VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Friday, March 4, 2011.
Present: Kinser, C.J., Goodwyn and Millette, JJ., and Carrico,
Lacy and Koontz, S.JJ.
Ricky Jovan Gray, Petitioner,
against Record No. 080524
Warden of the Sussex I State Prison, Respondent.
Upon a Petition for a Writ of Habeas Corpus
Upon consideration of the petition for a writ of habeas corpus
filed March 14, 2008, and the respondent’s motion to dismiss, the
Court is of opinion that the writ should be granted in part and
dismissed in part.
Petitioner, Ricky Jovan Gray, was convicted in the Circuit
Court of the City of Richmond of capital murder in the commission
of a robbery or attempted robbery under Code § 18.2-31(4), capital
murder of more than one person as part of the same transaction
under Code § 18.2-31(7), capital murder of more than one person
within a three-year period under Code § 18.2-31(8), and two counts
of capital murder of a person under the age of fourteen by a person
age twenty-one or older under Code § 18.2-31(12). The crimes
concerned the killing of four members of a family during a home
invasion robbery. After finding the aggravating factor of
vileness, the jury fixed petitioner’s sentence at death for each of
the two convictions under Code § 18.2-31(12) and life imprisonment
1
for each of the three remaining capital convictions. The trial
court sentenced petitioner in accordance with the jury’s verdicts.
This Court affirmed petitioner’s convictions and upheld his
sentence of death in Gray v. Commonwealth, 274 Va. 290, 295, 645
S.E.2d 448, 451 (2007), cert. denied, 552 U.S. 1151 (2008).
I.
In claim (IV), petitioner alleges he was denied the effective
assistance of counsel because counsel failed to protect
petitioner’s rights to be free from double jeopardy. Petitioner
contends he was tried and punished for separate counts of capital
murder under Code §§ 18.2-31(7) and (8) even though the crimes
arose from the same criminal act and “one punishment is for a crime
which is a lesser included offense of the other.” Furthermore,
petitioner contends that counsel failed to advise petitioner that a
non-frivolous ground for appeal existed, namely that petitioner’s
rights against double jeopardy had been violated as alleged in
claim (IV).
The Court holds that claim (IV) satisfies the “performance”
and the “prejudice” prongs of the two-part test enunciated in
Strickland v. Washington, 466 U.S. 668, 687 (1984). As this Court
held in Andrews v. Commonwealth, 280 Va. 231, 287-88, 699 S.E.2d
237, 269-70 (2010), the double jeopardy prohibition against
multiple punishments is violated when a defendant receives separate
sentences under Code §§ 18.2-31(7) and (8) when each of the
constituent murders for both convictions occurred as part of the
2
same act or transaction. There is a reasonable probability that,
but for counsel’s failure to raise this issue at trial, the
Commonwealth would have been permitted to proceed to sentencing on
only one of the two indictments. Therefore, petitioner is granted
a writ of habeas corpus as to his life sentences imposed under Code
§§ 18.2-31(7) and (8), and these convictions are remanded and the
Circuit Court of the City of Richmond is directed to exercise its
discretion to vacate one of the underlying convictions. See Ball
v. United States, 470 U.S. 856, 864 (1985).
II.
The remainder of the petition is dismissed for the reasons as
follows:
In a portion of claim (I), petitioner alleges that the
Commonwealth improperly concealed material and exculpatory evidence
and knowingly made false representations in violation of the
holdings in Brady v. Maryland, 373 U.S. 83 (1963), and Napue v.
Illinois, 360 U.S. 264 (1959). During argument at petitioner’s
October 23, 2006 sentencing hearing, the prosecutor commented that
Ray Dandridge, who had participated in the murders of the family
members, had pleaded guilty to capital murder and been sentenced to
life imprisonment in connection with another set of murders, “was
one or two points above the level of retardation, depending on when
in his life he was tested and depending on who tested him.”
Petitioner contends that the comment was made to undercut
petitioner’s argument that Dandridge was relatively more culpable
3
in the crimes and that petitioner’s sentence should be proportional
to the life sentence Dandridge received. Relying on a September
2006 report prepared by a mental health expert in anticipation of
Dandridge’s capital murder trial for the other set of murders,
petitioner contends that the Commonwealth was aware that its
representations about Dandridge were false. Petitioner contends
further that the report was not made available to him.
