VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Friday, the 15th day of
January, 2010.
Ivan Teleguz, Petitioner,
against Record No. 080760
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 April 21, 2008, and the respondent’s motion to dismiss, the
Court is of the opinion that the motion should be granted and the
writ should not issue.
Ivan Teleguz was convicted in the Circuit Court of Rockingham
County of capital murder for hire. Finding that the Commonwealth
had proven the aggravating factors of "future dangerousness" and
"vileness" beyond a reasonable doubt, see Code § 19.2-264.2, the
jury fixed Teleguz’s sentence at death. The trial court sentenced
Teleguz in accordance with the jury verdict, and this Court
affirmed Teleguz’s conviction and sentence. Teleguz v.
Commonwealth, 273 Va. 458, 466-67, 643 S.E.2d 708, 714 (2007),
cert. denied, 552 U.S. 1191 (2008).
In claim (I), petitioner alleges he is actually innocent.
The Court holds that claim (I) is barred because assertions of
actual innocence are outside the scope of habeas corpus review,
which concerns only the legality of the petitioner’s detention.
Lovitt v. Warden, 266 Va. 216, 259, 585 S.E.2d 801, 826-27 (2003).
In claim (II), petitioner alleges he was denied the effective
assistance of trial counsel because counsel failed to challenge the
Commonwealth’s alleged motive for the crime and failed to "offer a
viable alternative theory." Petitioner contends that the
Commonwealth’s theory that petitioner had his ex-girlfriend,
Stephanie Sipe, killed because he was upset about paying child
support could have been rebutted by evidence that Sipe’s death
would not have impacted petitioner’s child support obligation.
Petitioner contends that counsel should have called petitioner’s
child support case manager to testify that petitioner paid adequate
child support both before and after Sipe’s murder. Petitioner
further contends that counsel failed to present evidence that
petitioner’s "former friends and associates" had motive and
opportunity to kill Sipe, or that Aleksey Safanov and Gene Popov
knew of Sipe’s "family drug activity," providing another reason for
Safanov and Popov’s involvement in Sipe’s murder.
The Court holds that claim (II) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984).
Petitioner fails to provide affidavits from any of the witnesses he
contends counsel should have called; fails to allege that, had
these issues been presented, the jury would have found him not
2
guilty; and fails to allege that he knew that he would still be
obligated to pay child support if Sipe died. Furthermore, counsel
elicited testimony from a key Commonwealth’s witness that Sipe was
involved with drugs, and that petitioner was not solely upset about
his child support obligation. Notably, counsel also raised the
child support issue during closing argument, stating, "It is common
sense to know that if the mother of a child was killed . . . child
support is still owed to a child," thus touching on the very issue
petitioner now alleges counsel failed to raise. 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 (III), petitioner alleges he was denied the effective
assistance of trial counsel because counsel failed to present an
alibi defense. Petitioner contends that under the Commonwealth’s
theory of the case, he could not have left Harrisonburg on the day
of the murder before 4:15 a.m. Petitioner alleges that the trip
from Harrisonburg to Ephrata, Pennsylvania, where petitioner
traveled upon leaving Virginia, takes three hours and fifty-three
minutes. Petitioner contends that he provided investigators with a
receipt from an Ephrata Wal-Mart for items he purchased at
approximately 8:14 a.m. after he had allegedly taken a shower and
3
gotten dressed at his home in Lancaster, Pennsylvania, which is
just south of Ephrata. Petitioner contends that he informed
counsel of this receipt, which would have demonstrated that he
could not have left Harrisonburg as late as 4:15 a.m., but counsel
unreasonably failed to request it or petitioner’s bank records.
The Court holds that claim (III) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. Leaving Harrisonburg at 4:15 a.m. and
making a purchase at the Wal-Mart in Ephrata at approximately 8:14
a.m. is not implausible, particularly in light of petitioner’s
contention that the trip takes under four hours if obeying all
speed limits. Furthermore, petitioner does not allege how the
outcome would have been different had the receipt been entered into
evidence. Exactly when petitioner left Virginia was not relevant
to whether he had hired the killers, because no one contended that
petitioner was at the scene of the murder when it took place or
otherwise participated in the actual killing. Thus, petitoner 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 (IV)(A), petitioner alleges he was denied the
effective assistance of trial counsel because counsel failed to
4
impeach petitioner’s co-defendant’s account of the time of Sipe’s
death. Michael Hetrick testified that he killed Sipe early in the
morning, but petitioner contends that several witnesses reported
seeing Sipe alive later that afternoon and early evening.
