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Home / Courts / 4th Circuit / Criminal Practice – Habeas Corpus – Constitutional – Ineffective Assistance – Confession – Failure to Suppress

Criminal Practice – Habeas Corpus – Constitutional – Ineffective Assistance – Confession – Failure to Suppress

Tice v. Johnson. (Lawyers Weekly No. 001-079-11, 47 pp.) (King, J.) No. 09-8245, April 20, 2011; USDC at Richmond, Va. (Williams, J.) 4th Cir. Click here for the full text of the opinion.

Holding: The 4th Circuit upholds a writ of habeas corpus for Derek Tice, one of the “Norfolk Four” convicted of the rape and murder of Michelle Bosko, and says the Supreme Court of Virginia misapplied the Strickland standard for ineffective assistance of counsel, in considering the failure of Tice’s trial lawyers to suppress his confession.

Appellant Derek Tice was one of several men convicted in the rape and murder of Michelle Bosko. Later, Omar Ballard confessed to raping and murdering Bosko, acting alone, and DNA evidence corroborated his confession. Ballard pleaded guilty to the rape and murder and is serving a life sentence.

This is an appeal by the director of the Virginia Department of Corrections of the district court’s grant of a writ of habeas corpus to appellee Tice, who has twice been convicted in Norfolk Circuit Court for the crimes against Bosko. Having exhausted his post-conviction remedies under Virginia law, Tice filed an application for federal habeas corpus relief pursuant to 28 U.S.C. § 2254(a).

The district court dismissed the two claims that Virginia’s highest court had resolved similarly on cross-appeal, but granted the writ on the same ground identified by Norfolk Circuit Judge Everett Martin, namely, that defense lawyer James Broccoletti’s and Jeffrey Russell’s failure to move to exclude Tice’s confession as having been obtained in contravention of his right to remain silent constituted ineffective assistance of counsel.

On the question of whether the confession would have been excluded from trial had the potential Miranda violation been brought to Norfolk Circuit Court Judge Charles Poston’s attention at trial, the district court agreed with Judge Martin’s analysis, observing that “the Circuit Court’s prediction … is persuasive. … [T]he Court finds that, had counsel filed a motion to suppress Tice’s confession based on the failure to honor Tice’s invocation of this right to remain silent, the motion would have been granted.”

The district court also concurred with Judge Martin’s evaluation of Strickland’s performance prong, opining that any reasonable investigation would have involved reviewing Detective Crank’s notes of his conversations with Tice. The court ascertained that counsel either overlooked the notes entirely, or at least did not fully appreciate their significance, and therefore the defense was deficient or failing to file a motion to suppress Tice’s confession.

With respect to the prejudice prong of Strickland, the district court concluded, in disagreement with the Supreme Court of Virginia, that Tice’s confession provided compelling evidence of his guilt. With the exclusion of that evidence, the prosecution’s case against Tice would be left awash in doubt.

The district court thus determined to grant habeas relief, but requested additional briefing as to its precise form. The court’s uncertainty was occasioned by an act of the governor of Virginia, Timothy M. Kaine, who, on Aug. 6, 2009, during the pendency of the federal habeas proceeding, granted conditional pardons to Tice and two other members of the Norfolk Four (Williams and Dick) who yet remained in prison. Tice was released from custody the next day. On Nov. 19, 2009, the district court granted a writ of habeas corpus.

The sole issue on appeal is whether the court correctly decided that Tice was deprived on retrial of the assistance of counsel to the minimum degree of effectiveness contemplated by the Sixth Amendment to the Constitution.

There is simply nothing we can discern from the record that would excuse the defense team’s failure to move to suppress Tice’s confession. The error was of sufficient magnitude that we cannot help but conclude that counsel’s performance in this singular instance was constitutionally deficient within the meaning of Strickland.

Our only reluctance in so saying is that, based on our review of the record, the assistance provided Tice by Messrs. Broccoletti and Russell throughout both trials and the first appeal was otherwise laudably effective and competent. However, even an isolated error can support an ineffective assistance claim if it is sufficiently egregious and prejudicial.

It is our opinion that, had the motion to suppress been made, the trial court would have had little choice but to grant it. If Tice’s statement that “he decide[d] not to say any more” was sufficient to cease the interrogation, his subsequent confession could not be admitted at trial unless his right to cut off questioning was scrupulously honored.

Inasmuch as Detective Ford resumed questioning Tice a scant 13 minutes after Detective Crank had finished, did not at that time issue fresh Miranda warnings, and continued to inquire of Tice regarding the same subject matter that prompted him to attempt to stop answering, it is plain that the Norfolk Police Department did not scrupulously honor Tice’s request to break off the interrogation.

A reasonable police officer under the circumstances would have understood Tice’s statement to mean that he no longer wished to answer questions involving the crimes against Michelle Bosko, and, therefore, that the officer should stop asking them.

In examining the rationale given by the Supreme Court of Virginia to support its reversal of Judge Martin’s grant of habeas relief, it is apparent that the court misapprehended the Strickland standard in evaluating the inculpatory force of the legitimate evidence against Tice when juxtaposed with the evidence that the jury should not have considered.

Applying the standard properly, we cannot deny within the parameters of reason that the jury, without Tice’s confession before it, would necessarily have considered the commonwealth’s remaining evidence to be so lacking as to seriously jeopardize the prospects for conviction. Had the confession been suppressed, there was a reasonable probability that the jury would have returned a different verdict, and we do not see how we could reasonably conclude otherwise.

Defense counsel, though generally able and competent, were constitutionally deficient in the discrete, though crucial, instance of failing to have Tice’s confession suppressed. That single mistake rendered suspect the jury’s verdict. The Supreme Court of Virginia’s opposite conclusion constituted an unreasonable application of federal law, as clearly established by the U.S. Supreme Court in Strickland v. Washington. Thus, in accordance with 28 U.S.C. § 2254, Tice is entitled to the writ of habeas corpus issued by the district court, whose judgment is hereby affirmed.

Judgment affirmed.

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