Gina Renee Hall was a freshman at
Radford University in 1980. She was last seen when she went out dancing
with friends at a nightclub in Radford, Virginia on June 28, 1980.
One of her companions, Stephen Epperly, convinced her
to go with him to a cabin at Claytor Lake. When questioned by police,
Epperly said he and Hall had gone to the cabin and she called her sister
and stated she would be home in the morning, then he went swimming but
Hall stayed out of the water. Afterwards they left the cabin and Hall
dropped him off in Radford, and he went to bed. Hall has never been
heard from again.
When police examined the cabin, they discovered that
someone had tried to clean it up, but bloodstains of Hall's type were
apparent in several places.
Hall's sister's brown Chevrolet, which Hall had been
driving that night, was found at the Pulaski County end of the railroad
trestle over the New River.
There were bloodstains inside the trunk and a
bloodstained blue towel was found nearby; it was identified as Epperly's
and contained fibers consistent with those from the carpet at the
Claytor Lake cabin. One of Hall's shoes was found at the opposite end of
the railroad trestle. Two weeks later, searchers found the clothing Hall
had been wearing the night of her disappearance. It had been tied up in
a bundle and was bloodstained.
Epperly was charged with Hall's murder later in 1980.
Investigators theorized he killed Hall after she refused his sexual
advances. Though he maintained his innocence in her case, he was
convicted and sentenced to life in prison. He is still incarcerated.
Hall's remains have never been found, but foul play is suspected in her
case due to the circumstances involved. Hers was the case in Virginia
where a defendant was convicted of murder even though the victim's body
had not been found.
though it have no tongue, will speak With most miraculous organ.
~William Shakespeare, Hamlet, Prince of Denmark
Proving a murder has occurred when
there is no body is always an toilsome proposition. Sometimes, the state
has it “easy:” the person who committed the crime confesses the deed.
Sometimes, there is a little bit more effort required: An eyewitness
sees the defendant kill the victim, or witnesses the killer dispose of
the body. When this occurs, the state must have other evidence that
corroborates the witness testimony. The most difficult no-body murder
case to prove is when the state has no confession and no witnesses and
only circumstantial evidence to establish the corpus delicti.
Which brings us to the concept of
corpus delicti in the first place. Just what does the term
corpus delicti mean? What it is not is “the dead body.” Basically,
corpus delicti means the elements of the crime. In other words,
that the victim was unlawfully killed within the jurisdiction of the
court where the accused is standing trial. Of course, this is a very
general description of the term, and each type of crime has elements
that distinguish it from other crimes.
Thus, someone who commits
involuntary manslaughter by accidentally dropping an anvil on the
downstairs neighbor’s head while moving his ironworking supplies to the
attic is not guilty of the same crime as Aunt Martha, who puts a pinch
of arsenic in the parson’s tea so he won’t report her for stealing from
the church’s choir robe fund to pay off her gambling interests.
The general public’s
misunderstanding of corpus delicti leads some to believe that
it is possible to get away with murder if the authorities cannot find
Fortunately, this is not true. People have been and will continue to be
convicted of murder despite the fact that no body has ever turned up.
Perhaps the California Court of Appeals put it best:
The fact that a murderer may
successfully dispose of the body of the victim does not entitle him to
an acquittal. That is one form of success for which society has no
reward. People v. Manson, 71 Cal. App.3d 1, 42, 139 Cal. Rptr.
275, 298 (1977), cert. denied, 435 U.S. 953 (1978). (Yes,
Stephen Epperly was one of those
people who mistakenly thought he could get away with murder if he
disposed of the body. Instead, Epperly was brought to justice by a
plethora of circumstantial evidence tied up very neatly by the leash of
an amazing four-legged detective.
Gina Hall, 18, was described as a
“very beautiful, well-dressed, pleasant, soft-spoken” young woman who
was popular with her peers, respectful of her parents and close to her
older sister, Diana, with whom she was living in Radford, Virginia
during the summer of 1980. It was late June and the sisters were taking
summer classes at Radford University, where Gina was a freshman and her
sister was in graduate school.
Gina loved to dance and was quite athletic, friends and family recalled.
She may have liked an occasional glass of wine, but she did not smoke or
use drugs. In short, Gina was “a very happy person.” She certainly was
not the sort to simply disappear.
When Gina was very little girl,
she was seriously burned and had scars on her right side from her upper
arm to her thigh. She was self-conscious about these scars and while she
was friendly and outgoing, her self-consciousness kept her from becoming
physically intimate. Gina’s sister would later testify that she was
extremely concerned about how the scars would affect a man’s feelings
for her and as a result, “she could not have handled the emotional
stress of a physical relationship with somebody and never put herself in
that situation.” In addition, she had expressed concern about becoming
pregnant because of her skin grafts’ lack of elasticity.
The reason for revealing intimate facts about an innocent victim will
become evident shortly.
Gina had just finished summer
midterms and was in a “great mood,” her sister recalled. She wanted to
go dancing but Diana said she was too tired. Instead, Dlana lent her
sister her brown Chevrolet, and watched as her 5-foot-tall sister
adjusted the seat as far forward as it would go before she headed out to
the Marriott in Blacksburg, Virginia for a night of music and dancing.