Petitioner further contends that testimony from these witnesses
would have been consistent with the medical examiner’s opinion that
Sipe died at 8:00 p.m., and with evidence that Sipe usually gave
her son a bath in the afternoon or early evening, and that she was
giving her son a bath when Hetrick killed her.
The Court holds that claim (IV)(A) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. Sipe’s precise time of death was not
relevant to whether petitioner hired the killers, and petitioner
does not allege how presenting these issues would have changed the
outcome at trial. Furthermore, such evidence would have been
cumulative of the medical examiner’s testimony that Sipe likely
died around 8 o’clock in the evening. In addition, the record,
including the trial transcripts, demonstrates that counsel
thoroughly cross-examined petitioner’s co-defendants. 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.
5
In claim (IV)(B), petitioner alleges he was denied the
effective assistance of trial counsel because counsel failed to
impeach petitioner’s co-defendants’ testimony that petitioner had
solicited them to kill Sipe at Dave Everhart’s birthday party in
June 2001. Petitioner contends that counsel unreasonably failed to
call Latesha and Dave Everhart, who could have testified that
petitioner was not at this party.
The Court holds that claim (IV)(B) fails to satisfy the
"prejudice" prong of the two-part test enunciated in Strickland.
Although petitioner alleges the Everharts would have contradicted
Hetrick’s testimony that petitioner was at the birthday party,
petitioner does not demonstrate, or even allege, how that testimony
would have changed the outcome of the trial. 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 (IV)(C), petitioner alleges he was
denied the effective assistance of trial counsel because counsel
failed to impeach Hetrick’s testimony that Hetrick called
petitioner after the murder to confirm that the killing had taken
place and to arrange for his payment. Petitioner contends that
there is no evidence that he received a phone call at the phone
number attributed to him by the Commonwealth, or that either
6
Hetrick or Edwin Gilkes had a cellular phone, as Hetrick had
testified. Furthermore, the Commonwealth did not introduce any
phone records. In support of his claim, petitioner provides a
variety of phone records purportedly for the number(s) attributed
to him by the Commonwealth, which he contends do not show a phone
call was received from Hetrick "on or about July 23-24, 2001."
Petitioner contends further that counsel should have challenged
both the inconsistencies between Hetrick’s testimony and his
statement to police, and Hetrick’s assertion that petitioner paid
him on the Tuesday following the murder, as petitioner alleges he
was either at work or being questioned by police that day.
The Court holds that this portion of claim (IV)(C) satisfies
neither the "performance" nor the "prejudice" prong of the two-part
test enunciated in Strickland. The record, including the trial
transcripts, demonstrates that counsel cross-examined Hetrick about
inconsistencies in Hetrick’s testimony and his prior statements to
police. Furthermore, Hetrick’s testimony provided evidence that
Hetrick and Gilkes had a cellular phone, which Hetrick believed
they used to contact petitioner. The phone records provided by
petitioner do not include July 24, 2001, and do not identify with
clarity the source of the phone calls or the recipient. These
records, however, do reflect that two calls were received from
unknown cellular numbers on July 23, 2001. Therefore, the evidence
7
petitioner now provides does not demonstrate that Hetrick did not
call petitioner, as he had testified. Petitioner does not allege
how presenting such evidence would have changed the outcome of the
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 (IV)(C), petitioner alleges he was
denied the effective assistance of trial counsel because counsel
failed to impeach Hetrick’s testimony that petitioner picked him up
on Saturday night at 8:00 p.m. on the night before the murder.
Petitioner contends that counsel should have called Mike Millay to
testify that petitioner was with Millay at 8:00 p.m. on that night.
