PRESENT: Lacy, Keenan, Koontz, Kinser, Lemons, and Agee, JJ.,
and Carrico, S.J.
TERESA LEWIS
v. Record No. 042743 OPINION BY JUSTICE BARBARA MILANO KEENAN
WARDEN OF THE FLUVANNA
CORRECTIONAL CENTER
UPON A PETITION FOR A WRIT OF HABEAS CORPUS
The petitioner, Teresa Wilson Bean Lewis (Lewis), pleaded
guilty to seven felonies and was convicted of those offenses in
the Circuit Court of Pittsylvania County. The offenses included
the capital murder of Charles J. Lewis, in violation of Code
§ 18.2-31(2) (capital murder for hire); the capital murder of
Julian Clifton Lewis, Jr., in violation of Code § 18.2-31(2);
conspiracy to commit capital murder in violation of Code
§§ 18.2-22 and -31; robbery of Julian Clifton Lewis, Jr., in
violation of Code § 18.2-58; use of a firearm in the commission
of the murder of Julian Clifton Lewis, Jr., in violation of Code
§ 18.2-53.1; use of a firearm in the commission of the murder of
Charles J. Lewis, in violation of Code § 18.2-53.1; and use of a
firearm in the commission of the robbery of Julian Clifton
Lewis, Jr., in violation of Code § 18.2-53.1. The circuit court
sentenced Lewis to death for each conviction of capital murder
for hire, to life imprisonment for the robbery conviction, and
to 33 years’ total imprisonment for the conspiracy and firearms
1
convictions. This Court affirmed the circuit court’s judgment
in Lewis v. Commonwealth, 267 Va. 302, 593 S.E.2d 220 (2004).
Pursuant to Code § 8.01-654, Lewis filed a petition for a
writ of habeas corpus against Barbara Wheeler, the warden of
Fluvanna Correctional Center. Lewis made several claims,
including that she was denied the effective assistance of
counsel based on counsel’s failure to conduct an adequate
investigation of mitigation evidence and counsel’s further
failure to present such mitigation evidence during the penalty
phase of her trial.1
This Court entered an order pursuant to Code § 8.01-654(C),
directing the circuit court to conduct an evidentiary hearing
limited to claims alleging counsel’s failure to investigate and
present mitigation evidence. The circuit court conducted an
evidentiary hearing (habeas hearing) and submitted a report to
this Court stating the circuit court’s findings of fact and
recommended conclusions of law.2 See Code § 8.01-654(C)(3).
I. FACTS & PROCEEDINGS INVOLVING LEWIS’ GUILTY PLEA
Before the circuit court accepted Lewis’ guilty pleas, the
court considered a competency assessment of Lewis prepared by
Barbara G. Haskins, M.D., a board-certified forensic
1
Lewis raised several additional claims in her petition for
a writ of habeas corpus. We have dismissed those additional
claims today in a separate order.
2
psychiatrist. Dr. Haskins opined that Lewis had the capacity to
enter pleas of guilty to charges of capital murder for hire and
had the ability to understand and appreciate the possible
penalties that might result from those pleas.
Haskins stated in her written competency assessment to the
circuit court:
Ms. Lewis is aware of her charges and the possible
penalties she is facing (life without parole or death). She
knows who her attorneys are and feels comfortable working
with them. She is able to provide them with information,
and to ask questions.
Cognitive testing showed a Full Scale IQ of 72. Verbal IQ
was 70, and Performance IQ was 79 . . .
She is aware of the possibility of entering evidence for
mitigation, should she be convicted. She is able to help
develop such evidence.
Dr. Haskins concluded that Lewis was competent to stand trial
and to enter pleas to the pending charges.3 After considering
this report and upon Lewis’ pleas of guilty to the seven
charges, the circuit court questioned Lewis and determined that
her guilty pleas were made freely, voluntarily, and
intelligently.
The circuit court accepted the Commonwealth’s written
summary of evidence that the Commonwealth would have presented
2
The Honorable Charles J. Strauss conducted the evidentiary
hearing and submitted the required report to this Court.
3
Dr. Bernice A. Marcopulos, a clinical neuropsychologist,
was appointed by the circuit court to administer I.Q. tests to
3
had the case proceeded to trial. We will recite the relevant
facts surrounding the offenses as described in our opinion in
Lewis.
Julian Clifton Lewis, Jr., (Julian) was employed for
several years by Dan River, Inc. (Dan River). In 2000, Julian
met Lewis, who also was employed by Dan River. Lewis began to
live with Julian at his home in Danville, and they later
married.
