Filed: January 28, 2005

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-14

(CA-00-762-1)

STEVEN VAN MCHONE,

Petitioner - Appellant,

versus

MARVIN POLK, Warden, Central Prison,

Raleigh, North Carolina,

Respondent - Appellee.

O R D E R

The court amends its opinion filed December 28, 2004, as

follows:

On page 22, first full paragraph, line 5 -- the word

“district” is corrected to read “trial.”

For the Court - By Direction

 /s/ Patricia S. Connor 

 Clerk
Volume 1 of 2

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

STEVEN VAN MCHONE, 

Petitioner-Appellant,

v.  No. 04-14

MARVIN POLK, Warden, Central

Prison, Raleigh, North Carolina,

Respondent-Appellee. 

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

James A. Beaty, Jr., District Judge.

(CA-00-762-1)

Argued: September 28, 2004

Decided: December 28, 2004

Before WILKINS, Chief Judge, and LUTTIG and

GREGORY, Circuit Judges.

Affirmed by published opinion. Judge Luttig wrote the opinion, in

which Judge Wilkins concurred. Judge Gregory wrote a separate

opinion concurring in part and dissenting in part. 

COUNSEL

ARGUED: Cynthia Francine Adcock, Chapel Hill, North Carolina,

for Appellant. Valerie Blanche Spalding, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF: Kenneth J. Rose, CENTER FOR DEATH PENALTY LITIGATION, INC., Durham, North Carolina, for Appellant.

Roy Cooper, Attorney General of North Carolina, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for

Appellee.

OPINION

LUTTIG, Circuit Judge:

Petitioner, Steven Van McHone, appeals from the district court’s

denial of his 28 U.S.C. § 2254 habeas petition. In accordance with 28

U.S.C. § 2253(c), we granted McHone a certificate of appealability in

order to address the claims he raises under Brady v. Maryland, 373

U.S. 83 (1963) and Strickland v. Washington, 466 U.S. 668 (1984).

Because we conclude that the North Carolina Supreme Court’s disposition of these claims was neither contrary to, nor an unreasonable

application of, established federal law, we affirm.

I.

The North Carolina Supreme Court and the district court have thoroughly recounted the facts of Steven McHone’s murders of his

mother, Mildred Adams, and his stepfather, Wesley Adams, Sr., see

State of North Carolina v. McHone, 435 S.E.2d 296, 298-301 (N.C.

1993); J.A. 817-22. We set forth only the facts relevant to the issues

on appeal, as established by the witnesses who testified at McHone’s

trial. 

Wendy Adams testified that at 12:30 a.m. on June 3, 1990 she, her

husband Wesley Adams, Jr., their son Alex, and Wesley, Jr.’s parents

Mildred Adams and Wesley Adams, Sr., returned to Mildred and

Wesley, Sr.’s home after a day of fishing. Steven McHone, an occupant of the house, was already there. While getting Alex ready for

bed, Wendy overheard Wesley, Sr. and Mildred arguing with

McHone about money. Thereafter, Mildred came to their room inquiring about a missing pistol. Subsequently, Wesley, Jr. and Wendy

2 MCHONE v. POLK
heard three gunshots. As Wesley, Jr. went out into the hall to investigate, Wendy heard someone coming up the basement stairs and then

overheard Wesley, Sr. tell Wesley, Jr. to call 911. 

Wesley, Jr., a Captain in the United States Air Force, testified that

while he was talking with the 911 operator he briefly saw McHone

wrestling with Wesley, Sr. before they disappeared from sight. About

a minute later, Wesley, Sr. reappeared and told Wesley, Jr. that his

mother was "face down out back." As Wesley, Sr. approached Wesley, Jr., McHone appeared in the doorway and shot Wesley, Sr. in the

chest with a shotgun. Wesley, Jr., after a lengthy scuffle, managed to

disarm McHone. Thereafter, McHone cursed at Wesley, Jr. and

threatened that if Wesley, Jr. did not kill him he would hunt Wesley,

Jr. and his family down and "finish them off." McHone, 435 S.E.2d

at 299. 

McHone did not dispute that he killed Mildred and Wesley, Sr. and

assaulted Wesley, Jr. Rather, he presented a voluntary intoxication

defense, claiming that his consumption of alcohol and LSD prevented

him from forming the requisite mental state for first degree murder.

During sentencing, McHone presented his impaired mental state in

mitigation. McHone attempted to establish his impairment through

the testimony of Jimmy McMillian and Tammy Bryant. 

McMillian testified that over the course of June 2, 1990 he and

McHone split one and one-half pints of Jack Daniels and that, in addition, McHone drank a pitcher of beer. McMillian testified that

McHone’s physical and mental faculties were appreciably impaired

because he had a "slushy mouth." Id. at 300. 

Bryant, McHone’s girlfriend, testified that she saw McHone on the

evening of June 2 at a party at the home of Ronald Speaks. Bryant

testified that, when McHone arrived at the party, his speech was

slurred and that he was staggering. She further testified that McHone

got into a fight while at the party and began "swinging a gun around

in everyone’s face, threatening everybody, moving real swiftly and

quickly." When Bryant asked McHone "what he was on," McHone

responded, "I have taken a couple of hits of acid." Id. 

MCHONE v. POLK 3
McHone also presented expert testimony from Dr. James Groce

and Dr. John Frank Warren, III. Both testified that McHone had a

serious substance abuse problem. Id. at 301. 

The state presented the testimony of Tammy Sawyers to rebut

McHone’s intoxication defense. Sawyers, who did not drink any alcohol on June 2, testified that she and McHone had a conversation while

driving to Speaks’ house and that McHone’s speech was fine and that

McHone was able to walk "fine" to and from her vehicle. She also

testified that she was with McHone from 3:00 p.m. on June 2 until

2:00 a.m. the next morning, that she was never out of his presence for

more than five minutes, and that she did not observe him take any

controlled substances. Id. 

The jury convicted McHone of two counts of first degree murder,

one each for killing his mother, Mildred, and his step-father, Wesley,

Sr. The jury also convicted McHone of one count of assault with a

deadly weapon with intent to kill, for his attack on his step-brother,

Wesley, Jr. After finding one aggravating factor and eleven mitigating

factors as to the murder of Mildred, id. at 579-81, and two aggravating factors and ten mitigating factors as to the murder of Wesley, Sr.,

id. at 582-85, the jury recommended, and the trial court imposed, the

death penalty for each first degree murder. McHone, 435 S.E.2d at

298. McHone unsuccessfully sought direct and post-conviction

review in the North Carolina courts, id.; J.A. 731-775; State of North

Carolina v. McHone, 539 S.E.2d 642 (N.C. 1999), and his federal

habeas petition was denied on the merits by the district court. J.A.

873. Pursuant to the certificate of appealability issued by this court,

the instant appeal followed.

II.

McHone claims that the state’s failure to disclose evidence located

in State Bureau of Investigation (SBI) files entitles him to relief under

Brady v. Maryland. McHone’s Brady claims did not receive extensive

treatment in the Superior Court and in the North Carolina Supreme

Court. J.A. 774; McHone, 539 S.E.2d at 642 ("This court having thoroughly considered the matters raised . . . and having determined that

none require further evidentiary hearing and that none merit any further grounds for relief, the motion is therefore denied."). Nonetheless,

4 MCHONE v. POLK
the determination by those courts that McHone was not entitled to

relief under Brady constitutes an adjudication on the merits of that

claim. See Bacon v. Lee, 225 F.3d 470, 478 (4th Cir. 2000). Accordingly, under section 2254(d), we "confine our review to whether the

[state] court’s determination resulted in a decision that was contrary

to, or involved an unreasonable application of, clearly established

Federal law." Bell v. Jarvis, 236 F.3d 149, 158 (4th Cir. 2000) (en

banc). The district court concluded that petitioner did "not [meet] the

AEDPA standards for this claim," and we agree.

In order for a petitioner to obtain relief under Brady, "(1) the evidence must be favorable to the accused; (2) it must have been suppressed by the government, either willfully or inadvertently; [and] (3)

the suppression must have been material, i.e., it must have prejudiced

the defense at trial." Monroe v. Angelone, 323 F.3d 286, 299 (4th Cir.

2003); Kyles v. Whitley, 514 U.S. 419 (1995) (exculpatory evidence

is material "if there is a reasonable probability that, had the evidence

been disclosed to the defense, the result of the proceeding would have

been different.") (emphasis added). Materiality is not considered item

by item, rather it must be assessed collectively. Id. at 436. 

The district court assumed that the government did not turn over

the evidence in question, J.A. 835, and we assume the same.

A.

McHone identifies the statements of seven individuals — Wesley

Adams, Jr., Wendy Adams, Randy Adams, Tammy Sawyers, Mark

Tuttle, Deputy Inman, and William Kent Hall — that he contends

were improperly withheld by the government.

As to the first statement, that of Wesley Adams, Jr., Officer L.

Perry summarized Wesley, Jr.’s statement to investigators immediately after the crime as follows: 

Wes . . . overheard Steve and his mother quarreling in the

kitchen. Steve was obviously drunk and was complaining to

his mother that he wanted his money which she was holding

for him. J.A. 617;

MCHONE v. POLK 5
* * *

Steve continued to argue with his mother and step-father.

Wesley, Sr. told Steve to go downstairs in the basement and

sleep it off. Id.; 

* * *

Wes advised that he smelled a strong odor of alcohol on

Steve on this occasion. He was not aware of what amount

Steve may have drunk or if he had taken any drugs. Steve

was not stuttering and appeared to know what he was doing

the entire time. He was able to fight both him (Wes) and his

father and was able to "put up a pretty good fight." Steve

was not remorseful at all after the shooting was over. Steve

even told Wes . . . that "You’d better kill me or I’ll come

back and kill you, your wife, and child." Id. at 619[.] 

Wesley, Jr. testified at McHone’s trial. He testified as follows:

Q. Did you notice any odor of alcohol about Steve that

night? A. I didn’t notice any. Q. During this argument did

you know that he had been drinking? A. The only indication

I had, the only mention of drinking at all during the argument was the fact that my father told him to go to bed and

sleep it off. Id. at 290;

* * *

Q. Do you have an opinion . . . based on your experience

[including substance abuse detection training in the Air

Force] as to whether defendant was impaired . . . ? A. I neither heard, saw, or felt any type of impairment . . . By

impairment I meant that any dysfunction of his physical

movements; any slow movement, jerking, stumbling, tripping; any impairment in his voice characteristics by slurring

his speech or not being able to finish a sentence. 

Id. at 281-282; see also id. at 250-252 (testifying that McHone was

"aware" and "responsive" while arguing with his parents and that he

6 MCHONE v. POLK
did not have trouble walking to his room); id. at 271 (describing

McHone’s "acrobatic moves" during the scuffle); id. at 273-74 (testifying that McHone "put up a good fight"); id. at 279-280 (testifying

that, during the 40 minutes that Wesley, Jr. fought and subdued

McHone, McHone’s speech was understandable, he easily handled

the shotgun, and he was "extremely dexterous"); id. at 298-99 (testifying that Wesley, Jr.’s scuffle with McHone was extended because

McHone was "in full control of his faculties"). 

In material respects, Wesley, Jr.’s pretrial and trial statements are

consistent, even if at first blush, as the district court said, Wesley,

Jr.’s "pretrial statements that petitioner was ‘obviously drunk’ and

smelled of alcohol versus his trial testimony that petitioner did not

appear impaired in any way and did not smell of alcohol . . . appear

inconsistent." Id. at 827. Wesley, Jr.’s pretrial statement was that

McHone knew what he was doing throughout the commission of the

murders — i.e., he was not impaired — and is thus fully consistent

with his trial testimony to that effect. In his pretrial statement, Wesley, Jr. described McHone’s fight with Wesley, Sr., noting that "Steve

had the revolver in his hand and was trying to shoot Wesley, Sr.," that

"Wesley, Sr. and Steve were swapping punches the entire time," that

after Wesley, Sr. thought he had knocked out McHone that McHone

acquired a shotgun and "pointed it directly at . . . his father" and

"pulled the trigger," and that afterwards Wesley, Jr. and McHone

"struggled over the gun." Id. at 618-19. In summarizing McHone’s

physical and mental presence during these events Wesley, Jr. told

Officer Perry that "Steve was not stuttering and appeared to know

what he was doing the entire time. He was able to fight both him

(Wes) and his father and was able to put up a "pretty good" fight.

Steve was not remorseful at all after the shooting was over." Id. at

619. Thus, Wesley, Jr.’s statements to the SBI and his trial testimony

are consistent on the issue of impairment, which is the only issue that

bears directly on the guilt-phase question of McHone’s ability to form

specific intent and on the sentencing-phase question of the applicability of the impairment mitigator. 

The district court noted apparent inconsistencies between Wesley,

Jr.’s trial testimony and his pretrial statements regarding his observations of the indicia of McHone’s consumption of alcohol. Any inconsistency, however, is limited in scope and does not bear directly on

MCHONE v. POLK 7
the question of McHone’s ability to form specific intent or the applicability of the impairment mitigator. As noted above, in his pretrial

statement Wesley, Jr. described overhearing McHone’s argument with

his mother and concluded that McHone was "obviously drunk." At

trial, describing an argument between McHone and Wesley, Sr. and

in response to the question "[d]uring this argument did you know that

he [McHone] had been drinking?", Wesley Jr. testified that "[t]he

only indication I had, the only mention of drinking at all during the

argument was the fact that my father told him to go to bed and sleep

it off." Id. at 290. Thus, Wesley, Jr.’s testimony regarding the evidence of drinking during McHone’s argument with his stepfather is

unrelated to, and not inconsistent with, his pretrial observations

regarding McHone’s earlier argument with his mother which apparently was not the subject of his trial testimony. Moreover, consistent

with his trial testimony, Wesley, Jr. told Officer Perry that "Wesley,

Sr. told Steve to go . . . sleep it off." Id. at 617. Similarly, the only

evidence Wesley Jr. described in his pretrial statement in support of

his observation that McHone was obviously drunk during the argument with his mother was that she "told Steve to go downstairs and

sleep it off." Id. Accordingly, Wesley Jr.’s pretrial statement and trial

testimony are largely consistent, and certainly consistent in material

respects, the only inconsistency limited to Wesley, Jr.’s observation

to Officer Perry that "he smelled a strong odor of alcohol on Steve"

and his trial testimony to the contrary.1 We are unwilling to find,

based on this single, immaterial inconsistency, that the undisclosed

evidence is "favorable" under Brady. Nonetheless, we will assume

1While Judge Gregory, in dissent, claims that the inconsistencies in

Wesley, Jr.’s pretrial and trial statements extends further, he merely

states such as a conclusion, without any supporting analysis. He maintains that the inconsistencies extend to Wesley, Jr.’s pretrial statement

that McHone was "obviously drunk" and to Wesley, Jr.’s trial statement

that the only indication he had that McHone had been drinking was that

Wesley, Sr. told him to go "sleep it off." But Judge Gregory does not

even reference, much less address, the context of these statements, as we

have carefully set forth, which demonstrate that these statements are not,

in fact, inconsistent. Additionally, without reference to any specific pretrial or trial testimony, Judge Gregory suggests that Wesley, Jr.’s testimony was inconsistent with respect to impairment. But this conclusion

is belied by Wesley, Jr.’s unequivocal assessment of McHone’s impairment in his pretrial statement. 

