Elliott v. WARDEN OF SUSSEX I STATE PRISON

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Friday, the 2nd day of
November, 2007.

Larry Bill Elliott, Petitioner,

against Record No. 050573

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 5, 2005, the respondent's motion to dismiss, and the

petitioner’s reply to the respondent’s motion to dismiss, the Court

is of the opinion that the motion should be granted and the writ

should not issue.

Larry Bill Elliott was convicted in the Circuit Court of

Prince William County of one count of capital murder of Dana

Thrall, one count of first-degree murder of Robert Finch, and two

counts of use of a firearm in the commission of a felony. Finding

that the Commonwealth had proven the aggravating factor of

“vileness” beyond a reasonable doubt, see Code § 19.2-264.2, the

jury fixed Elliott’s sentence at death on the capital murder

conviction and at one life sentence plus eight years’ imprisonment

for the non-capital convictions. The trial court sentenced Elliott

in accordance with the jury’s verdict. This Court affirmed
Elliott’s convictions and sentence of death. Elliott v.

Commonwealth, 267 Va. 396, 431, 593 S.E.2d 270, 292 (2004), cert.

denied, 543 U.S. 1081 (2005).

Section (I) of the petition for a writ of habeas corpus does

not contain any claims.

Procedural Defaults

In claim (II), petitioner raises several allegations that the

Commonwealth failed to meet its obligations under Brady v.

Maryland, 373 U.S. 83 (1963) by withholding certain material and

exculpatory evidence.

In claim (II)(1), petitioner alleges the Commonwealth did not

disclose statements “of the Thrall boy(s) likely containing

exculpatory evidence about a black man leaving the house.”

Petitioner relies on several affidavits containing hearsay

information that at least one of the Thrall boys said he saw

“either a black man or a man wearing black running from the rear of

the townhouse.” Petitioner, however, has proffered no evidence

properly before this Court to demonstrate that the Commonwealth had

exculpatory evidence that was not disclosed. The record, including

affidavits by the Commonwealth’s Attorneys involved in the case,

demonstrates that neither the police nor these attorneys had any

knowledge of any exculpatory statements made by the Thrall

children.

In claim (II)(6), petitioner alleges that the Commonwealth did

not provide reports on all of Rebecca Gragg’s polygraph tests.
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Petitioner contends that Gragg, who was Finch’s ex-girlfriend, was

subjected to a third polygraph examination and argues that any

inconsistent statements Gragg made during administration of the

third test could have been used to impeach her trial testimony.

Petitioner has proffered no evidence properly before this Court to

support his claim that a third polygraph test was administered.

The record, including affidavits of the Commonwealth’s Attorney and

the polygrapher, demonstrates that there were only two polygraph

tests administered by the Commonwealth in connection with the

investigation.

The Court holds that the alleged Brady violations contained in

claims (II)(1) and (II)(6) are factually without merit. Petitioner

has proffered no evidence properly before the Court to support the

allegations and, thus, has failed to establish that the

Commonwealth withheld any exculpatory evidence in violation of

Brady.

In claim (II)(2), petitioner alleges that the Commonwealth did

not produce photographs, provided by Robert Finch’s parents,

depicting Finch after he allegedly had been severely beaten by

friends of Rebecca Gragg. The record, including the trial

transcript, demonstrates that petitioner was aware, at trial, of

the alleged existence of these photographs and of the

Commonwealth’s denial that the photographs existed.

In claim (II)(3), petitioner alleges that the Commonwealth did

not provide a recording of a conversation between Gragg and
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Detective Charles Hoffman during a “smoke break” from the police

interrogation of Gragg on May 10, 2001. The record, including the

trial transcripts and the issues raised on appeal, demonstrates

that petitioner was aware of this conversation that took place on

May 10 and questioned whether or not it was recorded. Although

petitioner raised a similar claim on direct appeal, this Court

determined the argument to be waived because petitioner had not

raised the same argument at trial.

In claims (II)(4) and (II)(5), petitioner alleges that the

Commonwealth did not provide reports prepared by Detectives

Masterson, Hoffman, and McClelland with regard to a request Gragg

allegedly made for a copy of her written statement to police, which

was allegedly prepared after a conversation Gragg had with officers

during a “smoke break.” Petitioner contends also that Gragg

believed her written statement had been prepared on a computer and

that the Commonwealth did not provide an electronic version of

Gragg’s statement. The record, including the trial transcripts,

petitioner’s direct appeal brief, and this Court’s opinion on

direct appeal, demonstrates that the issue of whether a written

statement of the “smoke break” conversation existed was raised at

trial and that the detectives involved denied that such a statement

existed. This Court rejected petitioner’s argument on direct

appeal because the argument was different than the one petitioner

raised at trial.

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 In claim (II)(7), petitioner alleges that the Commonwealth

intentionally ignored evidence implicating others present at the

crime scene. Petitioner argues that, although forensic testing

confirmed that the blood and DNA found on the front and back doors

of the house and on Finch’s jeans did not belong to petitioner, the

Commonwealth did not attempt to learn the source of this DNA.

In claim (II)(8), petitioner alleges that, taken together, his

allegations of Brady violations show materiality because but for

the violations, he could have impeached the testimony of Gragg and

Hoffman.

In claim (III)(A), petitioner claims that his rights under

Napue v. Illinois, 360 U.S. 264 (1959) and Giglio v. United States,

405 U.S. 150, 153 (1972) were violated when Officer Thomas Leo

falsely testified that he collected blood from the back gate on

January 2, 2001, instead of on a different date, and when the

Commonwealth then presented false evidence by submitting the blood

sample marked with the January 2 date.

In claim (III)(B), petitioner claims his rights under Napue

and Giglio were violated when Detective Charles Hoffman testified

falsely on three occasions. Petitioner alleges that Hoffman lied

when he testified that he never received any photographs showing

Finch had been assaulted and when he explained why he used the word

“polygrapher” during his testimony. Petitioner further alleges

that Hoffman appeared to commit perjury when his testimony about

5
the existence of a tape recording of a conversation that occurred

during a “smoke break” differed from Gragg’s testimony.

In claim (III)(C), petitioner alleges that the Commonwealth

improperly “sponsored” Gragg’s testimony despite questions

concerning Gragg’s credibility before trial. Petitioner contends

that the Commonwealth “vouched” for Gragg as a principal witness

and solicited false testimony from her.

In claim (III)(D), petitioner alleges that the cumulative

impact of the Giglio and Napue right violations proves a reasonable

likelihood that the Commonwealth knowingly presented false

testimony, which affected the jury’s judgment.

The Court holds that claims (II)(2), (II)(3), (II)(4),

(II)(5), (II)(7), (II)(8), (III)(A), (III)(B), (III)(C) and

(III)(D) are procedurally defaulted because these non-

jurisdictional issues could have been raised at trial and on direct

appeal and, thus, are not cognizable in a petition for a writ of

habeas corpus. Slayton v. Parrigan, 215 Va. 27, 29, 205 S.E.2d

680, 682 (1974), cert. denied, 419 U.S. 1108 (1975).

Ineffective Assistance of Counsel Claims

In claim (IV)(A), petitioner alleges he was denied the

effective assistance of counsel during the guilt phase of his trial

because counsel failed to adequately investigate and prepare for

trial. Petitioner asserts that counsel failed to obtain a complete

transcript of the first trial, which ended in a mistrial, and

failed to interview jurors from the first trial.
6
 The Court holds that claim (IV)(A) satisfies neither the

“performance” nor the “prejudice” prong of the two-part test

enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984).