In December 2001, Julian’s older son, Jason Clifton Lewis,
died in a car accident. Julian was the beneficiary of his son’s
life insurance policy, from which Julian received proceeds in
excess of $200,000. He placed those proceeds in a draft account
with Prudential Securities, Inc. The sums deposited in the
account were accessible only by use of drafts bearing Julian’s
signature.
In February 2002, Julian purchased a five-acre parcel of
land in Pittsylvania County. He also purchased a mobile home
and placed it on the property, where he and Lewis resided.
In August 2002, Julian Lewis’ younger son, Charles J. Lewis
(C.J.), a member of the United States Army Reserve, was summoned
for active duty. According to Lieutenant Michael Booker, C.J.’s
commanding officer, C.J. made arrangements for the disposition
Lewis. The results of her testing appeared in Dr. Haskins’
competency assessment.
4
of his estate in the event that he died while on active duty.
C.J. executed a will, which identified his father as his primary
beneficiary and his stepmother, Lewis, as the secondary
beneficiary. C.J. obtained a life insurance policy in the
amount of $250,000 payable in the event of his death. He
designated his father as the primary beneficiary of the life
insurance policy and Lewis as the secondary beneficiary.
In the autumn of 2002, Lewis met Rodney L. Fuller and
Matthew J. Shallenberger at a retail store. Before this
meeting, Lewis did not know these men. After engaging in a
conversation, Shallenberger and Lewis exchanged telephone
numbers and began to communicate frequently. They discussed a
plan in which Shallenberger, with Fuller’s help, would kill
Julian and receive a share of insurance proceeds Lewis might
obtain.
On one occasion, Lewis and her 16-year-old daughter,
Christie Bean (Christie), met Shallenberger and Fuller at a
parking lot in Danville. Christie, who had never met Fuller,
had sexual intercourse with him in one car while Lewis and
Shallenberger engaged in sexual intercourse in another vehicle.
On a later date, Fuller and Shallenberger went to Lewis’ home
where she performed a “lingerie show” for the men, and she had
sexual intercourse with both men.
5
On October 23, 2002, Lewis met Shallenberger and Fuller at
a shopping center in Danville. Lewis gave the men $1,200 in
cash to purchase firearms and ammunition to kill Julian.
Antwain D. Bennett, an acquaintance of Shallenberger, used the
money to purchase three firearms and ammunition for the weapons.
Two of the firearms were shotguns.
On that same date, Lewis related to Shallenberger and
Fuller the route that Julian traveled from his place of
employment to his home. The men planned to kill Julian and
“make the murder . . . look like a robbery.” While Lewis
remained at her home, the men were “to follow and stop Julian
Lewis on the highway and kill him.” The plan, however, was
unsuccessful.
As a result, Lewis, Shallenberger, and Fuller decided to
kill Julian at his home on October 30, 2002. They also decided
to kill his son, C.J., when he returned to Virginia to attend
his father’s funeral, and to share the proceeds from C.J.’s life
insurance policy. However, when the conspirators learned that
C.J. would be with his father at the mobile home on October 30,
2002, they decided to kill C.J. and his father at the same time.
During the early morning hours of October 30, 2002,
Shallenberger and Fuller drove a vehicle past Lewis’ home about
three times. The men did not stop their vehicle because they
observed that lights were on in the home. Eventually,
6
Shallenberger and Fuller entered the residence through a rear
door that Lewis had unlocked. Each man carried one of the
shotguns that had been purchased with the $1,200 cash provided
by Lewis.
Shallenberger and Fuller awakened Lewis, who was in bed
with her husband. Shallenberger told Lewis, “Teresa, get up.”
After Lewis left the bed and walked into the kitchen, she heard
gunshots.
Shallenberger shot Julian several times. Immediately
afterward, Lewis went to the bedroom where her husband lay
bleeding, retrieved Julian’s pants and wallet, and returned to
the kitchen with Shallenberger.
Fuller entered a room that was occupied by C.J. After
Fuller shot C.J. three times, Fuller went to the kitchen where
he observed Lewis and Shallenberger “pulling money from a
wallet.” Fuller told Lewis and Shallenberger that C.J.
“wouldn’t die.” Fuller obtained Shallenberger’s shotgun and
returned to the bedroom occupied by C.J., shooting him two more
times. The men collected most of the shotgun shells, and they
divided the $300 in currency that had been removed from Julian’s
wallet.
After dividing the money with Fuller, Shallenberger told
Lewis that he was sorry she “had to go through something like
this; hugged her and kissed her; and the men left.” Lewis
7
waited about 45 minutes after the “last shot was fired,” and
then made a telephone call to her former mother-in-law, Marie
Bean. Next, she made a telephone call to her close friend,
Debbie Yeatts.
