PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LEM DAVID TUGGLE,

Petitioner-Appellee,

v. No. 94-4005

J. D. NETHERLAND, Warden,

Respondent-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

James C. Turk, District Judge.

(CA-92-737-R)

Argued: March 12, 1996

Decided: April 3, 1996

Before WIDENER and HAMILTON, Circuit Judges,

and CHAPMAN, Senior Circuit Judge.

_________________________________________________________________

Remanded with instructions by published opinion. Judge Hamilton

wrote the opinion, in which Judge Widener and Senior Judge Chapman joined.

_________________________________________________________________

COUNSEL

ARGUED: Donald Richard Curry, Senior Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellant. Timothy Michael Kaine, MEZZULLO &

MCCANDLISH, Richmond, Virginia, for Appellee. ON BRIEF:

James S. Gilmore, III, Attorney General of Virginia, OFFICE OF
THE ATTORNEY GENERAL, Richmond, Virginia, for Appellant.

Helen L. Konrad, MEZZULLO & MCCANDLISH, Richmond, Virginia; Donald R. Lee, Jr., VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER, Richmond, Virginia, for Appellee.

_________________________________________________________________

OPINION

HAMILTON, Circuit Judge:

In Ake v. Oklahoma, 470 U.S. 68, 83 (1985), the Supreme Court

held, inter alia, that when the prosecutor in a capital sentencing hearing presents psychiatric evidence of an indigent defendant's future

dangerousness, due process requires that the state provide the defendant expert psychiatric assistance. This case, which is before us on

remand from the Supreme Court of the United States, see Tuggle v.

Netherland, 116 S. Ct. 283 (1995), presents the questions of whether

harmless-error analysis is applicable to this type of Ake error, and, if

so, whether the error was harmless in this case. We conclude this type

of Ake error is amenable to harmless-error analysis and that the Ake

error in this case was harmless under the harmless-error standard set

forth in Brecht v. Abrahamson, 113 S. Ct. 1710 (1993). Accordingly,

we remand the case to the district court with instructions to dismiss

Tuggle's petition for writ of habeas corpus, see 28 U.S.C. § 2254.

I

In 1984, Lem Davis Tuggle was convicted of capital murder committed during or subsequent to the rape of Jessie Geneva Havens. As

recounted by the Virginia Supreme Court on direct appeal, the facts

surrounding Havens' murder are:

In the early morning of June 2, 1983, State Trooper R.M.

Freeman was dispatched to an area on Interstate Highway

81 in Pulaski County to look for a black pickup truck

equipped with a camper. Shortly after his arrival, Freeman

stopped a truck meeting that description and recognized

Tuggle as the driver. When the trooper asked the defendant

if he had been near the Riverside Exxon Station, Tuggle

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responded: "Yes, I robbed it, the money's in my pocket, the

gun's in the truck."

Thereupon, Freeman took possession of a .25 caliber automatic weapon. (Ballistics tests established that this gun fired

the bullet which killed Havens.) While Freeman was taking

Tuggle to the Pulaski County Sheriff's Office, Tuggle volunteered that he was connected with a missing person's

report relating to Jessie Havens and said that he would have

a "long talk" with Smyth County authorities later.

Later that morning, a Smyth County Sheriff's Office investigator interviewed Tuggle concerning Havens' disappearance. The officer advised Tuggle of his Miranda rights.

Tuggle waived these rights and told the officer that he could

find Jessie Havens over a bank at a certain spot on Hubble

Hill Road near Seven Mile Ford. When the officer asked the

defendant what had happened to Havens, Tuggle responded:

"I don't know but she's there." The defendant then told the

officer that he did not want to discuss the matter further

until he had spoken to an attorney. He specifically stated:

"From past experience, I would like to talk to an attorney.

I'll probably tell you the full story later."