The record, including the trial transcript of the second trial and

William Moffitt’s affidavit, demonstrates that Moffitt, one of the

attorneys who represented petitioner in his first trial, also

represented petitioner in the second trial and obtained transcripts

of portions of the first trial. Petitioner does not articulate how

obtaining transcripts of the remainder of the first trial would

have been helpful and does not specify how the lack of transcripts

affected counsel’s performance. Petitioner does not proffer what

questions counsel should have asked jurors from the first trial,

how the jurors would have responded, or how such information would

have aided counsel’s performance in the second trial. Counsel was

not required to interview any jurors following the grant of a

mistrial in the first trial. Lenz v. Warden, 267 Va. 318, 326, 593

S.E.2d 292, 296-97 (2004). 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 the first portion of claim (IV)(A)(1)(a), petitioner

alleges he was denied the effective assistance of counsel during

the guilt phase of his trial because counsel failed to identify,

interview, or call Todd Prach to testify to petitioner’s location,

activities, and appearance on the morning of the murders.
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Petitioner alleges that Prach would have testified that, between

5:00 and 5:30 a.m. on the morning of the murders, he spoke with

petitioner at Ft. Meade and observed no blood on or anything

unusual about petitioner. Petitioner contends that Prach’s

testimony would have refuted the Commonwealth’s suggested timeline

for the morning of the murders because petitioner could not have

committed the murders, cleaned himself and the crime scene, driven

to the restaurant where he placed a call to Gragg, disposed of

trash bags containing evidence, and then arrived at Fort Meade by

5:30 a.m.

The Court holds that the first portion of claim (IV)(A)(1)(a)

fails to satisfy the “prejudice” prong of the two-part test

enunciated in Strickland. The record, including the trial

transcript, demonstrates that petitioner’s truck was seen in the

neighborhood between 4:15 a.m. and 4:25 a.m. on the morning of the

murders and petitioner repeatedly admitted that he was in the area

of the murders at that time. No evidence was presented at trial

concerning how much time petitioner spent cleaning the crime scene;

however, petitioner was no longer in the house when police

responded at 4:25 a.m. While petitioner contends that it would

have been impossible for him to have cleaned himself up prior to

seeing Prach, he fails to point to any evidence that the killer was

bloody or where on the killer’s person the blood would have been.

In addition, the evidence presented at trial did not specify the

exact time petitioner disposed of the trash bags. Thus, petitioner
8
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 the second portion of claim (IV)(A)(1)(a), petitioner

asserts that counsel was ineffective for failing to adequately

interview Kathy Elliott, petitioner’s wife, who now claims she

would have testified that, at 6:00 a.m. on the morning of the

murders, petitioner returned home from a weekend away and did not

appear unusual in appearance or demeanor and that petitioner had a

reputation for being non-violent. Petitioner contends his wife

could also have testified that petitioner had no recent bleeding

from the scabbed abrasions on the back of petitioner’s hand.

The Court holds that the second portion of claim (IV)(A)(1)(a)

satisfies neither the “performance” nor the “prejudice” prong of

the two-part test enunciated in Strickland. The record, including

Kathy Elliott’s affidavit, demonstrates that petitioner came home

and immediately began doing a load of laundry and took a shower;

raising an inference that petitioner was attempting to remove

evidence linking him to the murders. Contrary to petitioner’s

argument, Kathy Elliott’s affidavit does not reference the injury

to petitioner’s hand. Furthermore, the evidence demonstrates that

petitioner and Gragg had worked together to defraud Kathy Elliott

of a large sum of money, and trial counsel cannot be faulted for

failing to pursue a witness whom petitioner had defrauded. Thus,

petitioner has failed to demonstrate that counsel’s performance was
9
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 the third portion of claim (IV)(A)(1)(a), petitioner

alleges he was denied the effective assistance of counsel because

counsel failed to adequately interview Kaitlynn Elliott,

petitioner’s daughter. Petitioner alleges he drove Kaitlynn to

school in his truck the morning of the murders and that Kaitlynn

noticed nothing unusual about her father or the truck and did not

see any bags in the truck.

The Court holds that the third portion of claim (IV)(A)(1)(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 the only evidence

concerning the trash bags came from Gragg, who testified that

petitioner called her from a restaurant and told her he had stopped

to dispose of trash bags. No evidence established that trash bags

were actually ever in petitioner’s vehicle or specifically when

petitioner disposed of the bags. 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 the first portion of claim (IV)(A)(1)(b), petitioner

alleges he was denied the effective assistance of counsel during

the guilt phase of his trial because counsel failed to identify,
10
interview, or call key witnesses to testify about petitioner’s

interest in silencers for weapons to use on target ranges.

Petitioner contends that several witnesses would have testified

that they had discussed the possibility of creating a target

shooting range at Ft. Meade and that petitioner sought information

concerning silenced weapons for use at the range.

The Court holds that the first portion of claim (IV)(A)(1)(b)

satisfies neither the “performance” nor the “prejudice” prong of

the two-part test enunciated in Strickland. The record, including

the trial transcript and petitioner’s e-mail to Randy Jackson,

demonstrates that the information petitioner contends counsel

should have elicited would have been cumulative. The jury was

informed that petitioner sought information from Jackson on

silencers purportedly as part of an investigation concerning the

development of a shooting range in a building at Fort Meade. The

jury was also aware that petitioner had then sent Gragg an e-mail

concerning this inquiry and his plan to seek more information from

different sources. 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 the second portion of claim (IV)(A)(1)(b), petitioner

alleges he was denied the effective assistance of counsel during

the guilt phase of his trial because counsel failed to identify,

interview, or call Gail and Terry McGraw, who would have testified
11
that Jackson, with whom petitioner had e-mailed about obtaining a

silencer, had a romantic interest in Gail and was jealous of

petitioner’s friendship with Gail. Petitioner contends that

Jackson’s jealously would explain Jackson’s motive to exaggerate

his testimony to harm petitioner.

The Court holds that the second portion of claim (IV)(A)(1)(b)

satisfies neither the “performance” nor the “prejudice” prong of

the two-part test enunciated in Strickland. Petitioner fails to

articulate how such testimony would not have constituted

inadmissible hearsay. Furthermore, impeaching Jackson’s testimony

in this manner would not have undermined the evidence of the e-mail

containing petitioner’s inquiry into silencers immediately before

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 claim (IV)(A)(1)(c), petitioner alleges he was denied the

effective assistance of counsel during the guilt phase of his trial

because counsel failed to identify, interview, or call key

witnesses to testify about petitioner’s habit of “compulsively

cleaning” his vehicles. Petitioner asserts that Chris McSpadden

and Robert Barrow would have testified that beer was spilled in

petitioner’s truck at a football game a few days before the

murders, explaining any recent cleaning of the truck and rebutting

12
the Commonwealth’s speculation of why the truck was so clean after

the murders.

The Court holds that claim (IV)(A)(1)(c) satisfies neither the

“performance” nor the “prejudice” prong of the two-part test

enunciated in Strickland. Evidence of petitioner’s cleaning habits

would also have bolstered the Commonwealth’s case by reinforcing

the expert witness testimony that a thorough, recent cleaning of

the truck could have removed any evidence existing in it after the

crimes. The fact that petitioner may have cleaned his truck in the

days immediately preceding the murders does not negate a conclusion

that petitioner also cleaned his truck after 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 claim (IV)(A)(1)(d), petitioner alleges he was denied the

effective assistance of counsel during the guilt phase of his trial

because counsel failed to identify, interview, or call the victims’

family members. Petitioner asserts that Robert Finch’s parents and

Dana Thrall’s father would have testified about their various

theories that Rebecca Gragg was responsible for the murders or that

the murders were connected to Robert Finch’s alleged illegal drug

connections. These witnesses believed Gragg was responsible

because she allegedly had previously arranged to have Robert Finch

13
beaten in West Virginia and she was afraid Finch would gain

permanent custody of her children.

