Joseph John Savino beat his 64-year-old male lover
McWaters to death with a hammer in Bedford County after having been
recently released on parole from custody in New York.
murderer to die tonight Joseph Savino has appealed, but unless
intervention arrives, his sentence stands
Wednesday, July 17, 1996
Barring intervention by the U.S.
Supreme Court or Gov. George F. Allen, a New York man convicted of
killing his male lover in Bedford County will die tonight by lethal
Joseph John Savino III, 37, a
native of Mt. Vernon, N.Y., pleaded guilty to capital murder in the
1988 killing of Thomas McWaters, another New York man who moved to
Virginia after buying a farm in Bedford County in 1985. Savino moved
in with McWaters in 1988 when he was paroled to Virginia after
serving six years for robbery in a New York prison.
Savino had known McWaters for
seven years. The two had "a domestic relationship,'' according to
That relationship went sour,
according to Savino.
Although the 64-year-old
McWaters supported him and gave him money, Savino said in an
interview this week, he also hounded him for sex and routinely
threatened to have his parole revoked if he didn't comply. In an
effort to avoid McWaters, Savino said, he began spending time in
Roanoke, shooting cocaine with friends.
"McWaters was painted by the
prosecutor at Joe's sentencing as simply wanting Joe to be happy,''
Savino's lawyer, Gerald T. Zerkin, said Tuesday. "That's clearly
nonsense. This case was about sexual obsession and the power and the
control that McWaters attempted to exert over Joe.''
The situation came to a head on
Nov. 29, 1988, when McWaters was found bludgeoned to death in the
home he shared with Savino. The following day, police arrested
Savino in Roanoke. In April 1989, he pleaded guilty to capital
murder and was sentenced to death.
In subsequent appeals, Savino
and his lawyers have argued that police improperly badgered Savino
into confessing to the killing even though he had repeatedly asked
for a lawyer and refused to waive his Miranda rights.
In addition, they have claimed,
Savino got ineffective assistance from his lawyers because they made
no efforts to suppress his confession, allowed him to plead guilty
without sufficient knowledge of the consequences, and failed to tell
him that his state of acute cocaine psychosis on the night of the
murder could have been a defense.
Savino grew up in an Italian
neighborhood in Mt. Vernon, N.Y., raised by his mother, a beautician.
He attended Catholic school from kindergarten through 8th grade.
From the beginning, he said, he and a group of other boys were
sexually molested by several priests at the school. Many of those
boys grew up to die of heroin overdoses or go to prison.
"They really wreaked a lot of
havoc on my town, those priests,'' said Savino, a former heroin
addict. "I mean, all these people are dead.''
As he got older and began to
get into trouble, Savino said, the priests were afraid to discipline
him for fear he would tell on them. They began to pay him to keep
his mouth shut. Meanwhile, he began to trade sex for money with men
outside of school.
At 21, after spending two years
in prison, Savino met McWaters when the older man gave him a job. As
the relationship progressed, Savino said, he became addicted to
heroin. McWaters began paying him for sex, and Savino used the money
to support his habit.
"I needed money, so I started
tricking with him for money,'' Savino said. "But it was important to
him to think that I wasn't doing it for the money. It was important
for him to believe that we were in a relationship. Like it wasn't a
relationship. Like he wasn't just paying for it.''
Bishop Walter Sullivan visited
Savino's cell in the death house at the Greensville Correctional
Center Tuesday and said Mass.
"I received the sacrament, and
I was forgiven for all my sins and anointed with oil,'' said Savino.
"It was very comforting. Just the ceremony of it reminds me of home.''
Savino is scheduled to be
executed at 9 p.m. in the death chamber at Greensville.
delay, man is executed by lethal injection the execution of Joseph
Savino III was delayed for two hours for a final appeal
Thursday, July 18, 1996
Joseph John Savino III, who
pleaded guilty to killing his male lover, was executed Wednesday
night after two final appeals to the U.S. Supreme Court were denied.
Savino was pronounced dead from
a lethal injection at 11:22 p.m., said Tammy Brown, a spokeswoman at
the Greensville Correctional Center.
The execution, originally
scheduled for 9 p.m. at the Greensville Correctional Center, was
rescheduled for 11 p.m. to allow time for a new appeal, said David
Botkins, a spokesman for the state Department of Corrections.
But the high court denied the
last-minute petition for a writ of habeas corpus, said Supreme Court
spokeswoman Toni House.
Earlier in the day, the high
court, in a 7-2 ruling, rejected Savino's request for a stay.
Justices John Paul Stevens and Ruth Bader Ginsburg dissented.
Gov. George F. Allen, in a
statement released Wednesday night, said he had reviewed Savino's
case and concluded that clemency was not warranted.
Savino's father, Joseph J.
Savino Jr., and three opponents of capital punishment held candles
outside the prison's main gate as the execution hour approached.
"I can't support violence for
violence,'' said the Rev. John Dear of Richmond's Sacred Heart
Center. "This doesn't end the cycle of violence. It only continues
The elder Savino said he spent
two hours with his son earlier in the day. He said Savino was
anxious but wasn't that concerned about himself.