On Wednesday morning, October 30, 2002, about 3:55 a.m.,
Lewis placed a telephone call to emergency response personnel in
Pittsylvania County. She reported that an intruder had entered
her home and had shot her husband and his adult son. Lewis
stated that both men were dead. She said that she had been in
bed with her husband when an intruder armed with a pistol
entered the bedroom and said, “Get up.”
Lewis further reported that her husband directed her to go
into the bathroom. According to Lewis, her husband asked the
intruder, “What’s going on?” Lewis said that her husband was
shot four or five times while she was in the bathroom. She
reported that the shooting occurred at 3:15 or 3:30 a.m.
Sheriff’s deputies Harris Silverman and Corey Webb arrived
at the murder scene about 4:18 a.m., 23 minutes after Lewis made
the telephone call to the emergency response personnel. When
the deputies met Lewis at the front door of her home, she
informed them that her husband’s body was on the floor in one
bedroom and that her stepson’s body was in another bedroom.
As Deputy Webb entered the master bedroom, he observed that
Julian was still alive. Julian “made slow moans” and uttered,
8
“[B]aby, baby, baby, baby.” Deputy Webb asked the victim his
name, and he responded, “Julian.” When Deputy Webb asked Julian
if he knew who had shot him, the victim responded, “My wife
knows who done this to me.”
While the deputies tried to assist the victims, Deputy Webb
observed Lewis conversing on the telephone, and he heard her
state, “I told C.J. about leaving that back door unlocked.”
When Deputy Webb informed Lewis that her husband had died, she
did not appear upset.
Investigator J.T. Barrett of the Pittsylvania County
Sheriff’s Office arrived at the murder scene about 7:00 a.m. on
October 30, 2002. When Barrett interviewed Lewis, she claimed
that her husband had physically assaulted her a few days before
his death, and she denied having knowledge about her husband’s
killer. She said that she would not have killed her husband or
have had him killed.
Investigator Barrett asked Lewis what she and her husband
did before they went to bed on the night of the murders. She
said that she talked with her husband, and that they prayed
together. She stated that her husband went to sleep, and that
she arose to prepare his lunch for the next day. After
preparing the lunch, Lewis placed it in the refrigerator. She
wrote a note on a lunch bag that stated, “I love you. I hope you
have a good day.” A picture of a “smiley face” was drawn on the
9
bag and inscribed in the “smiley face” was the message, “I miss
you when you’re gone.”
Mike Campbell, Julian’s supervisor, testified that Julian
did not use lunch bags to bring his lunch to work. Instead,
Julian took his lunch to work in a blue and white cooler.
Investigator Keith N. Isom interviewed Lewis on November 7,
2002. During this interview, Lewis admitted that she had
offered Shallenberger money to kill her husband. After this
interview, Lewis again spoke with Investigator Isom. Lewis told
Isom that she had met her husband’s killer at a retail store and
that he was from New York. Lewis stated that she “let him in”
her mobile home, and that Shallenberger shot both Julian and
C.J., took some money, and left the home. Lewis told
Investigator Isom that she had agreed to give Shallenberger one-
half the insurance proceeds she expected to receive, but that
she changed her mind and decided to keep all the money. After
Lewis provided Investigator Isom with Shallenberger’s address,
she and Isom went to Shallenberger’s residence where Lewis
identified him.
On November 8, 2002, while incarcerated in the Danville
City Jail, Lewis asked to speak with Investigator Isom. When
Isom interviewed her at the jail, she informed him that Rodney
Fuller also was involved in the murders of her husband and her
stepson. In addition, Lewis “acknowledged that after the
10
shooting and after the men left the house [on the night of the
murders], she had waited about thirty minutes to call 911.”
On the day of the murders, Lewis made a telephone call to
Mike Campbell at Dan River. She informed Campbell that Julian
had been killed, and stated that she wanted his paycheck.
Campbell told Lewis that she could not retrieve the paycheck
before 4:00 p.m. on that day. The next day, October 31, 2002,
Lewis again called Campbell requesting Julian’s paycheck.
Campbell responded that he could not give the paycheck to her.
Lieutenant Michael Booker, C.J.’s commanding officer,
contacted Lewis by telephone to express his condolences during
the afternoon of October 30, 2002, the day of the murders.
Lewis told Booker, “I’m still in shock. The police had me in
Chatham today, all in my face. There is no way I would have
killed my husband and stepson. They guessed that because I
didn’t get shot that I might have done it. My husband told me
to go into the bathroom, so I did.” Lewis informed Booker that
she was the secondary beneficiary of the life insurance policy
held by C.J., and that she wanted to collect the insurance
proceeds.
On November 4, 2002, Lewis placed a telephone call to
Booker and left a message for him because he was not available.
