Tuggle v. Netherland

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LEM DAVID TUGGLE,
Petitioner-Appellee,

v. No. 94-4005

J. D. NETHERLAND, Warden,
Respondent-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CA-92-737-R)

Argued: March 12, 1996

Decided: April 3, 1996

Before WIDENER and HAMILTON, Circuit Judges,
and CHAPMAN, Senior Circuit Judge.

_________________________________________________________________

Remanded with instructions by published opinion. Judge Hamilton
wrote the opinion, in which Judge Widener and Senior Judge Chap-
man joined.

_________________________________________________________________

COUNSEL

ARGUED: Donald Richard Curry, Senior Assistant Attorney Gen-
eral, OFFICE OF THE ATTORNEY GENERAL, Richmond, Vir-
ginia, for Appellant. Timothy Michael Kaine, MEZZULLO &
MCCANDLISH, Richmond, Virginia, for Appellee. ON BRIEF:
James S. Gilmore, III, Attorney General of Virginia, OFFICE OF
THE ATTORNEY GENERAL, Richmond, Virginia, for Appellant.
Helen L. Konrad, MEZZULLO & MCCANDLISH, Richmond, Vir-
ginia; Donald R. Lee, Jr., VIRGINIA CAPITAL REPRESENTA-
TION RESOURCE CENTER, Richmond, Virginia, for Appellee.

_________________________________________________________________

OPINION

HAMILTON, Circuit Judge:

In Ake v. Oklahoma, 470 U.S. 68, 83 (1985), the Supreme Court
held, inter alia, that when the prosecutor in a capital sentencing hear-
ing presents psychiatric evidence of an indigent defendant's future
dangerousness, due process requires that the state provide the defen-
dant expert psychiatric assistance. This case, which is before us on
remand from the Supreme Court of the United States, see Tuggle v.
Netherland, 116 S. Ct. 283 (1995), presents the questions of whether
harmless-error analysis is applicable to this type of Ake error, and, if
so, whether the error was harmless in this case. We conclude this type
of Ake error is amenable to harmless-error analysis and that the Ake
error in this case was harmless under the harmless-error standard set
forth in Brecht v. Abrahamson, 113 S. Ct. 1710 (1993). Accordingly,
we remand the case to the district court with instructions to dismiss
Tuggle's petition for writ of habeas corpus, see 28 U.S.C. § 2254.

I

In 1984, Lem Davis Tuggle was convicted of capital murder com-
mitted during or subsequent to the rape of Jessie Geneva Havens. As
recounted by the Virginia Supreme Court on direct appeal, the facts
surrounding Havens' murder are:

In the early morning of June 2, 1983, State Trooper R.M.
Freeman was dispatched to an area on Interstate Highway
81 in Pulaski County to look for a black pickup truck
equipped with a camper. Shortly after his arrival, Freeman
stopped a truck meeting that description and recognized
Tuggle as the driver. When the trooper asked the defendant
if he had been near the Riverside Exxon Station, Tuggle

2
responded: "Yes, I robbed it, the money's in my pocket, the
gun's in the truck."

Thereupon, Freeman took possession of a .25 caliber auto-
matic weapon. (Ballistics tests established that this gun fired
the bullet which killed Havens.) While Freeman was taking
Tuggle to the Pulaski County Sheriff's Office, Tuggle vol-
unteered that he was connected with a missing person's
report relating to Jessie Havens and said that he would have
a "long talk" with Smyth County authorities later.

Later that morning, a Smyth County Sheriff's Office investi-
gator interviewed Tuggle concerning Havens' disappear-
ance. The officer advised Tuggle of his Miranda rights.
Tuggle waived these rights and told the officer that he could
find Jessie Havens over a bank at a certain spot on Hubble
Hill Road near Seven Mile Ford. When the officer asked the
defendant what had happened to Havens, Tuggle responded:
"I don't know but she's there." The defendant then told the
officer that he did not want to discuss the matter further
until he had spoken to an attorney. He specifically stated:
"From past experience, I would like to talk to an attorney.
I'll probably tell you the full story later."