"His concern is more for the
family - what they're going through,'' the father said. "He didn't
want us to go through this.''
The execution of Savino would
be the state's third execution this year.
Other than his father, Savino
had several other visitors Wednesday. But Brown declined to identify
Savino, 37, a Mount Vernon, N.Y.,
native, pleaded guilty to capital murder in the killing of Thomas
McWaters, another New Yorker who moved to Virginia after buying a
On Nov. 29, 1988, McWaters was
found bludgeoned to death at the Bedford County home the men shared.
The following day, police arrested Savino in nearby Roanoke.
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOSEPH JOHN SAVINO, Petitioner-Appellant,
EDWARD W. MURRAY, Director, Virginia Department of
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
Argued: December 7, 1995
Decided: April 30, 1996
Before MURNAGHAN, LUTTIG, and WILLIAMS, Circuit Judges.
Affirmed by published opinion. Judge Murnaghan wrote the opinion,
in which Judge Luttig and Judge Williams joined.
MURNAGHAN, Circuit Judge:
Virginia death row inmate Joseph John Savino,
Jr., has appealed a federal district court's decision dismissing his
petition for a writ of habeas corpus and denying his motion
to alter or amend the judgment. Savino contends that the district
court improperly found no merit in his constitutional claims
concerning ineffective assistance of counsel, improper acceptance of
his guilty plea, and impermissible use of expert testimony to be
without merit. Because we agree with the district court's analysis
and conclusions, we affirm the judgment below.
On the night of November 29, 1988, Thomas
McWaters was murdered at his farmhouse in Bedford County, Virginia.
Two days later, Joseph Savino confessed to killing McWaters by
repeatedly striking him on the head with a hammer and stabbing him
in the neck and back.
At the time of the murder, Savino and McWaters
lived together on McWaters's farm. They had met in 1980 when Savino
worked for McWaters's construction firm while on parole from a New
York prison sentence.
In 1982, Savino was convicted of two counts of
robbery and reincarcerated. During the next six years, McWaters
frequently visited Savino in prison, communicated with him by
telephone and gave him money. In return, Savino wrote affectionate
letters to McWaters suggesting that they begin a homosexual
When Savino was paroled from prison in February
1988, he moved into McWaters's home. The two men became lovers.
Later that year, Savino began using cocaine. Without permission, he
wrote checks on McWaters's checking account in order to purchase
When he overdrew the account, Savino faced twenty-six
forging and uttering charges in Bedford County. Before Bedford
authorities could find him, however, police in Roanoke, Virginia,
arrested him on November 22, 1988, for possessing cocaine and drug
paraphernalia. Released on a bail bond November 29, 1988, Savino
returned to McWaters's farm.
That same evening, Savino spoke with a friend by
telephone about killing McWaters, as he had done on previous
Later that night, Savino used cocaine, then joined McWaters in bed.
When Savino refused to have sex, McWaters told him that he was "washing
his hands of [him]." Savino went downstairs, thought a while and
decided to "eliminate the problem." He picked up a hammer and
returned to the upstairs bedroom where McWaters was sleeping. He
struck McWaters on the head several times with considerable force.
Believing McWaters still to be alive, Savino
retrieved two knives from downstairs and stabbed him repeatedly in
the neck and back.
Leaving the knives in the victim's body, Savino
took about $100 in cash and drove to Roanoke to purchase cocaine.
Later that night, he revisited McWaters's house, loaded a car with
his own property and some items belonging to McWaters, and then
returned to Roanoke.
The next day, November 30, 1988, police arrested
Savino in Roanoke for failure to appear in court on the earlier drug
Bedford authorities picked up Savino in Roanoke
and took him back to their county jail to process him on the forging
and uttering charges. They reported that, at first, Savino appeared
lethargic and under the influence of drugs, but that by the time
they arrived in Bedford County, he seemed substantially improved.
Bedford police questioned Savino about the forgeries of McWaters's
checks until he requested counsel.
As officers processed the forgery warrants, a
sergeant asked Savino why he had killed McWaters. Savino ended the
interview, but after sleeping for several hours in a jail cell, he
asked to speak with a particular investigator, Steve Rush. In two
separate statements, Savino then confessed to killing McWaters.
A Bedford County grand jury indicted Savino on
capital murder and robbery charges on December 2, 1988.
2 The court
appointed counsel to represent Savino. On April 24, 1989, the day
his jury trial was set to begin, Savino pled guilty to the charges.
Pursuant to Virginia's bifurcated-trial procedure, the trial judge
heard three days of testimony at the penalty phase.
On June 15, 1989, the judge found Savino to be a
future danger and imposed a sentence of death. After reviewing the
post-sentence report, he entered final judgment on July 20, 1989,
sentencing Savino to death for the capital murder and to life
imprisonment for the robbery.
On direct appeal, the same court-appointed
counsel represented Savino. The Virginia Supreme Court affirmed
Savino's convictions, then independently reviewed Savino's sentence
and found it neither excessive nor disproportionate. The United
States Supreme Court denied certiorari on October 1, 1990.