8 MCHONE v. POLK
such. Even on this assumption, however, we conclude that Wesley,

Jr.’s pretrial statement is not material. 

At best, McHone might have used the inconsistency in Wesley,

Jr.’s statements as to the existence of a smell of alcohol to attempt to

impeach Wesley, Jr. See United States v. Bagley, 473 U.S. 667, 676

(1985) ("Impeachment evidence . . . as well as exculpatory evidence,

falls within the Brady rule."). But the impeachment value of this

inconsistency is low because the defense had ample testimony regarding McHone’s consumption of alcohol that it could have used to

attempt to impeach Wesley, Jr. Numerous state witnesses, including

Tammy Sawyers and police officers Inman and Miller, testified that

McHone had consumed a substantial amount of alcohol. J.A. 828-829

(district court reaching the same conclusion). Indeed, Tammy Sawyers testified that McHone was "drunk" though understandable and

able to walk, id. at 399, and that over the course of the day he consumed two cans of beer, "two pitchers of beer," and "over two and a

half pints of liquor." Id. at 405. And, at sentencing, the jury found the

mitigating factor that "[t]he defendant has a history of long-term substance abuse and on the night of the offense was under the influence

of alcohol." Id. at 579; 583 (emphasis added). Thus, the jury’s failure

to consider additional, cumulative evidence relating to the undisputed

fact that McHone had consumed a vast quantity of alcohol does not

"put the whole case in such a different light as to undermine our confidence in the verdict." Kyles, 514 U.S. at 434; United States v. Ellis,

121 F.3d 908, 918 (4th Cir. 1997) ("[P]ost-Kyles we do not ignore

other evidence presented at trial in determining confidence in the outcome. Instead, we evaluate the whole case, taking into account the

effect that the suppressed evidence, had it been disclosed, would have

had on the evidence considered at trial.").2

2Contrary to McHone’s contention, Monroe v. Angelone, 323 F.3d 286

(4th Cir. 2003), does not aid his materiality claim. There, we found a

Brady violation where the prosecution failed to disclose that the only witness that testified that the murder was premeditated had received numerous incentives from the state — including dismissal of certain gun

charges and a reduced sentence for another offense — and had made

inconsistent statements to investigators. Id. at 314. Moreover, the prosecutor told the jury that "it’s absolutely true that the Commonwealth has

not promised [the witness] anything." Wesley, Jr. received nothing from

the state, his statements and testimony on the determinative issue of

impairment were consistent, and this testimony was corroborated by the

testimony of Wendy Adams, Tammy Sawyers, and Deputy Inman. 

MCHONE v. POLK 9
Turning next to the allegedly inconsistent statements of Wendy

Adams, Adams said the following in an interview with Detective

Terry Miller:

Adams: [McHone said] ‘I can’t go on living like this,’ that

may have been part of the argument that was going on in the

kitchen. . . . But I remember him saying that that night, . . .

but he didn’t even sound, he did not sound incoherent, or

anything else, he just sounded mad. J.A. 607;

Miller: You all mentioned earlier about him being drunk or

drugged or both,

3

but Wendy mentioned also that he was

very coherent, that was my observation when I got there .

. .

Adams [Wendy]: Well, a lot of people, well, personally, I

don’t know a lot of people that would cuss and scream like

that if they weren’t drunk . . . I know a lot of people get real

belligerent when they get drunk and always, when I had

been around Steve before, he was real smooth when he was

clean. Id. at 608.

Wendy Adams testified at McHone’s trial as follows:

Q. Did he stagger, stumble, have any trouble negotiating

around the tables or whatever was in the house? A. No . . .

Q. Did you notice anything about his speech, that is being

mumbled, mush-mouthed, or slurred in any way? A. No. It

was slightly louder than normal. Id. at 122-23;

* * *

Q. Based on what Randy told Mr. and Mrs. Adams, did

they talk with Steven in your presence about alcohol or

3Wendy and Wesley, Jr. mentioned McHone "being drunk or drugged"

not based on their personal observations but rather based on Randy

Adams’ description of a phone call he had with McHone earlier in the

evening. J.A. 603. 

10 MCHONE v. POLK
about being drunk, coming home drunk? A. I didn’t pick up

on any of that. Id. at 159.

As even a cursory comparison of the pretrial and trial statements

makes clear, Wendy Adams’ undisclosed statement cannot form the

basis of a Brady violation because it is consistent with her trial testimony and is therefore not "favorable" to McHone. And, even if the

undisclosed statement could somehow be used to impeach Wendy, it

would not be material because at best it would be cumulative to the

undisputed fact that McHone had consumed alcohol. 

The SBI files also reveal that Wendy talked to Randy Adams, who

had a telephone conversation with McHone on the evening of June 2,

and that Randy told Wendy that McHone was intoxicated or impaired.

Id. at 603. This evidence is not favorable to McHone. As the trial

court held, Randy’s conversation with Wendy is inadmissible hearsay,

id. at 159, and Randy’s statements about McHone’s earlier impairment — based merely on a telephone call — do not bear in any way

on Wendy’s later observation of McHone. Because this undisclosed

evidence is not inconsistent with Wendy’s trial testimony, it is not

"favorable" under Brady. 

In addition, petitioner contends that Wendy’s description at trial of

the fight between Wesley, Sr. and McHone differs from her statement

to police. At trial, Wendy testified that she heard a "scuffle" and a

"struggle" and that "blows were exchanged." Id. at 132-33. In her

statement to police, Wendy said:

It sounded like he was dragging him up the basement steps,

beating on him, I’m not sure, and then he, I thought he . . .

like, drug him, my impression was that he was beating Steve

and had drug him into their bedroom and hit him again

maybe, and thought he had knocked him out, and then left

the room, maybe, I don’t know. 

Id. at 605. This latter statement is not "favorable" because it is not

inconsistent with Wendy’s trial testimony, in which she described

Wesley, Sr. beating McHone on several occasions during the course

of the "struggle" and also described hearing "hitting and dragging"

coming from the basement steps. Id. at 132-137. And, the jury heard

MCHONE v. POLK 11
testimony from Wesley, Jr. that Wesley Sr. was very strong and that

at one point it looked as though he had subdued McHone. Id. at 262-

63.

Randy Adams told police that McHone called him at Mildred and

Wesley, Sr.’s house on the night of the murders and asked him if he

(McHone) could bring a girl home with him. Randy told him no and

McHone, according to Adams, "got real upset with him over this and

told [him] that he would kill him." Id. at 622. Additionally, Randy

told police that Mildred informed him that, based on her observations,

McHone was "drunk or doped up," id., and a prosecution witness list

notation indicated that Randy might testify that Mildred told him that

McHone was "the worst [she had] ever seen him." Id. at 660. Randy

did not testify at trial, was not at the house when the murders were

committed, and did not observe McHone on the evening of the murders. Id. at 622. 

McHone would not have benefitted from Randy’s testimony and

thus it does not support his Brady claim. As the district court

observed, Randy’s statement was not favorable because it "contains

the fact that McHone threatened to kill Randy over a minor matter

shortly before he committed two murders." Id. at 840. Moreover,

Randy’s testimony about Mildred’s revelations regarding McHone’s

condition would have added little to the cumulative evidence presented regarding McHone’s intoxication. Lastly, as the district court

concluded, the notation on the prosecutor’s witness list is scribbled

and ambiguous. It could relate to McHone’s emotional state, his

impairment, or his meanness. Id. 

McHone next claims that Tammy Sawyers’ statement to investigators, in which she described her conversations with McHone on the

night of the murder, is Brady material. But McHone participated in

these conversations and, accordingly, this evidence cannot form the

basis of a Brady claim. See Hoke v. Netherland, 92 F.3d 1350, 1355

(4th Cir. 1996)("[W]here the exculpatory information is . . . available

to the defendant" or "lies in a source where a reasonable defendant

would have looked, a defendant is not entitled to the benefit of the

Brady doctrine."). 

Similarly, under Hoke, McHone’s telephone call to his Alcoholics

Anonymous sponsor, Mark Tuttle, approximately thirty minutes

12 MCHONE v. POLK
before the shootings, cannot form the basis of a Brady claim. Id. This

evidence would not constitute Brady material in any event. In this

conversation, McHone is described by the SBI as "sound[ing] upset

and [as] crying" and as "not seem[ing] to be making much sense,"

J.A. 611. But during the conversation McHone also said that he

thought "someone was going to die that night." Id. We agree with the

district court that the unfavorable portion of the SBI’s report of this

telephone conversation would have outweighed any exculpatory value

because it "shows clearly that, just prior to the murders, petitioner was

contemplating killing someone and sought help because he was aware

it was wrong[, and that] [w]hen he did not receive the help he sought,

he simply acted on the thoughts." Id. at 838. This "would have been

fatal to his claim that he was so impaired that he could not form an

intent to kill." Id. 

Nor does Deputy Inman’s statement to the SBI support McHone’s

Brady claim. Inman told the SBI that McHone had a "strong odor of

alcohol" and that he did not appear to be "steady on his feet." Id. at

602. At trial, Inman testified that McHone walked well enough, talked

well enough, and was aware enough for him to form the overall opinion that he was not impaired. Id. at 179-180. Inman’s trial testimony

that McHone "walked well enough" is not inconsistent with the portion of the SBI report referenced by petitioner, in which Inman noted

that McHone smelled of alcohol and appeared unsteady. The portion

of the SBI report not referenced by petitioner, in which Inman

reported that McHone’s speech was not slurred and that he appeared

to "know what was going on around him," id. at 602, confirms that

the two statements are indeed consistent and that they cannot form the

basis of a Brady claim. 

Last, McHone identifies as Brady material the statement of William Kent Hall, a medical first responder to the scene of his crime,

which includes Hall’s observation that McHone was "screaming and

kicking the glass in the patrol car." Id. at 675. But this statement is

not favorable; it bears neither on impairment nor (helpfully to

McHone) on petitioner’s state of mind at the time of the crime. 

MCHONE v. POLK 13
B.

Petitioner contends that the cumulative effect of the non-disclosed

evidence would have "further undermined an already marginal first

degree murder conviction," Petitioner’s Br. at 28, because the trial

was closely contested both as to premeditation and as to whether

McHone’s intoxication prevented him from forming specific intent to

kill. Id.

4

 Petitioner also contends that the non-disclosed evidence

would have been cumulatively material at sentencing because it might

have caused the jury to find the mitigating circumstance under N.C.

Gen. Stat. § 15A-2000f(6) ("the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the

requirements of the law was impaired"). 

Petitioner may benefit from the "cumulativeness" of evidence that

is "favorable" under Brady. Here, however, only Wesley Jr.’s statement is even arguably favorable and, as discussed above, not even it

is material. Moreover, as the district court concluded, even if all of

the undisclosed evidence were favorable, it would not undermine confidence in the result of guilt or sentencing. J.A. 845. The jury heard

testimony from state witnesses that McHone had consumed large

quantities of alcohol and was "drunk," from defense witnesses that

McHone’s drunkenness caused him to be impaired, and from experts

4Petitioner and Judge Gregory’s characterization of McHone’s first

degree murder conviction as "marginal" or "weak" is fanciful. The jury

was presented ample evidence from which it could conclude that

McHone committed the murders with the requisite malice, premeditation,

and deliberation. The jury heard evidence that on prior occasions

McHone had chased his mother around the house with a knife, threatening to kill her, McHone, 435 S.E.2d at 301, that Mildred reported to her

friends that she was afraid to be alone with him because "[h]e ha[d] told

[her] that he [was] going to kill [her]," id., and that she was "afraid to

lay down and go to sleep at night" because she believed that "sooner or

later he [was] going to kill [her]." Id. The state also proffered testimony

that McHone loaded both murder weapons just prior to using them to kill

his victims and that he was able to reload the shotgun after he killed

Wesley, Sr. J.A. 461. And, of course, Wesley, Jr. testified that after he

was subdued by Wesley, Sr., McHone acquired the shotgun, walked from

the back room to the kitchen, and shot his step-father in the chest, killing

him. 

14 MCHONE v. POLK
that McHone had a substance abuse problem. The jury’s verdict and

determination at sentencing reflects their belief that while McHone

was "under the influence of alcohol" when he committed the crime,

id. at 579, 583, he was not impaired, and the trial testimony of Wesley, Jr., Wendy, and Inman pertaining to impairment is entirely consistent with their pretrial statements. 

Petitioner contends that the undisclosed evidence is cumulatively

material because, after reviewing this evidence, Dr. Groce, a

sentencing-phase defense witness who admitted on cross examination

that McHone "would have been able to form specific intent to commit

the alleged crimes" (notably a guilt phase question), id. at 494-94,

stated in a post-conviction affidavit — on the basis of the undisclosed

evidence — that "I no longer have the opinion that Mr. McHone

could form the specific intent to kill." Id. at 688. Dr. Groce did not

aver in his post-conviction affidavit that he held the opinion that

McHone could not have formed the specific intent to kill; he said only

that he no longer had the opinion (to which he had previously testified) that McHone could form such an intent. We do not believe that

the district court erred, in refusing to accord Dr. Groce’s conclusory

affidavit any weight on the grounds that "Dr. Groce’s affidavit is far

too conclusory . . . . He does not explain what materials he reviewed

or what in the materials caused him to alter his opinions," see id. at

847. 

In sum, the North Carolina Supreme Court’s conclusion that

McHone did not present a tenable Brady claim was not an "objectively unreasonable" application of federal law. Bell, 236 F.3 at 158.

III.

In order to establish a claim for ineffective assistance of counsel,

McHone must show, first, that his trial counsel’s performance was

deficient and, second, that the deficiency prejudiced McHone’s

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Under

Strickland’s "performance" prong, McHone must demonstrate that

trial counsel’s performance fell below an objective standard of reasonableness as determined by comparison to "prevailing professional

norms." Id. at 688. In addition, McHone must also show under Strickland’s prejudice prong that "there is a reasonable probability that, but

MCHONE v. POLK 15
for counsel’s unprofessional errors, the result of the proceeding would

have been different." Id. at 694. If McHone fails to demonstrate sufficient prejudice from certain acts or omissions, we need not decide

whether counsel’s performance in those respects was, in fact, deficient under Strickland. See id. 

McHone claims that his trial counsel provided ineffective assistance because they (1) failed to investigate and present evidence of

lack of specific intent, (2) failed to object to a portion of the prosecutor’s closing argument that incorrectly stated the law of voluntary

intoxication, and (3) failed to uncover certain mitigating evidence

from McHone’s childhood. The Surry Count Superior court, the

North Carolina Supreme Court, and the district court rejected these

claims on the merits.5 For the reasons that follow, we see no reason

to disturb these judgments.

A.