Approximately 9:30 a.m. on June 2, the investigator went to
the place where Tuggle said Havens would be found. He
found Havens' body at the site. Havens was clad in jeans
"down around her knees," a blue and white striped blouse
"pulled up to about the armpits," and "black silk panties . . .
rolled down somewhat." A portion of the victim's pantyhose
was "sticking out of the top" of her jeans, and one of her
legs was out of the pantyhose.

An autopsy revealed that the victim's body had an abrasion
and a bruise on the left frontal area of the forehead, a small
abrasion on the right frontal area of the forehead, an abra-
sion on the neck, a bite mark on the lower, inner quadrant
of the right breast, a number of small bruises on the upper,
inner aspect of the right arm, and a bruise on the right thumb
and right wrist. Havens also had sustained a large bruise on

3
 the upper, inner thigh, bruises on the vaginal vault at the
posterior aspect and near the bottom, and a gunshot wound
in the chest.

According to the medical examiner, "the bruises of the
vagina indicate penetration of the vaginal vault by some-
thing, a penis, a finger, an object, something." The medical
examiner testified that both the bite mark on the breast and
the bruising around the vagina occurred while Havens was
alive. He also testified that no semen or spermatozoa was
found in Havens' vagina, but that semen was found in the
rectum, indicating "penetration and ejaculation into the rec-
tum."

A forensic odontologist testified that he examined the bite
mark on the victim's right breast. He compared the mark
with models of Tuggle's teeth and concluded "with all medi-
cal certainty these marks on the body of Ms. Havens were
made by the teeth of Mr. Tuggle." He further opined that
Havens was alive and moving when she was bitten.

Tuggle v. Virginia, 323 S.E.2d 539, 543-44 (1984) (Tuggle I).

At Tuggle's sentencing hearing, the state introduced evidence on
the two aggravating circumstances, "vileness" and "future dangerous-
ness," either of which will support the imposition of death as punish-
ment for murder under Virginia law.1 As to the "vileness" aggravating
circumstance, the state relied on the circumstances surrounding the
murder, which included rape, sodomy, and a gunshot wound to the
_________________________________________________________________
1 Under Virginia law, when assessing whether to impose a sentence of
death or life imprisonment, the jury must first determine whether the
state established one or both of the statutory aggravating circumstances.
See Va. Code Ann. § 19.2-264.4(C). If the jury finds the state has met
its burden with respect to one or both of the aggravating circumstances,
the jury then, after considering the evidence in mitigation, may exercise
its discretion to impose either a sentence of death or life imprisonment.
See Va. Code Ann. § 19.2-264.4(D). If the jury finds neither aggravating
circumstance satisfied or cannot agree on a penalty, the court must
impose a life sentence. See Va. Code Ann.§ 19.2-264.4(C)-(E).

4
chest. As to the "future dangerousness" aggravating circumstance, the
state introduced: (1) evidence that Tuggle murdered Havens while on
parole for murder; (2) evidence of Tuggle's criminal history, which
in addition to another murder, included escape and armed robbery;
and (3) the psychiatric testimony of Dr. Centor, a licensed clinical
psychologist, who testified that Tuggle demonstrated"a high proba-
bility of future dangerousness." (J.A. 202). After its deliberations, the
jury found both the "vileness" and "future dangerousness" aggravat-
ing circumstances were established and exercised its discretion to sen-
tence Tuggle to death.

Tuggle's conviction and sentence were affirmed by the Virginia
Supreme Court on direct appeal. See Tuggle I, 323 S.E.2d at 554. On
appeal to the Supreme Court of the United States, the Court vacated
the judgment of the Virginia Supreme Court and remanded the case
for further consideration in light of Ake. See Tuggle v. Virginia, 471
U.S. 1096 (1985) (summary disposition). In Ake , the Court held that
due process, under certain circumstances, requires the states to pro-
vide an indigent criminal defendant with expert psychiatric assistance.
The Court held:

[W]hen a defendant demonstrates to the trial judge that his
sanity at the time of the offense is to be a significant factor
at trial, the State must, at a minimum, assure the defendant
access to a competent psychiatrist who will conduct an
appropriate examination and assist in evaluation, prepara-
tion, and presentation of the defense.