The Court holds that this portion of claim (I) is without
merit. The September 2006 capital sentencing evaluation report of
Dandridge, proffered by petitioner in support of his petition for a
writ of habeas corpus, demonstrates that Dandridge had taken a
number of I.Q. tests during the course of his life and that his
performance I.Q. score in 2006 was two points above the legal
threshold under which one could be classified as being mentally
retarded in Virginia. See Johnson v. Commonwealth, 267 Va. 53, 75,
591 S.E.2d 47, 59 (2004), vacated on other grounds, 544 U.S. 901
(2005). As a result, the prosecutor’s comment that Dandridge
scored a few points above the cut-off for determining mental
retardation, “depending on when in his life he was tested and
depending on who tested him,” did not violate Napue because it was
not false.
Furthermore, petitioner has failed to show that Dandridge’s
evaluation report was material to petitioner’s case. Evidence is
only material if its suppression would undermine the confidence in
the outcome of the trial. Teleguz v. Commonwealth, 273 Va. 458,
4
488, 643 S.E.2d 708, 727 (2007). The record, including the
September 2006 evaluation report, the trial and sentencing hearing
transcripts, and petitioner’s pre-sentence report, demonstrates
that Dandridge’s evaluation occurred after the jury returned with
its findings of guilt and recommendations as to the sentences
petitioner should receive. Petitioner has failed to prove that the
court would not have imposed the death sentence as the jury had
recommended had the report been made available to petitioner prior
to being sentenced by the court.
In another portion of claim (I), petitioner alleges that the
Commonwealth presented misleading testimony from Detective Howard
Peterman, who testified that a written narrative of petitioner’s
interview constituted the entirety of petitioner’s statement.
Detective Peterman denied that he had informed petitioner about
anything that Dandridge had told the police. Petitioner claims
that Detective Peterman’s testimony conflicts with petitioner’s
recollection that Detective Peterman had provided petitioner with
information obtained from Dandridge. Petitioner contends also that
Detective Peterman provided inconsistent testimony a year and a
half after petitioner’s trial during a pretrial hearing in Culpeper
County. At that time, Detective Peterman stated that he had spoken
with petitioner about the murders before he memorialized the
statement into writing.
The Court holds that this portion of claim (I) is barred.
Petitioner was present during the interview and, therefore, knew
5
what Detective Peterman said to him, whether the written statement
covered the entirety of petitioner’s interview, and whether
Detective Peterman’s testimony was truthful. Thus, this non-
jurisdictional issue could have been raised at trial and on direct
appeal and, thus, is not cognizable in a petition for a writ of
habeas corpus. Slayton v. Parrigan, 215 Va. 27, 29-30, 205 S.E.2d
680, 682 (1974), cert. denied, 419 U.S. 1108 (1975).
In another portion of claim (I), petitioner alleges that
during closing arguments, the prosecutor falsely told the jury that
petitioner was not “under the influence of anything” when he
committed the murders even though petitioner had told the police
when he was arrested that he was on “PCP” on the day of the
murders.
The Court holds that this portion of claim (I) is barred
because this non-jurisdictional issue could have been raised at
trial and on direct appeal and, thus, is not cognizable in a
petition for a writ of habeas corpus. Id.
In claim (I), footnote (2), petitioner alleges: “Should the
Court determine that claims alleged herein are defaulted because
counsel could have presented the claim[s] at trial and on appeal,
[petitioner] alleges that he was deprived of his right to effective
representation under Strickland . . . by counsel’s failure to
investigate and present the claims set out herein under Brady and
Napue.”
6
The Court holds that this portion of claim (I) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. The record, including the affidavit
of counsel, demonstrates that petitioner did not inform counsel
that he had been provided details of the crimes, and that, despite
his statement that he was on PCP the day of the murders, petitioner
assured counsel that “PCP could not be to blame” as petitioner
“knew what he was doing.” Counsel made a tactical decision not to
try to blame petitioner’s actions on his use of drugs because
counsel decided that a defense of intoxication would detract from
the best defense at sentencing, which would be to focus on the
abuse petitioner suffered as a child. Additionally, assuming
counsel had Dandridge’s September 2006 mental evaluation,
petitioner cannot demonstrate that counsel should have used the
report to rebut the Commonwealth’s argument. The report did not
indicate that Dandridge controlled petitioner but rather contained
information that Dandridge believed petitioner had tricked him and
that Dandridge suffered mental health issues. Thus, petitioner has
failed to demonstrate that counsel’s performance was deficient or
that there is a reasonable probability that, but for counsel’s
alleged errors, the result of the proceeding would have been
different.
In claim (I), footnote (4), petitioner alleges, “For each
claim stated herein, . . . trial counsel failed to provide
7
effective assistance of counsel by properly preserving and
presenting each claim on appeal.”