McHone’s first claim arises from the fact that counsel did not inter5

In an effort to dilute the deference to which the state court is entitled

under AEDPA, 28 U.S.C. § 2254(d), petitioner points to the "State

court’s one-line adjudication" of his Strickland claims. Petitioner’s Br.

at 16, 37. Under our circuit precedent, such an adjudication does not

defeat the deference to which the state court’s judgment is entitled. See

Bell, 236 F.3d at 158 (summary adjudications subject to full AEDPA

deference). Moreover, while petitioner’s characterization of the North

Carolina Supreme Court’s treatment of this matter is accurate, it ignores

the extensive treatment that some of petitioner’s Strickland claims

received in the Superior Court. J.A. 731-774. While the North Carolina

Supreme Court reversed and remanded the Superior Court order containing these rulings, id. at 780, it did so only so that the Superior Court

could determine "whether defendant or defendant’s counsel was served

with a copy of the original proposed order" and for reconsideration of a

discovery motion. Id. We conclude that the North Carolina Supreme

Court’s subsequent denial of McHone’s petition for post-conviction

relief on all claims otherwise left intact the reasoning of the Superior

Court, id. at 815, and that the state is accordingly entitled to the benefit

of the more thorough treatment of petitioner’s Strickland claims in that

court. See Bell, 236 F.3d at 159 ("a detailed state court order is more

likely to withstand federal judicial scrutiny."). 

16 MCHONE v. POLK
view McHone’s alcoholics anonymous sponsor, Mark Tuttle; two jailors who observed McHone after the murders, Leroy Snow and

Charles Collins; McHone’s former substance abuse counselor, George

Delp; McHone’s probation officer, Larry Cheney; and did not proffer

expert testimony as to McHone’s blood alcohol content as it related

to his ability to form the specific intent to kill. 

Defense counsels’ failure to interview and present Mark Tuttle as

a witness cannot form the basis of a Strickland claim because it was

not prejudicial. Indeed, as discussed above, Tuttle would have testified that McHone contemplated murder just hours before he killed his

parents. J.A. 611, 838. Any benefit McHone might have received

from Tuttle’s general statements that McHone was "upset" and did

not seem to be "making much sense" — statements which are notably

cumulative with the testimony of McMillian and Bryant if not the testimony of the state’s witnesses — would surely have been offset by

McHone’s prediction to Tuttle that "somebody was gonna die that

night." Id. at 611. That Tuttle’s testimony would have added little to

help McHone is confirmed by the jury’s decision to recommend the

death penalty notwithstanding its conclusion that McHone committed

the murders "while he was under the influence of mental or emotional

disturbance," i.e. upset. Id. at 579; 583. 

Similarly, counsels’ failure to interview Leroy Snow and Charles

Collins, two of McHone’s jailors, cannot form the basis of a Strickland claim. Snow, who observed McHone after he arrived at the Surry

County jail, said that "it appeared . . . that Steven had taken some kind

of drugs or had consumed a lot of alcohol," id. at 681, while Collins,

who was on duty with Snow, said that "Steven . . . appeared . . . high

on dope or a combination of drugs and alcohol," that he "smelled very

strongly of alcohol," and that "his speech was slurred." Id. at 689. As

we concluded with respect to his Brady claim, McHone was not prejudiced by the absence of additional testimony pertaining to his consumption of alcohol and his level of impairment. The jury heard

testimony from state witnesses that McHone had consumed large

quantities of alcohol and was "drunk," from defense witnesses that

McHone’s drunkenness caused him to be impaired, and from experts

that McHone had a substance abuse problem. And, the witnesses that

testified at trial observed McHone in the time leading up to and during the murders, during which time, the jury concluded, McHone

MCHONE v. POLK 17
formed the requisite intent for first degree murder, while Snow and

Collins did not observe McHone until several hours later. 

McHone alleges further ineffectiveness in his counsels’ failure to

interview George Delp, a Surry County substance abuse and mental

health counselor who counseled McHone from November 1989 until

March 1990. In his post-conviction affidavit, Delp stated that

McHone had reported a history of severe substance abuse, that he

stayed sober while in counseling (which he evidently discontinued

several months before the murders), that he never expressed animosity toward his parents, that he expressed remorse for his crimes, and

that he would not "have committed this crime had he not been

severely impaired by intoxication." J.A. 679-680. The district court

concluded that McHone was not prejudiced by the absence of such

testimony, reasoning as follows:

Delp’s testimony regarding petitioner’s participation in the

counseling program is barely relevant. Delp shows that

while petitioner could stay sober and do well for extended

period of time, he did not do so prior to the murders. This

is hardly a redeeming character trait. Delp’s opinion that

petitioner would not have committed the murders unless

intoxicated is simply his unsubstantiated personal opinion

and would not be admissible. . . . Delp’s testimony concerning petitioner’s self-serving statements in prison following

the murder are of little help to petitioner. Similar testimony

was presented, along with evidence that the statements were

fabricated by petitioner to escape the death penalty. The jury

did not believe petitioner’s other self-serving statements and

one more would not have altered the situation.

Id. at 863-64. We agree with this reasoning and the district court’s

conclusion that McHone was not prejudiced by Delp’s absence, particularly where, as here, the jury concluded that McHone had "previously sought help for his substance abuse problems," id. at 580, 584,

but nonetheless recommended the death penalty. 

McHone was not prejudiced by counsel’s failure to present the testimony of his probation officer Larry Cheney. Cheney could have testified that McHone called on the day of the murders and successfully

18 MCHONE v. POLK
sought permission to stay out late, that McHone was a timid, humble

individual, that he struggled with substance abuse, and that he did not

complain about the terms of his probation. Id. at 571, 673. At trial,

the defense succeeded in excluding evidence of McHone’s probationary status, id. at 245-49, and therefore Cheney’s testimony, and thus

any prejudice, would relate only to sentencing. But the jury found that

McHone had a history of substance abuse and was drinking the night

of the murders, id. at 579, 583, and McHone’ purported humility and

his unsuccessful attempt to obey the conditions of his probation did

not relate to any of the mitigating factors considered and rejected by

the jury. 

Nor can McHone find relief in counsels’ failure to garner expert

testimony regarding his blood alcohol content. Dr. Warren, who testified for the defense, said, post-conviction, that if counsel had provided him with the testimony of Sawyers, Bryant, and McMillian, he

could have calculated McHone’s blood alcohol content and testified

that McHone was "incapable of forming specific intent to kill." Id. at

677. But Dr. Warren did not need counsel’s help to calculate

McHone’s blood alcohol content; rather, as explained by the district

court, Dr. Warren could have used his interviews with McHone or Dr.

Groce’s report, "where McHone set out the amounts of alcohol he

consumed," to perform this calculation. Id. at 848-49. Accordingly,

any ineffectiveness is attributable to McHone’s expert rather than to

his counsel and therefore cannot support a Strickland claim. See

Thomas v. Taylor, 170 F.3d 466 (4th Cir. 1999) (rejecting petitioner’s

efforts to recast a claim concerning the effectiveness of an expert as

a Strickland claim). And, even if counsel were to blame, petitioner

was not prejudiced, because the jury unanimously rejected Warren’s

sentencing testimony that McHone was entitled to the statutory mitigator, N.C. Gen. Stat. § 15A-2000f(6) ("the capacity of the defendant

to appreciate the criminality of his conduct or to conform his conduct

to the requirements of the law was impaired"), even though Tammy

Sawyers, the state’s witness, had testified that McHone had consumed

vast quantities of alcohol and even though the jury concluded that

McHone committed both murders "under the influence of alcohol."

J.A. 579, 583. As the state court concluded, counsels’ failure to put

forth additional evidence quantifying McHone’s drinking does not

satisfy either Strickland prong. Id. at 743. 

MCHONE v. POLK 19
B.

McHone alleges further ineffectiveness in his counsels’ failure to

object to a portion of the state’s closing argument pertaining to the

burden of proof for McHone’s voluntary intoxication defense. In his

closing argument, purporting to quote the law as interpreted by the

North Carolina Supreme Court, the prosecutor stated:

One of the things I want to talk with you about is the

defense of intoxication . . . [i]f we’re going to apply that

defense to the facts in this case then we really need to, ought

to know what it’s about . . . [i]n State v. Bunn, [the] North

Carolina Supreme Court, in the spring term of 1973, said

‘the defense to charge of murder is that he was so drunk that

he was utterly incapable of forming a deliberate and premeditated purpose to kill’ . . . This is what the court said

about that. 

J.A. 442.

* * *

Voluntary drunkenness is not a legal excuse[.] . . . Evidence

must show at the time of the killing the defendant’s mind

and reason were so completely intoxicated and overthrown

as to render him . . . utterly incapable of forming a deliberate and premeditated purpose to kill . . . This is what the

North Carolina Supreme Court has said about that defense.

Id. at 447-48. This statement is not correct. Rather than reciting the

proper considerations for the jury vis-a-vis McHone’s voluntary

intoxication defense, the prosecutor recited the standard the court

must apply in order to determine whether the defendant is entitled to

an instruction on voluntary intoxication. State v. Mash, 372 S.E.2d

532 (N.C. 1988). And, indeed, in Mash, where the trial court included

very similar language in its jury instructions, the North Carolina

Supreme Court awarded the defendant a new trial because it concluded that "to find for the defendant on the intoxication issue, the

jury does not have to conclude that his intoxication rendered him

20 MCHONE v. POLK
utterly incapable of forming the necessary intent; it need only conclude that because of his intoxication either defendant did not form

the requisite intent or there is at least a reasonable doubt about it." Id.

at 537. Mash also noted that language similar to that used by the prosecutor in this case "could have led a rational jury to believe that

defendant bore the burden of persuading the jury that he was so intoxicated as to be unable to form a deliberate and premeditated intent to

kill." Id. 

We do not reach the question of whether counsel’s failure to object

to the prosecutor’s statements was objectively unreasonable because

we are satisfied that McHone cannot establish prejudice from the

prosecutor’s closing statement. Unlike in Mash, here, the trial court

properly instructed the jury on the defense of voluntary intoxication.

Notwithstanding the prosecutor’s incorrect statement of the law in his

closing statement, the trial court correctly instructed the jury as follows:

Now, members of the jury, as to the defense of voluntary

intoxication, I instruct you that if you find there is evidence

which tends to show that the defendant was intoxicated from

alcohol or other impairing substance at the time of the acts

alleged in this case then you should consider the following

instructions: Generally voluntary intoxication from such a

substance is not a legal excuse for crime. However, if you

find that the defendant was intoxicated from alcohol or other

impairing substance you should consider whether this condition affected his ability to formulate the specific intent

which is required for a conviction of first degree murder; or

for that matter, assault with a deadly weapon with intent to

kill. In order for you to find the defendant guilty of first

degree murder by premeditation and deliberation you must

find beyond a reasonable doubt that he killed with malice,

and in the execution of actual specific intent to kill formed

after premeditation and deliberation. If as a result of intoxication from alcohol or other impairing substance the defendant did not have a specific intent to kill the deceased in

either of the three cases, or if you find he did not have the

specific intent to kill in either of the two murder cases

MCHONE v. POLK 21
formed after premeditation and deliberation he would not be

guilty of such offense. 

Supp. J.A. 66-67 (emphasis added). Further, the court instructed that

it was the jury’s "duty to apply to the facts the law which I am about

to give you," id. at 43, and that "I would expect only that you apply

the law which I have given you to the facts as you find them." Id. at

68. 

It is fundamental in the law that "[a] jury is presumed . . . to follow

its instruction," Weeks v. Angelone, 528 U.S. 225, 234 (2000). Here,

not only did the trial court instruct the jury correctly as to the governing law; it instructed the jury both clearly and in detail. Indeed, not

only did the trial court correctly, clearly and in detail instruct the

jury as to the governing law; additionally, the court instructed the jury

that it was only to apply the law as to which the court had instructed,

eliminating any doubt (if there were any) that statements by the prosecutor or defense as to the law were not to be considered. Moreover,

the trial court’s clear, particularized, correct instruction followed

almost immediately upon the prosecutor’s closing statement, only a

brief recess separating the argument from the instruction. 

In light of the controlling presumption that the Supreme Court has

directed us to indulge, and the context of the prosecutor’s statement

and the curative instruction described, we cannot possibly conclude

that the North Carolina Supreme Court unreasonably applied federal

law in concluding that McHone was not prejudiced by counsel’s failure to object to the prosecution’s misstatement. See J.A. 753-56

("Defendant has failed to show the existence of either the prejudice

or performance component of . . . Strickland."). In light of this presumption and context, we could not conclude that the state court

erred, even were the state court’s judgment not subject to the deferential standards of AEDPA to which it undeniably is subject. See, e.g.,

United States v. Catlett, 97 F.3d 565, 573 (D.C. Cir. 1996) (holding

that accurate jury instructions on the state’s burden of proof "would

have cured any confusion caused by the prosecutor’s remarks" suggesting incorrectly that the burden rested with the defendant); see also

Boyd v. French, 147 F.3d 319, 329 (4th Cir. 1998) (holding that a

prosecutor’s repeated improper references to his personal opinions on

the defendant’s credibility and the weight to be given various mitigat22 MCHONE v. POLK
ing factors did not deny the defendant due process where "the state

trial judge instructed the jurors that they were to decide the facts

based on the evidence presented"). 

C.

Relying on the affidavit of a social worker and Wiggins v. Smith,

123 S. Ct. 2527 (2003), McHone claims that his counsel was ineffective for failing to investigate and present mitigating evidence of his

chaotic and violent childhood. But unlike in Wiggins, where counsel

made "a tactical judgment not to present mitigating evidence at sentencing," id. at 2535, and the Court determined that "the investigation

supporting counsel’s decision not to introduce mitigating evidence"

was insufficient, id. at 2536, McHone’s counsel presented substantial

evidence of the hardships McHone endured as a child and the jury

found seven mitigators for each murder charge on the basis of this testimony. J.A. 579-80, 584-85.

Accordingly, we analyze whether the scope of counsel’s investigation in support of the mitigation case presented at sentencing was

objectively reasonable. Counsel presented its mitigation case through

the testimony of McHone’s father and Dr. Warren. Counsel retained

Dr. Warren, a forensic psychologist, to, inter alia, consider "sentencing factors" and "recommendations for sentencing or things of that

nature." Id. at 509-10. In support of his evaluation, Dr. Warren relied

on McHone’s medical records, school records, psychiatric records,

reports from Dr. Rollins and Dr. Groce, and several interviews with

McHone. Id. at 510-512. Based upon the information included in

these sources, Dr. Warren testified that McHone had "a very serious

substance abuse problem since a very early age," id. 513, "was

exposed to . . . alcohol abuse and alcoholism" by his "father at [an]

early age," id. at 514, and that after his mother’s marriage to Wesley,

Sr., he was the "odd man out." Id. at 515. 

McHone’s father, Bobby, testified that early in McHone’s life,

while Bobby was married to Mildred, Bobby was continually

"drunk," "did everything wrong," and "gave Mildred no peace whatsoever," and that McHone witnessed his parents arguing. Id. at 532-

33. Bobby further testified that this state of affairs continued until,

after an extremely violent fight with Mildred, he hospitalized himself

MCHONE v. POLK 23
and subsequently managed to quit drinking for five years, until the

time of his separation from Mildred. McHone was ten years old at the

time. Id. at 532-34. After Mildred and Bobby separated, they agreed

that she would keep McHone one year and Bobby the next (and so

forth), and Bobby testified that, during the time he kept McHone, he

provided no supervision, he was drinking and gambling, he took

McHone to bars with him where they sometimes spent the night, that

McHone started drinking when he was 13, started doing drugs when

he was 15, and that McHone’s alcohol and substance abuse worsened

over time. Id. at 538-541. 