The Court holds that this portion of claim (IV)(C) satisfies
neither the "performance" nor the "prejudice" prong of the two-part
test enunciated in Strickland. The record, including Millay’s
affidavit and the trial transcript, demonstrates that Millay stated
that he and petitioner parted ways between 9:00 p.m and 10:00 p.m.,
and Hetrick testified that petitioner picked him up after dark,
"approximately nine, ten o’clock at night, possibly." Therefore,
presenting testimony that petitioner was with Millay at 8:00 p.m.
the night before the murders would not have changed the outcome of
the proceedings. Thus, petitioner has failed to demonstrate that
8
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 trial counsel because counsel failed to impeach
Aleksey Safanov, who testified that petitioner had asked him to
kill Sipe a few months before Sipe was murdered. Petitioner
contends that trial counsel should have questioned Safanov about
his prior inconsistent statements, the federal gun and drug
trafficking charges against him arising from a scheme into which he
had "temporarily lured" petitioner, his extensive criminal record,
and the Commonwealth’s indication that he would receive leniency in
exchange for his testimony. Petitioner alleges trial counsel had
documents and an audiotape that could have been used to clarify
these issues and effectively impeach Safanov, which petitioner
contends would have exposed why Safanov and his associates would
have wanted to falsely incriminate petitioner.
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 trial
transcripts, demonstrates that counsel thoroughly cross-examined
Safanov in an attempt to impeach his credibility. Specifically,
counsel questioned Safanov about his criminal convictions and the
9
pending charges against him, including the federal gun trafficking
charges, and whether he was testifying because he hoped he would
receive leniency in those matters. Safanov acknowledged that he
had contemplated implicating petitioner in Sipe’s murder in order
to receive a beneficial plea deal. Questioning Safanov in further
detail about his federal gun trafficking charges would have
emphasized petitioner’s involvement in illegal weapons
distribution, and could have lent credence to Hetrick’s belief that
petitioner was a member of the "Russian Mafia." Therefore,
presenting such evidence "would have represented a ‘two edged
sword’ that counsel often confront when constructing the strategy
most likely to assist rather than harm a client." Shaikh v.
Johnson, 276 Va. 537, 548, 666 S.E.2d 325, 330 (2008). Counsel
also questioned Safanov about his inability to remember the
specific time and place of the conversation in which he alleged
petitioner had approached him about killing Sipe. Petitioner fails
to demonstrate what testimony counsel would have elicited had he
conducted additional cross-examination, and fails to allege how
further exploration of these areas would have altered the outcome
of the proceedings. 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.
10
In claim (VI), petitioner alleges he was denied the effective
assistance of trial counsel because counsel failed to present
testimony from FBI Agent Levphuk and from a confidential informant
used to implicate Safanov in the federal gun trafficking case.
Petitioner contends that testimony from Levphuk and the
confidential informant would have effectively attacked Safanov’s
conduct, character, and credibility.
The Court holds that claim (VI) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. Petitioner has failed to identify the
confidential informant, proffer the testimony he contends the
witnesses would have provided, or provide affidavits from Levphuk
or the confidential informant identifying the testimony. 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 (VII), petitioner alleges he was denied the effective
assistance of trial counsel because counsel failed to effectively
cross-examine Detective Whitfield, one of the lead investigators of
Sipe’s murder. Petitioner contends that Whitfield should have been
asked if his departure from the police department before
petitioner’s trial was a result of his taping a conversation with
11
an FBI agent without permission; whether Whitfield understood the
ethical implications of taping such a conversation; if Levphuk had
promised him anything; whether the Commonwealth took any measures
to ensure Safanov was reliable and not involved in the murder; and
why the Commonwealth had sought Safanov’s phone records.
The Court holds that claim (VII) satsfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including the trial
transcripts, demonstrates that Whitfield was cross-examined
extensively. Petitioner has not alleged what answers Whitfield
would have provided to additional questions. 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), petitioner alleges the
Commonwealth withheld exculpatory evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963). Petitioner contends that the
Commonwealth did not provide counsel with the Wal-Mart receipt,
which petitioner contends he gave to Detective Whitfield.
Petitioner alleges the receipt would have established his alibi
that he was in Ephrata, Pennsylvania at a time inconsistent with
the Commonwealth’s theory of the case.
12
The Court holds that this portion of claim (VIII) 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. 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 (VIII), petitioner alleges the
Commonwealth violated its Brady obligation by failing to disclose
information regarding a meeting that petitioner contends occurred
between an Assistant United States Attorney and Safanov, and
regarding follow-up correspondence, which petitioner contends
occurred between Detective Whitfield and Levphuk. Petitioner
argues that such information would have been valuable impeachment
evidence. In support of his claim, petitioner references a
transcript of an audiotape found in defense counsel’s file, in
which Detective Whitfield can be heard asking Levphuk to help him
find Safanov.
