pistol, and 1,250 rounds of ammunition and

placed them next to his bedroom window. He lined his bedroom walls

with mattresses, pushed the refrigerator against the front door,

and wedged the kitchen stove and washing machine against the back

door. He then “nailed all the windows shut that [he] knew [he]

would not be shooting from.” Trial Transcript (T.T.), May 13,

1993, at 726 (Lynch’s statement to the police). After completing

these fortifications, Lynch returned to the bedroom, sat down in

the middle of the floor, and “waited for [his neighbors] the

Andersons to come out.” Id.

At 8:00 a.m. Tammy Anderson left her house with her

twelve-year-old daughter, India, and Heather Shumate, the daughter

of a friend. Lynch attempted to open fire, but his rifle jammed.

By the time he reloaded, Mrs. Anderson and the two girls had

entered the family car. Lynch decided to shoot at the car, hoping

the occupants would “get out and see what happened.” Id. His

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scheme worked, and he opened fire on the three as they left the

car. Lynch said,

I shot Mrs. Anderson first, and then I shot [India]. I
don’t know how many times I shot them; but after I shot
the mother a couple of times, the daughter started
running to the house. So I shot the mother a couple more
times, and then I shot the daughter at least two or three
times.

Id. A neighbor, Ronald Hunter Sr., heard the shooting and rushed

outside to try to help the victims. Lynch immediately shot Hunter

in the back and then continued to shoot him after he fell to the

ground. Mrs. Anderson and Heather fled back into the Anderson

house, where Mrs. Anderson called 911. While Mrs. Anderson was on

the telephone, Lynch fired into the house, killing Bobby Anderson,

the father. Meanwhile, the wounded Mr. Hunter made it out into the

street where India lay and attempted to pull her to safety. Lynch

fired at the two, hitting them both. Mr. Hunter collapsed, losing

consciousness. India’s wounds were fatal.

Police officers soon arrived at the scene, and Lynch

began firing on them, injuring several. A police crisis

negotiator, Sergeant James Edwards, was called in to talk with

Lynch. Edwards reached Lynch by telephone, and Lynch said he was

suffering from mental problems. Lynch also explained that he

wanted to kill the Andersons because they played loud music and had

parties. After two and one-half hours, Lynch surrendered. At the

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station Lynch told police that he was very depressed and had

recently driven to Seattle to commit suicide. He then decided that

instead of killing himself, he would kill the people who had been

bothering him. Lynch admitted that he knew what he had done was

wrong, but said “they needed to die.” J.A. 645.

Lynch asserted the defense of insanity at trial. Two

defense experts (a psychologist and a psychiatrist) testified that

Lynch suffered from mental diseases, including major depression and

schizotypal personality disorder, which caused him to lose touch

with reality. Both experts offered the opinion that Lynch could

not understand the nature and quality of his acts on the day of the

murders. The prosecution responded with an expert psychiatrist who

testified that he did not detect any evidence of psychosis during

his examination of Lynch. This expert did not opine on Lynch’s

mental state on the day of the shootings. The prosecution also

presented the testimony of several of Lynch’s coworkers and

friends, who all testified that Lynch did not appear to be insane

during the weeks leading up to the shooting.

The jury determined that Lynch was not legally insane at

the time of the murders and found him guilty of two counts of

first-degree murder and twenty-one counts charging lesser offenses.

The jury recommended the death penalty for each murder, and the

trial court sentenced Lynch to death.

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 Lynch’s convictions and sentences were affirmed on direct

appeal to the North Carolina Supreme Court, and the U.S. Supreme

Court denied his petition for a writ of certiorari. Next, Lynch’s

(post-conviction) motion for appropriate relief (MAR) was denied by

the North Carolina trial court, and the State Supreme Court denied

review of the MAR claims. Lynch’s application for federal habeas

relief was likewise denied by the U.S. district court, and two of

his claims are now before us pursuant to certificates of

appealability.

II.