It was about 10 p.m. Saturday, June 28, 1980 and it was the last time
she ever saw Gina.
Stephen Epperly and his friend,
Bill King had known each other since they were children. They were part
of a group of people, including Gina Hall, who met up at the Marriott
that Saturday night, although neither Epperly nor King had ever met Gina
before. King’s mother and stepfather had a home on Claytor Lake nearby,
and the two men had stopped there earlier to check on things at the
request of King’s parents.
Epperly and Gina hit it off pretty well at the Marriott, dancing four or
five songs. As the evening wore on, Epperly asked King if he could
borrow King’s car and the keys to the lake house, but King needed the
car and wouldn’t let Epperly take it. He was welcome to use the house,
but Epperly would have to find his own way there.
Because a group of people were
dancing that night, Gina mistakenly assumed that when Epperly asked if
she wanted to go for a midnight swim, he meant that more than just the
two of them would be going, King later told police.
“She seemed confused as to what car was going and exactly who was
going,” he testified. “I think that when she came out she thought maybe”
there would be more people going.
Instead it was just Epperly and
Several hours later, King and another woman decided to head to the house
for a swim. When the couple arrived, they saw Gina’s Chevy in the
driveway, but no lights on in the house.
They didn’t want to surprise
anyone, so when they entered the house they slammed the doors and turned
on the kitchen light, hopefully giving Epperly and Gina — if they needed
it — time to compose themselves.
Epperly called out, “Bill, is that you?”
King replied that it was and that he and his date were going swimming.
Epperly said, “She’s got to be getting back,” and indicated that “they”
The woman with Bill King saw Epperly standing without his shirt, drying
himself with a towel.
Neither King nor the woman saw or
heard Gina that night.
Around 7 a.m. Sunday morning, a patrol car spotted the brown Chevy
parked near a railroad trestle that crosses a river outside Radford. The
trunk was open. Because this was a popular fishing site, the officer
didn’t suspect foul play, but when almost 18 hours later, when the
deputy sheriff cruised by again and the vehicle was still in the same
position, he ran the plates. The car was registered to Dlana Hall and
had not been reported stolen.
Shortly after the deputy came
across the abandoned Chevy, Epperly returned to the lakefront house and
while King was outside playing with his son, asked if he could go inside
for a drink. King later told authorities that he thought his friend
remained inside for an unusually long time and remarked about it.
Epperly shrugged it off.
That night, Dlana, concerned for her sister, called a couple of friends
who went out looking for Gina. They found the car where the deputy had
seen it and called police. The friends who found the car thought it was
especially curious that the seat was pushed back all the way, since
“Gina was a little girl.”
The media took hold of the story of the missing co-ed by mid-week,
reaching King and Epperly on Tuesday, July 1. King went to where Epperly
was working and advised him to go to the police to report his encounter
with Gina, “so they wouldn’t think he had anything to hide.”
Of course, Epperly did have
something to hide, so he asked King who he had talked to about the
missing girl. He was non-committal about his intention to go to the
Later that day, Epperly talked to another friend whose brother was an
attorney. Out of the blue, Epperly asked his buddy if his brother might
“represent him.” He then asked his friend to inquire “if there was
anything that they could do to him if they didn’t find a body.”
King went to the police the next
day with his information and brought them back to his parents’ home.
There they found a broken ankle bracelet Gina wore.
Epperly told police when he was interviewed for the first time that he
had driven Gina from the nightclub to the lake house. He said he heard
her call her sister to tell her that she would be home in the morning.
He said they went to the dock and that he went swimming but that Gina
did not. He admitted that “they had kissed some,” but said that Gina
told him she would have to know him very well before she would sleep
According to him, they left the
house and Gina dropped him off in Radford. He went to bed and never saw
As the days went by, Epperly and King talked more about Gina. At one
point, King asked point-blank if Epperly killed her.
“Bill, I don’t know anything about it,” Epperly replied. “We’ll just
have to wait and see.”
By this time, the Radford police had a warrant to examine the lake
house. They discovered bloodstains on the driveway, on a walkway leading
to the lake, and inside the house.
The interior of the home had been
meticulously cleaned, but not sufficiently to escape the criminalists
who scoured the scene. They found blood and hair on a golf shoe, blood
on a dustpan, and blood and hair in the gasket on a refrigerator door. A
large bloodstain, more than a foot across was found inside the living
room and had been bleached out to a faint pink. Testimony later showed
that there had never been bloodstains in those locations before.
Searchers looking for Gina discovered a blue blood-stained towel near
where the Chevy had been found. It contained fibers consistent with
those found in the carpet at the lake house.
King’s mother later identified it
as one that was missing from the home.
Nearby, a policeman found one of Gina’s shoes at the opposite end of the
trestle from where the car and the towel were found.
Two weeks later, other searchers found all of the clothes Gina had worn
the night she vanished. The clothes were tied in a bundle and were
Forensic testing showed that all of the blood on the recovered evidence
was human type O, the same as Gina’s. The hair found in the golf cleat
was identified as a human pubic hair; it did not match Epperly, who had
now officially become a suspect.