Based on this testimony, the jury found the following mitigating

factors for both murders: "the defendant had a history of long-term

substance abuse," "the defendant enjoyed a normal childhood until the

time his parents separated, and after that, he began using alcohol and

drugs," "[d]efendant’s father abused alcohol and gambled excessively

and defendant, when he was a child, often spent time with his father

in bars while his father drank and gambled," "[d]efendant often witnessed arguments between his father and mother," "[d]efendant, while

he resided with his father, was often left alone at night, without supervision, while his father worked third shift," and "[d]efendant, while

he resided with his father, often had to reside in undesirable places."

Id. at 579-80, 583-84. 

Despite this comprehensive presentation of mitigating evidence

supported by direct witness testimony and the thorough investigative

efforts of Dr. Warren, McHone claims his counsel was ineffective

because their investigation failed to uncover information contained in

the post-conviction affidavit of Dr. Glenn E. Rohrer. J.A. 576.

McHone claims that counsel would have uncovered the information

in this affidavit if they had retained a mitigation expert or conducted

a more thorough investigation. 

This claim is meritless. Dr. Rohrer’s affidavit is almost entirely

cumulative with the testimony that McHone’s counsel presented at

trial. See, e.g., J.A. 576 (Rohrer averring that "Bobby McHone was

drunk and abusive," that "family problems and dysfunction permeated

Steven’s social history," that "he began medicating with drugs and

alcohol when he was approximately 12 years old," that "Bobby

McHone exposed Steve to . . . heavy drinking, marijuana use and

24 MCHONE v. POLK
gambling," that "Steven was the odd person out amongst his halfsiblings," and that "the custody arrangement . . . was emotionally

unstable"). 

And, the portions of Dr. Rohrer’s affidavit that purportedly differ

from the trial testimony, namely that McHone witnessed Bobby "regularly inflict brutal beatings on Mr. McHone’s mother and his sister,"

id. at 575, and that Bobby "made repeated sexual advances towards

Steven’s half-sister," id. at 576, are not sufficient to establish either

that counsels’ decision not to investigate further was objectively

unreasonable or that McHone was prejudiced by that decision.

Indeed, Bobby testified that he had violent fights with Mildred and

that McHone, though young, witnessed these arguments. Moreover,

Dr. Rohrer’s affidavit does not conflict with the time-line established

during Bobby’s testimony, namely that the bulk of the drinking and

violence during their marriage occurred before McHone was five

years old and that, after McHone was five, Bobby stopped drinking

and gambling. Finally, Dr. Rohrer has provided no indication that

McHone was aware of his father’s sexual advances toward his half

sister. Accordingly, we hold that where, as here, counsel has investigated and presented mitigating evidence pertaining to petitioner’s

childhood and that the jury has credited such evidence and nonetheless imposed the death penalty, that counsel’s decision not to investigate further, particularly where such investigation would bear little —

if any — fruit, cannot support a Strickland claim. The state court’s

identical conclusion, J.A. 752-52, was therefore not objectively unreasonable. 

IV.

Judge Gregory, in dissent, concludes the McHone is entitled to

relief under Strickland because of counsel’s failure to investigate and

present evidence of specific intent, because of counsel’s failure to

object to the prosecutor’s improper closing argument, and because of

counsel’s failure to adequately investigate mitigating evidence. But he

provides little, if any, analysis as to why the North Carolina Supreme

Court’s adjudication of these claims constituted an "objectively

unreasonable" application of federal law. Indeed, Judge Gregory’s

analysis on these scores comprises only conclusory statements that

"[i]n light of the gravity of these errors and their prejudicial effect,

MCHONE v. POLK 25
AEDPA’s ‘unreasonable application’ standard does not alter" his conclusion that counsel acted unreasonably, post at 54, and that the state

court’s determination that McHone was not prejudiced by counsels’

purported errors was objectively unreasonable "given the gravity of

these errors and their prejudicial effect." Post at 63. Such conclusory

statements and cursory treatment are an insufficient basis to reverse

a judgment entitled by statute to substantial deference by the federal

courts. 

Judge Gregory maintains that counsel erred by not procuring testimony regarding McHone’s blood alcohol content on the night of the

murder. But he concedes, as he must, that circuit precedent dictates

that McHone is not entitled to relief for ineffectiveness attributable to

his expert, even if it could be said that McHone’s expert was ineffective, which he clearly was not. Post at 49-50. While Judge Gregory

claims that this authority is inapplicable because "counsel failed to

give [Dr. Warren] all the necessary information" to calculate petitioner’s blood alcohol content, post at 49, such a conclusion ignores the

district court’s finding that "Dr. Warren testified" that he reviewed

Dr. Groce’s report where Dr. Groce "set out the amounts of alcohol

[McHone] consumed." J.A. 848. Indeed, the dissent makes no attempt

whatsoever to reconcile Dr. Warren’s trial testimony with his claim

in his post-conviction affidavit that he "received no specific information regarding the amount and types of alcohol ingested by McHone,"

a claim that is belied by the contents of Dr. Groce’s report. Such

merely serves to highlight that the state court’s conclusion that Dr.

Warren’s failure to testify to McHone’s blood alcohol content was

indeed an entirely reasonable application of Strickland. 

In the same vein, Judge Gregory concludes that counsel performed

unconstitutionally by failing to interview and present as witnesses

Mark Tuttle and McHone’s jailors, Leroy Snow and Charles Collins.

Judge Gregory suggests that Tuttle could have offered "key testimony

on McHone’s state of mind," post at 51, that "McHone was not threatening his parents that night," post at 56, and could have testified as

to McHone’s "impairment." Post at 70. But Tuttle could not have testified to McHone’s impairment because he did not observe McHone

on the night of the murders. Moreover, testimony that McHone was

"upset and crying" is plainly cumulative with the testimony of virtually every witness that did observe McHone on the night of the mur26 MCHONE v. POLK
ders and does not bear on whether McHone formed specific intent in

any event. And any benefit McHone might have received from Tuttle’s testimony that McHone was "upset" and "asked him to come

over there and see him," J.A. 611, would obviously have been offset

by McHone’s revelation to Tuttle that "somebody was gonna die that

night" and Tuttle’s observation that McHone had been "backsliding"

from his efforts to reduce his drug and alcohol dependency — testimony that no counsel would want placed before the jury. Id. at 610-

11. 

Judge Gregory also suggests that if Collins and Snow had testified

that their testimony would have been "in direct contradiction to the

testimony of the State’s law enforcement witnesses." Post at 51. But

such a conclusion mischaracterizes the possible content of the jailor’s

testimony; they could not directly contradict the testimony of the

other witnesses because they did not observe McHone until two hours

after the commission of the murders. Moreover, Judge Gregory’s conclusion is inconsistent with his determination that McHone’s Brady

claim is meritless. While Judge Gregory writes separately to explain

that Randy Adams’ statement, where he purportedly revealed that

McHone was drunk and "the worse I’ve ever seen him," post at 45,

and Deputy Inman’s statement, that McHone had a strong odor of

alcohol and was not steady on his feet, were favorable under Brady,

he nonetheless concluded that the suppression of these statements was

not material. Inman’s and Adams’ statements being, in material

respects, indistinguishable from Snow’s and Collins’ statements,

Judge Gregory’s conclusion that the absence of the former was not

material under Brady while at the same time concluding that the

absence of the latter was prejudicial under Strickland is analytically

indefensible. 

Similarly, Judge Gregory concludes that counsels’ failure to object

to the prosecutors’ statements regarding McHone’s voluntary intoxication defense warrants relief under Strickland because the jury might

have been "confused on the correct standard." Post at 59. But Judge

Gregory concedes that "the judge did give a proper jury instruction,"

id. at 58. Thus, in order to reach the conclusion that he does, Judge

Gregory must disregard the Supreme Court’s teaching that juries are

presumed to follow such instructions, particularly where, as here, the

trial court instructed the jury that "I would expect only that you apply

MCHONE v. POLK 27
the law which I have given you to the facts as you find them." J.A.

68. In addition to his necessary disregard of Supreme Court precedent

and the particular instructions given to McHone’s jury, Judge Gregory’s conclusion ignores the standard of review, set forth by Congress,

that petitioners such as McHone are entitled to relief only where a

state court’s application of federal law is objectively unreasonable.

Here, the state court presumed, as the Supreme Court has instructed,

that the jury followed the trial court’s instructions. This is precisely

the presumption required of the state court by the Supreme Court of

the United States. It is simply insupportable in the face of this indisputable adherence to the Court’s precedent by the state court and

without any analysis or supporting authority whatever, to conclude

that the state court unreasonably applied established federal law. 

Judge Gregory’s conclusion that McHone’s counsel was ineffective

for failing to present additional mitigating evidence relating to

McHone’s childhood is similarly untenable. As noted above, unlike

in Wiggins where counsel did not present any evidence of mitigation,

here counsel submitted ample evidence of the hardships McHone

endured during his childhood and the jury credited this evidence when

it found the related mitigating factors. Judge Gregory’s description of

counsels’ actions and the purported prejudice therefrom simply fails

to confront this fundamental point. Judge Gregory suggests that a mitigation investigation "would have revealed" that "McHone has a history of chronic violence from birth through the divorce of his

parents," that "McHone’s childhood was marked by deprivation," that

"McHone’s parents agreed to an unconventional custody arrangement," and that "McHone self-medicated with drugs and alcohol from

age 12." Post at 54. But McHone’s counsel presented this evidence

to the jury. Bobby McHone testified that early in McHone’s life that

Bobby was continually drunk, "gave Mildred no peace whatsoever,"

that McHone witnessed his parents arguing, and that Mildred and

Bobby agreed to an unconventional custody arrangement. J.A. 532-

34. Moreover, as described in detail above, both Dr. Warren and

Bobby McHone testified that McHone used drugs and alcohol from

an early age and suffered various forms of deprivation. 

Despite counsels’ introduction of this substantial mitigating evidence, Judge Gregory maintains that counsels’ mitigation investigation was inadequate because the jury might have been confused by the

28 MCHONE v. POLK
mitigating factor that McHone "enjoyed a normal childhood until the

time his parents separated, and after that, he began using alcohol and

drugs." But the phrasing of one mitigating factor does not bear on the

propriety of the scope of counsels’ mitigation investigation. And,

while Judge Gregory suggests that this mitigating factor could have

caused the jury to conclude that McHone’s childhood difficulties did

not begin until his parents’ divorce, he does not identify any evidence

that rebuts Bobby McHone’s testimony that from the time he quit

drinking — when McHone was five years old — until the time he

separated from Mildred — when McHone was ten years old — that

there were "a few arguments" but that it "wasn’t like it was when I

was drinking." J.A. 534.

V.

For the reasons stated, the judgment of the district court is

affirmed. 

AFFIRMED

MCHONE v. POLK 29
Volume 2 of 2

GREGORY, Circuit Judge, concurring in part and dissenting in part:

The majority denies McHone habeas relief finding that the North

Carolina Supreme Court’s disposition of his Brady and Strickland

MCHONE v. POLK 31
claims was not contrary to, nor an unreasonable application of, clearly

established federal law. I concur with the majority that McHone’s

Brady claim must fail. However, I write separately because I believe

that while the withheld evidence was not "material" under Brady, it

was "favorable." 

Respectfully, I must dissent from the majority’s analysis and conclusion on McHone’s Strickland claim. McHone’s counsel rendered

objectively unreasonable performance by failing to seek expert testimony on McHone’s blood alcohol level, interview or present testimony from several witnesses that had either spoken with or observed

McHone on the night of the murders, object to the State’s improper

closing argument, and investigate McHone’s childhood for mitigation

evidence adequately. These errors prejudiced both the guilt and sentencing phases, and the state court was objectively unreasonable in

ruling otherwise. 

I.

Because the majority fails to state the facts related to the night of

the killings in detail, facts which are essential to analyzing McHone’s

claims, I fully recount them here. On June 3, 1990, Wesley, Sr. and

Mildred returned to their home in Siloam, North Carolina around

12:30 a.m. with Wesley, Jr., McHone’s half-brother; Wendy, Wesley,

Jr.’s wife; and Alex, Wesley, Jr. and Wendy’s two-year old son. Wesley, Jr. and Wendy, both Captains in the United States Air Force,

were on leave and visiting Wesley, Sr. and Mildred and the family

had gone on a fishing trip. McHone, who lived with Wesley, Sr. and

Mildred, and Randy Adams, McHone’s half-brother, were there when

the family arrived.1

Upon arriving, Wesley, Sr. drove Randy home, who lived just

down the street. When he returned, McHone, Mildred, and Wesley,

Sr. began arguing in the kitchen apparently about money.2 As the

1Wesley, Sr. and Mildred were married and had Wesley, Jr., Randy,

and another child. They then divorced and Mildred married Bobby

McHone, Petitioner’s father. Mildred and Bobby, who only had one child

—McHone, later divorced and she remarried Wesley, Sr. 

2Wendy testified at trial that Mildred acted as a bookkeeper for

McHone’s money and that McHone was paying "reparations" from a pre32 MCHONE v. POLK
argument got louder, Wendy and Alex went to bed and Wesley, Jr.

took a shower. The argument continued until after Wesley, Jr. got out

of the shower but shortly thereafter he heard his father, Wesley, Sr.

state, "We’ll talk about it tomorrow," at which time McHone went

down to his bedroom, which was in the basement. J.A. 252. A few

minutes later, Mildred came to the bedroom that Wesley, Jr. and

Wendy were in and asked if they had moved a gun that was in the

camper the family took on the earlier fishing trip. They told her that

they had not and she said that the gun was missing. 

A few minutes later, three shots were heard from the back yard.

Upon hearing the shots, Wesley, Jr. ran into the hallway where he saw

Wesley, Sr. coming up from the basement stairs, shouting for him to

call 911. Wesley, Jr. went to the phone in the kitchen and called 911

while his father ran out to the backyard. 

Shortly thereafter, Wesley, Sr. and McHone came through the back

door into the kitchen wrestling with each other over a gun in

McHone’s hand. Wesley, Jr. intervened and got the gun away from

McHone. Wesley, Sr. and McHone continued to wrestle and Wesley,

Sr. told Wesley, Jr. that, "Your mother’s down. Call 911. Get help out

here for her." J.A. 262. Wesley, Jr. went back to the phone and

McHone and Wesley, Sr. disappeared down the hallway fighting.

Wesley, Sr., apparently believing he had knocked McHone out, then

reappeared in the kitchen, breathing heavily, saying again, "Your

mother is facedown out back. You have got to get help for her. Your

mother’s facedown. I don’t know how badly she’s hurt." Id. at 263-

64. Then McHone appeared out of the hallway carrying a shotgun and

vious conviction. J.A. 152-53. McHone’s counsel objected to this latter

statement, which the trial judge sustained. Wendy also testified that

"[t]he part of the argument that I heard was [McHone] saying that he

wanted his money and that he couldn’t go on living like that." Id. at 159.