Lynch first contends that the prosecutor’s prejudicial

remarks during closing argument rendered his trial fundamentally

unfair, in violation of his Fifth Amendment rights. Second, he

contends that the foreperson’s reading of a biblical passage during

the jury’s sentencing deliberations violated his Sixth Amendment

rights.

The North Carolina courts decided these claims on the

merits, and under the Anti-Terrorism and Effective Death Penalty

Act we review these decisions under a “highly deferential

standard.” Woodford v. Viscotti, 537 U.S. 19, 24 (2002).

Accordingly, a writ of habeas corpus cannot be granted unless the

state court decisions “w[ere] contrary to, or involved an

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unreasonable application of clearly established Federal law, as

determined by the Supreme Court of the United States,” 28 U.S.C.

§ 2254(d)(1), or “w[ere] based on an unreasonable determination of

the facts in light of the evidence presented in the State court

proceeding,” id. § 2254(d)(2). “[W]e presume the [state] court’s

factual findings to be sound unless [the petitioner] rebuts the

‘presumption of correctness by clear and convincing evidence.’”

Miller-El v. Dretke, 545 U.S. ___, 125 S.Ct. 2317, 2325 (2005)

(quoting 28 U.S.C. § 2254(e)(1)). If legal or factual error of the

degree specified in § 2254(d)(1) or (d)(2) occurred, then a federal

court has the obligation to conduct an independent review of the

petitioner’s claims to determine whether the issuance of a writ is

warranted. Rose v. Lee, 252 F.3d 676, 690 (4th Cir. 2001).

III.

Lynch argues that the prosecutor’s inflammatory and

prejudicial remarks during closing argument rendered his trial

fundamentally unfair, in violation of the Fifth Amendment. In

rebuttal argument the prosecutor said that if the jury found Lynch

not guilty by reason of insanity, there would be “no restrictions”

upon him. Lynch claims that the jury was never instructed to

disregard the statement, even though it was contrary to North

Carolina law. (If the jury had found Lynch to be insane, he would

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have been committed immediately to a mental health institution, and

he could have been released only by proving in court that he was no

longer mentally ill or a danger to others. See N.C.G.S. §§ 15A-

1321, 122C-277(b1), 122C-268.1(i).) According to Lynch, the

prosecutor’s “no restrictions” statement created a misguided fear

on the part of the jury that led it to disregard compelling

evidence of his insanity.

The North Carolina Supreme Court rejected Lynch’s unfair

trial claim, reasoning as follows:

We conclude that in this case the trial court
properly controlled the prosecutor’s closing argument so
as to avoid any prejudicial error to the defendant.
During the prosecutor’s closing arguments the trial court
intervened ex mero motu and specifically instructed the
jury not to take the prosecutor’s personal opinions into
consideration. The jurors were also instructed to
disregard statements by the prosecutor that defendant
would be under no restrictions if found not guilty
. . . . Based on our careful review of the prosecutor’s
closing argument and the instructions given by the trial
court during the closing argument, defendant’s assignment
of error is overruled.

State v. Lynch, 459 S.E.2d 679, 692 (N.C. 1995).

A.

According to Lynch, the North Carolina Supreme Court’s

decision was based on the court’s unreasonable factual

determination that Lynch’s “jurors were . . . instructed to

disregard statements by the prosecutor that [Lynch] would be under

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no restrictions if found not guilty” by reason of insanity. Id.

Lynch says that the following excerpt from the closing argument

transcript reveals the state court’s error:

[PROSECUTOR]: Ladies and gentlemen, the last point
I am going to make. Think about this. Are you satisfied
that he was insane on December 9, 1991. [sic] The state
submits to you that you are not. If you are even
thinking about it, remember this. Not guilty by reason
of insanity is not guilty. Oh, it has a little bit more
wording there but the effect is not guilty. When you say
not guilty you are saying that no crime was committed.
You are saying David Lynch —

[DEFENSE COUNSEL]: (Interrupting) - OBJECTION to
that argument

THE COURT: OVERRULED

[PROSECUTOR]: You are saying David Lynch didn’t
kill and assault. Are you satisfied? When you say not
guilty that means there are no restrictions on Mr. Lynch.