The Court holds that claim (IV)(A)(1)(d) satisfies neither the

“performance” nor the “prejudice” prong of the two-part test

enunciated in Strickland. The trial court and this Court held that

evidence of third party involvement was not proven; therefore,

testimony on alternative theories of who committed the murders

would not have been admissible under Johnson v. Commonwealth, 259

Va. 654, 681, 529 S.E.2d 769, 784, cert. denied, 531 U.S. 981

(2000). Furthermore, evidence of Gragg’s alleged involvement in

arranging the murders does not negate the evidence that petitioner

actually committed 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 the first portion of claim (IV)(A)(1)(e), petitioner

alleges he was denied the effective assistance of counsel during

the guilt phase of his trial because counsel failed to call Larry

Kent Smith to testify that Gragg’s relatives had previously beaten

Finch and Finch had once told Smith that if Finch ever turned up

dead, Gragg would have been responsible; Finch kept large amounts

of money in the house; and Finch’s dog, a 150-pound Mastiff, would

not let anyone it did not know through the back gate of Finch’s

home.

14
 The Court holds that the first portion of claim (IV)(A)(1)(e)

satisfies neither the “performance” nor the “prejudice” prong of

the two-part test enunciated in Strickland. Smith’s testimony

about Gragg’s relatives beating Finch and about Finch keeping money

in his home would have constituted inadmissible hearsay.

Furthermore, no testimony about the dog could impeach the fact that

petitioner’s DNA was found on the inside of the back gate of the

home. Officer Creamer testified that when he entered the backyard

the dog was calm and friendly. 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 the second portion of claim (IV)(A)(1)(e), petitioner

alleges he was denied the effective assistance of counsel during

the guilt phase of his trial because counsel failed to call Dorothy

Roberts, a secretary of the guardian ad litem appointed to

represent the interests of the couple’s children during the custody

dispute between Finch and Gragg. Petitioner contends Roberts would

have rebutted testimony that the couple’s relationship was still

intimate and would have contradicted Gragg’s testimony that she

kept Finch informed about his children’s whereabouts.

The Court holds that the second portion of claim (IV)(A)(1)(e)

satisfies neither the “performance” nor the “prejudice” prong of

the two-part test enunciated in Strickland. Any information

provided by Roberts concerning the intimacy of Finch’s and Gragg’s
15
relationship and whether Finch was informed about his children’s

whereabouts would have constituted inadmissible hearsay. 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 the third portion of (IV)(A)(1)(e), petitioner alleges he

was denied the effective assistance of counsel during the guilt

phase of his trial because counsel failed to call fifteen witnesses

to testify to petitioner’s reputation for being peaceable and non-

violent.

The Court holds that the third portion of claim (IV)(A)(1)(e)

satisfies neither the “performance” nor the “prejudice” prong of

the two-part test enunciated in Strickland. While these witnesses

may have been able to testify to petitioner’s reputation for being

non-violent, these witnesses would have been subject to cross-

examination as to their knowledge of petitioner’s relationship with

Gragg and how petitioner and Gragg defrauded his wife of large

amounts of money. Furthermore, in light of the sufficient evidence

of petitioner’s guilt, petitioner cannot demonstrate that testimony

as to petitioner’s reputation in those limited areas of his life

would have had any significant impact on the jury’s decision.

Thus, petitioner has failed to demonstrate that counsel’s

performance was deficient or that there is a reasonable probability

16
that, but for counsel’s alleged errors, the result of the

proceeding would have been different.

In claim (IV)(A)(2), petitioner alleges he was denied the

effective assistance of counsel during the guilt phase of his trial

because counsel failed to obtain key documents, identify key

witnesses, and call crime scene reconstruction and blood spatter

experts. Petitioner asserts that counsel failed to obtain

petitioner’s and Gragg’s complete cell phone records with detailed

cell tower information, which might have confirmed that petitioner

made the 5:23 a.m. phone call to Gragg from his office parking lot,

not at a restaurant. Petitioner also asserts that counsel should

have obtained (1) Thrall’s and Finch’s financial records to

discover whether they had a legitimate source of funds to purchase

a $300,000 home, (2) medical records where Finch received treatment

for his beating allegedly caused by Gragg’s friends, and (3) police

reports about the beating. Petitioner contends that this

information would have bolstered the theory that Finch was involved

in illegal activities and that others had a motive to kill Finch.

Petitioner also asserts that counsel should have called a crime

scene/blood spatter expert to challenge the Commonwealth’s version

of how the murders transpired.

The Court holds that claim (IV)(A)(2) satisfies neither the

“performance” nor the “prejudice” prong of the two-part test

enunciated in Strickland. Petitioner does not provide a copy of

the cell phone records provided to counsel or a copy of any
17
unredacted records to establish what the records would have proven.

As to evidence concerning a beating Finch received in West

Virginia, the circuit court held that similarly suggestive evidence

involving an altercation was inadmissible and that a theory of

alternate killers was also inadmissible. Finally, petitioner

provides no blood spatter analysis different from that presented at

trial but merely speculates that a defense expert would have

provided favorable evidence. 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 (IV)(B)(1) and a portion of claim (IV)(B)(10),

petitioner alleges he was denied the effective assistance of

counsel during the guilt phase of his trial because counsel failed

to object when, during opening statement, the Commonwealth’s

Attorney called petitioner a “liar” and a “thief” who was willing

to steal from his own family and failed to move for a new trial at

the end of the Commonwealth’s case, because the Commonwealth failed

to prove what was asserted in the opening statement. Petitioner

also contends counsel should have objected, during opening

statement, when the Commonwealth’s Attorney (1) read e-mails

allegedly written by petitioner which were not marked as exhibits,

authenticated, or admitted, (2) made inflammatory statements that

petitioner was “flawed,” and (3) showed the jury a photograph of

the victims and their children.
18
 The Court holds that claim (IV)(B)(1) and this portion of

claim (IV)(B)(10) satisfy neither the “performance” nor the

“prejudice” prong of the two-part test enunciated in Strickland.

The record, including the trial transcript, demonstrates that the

Commonwealth’s opening statement constituted a fair depiction of

the evidence to be presented and a fair inference of what the

evidence would prove and, thus, was not objectionable. Evidence is

not usually authenticated at the time of opening statements and the

e-mails were later authenticated by Gragg and admitted as evidence.

Photographs of the victims are admissible and may be used in

opening statements. Bennett v. Commonwealth, 236 Va. 448, 471, 374

S.E.2d 303, 317, (1988), cert. denied, 490 U.S. 1028 (1989). 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 the first portion of claim (IV)(B)(2) and a portion of

claim (IV)(B)(10), petitioner alleges he was denied the effective

assistance of counsel during the guilt phase of his trial because

counsel promised the jury in opening statements that he would play

an audiotape of petitioner denying his guilt and ultimately did not

play the tape.

