Johnson v. Tice

PRESENT: All the Justices

GENE M. JOHNSON, DIRECTOR OF THE
VIRGINIA DEPARTMENT OF CORRECTIONS

v. Record No. 070531 OPINION BY
JUSTICE BARBARA MILANO KEENAN
January 11, 2008
DEREK ELLIOTT TICE

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Everett A. Martin, Jr., Judge

In this appeal, we consider whether a circuit court erred

in awarding a writ of habeas corpus based on its holding that

a petitioner was prejudiced by his trial counsel’s failure to

file a motion to suppress the petitioner’s confession. We

also address as a matter of cross-error whether the circuit

court erred in denying the petitioner’s separate claim that

trial counsel were ineffective, thereby causing the petitioner

to suffer prejudice, because trial counsel failed to lay a

proper foundation for the introduction of a certain letter

into evidence at trial.

I. PROCEDURAL HISTORY

In 2003, Derek Elliott Tice was convicted in a jury trial

in the Circuit Court of the City of Norfolk of the capital

murder of Michelle Moore-Bosko, in violation of Code § 18.2-

31(2), and the rape of Michelle Moore-Bosko, in violation of

Code § 18.2-61. The circuit court sentenced Tice to two terms
of life imprisonment.1 The Court of Appeals denied Tice’s

petition for appeal. Tice v. Commonwealth, Record No. 0408-

03-1 (December 23, 2003). This Court likewise refused Tice’s

petition for appeal. Tice v. Commonwealth, Record No. 040160

(October 1, 2004).

In 2005, Tice filed a petition for a writ of habeas

corpus in the Circuit Court of the City of Norfolk (the habeas

court), in which he alleged claims of police and prosecutorial

misconduct and claims of ineffective assistance of counsel.

The habeas court dismissed most of Tice’s claims by order and

held an evidentiary hearing on the remaining claims.

At the evidentiary hearing, Tice alleged that his trial

counsel were ineffective for failing to file a motion to

suppress Tice’s confession on the ground that he had invoked

his right to remain silent. Tice also alleged that his trial

counsel were ineffective for failing to properly introduce

into evidence a letter written by another inmate, Omar A.

Ballard, who had admitted his participation in the crimes for

which Tice was convicted.

1
Tice’s earlier convictions for these offenses were
reversed on appeal by the Court of Appeals, which held that
the jury had not been properly instructed. Tice v.
Commonwealth, 38 Va. App. 332, 563 S.E.2d 412 (2002). The
present opinion discusses only the evidence presented at
Tice’s second trial.

2
 After the evidentiary hearing, the habeas court dismissed

Tice’s claim concerning Ballard’s letter but held that trial

counsel were ineffective in failing to move to suppress Tice’s

confession, because such a motion “would probably have been

granted” on the ground that Tice had invoked his right to

remain silent. The habeas court further held that there was a

“reasonable probability the jury would have acquitted [Tice]

if his confession had not been admitted into evidence.” On

that basis, the habeas court awarded Tice a writ of habeas

corpus.

II. TICE’S CRIMINAL TRIAL

At Tice’s trial, the Commonwealth contended that Tice was

one of several men who had raped and murdered Michelle Moore-

Bosko (Michelle). Tice’s attorneys, however, maintained that

Omar A. Ballard was the sole perpetrator of the crimes

committed against Michelle.

The evidence showed that on July 8, 1997, William A.

Bosko returned to his apartment in Norfolk after a tour

of duty with the United States Navy and found the dead

body of his wife, Michelle. Michelle had died from

manual strangulation and multiple stab wounds to the

chest. The evidence further revealed that Michelle had

suffered “forcible injuries” to her vaginal area.

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 City of Norfolk police officers found a blood-stained,

serrated knife near Michelle’s body. The police also

recovered some DNA samples from Michelle’s vagina and from a

blanket on the bed. Robert Scanlon, a forensic scientist,

testified that Tice was eliminated as the source of this DNA

evidence. Scanlon’s testimony further revealed a very high

correlation between these DNA samples collected at the crime

scene and the DNA sample obtained from Ballard.