[DEFENSE COUNSEL]: OBJECTION

THE COURT: SUSTAINED. Well, OVERRULED as to that
statement.

[PROSECUTOR]: No restrictions. Perhaps some day
he becomes your neighbor.

[DEFENSE COUNSEL]: (Interrupting) - OBJECTION

THE COURT: SUSTAINED. Stay within the bounds of
argument.

[DEFENSE COUNSEL]: Ask the Court to instruct the
jury to disregard the last statement.

THE COURT: ALLOWED. Members of the jury, do not
take the last statement of the district attorney in
consideration in your jury deliberations.

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Closing Argument Transcript at 237-38.

Lynch argues that in light of the trial court’s initial

approval of the “no restrictions” statement, the court’s

instruction to the jury moments later to disregard “the last

statement” referred only to the “your neighbor” sentence. It did

not, he says, refer to the “No restrictions” sentence. This

reading is a plausible one, but it is not the only reasonable

reading. The word “statement” commonly refers to more than one

sentence. Thus, it was not unreasonable for the North Carolina

Supreme Court to find that when the trial court used the term “last

statement,” it was instructing the jury to disregard all of what

the prosecutor had just said, specifically, “No restrictions.

Perhaps some day he becomes your neighbor.”

In any event, a final curative instruction made it

reasonable for the North Carolina Supreme Court to find that the

trial court instructed the jury to disregard the prosecutor’s “no

restrictions” argument. Defense counsel made his request for this

instruction as follows:

[DEFENSE COUNSEL]: I am requesting that you
instruct the jury that if they return verdicts of not
guilty by reason of insanity that “The defendant shall
immediately be committed to the state mental facility;
any further proceedings would be a matter for the Court
and should not concern you.” . . . We are simply
requesting that [instruction] because of the comments of
the state district attorney during the final argument
that words to the effect of -- “If you find him not

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 guilty by reason of insanity there would be no
restrictions on the defendant,” which we OBJECTED to and
made a motion for a mistrial. Of course, the objection
was overruled and the motion for mistrial was denied. We
feel that this is sufficient to tell the jury a correct
statement of the law . . . to counter that statement by
the state that he would be unrestricted.

T.T., May 17, 1993, at 534 (emphasis added). The trial court gave

the curative instruction exactly as requested by Lynch’s counsel,

who considered the instruction to be sufficient to counter the

prosecutor’s “no restrictions” remark. The State Supreme Court

therefore did not err in finding that the jury was “instructed to

disregard statements by the prosecutor that [Lynch] would be under

no restrictions if found not guilty [by reason of insanity].”

Lynch, 459 S.E.2d at 692. Accordingly, the state court’s decision

that the prosecutor’s closing argument did not render Lynch’s trial

to be unfair was not based on an unreasonable determination of the

relevant facts.

The district court’s denial of habeas relief to Lynch on

his unfair trial claim can be affirmed because he has failed to

demonstrate that the North Carolina Supreme Court’s decision was

based on an unreasonable determination of fact.

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 B.

In the alternative, our independent review of the Fifth

Amendment claim reveals that the prosecutor’s “no restrictions”

comments did not render Lynch’s trial fundamentally unfair.

In analyzing “a due process claim premised on unfair

prosecutorial conduct,” we examine several factors, including “the

nature of the prosecutorial misconduct, the extent of the improper

conduct, the issuance of curative instructions from the court, any

defense conduct inviting the improper prosecutorial response, and

the weight of the evidence.” Humphries v. Ozmint, 397 F.3d 206,

218 (4th Cir. 2005) (en banc) (internal citations omitted); see

also Darden v. Wainwright, 477 U.S. 168, 181 (1986) (stating that

the relevant question is “whether the prosecutors’ comments ‘so

infected the trial with unfairness as to make the resulting

conviction a denial of due process’”). These factors are examined

in the context of the entire trial, and no one factor is

dispositive. Donnelly v. DeChristoforo, 416 U.S. 637, 639 (1974).

1.