The Court holds that this claim satisfies neither the
“performance” nor the “prejudice” prong of the two-part test
enunciated in Strickland. Petitioner fails to articulate what
steps, or additional steps, he contends counsel should have taken
to preserve these issues, and fails to articulate the appellate
arguments he contends counsel should have raised in support of
these issues. Furthermore, the selection of issues to address on
appeal is left to the discretion of appellate counsel, and counsel
need not address every possible issue on appeal. Jones v. Barnes,
463 U.S. 745, 751-52 (1983). Thus, petitioner has failed to
demonstrate that there is a reasonable probability that, but for
counsel’s alleged errors, the result of the proceeding would have
been different.
In a portion of claim (II), petitioner alleges he was denied
the effective assistance of counsel because counsel failed to
investigate, develop, and present evidence of the relative
culpability between petitioner and Dandridge. Petitioner claims
that counsel failed to discover that Dandridge was a “troublemaker
and a leader,” who could assert his will over others, and who had
led petitioner into criminal activity.
The Court holds that this portion of claim (II) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. The record, including the
8
transcript from the sentencing hearing, demonstrates that counsel
argued that the notion that Dandridge was “some borderline idiot
doing whatever [petitioner] says is nonsense” and that Dandridge
was equally culpable in the murders. Counsel was attempting to
argue that because Dandridge received life sentences for his role
in a different set of murders committed by both men, petitioner,
likewise, should receive life sentences for killing the children.
Additionally, the record, including the affidavit of counsel and
petitioner’s statement to the police, demonstrates that petitioner
claimed that Dandridge played a minimal role in the murders of the
family members. Petitioner fails to provide any evidence to show
what effect, if any, Dandridge’s background as an alleged
troublemaker or leader played in light of the fact that petitioner
confessed to the murders. Thus, petitioner has failed to
demonstrate that counsel’s performance was deficient or that there
is a reasonable probability that, but for counsel’s alleged errors,
the result of the proceeding would have been different.
In another portion of claim (II), petitioner alleges he was
denied the effective assistance of counsel because counsel failed
to investigate whether the police made petitioner aware of
statements from Dandridge before the police interviewed petitioner.
Petitioner contends that such information was important, as it
would have caused the jury to question petitioner’s relative
culpability for the crimes in relation to Dandridge.
9
The Court holds that this portion of claim (II) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. The record, including the trial
transcript, the transcript from the hearing in the Circuit Court of
Culpeper County, and the affidavit of counsel, demonstrates that
Detective Peterman consistently testified that petitioner was never
provided with any information police had obtained from Dandridge
before or during petitioner’s interview. Although petitioner
alleges that the police gave him information from Dandridge’s
statement, he fails to provide any evidence to corroborate the
allegation. Additionally, the record, including the affidavit of
counsel and the statement petitioner gave to the police,
demonstrates that petitioner minimized the role Dandridge played in
the murders. Thus, petitioner has failed to demonstrate that
counsel’s performance was deficient or that there is a reasonable
probability that, but for counsel’s alleged errors, the result of
the proceeding would have been different.
In another portion of claim (II), petitioner alleges he was
denied the effective assistance of counsel because counsel failed
to investigate the physiological effects “PCP” use had on
petitioner’s memory. Petitioner contends that such information
would have shown that the drug affects brain cells and would have
called into question the statements petitioner gave to the police.
The Court holds that this portion of claim (II) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
10
test enunciated in Strickland. The record, including the affidavit
of counsel and the trial transcript, demonstrates that petitioner
stated that “PCP could not be to blame” for his actions as
petitioner “insisted that he knew what he was doing” and that
petitioner’s statement to the police contained details about the
murders consistent with the evidence discovered by the police.
Petitioner fails to proffer the names of any witnesses counsel
should have spoken to or what information those witnesses would
have provided to counsel about the effects of PCP. Thus,
petitioner has failed to demonstrate that counsel’s performance was
deficient or that there is a reasonable probability that, but for
counsel’s alleged errors, the result of the proceeding would have
been different.
In a portion of claim (III), petitioner alleges he was denied
the effective assistance of counsel because counsel failed to make
a reasonable investigation of petitioner’s statements to the
police. Petitioner contends that an investigation would have shown
that at the time he talked to the police, petitioner could not
remember the details of the incident because he was under the
influence of drugs when the murders were committed and that the
police provided petitioner with details from Dandridge’s statement.
Petitioner claims that, had this evidence been adequately
investigated, counsel could have either moved to suppress
petitioner’s statement or used the information to impeach the
credibility of Detective Peterman’s testimony.