When Booker spoke with her later that day, Lewis inquired about
C.J.’s personal effects. Booker advised Lewis that she could
11
not have them because she was not the beneficiary of C.J.’s
estate. Lewis asked Booker whether she was still entitled to
the life insurance proceeds in the amount of $250,000. When
Booker told Lewis that she was, Lewis responded, “[W]ell, Kathy
[C.J.’s sister] can have all his stuff as long as I get the
money.”
Before the murders, Lewis stated to an acquaintance, Debbie
Anderson, that she was just “using Julian for money and that he
would buy her things.” Bobby Demont, who had known Julian and
Lewis for several years, heard Lewis comment “a couple months
before the murders” that if Julian died, “she would get the
money, and if [C.J.] was killed and Julian was dead, she would
get that money, too.”
Lewis related to Kathy L. Clifton (Clifton), Julian’s
daughter, that Lewis waited until 45 minutes after the murders
before contacting anyone. According to Lewis, she placed
telephone calls to her ex-mother-in-law, Marie Bean, and to her
friend, Debbie Yeatts, before she “called 911 for help.”
After the murders, but before the funeral, Lewis had made a
number of statements in Clifton’s presence to the effect that
Lewis had ample money to pay for the funerals. Clifton also
heard Lewis state that she would benefit financially because of
the deaths of Julian and C.J.
12
Less than one week after the murders, Lewis attempted to
withdraw $50,000 from Julian’s account with Prudential
Securities. Lewis appeared at a bank and presented a check,
purportedly signed by Julian and made payable to her in the
amount of $50,000. A bank employee refused to negotiate the
check because the signature on the check did not match Julian’s
signature in the bank’s records.
Sheriff’s deputies later searched the mobile home where
Shallenberger and Fuller resided. Two shotguns were recovered
from the residence and delivered to a forensic science
laboratory for analysis. According to the laboratory analysis,
the shotgun shells recovered from the room where Julian was
murdered were fired by one of the shotguns seized from the
mobile home where Shallenberger and Fuller lived.
While searching the mobile home occupied by Shallenberger
and Fuller, the deputies also found two pair of rubber gloves in
a closet in Shallenberger’s bedroom. The gloves later were
determined to have a primer residue on them as a result of the
discharge of a firearm bullet or shell.
A medical examiner performed autopsies on the bodies of
Julian and C.J. She determined that each man died as a direct
result of multiple shotgun wounds and extensive blood loss.
According to the medical examiner, C.J.’s injuries caused rapid
13
death, while Julian survived for about one hour after he was
shot.
At the sentencing hearing, Lewis’ counsel presented the
following evidence. Eddie Rojas, Lewis’ probation officer who
began supervising Lewis in 2000 after she was convicted of
forgery of a drug prescription, testified that Lewis had
complied with the terms of her probation and that she had never
demonstrated any type of violence. Bruce W. Hammock, Lewis’
sister’s fiancé and family friend for many years, also testified
that he had never seen Lewis behave violently.
Lewis’ counsel also introduced a letter from an official at
Lewis’ place of imprisonment, which advised that Lewis had not
received any adverse disciplinary reports during her five months
of incarceration. Finally, Lewis’ counsel told the circuit
court that Lewis’ father, brother, and sister were present and
would “testify that they love[d] [Lewis] and care about her, and
they don’t want her to die,” but that the family members did not
need to testify because “the court’s used to that kind of
testimony.”
The circuit court found that Lewis’ conduct was
outrageously or wantonly vile, horrible, or inhuman, and
sentenced her to death for both capital murder for hire
offenses. The circuit court stated that the defendant’s
sentences of death were based upon the statutory vileness
14
predicate because her acts reflected a depravity of mind. The
circuit court also concluded that Shallenberger and Fuller had
committed aggravated batteries upon each victim, and that those
aggravated batteries were imputed to Lewis.
II. STANDARD OF REVIEW
When a circuit court submits findings of fact after our
certification of issues for an evidentiary hearing under Code
§ 8.01-654(C), we are bound by such findings resolving disputed
issues of fact unless those findings are plainly wrong or are
not supported by the evidence. Lovitt v. Warden, 266 Va. 216,
229, 585 S.E.2d 801, 808 (2003); Hedrick v. Warden, 264 Va. 486,
496, 570 S.E.2d 840, 847 (2002). However, the circuit court’s
recommended conclusions of law submitted under Code § 8.01-
654(C) are subject to our de novo review. See id.
III. HABEAS HEARING
At the habeas hearing, Lewis presented evidence regarding
counsel’s alleged failure to provide effective assistance both
before and during her trial. The issues that we address in this
opinion involve trial counsel’s conduct related to 1) their
decisions concerning the investigation and presentation of
mitigation evidence for Lewis’ sentencing hearing, and 2) their
advice to Lewis that she plead guilty.