In the trunk of the Chevrolet, criminalists found type O blood and head
hairs similar to the ones found on a hairbrush used by Gina. The blue
towel also contained Type O blood and held six hairs similar to Gina’s.
On the bundle of bloody clothes, forensic scientists found a head hair
similar to Epperly’s.
The most amazing circumstantial
evidence that pointed to Epperly’s involvement in Gina’s disapperance
came with the arrival of a tracking dog owned by John Preston, a retired
Pennsylvania State Trooper who was qualified as a dog tracking expert in
courts in 17 states. Along with his German Shepherd, he had worked more
than 150 criminal cases across the United States.
Preston and his dog arrived a week after Epperly had first been accused
by police of having killed Gina, but the ex-trooper was not told by
Virginia authorities that they had a suspect. Neither Preston nor the
dog had ever been to the Radford area before.
Police secured a warrant for an article of Epperly’s clothing. Then
Preston and the Virginia authorities returned to where Gina’s car had
been left and let the shepherd acquire the scent from the clothing. The
dog then began what is known as a “casting search,” passing
back-and-forth in an ever-widening arc in an attempt to pick up the
The dog picked up the suspect’s
smell about 100 yards from where the Chevy had been found.
He left the road and headed up a grade toward the railroad trestle and
started walking along the tracks.
The dog led his handlers on a
roundabout tour of Radford, touching each location where searchers had
found the items related to the missing girl. Preston would later testify
that the dog indicated the scent had “paused” at three locations as if
the person had spent some time at each point. The pauses occurred at
each place searchers had recovered evidence.
From the railroad tracks the dog followed the trail through a box
factory, a railroad switching yard and across the parking lot of the New
River Valley Shopping Plaza, and by a self-serve car wash.
Finally, the dog entered a subdivision, walked up to the front door of a
house and sat down.
The dog stopped on the front porch
of Stephen Epperly’s home.
The next day, the dog was again given Epperly’s scent and introduced to
six blue towels including the one that had been found near Gina’s car.
The dog immediately sat down in front of the blue towel found by
searchers in the wood. That towel not only contained blood of the same
type as the missing girl and carpet fibers consistent with those found
at the beach house, it also apparently contained a scent consistent with
Stephen Epperly was being
interviewed by Radford police at the station the next day when Preston
and the dog showed up. While the suspect was inside, the dog was
“scented” on the blue towel. The dog poked around the parking lot, which
contained several other cars, and stopped at the driver’s side door of
The dog then picked up the trail from the car to the police station and
came directly to the door of the interrogation room where the suspect
After the Radford police told Epperly what the dog had done, he put his
head down in his arms and said over and over “That’s a damn good dog.”
Epperly was indicted and tried for first degree murder. Gina’s body was
never recovered, which required the state to prove both that she was
dead and that her death had resulted from a criminal act on the part of
Furthermore, to sustain a conviction of first degree murder, the state
had to demonstrate that Epperly had the specific intent to kill.
The State of
Virginia presented its case to the jury, pointing out Gina’s sudden
disappearance, the evidence at the lake house of a violent struggle, the
pains the killer made to hide the evidence by disposing of her clothes
and the bloodstained towels, Epperly’s discussions with his friends, and
the unimpeachable evidence of the tracking dog. These circumstances,
taken together, indicated, in the state’s view, that Gina Hall had been
murdered and that Stephen Epperly had killed her.
The jury agreed and convicted him of first degree murder. On appeal, the
verdict and the life sentence were affirmed.
997 F.2d 1
Stephen M. EPPERLY, Petitioner-Appellant,
E.L. BOOKER, Warden; Attorney General of the Commonwealth
of Virginia, Respondents-Appellees.
United States Court of Appeals,
Argued Feb. 3, 1993.
Decided June 15, 1993.
Before PHILLIPS, WILKINSON, and WILLIAMS, Circuit Judges.
PHILLIPS, Circuit Judge:
In 1980, Stephen M.
Epperly was convicted by a Virginia jury of the first-degree murder of
Gina Hall. He received a life sentence. Neither Hall's body nor a
weapon was ever found; there were no eyewitnesses to the killing; and
Epperly never confessed. Thus, the evidence of Hall's death and of
Epperly's complicity in it was entirely circumstantial.
Epperly's conviction was affirmed on
direct appeal. Epperly v. Commonwealth, 224 Va. 214, 294 S.E.2d 882
(1982). He exhausted his state post-conviction remedies, Epperly v.
Booker, 235 Va. 35, 366 S.E.2d 62 (1988), and was denied relief on his
federal habeas corpus petition by the United States District Court for
the Western District of Virginia. On this appeal from the district
court's order denying relief, we affirm.
* The facts of the case are recited
in detail in Epperly, 294 S.E.2d at 885-90. We recapitulate the
evidence leading to Epperly's conviction in the light most favorable
to the state as the basis for considering his principal contention on
appeal that the evidence was constitutionally insufficient under
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979) to support his conviction.