Savino then filed a habeas corpus petition in the Circuit
Court of Bedford County, raising numerous challenges to his death
sentence. After two evidentiary hearings, the circuit court entered
an order dismissing the petition on June 5, 1992. The Virginia
Supreme Court denied Savino's appeal on October 30, 1992, and the
United States Supreme Court again denied certiorari on March
Savino filed a federal habeas petition
pursuant to 28 U.S.C. § 2254 in the United States District Court for
the Western District of Virginia on November 17, 1993. He raised
fourteen claims. The district court dismissed the petition on March
1, 1995, and denied a motion to amend or alter the judgment on June
7, 1995. Savino filed a timely appeal, challenging the district
court's decision only with respect to his legal representation,
guilty plea and future dangerousness.
We review the district court's legal
determinations de novo , keeping in mind, however, that any
state court factual findings underlying those determinations are
presumed to be correct and binding, as long as they were made after
a hearing on the merits. 28 U.S.C. § 2254(d); see also Sumner v.
Mata , 449 U.S. 539, 550 (1981). The habeas petitioner
bears the burden of establishing by convincing evidence that a state
court's factual determinations were erroneous. Sumner , 449
U.S. at 550 .
A. Ineffective Assistance of Counsel
The record shows that Savino insisted upon
pleading guilty against the defense counsel's advice. Before he
entered his plea, Savino's appointed attorneys worked to prepare his
case, consulting capital defense experts and investigating possible
defenses. They discussed alternative strategies with Savino and
advised him that by pleading guilty he would waive his rights to
appeal his conviction.
At the plea hearing, the state court judge
reviewed a signed memorandum of understanding between Savino and his
Savino told the judge that his attorneys had reviewed the document
with him and explained in detail the items it contained.
5 In open court,
Savino told the judge that he understood everything in the
memorandum, that he was satisfied with the service of his attorneys,
and that he was pleading guilty voluntarily.
Savino now argues, and argued below, that his
plea was not knowing and voluntary because his lawyers misadvised
him. Savino contends that three viable defenses existed which
counsel failed to disclose or pursue. He contends that he would not
have pled guilty if he had known about these defenses, but rather,
would have chosen to pursue them at trial because each was supported
by substantial evidence.
Savino maintains that his plea is particularly
questionable because he received no benefit from it--no promise of a
shorter sentence or a lesser charge in exchange. Whether counsel's
performance was constitutionally adequate is a mixed question of law
and fact which we review de novo . Ostrander v. Green
, 46 F.3d 347, 354 (4th Cir. 1995); Poyner v. Murray , 964
F.2d 1404, 1416 (4th Cir.), cert. denied , 506 U.S. 958
The standard set forth in Strickland v.
Washington , 466 U.S. 668 (1984), governs Sixth Amendment
ineffective assistance of counsel claims. In order to succeed, a
criminal defendant must show, first, that he received deficient
legal representation, and second, that the unprofessional errors
prejudiced his case. Id. at 688, 694. Competency is measured
against what an objectively reasonable attorney would have done
under the circumstances existing at the time of the representation.
Id. at 687-88.
Because counsel's conduct carries a strong
presumption of reasonableness, reversal is warranted only if the
defendant can affirmatively prove prejudice. Id. at 689, 693.
In the context of a guilty plea, the prejudice inquiry is"whether
counsel's constitutionally ineffective performance affected the
outcome of the plea process." Hill v. Lockhart , 474 U.S. 52,
The defendant must show that "there is a
reasonable probability that, but for counsel's error, he would not
have pleaded guilty and would have insisted on going to trial."
Id. Because a guilty plea is valid only if it represents a
knowing and voluntary choice among alternatives, Hill , 474
U.S. at 56 , a client's expressed intention to plead guilty does not
relieve counsel of their duty to investigate possible defenses and
to advise the defendant so that he can make an informed decision,
see Via v. Superintendent, Powhatan Correctional Center , 643
F.2d 167, 174 (4th Cir. 1981) (discussing obligations of defense
counsel). However, if there exists no reasonable probability that a
possible defense would have succeeded at trial, the alleged error of
failing to disclose or pursue it cannot be prejudicial. Hill
, 474 U.S. at 59 .
Reviewing each of Savino's allegations of
ineffectiveness in turn, we find no constitutionally deficient
performance. In light of both the circumstances and the law at the
time, Savino's attorneys made reasonable determinations and provided
adequate representation. Therefore, we need not analyze for
1. Illegal Confession
Before Savino entered his guilty plea, his
attorneys discussed the police questioning with him and advised him
that a motion to suppress his confession was unlikely to succeed. He
now argues that his attorneys should have filed a motion to suppress
anyway because, at the very least, the Commonwealth would have been
forced to prove his confession untainted.
Savino maintains that a suppression motion was
likely to be granted, however, because police officers violated his
Fifth Amendment rights by questioning him about McWaters's murder
after he had asked for a lawyer. Because Savino responded to the
questioning by saying he would talk with investigators in the
morning, he contends that the improper interrogation led to his
confession later that day, rendering it tainted and inadmissible.