Approximately 9:30 a.m. on June 2, the investigator went to

the place where Tuggle said Havens would be found. He

found Havens' body at the site. Havens was clad in jeans

"down around her knees," a blue and white striped blouse

"pulled up to about the armpits," and "black silk panties . . .

rolled down somewhat." A portion of the victim's pantyhose

was "sticking out of the top" of her jeans, and one of her

legs was out of the pantyhose.

An autopsy revealed that the victim's body had an abrasion

and a bruise on the left frontal area of the forehead, a small

abrasion on the right frontal area of the forehead, an abrasion on the neck, a bite mark on the lower, inner quadrant

of the right breast, a number of small bruises on the upper,

inner aspect of the right arm, and a bruise on the right thumb

and right wrist. Havens also had sustained a large bruise on

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the upper, inner thigh, bruises on the vaginal vault at the

posterior aspect and near the bottom, and a gunshot wound

in the chest.

According to the medical examiner, "the bruises of the

vagina indicate penetration of the vaginal vault by something, a penis, a finger, an object, something." The medical

examiner testified that both the bite mark on the breast and

the bruising around the vagina occurred while Havens was

alive. He also testified that no semen or spermatozoa was

found in Havens' vagina, but that semen was found in the

rectum, indicating "penetration and ejaculation into the rectum."

A forensic odontologist testified that he examined the bite

mark on the victim's right breast. He compared the mark

with models of Tuggle's teeth and concluded "with all medical certainty these marks on the body of Ms. Havens were

made by the teeth of Mr. Tuggle." He further opined that

Havens was alive and moving when she was bitten.

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

At Tuggle's sentencing hearing, the state introduced evidence on

the two aggravating circumstances, "vileness" and "future dangerousness," either of which will support the imposition of death as punishment for murder under Virginia law.1 As to the "vileness" aggravating

circumstance, the state relied on the circumstances surrounding the

murder, which included rape, sodomy, and a gunshot wound to the

_________________________________________________________________

1 Under Virginia law, when assessing whether to impose a sentence of

death or life imprisonment, the jury must first determine whether the

state established one or both of the statutory aggravating circumstances.

See Va. Code Ann. § 19.2-264.4(C). If the jury finds the state has met

its burden with respect to one or both of the aggravating circumstances,

the jury then, after considering the evidence in mitigation, may exercise

its discretion to impose either a sentence of death or life imprisonment.

See Va. Code Ann. § 19.2-264.4(D). If the jury finds neither aggravating

circumstance satisfied or cannot agree on a penalty, the court must

impose a life sentence. See Va. Code Ann.§ 19.2-264.4(C)-(E).

 4
chest. As to the "future dangerousness" aggravating circumstance, the

state introduced: (1) evidence that Tuggle murdered Havens while on

parole for murder; (2) evidence of Tuggle's criminal history, which

in addition to another murder, included escape and armed robbery;

and (3) the psychiatric testimony of Dr. Centor, a licensed clinical

psychologist, who testified that Tuggle demonstrated"a high probability of future dangerousness." (J.A. 202). After its deliberations, the

jury found both the "vileness" and "future dangerousness" aggravating circumstances were established and exercised its discretion to sentence Tuggle to death.

Tuggle's conviction and sentence were affirmed by the Virginia

Supreme Court on direct appeal. See Tuggle I, 323 S.E.2d at 554. On

appeal to the Supreme Court of the United States, the Court vacated

the judgment of the Virginia Supreme Court and remanded the case

for further consideration in light of Ake. See Tuggle v. Virginia, 471

U.S. 1096 (1985) (summary disposition). In Ake , the Court held that

due process, under certain circumstances, requires the states to provide an indigent criminal defendant with expert psychiatric assistance.

The Court held:

[W]hen a defendant demonstrates to the trial judge that his

sanity at the time of the offense is to be a significant factor

at trial, the State must, at a minimum, assure the defendant

access to a competent psychiatrist who will conduct an

appropriate examination and assist in evaluation, preparation, and presentation of the defense.

470 U.S. at 83. Additionally, the Court held that when the prosecutor

in a capital sentencing hearing presents psychiatric evidence of an

indigent defendant's future dangerousness, due process requires that

the state provide the defendant expert psychiatric assistance. Id.