The jury also heard the testimony of Joseph Dick, who had

participated in the rapes and murder of Michelle and had

entered into a plea agreement with the Commonwealth. Dick

testified that at the time the crimes against Michelle were

committed, he lived across the hall from Michelle’s apartment

with Danial Williams. Dick stated that on the night of

Michelle’s death, he was present at Williams’ apartment with

Williams and five other men, including Tice, Eric Wilson,

Richard Pauley, Geoffrey Farris, and John Danser.

Dick testified that during a group conversation, he heard

Williams state that he would like to see Michelle’s “panties.”

After further discussion, the seven men knocked on Michelle’s

apartment door, but Michelle directed them to leave.

Dick testified that the men walked to a parking lot where

Ballard, a man Dick did not know, joined the group. According

to Dick, the men, including Ballard, returned to Michelle’s

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apartment and knocked on the door again. Michelle opened the

door, and the eight men forced their way into the apartment

and carried Michelle to the bedroom. Dick testified that each

man assisted in restraining Michelle, and that all the men,

including Tice, had forcible sexual intercourse with her.

Dick further testified that each man, including Tice,

took turns stabbing Michelle with a knife obtained from her

kitchen. After the men left Michelle’s apartment, they “made

a pact not to say anything” about the crimes and not to “turn

each other in.” Dick stated that he entered into this “pact”

because he was afraid of Ballard.

Dick acknowledged in his testimony that he originally was

charged with capital murder and that as a result of his plea

agreement, he had been convicted of first-degree murder. In

the plea agreement, Dick promised to cooperate in the police

investigation and to testify truthfully against all others

charged with the crimes.

Dick testified that he gave an initial account to the

police that contained some false statements but, that after

further police questioning, he admitted being present with

Williams when Williams raped Michelle. In a second

conversation with the police, Dick told the police that he

also had raped Michelle. Dick testified that he informed the

police that he, Williams, and Eric Wilson had committed the

5
crimes. Dick admitted in his testimony, however, that he had

lied to the police in that second interview about other

details of the crimes.

Dick further testified that in a third conversation with

the police, he related that there were six men who each raped

and stabbed Michelle but that he did not know all their names.

Dick additionally stated that he had identified Tice as one of

the perpetrators based on a photograph shown from a Navy

yearbook, and that he had met Tice only once before the night

of Michelle’s death.

Dick admitted in his testimony that during this third

police interview, he again provided inaccurate details of the

crime to the police. Also, Dick admitted that he had written

a letter to a member of the media in which he denied

involvement in the crimes and claimed that he was pressured by

the police to confess. Dick explained that he had written the

letter containing those false statements in an attempt to

generate media attention and to help his own case.

Detective Robert G. Ford testified that after Dick

identified Tice as one of the perpetrators, the police

arrested Tice in Florida. Ford stated that when Tice arrived

at the police station in Norfolk, Ford advised Tice of his

Miranda rights, and that Tice waived these rights and

indicated that he wanted to speak with the police.

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 Ford further testified that Tice initially denied

participating in the crimes but acknowledged that he knew

Williams and was aware that Williams had been arrested. Ford

stated that he and Detective Brian Wray continued to question

Tice, who eventually began crying and relating details of the

crimes. At this time, Tice stated that he, Williams, Wilson,

Dick, Farris, and another man whose name Tice did not know,

all participated in the crimes. Tice ultimately advised Ford

that Pauley also participated in the crimes, and stated that

each of the men raped Michelle and stabbed her with a knife

obtained from the kitchen. Tice added that Williams desired

to rape Michelle first because she was Williams’ “trophy.”

Ford made a tape recording of Tice’s statement, and a

transcript of that statement was admitted into evidence. In

the recorded statement, Tice explained that before the murder,

all the men agreed to participate in raping and murdering

Michelle so that each would be culpable for the crimes.

Ballard was served with a subpoena to appear at Tice’s

trial but refused to testify. However, Detective David M.

Peterson testified regarding the contents of three statements

that Ballard made to the police.

Peterson testified that after he learned that Ballard’s

DNA sample “matched” the DNA samples found in Michelle’s

apartment, Peterson interviewed Ballard, who was incarcerated

7
for another crime. Ballard claimed that he was alone with

Michelle in her apartment on the night in question and that,

after they engaged in consensual sexual intercourse, something

in Ballard “ticked” causing him to obtain a knife from the

kitchen and stab Michelle. Ballard also told Peterson that

Michelle had informed him that Williams was “stalking her.”