The Court holds that the first portion of claim (IV)(B)(2) and

this portion of claim (IV)(B)(10) satisfy neither the “performance”

nor the “prejudice” prong of the two-part test enunciated in
19
Strickland. The record, including the trial transcripts,

demonstrates that counsel told the jury that there was a tape of

Gragg’s conversation with petitioner and that the jury could hear

that during that conversation Gragg never mentioned the bloody bags

or the phone call in which she mistook petitioner for Finch.

Counsel may have intended to play the tape in order to impeach

Gragg’s testimony at trial. Nevertheless, upon cross-examining

her, counsel obtained Gragg’s admission to these facts. The

transcript of the tape provided by petitioner demonstrates that

counsel’s subsequent decision not to play the tape was reasonable

because the tape was merely cumulative and contained evidence that

would have been detrimental to petitioner’s defense. 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 the second portion of claim (IV)(B)(2) and a portion of

claim (IV)(B)(10), petitioner alleges he was denied the effective

assistance of counsel during the guilt phase of his trial because

counsel portrayed Gragg as a possible murder suspect rather than as

someone who enlisted others to commit the murders. Petitioner

suggests that this error allowed the Commonwealth to rebut such a

theory by showing that Gragg was out of town at the time of the

murders.

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 The Court holds that the second portion of claim (IV)(B)(2)

and this portion of claim (IV)(B)(10) satisfy neither the

“performance” nor the “prejudice” prong of the two-part test

enunciated in Strickland. The record, including the trial

transcript, demonstrates that counsel suggested only that Gragg had

a motive for the killings, but did not imply that Gragg actually

committed 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 the third portion of claim (IV)(B)(2) and a portion of

claim (IV)(B)(10), petitioner alleges he was denied the effective

assistance of counsel during the guilt phase because counsel failed

to address the issue concerning petitioner’s blood on the back

gate, the only physical evidence placing petitioner near the scene,

thereby conceding a crucial point in the Commonwealth’s case.

Petitioner suggests that counsel could have argued that there was

no way to determine when the blood got on the gate or how

petitioner would have been able to go through the gate and past an

aggressive dog.

The Court holds that the third portion of claim (IV)(B)(2) and

this portion of claim (IV)(B)(10) do not satisfy the “prejudice”

prong of the two-part test enunciated in Strickland. The record,

including the trial transcript, demonstrates that there was no

evidence that petitioner had been inside that back gate at any
21
other time and no innocent explanation existed for why petitioner’s

blood was found on the inside of the locked gate. Petitioner has

proffered no explanation for the presence of his blood on the gate.

Furthermore, Officer Creamer testified at trial that when he

entered the backyard from the house, the dog in the backyard was

calm and friendly. 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 (IV)(B)(3)(a) and a portion of (IV)(B)(10),

petitioner alleges he was denied the effective assistance of

counsel during the guilt phase of his trial because counsel failed

to object to evidence offered by the Commonwealth that petitioner

had committed other criminal or immoral acts. Petitioner asserts

that the Commonwealth introduced evidence of (1) petitioner’s

alleged theft of money from his wife, (2) petitioner’s alleged rape

of Gragg when she was sedated prior to surgery, (3) petitioner’s

alleged illegal attempt to obtain a silencer, and (4) petitioner’s

alleged attempt to flee from police and evade arrest.

The Court holds that claim (IV)(B)(3)(a) and this portion of

claim (IV)(B)(10) satisfy neither the “performance” nor the

“prejudice” prong of the two-part test enunciated in Strickland.

The record, including the trial transcripts, demonstrates that the

Commonwealth’s theory of the case was that petitioner was enamored

of Gragg and was motivated to kill Finch in order to please Gragg,
22
who was going through a child custody dispute with Finch. This

evidence was relevant and admissible to prove petitioner’s motive

to kill Finch, the acts he took in furtherance of his plan to kill

Finch, and as evidence of his guilt. 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 (IV)(B)(3)(b) and a portion of claim (IV)(B)(10),

petitioner alleges he was denied the effective assistance of

counsel during the guilt phase of his trial because counsel failed

to object to the introduction of evidence of petitioner’s blood on

the back gate. Petitioner asserts that the chain of custody

pertaining to this evidence was not established and thus the

evidence should have been inadmissible.

The Court holds that claim (IV)(B)(3)(b) and this portion of

claim (IV)(B)(10) satisfy neither the “performance” nor the

“prejudice” prong of the two-part test enunciated in Strickland.

The record, including the trial transcripts, demonstrates that

Officer Leo collected the bloodstain and submitted it to the

Department of Forensic Science; therefore, no meritorious objection

was available to challenge the chain of custody of the DNA

evidence. 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.
23
 In claim (IV)(B)(3)(c) and a portion of claim (IV)(B)(10),

petitioner alleges he was denied the effective assistance of

counsel during the guilt phase of his trial because counsel failed

to object to autopsy photographs and a crime scene videotape on the

basis that the prejudicial impact outweighed any probative value

and because the videotape was cumulative.

The Court holds that claim (IV)(B)(3)(c) and this portion of

claim (IV)(B)(10) satisfy neither the “performance” nor the

“prejudice” prong of the two-part test enunciated in Strickland.

This Court has established the admissibility, at trial, of autopsy

photographs and crime scene videotapes. See, e.g., Gray v.

Commonwealth, 233 Va. 313, 342, 356 S.E.2d 157, 173, cert. denied,

484 U.S. 873 (1987); Joseph v. Commonwealth, 249 Va. 78, 85, 452

S.E.2d 862, 867, cert. denied, 516 U.S. 876 (1995). Therefore,

counsel reasonably did not make groundless objections to the

photographs or videotape. 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 (IV)(B)(4)(a) and a portion of claim (IV)(B)(10),

petitioner alleges he was denied the effective assistance of

counsel during the guilt phase of his trial because counsel failed

to object to prejudicial hearsay testimony. Petitioner contends

counsel should have objected to (1) Raymond Whalen’s hearsay

testimony concerning Gragg’s trip to Florida; (2) Officer Daniel’s
24
hearsay testimony about what a witness told him she saw on the

night of the murders; (3) Laura Didion’s hearsay testimony that

Gragg was upset because Finch abused Gragg’s children and that

Gragg said she and Finch had an ongoing sexual relationship; (4)

Suzanne Knowlinger’s hearsay testimony that Gragg told her she had

car trouble on her trip home from Florida; and (5) Jennifer Finch’s

hearsay testimony that Gragg told her that Finch and the Gragg

children had been abused by Clayton Finch, Finch’s father.

Petitioner asserts this testimony improperly focused the jury on

irrelevant evidence.

The Court holds that claim (IV)(B)(4)(a) and this portion of

claim (IV)(B)(10) satisfy neither the “performance” nor the

“prejudice” prong of the two-part test enunciated in Strickland.

The record, including the trial transcripts, demonstrates that (1)

counsel successfully objected to the portion of Whalen’s testimony

which would have constituted hearsay; (2) Officer Daniel’s

testimony was not objectionable because it was used to explain why

the officer was in the neighborhood investigating petitioner’s

truck; (3) Didion’s testimony about Finch’s abuse of his children

did not contain hearsay testimony, and Didion’s testimony about

Gragg and Finch’s relationship was not objectionable because it was

not admitted for its truth but was used to show that petitioner

believed Gragg and Finch were still sexually involved with each

other; (4) Knowlinger’s testimony contained no hearsay; and (5)

Jennifer Finch’s testimony was not objectionable because it was not
25
offered to prove that her father had abused Finch and Gragg’s

children, but as further evidence in support of petitioner’s motive

to gain favor with Gragg by killing Finch. 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 footnote 44, petitioner alleges that he was denied the

effective assistance of counsel because counsel failed to object to

the admission of several exhibits as hearsay. Petitioner does not

articulate a reason as to why any of the exhibits are inadmissible

hearsay, what arguments counsel should have made, or that any

objections would have been successful. The Court holds that the

allegations made in footnote 44 are conclusional and, therefore,

will not support the issuance of a writ of habeas corpus. Penn v.