Because Tuggle had been denied expert psychiatric assistance after

the state introduced Dr. Centor's testimony, the Supreme Court

vacated the Virginia Supreme Court's judgment and remanded the

case in light of Ake.

On remand, because of the Ake error, the Virginia Supreme Court

merely invalidated the future dangerousness aggravating circumstance. See Tuggle v. Virginia, 334 S.E.2d 838, 844-46 (1985)

 5
(Tuggle II). Notwithstanding the Ake error, the Virginia Supreme

Court in Tuggle II reaffirmed Tuggle's death sentence, id. at 845-46,

relying on Zant v. Stephens, 462 U.S. 862, 884 (1983), which held

that if one aggravating circumstance supports a death sentence in a

"non-weighing" state, like Virginia, the sentence need not be vacated

merely because the jury also found an invalid aggravating circumstance. The Virginia Supreme Court reasoned that the death sentence

could stand under Zant because the jury, in addition to finding the

"future dangerousness" aggravating circumstance, found the "vileness" aggravating circumstance. Tuggle II, 334 S.E.2d at 845-46. In

Tuggle II, the Virginia Supreme Court reviewed the evidence as to

vileness and stated:

In Tuggle, the jury made a separate, specific finding that the

"vileness" predicate had been proved beyond a reasonable

doubt. Although Ake requires the conclusion that the trial

court erred in denying Tuggle an independent psychiatrist

once the Commonwealth had submitted psychiatric evidence

on the issue of future dangerousness, we hold, nonetheless,

that the error neither impairs nor invalidates the jury's finding of vileness.

Id. at 846.

Tuggle filed a petition for a writ of certiorari in the Supreme Court

of the United States. This petition was denied on June 30, 1986. See

Tuggle v. Virginia, 478 U.S. 1010 (1986).

Tuggle then filed a petition for writ of habeas corpus in the United

States District Court for the Western District of Virginia. See 28

U.S.C. § 2254. Tuggle's petition raised numerous issues, including a

claim under Ake. The district court granted the petition for writ of

habeas corpus on several grounds, including Ake .

The state appealed and we reversed and remanded to the district

court with instructions to dismiss the petition. Tuggle v. Thompson,

57 F.3d 1356, 1374 (4th Cir. 1995). On the Ake issue, we agreed with

the Virginia Supreme Court's analysis in Tuggle II. In fact, quoting

the Virginia Supreme Court, we stated:

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"When a jury makes specific findings of specific statutory

aggravating circumstances, any of which could support a

sentence of death, and one of the circumstances subsequently is invalid, the remaining valid circumstance, or circumstances, will support the sentence."

Id. at 1363 (quoting Tuggle II, 334 S.E.2d at 845). Our analysis in this

decision was consistent with our prior Fourth Circuit precedent. For

example, in Briley v. Bass, we held that any one aggravating circumstance deemed sufficient by the jury suffices to uphold a death sentence:

[S]ince the jury returned a verdict finding the death sentence

warranted under both the "vileness" and the"dangerousness" standard, it is of no importance whether the instruction

on "vileness" was correct so long as the instruction on "dangerousness" was correct, provided, of course, the verdict of

the jury was unanimous on the "dangerousness" ground.

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

On appeal, the Supreme Court granted certiorari and vacated our

judgment. See Tuggle v. Netherland, 116 S. Ct. at 284. The Supreme

Court reasoned that while Zant permits the imposition of the death

penalty in "non-weighing" states, if an invalid aggravating circumstance is considered, "that holding does not support the quite different

proposition that the existence of a valid aggravator always excuses a

constitutional error in the admission or exclusion of evidence." Id. at

285. And while the Court was willing to assume that the Ake error had

no influence upon the jury's "vileness" finding, the Court was unwilling to assume that the Ake error did not affect the jury's ultimate decision whether to impose a life sentence or the death penalty. Id. The

Court then remanded the case to this court for a determination of

"whether harmless-error analysis is applicable to this case." Id.