The conduct challenged here is the prosecutor’s

statements in rebuttal argument that Lynch would be released with

“no restrictions” if he was found not guilty by reason of insanity.

The argument was improper because it was not true and appeared

calculated to frighten the jury into believing that an insanity

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verdict would free Lynch, putting him in a position to attack and

kill his next set of neighbors. Unless countered by an appropriate

instruction, this fear could influence a juror to overlook evidence

of insanity and vote for a conviction.

2.

The two improper “no restrictions” comments were

isolated, but they came at the end of the prosecutor’s rebuttal

argument. They were among the last comments the jurors heard from

the prosecutor.

3.

The trial court issued curative instructions, during

closing argument itself and later in a supplemental charge. The

prosecutor made the “no restrictions” comments in quick succession.

After the second time, when the prosecutor said, “No restrictions.

Perhaps some day he becomes your neighbor,” the court instructed

the jury to disregard the “last statement.” Regardless of whether

that instruction was clear enough, the court, at Lynch’s request,

gave the jury the following additional instruction immediately

before it retired to deliberate:

Now, members of the jury, I instruct you in addition
to the instruction that I gave to you yesterday as
follows. That if you return verdicts of not guilty by
reason of insanity, the defendant shall immediately be
committed to a state mental institution or facility. Any
further proceedings would be a matter for the Court and
should not concern you.

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T.T., May 17, 1993, at 539. Defense counsel said at the time that

this instruction would be “sufficient to tell the jury a correct

statement of the law . . . to counter the statement by the state

that [Lynch] would be unrestricted.” Id. at 534.

4.

We see nothing in the record to suggest that defense

counsel’s conduct invited the prosecutor to make the improper

comments.

5.

The evidence of Lynch’s guilt was overwhelming. He

confessed to the murders. Moreover, the substantial evidence that

Lynch understood the nature and quality of his actions on the day

of the murders reduces the likelihood that the prosecutor’s “no

restrictions” comments induced the jury to disregard evidence of

Lynch’s insanity. Dr. Clabe Lynn, the State’s expert witness,

testified that Lynch was depressed but that he did not show any

“signs or symptoms of psychosis or schizophrenia.” J.A. 452. An

employer testified that Lynch acted normally at work, and a

coworker testified that he did not seem “mentally ill at all.”

J.A. 513. Police negotiator Sergeant Edwards testified that Lynch

spoke calmly, deliberately, and rationally throughout his three and

one-half hour negotiations with the police. The evidence also

established that Lynch carefully and deliberately planned the

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murders. Finally, in his confession Lynch recounted in meticulous

detail the events on the day of the murder. His words suggest that

he was lucid. Nothing in the confession indicates that he was

mentally impaired or that he could not tell the difference between

right and wrong. In fact, Lynch stated that he knew what he did

was wrong, but that his neighbors “needed to die.” J.A. 831.

After considering all of these factors, we conclude that

the prosecutor’s improper comments during closing argument did not

deprive Lynch of a fair trial. The curative instructions

sufficiently clarified the consequences of a not guilty by reason

of insanity verdict, and there was substantial evidence that Lynch

was sane when he committed the murders. Lynch’s Fifth Amendment

claim is without merit.

IV.

Lynch’s second argument is that his Sixth Amendment

rights were violated when the jury foreperson recited a Bible verse

during sentencing deliberations. Lynch asserts that habeas relief

is warranted because the state court’s adjudication of this claim

was contrary to federal law.

The facts underlying this claim are not contested. Jury

foreperson Ronald Walker took his own copy of the Bible to the

sentencing deliberations. During those deliberations the jury

16
determined that Lynch was eligible for the death penalty. The jury

then took a further vote on its recommended sentence, and eleven

jurors voted for death. Next, Walker led the jury in prayer. In

addition, he told his fellow jurors that he believed in the death

penalty because of Genesis, Chapter 9, verse 6, which he read

aloud: “Whoever sheddeth a man’s blood by man his blood must be

shed.” J.A. 815. The undecided juror, Nellie Fox, said that she

understood the passage, but that she did not believe the Old

Testament was relevant today. Shortly thereafter, the jury took

another vote, and the vote for the death penalty was unanimous.