The Court holds that petitioner has failed to establish that a
Brady violation has occurred. Petitioner has not established that
the alleged withheld evidence he contends exists, that it contained
exculpatory information, or that it would have been valuable for
impeachment purposes.
In claim (IX), petitioner alleges he was denied the effective
13
assistance of trial counsel because counsel failed to request the
transcript, notes or report of the alleged meeting between Levphuk
and Safanov, or any subsequent correspondence between Detective
Whitfield and Levphuk.
The Court holds that claim (IX) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. Petitioner has not established that a
meeting between Levphuk and Safanov actually took place. He has
not provided information regarding the substance of the alleged
meeting or affidavits from Levphuk or Safanov demonstrating that
they met. 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 the Commonwealth knowingly
created "false impressions" that petitioner was a member of the
"Russian Mafia" and was present at the Everharts’ party. In
addition, petitioner contends the Commonwealth knowingly presented
false testimony by making Safanov their "star" witness despite
knowing that he was not credible.
The Court holds that claim (X) 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
14
habeas corpus. Slayton, 215 Va. at 29-30, 205 S.E.2d at 682.
In claim (XI)(A), petitioner alleges he was denied the
effective assistance of trial counsel because counsel failed to
make a successful objection to the references to petitioner’s
alleged ties to the "Russian Mafia." Petitioner acknowledges that
counsel argued that such evidence should not be admitted because
petitioner was not Russian and there was no alleged connection
between the "Russian Mafia" and the crime itself. Petitioner
contends, however, that counsel did not attack the Commonwealth’s
argument that references to the "Russian Mafia" were not being
offered for their truth, and should have argued that the trial
court should weigh the probative value of the evidence against its
likely prejudicial effect. Furthermore, counsel should have
pointed out that no reference to the "Russian Mafia" was necessary
for Hetrick to explain why he feared petitioner. Petitioner
contends that, had counsel made proper objections, the trial court
would have limited the references to the "Russian Mafia."
The Court holds that claim (XI)(A) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including pre-trial motions,
transcripts and orders, demonstrates that trial counsel filed a
motion in limine seeking to prohibit the Commonwealth from
introducing evidence or making comments concerning the "Russian
15
Mafia." Contrary to petitioner’s claim, counsel argued in the
motion that the comments were not relevant, were highly
prejudicial, and that the probative value was "substantially
outweighed" by the prejudicial impact. Additionally, at the
hearing on the motion in limine, counsel argued that references to
the "Russian Mafia" should be excluded because petitioner is
Ukrainian; has no connection to the "Russian Mafia" or other
criminal organization; any connection was irrelevant to the
Commonwealth’s alleged motive for the murder; and such references
would "inflame the jury’s passion and focus them on issues that
[we]re not at hand in this case." Again contrary to petitioner’s
claim, counsel also argued that Hetrick could testify concerning
why he was "scared or scared of retaliation" without referencing
the "Russian Mafia." 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 (XI)(B), petitioner alleges he was denied the
effective assistance of trial counsel because counsel failed to
move for a mistrial after a juror asked the bailiff whether
petitioner knew her identity or location. Petitioner contends that
the question revealed that the jurors were no longer following the
trial court’s instructions and did not intend to base their verdict
16
solely on the evidence and the law.
The Court holds that claim (XI)(B) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including the trial
transcripts, demonstrates that the trial court assured the jurors
that the law requires that defense counsel be provided with the
jurors’ names, addresses, and occupations, but that "[a]s a matter
of course, attorneys do not provide copies of this master list to
their clients." This correct statement provided no basis for a
mistrial. Furthermore, the instruction should have sufficed to
quiet the jurors’ concern, and jurors are presumed to follow the
instructions of the trial court. Muhammad v. Commonwealth, 269 Va.
451, 524, 619 S.E.2d 16, 58 (2005). 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 (XI)(C), petitioner alleges he was denied the
effective assistance of trial counsel because counsel unreasonably
failed to interview jurors and present a post-trial motion arguing
that jurors were so focused on the "Russian Mafia" that they feared
for their lives. Petitioner contends that jurors feared personal
repercussions as a result of their involvement in the case, and
counsel should have discovered this information and presented it to
17
the trial court or included it in the argument on direct appeal.