II

A

Almost thirty years ago, the Supreme Court recognized that there

are "some constitutional errors which in the setting of a particular

 7
case are so unimportant and insignificant that they may, consistent

with the Federal Constitution, be deemed harmless." Chapman v.

California, 386 U.S. 18, 22 (1967). Since Chapman, the Supreme

Court has applied harmless-error analysis to a wide variety of errors.

See, e.g., Clemons v. Mississippi, 494 U.S. 738, 752-54 (1990) (overbroad jury instruction at the sentencing hearing of defendant's capital

trial); Carella v. California, 491 U.S. 263, 266 (1989) (erroneous conclusive presumption in jury instruction); Rose v. Clark, 478 U.S. 570,

579-80 (1986) (jury instruction containing erroneous rebuttable presumption); Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (Confrontation Clause violation involving improper restriction on

defendant's right to cross-examine government witness for bias). The

doctrine of harmless error "`promotes public respect for the criminal

process by focusing on the underlying fairness of the trial rather than

on the virtually inevitable presence of immaterial error.'" Satterwhite

v. Texas, 486 U.S. 249, 256 (1988) (quoting Rose, 478 U.S. at 577).

In general, "if the defendant had counsel and was tried by an

impartial adjudicator, there is a strong presumption that any other

errors that may have occurred are subject to harmless-error analysis."

Rose, 478 U.S. at 577. Errors amenable to harmless-error review are

"trial" errors. Trial error "`occur[s] during the presentation of the case

to the jury,' and is amenable to harmless-error analysis because it

`may . . . be quantitatively assessed in the context of other evidence

presented in order to determine [the effect it had on the trial].'"

Brecht, 113 S. Ct. at 1717 (ellipsis and brackets in original) (quoting

Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991)).

In contrast to "trial" errors, "structural" errors are not amenable to

harmless-error analysis because such errors "infect the entire trial process," Brecht, 113 S. Ct. at 1717, thereby making "[a]ssessment of the

impact of [the error] impossible." Smith v. Dixon, 14 F.3d 956, 974

(4th Cir.) (en banc), cert. denied, 115 S. Ct. 129 (1994). The

Fulminante Court identified the deprivation of the right to counsel,

trial by a biased judge, the unlawful exclusion of members of the

defendant's race from a grand jury, and the denial of the right to a

public trial as examples of "structural" errors. 499 U.S. at 309-10.

Before we address whether we can view this case through a

harmless-error prism, we note that the Ake error in this case actually

 8
involves two errors. The first error was the improper admission of Dr.

Centor's testimony; Dr. Centor's testimony was not admissible unless

the state provided Tuggle with expert psychiatric assistance. The second error, which goes hand-in-hand with the first, involves the resulting deprivation to Tuggle of expert psychiatric assistance at

sentencing to rebut the state's testimony of future dangerousness. We

believe both of these errors are errors of the "trial" type.

With respect to the improper admission of Dr. Centor's testimony,

this error is clearly subject to harmless-error analysis. Without question, the effect of Dr. Centor's testimony on the sentencing phase

"`may . . . be quantitatively assessed in the context of other evidence

presented in order to determine [the effect it had]" on the jury's sentence. Brecht, 113 S. Ct. at 1717 (ellipsis and brackets in original)

(quoting Fulminante, 499 U.S. at 307-08). Indeed, we have applied

harmless-error analysis in cases involving improperly admitted evidence. See, e.g., Correll v. Thompson , 63 F.3d 1279, 1291-92 (4th

Cir. 1995) (in case on collateral review, court applied harmless-error

analysis to an error involving evidence improperly admitted under

Edwards v. Arizona, 451 U.S. 477 (1981)).