470 U.S. at 83. Additionally, the Court held that when the prosecutor
in a capital sentencing hearing presents psychiatric evidence of an
indigent defendant's future dangerousness, due process requires that
the state provide the defendant expert psychiatric assistance. Id.
Because Tuggle had been denied expert psychiatric assistance after
the state introduced Dr. Centor's testimony, the Supreme Court
vacated the Virginia Supreme Court's judgment and remanded the
case in light of Ake.

On remand, because of the Ake error, the Virginia Supreme Court
merely invalidated the future dangerousness aggravating circum-
stance. See Tuggle v. Virginia, 334 S.E.2d 838, 844-46 (1985)

5
(Tuggle II). Notwithstanding the Ake error, the Virginia Supreme
Court in Tuggle II reaffirmed Tuggle's death sentence, id. at 845-46,
relying on Zant v. Stephens, 462 U.S. 862, 884 (1983), which held
that if one aggravating circumstance supports a death sentence in a
"non-weighing" state, like Virginia, the sentence need not be vacated
merely because the jury also found an invalid aggravating circum-
stance. The Virginia Supreme Court reasoned that the death sentence
could stand under Zant because the jury, in addition to finding the
"future dangerousness" aggravating circumstance, found the "vile-
ness" aggravating circumstance. Tuggle II, 334 S.E.2d at 845-46. In
Tuggle II, the Virginia Supreme Court reviewed the evidence as to
vileness and stated:

In Tuggle, the jury made a separate, specific finding that the
"vileness" predicate had been proved beyond a reasonable
doubt. Although Ake requires the conclusion that the trial
court erred in denying Tuggle an independent psychiatrist
once the Commonwealth had submitted psychiatric evidence
on the issue of future dangerousness, we hold, nonetheless,
that the error neither impairs nor invalidates the jury's find-
ing of vileness.

Id. at 846.

Tuggle filed a petition for a writ of certiorari in the Supreme Court
of the United States. This petition was denied on June 30, 1986. See
Tuggle v. Virginia, 478 U.S. 1010 (1986).

Tuggle then filed a petition for writ of habeas corpus in the United
States District Court for the Western District of Virginia. See 28
U.S.C. § 2254. Tuggle's petition raised numerous issues, including a
claim under Ake. The district court granted the petition for writ of
habeas corpus on several grounds, including Ake .

The state appealed and we reversed and remanded to the district
court with instructions to dismiss the petition. Tuggle v. Thompson,
57 F.3d 1356, 1374 (4th Cir. 1995). On the Ake issue, we agreed with
the Virginia Supreme Court's analysis in Tuggle II. In fact, quoting
the Virginia Supreme Court, we stated:

6
 "When a jury makes specific findings of specific statutory
aggravating circumstances, any of which could support a
sentence of death, and one of the circumstances subse-
quently is invalid, the remaining valid circumstance, or cir-
cumstances, will support the sentence."

Id. at 1363 (quoting Tuggle II, 334 S.E.2d at 845). Our analysis in this
decision was consistent with our prior Fourth Circuit precedent. For
example, in Briley v. Bass, we held that any one aggravating circum-
stance deemed sufficient by the jury suffices to uphold a death sen-
tence:

[S]ince the jury returned a verdict finding the death sentence
warranted under both the "vileness" and the"dangerous-
ness" standard, it is of no importance whether the instruction
on "vileness" was correct so long as the instruction on "dan-
gerousness" was correct, provided, of course, the verdict of
the jury was unanimous on the "dangerousness" ground.

742 F.2d 155, 165 (4th Cir. 1984).

On appeal, the Supreme Court granted certiorari and vacated our
judgment. See Tuggle v. Netherland, 116 S. Ct. at 284. The Supreme
Court reasoned that while Zant permits the imposition of the death
penalty in "non-weighing" states, if an invalid aggravating circum-
stance is considered, "that holding does not support the quite different
proposition that the existence of a valid aggravator always excuses a
constitutional error in the admission or exclusion of evidence." Id. at
285. And while the Court was willing to assume that the Ake error had
no influence upon the jury's "vileness" finding, the Court was unwill-
ing to assume that the Ake error did not affect the jury's ultimate deci-
sion whether to impose a life sentence or the death penalty. Id. The
Court then remanded the case to this court for a determination of
"whether harmless-error analysis is applicable to this case." Id.