Smyth, 188 Va. 367, 370-71, 49 S.E.2d 600, 601 (1948).

In claim (IV)(B)(4)(b) and a portion of claim (IV)(B)(10),

petitioner alleges he was denied the effective assistance of

counsel during the guilt phase of his trial because counsel failed

to object to extrinsic testimony on collateral issues including

testimony about Clayton Finch’s alleged sexual abuse of Jennifer

Finch, a neighbor’s testimony concerning the manner in which Dana

Thrall dealt with her children, information about a fire in Gragg’s

home, and testimony concerning Gragg’s separation from her husband.

26
 The Court holds that claim (IV)(B)(4)(b) and this portion of

claim (IV)(B)(10) satisfy neither the “performance” nor the

“prejudice” prong of the two-part test enunciated in Strickland.

The record, including the trial transcript, demonstrates that the

evidence about which petitioner complains was relevant to establish

petitioner’s relationship with Gragg and his motive for the

killings on Gragg’s behalf. Petitioner fails to allege how

objections to this evidence would have affected the outcome of his

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 claim (IV)(B)(5) and a portion of claim (IV)(B)(10),

petitioner alleges he was denied the effective assistance of

counsel during the guilt phase of his trial because counsel failed

to elicit testimony that was admitted in the first trial.

Petitioner asserts that counsel failed to ask questions challenging

the competence of the crime scene investigation that were asked in

petitioner’s first trial.

The Court holds that claim (IV)(B)(5) and this portion of

claim (IV)(B)(10) satisfy neither the “performance” nor the

“prejudice” prong of the two-part test enunciated in Strickland.

Petitioner fails to allege anything more than that the evidence

came out slightly different in the second trial. Petitioner does

not articulate the testimony counsel would have elicited or how
27
this testimony would have affected the jury’s decision. 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 (IV)(B)(6) and a portion of claim (IV)(B)(10),

petitioner alleges he was denied the effective assistance of

counsel during the guilt phase of his trial because counsel failed

to properly move to strike the evidence by stating no grounds for

the motion when many compelling grounds existed and failed to move

for a mistrial on those same grounds.

The Court holds that claim (IV)(B)(6) and this portion of

claim (IV)(B)(10) satisfy neither the “performance” nor the

“prejudice” prong of the two-part test enunciated in Strickland.

The record, including the trial transcript and the exhibits,

demonstrates that the evidence was sufficient to overcome a motion

to strike and to support petitioner’s convictions. Elliott, 267

Va. at 425 n.8, 593 S.E.2d at 288 n.8. Petitioner fails to allege

how a more specific motion to strike would have affected his case

and fails to allege any viable basis upon which counsel should have

sought a mistrial. 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 (IV)(B)(7) and a portion of claim (IV)(B)(10),

petitioner alleges he was denied the effective assistance of

counsel during the guilt phase of his trial because counsel failed

to put on a defense, calling only one witness to the stand and

asking only four questions of that witness. In support of claims

(IV)(B)(7) and this portion of claim (IV)(B)(10), petitioner refers

to his prior arguments concerning counsel’s performance but makes

no additional proffers as to the witnesses counsel should have

called or what information counsel should have elicited. The Court

holds that these claims constitute an allegation that the

cumulative effect of counsel’s ineffective assistance in the

presentation of a defense prejudiced petitioner and holds that this

claim has no merit. “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 to effective assistance of counsel.”

Lenz, 267 Va. at 340, 593 S.E.2d at 305.

In claim (IV)(B)(8) and a portion of claim (IV)(B)(10),

petitioner alleges he was denied the effective assistance of

counsel during the guilt phase of his trial because counsel failed

to object to the Commonwealth’s improper statements in its closing

arguments and failed to move for a mistrial. Petitioner asserts

that the Commonwealth maligned petitioner’s character by mentioning

uncharged crimes of theft, use of a silencer, and flight to avoid

prosecution. Petitioner also asserts that the Commonwealth
29
impermissibly vouched for the truthfulness of three of its

witnesses.

The Court holds that claim (IV)(B)(8) and this portion of

claim (IV)(B)(10) satisfy neither the “performance” nor the

“prejudice” prong of the two-part test enunciated in Strickland.

The record, including the trial transcripts, demonstrates that the

prosecutor’s closing argument was properly based upon the evidence

admitted 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 claim (IV)(B)(9) and a portion of claim (IV)(B)(10),

petitioner alleges he was denied the effective assistance of

counsel during the guilt phase of his trial because counsel failed

to object to the jury’s viewing, during deliberations, of the

videotape of the crime scene and failed to ask for any cautionary

instructions regarding the videotape. Petitioner contends that

the probative value of the videotape was outweighed by its

prejudicial impact.

The Court holds that claim (IV)(B)(9) and this portion of

claim (IV)(B)(10) satisfy neither the “performance” nor the

“prejudice” prong of the two-part test enunciated in Strickland.

Any objection concerning the prejudicial impact of the videotape

should have been made prior to its admission into evidence. Having

been properly admitted into evidence, the videotape was available
30
for the jury to view during deliberations. Petitioner fails to

articulate what type of objection counsel could have successfully

made or what type of cautionary instruction counsel should have

sought. 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)(A), petitioner alleges he was denied the

effective assistance of counsel during the penalty phase because

counsel failed to reassert motions raised in the first trial

concerning the penalty phase, thus denying petitioner an

opportunity to appeal these issues.

The record demonstrates that, after the mistrial, counsel

informed the prosecutor that the motions previously argued and

ruled upon by the trial court would not be re-litigated during the

second trial, because the court’s rulings were unlikely to change.

Nothing in the record demonstrates that the court adopted its

previous rulings and this Court, on direct appeal, held that the

issues raised in the motions filed prior to the mistrial were not

preserved for appellate review. Elliott, 267 Va. at 427-28, 593

S.E.2d at 289-90.

The Court holds that claim (V)(A) fails to satisfy the

“prejudice” prong of the two-part test enunciated in Strickland.

Although petitioner identifies these motions in a footnote, he does

not address the merits of the individual motions and does not
31
articulate the basis upon which an appellate challenge to any of

the circuit court’s previous rulings would have had merit or have

been successful. Thus, petitioner cannot 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 (V)(B)(1), petitioner alleges he was denied the

effective assistance of counsel during the penalty phase because

counsel failed to object to improper and prejudicial victim impact

testimony. Petitioner asserts that Cyndia Johnson, Thrall’s

mother, improperly testified to watching her fatally wounded

daughter shed tears. Petitioner also asserts that Cameron and

Rebecca Thrall, Thrall’s brother and sister-in-law, improperly

testified about the effect of the murders on Dana Thrall’s children

and that counsel should have objected to the hearsay evidence of

what the children were thinking and to the hearsay evidence of the

children’s posttraumatic stress disorder.