This conclusion with respect to the improper admission of Dr. Centor's testimony is also supported by the Supreme Court's decision in

Satterwhite. The issue before the Court in Satterwhite was whether

the admission of expert psychiatric testimony at the defendant's capital sentencing hearing in violation of Estelle v. Smith, 451 U.S. 454

(1981), which held that capital defendants have a Sixth Amendment

right to consult with counsel before submitting to a psychiatric examination designed to determine their future dangerousness, was subject

to harmless-error analysis under Chapman. The Court concluded that

harmless-error analysis applied, Satterwhite, 486 U.S. at 258, and that

the error was not harmless under Chapman, id. at 258-60. The Court's

application of harmless-error analysis to assess the effect of the

improperly admitted psychiatric testimony on the verdict obtained in

Satterwhite dictates that the Court would conclude that harmless-error

analysis should be applied to the improper admission of Dr. Centor's

testimony.

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

 9
error pertaining to the admission of Dr. Centor's testimony dealt with

the improper admission of evidence whereas this latter error is the

equivalent of the improper exclusion of evidence. And for several reasons, we believe this error is also subject to harmless-error analysis.

First, in a similar context, deprivations of the right to crossexamination under the Confrontation Clause, the Supreme Court has

rejected the notion that there is an analytical distinction between

errors involving the improper admission of evidence and those

involving the improper exclusion of evidence. See Van Arsdall, 475

U.S. at 683-84. Under either scenario, the Van Arsdall Court noted

that the state was permitted to introduce evidence that was not subject

"to constitutionally adequate cross-examination," id. at 684, and concluded that "in both cases the reviewing court should be able to

decide whether the not-fully impeached evidence might have affected

the reliability of the factfinding process at trial." Id. Similar to Van

Arsdall, courts confronting Ake errors involving the denial of expert

psychiatric assistance are in a position to assess the impact of the

error on the jury's ultimate sentencing determination.

Second, we find persuasive a decision of the Tenth Circuit that

applied harmless-error analysis in circumstances similar to this case.

See Castro v. Oklahoma, 71 F.3d 1502 (10th Cir. 1995). Castro was

convicted of capital murder. During his sentencing hearing, the state

introduced evidence of the vileness of Castro's crime and his future

dangerousness. In its deliberations after the sentencing hearing, the

jury found both the "future dangerousness" and"vileness" aggravating circumstances. Id. at 1506. On direct appeal, the Oklahoma Court

of Criminal Appeals struck down the "vileness" aggravating circumstance, but affirmed the sentence. Id. After removing the invalid "vileness" aggravating circumstance and reweighing the"future

dangerousness" aggravating circumstance against the mitigating circumstances, the Oklahoma Court of Criminal Appeals concluded that

the death sentence was appropriate in light of the"future dangerousness" aggravating circumstance and the strong evidence of guilt.

Castro v. State, 745 P.2d 394, 408-09 (Okla. Crim. App. 1987). On

federal habeas review, Castro contended, among other things, that his

due process rights were violated when the trial court failed to grant

his request for expert psychiatric assistance after the state introduced

evidence of his future dangerousness at his sentencing hearing.

Castro, 71 F.3d at 1513. The Tenth Circuit agreed, holding that Cas-

 10
tro's due process rights were violated when the trial court refused to

appoint Castro expert psychiatric assistance during Castro's sentencing phase of his trial. Id. at 1515. The Tenth Circuit then applied

harmless-error analysis, relying on an earlier decision, Brewer v.

Reynolds, 51 F.3d 1519 (10th Cir. 1995), which held that Ake error

is "trial" error and subject to harmless-error analysis. Castro, 71 F.3d

at 1515. Applying harmless-error analysis, the Castro court concluded

the error was not harmless. Id. at 1516. We are persuaded by the decision of the Supreme Court in Van Arsdall and the decision of the

court in Castro and will apply a harmless-error analysis to this case.

B

Having concluded that harmless-error analysis applies in this case,

we must address the question of whether the Chapman standard or the

Brecht standard for harmlessness should be applied in this case. On

direct appeal, the harmless-error standard for constitutional error is

whether the error "was harmless beyond a reasonable doubt."