II

A

Almost thirty years ago, the Supreme Court recognized that there
are "some constitutional errors which in the setting of a particular

7
case are so unimportant and insignificant that they may, consistent
with the Federal Constitution, be deemed harmless." Chapman v.
California, 386 U.S. 18, 22 (1967). Since Chapman, the Supreme
Court has applied harmless-error analysis to a wide variety of errors.
See, e.g., Clemons v. Mississippi, 494 U.S. 738, 752-54 (1990) (over-
broad jury instruction at the sentencing hearing of defendant's capital
trial); Carella v. California, 491 U.S. 263, 266 (1989) (erroneous con-
clusive presumption in jury instruction); Rose v. Clark, 478 U.S. 570,
579-80 (1986) (jury instruction containing erroneous rebuttable pre-
sumption); Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (Con-
frontation Clause violation involving improper restriction on
defendant's right to cross-examine government witness for bias). The
doctrine of harmless error "`promotes public respect for the criminal
process by focusing on the underlying fairness of the trial rather than
on the virtually inevitable presence of immaterial error.'" Satterwhite
v. Texas, 486 U.S. 249, 256 (1988) (quoting Rose, 478 U.S. at 577).

In general, "if the defendant had counsel and was tried by an
impartial adjudicator, there is a strong presumption that any other
errors that may have occurred are subject to harmless-error analysis."
Rose, 478 U.S. at 577. Errors amenable to harmless-error review are
"trial" errors. Trial error "`occur[s] during the presentation of the case
to the jury,' and is amenable to harmless-error analysis because it
`may . . . be quantitatively assessed in the context of other evidence
presented in order to determine [the effect it had on the trial].'"
Brecht, 113 S. Ct. at 1717 (ellipsis and brackets in original) (quoting
Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991)).

In contrast to "trial" errors, "structural" errors are not amenable to
harmless-error analysis because such errors "infect the entire trial pro-
cess," Brecht, 113 S. Ct. at 1717, thereby making "[a]ssessment of the
impact of [the error] impossible." Smith v. Dixon, 14 F.3d 956, 974
(4th Cir.) (en banc), cert. denied, 115 S. Ct. 129 (1994). The
Fulminante Court identified the deprivation of the right to counsel,
trial by a biased judge, the unlawful exclusion of members of the
defendant's race from a grand jury, and the denial of the right to a
public trial as examples of "structural" errors. 499 U.S. at 309-10.

Before we address whether we can view this case through a
harmless-error prism, we note that the Ake error in this case actually

8
involves two errors. The first error was the improper admission of Dr.
Centor's testimony; Dr. Centor's testimony was not admissible unless
the state provided Tuggle with expert psychiatric assistance. The sec-
ond error, which goes hand-in-hand with the first, involves the result-
ing deprivation to Tuggle of expert psychiatric assistance at
sentencing to rebut the state's testimony of future dangerousness. We
believe both of these errors are errors of the "trial" type.

With respect to the improper admission of Dr. Centor's testimony,
this error is clearly subject to harmless-error analysis. Without ques-
tion, the effect of Dr. Centor's testimony on the sentencing phase
"`may . . . be quantitatively assessed in the context of other evidence
presented in order to determine [the effect it had]" on the jury's sen-
tence. Brecht, 113 S. Ct. at 1717 (ellipsis and brackets in original)
(quoting Fulminante, 499 U.S. at 307-08). Indeed, we have applied
harmless-error analysis in cases involving improperly admitted evi-
dence. See, e.g., Correll v. Thompson , 63 F.3d 1279, 1291-92 (4th
Cir. 1995) (in case on collateral review, court applied harmless-error
analysis to an error involving evidence improperly admitted under
Edwards v. Arizona, 451 U.S. 477 (1981)).