The Court holds that claim (V)(B)(1) satisfies neither the

“performance” nor the “prejudice” prong of the two-part test

enunciated in Strickland. Code § 19.2-264.4(A1) specifically

allows victim impact testimony; therefore, Cyndia Johnson’s

testimony concerning what she observed during Dana’s last minutes

of life was admissible evidence. Furthermore, the testimony

concerning the children’s thoughts and their diagnoses was not

offered to prove the truth of the matter asserted, i.e., that

petitioner was going to harm the children or that the children
32
actually suffered particular disorders, but instead was offered to

demonstrate how the murders affected the children. Counsel is not

ineffective for failing to raise an unreasonable objection. 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)(B)(2), petitioner alleges he was denied the

effective assistance of counsel during the penalty phase because

counsel failed to object to the Commonwealth’s Attorney’s emphasis,

during closing arguments, on the testimony concerning the

children’s counseling and nightmares. Petitioner also asserts that

counsel should have objected to the argument that the victim’s

families would “get some solace” from the death sentence because

Thrall’s father and Finch’s parents oppose petitioner being

executed.

The Court holds that claim (V)(B)(2) satisfies neither the

“performance” nor the “prejudice” prong of the two-part test

enunciated in Strickland. The Commonwealth’s Attorney’s argument

constituted a fair comment based upon the evidence, including the

testimony of some members of Thrall’s family. Whether members of

Finch’s family wanted petitioner sentenced to death would be

irrelevant as petitioner was only subject to the death penalty for

his killing of Thrall. Counsel is not ineffective for failing to

raise an unreasonable objection. Thus, petitioner has failed to
33
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)(B)(3), petitioner alleges he was denied the

effective assistance of counsel during the penalty phase because

counsel failed to object to eleven statements made by the

Commonwealth’s Attorney that petitioner would be a future danger.

Petitioner asserts that the issue of “future dangerousness” was not

proven at the first trial; and that the trial court ruled it could

not be reasserted in the second case due to double jeopardy

concerns.

The Court holds that claim (V)(B)(3) 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 successfully moved to

preclude the Commonwealth from seeking the death penalty based upon

future dangerousness. Later, when the Commonwealth argued that

imposing the death sentence would preclude petitioner from harming

anybody else, counsel objected on the grounds that future

dangerousness was not an issue. The trial court, however, ruled

that, despite its earlier ruling, the Commonwealth was entitled to

make a general argument that imposition of the death sentence would

prevent further harm. Petitioner has not articulated alternate

grounds upon which he contends counsel should have objected and,

having obtained an adverse ruling from the court, counsel is not
34
required to reassert objections that are meritless. 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)(B)(4), petitioner alleges he was denied the

effective assistance of counsel during the penalty phase because

counsel failed to object during closing argument to the

Commonwealth’s mention of petitioner’s having sex with Gragg while

she was unconscious. The Court holds that claim (V)(B)(4)

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 prosecutor’s argument

was a proper comment based upon the evidence. As addressed

previously, petitioner’s statement to Gragg concerning a sexual

encounter he allegedly had with her while she was sedated was

admissible to prove his motive to kill Finch and as a

“circumstance[] surrounding the offense.” See Code § 19.2-264.4.

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)(C), petitioner alleges he was denied the

effective assistance of counsel during the penalty phase because

counsel failed to adequately develop and present mitigation
35
evidence. Petitioner asserts that he provided counsel with twenty-

seven mitigation witnesses and that counsel erred in not calling

these people as witnesses because they would have either testified

about his good reputation or would have testified in favor of

sparing petitioner’s life.

The Court holds that claim (V)(C) satisfies neither the

“performance” nor the “prejudice” prong of the two-part test

enunciated in Strickland. The record, including the sentencing

transcripts, demonstrates that the evidence petitioner contends

counsel should have presented would have merely been cumulative of

that presented at trial. Counsel called several witnesses during

the penalty phase to testify to petitioner’s qualities of being

“easygoing, reliable, kind, gentle, generous, and decent.”

Additionally, the Commonwealth relied on this “reputation” evidence

to argue that petitioner was an individual who solved problems,

rather than getting angry, and that his act of killing Finch and

Thrall was simply a selfish, calculated act designed to solve

Gragg’s problem and gain her affection. 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)(D), petitioner alleges that the cumulative effect

of counsel’s ineffective assistance during the penalty phase

prejudiced petitioner. The Court holds this claim has no merit.
36
“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

to effective assistance of counsel.” Lenz, 267 Va. at 340, 593

S.E.2d at 305.

In claim (V)(E), petitioner alleges he was denied the

effective assistance of counsel during the penalty phase because

counsel failed to seek a continuance or other relief based on the

pre-sentence report, which reflects Clayton Finch’s belief that

Detective Hoffman had “sabotaged” the defense.

The Court holds that claim (V)(E) satisfies neither the

“performance” nor the “prejudice” prong of the two-part test

enunciated in Strickland. The pre-sentence report does not include

the basis for Clayton Finch’s belief and petitioner provides

nothing to substantiate an allegation that Detective Hoffman

“sabotaged” petitioner’s defense. 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 (VI)(A), petitioner alleges he was denied the

effective assistance of counsel because during the guilt phase

counsel withdrew his proffered “mere presence” instruction when the

trial court required the instruction to be given with a “principal

in the second-degree” instruction, and because counsel failed to

request a “triggerman” instruction.
37
 The Court holds that claim (VI)(A) satisfies neither the

“performance” nor the “prejudice” prong of the two-part test

enunciated in Strickland. Counsel reasonably made a tactical

decision to avoid liability as a principal in the second-degree and

to proceed under the theory, based on petitioner’s statements, that

petitioner committed no criminal act. Counsel’s representation

does not fall “below an objective standard of reasonableness” when

counsel relies upon information supplied by his client. Curo v.

Becker, 254 Va. 486, 493, 493 S.E.2d 368, 371 (1997)(citing

Strickland, 466 U.S. at 688, 691). 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 (VI)(B)(1) and portions of (VI)(B)(2), petitioner

alleges he was denied the effective assistance of counsel during

the guilt phase because counsel failed to object to jury

instructions and verdict forms. Petitioner asserts that

instruction number 4 and the capital murder verdict form were

erroneous because they told the jury that if it did not find that

the murders were part of the same transaction, it must find

petitioner was guilty of first-degree murder rather than second-

degree murder. Petitioner further asserts the instruction and form

should have included the element of malice.

The Court holds that claim (VI)(B)(1) and these portions of

claim (VI)(B)(2) satisfy neither the “performance” nor the
38
“prejudice” prong of the two-part test enunciated in Strickland.

Instruction number 4 did not misstate the law of murder in

Virginia. This Court has previously held that where a jury is

instructed to determine “whether the killing was willful,

deliberate, and premeditated, ... a separate instruction on malice

[is] unnecessary.” Mackall v. Commonwealth, 236 Va. 240, 254, 372

S.E.2d 759, 768 (1988), cert. denied, 492 U.S. 925 (1989). As the

jury found petitioner guilty of the capital murder of Dana Thrall,

petitioner cannot demonstrate that an instruction providing the

jury the option of finding second-degree murder, if it did not find

capital murder, would have affected the jury’s decision. 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 other portions of claim (VI)(B)(2) and in claims (VI)(B)(3)

and (VI)(B)(4), petitioner alleges he was denied the effective

assistance of counsel during the guilt phase because counsel failed

to object to language contained in the verdict forms. Petitioner

contends that by adding the language “as charged in the indictment”

to the verdict forms, and because the trial court failed to

instruct the jury as to the meaning of words such as “murder” and

“felony,” the trial court rendered the forms confusing.