In Edwards v. Arizona , 451 U.S. 477, 484
(1981), the Supreme Court ruled that once a defendant has invoked
his constitutional rights and requested an attorney under Miranda
v. Arizona , 384 U.S. 436 (1966), any confession obtained by
interrogation reinitiated by police in the absence of counsel is
inadmissible. See also Arizona v. Roberson , 486 U.S. 675,
687-88 (1988) (holding Edwards bars police-initiated
interrogation following a suspect's request for counsel in the
context of a separate investigation).
If, however, the defendant reinitiates
discussion with police and then confesses, the statement may be
Minnick v. Mississippi , 498 U.S. 146, 156 (1990);
Edwards , 451 U.S. at 485 . A defendant who ends
police-initiated interrogation by requesting counsel, then
specifically calls for an officer with whom to talk about the
incident in question, has reinitiated further conversation for
Edwards purposes. United States v. Comosona , 848 F.2d
1110, 1112-13 (10th Cir. 1988); McCree v. Housewright , 689
F.2d 797, 802 (8th Cir. 1982), cert. denied sub nom. , 460
U.S. 1088 (1983).
Applying these principles, Savino clearly
reinitiated contact before confessing to investigators. Following
his arrest, Bedford police officers questioned Savino about forged
check charges until he requested an attorney. When an officer
subsequently--and improperly--asked Savino why he killed McWaters,
Savino responded"you're crazy," but gave no inculpatory answer.
Officers apparently continued discussing McWaters's killing with
Savino, at one point tossing a picture of the dead man's body on the
table before him.
Finally, Savino said he would speak with officers
in the morning after he had gotten some sleep. When he awoke about 1
p.m., Savino asked to speak with Investigator Rush by name. He then
sent a note requesting to see the investigator. At the onset of the
interview, Savino both orally and in writing waived his
He confirmed that he had initiated the contact
with police. Only then did Savino confess to the crimes. The record
shows that Savino reaffirmed the voluntary nature of his statements
throughout the interrogation. At the start, he asked Rush to allow
him to tell his story straight through without questions.
After doing so, Savino indicated that he knew his
confession was against his best interests because it eliminated any
possible defense to the crime, but he observed: "[W]hat I did was so
terrible that . . . I don't really deserve a day in court."
Savino later described the interrogation to his
attorneys. Savino explained that he had wanted to talk to the
officers, that nothing they said or did caused him to confess, and
that his statements were true.
Applying the existing law to these facts, we find
that it was reasonable for Savino's attorneys to conclude that their
client had voluntarily reinitiated contact with police. Furthermore,
it was logical to surmise that his statements would be ruled
admissible if challenged.
Even assuming, as Savino contends, that the
officer's question during processing was improper interrogation and
that defense counsel failed to recognize it as such, the statement
elicited was not self-incriminatory and thus not protected by
Edwards , 451 U.S. at 485 -86.
Furthermore, the fact that Savino initiated the
later police contact eliminates any taint that might have arisen
from the earlier questioning. In Edwards , the Supreme Court
explained that once a defendant initiates discussion with
authorities, "nothing in the Fifth and Fourteenth Amendments would
prohibit the police from merely listening to his voluntary,
volunteered statements and using them against him at trial."
Edwards , 451 U.S. at 485 .
Finally, we find little if any evidence in the
record to support Savino's contention that his physical condition at
the time of his statements precluded their voluntariness. Savino
advised his attorneys that he was not under the influence of cocaine
at the time he confessed.
Even if he had been intoxicated when arrested in
Roanoke, officers testified that he seemed normal by the time he
reached Bedford County. In addition, Savino slept several hours
before meeting with police again after the initial interview. Savino
initiated that contact and expressly waived his Miranda
rights after being reminded of them. Defense attorneys testified
that they did consider moving to suppress Savino's statements on the
basis of his mental and physical state, but after reviewing his
medical evaluation and discussing his mental condition, they decided
that there was no evidence to support a claim of involuntary
In light of all of the evidence regarding
Savino's statements to police and the information known to his
attorneys, we cannot say that Savino's counsel performed
unreasonably or inconsistently with existing law in their treatment
of his confession.
2. Robbery Predicate Challenge
Savino also contends that counsel provided poor
representation by failing to challenge the robbery predicate to the
capital murder charge. We disagree.
Under Virginia law, murder in the commission of a
robbery is "a killing which takes place before, during, or after the
robbery and is so closely related thereto in time, place, and causal
connection as to make the killing part of the same criminal
enterprise as the robbery." George v. Virginia , 411 S.E.2d
12, 20 (Va. 1991) (citing 1981 and 1982 opinions), cert. denied
, 503 U.S. 973 (1992); see also Harward v. Virginia , 330
S.E.2d 89, 91 (Va. 1985) (explaining that the language "during the
commission of" in § 18.2-31 can include a killing before, during or
after the underlying felony).