A. EVIDENCE ON MENTAL RETARDATION & FUNCTIONAL ABILITIES
15
The Commonwealth presented the testimony of Leigh D. Hagan,
Psy.D., a forensic and clinical psychologist, who evaluated
Lewis based on a personal interview and on his review of Lewis’
records. According to Dr. Hagan, Lewis does not meet the
criteria for mental retardation established in Code § 19.2-
264.3:1.1.
As part of his evaluation, Dr. Hagan administered the same
intelligence test that Lewis had been given during the earlier
assessment of her competency to stand trial. Dr. Hagan reported
that Lewis obtained a full scale I.Q. test score of 70, a
performance I.Q. test score of 74, and a verbal I.Q. test score
of 72. After considering Lewis’ various achievements during her
life, Dr. Hagen concluded that these I.Q. test scores
represented an “underestimate” of Lewis’ intellect, and that she
had not put forth her best effort during the I.Q. test.
Dr. Hagan provided examples of Lewis’ “adaptive
functioning,” which he stated supported his conclusion that
Lewis was not mentally retarded. Dr. Hagen noted that Lewis had
never failed a grade level at school, and had not been
terminated from any job due to an inability to understand her
employment duties. Lewis also had demonstrated the conceptual
ability to respond and attend to her parents’ needs, and she had
successfully completed a certified nursing assistant program at
a local community college.
16
In addition, Dr. Hagan reported that Lewis was a “prolific”
writer during her incarceration, frequently sending letters to
various “pen pals” and trial counsel. According to Dr. Hagan,
Lewis also planned and appeared for cosmetic appointments while
incarcerated in preparation for her court appearances. Based on
these observations, Dr. Hagan opined that Lewis had the capacity
to act intentionally to plan and help execute the crimes and to
attempt to profit from the murders.
Philip R. Costanzo, Ph.D., a psychologist retained by
Lewis’ habeas counsel to assist in the habeas proceedings,
testified that he “could not rule out mental retardation” based
on Lewis’ academic performance, her inconsistent employment
history, and her many short-term relationships with men.
Although Dr. Costanzo stated that Lewis had an intellect
equivalent to that of a 12 or 13 year old, he admitted that
members of his profession have discredited this type of
assessment for more than 80 years. Dr. Costanzo also opined
that Lewis did not have the mental ability to autonomously
initiate or lead the planning and execution of the murders.
Other witnesses described Lewis’ abilities to plan, lead,
and implement various actions. Deborah T. Grey, a licensed
clinical social worker retained by Lewis’ habeas counsel to
perform a “mitigation analysis,” testified that numerous people
17
she interviewed reported that Lewis had “difficulty planning
beyond the next day.”
Grey also reported that Lewis attended six different
schools before she reached the seventh grade and that she did
not advance beyond the tenth grade. Grey stated that Lewis held
49 jobs over a period of 14 years and repeatedly had difficulty
maintaining consistent attendance at work.
Jonathon D. Presley, a former boyfriend of Lewis, testified
that Lewis was a good friend, was “good to [Lewis’] mother,” and
was never violent. Presley also testified, however, that Lewis
was not an organized person, and that she lived “in the moment.”
Other witnesses reported that Lewis was a helpful person
who was capable of completing household chores, “running
errands,” and cooking. Melvin C. Wilson, Sr. (Wilson), Lewis’
father, testified that Lewis helped her mother in many ways when
her mother was ill, including cooking for her parents, bathing
her mother, cleaning the house, and taking her mother to
doctor’s appointments. Family members confirmed that Lewis was
her mother’s primary caregiver for a period of time before her
mother died.
Elinore F. McCance-Katz, M.D., Ph.D., a psychiatrist whose
practice involves issues related to different types of
addiction, testified at the habeas hearing about Lewis’ mental
condition around the time of the murders. After interviewing
18
Lewis and reviewing her various records, Dr. McCance-Katz
concluded that although Lewis has a low level of intellectual
functioning, she is not mentally retarded.
According to Dr. McCance-Katz, Lewis suffered from
prescription drug addiction at the time of the murders, and
exhibited impulsivity and a dependent personality. Dr. McCance-
Katz further opined that based on Lewis’ additional problems
with drugs and alcohol, it is unlikely that she had the ability
to be a “leader” in the murders of her husband and stepson. Dr.
McCance-Katz admitted, however, that Lewis’ conduct around the
time of the murders was deliberate and “goal-directed,” and was
not affected by her use of prescription drugs.
B. EVIDENCE OF DEPENDENT PERSONALITY DISORDER
Several of Lewis’ friends and family members testified at
the habeas hearing that Lewis constantly sought the attention of
men. A number of witnesses also stated that Lewis had a strong
desire to please others and allowed men to “take advantage” of
her.