Gina Hall was an eighteen-year old
college student when she first met Epperly and his childhood friend
Bill King at the Marriott Hotel in Blacksburg, Virginia on a Saturday
night in June 1980. Hall had decided to go dancing to celebrate the
conclusion of her final exams. She was a petite woman (5 ft. tall, 107
lbs.), in excellent physical and emotional health. Her relationships
with family and friends were close and stable. She was conspicuously
modest, however, and self-conscious about physical relationships due
to extensive scarring from a childhood accident in which she was
Before arriving at the Marriott that
night, Epperly and King had stopped at a lake house owned by King's
parents. King was responsible for keeping the lake house secure during
his parents' absence, and the two men checked the house over
thoroughly. Later that night, after dancing with Hall several times at
the Marriott, Epperly borrowed the key to the lake house from King. He
then left with Hall in the brown Chevrolet she had borrowed from her
sister Dlana. According to King, Hall appeared "confused as to what
car was going and exactly who was going" to the lake house. J.A. 211.
She was last heard from when she telephoned Dlana between 1:00 and
1:30 a.m. sounding "very uneasy or out of character ... very nervous."
J.A. 144, 147. She told Dlana that she was "at the lake with a man
named Steve." J.A. 508.
King and a woman named Robin
Robinson arrived at the lake house between 3:45 and 4:00 a.m. J.A.
214. They saw the brown Chevrolet parked in the driveway in front of
the garage. Realizing that their arrival was probably unexpected, King
entered noisily through the kitchen, which was located on the middle
level of the house, along with a bedroom and bathroom. A spiral
staircase connected the kitchen with the lower level, which contained
a recreation room, a utility room, and a bathroom. The recreation room
opened onto the lake via sliding glass doors. The utility room
contained a refrigerator, a table, and assorted odds and ends.
Epperly called up to King from the
lower level. As the men spoke, Robinson looked down the spiral
staircase and saw Epperly coming from the direction of the utility
room, dressed only in pants and wiping his shoulders with a blue towel.
J.A. 282. Neither King nor Robinson saw or heard Hall during this
interchange, although Epperly told King "we're leaving ... she's got
to be getting back." J.A. 215-16.
King and Robinson then went down to
the lake. After a few moments, Epperly called, "Bill, I'll see you
later; we're leaving." King and Robinson did not see or hear the
Chevrolet leave. Id. Less than ninety minutes later, however, a police
officer discovered the car parked near the New River with its trunk
open. The car was still there at midnight, but because it had not been
reported stolen the officer took no action.
Shortly after Epperly left, King and
Robinson reentered the lake house via the downstairs recreation room.
King stepped in a wet spot on the carpet several feet inside and to
the left of the sliding glass doors. King did not examine the spot at
the time or later on Sunday morning, when he and Robinson tidied up.
Throughout their visit, they found the house to be in good order,
although neither of them entered the utility room. J.A. 268, 310-11.
On Sunday afternoon, Epperly
rejoined King at the lake house and spent what King thought was an
unusually long time in the house while getting himself a drink. King
also noticed that the spot on the carpet was still damp, J.A. 267, but
again found the house to be in good order.
Because Hall had not returned by
Sunday evening, her sister called friends to begin a search. They
found the car by the river Monday afternoon. Although the car had been
clean when Hall borrowed it, it had trash in it when they found it.
Although Hall needed the driver's seat to be pulled all the way
forward in order to drive, the seat was pushed all the way back.
Epperly is six feet tall.
On Tuesday, King heard a "lookout"
broadcast on the local radio station for a person matching Hall's
description. He told Epperly to contact the police quickly so they
wouldn't think he had anything to hide. Epperly asked King whom he had
told about the matter and urged King to return and tell those friends
"not to say anything, just kinda talk it down, not broadcast it." J.A.
228. The same day, Epperly asked another close friend, William
Cranwell, whether Cranwell's brother, an attorney, might represent him.
Epperly twice asked Cranwell to inquire of his brother "if there was
anything that they could do to [Epperly] if they didn't find a body."
J.A. 620. During that conversation, no one other than Epperly had
initiated use of the term "body" to describe Gina Hall.
King then went to the police and,
while accompanying them on a search of the lake house, found in it a
broken ankle bracelet that matched the one that Hall was wearing when
her sister had last seen her. When King asked Epperly whether he had
killed Hall, he said, "I don't know anything about it.... We'll just
have to wait and see." J.A. 233. He also said that he had engaged in a
"little fondling" with Hall at the lake house. J.A. 278.
On close inspection, bloodstains and
hairs were discovered in various locations around the lake house. The
stains had been partially cleaned up, but sufficient residue remained
for investigators to determine that several of them matched Hall's
blood type. The stains were located primarily in two rooms. In the
downstairs utility room, minute stains were scattered on items located
in various parts of the room: a juice pitcher, dustpan, a table, a
mattock, and a pair of brown shoes. Many of these stains were much
smaller than those to be expected from a cut finger or similar
Larger bloodstains were found in the
utility room, on the front of the refrigerator door and on the rubber
seal on the interior side of the door. The stain on the front of the
door had been partially cleaned up, but embedded in the stain were
hairs similar to hairs found on Hall's curlers and fibers similar to
samples taken from the recreation room carpet. A smeared stain was
also found near the cleat of a golf shoe that was next to the
refrigerator; a pubic hair removed from the cleat was inconsistent
Bloodstains were also found in the
recreation room, in two places. A bleached-out stain measuring some
eighteen inches in diameter was found on the carpet, three or four
feet inside and slightly to the left of the sliding glass door. J.A.