Thus, robbery need not be the sole motive to
sustain a charge of capital murder during the commission of a
robbery in Virginia. George , 411 S.E.2d at 21. To prove a
defendant guilty, the prosecution must show that the murder and the
robbery "were interdependent objects of a common criminal design."
Quesinberry v. Virginia , 402 S.E.2d 218, 224 (Va.), cert.
denied , 502 U.S. 834 (1991). The fact that stealing occurs
after the killing does not prove that the decision to steal was an
afterthought and the two crimes were unrelated. Whitley v.
Virginia , 286 S.E.2d 162, 166-67 (Va.), cert. denied ,
459 U.S. 882 (1982).
Based on the evidence before us, a reasonable
person could find that Savino committed robbery in connection with
McWaters's murder. The record shows that Savino was in possession of
McWaters's wallet when he was arrested. He admitted that he took
McWaters's cash immediately after the murder and that he stole
jewelry and other property belonging to the victim when he returned
to the house later that night.
He also told police that he had been planning to
murder McWaters and then to escape with a friend to "South America
or Mexico or something like that" afterward. Although there was some
evidence that the plan never existed, a reasonable person could find
the scheme linked to Savino's theft of McWaters's money and jewelry.
In addition, because Savino also told police,"all
I wanted is the cocaine," the Commonwealth could have succeeded in
arguing that Savino's drug habit induced both the killing and the
robbery. Either theory would satisfy the capital murder requirement
that robbery was a motive that existed at the time of the killing.
Savino's attorneys testified that they knew the
state of Virginia law regarding capital murder during the commission
of a robbery at the time they handled Savino's case. They stated
that they considered the evidence against Savino and the possible
prosecution arguments. The attorneys discussed the matter with
Savino, among themselves, and with experts at the Washington & Lee
Capital Litigation Project.
Based on the information before them and the
requirements of Virginia law, we find that the attorneys had
sufficient reason to conclude that there was little chance of
defeating the Commonwealth's proof that Savino murdered McWaters
during the commission of a robbery. It was not an unreasonable
strategy to forego the defense.
3. Intoxication Defense
Finally, Savino maintains that his attorneys
should have pursued, or at least discussed with him, a defense of
diminished capacity due to intoxication to both the capital murder
charge and the lesser included offense of first degree murder. Again,
we cannot agree.
Under Virginia law, mere intoxication does not
negate premeditation. Fitzgerald v. Virginia , 292 S.E.2d
798, 807 (Va. 1982), cert. denied , 459 U.S. 1228 (1983);
Giarratano v. Virginia , 266 S.E.2d 94, 99 (Va. 1980), cert.
denied , 498 U.S. 881 (1990). A defendant may avoid conviction
of capital or first degree murder if he can prove that he was so
greatly intoxicated at the time of the killing that he could not
deliberate or premeditate. Essex v. Virginia , 322 S.E.2d
216, 220 (Va. 1984); Fitzgerald , 292 S.E.2d at 807;
Johnson v. Virginia , 115 S.E. 673, 675-76 (Va. 1923).
Even in the face of evidence of extreme
intoxication from alcohol or drugs, the factfinder may find
willfulness, premeditation and deliberation if there is proof that
the defendant was "in full control of his faculties and knew exactly
what he intended to do." Fitzgerald , 292 S.E.2d at 807;
see also Johnson , 115 S.E. at 675.
We do not believe that Savino could have
presented a viable intoxication defense. Although Savino admitted he
had used cocaine on the night of the murder and a defense expert
concluded that he was suffering from a cocaine-linked psychosis and
possibly delusions at the time of the killing, the evidence is more
than sufficient to show premeditation. Savino has offered no proof
that cocaine made him incapable of deliberation or that he did not
intend to kill.
Savino's statements to police reveal the actions
of a person who, although possibly "high," was thinking in a logical,
deliberate and evil manner. He admitted that he had discussed with a
friend the idea of killing McWaters and even a possible method:
strangulation with a phone cord.
Savino explained that he sat downstairs
contemplating the murder before he actually committed it. Then, he
got a hammer, went upstairs, beat McWaters, returned downstairs for
knives, and stabbed McWaters until he was dead. Savino told police
that he knew that it was risky to use the telephone at the house
after the killing, so he decided to use a pay phone. Finally, Savino
seemed to display complete and clear recall of the events when
recounting the killing to police and to defense counsel.
Savino's attorneys testified that they considered
his conduct before and around the time of the killing and researched
the extent of intoxication necessary to preclude premeditation in
Virginia. They concluded that the Commonwealth could prove that
premeditation had been present and that Savino's deliberate acts
before, during and after the murder demonstrated no inability to
know right from wrong or to make a deliberate decision. Again, we
conclude that, in light of the facts before them, the attorneys'
decision was consistent with controlling Virginia law and
Because the record so clearly indicates that
Savino's attorneys investigated possible defenses, made strategic
choices, and then rendered advice and representation consistent with
both controlling law and the circumstances of the case, we agree
with the district court that there has been no showing of deficiency.
There is, therefore, no need to determine whether Savino was
prejudiced by counsel's conduct.