Wesley, Jr. testified similarly stating that McHone was arguing with

Mildred and Wesley, Sr. about his money and the rules surrounding his

probation. Id. at 245. The trial judge also excluded this reference to "probation" over the prosecution’s argument, made outside the presence of

the jury, that they should be allowed to present such testimony as evidence of motive. Id. at 246-49. 

MCHONE v. POLK 33
Wesley, Sr. lunged towards McHone to get it. Before he reached the

shotgun, McHone shot Wesley, Sr. who fell into Wesley, Jr., the force

of the blow knocking them both down. 

As McHone began to bring the shotgun back up, Wesley, Jr. went

for it and began to struggle with McHone. They fought for several

minutes, but Wesley, Jr. got the shotgun away from McHone, placed

it on the floor beside them, and was then able to subdue McHone.

Wesley, Jr. testified that McHone then began crying and said, "Oh,

my God. What have I done?" but moments later reached for the shotgun on the floor. J.A. 269. They fought again and Wesley, Jr. took the

shotgun and held it over McHone, who was laying on the floor. It

took Wesley, Jr. approximately ten minutes to subdue McHone. 

Wesley, Jr. testified at trial that McHone then began to goad Wesley, Jr. into killing him stating, "I killed him. Now I want you to kill

me, because I don’t want to spend the rest of my life in jail. Just shoot

me. Just get it over with." J.A. 272-73. McHone also began using profanity and stated that this was Wesley, Jr.’s fault because he was Mildred’s "golden boy" and that he did not have the guts to kill McHone.

Id. at 138, 270. Wesley, Jr. testified that McHone said, "if I didn’t kill

him and he got out of jail he’d hunt me down and hunt my family

down and finish us off." Id. at 270. Then Wendy, who had been in

the bedroom with Alex since the initial shots, called out to see if Wesley, Jr. was alright and before Wesley, Jr. answered, McHone stated,

"I killed your mama and your daddy. And I would have killed you

and your damn baby too." Id. at 272. 

Medical personnel and officers from the Surry County Sheriff’s

Department arrived a little after 2:00 a.m. Wesley, Sr. was dead upon

their arrival, and Mildred died later by a wound from a gunshot to the

back of her head. McHone was arrested and made statements

acknowledging his guilt. During this time, the phone, which Wesley,

Jr. had dropped, was still on the line with 911. A 911 tape recorded

the sequence of events from after Mildred was shot until the Sheriff’s

deputies arrived on the scene. The tape, however, is missing.3

3The magistrate judge’s Report and Recommendation ("R&R") noted:

"It is not entirely clear what became of the 911 tape. The original was,

34 MCHONE v. POLK
At trial, McHone claimed that he was too intoxicated to form the

necessary specific intent of premeditation and deliberation for firstdegree murder. The testimony disclosed that McHone had spent the

afternoon and evening of June 2 with Jimmy McMillian and Tammy

Sawyers, McMillian’s girlfriend. McMillian and Sawyers picked

McHone up at his house, the home of Wesley, Sr. and Mildred,

around 2:00 p.m.4 J.A. 376-77. They then went to Mount Airy, North

Carolina to an ABC store where they purchased a pint of Jack Daniels. The group proceeded to the home of McMillian’s brother where

they stayed for a short time. Between 4:00 p.m. and 5:00 p.m., they

drove to Winston-Salem to go to a mall, after which they went to a

Pizza Hut. McMillian and McHone had consumed approximately a

pint and half of Jack Daniels by that time.5 At the Pizza Hut, McMillian and McHone each had a pitcher of beer. They left the Pizza Hut

around 9:15 p.m. and went to a service station to use the restroom.

At that time, McMillian started driving back to Mount Airy.

Around 10:00 p.m., a state trooper pulled over their car and arrested

McMillian for driving while under the influence of alcohol. J.A. 322,

381. The state trooper testified that he observed that McHone had

been drinking and asked Sawyers to drive. Id. at 328. McMillian was

taken to the Dobson, North Carolina police station, and, after following the state trooper back to the station, McHone and Sawyers left and

for a time, stored in the evidence locker of the Surry County Sheriff. At

some unknown point, it was removed, and has not been seen since. A

hearing on the matter was conducted in the state courts and no one had

a specific memory of destroying the tape. Its whereabouts are simply a

mystery." J.A. 854. 

A partial transcript of the tape does exist, and apparently the only discernable comment by McHone is "I killed your Goddamn momma, now

kill me." Id. Neither the tape nor the transcript was introduced into evidence at trial. 

4McMillian testified that they did not pick up McHone until 7:15 p.m.

that evening, J.A. 319, but given the sequence of events that afternoon

and night, the record reflects that Sawyers’s testimony on the time they

picked up McHone is likely the most accurate. 

5McMillian already had some alcohol with him in the car and Sawyers

was not drinking. J.A. 318, 321. 

MCHONE v. POLK 35
drove to McHone’s house. McHone went into the house and then

came back out to the car with a gun and a couple of cassette tapes.6

He told Sawyers that the gun was to protect her in case McMillian got

out of jail that night and tried to hurt her. 

They then went to a party at Ronald Speaks’s house in Mount Airy

arriving around 12:00 a.m.7 J.A. 385. There, McHone encountered

Tammy Long Bryant, who he had met at a Narcotics Anonymous

meeting and had been dating for a couple of weeks. They split

approximately a fifth of liquor with another person. Bryant testified

that McHone consumed more than 1/3 of the fifth but less than 1/2

of it. Id. at 333. During the party, McHone pointed his gun at a

Johnny Swaim as a result of an argument over Bryant. Then, Sawyers,

Bryant, and McHone went back to Sawyers’s car and drove to a convenience store to purchase beer for people at the party.8

 While in the

car, Bryant took the gun from McHone, which had been unloaded,

and placed it in the car’s console. They then returned to Speaks’s

house. Shortly thereafter, Sawyers took McHone home and on the

way, they stopped at a convenience store where McHone purchased

6The State introduced into evidence a .38 caliber pistol found in the

kitchen and Sawyers testified that this was the gun that McHone took

from the house. However, it is unclear if this is the same or a different

gun than the one that Mildred said was missing. Supp. J.A. 22-23.

McHone’s counsel speculated in closing that this was a different gun

because the gun that Mildred said was missing was in the camper with

the family during their fishing trip, but McHone, while with Sawyers,

retrieved the gun from the house during the time the family was away

fishing. Id. The State did not introduce any ballistics testimony during

the guilt or sentencing phases. Id. at 21. 

7Sawyers testified to their time of arrival at the party, but given that

the family returned back from their fishing trip around 12:30 a.m. and

McHone was already there, he probably went to the party earlier than

12:00 a.m. 

8Bryant testified to a different sequence of events, stating that after the

fight with Speaks, McHone walked to the convenience store and was

gone for several hours. J.A. 336. Bryant testified that after McHone

returned, she did go to a convenience store with him and Sawyers to buy

beer and that while in the car McHone started beating his head with his

fist, hitting the dashboard, and swinging around the gun. Id. at 343. She

testified that she took the gun away from him and unloaded it. Id. at 344.

36 MCHONE v. POLK
more beer.9

 He drank two beers in the car, left one in the car, and took

the rest into his house. Before getting out of the car, Sawyers testified

that McHone "started saying how, how nobody loved him, and how

he might as well kill himself, and that because nobody would miss

him." Id. at 394. He then loaded the gun and asked Sawyers to stay

with him so that he could protect her from McMillian but she

declined. 

The testimony at trial regarding McHone’s level of impairment,

from alcohol and possible drug use, varied. In general, the witnesses

for the State (with the exception of Wesley, Jr., who never acknowledged that McHone had been drinking) testified that while McHone

had been drinking, he was not "drunk" or intoxicated to the point that

his actions were impaired.10 Specifically, these witnesses testified as

follows: 

• Wendy Adams: Testified that when she first observed McHone at

the house after they returned from the fishing trip, he walked normally (did not stagger or stumble) and made it up the steep basement steps. He did not slur his speech but was talking louder than

normal. J.A. 122-23. Testified that she had undergone several

hours of training in the Air Force to recognize whether an individual is impaired/under the influence. Id. at 151. Testified that Wesley, Sr. and Mildred did not talk to McHone in her presence about

alcohol or him being drunk when they got home from the fishing

trip. Id. at 159.

• William Kent Hall, First medical responder: Testified that when

he was in the kitchen with Wesley, Sr.’s body, McHone called out

to "Give me a cigarette." Id. at 164.

• Jimmy Inman, Deputy Sheriff, Surry County Sheriff’s Department: Testified that he arrived shortly after 2:00 a.m., arrested

McHone, and that McHone started "cussing" the Sheriff’s depart9Sawyers testified that at the convenience store, Sawyers called Bryant, at McHone’s request, to see if Bryant would come home with him.

Id. at 392. Apparently Bryant declined to do so, but the record is unclear.

10Because McHone’s Brady claims involve much of this testimony, it

is recounted in this context, infra pg. 44-47. 

MCHONE v. POLK 37
ment and stating "What have I done? Why did I do it?". Id. at 169-

171. Testified that McHone recognized the "Air Care" helicopter

as it flew in to pick up Mildred and that he stated "Oh, God, it’s

bad. There’s Air Care." Id. at 172. Testified that he was able to

hear and understand McHone’s speech and that McHone was able

to respond to his questions. Id. at 172-73. Testified that given his

experience in law enforcement in observing drunk people, that

McHone "was not drunk. He had been drinking." Id. at 179. He

"define[d] drunk as a person’s mental and physical capabilities are

impaired to the point that he cannot walk, talk, or act in a proper

fashion." Id. at 178. He stated that he based his opinion "on

[McHone’s] smell of alcohol about him, the way he talked to me,

and the way he did walk." Id. at 180.

• Terry Miller, Detective, Surry County Sheriff’s Department: Testified that when he entered the house McHone said, "Terry Miller,

you pussy, I’ll kill you too, you son-of-a-bitch . . . I know what

I’ve done, and I’ll have to pay for it. Why don’t you just shoot me

and get it over with." Id. at 212. Testified that, "Based on the fact

that he was able to identify me spontaneously when I entered the

room, and I was not that personally acquainted with the man; the

fact that I could clearly understand everything that he said; he was

very much aware of everyone in his presence and called them by

name; he was able to negotiate the steps in front of the house,

walk to the patrol car; he was aware of the Air Care helicopter that

came over near the same time that we arrived at the patrol car;

. . . . Based on everything I observed there the man obviously had

been drinking. In my opinion he was not so drunk he did not know

what he was doing." Id. at 215.

• Larry Norman, Officer, Dobson Police Department: Testified that

he observed McHone when he was brought into jail and that he

did not slur or mumble his speech and could walk. Id. at 220. He

testified that, "It was obvious in my opinion that he was drinking,

intoxicated. But, he was not drunk as I would term drunk." Id. at

221.

• Wesley, Jr.: Testified that McHone was not slurring his speech

during his fight with Mildred and Wesley, Sr. and was able to

walk and negotiate the basement steps. Id. at 241-42. Testified that

38 MCHONE v. POLK
McHone seemed to be very aware of what was happening and that

his answers to his parents questions were responsive. Id. at 251.

Testified that he had training on several occasions in the Air Force

on detecting alcohol impairment and that, "I neither heard, saw, or

felt any type of impairment on his part, on the part of the defendant during that entire time." Id. at 282. He explained that, "By

impairment I meant that any dysfunction of his physical movements; any slow movement, jerking, stumbling, tripping; any

impairment in his voice characteristics by slurring his speech or

not being able to finish a sentence; or not being able to recognize

me. All the attributes that I looked at and dealt with in extremely

close quarters, I did not see any impairment other than what any

other normal person would do." Id. Testified that he did not notice

any odor of alcohol on McHone that night and that "[t]he only

indication that I had, the only mention of drinking at all during the

argument was the fact that my father told him to go to bed and

sleep it off." Id. at 290.

Finally, the State presented witnesses who stated that Mildred told

them that McHone threatened to kill Mildred when he was twelve to

thirteen years old.11 Id. at 307-309. 

McHone presented two witnesses, McMillian and Bryant. McMillian testified to the amount of alcohol that he and McHone drank and

that McHone was "mush-mouthed," and that his eyes were red and

glassy. Id. at 314-27. Bryant testified in more detail. She stated that

McHone was drunk and staggering when he arrived at the party at

Speaks’s house; that he was crying and fighting with people, swinging his gun around; and that McHone was real pale, sweating, and

moving rapidly with wide eyes. Id. at 333-339. Bryant testified that

later at the party she asked McHone what he was on and, "he told me

that he was eating acid." Id. at 340. 

The State presented Sawyers as its rebuttal witness. Sawyers testified to the sequence of events, described above, from the time she

picked up McHone until she brought him back later that night. She

11McHone was twenty years old at the time of the trial and, while the

record is not specific, presumably was nineteen at the time of the killings. Supp. J.A. 232. 

MCHONE v. POLK 39
testified that McHone was not slurring his words "much" when she

brought him home that night and that he was coherent. Id. at 393.

When asked whether McHone was drunk in her opinion, she said, "I

believe he was. I believe he was. I believe he was sober just a little

bit. I mean, he wasn’t real drunk, in my opinion, I’ve seen people

drunker." Id. at 399. Yet, on cross-examination, Sawyers testified that

McHone was steadily getting drunker throughout the night and was

acting the most drunk while at Speaks’s house. Id. at 400-01.

During the jury’s deliberations, they twice asked the judge "to go

over the law of murder of Wesley Adams, Sr., and six qualifying

things that we need to prove for first degree murder." Id. at 474, 479.

In response, the judge re-read the instructions. The jury returned a

verdict finding McHone guilty of first-degree murder in the deaths of

both Mildred and Wesley, Sr. 

The State did not present any new evidence during the sentencing

phase. The defense presented expert testimony concerning McHone’s

history of substance abuse and diagnosis of adjustment disorder with

depressed mood. Dr. James Groce, the State’s psychiatrist, testified to

this diagnosis, but on cross-examination by the State testified that he

had concluded in evaluating McHone that his "intoxication does not

appear to be severe enough to make Mr. McHone unable to perform

specific intent or to meet the standard for not being responsible for

his behavior." Id. at 493. Dr. John Warren, McHone’s expert, testified

that "at the time of the crime [McHone] was intoxicated or impaired,

at least to the extent that people around him noticed that he smelled

of alcohol and he was acting intoxicated." Id. at 503. However, he

stated on cross-examination that he could not state how impaired

McHone was and that "[o]ne drink will impair a person." Id. at 525.

Bobby McHone also testified as to McHone’s childhood. He

related how under a joint custody agreement between him and Mildred, McHone was exposed to his alcohol use and the related problems it caused in raising McHone. Id. at 530-546. A former neighbor

of McHone testified that McHone helped her run errands and mow

the lawn. Id. at 526-28. Finally, a parent of one of McHone’s former

co-workers testified that McHone once helped her with her car. Id. at

528. 