361. Another stain was found on the wooden leg of a chair to the left
of the sliding glass door. Smaller stains were found on the light
switch and faucet handle of the mid-level bathroom and on the light
switch in the downstairs bathroom. Finally, minute stains were found
on the walkway in front of the sliding glass doors and in the driveway
near the garage door, where Dlana's Chevrolet had been parked. J.A.
According to King's parents, the
house had been in good order when they left, and they could give no
reason for the presence of any of the bloodstains or for the presence
of the broken ankle bracelet. They also noticed that, in addition to
items seized by police, several other things were missing when they
returned to the house: a blue towel, a striped towel, and a bath mat
from the mid-level bathroom; a quilt from the mid-level bedroom; a can
of bathroom cleaner; and a roll of paper towels. King's mother later
discovered the cap to the can of bathroom cleaner near a trash can in
the utility room. The cap had upon it a head hair similar to Hall's.
Neither the bath mat, the quilt, nor the paper towels were recovered.
Within several days of Hall's
disappearance, however, searchers did find the missing bath towels,
along with her clothes and the contents of her purse. All of these
items were discovered either in the woods near the river where the
Chevrolet had been found previously, or a short distance away. Hall's
clothes were not ripped or torn. Like the towels and the trunk of the
Chevrolet, however, the clothes were bloodstained. All of these items
bore head hairs similar to Hall's and pubic hairs unlike Epperly's;
Hall's pants also bore a head hair similar to Epperly's. All of the
items, including Hall's underpants, also bore synthetic fibers similar
to those of the carpet in the lake house.
At approximately the same time that
searchers were discovering these items in the woods near the car,
Epperly voluntarily came to the Virginia State police, stating that he
had been with Hall on the night she disappeared. Epperly explained
that Hall had driven him home from the lake house, and that he had
given her directions back to her sister's apartment from his home. Her
sister contended that she knew the area well and would not have needed
directions. After Epperly was advised of his rights and accused of
killing Hall he denied it, but was silent when the officer accused him
a second time and agreed to "think about" how his cooperation might
influence a jury. Id. at 510.
About ten days after Hall's
disappearance, investigators also used a tracking dog, handled by John
Preston, to search for evidence. To scent the dog, Officer Gerald
Williams obtained a pair of Epperly's unlaundered underwear from his
mother. For over an hour, the dog followed a trail from the place
where the Chevrolet had been abandoned, pausing at each point where
evidence had been discovered, and winding around for nearly two miles
before walking up to Epperly's front door and stopping on his porch.
The dog scented Epperly on two other
occasions as well--once to one of the towels in evidence, which
officers had spread out with six similar towels in an auditorium, and
once from Epperly's car, which was in the police station parking lot,
into the station, and into the office where Epperly was being
questioned. Epperly responded by putting his head into his arms and
saying, "That's a damn good dog." J.A. 95.
Before trial, the prosecutor
instructed at last three police officers involved in the case not to
speak with Epperly's defense counsel, who obtained an order directing
those officers to do so. The Virginia Supreme Court set aside the
order insofar as it required the officers to speak with counsel, but
noted that the officers could not be prevented from speaking with
counsel. 366 S.E.2d at 66. Defense counsel failed, however, to
interview the three officers or to renew the witness-gagging
contention. One of the officers later testified against Epperly.
During Epperly's subsequent habeas proceedings, the prosecutor
admitted that even after the Supreme Court modified the order, he "may
very well have" instructed the officers not to speak with defense
counsel. J.A. 816.
Epperly presented no witnesses in
his defense. At the close of the evidence, the jury was instructed on
the elements of first- and second-degree murder. Neither side
requested a voluntary manslaughter instruction. The jury convicted
Epperly of first-degree murder, and he received a life sentence. As
indicated, he then exhausted his state remedies by direct and
collateral challenges to his conviction and was then denied relief on
his federal habeas corpus petition and took this appeal from the
district court's order denying relief.
Epperly raises three issues on
appeal, each turning on a distinct aspect of the right to due process
guaranteed him by the Fourteenth Amendment.
* Epperly first contends that his
conviction was obtained in violation of his right to due process
because, even viewing all the evidence in a light most favorable to
the government, no rational jury could have found the essential
elements of first-degree murder beyond a reasonable doubt. In re
Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Jackson,
443 U.S. at 319, 99 S.Ct. at 2789. We disagree.
In Virginia, proof of a "willful,
deliberate, and premeditated killing" sustains a conviction for murder
in the first degree. Va.Code Ann. § 18.2-32 (1988 & Supp.1992). Thus,
the elements of the crime are: "(1) a killing; (2) a reasoning process
antecedent to the act of killing, resulting in the formation of a
specific intent to kill; and (3) the performance of that act with
malicious intent." Rhodes v. Commonwealth, 238 Va. 480, 384 S.E.2d 95,
The question raised is a narrow one.