Chapman, 386 U.S. at 24. Under that standard, a constitutional error

may not be declared harmless if there is a "reasonable possibility" that

the "error contributed to the verdict." Brecht, 113 S. Ct. at 1721. In

Brecht, however, the Supreme Court concluded that granting federal

collateral relief upon a mere "reasonable possibility" that the error

contributed to the verdict would be inconsistent with the historic purpose of habeas corpus to afford relief only to those who have been

"grievously wronged" by society. Id. Thus, the harmless error standard that a federal habeas court must apply is the same standard that

a federal court must apply to nonconstitutional errors on direct appeal:

whether the error had a "`substantial and injurious effect or influence

in determining the jury's verdict.'" Id. at 1722 (quoting Kotteakos v.

United States, 328 U.S. 750, 776 (1946)).

We believe the Brecht standard, rather than the Chapman standard,

applies in this case. In Brecht, the Court directed federal courts on

collateral review to apply the standard set forth in Kotteakos and

determine whether the "trial" error had a"`substantial and injurious

effect or influence on the jury's verdict.'" Id. Indeed, the Court specifically held that the Kotteakos harmless-error standard, rather than

the Chapman standard, applied in determining whether to grant collat-

 11
eral relief. Id. at 1722. Accordingly, the Brecht standard rather than

the Chapman standard should be applied in this case.2

C

We now turn to the most difficult issue presented in this appeal:

Did the trial court's decision to admit Dr. Centor's testimony on the

issue of future dangerousness and its refusal to grant Tuggle expert

psychiatric assistance have a "`substantial and injurious effect or

influence,'" Brecht, 113 S. Ct. at 1722 (quoting Kotteakos, 328 U.S.

at 776), on the jury's decision to sentence Tuggle to death? In answering this question, it is important to keep in mind that Virginia is a

"non-weighing" state. In "non-weighing" states, the jury uses aggravating circumstances to determine whether the defendant is eligible

for the death penalty; if the jury finds at least one aggravating circumstance, it considers all the evidence adduced at the guilt and sentencing phases of the trial in determining whether the sentence of death

is the appropriate penalty. Stringer v. Black , 112 S. Ct. 1130, 1136

(1992); Zant, 462 U.S. at 872. Thus, in Virginia, the jury's use of an

invalid aggravating circumstance in determining whether the death

penalty is an appropriate penalty does not infect the ultimate decision

to impose the death penalty provided we determine that the invalid

aggravating circumstance would have made no difference to the

jury's determination. As the Court in Stringer explained:

In a nonweighing State, so long as the sentencing body finds

at least one valid aggravating factor, the fact that it also

finds an invalid aggravating factor does not infect the formal

process of deciding whether death is an appropriate penalty.

Assuming a determination by the state appellate court that

the invalid factor would not have made a difference to the

jury's determination, there is no constitutional violation

_________________________________________________________________

2 Our own circuit precedent dictates the same result. See, e.g., Correll,

63 F.3d at 1291 (applying Brecht standard for harmlessness in habeas

case involving evidence improperly admitted under Edwards); Smith, 14

F.3d at 979-80 (applying Brecht standard for harmlessness in habeas case

involving unconstitutionally vague heinousness instruction).

 12
resulting from the introduction of the invalid factor in an

earlier stage of the proceedings.

112 S. Ct. at 1137.

We believe several factors are relevant to our inquiry into harmlessness. They include: (1) the strength of the remaining aggravating

circumstance; (2) the evidence admitted (both properly and improperly) at the sentencing hearing to establish the invalid aggravating circumstance; (3) the evidence improperly excluded at the sentencing

hearing; (4) the nature of any mitigating evidence; (5) the closing

argument of the prosecutor; and (6) any indications that the jury was

hesitant or entertained doubt in reaching its sentencing determination.

As to the first factor, the jury found the "vileness" aggravating circumstance, and the murder in this case was unquestionably vile. The

murder involved rape and sodomy, and Tuggle bit Havens on the

breast before shooting her in the chest and disposing of her body by

throwing it over an embankment.