This conclusion with respect to the improper admission of Dr. Cen-
tor's testimony is also supported by the Supreme Court's decision in
Satterwhite. The issue before the Court in Satterwhite was whether
the admission of expert psychiatric testimony at the defendant's capi-
tal sentencing hearing in violation of Estelle v. Smith, 451 U.S. 454
(1981), which held that capital defendants have a Sixth Amendment
right to consult with counsel before submitting to a psychiatric exami-
nation designed to determine their future dangerousness, was subject
to harmless-error analysis under Chapman. The Court concluded that
harmless-error analysis applied, Satterwhite, 486 U.S. at 258, and that
the error was not harmless under Chapman, id. at 258-60. The Court's
application of harmless-error analysis to assess the effect of the
improperly admitted psychiatric testimony on the verdict obtained in
Satterwhite dictates that the Court would conclude that harmless-error
analysis should be applied to the improper admission of Dr. Centor's
testimony.

With respect to the error concerning Tuggle's lack of expert assis-
tance at sentencing, this error is the converse of the first; that is, the

9
error pertaining to the admission of Dr. Centor's testimony dealt with
the improper admission of evidence whereas this latter error is the
equivalent of the improper exclusion of evidence. And for several rea-
sons, we believe this error is also subject to harmless-error analysis.
First, in a similar context, deprivations of the right to cross-
examination under the Confrontation Clause, the Supreme Court has
rejected the notion that there is an analytical distinction between
errors involving the improper admission of evidence and those
involving the improper exclusion of evidence. See Van Arsdall, 475
U.S. at 683-84. Under either scenario, the Van Arsdall Court noted
that the state was permitted to introduce evidence that was not subject
"to constitutionally adequate cross-examination," id. at 684, and con-
cluded that "in both cases the reviewing court should be able to
decide whether the not-fully impeached evidence might have affected
the reliability of the factfinding process at trial." Id. Similar to Van
Arsdall, courts confronting Ake errors involving the denial of expert
psychiatric assistance are in a position to assess the impact of the
error on the jury's ultimate sentencing determination.

Second, we find persuasive a decision of the Tenth Circuit that
applied harmless-error analysis in circumstances similar to this case.
See Castro v. Oklahoma, 71 F.3d 1502 (10th Cir. 1995). Castro was
convicted of capital murder. During his sentencing hearing, the state
introduced evidence of the vileness of Castro's crime and his future
dangerousness. In its deliberations after the sentencing hearing, the
jury found both the "future dangerousness" and"vileness" aggravat-
ing circumstances. Id. at 1506. On direct appeal, the Oklahoma Court
of Criminal Appeals struck down the "vileness" aggravating circum-
stance, but affirmed the sentence. Id. After removing the invalid "vile-
ness" aggravating circumstance and reweighing the"future
dangerousness" aggravating circumstance against the mitigating cir-
cumstances, the Oklahoma Court of Criminal Appeals concluded that
the death sentence was appropriate in light of the"future dangerous-
ness" aggravating circumstance and the strong evidence of guilt.
Castro v. State, 745 P.2d 394, 408-09 (Okla. Crim. App. 1987). On
federal habeas review, Castro contended, among other things, that his
due process rights were violated when the trial court failed to grant
his request for expert psychiatric assistance after the state introduced
evidence of his future dangerousness at his sentencing hearing.
Castro, 71 F.3d at 1513. The Tenth Circuit agreed, holding that Cas-

10
tro's due process rights were violated when the trial court refused to
appoint Castro expert psychiatric assistance during Castro's sentenc-
ing phase of his trial. Id. at 1515. The Tenth Circuit then applied
harmless-error analysis, relying on an earlier decision, Brewer v.
Reynolds, 51 F.3d 1519 (10th Cir. 1995), which held that Ake error
is "trial" error and subject to harmless-error analysis. Castro, 71 F.3d
at 1515. Applying harmless-error analysis, the Castro court concluded
the error was not harmless. Id. at 1516. We are persuaded by the deci-
sion of the Supreme Court in Van Arsdall and the decision of the
court in Castro and will apply a harmless-error analysis to this case.