The Court holds that claim (XI)(C) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. Virginia courts "have adhered strictly
to the general rule that the testimony of jurors should not be
received to impeach their verdict." Caterpillar Tractor Co. v.
Hulvey, 233 Va. 77, 82, 353 S.E.2d 747, 751 (1987). "Moreover, the
unanimous verdict is the best evidence of each juror’s opinion of
the case." Id. Trial counsel’s "failure" to interview jurors and
present a post-trial motion arguing the jury was unduly influenced
as a result of the testimony and evidence at trial was, therefore,
a reasonable one. Furthermore, there is no evidence properly
before this Court to support petitioner’s claim that jurors were so
focused on the "Russian Mafia" that they feared for their lives.
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 (XI)(D), petitioner alleges he was denied the
effective assistance of trial counsel because counsel failed to
rebut evidence regarding petitioner’s connection to the "Russian
Mafia" by asking Dan Comer about his belief that there was no
"Russian Mafia" and that petitioner was not a member.
18
The Court holds that claim (XI)(D) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. Petitioner has failed to present an
affidavit from Comer to verify that Comer would have tesified as
petitioner contends. Furthermore, petitioner fails to articulate
how Comer’s alleged "belief" would have been relevant or
admissible. Thus, petitioner has failed to demonstrate that
counsel’s peformance was deficient or that, but for counsel’s
alleged errors, the result of the proceeding would have been
different.
In claim (XII), petitioner alleges he was denied the effective
assistance of trial counsel because counsel failed to move for a
mistrial when the Commonwealth "repeatedly and willfully violated
the trial court’s order not to make reference to Teleguz’s alleged
lack of emotion during pre-custodial questioning." Petitioner
contends also that counsel’s failure to present the testimony of a
"cultural expert" to show that outward displays of emotion are
unacceptable in Ukrainian society exacerbated the Commonwealth’s
suggestion that petitioner lacked remorse. Petitioner asserts that
these references were prejudicial and there is a reasonable
likelihood the trial court would have granted a mistrial had
counsel moved for one.
The Court holds that claim (XII) satisfies neither the
19
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including the trial
transcripts, pre-trial motions and orders of the trial court,
demonstrates that the trial court did not rule that the
Commonwealth could not refer to petitioner’s general "lack of
emotion." Rather, the trial court initially denied petitioner’s
motion in limine to exclude evidence of petitioner’s pre-custodial
silence in response to questioning. The trial court further ruled
that, before such evidence could be elicited, the court would
revisit the issue outside the presence of the jury. Thereafter,
during opening statements, the Commonwealth informed the jury that
it intended to present evidence that petitioner showed no remorse
when he was informed that his ex-girlfriend had been murdered. The
trial court later ruled that petitioner’s "lack of remorse" upon
being informed of Sipe’s murder had constituted an invocation of
his right to remain silent and barred the Commonwealth from
presenting such evidence at trial. The Commonwealth’s last
reference to petitioner’s "lack of remorse" concerned only
petitioner’s demeanor during trial which was visible to the jury
and did not implicate petitioner’s right to remain silent.
Petitioner has, therefore, failed to establish any violation of the
trial court’s ruling, or any valid legal basis upon which counsel
could have objected. Furthermore, petitioner fails to proffer any
20
evidence to support his theory that a "cultural expert" would have
testified as he contends. 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 (XIII)(A), petitioner alleges he was denied the
effective assistance of trial counsel because counsel failed to
object to the Commonwealth’s "improper and prejudicial" statements
during closing argument. Petitioner contends that the Commonwealth
indicated that petitioner could arrange killings through the
"Russian Mafia" even if incarcerated, and that this suggestion
invited the jurors to decide the case based upon fear for their own
personal safety and not upon the law and the evidence. Petitioner
asserts that there is a reasonable likelihood that the result of
the proceeding would have been different had the jurors not been in
fear for their safety and for the safety of their families.