40 MCHONE v. POLK
The jury found fourteen mitigating factors to exist regarding the

killing of Wesley, Sr., and eleven to exist regarding the killing of Mildred.12 However, for both murders, they also found that the aggravating circumstance that the murders were part of a course of conduct

in which McHone engaged and that the course of conduct included

the commission of other crimes of violence against others. Id. Additionally, they found another aggravating circumstance as to the murder of Wesley, Sr.—that the murder was committed while McHone

was engaging in an attempt to commit a homicide on a person other

than the deceased.13 Id. They then found the aggravating circumstances to outweigh the mitigating circumstances and recommended

that McHone be sentenced to death for both murders. Id.

II.

The court will review "de novo a district court’s decision on a petition for writ of habeas corpus based on a state court record." Spicer

v. Roxbury Corr. Inst., 194 F.3d 547, 555 (4th Cir. 1999). However,

because McHone filed his habeas petition after the effective date of

the Anti-Terrorism and Effective Death Penalty Act of 1996

("AEDPA"), our de novo review is limited by the standards set forth

by AEDPA. Under AEDPA, if a state court has resolved the merits

of a claim for post-conviction relief,14 a federal court may not issue

12The jury rejected N.C. Gen. Stat. § 15A-2000f(6) mitigating circumstance: "The capacity of the defendant to appreciate the criminality of his

conduct or conform his conduct to the requirements of the law was

impaired." J.A. 579, 583. 

13The attempted homicide that this aggravating factor is referring to is

that of Wesley, Jr. Supp. J.A. 132. While McHone was not charged with

the attempted murder of Wesley, Jr., during the charge conference in the

sentencing phase the judge found that he could have been so charged so

this was a proper aggravating factor. Id.

14The North Carolina Supreme Court did so in a one-line order without

explaining its reasoning, but such an order is still an adjudication "on the

merits" for AEDPA purposes. See Bacon v. Lee, 225 F.3d 470, 478 (4th

Cir. 2000) ("Where, as here, a state court summarily rejects a claim without articulating reasons, its order nevertheless constitutes an ‘adjudicat-

[ion] on the merits’ for purposes of § 2254(d)."). "But because we have

no indication of how the state court applied federal law to the facts, we

must necessarily perform [our] own review of the record." Id. (citations

omitted). 

MCHONE v. POLK 41
a writ of habeas corpus unless the state court’s holding was "contrary

to, or involved an unreasonable application of, clearly established

Federal Law, as determined by the Supreme Court of the United

States." 28 U.S.C. § 2254(d)(1). 

In this case, McHone contends that the state court unreasonably

applied clearly established federal law. A state court’s adjudication of

a claim constitutes an unreasonable application of clearly established

federal law "if the state court correctly identifies the governing legal

principle from [the Supreme Court’s] decisions, but unreasonably

applies it to the facts of the particular case." Id. Because the Supreme

Court has stated that an "unreasonable application of federal law is

different from an incorrect application of federal law," Williams v.

Taylor, 529 U.S. 262, 410 (2000), we may not issue a writ of habeas

corpus solely because we determine in our "independent judgment

that the state-court decision applied [a Supreme Court] case incorrectly." Prince v. Vincent, 538 U.S. 634, 641 (2003)(quoting Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002)(per curiam)). Thus, to

grant McHone’s habeas petition we must conclude that the state

court’s adjudication of his claims was not only incorrect, but that it

was objectively unreasonable. 

III.

McHone contends that the state court unreasonably applied Brady

and United States v. Bagley, 473 U.S. 667 (1985), to the facts of his

case. In Brady, the Supreme Court held that due process requires state

agents to disclose evidence favorable to the defendant which is material to guilt or punishment. 373 U.S. at 86. A Brady violation contains

three elements: 

(1) the evidence must be favorable to the accused; (2) it

must have been suppressed by the government, either willfully or inadvertently; and (3) the suppression must have

been material, i.e., it must have prejudiced the defense at

trial. 

Monroe v. Angelone, 323 F.3d 286, 299 (4th Cir. 2003) (citing Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). Both impeachment evidence and exculpatory evidence fall within the scope of Brady.

42 MCHONE v. POLK
Bagley, 474 U.S. at 682; Monroe, 323 F.3d at 299. Moreover, the

prosecution’s failure to disclose "evidence favorable to an accused

upon request violates due process where the evidence is material

either to guilt or to punishment, irrespective of the good faith or bad

faith of the prosecution." Kyles v. Whitley, 514 U.S. 419, 432 (1995).

A.

Because I believe the majority confuses the favorability and materiality prongs in their Brady analysis, I write separately.15 McHone

argues that the State failed to reveal favorable evidence from seven

witnesses related to whether he killed with the necessary specific

intent for first-degree murder. The majority finds that the withheld

evidence was not favorable to McHone. 

First, McHone points to the pretrial statements of Wesley, Jr. who

made statements to the police within hours of the crime indicating

that McHone was "obviously drunk" and had a strong odor of alcohol

on him but testified at trial that McHone was not impaired and did not

smell of alcohol. The majority reasons that these two statements are

consistent because in their view Wesley, Jr. maintained in both his

pretrial and trial statements that McHone was aware of what he was

doing throughout the commission of the murders and was not

impaired by alcohol. I cannot agree. Wesley, Jr.’s statements are

inconsistent because in Wesley, Jr.’s pretrial statements he told the

police that McHone was drunk and smelled strongly of alcohol but he

stated at trial that McHone did not smell of alcohol, was not impaired

in anyway by alcohol, and that the only indication that he had that

McHone had been drinking was that Wesley, Sr. told McHone to go

to bed and "sleep it off."16 J.A. 282, 290. 

15As the majority notes, we assume that the State did not turn over the

evidence in question. 

16The majority places much weight on the distinction between the

terms "drunk" and "impairment." Certainly, these terms can have different meanings in a variety of contexts as one may be "drunk" but not suffering from extreme "impairment." Yet it defies reason to believe, as the

majority apparently does, that Wesley, Jr.’s trial statements that McHone

was not impaired in any way by alcohol and did not smell of alcohol are

MCHONE v. POLK 43
The extent to which this inconsistent statement would be of

impeaching value in undermining Wesley, Jr.’s testimony is a question which goes to materiality under Brady but does not detract from

the statement’s impeaching nature in and of itself. Wesley, Jr.’s

undisclosed pretrial statement is not merely "neutral evidence."

Rather, it had the potential to alter the jury’s assessment of the credibility of Wesley, Jr., a significant prosecution witness. See United

States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998) (discussing the

nature of impeachment evidence under Brady). 

Second, Wendy made statements to the police that Randy Adams

told her when they arrived home that night that McHone was drunk;

she noted that McHone was always "real smooth" while sober but was

cussing and screaming that night, indicating he was drunk; and she

also described McHone and Wesley, Sr.’s fight and said that it

sounded like Wesley, Sr. was beating McHone and dragging him up

the stairs. J.A. 603-609. These pretrial statements, when considered

with Wendy’s trial statements, would have also been of some

impeaching value. Specifically, her trial testimony that McHone did

not stagger or stumble his speech, while not directly contradictory to

her pretrial statements that McHone was screaming and cussing,

could have been characterized in a different light by showing that

McHone was upset and speaking angrily. Further, her pretrial statements describing the fight between McHone and Wesley, Sr. as one

in which it sounded like Wesley, Sr. was dragging McHone up the

stairs and beating on him also would have been of impeachment value

given her trial testimony that it sounded like McHone and Wesley, Sr.

consistent with his pretrial statements that McHone was "obviously

drunk" and smelled strongly of alcohol. While Wesley, Jr. told the police

pretrial that McHone "appeared" to be aware of what he was doing, J.A.

619, this statement does equate to a statement that McHone was not

impaired in any way by alcohol, as Wesley, Jr. testified at trial. Wesley,

Jr.’s characterization of McHone in his pretrial statements as "obviously

drunk" and smelling strongly of alcohol underscores this inconsistency.

Reading these pretrial statements together, one could infer that Wesley,

Jr. thought McHone was drunk but not so impaired that he did not realize

what he was doing. However, this was not what Wesley, Jr. testified to

at trial, he said that McHone was not impaired in any way by alcohol,

which is inconsistent with his pretrial statements. 

44 MCHONE v. POLK
were having a "scuffle." Finally, her pretrial statement that Randy told

her that McHone was drunk would have been of some impeaching

value at least to the extent that she would have to explain her statement that she did not "pick up" on Wesley, Sr., Mildred, or Randy

thinking that McHone was drunk.17

Third, Randy, who was not called as a witness, made statements to

the police that Mildred described McHone’s condition that night as

drugged or drunken and as the "worse I’ve ever seen him." Id. at 622,

660. This latter statement was noted on the state’s witness list beside

Randy’s name. Id. Randy also told the police that McHone called on

the night of the killings and asked if he could bring a girl to the house

and that when Randy said no, McHone threatened to kill him. Id. at

622. Randy’s statements concerning what Mildred said are favorable

to McHone. That other testimony was presented concerning

McHone’s intoxication does not detract from the exculpatory value of

McHone’s mother, who was one of the murder victims, believing that

McHone was intoxicated. Whether the evidence was simply cumulative, as the majority relies on, when considered with the other trial

testimony, may mean it was not "material" under Brady, but it does

not mean that it is not "favorable." Randy’s statement that McHone

threatened to kill him does not undermine the favorability of his overall statement to the police, especially in light of the fact that other testimony was presented that McHone threatened to kill himself and

others that night. Such testimony could have even been favorable to

McHone as it contradicted the State’s argument that McHone was targeting Mildred and Wesley, Sr. that night. 

Finally, statements by Deputy Sheriff Inman and Hall, the first

medical responder, were suppressed.18 Deputy Sheriff Inman told the

17The majority notes that Randy’s statement to Wendy was inadmissible hearsay and does not bear in any way on Wendy’s later observation

of McHone. I disagree. The majority fails to consider whether a hearsay

exception could have provided for the admission of this evidence. Similarly, the assertion that Randy believing McHone was drunk does not

relate to Wendy’s personal observations of him, while true, does not

detract from the fact that Randy’s statements could have been of

impeaching value to Wendy’s trial testimony concerning what Randy

told her. 

18Statements by Sawyers and Tuttle, McHone’s Narcotics Anonymous/

Alcoholic Anonymous ("NA/AA") sponsor, were also suppressed. SawMCHONE v. POLK 45
SBI on the morning of the murders that McHone had a strong odor

of alcohol on him and that he was not steady on his feet. Id. at 602.

He testified at trial that he observed McHone walking, talking, and

acting in a normal fashion, id. at 179-80, and thus his statement that

McHone was not steady on his feet would have been of some

impeaching value. Hall’s undisclosed statement to prosecutors that

McHone was screaming and kicking the glass in the patrol car after

his arrest, id. at 675, was also favorable because it describes

McHone’s state of mind shortly after the crime as agitated and upset.

B.

The standard for determining whether the favorable evidence withheld is material is whether "there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley, 473 U.S. at 682. "The question is not whether the defendant would more likely than not have

received a different verdict with the evidence, but whether in its

absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles, 514 U.S. at 434. A defendant can

rely on the cumulative effect of all suppressed evidence in determining whether a Brady violation has occurred.19 Kyles, 514 U.S. at 436-

yers made statements to police that McHone did not talk negatively

about his parents the night of the killings. However, because no testimony was presented that McHone had done so that night, only that he

had in the past, I would not find this to be favorable. 

Tuttle, who McHone called thirty minutes prior to the shootings, told

the police that McHone sounded upset, that he was crying and not making much sense. J.A. 610-12. He told the police that McHone said "he

thought somebody was gonna die that night." Id. Tuttle said that McHone

asked if Tuttle could come to see him but that it was NA/AA policy that

at least two people went when someone called in such a situation. Id.

Tuttle was on the state’s witness list, but was never called and McHone’s

trial counsel never interviewed him. I agree with the majority that

McHone cannot benefit from Tuttle’s statement because he knew he had

spoken to Tuttle that night. See Allen v. Lee, 366 F.3d 319 (4th Cir.

2004) (noting that defendant cannot benefit from Brady if exculpatory

material lies where reasonable defendant would have looked). 

19The State contends that although materiality is assessed collectively

in the first instance in a Brady analysis, because the inconsistencies about

46 MCHONE v. POLK
37; Monroe, 323 F.3d at 302. Because McHone alleges that undisclosed Brady material affected both the guilt and the sentencing

phases, I look at the cumulative effect of the evidence on each phase

separately to determine if there is a reasonable probability that the

result of the proceeding would be different as constrained by the deference standards of AEDPA. 

In considering the effect of the Brady material on the guilt phase,

the most important question is the effect it would have had on the

jury’s finding of first-degree murder, which implicitly carried with it

a rejection of McHone’s defense of voluntary intoxication. Of the

seven witnesses whose statements were not produced, Wesley, Jr.’s

statement is arguably the most valuable to McHone because it contains a direct contradiction of his trial testimony and because the State

relied heavily on Wesley, Jr.’s testimony. Wendy, the only other adult

present at the house during the murder, was also a key witness at trial.

Her statements to the police indicate that she had some personal

knowledge that McHone was impaired. While not a direct contradiction of her trial testimony, the statement would have had some

impeaching value, at least to the extent that she would have to explain

her statement that she did not "pick up" on Mildred or Randy thinking

that McHone was drunk. Wendy also downplayed the fight between

Wesley, Sr. and McHone, failing to mention that it sounded like Wesley, Sr. was beating on McHone. If McHone’s counsel had Randy’s

statement and he had testified at trial, the jury could have heard,

through a hearsay exception, that Mildred thought McHone’s condition was the worst she had ever seen him. 

It is more difficult to determine the value of the statements of Deputy Sheriff Inman and Hall. Deputy Sheriff Inman’s testimony of

McHone as being able to walk, talk and act in a normal fashion would

which McHone complains were all presented to the North Carolina

Supreme Court, this court should accord AEDPA deference on an itemby-item basis and thus consider each piece of evidence separately.

Appellee’s Br. at 11. This contention is clearly incorrect. In Monroe, this

court reiterated that under step three of the Brady analysis, determining

whether the evidence is material, the evidence is viewed cumulatively.

Id. at 298. 

MCHONE v. POLK 47
be somewhat impeached by his earlier statement that McHone was

not steady on his feet. Hall’s statement describing McHone’s erratic

behavior in the police car would have added more support to

McHone’s voluntary intoxication defense but it would probably not

have outweighed the impact of Hall’s trial testimony—that McHone

asked for a cigarette while Hall was with Wesley, Sr.’s body. 

Despite the exculpatory and impeaching value of these statements,

I do not think that the state court was unreasonable in concluding that

in their absence, McHone still received a fair trial. While the cumulative effect of the statements would have been helpful in his voluntary

intoxication defense, they were not such that the jury’s verdict of

first-degree murder is unworthy of confidence. Rather, the statements

would have only demonstrated that the witnesses were somewhat

downplaying the extent of McHone’s impairment—a fact hardily surprising given that all of the witnesses presented testimony favorable

to the State (with the possible exception of Sawyers). 