Without, of course, conceding any complicity in Hall's death, Epperly
does not argue that the evidence was constitutionally insufficient to
support a reasonable inference that he killed her.
Instead, he argues that the evidence must leave any rational trier of
fact with reasonable doubt regarding whether, after "a reasoning
process antecedent to the act of killing," he formed the specific
intent to kill. Id.
The state need not show such intent
to have existed "for any particular length of time." Smith v.
Commonwealth, 220 Va. 696, 261 S.E.2d 550, 553 (1980). Intent may--and
often must--be proved circumstantially, through, for example, evidence
pointing to a possible motive; a disparity in size and strength
between defendant and victim; evidence of a prolonged assault;
defendant's lack of remorse; and attempts to avoid detection, such as
concealment of the body. Epperly, 294 S.E.2d at 892-93 (citations
In reviewing the evidence in a light
most favorable to the government, Jackson, 443 U.S. at 319, 99 S.Ct.
at 2789, we may not hold the state to disproving "every hypothesis
except that of guilt beyond a reasonable doubt." Id. at 326, 99 S.Ct.
at 2792. Indeed, "a federal habeas court faced with a record of
historical facts that supports conflicting inferences must presume--even
if it does not affirmatively appear in the record--that the trier of
fact resolved any such conflicts in favor of the prosecution, and must
defer to that resolution." Id.
Here, the jury was instructed on the
elements of both first- and second-degree murder, and elected the
former over the latter--and over acquittal. The question before us is
whether under the Jackson v. Virginia review standard, that decision
was irrational. That is, we must determine whether a jury rationally
could have found on the evidence we have recapitulated that Epperly
formed the specific intent to kill Hall after premeditation and
In reviewing the evidentiary record
we are mindful that "[c]ircumstances altogether inconclusive, if
separately considered, may, by their number and joint operation ... be
sufficient to constitute conclusive proof." Stamper v. Muncie, 944
F.2d 170, 174 (4th Cir.1991) (internal quotation marks and citations
omitted). Epperly urges that, even in combination, the circumstances
presented here offer no such proof. He insists that his conviction
rests on no more than constitutionally impermissible speculation
because the case lacks, inter alia: a body or a weapon, to prove the
cause of Hall's death; a confession; more substantial evidence of a
violent struggle, such as serious disorder either in the lake house or
in Hall's clothing; or eyewitness testimony supporting some inference
of a motive.
In support of this argument, Epperly
correctly notes that of the generally comparable cases relied upon by
the state none involves a conviction entered upon evidence lacking as
many of the circumstantial indicia of guilt as does his. In United
States v. Russell, for example, a panel of this court affirmed a first-degree
murder conviction on direct appeal
where, as in the instant case, the victim's body was never recovered
and defendant, the victim's husband, never confessed. 971 F.2d 1098
(4th Cir.1992). In Russell, however, the government had presented
evidence of the defendant's ongoing abuse of his wife prior to her
disappearance; his numerous threats to kill her; a computer disk from
his desk, containing a file labeled "murder," which outlined twenty-six
steps for doing the deed; his purchase of a pistol two days before the
victim disappeared; and his discussion of the most effective way to
dispatch a victim with such a weapon.
While, in fairness, it should be
noted that there are a few decisions--mainly on direct appeals--affirming
murder convictions on arguably even less evidence than was presented
here, there is, in
the end, limited utility in canvassing for sufficiently like cases in
conducting Jackson evidence-sufficiency review. It is, by definition,
too intensely case-fact-specific an enterprise, see, e.g., Wright v.
West, --- U.S. ----, ----, 112 S.Ct. 2482, 2492, 120 L.Ed.2d 225
(1992), to be much aided by that process, and so we find the matter
On our independent assessment of the
evidence in this case, we conclude that it sufficed under Jackson's
stringent standard to support Epperly's conviction of first-degree
murder. Specifically, we hold the evidence sufficient to support the
rational inferences that Epperly isolated Hall with him at the lake
house in order to make sexual advances; that she resisted; that during
the ensuing struggle, he removed her clothes with sufficient force to
break her ankle bracelet; that, as the struggle escalated in duration
and violence, he inflicted such injuries upon her as to cause not only
the bloodstains on her clothes, but those spattered and smeared all
about the utility room, along with the additional large bloodstain on
the recreation room carpet and, some distance away, another on the
chair leg; that those injuries caused Hall's death; and that, as Hall
lay either dead or dying nearby, Epperly began a prompt and
painstaking cover-up--even misrepresenting to King and Robinson,
scarcely an hour or two after the attack, that Hall remained alive and
We further hold that the evidence
supports a rational inference that, at some point during the struggle,
Epperly formed, through premeditation and deliberation, the specific
intent to kill. Four factors support this conclusion. Most probative
is evidence pointing to the duration and violence of the struggle--one
escalating from the forcible removal of clothes to a beating that left
bloodstains spattered and smeared in various parts of two separate
rooms of the lake house. Particularly in light of Epperly's
significant size advantage over Hall, this evidence could support a
rational inference that he pursued his attack over an expanse of space
and period of time that created an opportunity for reflection.