B. Guilty Plea
Savino next complains that the trial court
violated his Fourteenth Amendment rights by accepting his guilty
plea without affirmatively establishing on the record that the plea
was knowing and voluntary.
We agree with the Commonwealth that the claim is
both procedurally defaulted and without merit.
Under Virginia law, trial errors that could have
been but were not presented on direct appeal may not be raised in
habeas corpus proceedings. Slayton v. Parrigan , 205
S.E.2d 680, 682 (Va. 1974), cert. denied sub nom. , 419 U.S.
1108 (1975). Such claims are also barred on federal habeas
review. Harris v. Reed , 489 U.S. 255, 262 (1989);
Wainwright v. Sykes , 433 U.S. 72, 87 (1977).
Only when the petitioner shows "cause for the
default and actual prejudice as a result of the alleged violation of
federal law, or demonstrates that failure to consider the claims
will result in a fundamental miscarriage of justice," may the
federal habeas court consider the challenge. Coleman v.
Thompson , 501 U.S. 722, 750 (1991); Harris , 489 U.S. at
Savino alleges a trial court error of the sort
barred by Slayton and Dodson . He argues, however,
that his claim should be considered on the merits because it is akin
to an ineffective assistance of counsel claim which could not have
been raised on direct appeal. The comparison fails, however.
The error was allegedly committed by the court,
not counsel, and thus Savino's attorneys would not have had to
concede ineffectiveness in order to present the challenge. Savino's
own argument that the error is obvious from the transcript of the
plea proceeding further demonstrates that the claim could have been
raised on direct appeal. Because Savino failed to present the issue
on direct appeal when he could have done so, the state habeas
court found the claim procedurally defaulted under Slayton .
The Virginia Supreme Court then refused to review
the claim as procedurally defaulted, thus foreclosing federal court
review under Sykes and its progeny. See Coleman , 501
U.S. at 750 (the procedural default is considered an adequate and
independent state ground that forecloses review of the claim in
federal court); Bunch v. Thompson , 949 F.2d 1354, 1363 (4th
Cir. 1991). Because Savino has shown neither "cause" and "prejudice"
for his default nor alleged a fundamental miscarriage of justice, we
are precluded from considering his claim on the merits.
Even if we did reach the substance of Savino's
claim and review it de novo , see Marshall v. Lonberger
, 459 U.S. 422, 431 (1983) (stating that voluntariness of a plea
is a mixed question of law and fact appropriate for de novo
review), we would not rule it meritorious. The record indicates that
Savino was adequately informed of the nature and the consequences of
his guilty plea. Before taking the plea, the trial judge reviewed
the memorandum of understanding with him in open court. The judge
confirmed that Savino read and understood the memorandum, then
signed it with full knowledge.
In response to the judge's questions, Savino
declared that his plea was free and voluntary. The colloquy, coupled
with the substance of the memorandum, more than satisfies the
concerns articulated in Boykin v. Alabama , 395 U.S. 238,
243-44 (1969) (finding that courts may not presume from a silent
record a waiver of constitutional rights associated with a not
guilty plea, but must engage in a thorough, on-the-record inquiry to
establish that the defendant voluntarily and understandingly enters
his guilty plea). See also Wade v. Coiner , 468 F.2d 1059,
1060 (4th Cir. 1972) (holding that a state judge may satisfy
Boykin concerns by ensuring that an attorney has advised the
defendant of the nature of the charge and the consequences of his
In addition, such in-court representations from
the defendant are treated as conclusive with regard to the validity
of the plea and may not be controverted later absent some compelling
reason, which Savino has failed to present. See Via , 643
F.2d at 171. Moreover, when a defendant making a guilty plea is
represented by counsel, as Savino was, his plea is strongly presumed
to be valid in subsequent habeas proceedings. United
States v. Custis , 988 F.2d 1355, 1363 (4th Cir. 1993), aff'd
, 114 S.Ct. 1732 (1994). For these reasons, we would agree with
the district court's conclusion that the record demonstrates that
Savino's plea was knowing and voluntary.
C. Mental Health Expert Testimony
Savino's final argument is that testimony by the
Commonwealth's mental health expert regarding future dangerousness
violated his Fifth Amendment right against compelled self-incrimination
and his Sixth Amendment right to effective assistance of counsel. We
find no such violations.
The United States Supreme Court has held that a
capital defendant who undergoes psychological evaluation and faces
the results of that examination as evidence at the penalty stage is
protected by both the Fifth and Sixth Amendments. Estelle v.
Smith , 451 U.S. 454, 471 (1981). Under the Fifth Amendment,
the defendant is entitled to warning before the evaluation that he
has the right to remain silent and that if he waives that right by
cooperating, his statements to the evaluator may be used against him
at the penalty phase. Id. at 462-63.
The defendant also has a Sixth Amendment right to
effective assistance from his attorney regarding the decision of
whether to cooperate, which requires that his attorney receive
notice of the scope, nature and intended uses of the evaluation.
Id. at 470-71. Both amendments thus require clear notice to the
defendant and his counsel regarding any psychiatric evaluation by
the prosecution. Id. at 471.