In examining the sentencing phase, the withheld statements would

have provided more evidence of McHone’s intoxication such that the

jury may have found N.C. Gen. Stat. § 15A-2000f(6), concerning

McHone’s ability to appreciate his actions, in McHone’s favor. But

whether the jury, based on these undisclosed statements alone, would

have found this in McHone’s favor is unclear. In contrast to the extensive failures of McHone’s counsel, discussed below, which go not

only to McHone’s defense of voluntary intoxication but also to his

motive and mitigating evidence from his childhood, these undisclosed

statements were not of a powerful enough nature to be considered

"material" under Brady. In this regard, AEDPA’s standard that the

state court’s conclusion must be "objectively unreasonable" must control. While the result of the sentencing proceeding could have been

different when considering the cumulative effect of these Brady materials, the state court was not objectively unreasonable in finding that

the jury’s decision was worthy of confidence.

IV.

McHone contends that the state court unreasonably applied Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme

Court set forth the test for an ineffective assistance of counsel claim.

48 MCHONE v. POLK
First, a defendant must show that defense counsel’s performance fell

below an objective standard of reasonableness, the proper measure of

which is prevailing professional norms. Id. at 687-88. Second, a

defendant must show that he or she was prejudiced by defense counsel’s objectively unreasonable performance. Id. at 687.

A.

In considering McHone’s Strickland claims, it is clear that

McHone’s counsel did fall below prevailing professional norms in

several areas and that the state court was unreasonable in concluding

otherwise.20 First, despite proffering a defense of voluntary intoxication and possessing undisputed evidence of the amount and types of

alcohol that McHone consumed, counsel failed to seek expert testimony on McHone’s blood alcohol level. Though the State contends

that such a failure is the fault of the expert witness and not counsel,

this is not a case in which Petitioner seeks to retry his case based on

new expert testimony or challenge the diagnosis of the expert witness,

this is a case in which counsel failed to give the expert all the necessary information.21 As the majority points out, this court has held that

20While McHone is arguing that counsels’ performance was objectively unreasonable in both the guilt and sentencing phases, because the

errors affected both phases to varying degrees, I analyze them together

here. 

21Dr. Warren’s post-conviction affidavit states: 

I received no specific information regarding the amount and

types of alcohol ingested by Mr. McHone during the night of the

crime, other than information obtained from my interview of Mr.

McHone. I was aware only of conflicting reports regarding

whether or not Mr. McHone appeared "drunk" on the night of the

crimes. 

. . . . 

Had I been provided this information regarding Mr. McHone’s

alcohol intake on the night of the crime prior to my testifying at

trial, my testimony would have been substantially different. I

would have testified at the guilt phase, among other things, that

Mr. McHone’s capacity to calmly function and plan was severely

impaired because he was intoxicated. I would have also testified

MCHONE v. POLK 49
no right to effective assistance of expert witnesses exists distinct from

the right to effective assistance of counsel, Poyner v. Murray, 964

F.2d 1404, 1418 (4th Cir. 1992), however, in this case, McHone’s

counsel themselves erred by not utilizing their existing experts properly. But see Thomas v. Taylor, 170 F.3d 466, 472 (4th Cir.

1999)(finding nothing in record to indicate that trial counsel failed

adequately to prepare expert, rather expert himself was unprepared);

Poyner, 964 F.2d at 1419 (noting that "mere fact that counsel did not

shop around for a psychiatrist willing to testify" to more elaborate

psychological disorders than did retained expert not ineffective assistance). Moreover, when counsels’ actions are examined "from counsel’s perspective at the time," Strickland, 466 U.S. at 689, their failure

becomes more apparent. McHone’s only viable defense was that he

was so intoxicated that he could not form the necessary specific

that Mr. McHone’s mind and reason were so overborn as to render him utterly incapable of forming the specific intent to kill at

the time of the commission of the crime. I would have testified

that Mr. McHone was unable to reflect about his actions or think

about the consequences of his actions at the time of the commission of the crime. I would have testified at the sentencing phase,

among other things, that Mr. McHone’s capacity to appreciate

the criminality of his conduct and to conform his conduct to the

requirements of the law was substantially impaired. 

J.A. 677. 

The majority relies on the R&R’s finding that Dr. Warren could have

learned of the amounts of alcohol that McHone consumed from Dr.

Groce’s report. Dr. Groce’s report states that McHone "report[ed] voluntary intoxication [on the day of killings] with one or two joints of marijuana, a fifth of Jack Daniels liquor, five hits of LSD and approximately

a case of beer." J.A. 592. This information, given to Dr. Groce by

McHone, does not belie Dr. Warren’s assertions in his post-conviction

affidavit because it is entirely consistent with his affidavit statement that

he received no specific information on the amount of alcohol ingested by

McHone other than the information he obtained from McHone himself.

The only information that either Dr. Groce or Dr. Warren had on the

amount of alcohol that McHone consumed was from McHone himself

and conflicted with statements from other witnesses. Yet, McHone’s

counsel never sought out this information from the witnesses in advance

of trial or presented any of it to Dr. Warren for a blood alcohol analysis.

50 MCHONE v. POLK
intent; thus expert testimony forming a scientific basis for this defense

would have greatly supported his defense. 

Second, McHone’s counsel failed to interview or present the testimony of Tuttle, the jailors who observed McHone that night,

McHone’s substance abuse counselors, or McHone’s probation officer. The failure to interview Tuttle, the individual with whom he

spoke thirty minutes prior to the shootings, is clearly objectively

unreasonable. Tuttle was one of the last people to speak with McHone

before the shootings and could have offered key testimony on

McHone’s state of mind. 

Likewise, the failure to interview the jailors is unreasonable given

that they were in one of the best positions to observe McHone shortly

after his arrest. The jailors’ affidavits reveal, in direct contradiction

to the testimony of the State’s law enforcement witnesses, that

McHone appeared to have ingested a significant amount of alcohol

and/or drugs and was "messed up."22 J.A. 681, 689. The failure to

interview his substance abuse counselors or probation officer is also

objectively unreasonable in light of the fact that counsel presented

22The majority contends that my reliance on the jailors’ statements in

the context of Strickland is "analytically indefensible," ante at 27, from

my conclusion that statements of other witnesses are not material under

Brady. The majority fails, as it does repeatedly throughout its analysis,

to recognize the differing standards for relief under these two claims.

Under Brady, we take the cumulative effect of the undisclosed statements in determining relief. My determination was that the undisclosed

statements were not material because while the cumulative effect of the

statements could have been helpful in establishing McHone’s defense of

voluntary intoxication and in demonstrating an additional mitigating factor in McHone’s favor, they were not such that McHone was denied a

fair trial in their absence. My reliance on the jailors’ statements in the

context of Strickland, as well as the statements of other witnesses that

McHone’s counsel failed to interview, is but one piece of the Strickland

analysis. As I discuss, infra at 60, under Strickland, we must consider the

totality of the mitigating evidence. In this case, that consists of not only

counsel’s failure to interview key witnesses, but also their failure to seek

expert testimony on McHone’s blood alcohol content, their failure to

object to the prosecutor’s closing argument, and their failure to investigate McHone’s childhood adequately. 

MCHONE v. POLK 51
arguments to the jury about McHone’s substance abuse problems and

family relationship and these witnesses should have at least been

interviewed. His substance abuse counselor’s affidavit stated that in

the counselor’s opinion, McHone’s actions that night were very out

of character and would not have been committed unless McHone was

severely intoxicated. Id. at 679-80. His probation officer’s affidavit

noted that McHone had been complying with the terms of his probation and that Mildred and Wesley, Sr. had voiced very few complaints. Id. at 571.

Third, McHone’s counsel failed to object to the State’s improper

closing argument that McHone bore the burden of proof on voluntary

intoxication and that his burden was higher than that required by law.

Specifically, the prosecutor argued: 

. . . One of the first things I want to talk to you about is

the defense of intoxication . . . [i]f we are going to apply that

defense to the facts of this case then we really need to, ought

to know what it’s about. . . . 

. . . Surely, a man can’t go out, whether he be that side

of the one-eyed Jack or this side of the one-eyed Jack, and

drink some alcohol or take some drugs and then kill somebody and walk away with it. Surely, that can’t be, can it?

Well, you’re right. That can’t be. It’s not just me saying

that. That’s what it says right here in State vs. Bunn, North

Carolina Supreme Court, in the spring term of 1973. Said,

"The defense to the charge of murder is that he was so drunk

that he was utterly incapable of forming a deliberate and

premeditated purpose to kill." That’s what he said. This is

what the Court said about that. . . . "For it to constitute a

defense—" And that’s just a defense to the first degree murder charge this is what you must show. And the burden is

on the defendant to show this, . . . It’s his burden to show

this, not the State of North Carolina. But his. This is what

he has to show. "For it to constitute a defense it must appear

that the defendant was not able by reason of the drunkenness

to think out beforehand what he intended to do." 

J.A. 442-443. 

52 MCHONE v. POLK
He continued: 

. . . [I]t says in State vs. Medlin in Supreme Court of

North Carolina. "Evidence must show at the time of the killing the defendant’s mind and reason were so completely

intoxicated and overthrown as to render him—" Now this

important word, ladies and gentleman of the jury. "— as to

render him utterly incapable of forming a deliberate and premeditated purpose to kill." Utterly, it says. Not just drunk.

Not just impaired. We’re not talking about drunk driving

and not being safe to drive an automobile. We’re talking

about utterly incapable of forming a deliberate and premeditated purpose to kill. "For it to constitute—" Says it right

here, ladies and gentleman of the jury. It’s not just me. This

is what the North Carolina Supreme Courts have said about

that defense. 

You see, ladies and gentleman, they recognize the abuse

you can have with this defense. 

Id. at 447. 

Under North Carolina law, voluntary intoxication can be a defense

to first-degree murder by negating the elements of premeditation and

deliberation. State v. Mash, 372 S.E.2d 532, 536-37 (1988). In Mash,

the North Carolina Supreme Court held that the trial court’s jury

instruction was erroneous because to find for the defendant on intoxication, "the jury does not have to conclude that his intoxication rendered Defendant ‘utterly incapable’ of forming the necessary intent;

it need only conclude that because of his intoxication either Defendant did not form the requisite intent or there is at least a reasonable

doubt about it."23 Id. at 537. The Mash court also found that the jury

instruction at issue could lead a rational jury to find that the defendant

bore a heightened burden of persuasion, which "would impermissibly

and unconstitutionally shift the burden of persuasion on essential ele23The "utterly incapable" language refers to the defendant’s burden of

production sufficient to convince the judge that he is entitled to a voluntary intoxication jury instruction and is thus inapplicable to the jury’s

consideration of the intoxication evidence. Mash, 372 S.E.2d at 537. 

MCHONE v. POLK 53
ments of the crime of first degree murder from the state to the defendant."24 Id. Here, the prosecutor made the same argument rejected in

Mash, which both heightened and shifted the burden of proof on voluntary intoxication to McHone. By failing to object, McHone’s counsel were objectively unreasonable. 

Finally, McHone’s counsel, while presenting some mitigating evidence that revealed a troubled childhood, failed to go further and discover the extent of abuse. Counsel unreasonably limited its

investigation to conversations with Bobby McHone and retaining a

psychologist to evaluate McHone. Indeed, counsel only put forth

three character witnesses at sentencing, his father, a former neighbor,

and another woman who hardly knew McHone. As McHone argues,

a thorough investigation of McHone’s background would have

revealed the following:

• McHone has a history of chronic violence from birth through the

divorce of his parents.

• McHone’s childhood was marked by deprivation.

• McHone’s parents agreed to an unconventional custody arrangement where he spent one year with Bobby and one year with Mildred and that while with Bobby he resided in a series of rooming

houses and motels, sometimes sleeping in bars while his father

drank.

• Due to the effects of his childhood, McHone self-medicated with

drugs and alcohol from the age of 12.

24The Mash court noted that "[a] defendant who wishes to raise an

issue for the jury as to whether he was so intoxicated by the voluntary

consumption of alcohol that he did not form a deliberate and premeditated intent to kill has the burden of producing evidence, or relying on

evidence produced by the state, of his intoxication." 372 S.E.2d at 536.

(emphasis added). Thus, the burden of persuasion as to the premeditation

and deliberation elements of first-degree murder remains with the prosecution. 

54 MCHONE v. POLK
McHone’s counsel were clearly unaware of the extent of his abuse

during his childhood because they submitted as a mitigating factor to

the jury the statement that McHone "enjoyed a normal childhood until

the time his parents separated, and after that, he began abusing alcohol and drugs." This statement could have misled the jury into believing that his parents’ divorce triggered his history of substance abuse,

when in reality he experienced abuse and deprivation from an early

age. This failure to investigate further, given what counsel already

knew, was unreasonable. See Wiggins, 539 U.S. at 527 ("In assessing

the reasonableness of an attorney’s investigation, however, a court

must consider not only the quantum of evidence already known to

counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.").

B.

Undoubtedly, the prejudice prong is more difficult for McHone to

meet. Because McHone claims that counsels’ errors prejudiced both

his guilt and sentencing phases, I analyze them separately.25

1.

To demonstrate prejudice at the guilt phase, a defendant must show

that there is a reasonable probability, absent the errors, that the factfinder would have a reasonable doubt respecting guilt. Strickland, 466

U.S. at 695. Thus, McHone must show that the factfinder would have

a reasonable doubt respecting his culpability for the first-degree murder charge, which he could do most readily through his defense of

voluntary intoxication. 

The failures of counsel to investigate and present evidence of

McHone’s specific intent, including the failure to obtain expert testimony on McHone’s blood alcohol level and to interview Tuttle and

the jailors, were substantial. Because of these errors, his counsel were

unable to rebut the State’s picture that McHone was unimpaired and

25The majority neither analyzes the prejudicial effect on the guilt and

sentencing phases separately nor recognizes the differing standards for

showing prejudice in the guilt and sentencing phases of a capital case. 

MCHONE v. POLK 55
only slightly intoxicated. Specifically, Tuttle and the jailors26 could

have given the jury a first-hand account of McHone’s behavior

shortly before and after the shootings testifying as to McHone’s

impairment and emotional state.27 Instead, the jury was left with the

testimony of Wesley, Jr. and Wendy, arguably strong and sympathetic

witnesses for the State, and law enforcement officers (Deputy Sheriff

Inman and Deputy Miller), who described McHone generally as only

slightly impaired, in direct contravention of the jailors affidavits, J.A.

681, 689. More importantly, if counsel had presented testimony of his

blood alcohol level, estimated in the post-conviction affidavit of Dr.

Brian McMillen, Associate Professor of Pharmacology in the School

of Medicine at East Carolina University, at the severely intoxicating

blood alcohol concentration of at least 0.286 g/dl at 1:00 a.m. on the

night of the shootings, id. at 566, such testimony could have created

a reasonable doubt about McHone’s ability to premeditate and deliberate the murders. Such evidence, unlike the varied descriptions of

McHone’s state of intoxication that night, would have given the jury

analytical, objective evidence of McHone’s impairment. 