Peterson testified that when he interviewed Ballard a

second time, Ballard admitted that he had raped Michelle, and

that he had choked and stabbed her. Ballard further admitted

writing a letter (the Ballard letter) to a friend stating that

he had murdered Michelle. When Tice’s counsel asked that the

Ballard letter be admitted into evidence, the circuit court

sustained the Commonwealth’s objection.

Peterson also testified that he spoke with Ballard a

third time, after Ballard pleaded guilty to the rape and

murder of Michelle. At that time, Ballard admitted being

present at Michelle’s apartment complex on the date of her

death and hearing a group of four men, including Williams,

discussing an attempt to enter Michelle’s apartment. Ballard

stated that he helped the men enter Michelle’s apartment and

that, after entering, they all raped and stabbed Michelle.

Tamika Taylor testified that Michelle was her closest

friend and that on nights when Michelle’s husband was away

from home, Taylor and Michelle usually stayed together in

8
Michelle’s apartment. Taylor related that Williams

“constantly” knocked on Michelle’s door when Michelle’s

husband was not at home and asked to use Michelle’s telephone.

Taylor stated that Williams also would often “peep” through

his window in an apparent attempt to observe Michelle walking

in the hallway.

Taylor testified that she spent the night at Michelle’s

apartment the night before Michelle’s death and left about

7:00 a.m. At that time, Ballard, a friend who often visited

Michelle and Taylor early in the morning, was still present in

Michelle’s apartment.

III. HABEAS HEARING

At the habeas hearing, Tice presented evidence concerning

his claims of ineffective assistance of counsel. Tice

testified that when the police first interrogated him, prior

to his confession, he told Detective Randy Crank that “[he

didn’t] want to talk anymore. . . but [he] might after [he]

talked to a lawyer.” Tice stated that the police then left

him alone for a few minutes, until two detectives entered the

room and accused him of committing the crimes.

Tice confirmed that he eventually confessed to the police

that he had participated in the crimes. However, Tice also

maintained at the habeas hearing that he was not involved in

the crimes committed against Michelle. Tice further testified

9
that he did not recall discussing with his trial counsel any

statement he made during the police interrogation regarding

his desire to remain silent.

Detective Crank stated that during Tice’s first interview

with the police, Crank advised Tice of his Miranda rights and

administered a polygraph test to him. Crank testified that at

the conclusion of the polygraph test, Tice made a statement

that Crank entered in his notes, which were admitted into

evidence at the habeas hearing. Crank’s notes reflected the

following exchange:

[Tice] told me [that Tice] decide[d] not to say any more;
that [Tice] might decide to after he talks with a lawyer,
or spends some time alone thinking about it. I told
[Tice that] he would be given time to think about it.
[Tice] did not request a lawyer. (Emphasis in original.)

Detective Ford testified that Crank did not inform Ford

of this particular statement that Tice made. When Tice

returned to the interrogation room, Ford told Tice that he had

failed the polygraph test. Ford resumed the interrogation,

and Tice eventually confessed his involvement in the crimes.

James O. Broccoletti, one of Tice’s trial counsel,

testified concerning his representation of Tice, which began

more than six years before the habeas hearing. Broccoletti

stated that he discussed with Tice whether Tice had invoked

his Miranda rights but could not recall the details of that

conversation. However, Broccoletti remembered that Tice did

10
not say that he had invoked his right to remain silent during

the police interrogation.

Broccoletti acknowledged that he had received a copy of

Crank’s notes before Tice’s trial and had reviewed every

statement Tice made to the police. Broccoletti testified that

Crank’s notes “may have generated” a motion to suppress and

that, although he could not offer an explanation, there must

have been a reason that Broccoletti did not file such a

motion.

Broccoletti also testified that he attempted to have the

Ballard letter admitted into evidence at Tice’s trial because

Ballard had referenced the letter in his statement to police.

Broccoletti explained that he had assumed that Detective

Peterson could identify Ballard’s handwriting for purposes of

having the letter admitted into evidence.