As to the second factor, the state introduced evidence of Tuggle's

criminal history. First, the state introduced evidence that Tuggle was

convicted of murder in 1972 and was sentenced to twenty years'

imprisonment. Second, the state introduced evidence that Tuggle had

only served approximately eleven years of his twenty-year sentence

before he was released on parole and raped, sodomized, and murdered

Havens. Third, the state introduced evidence that Tuggle, while in

custody for the 1972 murder, escaped, and was convicted and sentenced to two years for that offense. Fourth, the state introduced evidence that, at the time of his arrest for the capital murder, Tuggle had

just committed an armed robbery of a service station with the same

firearm he had used to murder Havens. Finally, the state introduced

the testimony of Dr. Centor, who, based upon his evaluation of Tuggle, testified that Tuggle showed "a high probability of future dangerousness." (J.A. 202). Of particular note, all of the evidence, save Dr.

Centor's testimony, would have been admissible even if the state had

decided not to pursue the "future dangerousness" aggravating circumstance. See Va. Code Ann. § 19.2-264.4(B) (permitting introduction

of defendant's "history and background").

 13
As to the third factor, we will assume, arguendo, that Tuggle

would have produced expert psychiatric testimony to rebut Dr. Centor's conclusions on Tuggle's future dangerousness and that this evidence was improperly excluded.

As to the fourth factor, Tuggle's evidence of mitigation at the sentencing hearing consisted of the testimony of three witnesses. His

aunt, Katherine Norris, testified that Tuggle was"friendly" and

"good-natured" despite being raised in a rough environment. Id. at

208. She also testified that Tuggle's parents "raised him the best they

could, . . . took him to church, and raised him in church." Id. Another

one of Tuggle's aunts, Eunice Burgess, gave similar testimony to that

of Norris, testifying that Tuggle was a nice person and that he had a

hard time growing up because his father was disabled. Finally, Tuggle's mother's foster parent also testified that Tuggle was "goodnatured." Id. at 215.

With respect to the fifth factor, the prosecutor's closing argument

focused on the two statutory aggravating circumstances. With respect

to the "vileness" aggravating circumstance, the prosecutor focused on

the circumstances surrounding Havens' murder:

[E]ven if [Tuggle] didn't have that past history, . . . you

could still find . . . in this particular case that his conduct in

regard to Ms. Havens was so outrageously . . . or wantonly

vile, horrible, or inhuman, which it was, nobody, till the day

you die, you'll never believe that it was not inhuman . . . or

that it was anything other than horrible. That it involved torture. The woman was bitten on her breast and the testimony

was that she had several bites there rotating on that one

tooth. Or if you find--and again, this is calling for you to

use your common sense--depravity of mind or aggravated

battery to the victim. I imagine he could have chopped her

up in little fine pieces and it would have been a little more

aggravated but what he did to her was just as aggravated.

. . . [I]t was atrocious. Way beyond the minimum necessary

to even accomplish the act of murder.

Id. at 229-30. With respect to the "future dangerousness" aggravating

circumstance, the prosecutor emphasized Tuggle's criminal history:

 14
[Tuggle] was tried twelve years ago on murder and they

found him guilty of second degree then, and now he's back

in here again on another horrible offense, the same way,

under similar circumstances. The fact that he is here in less

time than he was even sentenced to ought to be a message

to you as to what will happen if he doesn't get the death sentence. The only thing that I want to state to you and let it

be known to everybody here and so that there is no misunderstanding as to where we stand, is that I can only say God

forbid if you give him any type of sentence that permits him

to get out here and do this again, and anything less than

death is going to do it. There is a great possibility that he'll

be able to do it again. There are enough killers out in society

that go undetected and uncaught, untried, unconvicted, and

can keep doing it until they finally get caught. Sometimes

they never catch them at all. We caught one. We've got one.

We've got him in here to where we can do something with

him, and that's--let's don't miss an opportunity.