Counsel also failed by not investigating evidence that could help

rebut the State’s argument concerning McHone’s motive. The State

argued that McHone had a "plan" to be free of his parents. The most

effective rebuttal of that argument would have been evidence of

McHone’s relationship with Wesley, Sr. and Mildred in the months

preceding the shootings. McHone’s probation officer offered a post26The majority suggests that the jailors testimony would have been

merely cumulative. I disagree. Given that their testimony would have

directly contradicted the testimony of the State’s other law enforcement

officers, that they observed McHone shortly after the crime when he was

brought into the jail, and that their observations indicated that McHone

was extremely intoxicated and/or high on drugs, I fail to see how such

testimony is "cumulative" to the testimony of the other witnesses who

said that McHone had been "drinking," but he was not "drunk." 

27The magistrate judge placed much emphasis on the fact that Tuttle’s

testimony could have hurt McHone’s defense because it would have

revealed that McHone was threatening that "someone would die" that

night. However, other testimony was presented to that effect, and Tuttle’s description of McHone as upset, crying and asking for help would

clearly have been more valuable than prejudicial to his defense. 

56 MCHONE v. POLK
conviction affidavit stating that McHone was following the rules of

his probation and that Mildred and Wesley, Sr. did not complain

about his behavior. J.A. 571. McHone’s substance abuse counselor

also offered a post-conviction affidavit which, while conclusory,

would have helped rebut the State’s theory that McHone had a "plan"

with evidence that these actions were very out of character for

McHone and that he never expressed animosity towards his family.28

Id. at 679. Tuttle’s testimony would have shown that McHone was

not threatening his parents that night and was seeking help. Such testimony of McHone’s more recent actions would have acted in marked

contrast to the State’s evidence that Mildred had expressed concerns

about McHone threatening her when he was twelve and thirteen years

old. 

Finally, counsel substantially failed by not objecting to the prosecutor’s improper closing argument, which may have confused the jury

as to McHone’s proper burden on his voluntary intoxication defense.

In determining the prejudicial effect of this argument, Fourth Circuit

case law on when an improper closing argument violates due process

is instructive. The court has noted that such a "determination requires

the court to look to ‘the nature of the comments, the nature and quantum of the evidence before the jury, the arguments of opposing counsel, the judge’s charge, and whether the errors were isolated or

repeated.’" Boyd v. French, 147 F.3d 319, 329 (4th Cir. 1998) (quoting Bennett v. Angelone, 92 F.3d 1336, 1345 (4th Cir. 1996)). 

Looking first to the nature of the comments, the prosecutor incorrectly argued to the jury that North Carolina law mandated that

McHone had to be "utterly incapable" of forming a deliberate and premeditated purpose to kill to succeed on the defense of voluntary

intoxication. North Carolina law holds that this is the proper standard

that the judge must consider in deciding whether to submit a voluntary intoxication instruction to the jury. In contrast, the jury must only

28Again, I must dispute the majority’s conclusion that testimony from

McHone’s substance abuse counselor would have been unhelpful

because the jury already knew of McHone’s substance abuse problems.

The value of this testimony would have been to help rebut the State’s

theory that McHone’s actions were part of a "plan" to be free of his parents by showing that such actions were out of character. 

MCHONE v. POLK 57
have a reasonable doubt that defendant could form the necessary specific intent because of his intoxication. The prosecutor also improperly shifted and heightened the burden of proof onto McHone by

stating that McHone bore the burden to show this defense. 

The prosecutor’s reference to the incorrect standard was not isolated. The trial transcript of the prosecutor’s references to North Carolina case law on voluntary intoxication spans several pages and

consistently misstates the law. As noted, McHone’s counsel offered

no "opposing argument" to these incorrect references because they did

not object and the judge did not intervene. While the judge did give

a proper jury instruction on this defense, he did not instruct the jury

as to McHone’s burden of proof on voluntary intoxication. The

instruction stated: 

Now, members of the jury, as to the defense of voluntary

intoxication, I instruct you that if you find there is evidence

which tends to show that the defendant was intoxicated from

alcohol or other impairing substances at the time of the acts

alleged in this case then you should consider the following

instructions: Generally voluntary intoxication from such a

substance is not legal excuse for crime. However, if you find

that the defendant was intoxicated from alcohol or other

impairing substance you should consider whether this condition affected his ability to formulate the specific intent

which is required for a conviction of first degree murder;

. . . . In order for you to find the defendant guilty of first

degree murder by premeditation and deliberation you must

find beyond a reasonable doubt that he killed with malice,

and in the execution of actual specific intent to kill formed

after premeditation and deliberation. If as a result of intoxication from alcohol or other impairing substance the defendant did not have a specific intent to kill the deceased in

either of the three cases, . . . he would not be guilty of such

offense. 

Supp. J.A. 66-67. Given the prosecutor’s improper closing argument,

the jury could have believed that they could not consider evidence of

intoxication until McHone showed he was "utterly incapable" of

forming premeditation and deliberation. At the least, the jury could

58 MCHONE v. POLK
have been confused on the correct standard given the prosecutor’s

repeated references to case law and the jury instruction that did not

specifically address McHone’s burden. 

Viewed as a whole, counsels’ errors undermine confidence in the

outcome of the guilt phase because a reasonable probability exists that

but for these errors the jury could have concluded that there was a

reasonable doubt about McHone’s mens rea for first-degree murder

and thus have found him guilty of the lesser-included charge of

second-degree murder. Particularly significant in this regard is the

weak case that the State had on first-degree murder. The State had no

eyewitnesses to the murders and little evidence of motive. Indeed,

McHone’s actions in threatening to kill others that night undermines

the State’s argument that McHone had a plan to kill Mildred and

Wesley, Sr. Moreover, McHone shot Wesley Sr. while they were

engaged in a struggle and when Wesley Sr. lunged for the gun. Contrary to the majority’s assertion that McHone is "fanciful" in believing

the case to be weak, these facts when considered in combination with

counsels’ errors, particularly in presenting a defense of voluntary

intoxication, demonstrate that the evidence that McHone "premeditated and deliberated" these murders was indeed marginal.29 In light

of the gravity of these errors and their prejudicial effect, I would find

that the state court’s application of Strickland was unreasonable. 

2.

In the sentencing phase of a capital trial, a defendant establishes

prejudice by showing "there is a reasonable probability that, absent

29The majority’s assertion that the State proffered evidence that

McHone reloaded the shotgun during the course of killings does not have

support in the record before us. The prosecutor, in his closing argument,

stated, "Take into consideration this gun was unloaded at one time that

night and this defendant reloaded the gun, carried this into the house and

reloaded it, and fired it three times." J.A. 461. The gun the prosecutor

was referring to was the handgun that McHone shot Mildred with, not

the shotgun that he used in his struggle with Wesley Jr. Testimony at trial

did show that McHone had reloaded the handgun when he threatened to

kill himself while in the car with Sawyers, id. at 394, but not that he

reloaded any gun during the course of the killings. 

MCHONE v. POLK 59
[his trial counsel’s objectively unreasonable performance], the sentencer . . . would have concluded that the balance of aggravating and

mitigating circumstances did not warrant death." Id. at 695. To make

such a showing, a defendant need not establish a reasonable probability that the entire jury would have voted against the imposition of a

death sentence, but rather, that "there is a reasonable probability that

at least one juror would have struck a different balance." Wiggins v.

Smith, 539 U.S. 510, 537 (2003)(emphasis added); Glover v. Miro,

262 F.3d 268, 275 (4th Cir. 2001)("‘A reasonable probability is a

probability sufficient to undermine confidence in the outcome.’"

(quoting Strickland, 466 U.S. at 694)). In determining whether a

defendant has carried his burden of showing there is a reasonable

probability that at least one juror would have declined to impose a

death sentence if presented with certain mitigating evidence, "we

reweigh the evidence in aggravation against the totality of available

mitigating evidence." Wiggins, 539 U.S. at 534. In conducting this

prejudice analysis under Strickland, the Supreme Court has emphasized that courts must consider the totality of the available mitigating

evidence, both evidence presented at trial and the evidence presented

in post-conviction proceedings, to determine its effect. See Williams

(noting that state court’s prejudice determination was "unreasonable

insofar as it failed to evaluate the totality of the available mitigation

evidence"); Wiggins, 539 U.S. at 536 (quoting Williams). Neither the

majority opinion nor the magistrate judge or the State, in its briefs

before this court, conducted the proper totality analysis. 

In the context of the sentencing phase, counsels’ errors are equally,

if not more, prejudicial. If the jury rejected McHone’s voluntary

intoxication defense in the guilt phase, there is a reasonable possibility that at least one juror could have still believed that McHone did

not deserve a death sentence because his intoxication prevented him

from understanding the criminality of his actions. Here, the fact that

the jury rejected N.C. Gen. Stat. § 15A-2000f(6), the capacity of

McHone to appreciate the criminality of his conduct and conform it

to the law was impaired, is most telling. Evidence of McHone’s blood

alcohol level and the testimony of Tuttle and McHone’s jailors would

have been instrumental in arguing that the jury should have found this

mitigating factor in McHone’s favor.30 Specifically, Dr. Warren

30The majority finds that McHone was not prejudiced by counsels’

error, if any, in failing to garner expert testimony on McHone’s blood

60 MCHONE v. POLK
admitted during his sentencing phase testimony on cross-examination

that he could not make a conclusion on how much McHone was

impaired. The State specifically attacked this statement during its

closing arguments in the sentencing phase. As Dr. Warren’s affidavit

reveals, his testimony would have been much different had he had the

information necessary to calculate McHone’s blood alcohol level.

More importantly, the State’s expert, Dr. Groce, admits in a postconviction affidavit that he no longer has the opinion that McHone

could form specific intent.31

Counsels’ failures to investigate adequately mitigating evidence

were also damaging. The charge conference during the sentencing

phase is especially significant. In the course of debating whether the

alcohol level because the jury unanimously rejected Dr. Warren’s sentencing testimony that McHone was entitled to mitigating factor, N.C.

Gen. Stat. § 15A-2000f(6), concerning the capacity of McHone to appreciate the criminality of his conduct or conform it to law. However, this

conclusion begs the question. The question is whether the jury would

have found this factor in McHone’s favor with the assistance of expert

testimony on his blood alcohol amount. The fact that they did not (and

did not have such testimony) is thus instructive in determining the prejudicial effect of counsels’ errors. 

31Dr. Groce’s post-conviction affidavit states: 

At Mr. McHone’s sentencing trial, I was called to testify as a

witness for the defendant as to mitigating circumstances regarding Mr. McHone’s drug and alcohol use, as well as other mitigating factors regarding his psychiatric profile. I testified on crossexamination that Mr. McHone’s polysubstance abuse disorder

affected him at the time of the crime, but that his intoxication

was not severe enough to make Mr. McHone unable to form specific intent or to meet the standard for not being responsible for

his behavior. . . . Since the trial, I have been shown materials by

counsel for the defendant which were attached as exhibits to the

defendant’s post-conviction motions which I had not seen at the

time of the trial. After considering these materials, I no longer

have the opinion that Mr. McHone could form the specific intent

to kill at the time of the crime. Consequently, I retract that part

of my testimony at Mr. McHone’s trial. 

J.A. 687-88. 

MCHONE v. POLK 61
mitigating factor that McHone "enjoyed a normal childhood until the

time his parents separated, and after that, he began abusing alcohol

and drugs," J.A. 580, 584, McHone’s counsel argued that Bobby

McHone’s testimony was the basis for submitting this mitigating factor, Supp. J.A. 116-17. The colloquy is instructive because the prosecutor stated in response that there was only evidence of "some hard

times" in McHone’s childhood, and then the judge stated that "there’s

some evidence that he saw [Bobby] drinking." Id. at 117 (emphasis

added). McHone’s counsel never interrupted this colloquy or corrected the prosecutor and the judge. Clearly, counsel failed to investigate McHone’s childhood adequately because if they had they would

have uncovered that Mildred and Bobby’s marriage was characterized

by physical and mental abuse; that Bobby chronically abused drugs,

alcohol, and gambled frequently; and that McHone was exposed to all

of this both during the marriage and after his parents’ divorce. Rather

than the divorce being the event that triggered McHone’s troubles,32

an adequate investigation would have revealed that McHone’s childhood was marked by deprivation. While hiring a mitigation investigator would have helped in this endeavor, it was not necessary. Counsel

could have instead simply interviewed McHone’s family members,

neighbors, or friends. However, they failed to do even this, instead

only presenting four total witnesses during sentencing, two of whom

barely knew McHone. As the Wiggins Court described, "the mitigating evidence counsel failed to discover and present in this case is

powerful." 529 U.S. at 534. 

Such mitigating evidence of McHone’s childhood in conjunction

with evidence from McHone’s probation officer and substance abuse

counselors, would have done much to explain how McHone came to

shoot his parents. In this respect, McHone’s counsel failed utterly. In

the prosecutors’ closing statements during the sentencing phase, they

portrayed McHone as a "bad seed," as a kid that despite a somewhat

troubling childhood had always rebelled and mistreated his mother

and step-father. See Supp. J.A. 155-208. They characterized him as

a person that had never accepted the consequences for anything that

32The prosecutor highlighted this fact in his closing argument, noting

that a lot of parents get divorced but this does not mean that one goes

"out and kill[s] one of their real parents and their stepfather." Supp. J.A.

165. 

62 MCHONE v. POLK
he had done and was now trying to use drinking as his excuse. Id.

They argued that McHone now should face the consequences of killing Mildred and Wesley, Sr.—for killing them just because he wanted

to get out from under their "rules." Id.

All of these arguments were proper but McHone’s counsel had little to rebut them. They could not rebut the assertion that McHone

only had a somewhat troubling childhood because they only had the

testimony of Bobby, who gave some insight into McHone’s childhood

but could hardly paint the full picture as he was a main perpetrator

of the abuse McHone experienced. They could not rebut the assertion

that McHone was using alcohol as a excuse, because without effective

expert testimony they only had the testimony of McMillian, Bryant,

and Sawyers, none especially believable witnesses, to support his

defense of impairment. Lastly, they could not rebut the assertion that

McHone had a "plan" to get out from under his parents, the State’s

explanation for motive, because they had absolutely no evidence

about McHone’s relationship with Mildred and Wesley, Sr. or his

willingness to follow the conditions of his parole. These failures were

not strategic and they were not a result of failing to investigate "every

conceivable" line of mitigating evidence. See Wiggins, 539 U.S. at

533; Strickland, 466 U.S. at 690-91. Rather, they were plain and pervasive. 

Viewed as a totality, these errors were prejudicial. If McHone’s

counsel had been able to make these arguments, arguments essential

to rebut the State’s evidence, there is a reasonable probability that at

least one juror after weighing the evidence in mitigation and evidence

in aggravation, would have decided that McHone did not deserve

death. The state court’s conclusion otherwise, given the gravity of

these errors and their prejudicial effect, was objectively unreasonable.

V.

For the foregoing reasons, I concur with the majority’s decision to

deny relief as to McHone’s Brady claim but dissent from their decision on his Strickland claims. Counsels’ plain and pervasive errors in

this case prejudiced both McHone’s guilt and sentencing phases and

the state court was objectively unreasonable in denying relief on

McHone’s Strickland claim.

MCHONE v. POLK 63