Jeffrey R. Russell, also trial counsel for Tice,

testified that trial counsel met with Tice many times and had

several conversations with Tice on “every conceivable topic.”

Russell stated that he was “confident” that Tice had not

informed trial counsel that he had invoked his Miranda rights

during the police interrogation.

IV. DISCUSSION

The Commonwealth argues that the habeas court erred in

concluding that Tice received ineffective assistance of

11
counsel and was prejudiced by trial counsel’s failure to file

a motion to suppress Tice’s confession. The Commonwealth

contends that trial counsel reasonably could have declined to

file a motion to suppress because Tice’s invocation of the

right to remain silent was conditional and, thus, did not

constitute an unambiguous request to remain silent. The

Commonwealth further argues that Tice was not prejudiced by

his counsel’s failure to file a motion to suppress the

confession because such motion would have been denied.

In response, Tice argues that the habeas court correctly

determined that his trial counsel were ineffective in failing

to file a motion to suppress his confession because he

unambiguously had invoked his right to remain silent. Tice

also contends that the habeas court properly concluded under

the standard set forth in Strickland v. Washington, 466 U.S.

668 (1984), that he suffered prejudice as a result of his

counsel’s failure to file a suppression motion. Tice asserts

that his defense was prejudiced because the jury likely

accorded his confession great weight and Dick’s testimony was

subjected to “damaging” cross-examination by Tice’s counsel.

In deciding this issue, we apply well-established

principles of law. A defendant’s right to counsel under the

Sixth Amendment includes the right to effective assistance of

counsel. Yarborough v. Gentry, 540 U.S. 1, 5 (2003); Roe v.

12
Flores-Ortega, 528 U.S. 470, 476-77 (2000); Strickland, 466

U.S. at 685-86; Lewis v. Warden, 274 Va. 93, 111, 645 S.E.2d

492, 502 (2007); West v. Director, Dep’t of Corrections, 273

Va. 56, 62, 639 S.E.2d 190, 194 (2007). Under this guarantee,

a defendant is entitled to counsel who is reasonably competent

and who gives advice that is within the range of competence

required of attorneys in criminal cases. Wiggins v. Smith,

539 U.S. 510, 521-23 (2003); Kimmelman v. Morrison, 477 U.S.

365, 384 (1986); Strickland, 466 U.S. at 687; Lewis, 274 Va.

at 111-12, 645 S.E.2d at 502-03; West, 273 Va. at 62, 639

S.E.2d at 194.

The issue whether trial counsel provided effective

assistance presents a mixed question of law and fact.

Strickland, 466 U.S. at 698; Lewis, 274 Va. at 112, 645 S.E.2d

at 503; Yarbrough v. Warden, 269 Va. 184, 195-96, 609 S.E.2d

30, 36 (2005). A circuit court’s findings of fact and

conclusions of law “are not binding upon this Court, but are

subject to review to determine whether the circuit court

correctly applied the law to the facts.” Curo v. Becker, 254

Va. 486, 489, 493 S.E.2d 368, 369 (1997); see also Green v.

Warden, 264 Va. 604, 608-09, 571 S.E.2d 135, 138 (2002).

To prevail on a claim of ineffective assistance of

counsel, a petitioner must ordinarily satisfy both parts of

the two-part test set forth in Strickland. Wiggins, 539 U.S.

13
at 521; Williams v. Taylor, 529 U.S. 362, 390 (2000);

Strickland, 466 U.S. at 687; Lewis, 274 Va. at 112, 645 S.E.2d

at 503; West, 273 Va. at 62, 639 S.E.2d at 194. The

petitioner first must show that “counsel’s representation fell

below an objective standard of reasonableness.” Strickland,

466 U.S. at 687-88; accord Wiggins, 539 U.S. at 521; Williams,

529 U.S. at 390-91; Lewis, 274 Va. at 112, 645 S.E.2d at 503;

West, 273 Va. at 62, 639 S.E.2d at 194. In making this

determination, the court considering the habeas corpus

petition “must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional

assistance.” Strickland, 466 U.S. at 689; accord Kimmelman,

477 U.S. at 381; Darden v. Wainwright, 477 U.S. 168, 185-86

(1986); Lewis, 274 Va. at 112, 645 S.E.2d at 503; West, 273

Va. at 62, 639 S.E.2d at 194; Yarbrough, 269 Va. at 196, 609

S.E.2d at 37.