Dr. Haskins also testified at the habeas hearing. In her
capacity as a mental health expert assisting Lewis on the
several felony charges at trial, Dr. Haskins had prepared a
lengthy report for Lewis’ trial counsel. The report included
historical information regarding Lewis’ development, education,
19
employment, legal background, family, medical treatment, and
drug use.
Dr. Haskins testified that, at the time of trial, she
reported to trial counsel that she lacked “adequate information
to confidently state” that Lewis met the criteria for dependent
personality disorder. However, Dr. Haskins did indicate to
trial counsel that Lewis had traits of a dependent personality.
After reviewing additional information contained in Grey’s
mitigation report, Dr. Haskins testified at the habeas hearing
that Lewis did meet the criteria for dependent personality
disorder.
Dr. Costanzo also opined that Lewis suffered from dependent
personality disorder. He stated that Lewis met six of the eight
criteria for the disorder, including that she had trouble making
decisions on her own, difficulty expressing disagreement with
others, and difficulty initiating projects because of a lack of
self-confidence.
In contrast, Dr. Hagan concluded that Lewis did not suffer
from dependent personality disorder. According to Dr. Hagan,
Lewis had dependent personality traits, but these traits did not
rise to the level of a disorder.
Thomas M. Blaylock, trial counsel for Lewis, testified that
the facts of Lewis’ case demonstrated that Lewis took several
independent steps to plan the murders and to attempt to collect
20
money after the murders. Thus, Blaylock concluded that an
argument raising Lewis’ potential personality disorder would
have been unsuccessful at trial.
C. EVIDENCE OF PRESCRIPTION DRUG ABUSE
Dr. Louis Eliacin, a gynecologist, treated Lewis for 15
years. He testified that he performed four surgeries on Lewis
and prescribed pain medication to relieve various problems Lewis
had related to ovarian cysts and endometriosis.
According to Dr. Eliacin, at some point during his
treatment of Lewis, he determined that Lewis was addicted to
pain medication, and he recommended that she seek help for her
addiction. Dr. Eliacin’s medical records showed that on October
1, 2002, a staff member in his office informed Lewis that Dr.
Eliacin would no longer prescribe pain medication for her.
Grey testified that Lewis had a long history of medical
problems, including various surgeries and diagnoses of anxiety
and depression. Grey, a certified substance abuse counselor,
opined that Lewis was addicted to prescription medication.
According to Grey, her review of Lewis’ pharmaceutical and
medical records from 2002 showed that four doctors
simultaneously prescribed narcotics for Lewis. Grey also
determined that during this time period, in addition to
narcotics, Lewis also used a variety of other “mind and mood
21
altering medications,” including muscle relaxants, sedatives,
and antidepressants.
Several witnesses reported that Lewis took pain medications
prescribed for other persons, including family members, a
friend, and Julian. Lewis’ father and sister both stated that
Lewis often took too much pain medication and that, when she did
this, her speech was slurred, she did not “act herself,” and she
talked “out of her mind.” According to Lewis’ sister, Cynthia
D. W. Sams, Lewis’ behavior was affected by her overuse of pain
medication in the fall of 2002. Lewis’ father, Wilson,
testified that he witnessed Lewis two days before the murders
acting as if she had taken too many pills.
Dr. McCance-Katz opined that Lewis had been severely
addicted to a variety of medications and to alcohol. This
conclusion was based on her interview with Lewis and a review of
Lewis’ pharmaceutical records. Relying on these sources, Dr.
McCance-Katz determined that as of October 15, 2002, Lewis was
taking migraine headache medication and narcotics, and that
these drugs generally impair a person’s thinking, reasoning,
judgment, and concentration. Dr. McCance-Katz concluded that
the large amounts of medications Lewis was taking around the
time of the murders could have caused her to appear “uncaring”
and have little expression.
22
Dr. Haskins testified that at the time of her assessment of
Lewis’ competency to stand trial, she had concluded that Lewis
had a “narcotic dependence.” David A. Furrow, also trial
counsel for Lewis, acknowledged that he and Blaylock knew about
Lewis’ prescription drug abuse. Furrow explained, however, that
no evidence showed that Lewis was under the influence of drugs
at the time of the offenses, and that Lewis denied taking any
drugs during that time. Lewis also had told police during the
videotaped interview that she had disposed of her pain
medication before the time of the murders. According to
Blaylock, in his experience trying capital murder cases, he had
“never seen success with people using [the excuse that] I was
taking drugs voluntarily and therefore I should be excused for
committing murder.”