Fox later testified that the foreperson’s biblical reading did not

influence her decision to vote for death. The state MAR court

determined that Lynch “presented nothing at the evidentiary hearing

which satisfactorily demonstrates that juror Fox changed her vote

from life to death as a result of foreman Walker’s reading of

Genesis 9:6." J.A. 818. As a result, the court denied Lynch’s

motion for appropriate relief.

Lynch argues that the MAR court’s adjudication of this

claim was an unreasonable application of Supreme Court precedent

because the fact that the Bible reading did not cause Fox to change

her vote is not a valid basis for rejecting his claim. The Bible

reading, Lynch argues, was an extraneous influence on the jury that

is presumptively prejudicial. See Remmer v. United States, 347

17
U.S. 227, 229 (1954). In habeas review, however, we look at the

“result that the state court reached, not ‘whether [its decision]

[was] well reasoned.’” Robinson v. Polk, 438 F.3d 350, 358 (4th

Cir. 2006) (quoting Wilson v. Ozmint, 352 F.3d 847, 855 (4th Cir.

2003)). Our task is to determine whether the result reached by the

state MAR court was “contrary to . . . clearly established Federal

law, as determined by the Supreme Court of the United States.” 28

U.S.C. § 2254(d)(1).

Longstanding considerations, particularly the critical

need for “frankness and freedom of discussion and conference” among

jurors, McDonald v. Pless, 238 U.S. 264, 268 (1917), “support the

protection of jury deliberations from intrusive inquiry” by courts,

Tanner v. United States, 483 U.S. 107, 127 (1987). Thus, the Sixth

Amendment does not require judicial examination of all alleged

prejudicial influences on a jury. Indeed, the general rule is that

juror testimony may not be used to impeach a jury verdict. See id.

at 117. The Supreme Court, however, has carved out a limited

exception to this rule for the situation where it is alleged that

an external influence affected jury deliberations. Parker v.

Gladden, 385 U.S. 363, 364-66 (1966). This exception with respect

to external influences is aimed at ensuring an impartial jury that

takes the evidence it considers “only from the witness stand in a

public courtroom.” Id. at 364.

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 A distinction is thus made between external and internal

influences on jury deliberations. See Robinson, 438 F.3d at 361-

62. The Supreme Court has not provided a precise test for

distinguishing between the two, nor has it determined which

category a Bible reading fits into. See id. at 363. The Court,

however, has provided some guidance. In determining whether an

influence is external or internal, a court should look to the

“nature of the [influence],” not to whether it “took place inside

or outside the jury room.” Tanner, 483 U.S. at 117. For example,

a radio newscast in the jury room about the case at issue is

properly considered an external influence. Id. at 123. On the

other hand, statements made by jurors during deliberations are

internal influences. Id. at 125.

The result in this case is dictated by our decision in

Robinson. There, we held that the state court had not unreasonably

applied Supreme Court precedent, described above, in determining

that a Bible reading during jury deliberations was an internal

influence that was not subject to judicial inquiry. We reasoned

that “reading the Bible [during sentencing deliberations] is

analogous to a situation where a juror quotes the Bible from

memory, which assuredly would not be considered an improper

influence.” Robinson, 438 F.3d at 365. We also concluded that it

was reasonable to determine that the biblical passage did not

19
constitute evidence against the defendant. Id. at 363. As a

result, we held that the petitioner was not entitled to habeas

relief on his claim that he was denied his Sixth Amendment rights.

Id. at 366. Lynch’s Sixth Amendment claim based on the

foreperson’s Bible reading fails because Lynch’s case is

indistinguishable from Robinson. Robinson, in other words,

confirms that the result reached by the state MAR court on Lynch’s

Sixth Amendment claim was not contrary to clearly established

federal law, as determined by the Supreme Court.

V.

For the foregoing reasons, the judgment of the district

court denying David Lynch’s petition for a writ of habeas corpus is

affirmed.

AFFIRMED

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