If counsel’s performance is found to have been deficient

under the first part of the Strickland test, to obtain relief

the petitioner must also show that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A

reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Strickland, 466 U.S. at

694; accord Wiggins, 539 U.S. at 534; Williams, 529 U.S. at

14
390-91; Lewis, 274 Va. at 113, 645 S.E.2d at 503-04;

Yarbrough, 269 Va. at 197, 609 S.E.2d at 37-38; Lovitt v.

Warden, 266 Va. 216, 250, 585 S.E.2d 801, 821 (2003).

When, as in the present case, the principal allegation of

ineffectiveness is trial counsel’s failure to litigate

competently a constitutional claim, a habeas petitioner first

must prove that the constitutional claim is meritorious. See

Kimmelman, 477 U.S. at 375. The habeas petitioner secondly

must establish that there is a reasonable probability that the

verdict would have been different had the fact finder not

considered the excludable evidence. Id.; see Strickland, 466

U.S. at 694.

A reviewing court, however, is not required to determine

whether “counsel’s performance was deficient before examining

the prejudice suffered by the defendant as a result of the

alleged deficiencies. . . . If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient

prejudice, which we expect will often be so, that course

should be followed.” Strickland, 466 U.S. at 697; see also

Lewis, 274 Va. at 113, 645 S.E.2d at 504; Yarbrough, 269 Va.

at 197, 609 S.E.2d at 38; Lovitt, 266 Va. at 250, 585 S.E.2d

at 821.

In addressing Tice’s claim, as directed by the Supreme

Court in Strickland, we move directly to consider the second

15
prong of the Strickland test, namely, the issue whether Tice

suffered prejudice sufficient to undermine confidence in the

outcome of the proceedings as a result of the admission of his

confession at trial. We resolve this issue by reviewing the

remaining trial evidence, in the absence of Tice’s confession,

under the Strickland standard.

Upon this review, we note that Dick admitted at trial

that he had not told the truth to the police regarding several

details of the crimes. Those details included the room in

which the crimes occurred, the question whether Michelle

performed oral sodomy on Tice and Williams, and the issue

whether Michelle had gained control of the knife and

threatened Williams. However, despite these and other

inaccuracies in his earlier statements to the police, Dick was

consistent in his sworn testimony implicating himself and Tice

in the rapes and murder of Michelle, and did not change or

retract any aspect of that testimony on cross-examination by

Tice’s trial counsel.

We also observe that Tice’s counsel failed to present any

evidence showing that Dick had a motive to fabricate his

testimony concerning Tice’s role in the crimes. When Dick

gave his testimony at Tice’s trial, Dick was serving two

sentences of life imprisonment for his crimes against Michelle

16
and was not subject to any additional penalties for those

crimes.

Dick’s testimony further revealed that he had seen Tice

on only one occasion prior to Michelle’s murder, and had

identified Tice from a photograph that appeared among many

other photographs in a Navy yearbook. This evidence

established that Dick and Tice did not have a prior

relationship that could support a charge that Dick disliked

Tice or was otherwise biased against him. Thus, this evidence

additionally supported the credibility of Dick’s testimony

about Tice’s participation in the crimes.

Tice’s defense at trial was based on the theory that

Ballard alone committed the offenses against Michelle. Tamika

Taylor’s testimony undermined this theory. Her testimony

revealed that Williams had an apparent obsession with

Michelle, providing a link to the crimes perpetrated by the

group that included Williams, Tice, and Dick. This testimony

also was consistent with Dick’s testimony that Williams wanted

to “go over and see Michelle’s panties.”

Taylor’s testimony also established that Ballard and

Michelle were friends, and that Ballard frequently visited

Michelle in her apartment. This testimony helped explain

Ballard’s statement to Detective Peterson that Michelle opened

17
her apartment door to the group that included Ballard, when

she earlier had refused entry to the original group.