Dr. Hagan testified that the evidence was insufficient to
conclude that Lewis suffered from drug addiction. Dr. Hagan
noted in his report that to the extent Lewis was abusing
prescription medication, that abuse did not cause any “extreme
mental or emotional disturbance.” In addition, according to a
nurse from the jail where Lewis initially was incarcerated,
Lewis made no medical complaints of drug withdrawal or other
symptoms during her stay in the jail from the beginning of
November 2002 through December 2002.
23
D. TRIAL COUNSEL’S ADVICE ABOUT GUILTY PLEA
Furrow testified that counsel wrote Lewis a letter
regarding the issue whether she should plead guilty and later
met with Lewis and discussed “every aspect” of Lewis’ decision
to enter a guilty plea. Furrow also testified that he explained
to Lewis the possible mitigation evidence they could present
during the penalty phase of trial. Furrow acknowledged that he
did not explain to Lewis that if she were mentally retarded she
would not be subject to the death penalty, because he had no
reason to conclude that Lewis was mentally retarded. Blaylock
testified that Lewis understood everything counsel explained to
her with regard to her choice whether to plead guilty.
IV. DISCUSSION
Lewis argues that her trial counsel provided ineffective
assistance of counsel. Lewis contends that trial counsel 1)
failed to adequately investigate and present mitigation
evidence; and 2) failed to adequately advise Lewis on her
decision whether to plead guilty.
We consider Lewis’ claims under established principles and
first review her assertion that trial counsel were ineffective
in their investigation and presentation of mitigation evidence.
A defendant’s right to counsel under the Sixth Amendment
includes the right to effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 685-86 (1984); see
24
Yarborough v. Gentry, 540 U.S. 1, 5 (2003); Roe v. Flores-
Ortega, 528 U.S. 470, 476 (2000); United States v. Cronic, 466
U.S. 648, 654 (1984); West v. Director, Dep’t of Corrections,
273 Va. 56, 62, 639 S.E.2d 190, 194 (2007); Yarbrough v. Warden,
269 Va. 184, 196, 609 S.E.2d 30, 36 (2005). 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. Strickland,
466 U.S. at 687; see Wiggins v. Smith, 539 U.S. 510, 521 (2003);
Kimmelman v. Morrison, 477 U.S. 365, 384 (1986); West, 273 Va.
at 62, 639 S.E.2d at 194; Yarbrough, 269 Va. at 196, 609 S.E.2d
at 37.
The issue whether counsel provided effective assistance at
trial presents a mixed question of law and fact. Strickland,
466 U.S. at 698; see Yarbrough, 269 Va. at 198, 609 S.E.2d at
38. 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. Strickland, 466 U.S. at 687; see
Wiggins, 539 U.S. at 521; Williams v. Taylor, 529 U.S. 362, 390
(2000); West, 273 Va. at 62, 639 S.E.2d at 194; Yarbrough, 269
Va. at 196, 609 S.E.2d at 37.
The petitioner first must show that “counsel’s
representation fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 687-88; see also
25
Wiggins, 539 U.S. at 521; Bell v. Cone, 535 U.S. 685, 695
(2002); Williams, 529 U.S. at 390-91; 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; see also Kimmelman, 477 U.S. at 381; Darden v. Wainwright,
477 U.S. 168, 185-86 (1986); West, 273 Va. at 62, 639 S.E.2d at
194; Yarbrough, 269 Va. at 196, 609 S.E.2d at 37.
To show that counsel’s conduct fell outside the range of
reasonable professional assistance, a petitioner must overcome
the presumption that under the particular circumstances
presented, the challenged actions may be considered sound trial
strategy. Strickland, 466 U.S. at 689; Yarbrough, 269 Va. at
196, 609 S.E.2d at 37; Lovitt, 266 Va. at 249, 585 S.E.2d at
820; see Yarborough, 540 U.S. at 8; Bell, 535 U.S. at 698;
Darden, 477 U.S. at 186. However, “‘strategic choices made
after less than complete investigation are reasonable’ precisely
to the extent that ‘reasonable professional judgments support
the limitations on investigation.’ ” Wiggins, 539 U.S. at 521
(quoting Strickland, 466 U.S. at 690-91); Yarbrough, 269 Va. at
196, 609 S.E.2d at 37; see also Burger v. Kemp, 483 U.S. 776,
794 (1987).
26
With respect to the investigation and presentation of
mitigation evidence, the Supreme Court observed in Wiggins that
“Strickland does not require counsel to investigate every
conceivable line of mitigating evidence no matter how unlikely
the effort would be to assist the defendant at sentencing. Nor
does Strickland require defense counsel to present mitigating
evidence at sentencing in every case.” Wiggins, 539 U.S. at
532; Yarbrough, 269 Va. at 197, 609 S.E.2d at 37.