In Smith , the Court differentiated
between a defendant who intends to introduce psychiatric evidence on
his own behalf and one who "neither initiates a psychiatric
evaluation nor attempts to introduce any psychiatric evidence."
Id. at 468, 472. When a defendant asserts a mental status
defense and introduces psychiatric testimony in support of that
defense, he may face rebuttal evidence from the prosecution taken
from his own examination or he may be required to submit to an
evaluation conducted by the prosecution's own expert. Buchanan v.
Kentucky , 483 U.S. 402, 422-23 (1987); Smith , 451 U.S.
at 465 .
That defendant has no Fifth Amendment protection
against the introduction of mental health evidence in rebuttal to
the defense's psychiatric evidence. Powell v. Texas , 492
U.S. 680, 684-85 (1989); Buchanan , 483 U.S. at 422 -23. In
essence, the defendant waives his right to remain silent--but not
his right to notice--by indicating that he intends to introduce
psychiatric testimony. Powell , 492 U.S. at 685 .
In Virginia, the statutory scheme set forth in
Va. Code Ann. § 19.2- 264.3:1 governs the use of psychiatric
testimony in a capital case.
9 The provisions
operate to notify the defense that its decision to introduce
psychiatric testimony constitutes a waiver of the defendant's right
to remain silent during examination by the Commonwealth's mental
health examiner. The statute treats the defendant's waiver as a
condition precedent to the prosecution's use of psychiatric evidence.
See Washington v. Murray , 952 F.2d 1472,
1480 (4th Cir. 1991) (construing Virginia statute). It details the
conditions under which the Commonwealth is entitled to have an
examiner evaluate the defendant and outlines the scope and
permissible uses of that examination. Va. Code Ann. §
19.2-264.3:1(F) & (G).
In preparation for the penalty phase of the trial,
Savino's counsel moved the court for appointment of a mental health
expert, pursuant to Va. Code Ann. § 19.2-265.3:1(A). Several months
later, the defense gave notice that it intended to present
information from the court-appointed expert, Dr. Lisa Hovermale, to
support a claim in mitigation. Soon after, the court granted the
Commonwealth's motion for appointment of a second expert under §
The Commonwealth indicated that, if Savino were
convicted, it would present at sentencing the report of that expert,
Dr. Arthur Centor. At the penalty phase, Dr. Centor did testify,
stating that there was a "high probability" that Savino would be a
future danger to society.
It is clear that Savino waived his Fifth
Amendment rights by requesting a psychiatric evaluation pursuant to
the applicable statute. The statute, both on its face and by
operation, provided the defense with adequate notice of the waiver.
That notice was supplemented by the Smith line of cases.
See Buchanan , 483 U.S. at 425 (stating that Smith put
defense counsel on notice of the waiver).
Furthermore, both defense counsel and the
Commonwealth's expert had warned Savino beforehand that any
information he gave to the psychiatrist could be used in the capital
sentencing phase. Under our precedent, such advice precludes a
defendant's Fifth Amendment claim. Giarratano v. Procunier ,
891 F.2d 483, 487-88 (4th Cir. 1989), cert. denied , 498 U.S.
The statute also provided adequate warning of the
scope of the Commonwealth's evaluation and the possible uses of the
mental health information gathered. While Savino argues that he
deserved specific notice that his evaluation could be used to
establish future dangerousness, Smith and its progeny do not
require such specific notice. In Woomer v. Aiken , 856 F.2d
677, 681-82 (4th Cir. 1988), cert. denied , 489 U.S. 1091
(1989), we applied Buchanan to reject a nearly identical
There, we found no Fifth or Sixth Amendment
violation because defense counsel had requested one mental health
evaluation and consented to the other, and thus had actual notice of
the examinations. Id. at 682. We further concluded that the
Constitution does not require that a defendant be specifically
notified that a psychiatric evaluation might provide a basis for a
future dangerousness argument. Id. Given that the facts
before us are nearly identical to those in Woomer , we reach
the same result.
Finally, Va. Code Ann. § 19.2-264.3:1
differentiates between a defendant's statements made during
psychiatric evaluation and an expert's opinion based upon such
statements. The statute forbids the use of statements or disclosures
made by the defendant during a capital sentencing evaluation as
evidence against the defendant for the purpose of proving
aggravating circumstances, but it allows the use of those statements
or disclosures in rebuttal to issues raised by the defense in
mitigation. Va. Code Ann. § 19.2-264.3:1(F) & (G).
Because the statute does not preclude use of the
opinion of the Commonwealth's examiner for establishing an
aggravating circumstance, however, the Virginia Supreme Court has
determined that its provisions permit the expert's opinions on
future dangerousness. Stewart v. Virginia , 427 S.E.2d 394,
407-08 (Va.), cert. denied , 114 S.Ct. 143 (1993); Edmonds
v. Virginia 329 S.E.2d 807, 813 (Va.), cert. denied , 474
U.S. 975 (1985); see also Barefoot v. Estelle , 463 U.S. 880
, 896- 903 (1983) (holding espert psychiatric testimony admissible
on issue of predicting furture dangerousness). Not only are we bound
by decisions of state courts on state questions when we sit in
habeas review, Estelle v. McGuire , 502 U.S. 62, 67-68
(1991), but we find the interpretation consistent with the
constitutional standards set forth in Buchanan , 483 U.S. at
410 -11. We further conclude that Dr. Centor's testimony abides by
these rules and principles.