Nor is it speculative to infer that
by the time their protracted struggle was well underway, Epperly
recognized that his actions could justify serious criminal charges
against him. A subsequent rational inference follows: that Epperly's
motive for killing Hall was to avoid the risk of prosecution by
permanently silencing the only witness to the attack. Epperly, 294 S.E.2d
Moreover, while care must be taken
not to inflate the probative value of post-event conduct for
establishing a prior mental state, Epperly's actions rationally could
be taken to reflect a capacity for premeditation, deliberation, and
carefully intentional action. Particularly damaging are Epperly's
statements to King, with whom Epperly had enjoyed a close bond since
childhood and with whom, it is therefore reasonable to infer, Epperly
would have displayed some emotional response to the news of Hall's
disappearance, had he not been complicit in it. To the contrary,
Epperly not only failed to express any concern or regret about the
fact of Hall's disappearance when King informed him of the radio
broadcast, but he actually urged King to tell other friends to keep
quiet about his contact with Hall.
Later, when King asked him directly whether he had killed Hall,
Epperly merely responded, "we'll just have to wait and see." Epperly's
attempt to discover, through William Cranwell, whether the
Commonwealth could prosecute him without a body in evidence further
reinforces the impression of his capacity to detach himself from the
tragedy through self-serving calculation.
Epperly argues that this chain of
inferences is merely speculative, and therefore constitutionally
insufficient under the rigorous test established in Jackson. In
support, he cites Austin v. United States, 382 F.2d 129 (D.C.Cir.1967),
overruled on other grounds, United States v. Foster, 783 F.2d 1082 (D.C.Cir.1986).
As indicated, in conducting Jackson evidence-sufficiency review
comparable cases are likely to be of minimal assistance, but because
Epperly relies so strongly on Austin, we discuss it briefly.
The Austin majority overturned, on
direct appeal, a first-degree murder conviction entered under the law
of the District of Columbia. The evidence showed that the defendant:
removed the victim's clothing; stabbed her at least 46 times (the
final blow with such force as to leave the broken blade embedded in
her skull); and, as she clung to life, dragged her to the river and
threw her in. Over a heated dissent, the majority reversed, concluding
that the evidence was equally probative of "a consuming frenzy or heat
of passion" as of the premeditation and deliberation necessary to form
a specific intent to kill. Id. 382 F.2d at 139.
We agree with the Austin court that,
when faced with evidence justifying the reasonable inference of a
defendant's sheer brutality, it is uniquely "the task and conscience
of a judge to transcend emotional momentum with reflective analysis."
Id. 382 F.2d at 138. But even assuming the accuracy of the majority's
assessment of the evidence presented there, we agree with the state
that applying similar reasoning in this case would impose upon state
prosecutions a duty to disprove every hypothesis alternative to guilt
beyond a reasonable doubt--an imposition clearly impermissible at
least since Jackson.
Epperly next urges that the
prosecutor violated his right to due process by suppressing material
exculpatory evidence. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct.
1194, 1196-97, 10 L.Ed.2d 215 (1963); United States v. Bagley, 473
U.S. 667, 682, 105 S.Ct. 3375, 3383-84, 87 L.Ed.2d 481 (1985). The
evidence was that the dog-tracking expert, John Preston, typically
instructs prosecutors to prevent scent item contamination by ensuring
that the item is secured in a sealed container and separated from
anyone involved in the investigation.
It is uncontested that Officer
Williams was involved in the investigation--indeed, he had searched
areas near the river where evidence was discovered--before he obtained
the scent item from Epperly's mother. At the state habeas proceeding,
however, Williams testified that he received the underwear in a paper
bag and that, although he kept the bag with him for nine or ten hours,
he never touched the scent item directly before giving it to Preston.
Moreover, while Officer Williams was present at the outset of the
tracking, the dog did not nuzzle him as would have been expected if
Williams had contaminated the scent item. The two-mile trail traced by
the dog also included places where Officer Williams had not walked
when he had been searching for evidence. J.A. 660-61, 689-90; Epperly,
366 S.E.2d at 64-65. Consequently, at the close of those proceedings,
the court found that Epperly failed to show that the track had been
Epperly argues that (1) because the
prosecutor failed to ensure that those instructions were followed, the
dog-tracking was invalid from the outset and that (2) defense
counsel's ignorance of these instructions at trial prevented him from
undermining the dog-tracking evidence, which weighed dispositively
against Epperly. He contends that either of these factors sufficiently
"undermine[s] confidence in the outcome" of his trial to justify
granting his habeas petition. Bagley, 473 U.S. at 682, 105 S.Ct. at
3383-84 (internal quotation marks and citation omitted).