The Court holds that these portions of claim (VI)(B)(2) and

claims (VI)(B)(3) and (VI)(B)(4) satisfy neither the “performance”
39
nor the “prejudice” prong of the two-part test enunciated in

Strickland. The record, including the jury instructions and the

verdict forms, demonstrates that the jury was adequately instructed

and the verdict forms were not confusing. Additionally, petitioner

has not provided this Court with the definitions he contends

counsel should have sought. 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 (VI)(C)(1), petitioner alleges he was denied the

effective assistance of counsel because counsel failed to request,

at the penalty phase, an instruction, which had been given during

the first trial’s penalty phase, explaining how to evaluate victim

impact testimony. Petitioner contends that counsel’s failure to

seek this instruction led the jurors to believe that the

Commonwealth had met its burden of proving an aggravating

circumstance merely by putting on victim impact testimony.

The Court holds that claim (VI)(C)(1) 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 jury was properly instructed

that, before imposing a sentence of death, the jury must find that

the Commonwealth proved beyond a reasonable doubt the aggravating

circumstance that petitioner’s “conduct in committing the offense

was outrageously or wantonly vile, horrible, or inhuman in that it
40
involved torture, depravity of mind, or aggravated battery to the

victim beyond the minimum necessary to accomplish the act of

murder.” There is no indication that the jury failed to follow the

court’s instructions and nothing to rebut the presumption that the

jury did follow the instructions. See Emmett v. Commonwealth, 264

Va. 364, 371, 569 S.E.2d 39, 44 (2002) (holding that a jury is

presumed to follow the instructions of the court). 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 (VI)(C)(2), petitioner alleges he was denied the

effective assistance of counsel because counsel failed to object,

at the penalty phase, to defects in the signed capital murder

verdict form, which referred to (1) “capital murder” with no

definition, (2) “the offense,” which petitioner contends is a vague

and confusing term, and (3) “torture” and “depravity of the mind”

for which, petitioner contends, there was no evidence.

The Court holds that claim (VI)(C)(2) satisfies neither the

“performance” nor the “prejudice” prong of the two-part test

enunciated in Strickland. The record, including the trial

transcripts and jury verdict forms, demonstrates that the jury was

adequately instructed and the forms were not confusing.

Furthermore, the jury instructions and verdict forms properly

placed before the jury the task of determining whether the
41
Commonwealth had met its burden to prove that the murder of Dana

Thrall involved torture, depravity of the mind, or aggravated

battery to the victim beyond the minimum necessary to accomplish

the act of murder. The evidence presented at trial established

beyond a reasonable doubt that Dana Thrall’s murder involved

aggravated battery beyond the minimum necessary to accomplish the

act of murder. 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 (VI)(C)(3), petitioner alleges he was denied the

effective assistance of counsel because counsel failed to provide

the court, at the penalty phase, proper verdict forms for capital

sentencing. Petitioner asserts the forms used erroneously required

jurors to find unanimously that the Commonwealth failed to prove an

aggravating factor in order to sentence petitioner to life. In

claim (VI)(C)(4), petitioner alleges he was denied the effective

assistance of counsel because counsel failed to request an

instruction, at the penalty phase, on unanimity on “vileness” and

counsel failed to object to instruction 1 on the basis that it

improperly permitted the jury to find “vileness” without requiring

specification of, and unanimous agreement about, that statutory

element.

The Court holds that claims (VI)(C)(3) and (VI)(C)(4) satisfy

neither the “performance” nor the “prejudice” prong of the two-part
42
test enunciated in Strickland. Counsel is not unreasonable for

failing to object to jury instructions and verdict forms that follow

the statute and have previously been approved by this Court. 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 (VI)(C)(5), petitioner alleges he was denied the

effective assistance of counsel because counsel failed to object,

at the penalty phase, to inclusion of the term “torture” in the

instructions or verdict form or, in the alternative, because

counsel did not ask that “torture” be defined.

The Court holds that claim (VI)(C)(5) satisfies neither the

“performance” nor the “prejudice” prong of the two-part test

enunciated in Strickland. Counsel is not unreasonable for failing

to object to jury instructions and verdict forms that follow the

statute and have previously been approved by this Court.

Furthermore, petitioner does not articulate the grounds upon which

counsel could have reasonably objected to the use of the word

“torture” in the instructions and on the verdict form. 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.

43
 In claim (VI)(C)(6), petitioner alleges he was denied the

effective assistance of counsel because counsel failed to object,

at the penalty phase, to the inclusion of the “depravity of mind”

element in the vileness instruction when no evidence of ”depravity

of mind” existed.

The Court holds that claim (VI)(C)(6) satisfies neither the

“performance” nor the “prejudice” prong of the two-part test

enunciated in Strickland. Counsel is not unreasonable for failing

to object to jury instructions that follow the statute and have

previously been approved by this Court. 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 (VI)(C)(7), petitioner alleges he was denied the

effective assistance of counsel because counsel failed to propose

and request that the instructions include a definition of the

element of “aggravated battery beyond the minimum necessary to

accomplish the act of murder.” Petitioner contends that failure to

request such a definition invited the jury to speculate as to the

definition of aggravated battery or to assume that the mere act of

murder would be sufficient to satisfy this element.

The Court holds that claim (VI)(C)(7) satisfies neither the

“performance” nor the “prejudice” prong of the two-part test

enunciated in Strickland. The record, including Instruction No. 1,
44
demonstrates that the plain language of the instruction “aggravated

battery to the victim beyond the minimum necessary to accomplish

the act of murder” provided the definition petitioner contends

counsel should have requested. Furthermore, the instruction as

given required the jury to find more than “the mere act of murder”

to satisfy this element. 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 (VI)(C)(8), petitioner alleges he was denied the

effective assistance of counsel because counsel failed to object

that Instruction No. 6 contradicted Instruction No. 5. Petitioner

contends that the instructions are identical except that one

instructs that the punishment is three years and the other

instructs that the punishment is five years.

The Court holds that claim (VI)(C)(8) satisfies neither the

“performance” nor the “prejudice” prong of the two-part test

enunciated in Strickland. The record, including the jury

instructions, demonstrates that the instructions numbered five and

six concerned the punishments the jury was to impose for

petitioner’s two convictions for use of a firearm in the commission

of a murder, which were statutorily fixed at three years and at five
years, respectively. Counsel is not unreasonable for failing to

object to jury instructions that follow the statute. Furthermore,

as the jury had no discretion concerning these sentences, petitioner

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cannot demonstrate how any alleged confusion impacted the sentence

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 (VI)(C)(9), petitioner alleges counsel failed to

propose instructions for the penalty phase on the following five

legal principles: “defendant is presumed innocent,” “he does not

have to testify,” “he does not have to produce any evidence,” “the

burden is on the Prosecution,” and the burden is “beyond a

reasonable doubt.” Petitioner contends that the failure to

instruct the jury on these principles at the penalty phase was

confusing because they had been instructed on them during the guilt

phase.

The Court holds that claim (VI)(C)(9) 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 jury was properly instructed at

the penalty phase as to the Commonwealth’s burden to prove the

aggravating factors beyond a reasonable doubt. Upon the jury’s

determination that petitioner was guilty of the offenses for which

it would be sentencing him, petitioner was no longer presumed

innocent and an instruction otherwise would have been erroneous.

Petitioner presented evidence in mitigation and, thus, an

instruction that petitioner was not required to present evidence
46
would have been confusing. Finally, the jury was instructed during

the guilt phase that petitioner was not required to testify.