B

Having concluded that harmless-error analysis applies in this case,
we must address the question of whether the Chapman standard or the
Brecht standard for harmlessness should be applied in this case. On
direct appeal, the harmless-error standard for constitutional error is
whether the error "was harmless beyond a reasonable doubt."
Chapman, 386 U.S. at 24. Under that standard, a constitutional error
may not be declared harmless if there is a "reasonable possibility" that
the "error contributed to the verdict." Brecht, 113 S. Ct. at 1721. In
Brecht, however, the Supreme Court concluded that granting federal
collateral relief upon a mere "reasonable possibility" that the error
contributed to the verdict would be inconsistent with the historic pur-
pose of habeas corpus to afford relief only to those who have been
"grievously wronged" by society. Id. Thus, the harmless error stan-
dard that a federal habeas court must apply is the same standard that
a federal court must apply to nonconstitutional errors on direct appeal:
whether the error had a "`substantial and injurious effect or influence
in determining the jury's verdict.'" Id. at 1722 (quoting Kotteakos v.
United States, 328 U.S. 750, 776 (1946)).

We believe the Brecht standard, rather than the Chapman standard,
applies in this case. In Brecht, the Court directed federal courts on
collateral review to apply the standard set forth in Kotteakos and
determine whether the "trial" error had a"`substantial and injurious
effect or influence on the jury's verdict.'" Id. Indeed, the Court spe-
cifically held that the Kotteakos harmless-error standard, rather than
the Chapman standard, applied in determining whether to grant collat-

11
eral relief. Id. at 1722. Accordingly, the Brecht standard rather than
the Chapman standard should be applied in this case.2

C

We now turn to the most difficult issue presented in this appeal:
Did the trial court's decision to admit Dr. Centor's testimony on the
issue of future dangerousness and its refusal to grant Tuggle expert
psychiatric assistance have a "`substantial and injurious effect or
influence,'" Brecht, 113 S. Ct. at 1722 (quoting Kotteakos, 328 U.S.
at 776), on the jury's decision to sentence Tuggle to death? In answer-
ing this question, it is important to keep in mind that Virginia is a
"non-weighing" state. In "non-weighing" states, the jury uses aggra-
vating circumstances to determine whether the defendant is eligible
for the death penalty; if the jury finds at least one aggravating circum-
stance, it considers all the evidence adduced at the guilt and sentenc-
ing phases of the trial in determining whether the sentence of death
is the appropriate penalty. Stringer v. Black , 112 S. Ct. 1130, 1136
(1992); Zant, 462 U.S. at 872. Thus, in Virginia, the jury's use of an
invalid aggravating circumstance in determining whether the death
penalty is an appropriate penalty does not infect the ultimate decision
to impose the death penalty provided we determine that the invalid
aggravating circumstance would have made no difference to the
jury's determination. As the Court in Stringer explained:

In a nonweighing State, so long as the sentencing body finds
at least one valid aggravating factor, the fact that it also
finds an invalid aggravating factor does not infect the formal
process of deciding whether death is an appropriate penalty.
Assuming a determination by the state appellate court that
the invalid factor would not have made a difference to the
jury's determination, there is no constitutional violation
_________________________________________________________________

2 Our own circuit precedent dictates the same result. See, e.g., Correll,
63 F.3d at 1291 (applying Brecht standard for harmlessness in habeas
case involving evidence improperly admitted under Edwards); Smith, 14
F.3d at 979-80 (applying Brecht standard for harmlessness in habeas case
involving unconstitutionally vague heinousness instruction).

12
 resulting from the introduction of the invalid factor in an
earlier stage of the proceedings.

112 S. Ct. at 1137.

We believe several factors are relevant to our inquiry into harm-
lessness. They include: (1) the strength of the remaining aggravating
circumstance; (2) the evidence admitted (both properly and improp-
erly) at the sentencing hearing to establish the invalid aggravating cir-
cumstance; (3) the evidence improperly excluded at the sentencing
hearing; (4) the nature of any mitigating evidence; (5) the closing
argument of the prosecutor; and (6) any indications that the jury was
hesitant or entertained doubt in reaching its sentencing determination.

As to the first factor, the jury found the "vileness" aggravating cir-
cumstance, and the murder in this case was unquestionably vile. The
murder involved rape and sodomy, and Tuggle bit Havens on the
breast before shooting her in the chest and disposing of her body by
throwing it over an embankment.