The Court holds that claim (XIII)(A) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including the trial
transcripts, demonstrates that during closing argument, the
Commonwealth’s attorney stated that petitioner was a future danger
because "he can pick up a phone . . . and dial up a murder because
he can call another Aleksey Safanov or another Edwin Gilkes or
21
another Michael Hetrick." These were the facts of the case, not
"improper" statements, and petitioner’s assertion that the
Commonwealth referenced the "Russian Mafia" during this argument is
unsupported by the record. The Commonwealth further argued that
the "community" and petitioner’s son needed protection from his
future dangerousness. Petitioner mischaracterizes these comments
as a plea to the jurors’ sense of personal safety rather than what
they actually were: specific references to the community where the
murder took place and the child, who was in another room as his
mother was killed. Furthermore, in petitioner’s direct appeal,
this Court specifically found "that the prosecutor's statements
were not addressed to the jurors’ safety and security, and even if
that was a fair inference, the record does not support a conclusion
that the jury was concerned about the issue. Even assuming that the
jurors harbored sufficient concern about their safety the record
does not reveal that such concern influenced their decision to
recommend the death penalty." Teleguz, 273 Va. at 495, 643 S.E.2d
at 731. 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 (XIII)(B), petitioner alleges he was denied the
effective assistance of trial counsel because counsel failed to
22
object when the Commonwealth referenced the "worth" of the victim’s
life during closing argument. Petitioner argues that because the
jury had questioned the consequences of failing to reach a
unanimous verdict, this was a close case, in which such arguments
are prejudicial.
The Court holds that claim (XIII)(B) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. This Court has previously held that
"victim impact testimony is relevant to punishment in a capital
murder prosecution in Virginia." Weeks v. Commonwealth, 248 Va.
460, 476, 450 S.E.2d 379, 389 (1994). The record, including the
trial transcripts, demonstrates that the Commonwealth’s comment
about the "worth" of the victim’s life was based upon victim impact
evidence already in the record. Petitioner does not argue that the
comments, standing alone, were factually inaccurate or unsupported
by the record. 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 (XIV), petitioner alleges he was denied the effective
assistance of counsel because counsel failed to ensure that the
jurors were properly instructed. Petitioner proffers an affidavit
from a juror indicating that the juror misunderstood the
23
instructions and believed that, upon a finding of both aggravating
factors, death was presumed the appropriate sentence. Petitioner
contends that counsel should have questioned the juror and raised
this issue post-trial and on appeal.
The Court holds that claim (XIV) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. Petitioner demonstrates only that a
juror misunderstood the instructions, but he does not allege that
the jurors were improperly instructed. Furthermore, the record,
including the trial transcript, written jury instructions, and
verdict forms, demonstrates that the jury was properly instructed.
See Prieto v. Commonwealth, 278 Va. 366, 682 S.E.2d 910 (2009).
Jurors are presumed to follow the trial court’s instructions.
Muhammad, 269 Va. at 524, 619 S.E.2d at 58. 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 (XV), petitioner alleges he was denied the effective
assistance of trial counsel because counsel failed to present the
testimony of petitioner’s mental health expert at sentencing.
Petitioner contends that the expert would have explained the effect
petitioner’s childhood had on his behavior, and counsel should have
24
informed the trial court about the importance of this testimony in
order to get it admitted. Petitioner further alleges that counsel
should have informed the trial court about a recent decision from
the Circuit Court of the City of Norfolk, allowing a defendant in a
capital murder case to present expert testimony after the trial
court advised the jury that the defendant had failed to cooperate
with the Commonwealth’s expert.
The Court holds that claim (XV) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. Code § 19.2-264.3:1 provides for expert
testimony in support of a claim in mitigation in capital murder
cases relating to the defendant’s history, character, or mental
condition. If a defendant chooses to present such testimony, the
Commonwealth may seek its own evaluation. Code § 19.2-
264.3:1(F)(1). Should the defendant refuse to be evaluated by the
Commonwealth’s expert, the trial court may admit evidence of such
refusal or, in the discretion of the court, bar the defendant from
presenting his expert evidence. Code § 19.2-264.3:1(F)(2). The
record, including the trial transcripts, reveals that petitioner
refused to cooperate with the Commonwealth’s expert and that the
trial court explained to petitioner the ramifications that could
result from refusing to cooperate with the Commonwealth’s expert,
including the potential exclusion of his own expert’s testimony,
25
and provided petitioner with another opportunity to be evaluated by
the Commonwealth’s expert. Petitioner again refused, and the trial
court acted within its discretion in barring petitioner from
presenting expert testimony. Although petitioner alleges trial
counsel should have informed the trial court of a different
jurisdiction’s decision to admit a defendant’s expert’s testimony
despite the defendant’s refusal to cooperate with the
Commonwealth’s expert, petitioner can not demonstrate that such an
argument would have altered the trial court’s exercise of
discretion in this case and does not allege how the sentencing
outcome would have been different had his expert been allowed to
testify. 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 (XVI), petitioner alleges he was denied the effective
assistance of trial counsel because counsel failed to object to the
trial court’s response to the jury’s question regarding the
sentencing option of life imprisonment plus a fine. Petitioner
asserts that the trial court’s response to the jury’s question,
that in all likelihood petitioner would not be able to pay a fine
while incarcerated, indicated that a fine would have no consequence
and essentially limited the jury’s sentencing options.