11
The Court holds that this portion of claim (III) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. The record, including the affidavit
of counsel, demonstrates that petitioner insisted to counsel that
he knew what he was doing when he committed the murders and that
“PCP could not be to blame.” Furthermore, counsel spoke to every
officer involved in petitioner’s arrest, including Detective
Peterman, and determined that petitioner was not provided any
details from Dandridge’s statement before or during his statement
to the police. The affidavit of counsel also demonstrates that
petitioner never informed counsel that Detective Peterman had “fed”
him the details of the crimes or of Dandridge’s statements to
police and that counsel looked for but could not find any evidence
that would have supported a motion to suppress petitioner’s
statements to police. Thus, petitioner has failed to demonstrate
that counsel’s performance was deficient or that there is a
reasonable probability that, but for counsel’s alleged errors, the
result of the proceeding would have been different.
In another portion of claim (III), petitioner alleges he was
denied the effective assistance of counsel because counsel failed
to protect petitioner’s right to be free from self-incrimination by
not moving to suppress petitioner’s statements to the police that
were later admitted at trial.
The Court holds that this portion of claim (III) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
12
test enunciated in Strickland. The record, including the trial
transcript, petitioner’s statement to the police, and the affidavit
of counsel, demonstrates that petitioner understood his
constitutional rights and voluntarily agreed to speak to the police
about the murders and that counsel looked for but could not find
any evidence that would have supported a motion to suppress
petitioner’s statements to police. Thus, petitioner has failed to
demonstrate that counsel’s performance was deficient or that there
is a reasonable probability that, but for counsel’s alleged errors,
the result of the proceeding would have been different.
In claim (V), petitioner alleges he was denied the effective
assistance of counsel because counsel failed to protect
petitioner’s rights to plead guilty and to have sentencing factors
determined in a constitutional manner. Petitioner contends that
counsel should have objected to the fact that, in order to plead
guilty in Virginia, a defendant must waive his right to have a jury
determine his sentence. Petitioner avers that the arrangement in
Virginia, which allows only a court to determine the appropriate
sentence when a defendant pleads guilty, is a violation of the
Sixth Amendment under the decisions in Blakely v. Washington, 542
U.S. 296 (2004), Ring v. Arizona, 536 U.S. 584 (2002), and Apprendi
v. New Jersey, 530 U.S. 466 (2000).
The Court holds that claim (V) satisfies neither the
“performance” nor the “prejudice” prong of the two-part test
enunciated in Strickland. The record, including the affidavit of
13
counsel, demonstrates that counsel advised petitioner not to plead
guilty in order to preserve his right to appeal and that petitioner
understood and agreed with that advice. Petitioner fails to allege
that he would have pleaded guilty or that his sentences, which were
determined by a jury, would have been different if the procedures
in Virginia were different. Thus, petitioner has failed to
demonstrate that there is a reasonable probability that, but for
counsel’s alleged errors, the result of the proceeding would have
been different.
In claim (VI), petitioner alleges he was denied the effective
assistance of counsel because counsel failed to object during
closing argument at the guilt phase of petitioner’s trial to the
Commonwealth’s statements that petitioner “offered no apology, he
offered no remorse” and that petitioner “never said he was under
the influence of anything.” Petitioner contends that by making
these statements the prosecutor impermissibly commented on
petitioner’s failure to testify.
The Court holds that claim (VI) fails to satisfy the
“prejudice” prong of the two-part test enunciated in Strickland.
The record, including the trial transcript and the affidavit of
counsel, demonstrates that the statements were not a comment on
petitioner’s failure to testify at trial but rather called the
jury’s attention to petitioner’s demeanor and responses during his
confession to police. Furthermore, although petitioner alleges
that counsel’s failure to object undermined confidence in the
14
jury’s decisions, he fails to allege that he would have been found
not guilty or would have received a different sentence had counsel
objected to the prosecution’s argument. Thus, petitioner has
failed to demonstrate that there is a reasonable probability that,
but for counsel’s alleged errors, the result of the proceeding
would have been different.
In a portion of claim (VII), petitioner alleges he was denied
the effective assistance of counsel because counsel failed to
ensure that the jurors were properly instructed regarding the
meaning of the “vileness” factor. Petitioner contends that after
counsel unsuccessfully moved the court to declare Virginia’s
capital sentencing statutes unconstitutional because, under Godfrey
v. Georgia, 446 U.S. 420 (1980), the definition for “vileness” was
constitutionally inadequate, counsel should have offered an
additional instruction regarding the meaning of the vileness
factor. Petitioner argues that counsel’s failure to proffer the
instruction waived the issue on appeal and that, had counsel
proffered the proper instruction, there was a reasonable likelihood
that a juror would have decided to sentence petitioner to life
imprisonment.