As to the second factor, the state introduced evidence of Tuggle's
criminal history. First, the state introduced evidence that Tuggle was
convicted of murder in 1972 and was sentenced to twenty years'
imprisonment. Second, the state introduced evidence that Tuggle had
only served approximately eleven years of his twenty-year sentence
before he was released on parole and raped, sodomized, and murdered
Havens. Third, the state introduced evidence that Tuggle, while in
custody for the 1972 murder, escaped, and was convicted and sen-
tenced to two years for that offense. Fourth, the state introduced evi-
dence that, at the time of his arrest for the capital murder, Tuggle had
just committed an armed robbery of a service station with the same
firearm he had used to murder Havens. Finally, the state introduced
the testimony of Dr. Centor, who, based upon his evaluation of Tug-
gle, testified that Tuggle showed "a high probability of future danger-
ousness." (J.A. 202). Of particular note, all of the evidence, save Dr.
Centor's testimony, would have been admissible even if the state had
decided not to pursue the "future dangerousness" aggravating circum-
stance. See Va. Code Ann. § 19.2-264.4(B) (permitting introduction
of defendant's "history and background").

13
As to the third factor, we will assume, arguendo, that Tuggle
would have produced expert psychiatric testimony to rebut Dr. Cen-
tor's conclusions on Tuggle's future dangerousness and that this evi-
dence was improperly excluded.

As to the fourth factor, Tuggle's evidence of mitigation at the sen-
tencing hearing consisted of the testimony of three witnesses. His
aunt, Katherine Norris, testified that Tuggle was"friendly" and
"good-natured" despite being raised in a rough environment. Id. at
208. She also testified that Tuggle's parents "raised him the best they
could, . . . took him to church, and raised him in church." Id. Another
one of Tuggle's aunts, Eunice Burgess, gave similar testimony to that
of Norris, testifying that Tuggle was a nice person and that he had a
hard time growing up because his father was disabled. Finally, Tug-
gle's mother's foster parent also testified that Tuggle was "good-
natured." Id. at 215.

With respect to the fifth factor, the prosecutor's closing argument
focused on the two statutory aggravating circumstances. With respect
to the "vileness" aggravating circumstance, the prosecutor focused on
the circumstances surrounding Havens' murder:

[E]ven if [Tuggle] didn't have that past history, . . . you
could still find . . . in this particular case that his conduct in
regard to Ms. Havens was so outrageously . . . or wantonly
vile, horrible, or inhuman, which it was, nobody, till the day
you die, you'll never believe that it was not inhuman . . . or
that it was anything other than horrible. That it involved tor-
ture. The woman was bitten on her breast and the testimony
was that she had several bites there rotating on that one
tooth. Or if you find--and again, this is calling for you to
use your common sense--depravity of mind or aggravated
battery to the victim. I imagine he could have chopped her
up in little fine pieces and it would have been a little more
aggravated but what he did to her was just as aggravated.
. . . [I]t was atrocious. Way beyond the minimum necessary
to even accomplish the act of murder.

Id. at 229-30. With respect to the "future dangerousness" aggravating
circumstance, the prosecutor emphasized Tuggle's criminal history:

14
 [Tuggle] was tried twelve years ago on murder and they
found him guilty of second degree then, and now he's back
in here again on another horrible offense, the same way,
under similar circumstances. The fact that he is here in less
time than he was even sentenced to ought to be a message
to you as to what will happen if he doesn't get the death sen-
tence. The only thing that I want to state to you and let it
be known to everybody here and so that there is no misun-
derstanding as to where we stand, is that I can only say God
forbid if you give him any type of sentence that permits him
to get out here and do this again, and anything less than
death is going to do it. There is a great possibility that he'll
be able to do it again. There are enough killers out in society
that go undetected and uncaught, untried, unconvicted, and
can keep doing it until they finally get caught. Sometimes
they never catch them at all. We caught one. We've got one.
We've got him in here to where we can do something with
him, and that's--let's don't miss an opportunity.

Id. at 230-31. During his closing argument, the prosecutor also
informed the jury that it could consider Dr. Centor's testimony on the
issue of future dangerousness and reiterated Dr. Centor's conclusion
that Tuggle showed a high probability of future dangerousness.