Petitioner fails to provide a legal basis for re-instructing the

jury on this issue. 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 (VI)(D), petitioner states that the Court should

grant an evidentiary hearing on whether the jury had requested an

instruction on reasonable doubt. Petitioner contends that he was

unaware of a note from the jury requesting such an instruction

until the direct appeal proceeding. On appeal, we declined to

address the issue because it was based on pure speculation and held

that petitioner’s requested relief in the form of an evidentiary

hearing could not be afforded on direct appeal. Elliott, 267 Va.

at 414-15 & n.4, 593 S.E.2d at 282 & n.4. Petitioner asks that his

convictions and sentences be reversed for failure to answer the

jury question or in the alternative “a new trial or hearing [be

granted] to establish that the request was made and not

communicated to the Defense.”

The Court holds that claim (VI)(D) is not cognizable in a

habeas corpus proceeding. Petitioner raises no allegations that

this issue is the result of ineffective assistance of counsel or

misconduct and provides no evidence that “the jury actually

intended to send the purported jury question at issue to the trial
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court for a response.” Id. at 414-15, 593 S.E.2d at 282. "The

function of a writ of habeas corpus is to inquire into

jurisdictional defects amounting to want of legal authority for the

detention of a person on whose behalf it is asked. The court in

which a writ is sought examines only the power and authority of the

court to act, not the correctness of its conclusions, and the

petition for a writ may not be used as a substitute for appeal or

writ of error." Brooks v. Peyton, 210 Va. 318, 321, 171 S.E.2d

243, 246 (1969).

In claim (VII)(A), petitioner alleges he was denied the

effective assistance of counsel on appeal because counsel failed to

assign error to the trial court’s ruling which allowed the

Commonwealth to make an argument on future dangerousness and on the

Commonwealth’s improper argument regarding victim impact testimony.

The Court holds that claim (VII)(A) satisfies neither the

“performance” nor the “prejudice” prong of the two-part test

enunciated in Strickland. 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). The record, including the trial

transcript, demonstrates that the jury was properly instructed that

it could impose the death penalty only if it were to find that the

Commonwealth had proven the vileness aggravating factor beyond a

reasonable doubt. A jury is presumed to follow its instructions

and petitioner has provided no basis upon which his appellate
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counsel could have argued that either the trial court’s ruling was

incorrect or that the jury did not follow the court’s instructions.

Furthermore, petitioner concedes that no argument or objection was

made concerning the victim impact evidence and, therefore, this

argument was not preserved for appeal. Rule 5:25. Petitioner also

does not articulate the substantive legal argument he contends

counsel should have made on these issues or how such argument would

have had merit. 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)(B), petitioner alleges he was denied the

effective assistance of counsel on appeal because counsel requested

the wrong relief when counsel requested an evidentiary hearing

instead of asking the Court to reverse his conviction on the basis

of an alleged unanswered jury question found in the record.

The Court holds that claim (VII)(B) fails to satisfy the

“prejudice” prong of the two-part test enunciated in Strickland.

The record, including this Court’s opinion, demonstrates that this

Court could not consider petitioner’s arguments on this issue

because the record was incomplete and, therefore, any consideration

would have required this Court to engage in improper speculation.

Elliott, 267 Va. at 414-15, 593 S.E.2d at 282. Thus, petitioner

has failed to demonstrate that there is a reasonable probability

that, but for counsel’s failure to seek reversal rather than an
49
evidentiary hearing, the result of the proceeding would have been

different.

In claim (VII)(C), petitioner alleges he was denied the

effective assistance of counsel on appeal because counsel failed to

present argument for and, thereby, waived assignments of error 8,

9, 10, 13, and 14. Assignments of error 8, 9 and 10 each concerned

the alleged “smoke break” statement Gragg made to police, which

Gragg claimed was memorialized and signed by her. Assignments of

error 13 and 14 concerned the sufficiency of the evidence to

support petitioner’s convictions.

The Court holds that claim (VII)(C) satisfies neither the

“performance” nor the “prejudice” prong of the two-part test

enunciated in Strickland. The record, including the trial

transcript and the appellate brief, demonstrates that assignments

of error 8, 9, 10, 13 and 14 were without merit. This Court

determined on direct appeal that there was ample evidence to

support petitioner’s convictions. Furthermore, the arguments

raised in assignments of error 8, 9 and 10 were not preserved at

trial and would have been barred by Rule 5:25, as counsel had been

given the opportunity to impeach Gragg’s testimony concerning the

alleged statement and counsel had asked for no other relief. 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. Barnes, 463 U.S. at 751-52. Counsel is certainly

not deficient for choosing to focus his arguments on issues that
50
had been properly preserved 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 claim (VII)(D), petitioner alleges he was denied the

effective assistance of counsel on appeal because counsel failed to

cite authority requiring the adoption of a narrowing instruction

regarding the vileness factors.

The Court holds that claim (VII)(D) satisfies neither the

“performance” nor the “prejudice” prong of the two-part test

enunciated in Strickland. This Court does not require a trial

court to define the statutory terms or for a jury to receive

instructions beyond the statutory factors. See Bunch v.

Commonwealth, 225 Va. 423, 442, 304 S.E.2d 271, 282, cert. denied,

464 U.S. 977 (1983). Furthermore, the holding in Apprendi v. New

Jersey, 530 U.S. 466 (2000) does not require jury instructions on

the definitions of the composite parts of Virginia’s vileness

aggravator. 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)(E), petitioner alleges he was denied the

effective assistance of counsel on direct appeal because counsel

failed to argue that, based on errors made during the trial, the

perjured testimony, prosecutorial misconduct, and the fact that the
51
evidence against petitioner was minimal, circumstantial, and

conflicting, the jury’s verdict was not the product of a reasoned

and dispassionate deliberation.

The Court holds that claim (VII)(E) satisfies neither the

“performance” nor the “prejudice” prong of the two-part test

enunciated in Strickland. On direct appeal, this Court reviewed

the record and considered, as required by Code § 17.1-313(C)(1),

whether the jury imposed petitioner’s death sentence under the

influence of passion, prejudice, or any other arbitrary factor and

determined that the sentence was appropriate. Petitioner does not

articulate how an affirmative argument by counsel would have

affected this Court’s mandatory review, nor does petitioner

articulate the specific arguments he contends counsel should have

made. 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), petitioner claims that the cumulative effect

of all the preceding claims demonstrates that the Court should

grant petitioner relief. The Court holds that claim (VIII) has no

merit. “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 to effective assistance of counsel.” Lenz,

267 Va. at 340, 593 S.E.2d at 305.
52
 Upon consideration whereof, petitioner’s motions for leave to

issue subpoenas duces tecum; for leave to depose petit jurors; for

leave to propound interrogatories; for an order releasing physical

evidence for examination and authorization to retain a DNA expert,

a crime scene reconstruction expert, a blood spatter expert, and a

fingerprint expert; for leave to conduct depositions of witnesses;

for leave to amend his habeas corpus petition with a recently

discovered due process claim and to conduct discovery; and for oral

argument are denied. Upon further consideration whereof, the

respondent’s motion to strike petitioner’s exhibits containing

hearsay testimony is denied and the exhibits are considered

pursuant to the appropriate evidentiary rules; petitioner’s motion

to strike a letter and an exhibit filed in support of the warden’s

motion is denied.

Accordingly, the petition is dismissed.

This order shall be published in the Virginia Reports.

A Copy,

Teste:

Patricia L. Harrington, Clerk

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