The Court holds that this portion of claim (VII) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. The record, including the jury
instructions and the trial transcripts, demonstrates that the
instruction provided to the jury tracked the language provided in
15
the statute and properly defined vileness. As such, the
instruction was proper and did not run afoul of the holding in
Godfrey. See Bunch v. Commonwealth, 225 Va. 423, 446-47, 304
S.E.2d 271, 284-85 (1983) (addressing Godfrey and holding that no
additional instructions are needed if the instruction given by the
court tracks the statutory language). In addition, petitioner
fails to provide the additional vileness instructions he contends
counsel should have offered at trial. Thus, petitioner has failed
to demonstrate that counsel’s performance was deficient or that
there is a reasonable probability that, but for counsel’s alleged
errors, the result of the proceeding would have been different.
In another portion of claim (VII), petitioner alleges he was
denied the effective assistance of counsel because counsel failed
to ensure that the jurors were properly instructed that the legal
impact of a non-unanimous decision would be a life sentence for
petitioner. When the jury asked about the outcome if a non-
unanimous decision was reached, the court declined to answer the
question. Petitioner contends that counsel’s failure to have the
question answered “interfered with [the] jurors’ ability to give
effect to mitigating evidence” by causing the jury to believe that
“any decision, even decisions as to mitigating evidence, must be
unanimous.”
The Court holds that this portion of claim (VII) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. Petitioner fails to proffer any
16
evidence to demonstrate that the jury was referring to mitigating
evidence when it submitted its question to the court. Petitioner
also fails to articulate how refusing to answer the jury’s question
about the outcome if it were not able to arrive at a unanimous
decision, “impermissibly interfered with [the] jurors’ ability to
give effect to mitigating evidence.” This Court has previously
rejected the argument that a jury should be instructed that its
finding as to individual mitigating factors “need not be
unanimous.” Juniper v. Commonwealth, 271 Va. 362, 431, 626 S.E.2d
383, 426 (quoting Clark v. Commonwealth, 220 Va. 201, 212, 257
S.E.2d 784, 791 (1979)), cert. denied, 549 U.S. 960 (2006).
Counsel was not unreasonable for not requesting an unnecessary
instruction, as the instruction provided by the court that the
jury’s decision regarding punishment had to be unanimous did not
prevent the jury from considering mitigating evidence. Jackson v.
Warden, 271 Va. 434, 448, 627 S.E.2d 776, 788-89 (2006), cert.
denied, 549 U.S. 1122 (2007). Thus, petitioner has failed to
demonstrate that counsel’s performance was deficient or that there
is a reasonable probability that, but for counsel’s alleged errors,
the result of the proceeding would have been different.
In claim (VIII)(a), petitioner alleges he was denied the
effective assistance of counsel because counsel failed to make
further inquiry of juror Carol Chaffin and failed to request a
mistrial after two jurors reported to the trial court that Chaffin
had spoken to a friend about the case, had looked at a newspaper,
17
and had made inappropriate comments. The trial court questioned
jurors Elizabeth Ransom and Sharon Dabney, who explained that
Chaffin had remarked that a friend had told her that the newspaper
had identified the make-up of the jury by race and gender, that
Chaffin had noticed sketched drawings of the jurors on the front
page of the paper, and had queried why petitioner would want to go
to prison to be sexually molested every day by other inmates.
Chaffin denied having discussed the case with any person, or
reading the newspaper, although Chaffin did state that she picked
up the newspaper and noticed a drawing on the outside of the paper.
Chaffin admitted making the statement about petitioner going to
prison, but denied having made up her mind as to the sentence
petitioner should receive. Petitioner contends that the evidence
adduced during the inquiry was insufficient to rebut the
presumption of prejudice that arises after “[a]ny private
communication with a juror,” and that a mistrial should have been
requested and granted. Petitioner contends further that counsel
should have made further inquiry of Chaffin.
The Court holds that claim (VIII)(a) satisfies neither the
“performance” nor the “prejudice” prong of the two-part test
enunciated in Strickland. Petitioner fails to state what
additional inquiry counsel should have conducted or what Chaffin’s
responses would have been. Furthermore, the record, including the
trial transcript, demonstrates that no juror’s name or picture had
appeared in the paper. The court and counsel accepted Chaffin’s
18
denials and Chaffin’s, Ransom’s and Dabney’s assurances that they
could keep an open mind and had yet to determine what penalty
petitioner should receive. Thus, petitioner has failed to
demonstrate that counsel’s performance was deficient or that there
is a reasonable probability that, but for counsel’s alleged errors,
the result of the proceeding would have been different.