26
The Court holds that claim (XVI) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including the trial
transcripts, reveals that the trial court informed the jury that,
"[a]s a practical matter a defendant who is incarcerated and is
otherwise without means has no practical means of paying such a
fine. However, if that inmate were to inherit a large sum of money
or in some way come in to a portion of sums of money the
Commonwealth would have a claim on those funds." Jurors are
presumed to follow the instructions of the trial court. Muhammad,
269 Va. at 524, 619 S.E.2d at 58. Furthermore, this response
demonstrated to the jury that a fine would have a consequence, as
any amount of money obtained by the petitioner would be subject to
seizure, did not foreclose the option of fining the petitioner, and
certainly did not improperly limit the jury’s choice as to
sentence. 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 (XVII), petitioner alleges he was denied the
effective assistance of trial counsel because counsel unreasonably
failed to object to the trial court’s response to a juror’s concern
regarding petitioner’s potential access to the juror’s contact
27
information, failed to propose a method to assure jurors that
petitioner did not have access to their personal information, and
failed to request the trial court re-open the evidence so that
petitioner could present testimony regarding the inmate phone
privileges.
The Court holds that claim (XVII) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including the trial
transcripts, demonstrates that the trial court assured the jurors
that the law requires that defense counsel be provided with the
jurors’ names, addresses, and occupations, but that "[a]s a matter
of course, attorneys do not provide copies of this master list to
their clients." Petitioner does not suggest any legal grounds upon
which counsel could have objected to this instruction.
Furthermore, the instruction should have sufficed to quiet the
jurors’ concern, and jurors are presumed to follow the instructions
of the trial court. Muhammad, 269 Va. at 524, 619 S.E.2d at 58.
Petitioner also fails to proffer what evidence would have been
gained from presenting testimony regarding inmate phone privileges.
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.
28
In claim (XVIII), petitioner alleges he was denied the
effective assistance of trial counsel because counsel failed to
insist on a ruling on his motion for a continuance after learning
that Detective Whitfield was prepared to testify that Mark Moore
had identified petitioner as someone he saw leaving Sipe’s
apartment in the days before the murder. Petitioner alleges Moore
was the only witness who placed petitioner near the crime scene
around the time of the murder, and the continuance would have
allowed counsel time to gather evidence to impeach Moore and the
investigator who showed him the photo lineup from which Moore
identified petitioner.
The Court holds that claim (XVIII) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. Petitioner was not charged with being
the actual perpetrator of the wounds inflicted on Sipe. Therefore,
impeaching Moore’s testimony regarding whether petitioner was
present at Sipe’s and his child’s apartment in the days prior to
her murder would not have undermined the testimony that petitioner
had hired others to do the killing. Furthermore, at the time
Detective Whitfield testified that Moore identified petitioner from
a photo lineup, Moore had already testified that he had done the
same. Thus, petitioner has failed to demonstrate that counsel’s
performance was deficient or that there is a reasonable probability
29
that, but for counsel’s alleged errors, the result of the
proceeding would have been different.
In a portion of claim (XIX), petitioner alleges he was denied
the effective assistance of trial counsel because counsel failed to
secure the testimony of two material witnesses: Kimberly Woods and
Jessica Swartz. Petitioner contends that the witnesses would have
testified that Hetrick had bragged about killing other people, had
threatened them, and was comfortable with knives. Petitioner
alleges counsel unreasonably failed to show that Swartz was a
material witness requiring an out-of-state subpoena. Petitioner
further alleges that, after the trial court ruled Woods’ testimony
irrelevant, counsel should have explained that the testimony would
demonstrate that it was likely that Hetrick had decided to kill
Sipe with a knife without petitioner’s suggestion. Petitioner
claims that the testimony would have rebutted the Commonwealth’s
assertion that petitioner planned even the smallest details of the
murder. Petitioner further claims that the testimony would have
rebutted the Commonwealth’s arguments that the vileness of the
crime be imputed to petitioner because he specified the way in
which the crime was to be committed, and that petitioner was more
culpable than Hetrick. Petitioner contends that had this evidence
been admitted, the jury would not have found vileness, or would
have assessed the moral responsibility for the crime differently
30
and rendered a different sentence.