Epperly's Brady claim fails. Although the defense need not file a
request for information in the prosecutor's possession in order to
preserve a Brady claim, neither does the prosecutor have "a
constitutional duty routinely to deliver his entire file to defense
counsel." United States v. Agurs, 427 U.S. 97, 111, 96 S.Ct. 2392,
2401, 49 L.Ed.2d 342 (1976). The protocols governing dog-tracking were
not possessed exclusively by the state. The evidence was "available
from other sources" through the efforts of "a diligent defense
attorney" through discovery, independent expert testimony, or cross-examination
of Preston himself, see J.A. 46-68. United States v. Wilson, 901 F.2d
378, 380 (4th Cir.1990) (internal quotation marks and citations
omitted). Epperly does not allege ineffective assistance of counsel in
the failure of his trial attorneys successfully to pursue any of these
avenues. "In situations such as this, where the exculpatory
information is not only available to the defendant but also lies in a
source where a reasonable defendant would have looked, a defendant is
not entitled to the benefit of the Brady doctrine." Id. 901 F.2d at
Even were Brady applicable here, we
agree with the district court that the evidence in question was
insufficiently material to warrant reversal, for two reasons. First,
as discussed above, during the state habeas proceedings the state
rebutted Epperly's factual claims that the track was contaminated. J.A.
967 n. 3. Because those findings of fact are fairly supported by the
record, we defer to them. 28 U.S.C. § 2254(d)(8); Sumner v. Mata, 449
U.S. 539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1980). Second, as
our analysis of the evidence in Part II demonstrates, the dog-tracking
provided a merely cumulative link between Epperly and Hall's death,
rendering any nondisclosure immaterial. There was no constitutional
violation in the prosecutor's alleged failures to disclose or to
follow Preston's instructions.
Finally, Epperly urges that he was
denied due process through prosecutorial misconduct. It is conceded
that the prosecutor instructed three police officers not to speak with
defense counsel, and may have continued those instructions even after
the Virginia Supreme Court upheld the portion of the trial court's
order forbidding him to do so. J.A. 816. Although the Supreme Court
has not ruled on the question, a number of circuits have held that
such interference with witnesses violates the constitutional guarantee
of a fair trial. E.g., Kines v. Butterworth, 669 F.2d 6, 9 (1st
Cir.1981), cert. denied, 456 U.S. 980, 102 S.Ct. 2250, 72 L.Ed.2d 856
(1982); Gregory v. United States, 369 F.2d 185, 188 (D.C.Cir.1966);
see also United States v. Walton, 602 F.2d 1176, 1179 (4th Cir.1979)
("A witness is not the exclusive property of either the government or
a defendant; a defendant is entitled to have access to any prospective
Epperly concedes that the Virginia
Supreme Court held this claim to be procedurally barred by his failure
to pursue it prior to appeal. This court is bound to defer to that
finding of adequate and independent state grounds for rejecting the
claim. Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308
(1989). Epperly argues, however, that the prosecutor's misconduct
constituted "a fundamental miscarriage of justice" warranting this
court's consideration of the issue. Engle v. Isaac, 456 U.S. 107, 135,
102 S.Ct. 1558, 1576, 71 L.Ed.2d 783 (1982).
In order to support that claim,
Epperly "must demonstrate cause and actual prejudice," id. at 129, 102
S.Ct. at 1572, or, lacking a showing of cause, he must show that his
is "an extraordinary case, where a constitutional violation has
probably resulted in a conviction of one who is actually innocent."
Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d
397 (1986). In Sawyer v. Whitley, --- U.S. ----, ----, 112 S.Ct. 2514,
2517, 120 L.Ed.2d 269 (1992), the Court held that a defendant must
show by clear and convincing evidence that he is " 'actually innocent'
of the death penalty." Epperly urges that Sawyer must be confined to
alleged errors in sentencing, and that when the constitutionality of a
conviction is at issue the defendant need only show that the subject
of the claim would have caused a trier of fact to entertain a
reasonable doubt of his guilt. Kuhlmann v. Wilson, 477 U.S. 436, 454
n. 17, 106 S.Ct. 2616, 2627 n. 17, 91 L.Ed.2d 364 (1986). Under either
standard, Epperly's claim fails.
Again, Epperly does not allege
ineffective assistance of counsel, and "the mere fact that counsel
failed to recognize the factual or legal basis for a claim, or failed
to raise the claim despite recognizing it, does not constitute cause
for a procedural default." Murray, 477 U.S. at 486-87, 106 S.Ct. at
2644. Epperly also concedes that only one of the three officers
offered significant testimony at trial. Officer Austin Hall had
actively investigated the case from the outset, and testified to
several of Epperly's admissions.
Defense counsel admitted, however, that Officer Hall's testimony was
not one of the surprises they encountered during trial. (In fact,
counsel stated that the only surprises came from witnesses describing
Epperly's post-incident attempts to avoid detection--evidence of which
Epperly himself could have forewarned them, but did not.) J.A. 798,
802-803. Thus, the record fails to support a finding of cause and
prejudice or manifest injustice necessary to warrant reversal on the
basis of Epperly's final, defaulted claim.
For the foregoing reasons, the
decision of the district court is