In a portion of claim (VIII)(b), petitioner alleges he was
denied the effective assistance of counsel because counsel failed
to object to petitioner’s absence during the questioning of Chaffin
or failed to obtain a waiver from petitioner regarding his presence
in violation of petitioner’s rights under Code § 19.2-259 and the
Sixth and Fourteenth Amendments. Petitioner contends he would
never have waived his appearance at the hearing, and, if he had
been present, would have “insisted counsel question the jurors
further and request a mistrial.”
The Court holds that this portion of claim (VIII)(b) fails to
satisfy the “prejudice” prong of the two-part test enunciated in
Strickland. The record, including the trial transcript and the
affidavit of counsel, demonstrates that counsel waived petitioner’s
presence at the hearing and that counsel did not believe petitioner
was needed, as counsel wanted the court to address the matter
immediately, and did not believe petitioner’s presence would have
aided the inquiry. See Kentucky v. Stincer, 482 U.S. 730, 745
(1987) (holding a defendant has the right to be present at critical
stages of the criminal proceeding if his presence would contribute
19
to the fairness of the procedure). The record, including the trial
transcript and the affidavit of counsel, demonstrates that counsel
agreed to speak with petitioner and that counsel would revisit the
issue with the court if petitioner had any concerns; petitioner did
not. Petitioner has failed to show that his presence at the
hearing would have aided counsel because petitioner has not
proffered what additional questions he contends counsel should have
asked or what the responses would have been. Thus, petitioner has
failed to demonstrate that there is a reasonable probability that,
but for counsel’s alleged errors, the result of the proceeding
would have been different.
In another portion of claim (VIII)(b), petitioner alleges he
was denied the effective assistance of counsel because counsel
failed to object to the court’s finding that its instructions to
the jury had not been breached.
The Court holds that this portion of claim (VIII)(b) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. The record, including the trial
transcript, demonstrates that the court instructed the jury not to
talk to anyone or to read, watch, or listen to any news about the
trial. During the inquiry, Chaffin informed the court that she had
followed the instructions. At no other point in the trial was the
court ever presented with evidence that any other member of the
jury had not complied with the court’s instructions. Petitioner
has failed to present any such evidence. Thus, petitioner has
20
failed to demonstrate that counsel’s performance was deficient or
that there is a reasonable probability that, but for counsel’s
alleged errors, the result of the proceeding would have been
different.
In another portion of claim (VIII)(b), petitioner alleges he
was denied the effective assistance of counsel because counsel
failed to memorialize in a transcript the discussions with and
about Chaffin for petitioner to review. Petitioner contends that
the transcript does not contain the entirety of the inquiry.
The Court holds that this portion of claim (VIII)(b) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. The record, including the trial
transcript and the affidavit of counsel, demonstrates that the
court offered to have a transcript prepared if one was needed to
aid counsel in discussions with petitioner about the hearing.
However, no transcript was needed as counsel informed petitioner
about the hearing before court reconvened and petitioner stated
that he had no concerns about any particular juror or the jury in
general. Petitioner fails to state how a transcript of the hearing
would have aided his discussions with counsel or would have altered
the court’s handling of the matter. Furthermore, petitioner fails
to state the basis for his assertion that the transcript contained
in the record is incomplete, fails to provide evidence to verify
this assertion, and fails to proffer what he contends took place
but was not recorded. Thus, petitioner has failed to demonstrate
21
that counsel’s performance was deficient or that there is a
reasonable probability that, but for counsel’s alleged errors, the
result of the proceeding would have been different.
In a portion of claim (IX), petitioner alleges he was denied
the effective assistance of counsel at the sentencing phase of
trial because counsel presented only limited testimony, which
failed to demonstrate how petitioner’s life experiences affected
his personal and moral development and culpability, and which
failed to “provide a comprehensive and accurate picture of
[petitioner’s] life.” Petitioner contends that counsel failed to
present evidence of the “poverty, chaos, neglect and toxic
environment” in which petitioner was raised. In support of this
claim, petitioner presents affidavits from petitioner’s father,
mother, sister, half-sisters, half-brother, cousin, uncle, aunt,
grandmother, Dandridge, petitioner’s case manager, petitioner’s
probation officer, and a director of a community center. These
potential witnesses state that they were available had counsel
attempted to contact them and that they would have testified
concerning petitioner’s addiction to drugs, the physical and sexual
abuse petitioner was subjected to as a child by his father and
half-brother, the absence of petitioner’s parents for portions of
his childhood, and the environment of drugs and crime petitioner
was exposed to where he lived.