During the prosecutor's rebuttal, he returned to the issue of Tug-
gle's future dangerousness and stated:

But you've got to consider that when he reached the age of
eighteen [sic] he murdered someone here in Smyth County.
He was caught, he was tried, he was convicted, he was sent
to the penitentiary and he served years in the penitentiary.
Now, is it likely that a fellow who has done that is going to
commit future criminal acts of violence? Well, what's the
evidence that you've heard here? He got out of the peniten-
tiary, he's on parole, and here we have him again, that he
has killed again. He's been caught, he's been tried, he's
been convicted.

Id. at 233. At this point, the prosecutor referred again to Dr. Centor's
testimony about Tuggle's future dangerousness, referring to it as a

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consideration "in addition to [Tuggle's] actions, and they speak for
themselves." Id. at 233-34. The prosecutor then concluded his argu-
ment by reminding the jury that Tuggle "killed Jessie Geneva Havens,
he raped her, he sodomized her, he threw her body over the bank, and
. . . the indications are that if he doesn't receive the death penalty, he
will kill again. We ask for the death penalty. The decision is yours."
Id. at 234.

With respect to the sixth factor, the jury returned its sentencing ver-
dict after only a little more than an hour of deliberation.

Applying these factors, we believe the improper admission of Dr.
Centor's testimony and the trial court's denial of expert psychiatric
assistance to Tuggle did not have a "`substantial and injurious effect
or influence,'" Brecht, 113 S. Ct. at 1722 (quoting Kotteakos, 328
U.S. at 776), on the jury's decision to sentence Tuggle to death. Ini-
tially, we point out that several factors arguably support a finding that
the errors were not harmless under Brecht. First, Dr. Centor's testi-
mony was not properly admitted because the state did not provide
Tuggle expert psychiatric assistance. Second, the prosecutor's closing
argument relied to some extent on Dr. Centor's testimony. Third,
again assuming that Tuggle would have produced expert psychiatric
testimony to rebut Dr. Centor's conclusions on Tuggle's future dan-
gerousness, this evidence was improperly excluded.

However, after a thorough review of the record, we must conclude
that if the "future dangerousness" aggravating circumstance was
stripped from this case, including all evidence improperly admitted or
excluded and any improper comments by the prosecution on that
invalid aggravating circumstance, the sentence would have been the
same. First, the record in this case contains an unimpeachable "vile-
ness" aggravating circumstance; indeed, we believe Tuggle's crime
epitomized "vileness." Second, the improper admission of Dr. Cen-
tor's testimony, and the trial court's decision to deny Tuggle expert
psychiatric assistance to rebut Dr. Centor's testimony on future dan-
gerousness, neither enhanced the persuasiveness of the "vileness"
aggravating circumstance nor influenced the jury's determination as
to vileness. Third, the only evidence of the invalid"future dangerous-
ness" aggravating circumstance improperly admitted was Dr. Centor's
testimony that Tuggle showed "a high probability of future danger-

16
ousness." (J.A. 202). This evidence was at most cumulative to the evi-
dence of Tuggle's criminal history, all of which was admissible
notwithstanding the invalidation of the "future dangerousness" aggra-
vating circumstance. See Va. Code Ann. § 19.2-264.4(B) (permitting
introduction of defendant's "history and background"). Fourth, the
nature of Tuggle's mitigating evidence was benign at best. Fifth, the
record reflects that the jury was not at all hesitant in imposing the
death sentence--the jury returned its sentencing verdict after a little
more than an hour of deliberation. In sum, we harbor no doubt that
the improper admission of Dr. Centor's testimony and the trial court's
denial to Tuggle of expert psychiatric assistance did not have a "`sub-
stantial and injurious effect or influence,'" id., on the jury's decision
to sentence Tuggle to death.

III

We have conducted an exhaustive review of the record in this case
and are confident that the Ake error in this case could not have had
an injurious or prejudicial effect on the jury's sentencing determina-
tion. Accordingly, we remand the case to the district court with
instructions to dismiss the petition for writ of habeas corpus.

REMANDED WITH INSTRUCTIONS

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