The Court holds that this portion of claim (XIX) satisfies
neither the "performance" nor the "prejudice" prong of the two-part
test enunciated in Strickland. The record, including the trial
transcripts, the pre-trial motions and orders from both the Circuit
Court of Rockingham County and the Pennsylvania court, demonstrates
that both courts accepted petitioner’s proffer that these witnesses
were material. The Pennsylvania court declined to compel Swartz to
travel to Virginia and testify because she would have been caused
an "undue hardship." In response to the trial court’s
determination that a continuance would not be granted to secure
Woods’ presence because her testimony was irrelevant, counsel
argued that her testimony would show that Hetrick had threatened to
kill her before by "cut[ting] her throat," and that this would
demonstrate that the plan to cut Sipe’s throat in the instant case
did not originate with petitioner. Furthermore, as the trial court
held, the phrase "cut your throat" is not a term of art, and simply
because Hetrick threatened to cut Woods’ throat does not mean that
it was Hetrick’s idea alone to cut Sipe’s throat. 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.
31
In another portion of claim (XIX), petitioner alleges he was
denied the effective assistance of appellate counsel because
counsel failed to preserve or adequately brief the issues related
to Woods’ proffered testimony.
The Court holds that this portion of claim (XIX) fails to
satisfy the "prejudice" prong of the two-part test enunciated in
Strickland. Petitioner fails to articulate how Woods’ testimony
would have been admissible, fails to demonstrate that it was
relevant, and fails to proffer the valid legal arguments he
contends counsel should have raised on appeal. Thus, petitioner
has failed to demonstrate that there is a reasonable probability
that, but for counsel’s alleged errors, the result of the appeal
would have been different.
In claim (XX), petitioner alleges he was denied the effective
assistance of trial counsel because counsel failed to present risk
assessment evidence to rebut the claim of future dangerousness
during petitioner’s sentencing hearing. Specifically, petitioner
contends that counsel should have requested an expert on risk
assessment to address the likelihood that petitioner would engage
in violent behavior if sentenced to life imprisonment. Petitioner
alleges that counsel’s decision not to request such an expert was
unreasonable in light of the fact that a risk assessment expert is
routinely appointed in capital cases.
32
The Court holds that claim (XX) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. Petitioner fails to proffer the specific
testimony such an expert would have provided. Furthermore, "a
determination of future dangerousness revolves around an individual
defendant and a specific crime," Porter v. Commonwealth, 276 Va.
203, 249, 661 S.E.2d 415, 438 (2008)(internal quotation marks
omitted), and "what a person may expect in the penal system is not
relevant mitigation evidence," Cherrix v. Commonwealth, 257 Va.
292, 310, 513 S.E.2d 642, 653 (1999). Therefore, the testimony
petitioner alleges counsel should have presented would have been
inadmissible. 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 an unnumbered claim, petitioner alleges that "[a]ll
allegations of error and prejudice are made both as individual and
cumulative error with both individual and cumulative effect."
As addressed previously, petitioner has failed to demonstrate
prejudice as a result of counsel’s alleged errors. "Having
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
33
to effective assistance of counsel." Lenz v. Warden of the Sussex
I State Prison, 267 Va. 318, 340, 593 S.E.2d 292, 305 (2004).
Upon consideration whereof, petitioner’s motions for the
appointment of a risk assessment expert, for the appointment of a
cultural expert, for an evidentiary hearing, to compel disclosure
of discovery and exculpatory information, and to set aside the
conviction and sentence are denied. Upon consideration whereof,
the respondent’s motion "to strike certain materials improperly
submitted as affidavits" is denied. The Court will, however, apply
the appropriate evidentiary rules when considering the
admissibility of the affidavits and of any statements contained in
the affidavits.
Accordingly, the petition is dismissed.
This order shall be published in the Virginia Reports.
A Copy,
Teste:
Patricia L. Harrington, Clerk
34