The Court holds that this portion of claim (IX) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
22
test enunciated in Strickland. The record, including the trial
transcript, demonstrates that counsel presented the same
information through the testimony of petitioner’s mother and
sister. “[C]ounsel’s ‘decision not to seek more’ mitigating
evidence from [petitioner’s] background ‘than was already in hand’
[falls] ‘well within the range of professionally reasonable
judgments.’ ” Bobby v. Van Hook, 558 U.S. ___, 130 S.Ct. 13, 19
(2009) (quoting Strickland, 466 U.S. at 699). Additionally,
petitioner is unable to show that he suffered any prejudice as a
result of counsel not interviewing the additional witnesses as any
testimony they would have provided would have added no new relevant
information at sentencing. Id. Thus, petitioner has failed to
demonstrate that counsel’s performance was deficient or that there
is a reasonable probability that, but for counsel’s alleged errors,
the result of the proceeding would have been different.
In another portion of claim (IX), petitioner alleges he was
denied the effective assistance of counsel at the sentencing phase
of trial because counsel failed to present documentary evidence of
the abuse petitioner suffered as a child, which would have
corroborated the testimony and other evidence that was presented.
In support of this claim, petitioner references a 1996 pre-sentence
report, a 2000 pre-sentence report, a 2004 intake report in which
both petitioner and his grandmother discussed the abuse, and a
photograph that showed the difference in size between himself and
the half-brother who sexually abused him.
23
The Court holds that this portion of claim (IX) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. The record, including the affidavit
of counsel, demonstrates that petitioner did not want to testify
about the abuse and counsel had no other basis upon which he could
introduce the otherwise hearsay statements contained in the
reports. Furthermore, this information was cumulative of the
testimony provided by the mother and sister about the physical
abuse done by petitioner’s father and the sexual abuse at the hands
of petitioner’s half-brother. Thus, petitioner has failed to
demonstrate that counsel’s performance was deficient or that there
is a reasonable probability that, but for counsel’s alleged errors,
the result of the proceeding would have been different.
In another portion of claim (IX), petitioner alleges he was
denied the effective assistance of counsel at the sentencing phase
of trial because counsel failed to present any evidence that
petitioner suffers from post-traumatic stress disorder (PTSD) as a
result of his upbringing. In support of this claim, petitioner
provides an affidavit from petitioner’s case manager from 2004-05,
which stated that dealing with PTSD issues was one of petitioner’s
goals. Petitioner also provided records that note that petitioner
suffers from sleeping disorders and affidavits from Drs. David
Lisak and Mark Cunningham that petitioner has symptoms of PTSD.
The Court holds that this portion of claim (IX) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
24
test enunciated in Strickland. Petitioner fails to provide any
evidence to show that he has ever been diagnosed with having PTSD
by anyone qualified to make such a diagnosis. The record,
including the affidavit of counsel, demonstrates that there was no
admissible evidence that petitioner suffered from PTSD. Thus,
petitioner has failed to demonstrate that counsel’s performance was
deficient or that there is a reasonable probability that, but for
counsel’s alleged errors, the result of the proceeding would have
been different.
In another portion of claim (IX), petitioner alleges he was
denied the effective assistance of counsel because counsel failed
to present any expert testimony to explain petitioner’s drug use
and the impact it had on petitioner’s “moral culpability and
behavior.” Petitioner claims that Drs. Lisak and Cunningham could
have explained that petitioner’s early use of drugs stemmed from
either the abuse he suffered or from modeling the behavior of the
adults in his life who were using drugs, that drugs become a
primary motivator in the life of a traumatized child, and that PCP
is a drug used by abuse survivors.
The Court holds that this portion of claim (IX) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. The record, including the affidavit
of counsel and the trial transcript, demonstrates that Dr. Lisak’s
videotaped deposition was played for the jury. Dr. Lisak opined
generally regarding the effects of physical and sexual abuse and
25
substance abuse on children. Dr. Lisak also testified that he
would not be surprised to learn after hearing about the experiences
petitioner had as a child, that petitioner had murdered several
people in a relatively short period of time. Dr. Lisak, however,
had not personally evaluated petitioner. Furthermore, petitioner
repeatedly told counsel that drugs were not to blame for his
actions because petitioner knew what he was doing. Thus,
petitioner has failed to demonstrate that counsel’s performance was
deficient or that there is a reasonable probability that, but for
counsel’s alleged errors, the result of the proceeding would have
been different.