In addition to the above testimony, the jury also

received evidence concerning DNA samples recovered from

Michelle’s body and from a blanket found on the bed at the

crime scene. Forensic scientists Robert Scanlon and Jerry

Sellers both testified that intercourse can occur during a

rape without DNA material being deposited in a victim’s

vagina, provided that the perpetrator did not ejaculate.

Scanlon further explained a perpetrator would not usually

leave epithelial cells containing DNA as a result of sexual

intercourse and stated that, thus, “if there is no

ejaculation, typically I don’t expect to detect anything.”

This expert testimony, therefore, provided an explanation with

regard to how several men could have raped Michelle with only

one man, Ballard, having deposited bodily fluids from which

DNA samples could be extracted.

We also observe that Tice presented evidence showing that

John Danser and Richard Pauley, who were part of the group

that Dick implicated in committing these crimes, had produced

alibi evidence concerning their activities on the night

Michelle was murdered. This evidence, however, did not relate

to Tice’s activities on the date of the offense and,

18
therefore, was of questionable relevance to the issue whether

Tice participated in committing the crimes against Michelle.

With these considerations in mind, and having reviewed

all the evidence presented at Tice’s criminal trial with the

exception of his confession, we conclude that the circuit

court erred in holding that Tice satisfied his evidentiary

burden under Strickland. We hold, as a matter of law, that

Tice failed to meet his burden of proving the prejudice prong

of Strickland, namely, that there was a reasonable probability

of a different result at his criminal trial if the jury had

not considered his confession. See 466 U.S. at 694; see also

Lewis, 274 Va. at 117, 645 S.E.2d at 506; Lovitt, 266 Va. at

257, 585 S.E.2d at 825-26. In short, the record before us

does not undermine confidence in the outcome of the

proceedings. See Strickland, 466 U.S. at 694; Wiggins, 539

U.S. at 534; Lovitt, 266 Va. at 257, 585 S.E.2d at 826.

Our conclusion that the circuit court erred in awarding

Tice a writ of habeas corpus is not altered upon our

consideration of Tice’s assignment of cross-error. In this

assignment, Tice contends that he suffered prejudice resulting

from his trial counsel’s failure to have the Ballard letter

admitted into evidence.

The Ballard letter contained the following statement:

“Remember that night [I] went to Mommie’s house and the next

19
morning Michelle got killed guess who did that, Me HA, HA.”

(Emphasis in original.) Although this representation

constituted an admission by Ballard that he murdered Michelle,

that writing notably is silent regarding the question whether

Ballard acted alone in killing Michelle.

Again, as directed by Strickland, we directly consider

the question whether the exclusion of the Ballard letter from

evidence prejudiced Tice’s defense. We conclude that

Ballard’s admission in the letter that he murdered Michelle

would have been merely cumulative of other evidence of

Ballard’s commission of the crimes. Although Ballard refused

to testify at Tice’s trial, Ballard’s statements to Detective

Peterson that were admitted into evidence contained an

admission that Ballard wrote a letter to a friend stating that

he had killed Michelle. In addition, the jury heard testimony

from Detective Peterson that Ballard made three other

admissions that he had murdered Michelle, and also admitted

twice that he had raped her. Therefore, we hold that the

exclusion of this cumulative evidence did not constitute

prejudice under the Strickland standard. See Snow v. Sirmons,

474 F.3d 693, 729 (10th Cir. 2007); Huffington v. Nuth, 140

F.3d 572, 581 (4th Cir. 1998); Hunt v. Nuth, 57 F.3d 1327,

1333 (4th Cir. 1995). Accordingly, the circuit court did not

20
err in holding that Tice failed to establish prejudice

regarding this allegation in his petition.

For these reasons, we will affirm the circuit court’s

determination that the exclusion of the Ballard letter did not

prejudice Tice, we will reverse the circuit court’s award of a

writ of habeas corpus on the claim that Tice’s counsel were

ineffective in failing to move to suppress his confession,

thereby prejudicing Tice, and we will enter final judgment

dismissing Tice’s petition.2

Affirmed in part,
reversed in part,
petition dismissed.

2
Based on our holding, we do not address the
Commonwealth’s additional assignment of error that the habeas
court applied an incorrect legal standard in considering the
issue whether trial counsel’s failure to file a suppression
motion constituted ineffective assistance of counsel.

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