Id. at 230-31. During his closing argument, the prosecutor also

informed the jury that it could consider Dr. Centor's testimony on the

issue of future dangerousness and reiterated Dr. Centor's conclusion

that Tuggle showed a high probability of future dangerousness.

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

But you've got to consider that when he reached the age of

eighteen [sic] he murdered someone here in Smyth County.

He was caught, he was tried, he was convicted, he was sent

to the penitentiary and he served years in the penitentiary.

Now, is it likely that a fellow who has done that is going to

commit future criminal acts of violence? Well, what's the

evidence that you've heard here? He got out of the penitentiary, he's on parole, and here we have him again, that he

has killed again. He's been caught, he's been tried, he's

been convicted.

Id. at 233. At this point, the prosecutor referred again to Dr. Centor's

testimony about Tuggle's future dangerousness, referring to it as a

 15
consideration "in addition to [Tuggle's] actions, and they speak for

themselves." Id. at 233-34. The prosecutor then concluded his argument by reminding the jury that Tuggle "killed Jessie Geneva Havens,

he raped her, he sodomized her, he threw her body over the bank, and

. . . the indications are that if he doesn't receive the death penalty, he

will kill again. We ask for the death penalty. The decision is yours."

Id. at 234.

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

Applying these factors, we believe the improper admission of Dr.

Centor's testimony and the trial court's denial of expert psychiatric

assistance to Tuggle did not have a "`substantial and injurious effect

or influence,'" Brecht, 113 S. Ct. at 1722 (quoting Kotteakos, 328

U.S. at 776), on the jury's decision to sentence Tuggle to death. Initially, we point out that several factors arguably support a finding that

the errors were not harmless under Brecht. First, Dr. Centor's testimony was not properly admitted because the state did not provide

Tuggle expert psychiatric assistance. Second, the prosecutor's closing

argument relied to some extent on Dr. Centor's testimony. Third,

again assuming that Tuggle would have produced expert psychiatric

testimony to rebut Dr. Centor's conclusions on Tuggle's future dangerousness, this evidence was improperly excluded.

However, after a thorough review of the record, we must conclude

that if the "future dangerousness" aggravating circumstance was

stripped from this case, including all evidence improperly admitted or

excluded and any improper comments by the prosecution on that

invalid aggravating circumstance, the sentence would have been the

same. First, the record in this case contains an unimpeachable "vileness" aggravating circumstance; indeed, we believe Tuggle's crime

epitomized "vileness." Second, the improper admission of Dr. Centor's testimony, and the trial court's decision to deny Tuggle expert

psychiatric assistance to rebut Dr. Centor's testimony on future dangerousness, neither enhanced the persuasiveness of the "vileness"

aggravating circumstance nor influenced the jury's determination as

to vileness. Third, the only evidence of the invalid"future dangerousness" aggravating circumstance improperly admitted was Dr. Centor's

testimony that Tuggle showed "a high probability of future danger-

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ousness." (J.A. 202). This evidence was at most cumulative to the evidence of Tuggle's criminal history, all of which was admissible

notwithstanding the invalidation of the "future dangerousness" aggravating circumstance. See Va. Code Ann. § 19.2-264.4(B) (permitting

introduction of defendant's "history and background"). Fourth, the

nature of Tuggle's mitigating evidence was benign at best. Fifth, the

record reflects that the jury was not at all hesitant in imposing the

death sentence--the jury returned its sentencing verdict after a little

more than an hour of deliberation. In sum, we harbor no doubt that

the improper admission of Dr. Centor's testimony and the trial court's

denial to Tuggle of expert psychiatric assistance did not have a "`substantial and injurious effect or influence,'" id., on the jury's decision

to sentence Tuggle to death.

III

We have conducted an exhaustive review of the record in this case

and are confident that the Ake error in this case could not have had

an injurious or prejudicial effect on the jury's sentencing determination. Accordingly, we remand the case to the district court with

instructions to dismiss the petition for writ of habeas corpus.

REMANDED WITH INSTRUCTIONS

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