In another portion of claim (IX), petitioner alleges he was
denied the effective assistance of counsel because counsel failed
to present evidence of petitioner’s redeeming qualities and the
attempts petitioner made to improve himself. In support of this
claim, petitioner provides information that while petitioner was in
a pre-release center in Maryland in 2004 and 2005 petitioner had no
infractions, never failed a drug test, was a role model for other
prisoners, and did well on work release. Petitioner also provides
information that, days before the murders, he attempted to find
work and volunteered to fix a furnace in a church. Petitioner
contends that this information would have provided a more complete
picture of his life and would have made a compelling case for a
life sentence.
26
The Court holds that this portion of claim (IX) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. The record, including the affidavit
of counsel and the trial transcript, demonstrates that counsel was
never made aware of any witnesses from the church. On the other
hand, counsel was aware of petitioner’s employment and school
records but found nothing that would help petitioner’s mitigation
case. Counsel only presented evidence of petitioner’s positive
character when it could be placed in context, such as the testimony
from the community relations sergeant for the City of Richmond’s
Sheriff Office that petitioner would speak to school children about
staying out of trouble. Petitioner has failed to show that even if
the information he raised had been presented it would have resulted
in petitioner only receiving a life sentence for the brutal murders
he admitted to committing. Thus, petitioner has failed to
demonstrate that counsel’s performance was deficient or that there
is a reasonable probability that, but for counsel’s alleged errors,
the result of the proceeding would have been different.
In another portion of claim (IX), petitioner alleges he was
denied the effective assistance of counsel because counsel failed
to present expert testimony to aid the jury in assessing the
mitigating evidence and petitioner’s background and relating it to
the impact it had on petitioner’s “moral culpability.” Petitioner
contends that Dr. Cunningham could have provided testimony
regarding petitioner’s life experiences and his behavior by showing
27
the jury studies and scientific literature on the effects
petitioner’s adverse background and substance abuse had on his
behavior and development.
The Court holds that this portion of claim (IX) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. The record, including the affidavit
of counsel and the trial transcript, demonstrates that Dr. Lisak’s
videotaped deposition played for the jury included his expert
testimony regarding the relationship between childhood abuse and
its later impact on the development of people and violence in men,
the factors that would predict if a person would be violent, and
the studies that have been done. Petitioner has failed to show
that even if the information he contends Dr. Cunningham would have
testified about were presented it would have resulted in petitioner
receiving a different sentence than the one he received. Thus,
petitioner has failed to demonstrate that counsel’s performance was
deficient or that there is a reasonable probability that, but for
counsel’s alleged errors, the result of the proceeding would have
been different.
In claim (X), petitioner alleges that the cumulative character
of counsel’s performance and the resulting prejudice deprived
petitioner of the effective assistance of counsel.
The Court holds that petitioner’s claim (X) is without merit.
As addressed previously, petitioner has failed to demonstrate
prejudice as a result of counsel’s alleged errors. “Having
28
rejected each of petitioner’s individual claims, there is no
support for the proposition that such actions when considered
collectively have deprived petitioner of his constitutional right
to effective assistance of counsel.” Lenz v. Warden, 267 Va. 318,
340, 593 S.E.2d 292, 305, cert. denied, 542 U.S. 953 (2004).
III.
Upon further consideration, petitioner’s Motion for Leave to
Supplement His Appendix and the respondent’s Motion for Leave to
File Supplemental Affidavits are granted. Petitioner’s Motion for
an Evidentiary Hearing, Motion for Discovery, Motion to Strike the
Warden’s Affidavit, and notice regarding the warden’s Motion to
Dismiss are denied. Respondent’s Motion to Strike Affidavits is
denied. Respondent’s Motion to Strike Appendix Entries is denied
in part with regard to Dr. Lisak’s affidavit, but granted in part
with regard to Judith A. McClendon’s affidavit and the May 26, 2006
letter from John B. Boatwright, III. Respondent’s Motion for Leave
to File a Supplemental Motion in response is granted in part with
regard to the supplemental response to the portion of claim (IX)
involving Dr. Lisak’s affidavit and is denied in part as to the
respondent’s remaining supplemental responses.
IV.
For these reasons, a limited grant of the writ of habeas corpus
shall issue to remand petitioner’s convictions under Code §§ 18.2-
31(7) and (8) to the Circuit Court for the City of Richmond. The
remainder of the petition is dismissed.
29
This order shall be published in the Virginia Reports. The
Clerk of this Court shall certify copies of this order to counsel
for the petitioner, to the respondent, to the Clerk of the Circuit
Court of the City of Richmond, and to the Attorney General of
Virginia, which certification shall have the same force and effect
as if a writ of habeas corpus were formally issued and served.
A Copy,
Teste:
Patricia L. Harrington, Clerk
30