At sentencing, the Commonwealth's expert did not
disclose any statement that Savino made during his evaluation. Dr.
Centor merely rendered an opinion as to Savino's future
dangerousness. The doctor testified that he based his opinion on
evidence other than Savino's statements to him, naming three factors
that he considered--Savino's past criminal history, the nature of
the crime, and Savino's history of substance abuse.
Upon cross-examination by the Commonwealth,
however, the defense expert read aloud a fourth factor from Dr.
Centor's report: Savino's "stated conviction from an early age that
he'll die before his time and therefore there's no use in trying to
make anything out of himself." Dr. Hovermale read the statement of
her own accord.
Even if the testimony constituted error, it was
harmless. Under Virginia law, the circumstances of the criminal
offense in and of themselves may constitute sufficient evidence of
future dangerousness. Va. Code Ann. § 19.2-264.4(C); Delong v.
Virginia , 362 S.E.2d 669, 677 (Va. 1987), cert. denied ,
485 U.S. 929 (1988).
At sentencing, the Commonwealth presented
compelling evidence of Savino's prior criminal record and his own
statements of his criminal history. The nature of the crime and the
circumstances surrounding it certainly revealed viciousness and
dangerousness. Dr. Centor presented his opinion that Savino
represented a future danger, but he specified that his opinion was
based on Savino's criminal history and drug addiction, as well as
the nature of the crime.
In addition to Savino's statements during the
evaluation, Dr. Centor said he reviewed numerous outside materials.
Savino's statements, therefore, would probably have had little if
any impact on Dr. Centor's assessment.
Moreover, Dr. Centor never mentioned his
interview with Savino upon direct examination; he did so on only
upon questioning by the defense. Thus, the alleged error cannot be
said to have had a "substantial and injurious effect or influence in
determining the[ ] verdict." Brecht v. Abrahamson , 113 S.Ct.
1710, 1713 (1993).
Consequently, we find that Savino's
constitutional rights were not violated by Dr. Centor's testimony
regarding future dangerousness.
For the foregoing reasons, the district court's
order denying habeas relief is AFFIRMED .
These facts were derived mostly from Savino's own testimony at the
state plea proceeding on June 13-15, 1989, and the state habeas
hearing on July 21-22, 1992.
The indictment charged that Savino "did willfully, deliberately,
feloniously and with premeditation, kill and murder ThosīThomas'
McWaters, Jr. in the commission of robbery while armed with a deadly
weapon," in violation of Va. Code Ann. § 18.2-31(d). The indictment
also charged the underlying robbery.
Under Va. Code Ann. § 19.2-264.4, the guilt and penalty phases of a
capital murder case are conducted in separate proceedings.
Such memoranda are routinely required by the judges in that circuit.
In the memorandum, Savino stated that he had told his lawyers all of
the facts and circumstances surrounding the case and that his
lawyers had discussed with him the nature of the charges against him
and the possible defenses he might have. Savino further represented
that his attorneys had explained, and that he understood, all of the
elements of the offenses with which he had been charged and that
would have had to be proved before he could be found guilty. The
memorandum set forth all of the rights that Savino would have if he
entered a plea of not guilty and conveyed his understanding that by
pleading guilty he would waive those rights and "all objections to
the admissibility of the statement to Investigator Rush and all
Savino actually made two incriminating statements on December 1,
1988--one at 1:00 p.m., and another at 4:25 p.m.
The Edwards rule was designed to preserve the integrity of
the accused's choice to communicate with police only through counsel.
Patterson v. Illinois , 487 U.S. 285, 291 (1988).
Specifically, Edwards and its progeny seek "to prevent police
from badgering a defendant into waiving his previously asserted
Miranda rights." Minnick v. Mississippi , 498 U.S. 146,
150 (1990) (quoting Michigan v. Harvey , 494 U.S. 344, 350
A few hours later, Savino gave the second statement in which he
again confessed to the crimes after being reminded of his
In subsection A, the statute provides that upon the request of an
indigent capital defendant, the trial court must appoint a mental
health expert to evaluate the defendant and assist the defense with
regard to the defendant's history, character, or mental condition.
According to subsection E, a capital defendant planning to present
the expert's testimony at sentencing in support of mitigation must
notify the Commonwealth. Only then, subsection F specifies, may the
Commonwealth seek appointment of its own expert to examine the
defendant concerning mitigating circumstances. If the defendant
refuses to cooperate, he may lose the right to use his own expert's
testimony in mitigation.
Dr. Centor said he reviewed police reports, Savino's statements to
police, FBI reports of previous convictions and sentences, the
medical examiner's report, Dr. Hovermale's report, copies of twenty-six
warrants for Savino's arrest, and photographs of the crime scene.