Instead, in deciding whether trial counsel exercised
reasonable professional judgment with regard to the
investigation and presentation of mitigation evidence, a
reviewing court must focus on whether the investigation
resulting in counsel’s decision not to introduce certain
mitigation evidence was itself reasonable. Wiggins, 539 U.S. at
523; Strickland, 466 U.S. at 690-91; Yarbrough, 269 Va. at 197,
609 S.E.2d at 37. When making this assessment, “a court must
consider not only the quantum of evidence already known to
counsel, but also whether the known evidence would lead a
reasonable attorney to investigate further.” Wiggins, 539 U.S.
at 527; see also Yarbrough, 269 Va. at 197, 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
27
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; see
also Wiggins, 539 U.S. at 534; Williams, 529 U.S. at 390-91;
Yarbrough, 269 Va. at 197-98, 609 S.E.2d at 37; Lovitt, 266 Va.
at 250, 585 S.E.2d at 821.
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 Yarbrough,
269 Va. at 197, 609 S.E.2d at 37; Lovitt, 266 Va. at 250, 585
S.E.2d at 821.
The reviewing court must make its prejudice determination
by considering the totality of evidence before the trier of
fact. Strickland, 466 U.S. at 695; see Kimmelman, 477 U.S. at
381. Further, when a prejudice determination concerns the
failure to pursue the presentation of mitigation evidence, the
reviewing court must evaluate the totality of the available
mitigation evidence, both that adduced at trial and that
presented at the habeas hearing that should have been presented
at trial. Wiggins, 539 U.S. at 536; Williams, 529 U.S. at 397-
28
98; Yarbrough, 269 Va. at 198, 609 S.E.2d at 38; Lovitt, 266 Va.
at 250, 585 S.E.2d at 821.
In the present case, Lewis alleges that trial counsel
provided ineffective assistance because they failed to present
available mitigation evidence during the penalty phase of her
trial. Lewis contends that counsel should have presented
evidence to rebut the Commonwealth’s theory that Lewis was the
“mastermind” of the murder conspiracy. According to Lewis, her
low mental functioning, prescription drug addiction, and
dependent personality disorder rendered her incapable of acting
with a “depraved mind” because these problems impacted her
ability to function and exercise judgment, resist demands, and
display emotions. Lewis argues that if counsel had presented
this evidence, there is a reasonable probability that Lewis
would have been sentenced to life in prison rather than to
death.
In addressing these allegations, as recommended by the
Supreme Court in Strickland, we move directly to consider the
second prong of the two-part test, namely, the issue whether
Lewis suffered prejudice sufficient to undermine confidence in
the outcome of the proceedings as a result of her counsel’s
alleged failure to investigate and present certain available
mitigation evidence. See Strickland, 466 U.S. at 694; Williams,
529 U.S. at 391, Yarbrough, 296 Va. at 198, 609 S.E.2d at 38;
29
Lovitt, 266 Va. at 252, 585 S.E.2d at 822. We conduct our
prejudice analysis without any deference to the circuit court’s
recommended conclusions of law, because this issue is subject to
our de novo review. Yarbrough, 296 Va. at 198, 609 S.E.2d at
38; Lovitt, 266 Va. at 229, 585 S.E.2d at 808; Hedrick, 264 Va.
at 496, 570 S.E.2d at 847; see Strickland, 466 U.S. at 698.
Further, because we proceed solely under the prejudice prong of
Strickland, we review all the evidence in the trial and habeas
records and do not rely on the circuit court’s findings of fact.
See Wiggins, 539 U.S. at 536.
In determining prejudice, we “reweigh the evidence in
aggravation against the totality of available mitigation
evidence.” Wiggins, 539 U.S. at 534; see also Williams, 529
U.S. at 397-98; Yarbrough, 269 Va. at 200, 609 S.E.2d at 39;
Lovitt, 266 Va. at 256, 585 S.E.2d at 824-25. The evidence in
aggravation of Lewis’ crimes included her extensive planning of
the crimes in which Lewis recruited the killers, paid them
$1,200 to purchase weapons, arranged sexual activities for them
involving both Lewis and her 16 year old daughter, and assisted
the killers’ entry into the marital home at night.
Lewis committed the crimes because of greed, intending to
profit from the murders by receiving the proceeds from C.J.’s
life insurance policy and additional assets held by Julian.
Other evidence in aggravation of the murders was Lewis’
30
diversionary conduct with her husband on the night of the
murders, including her act of praying with him before they
retired for the night.
The brutal nature of the murders, in which Lewis’ husband
and stepson were shot several times, was further evidence in
aggravation of the crimes. Also, after Shallenberger shot
Julian, Lewis went into the bedroom while he was alive and lay
bleeding and removed Julian’s wallet in order to provide
additional money to the killers.
Other powerful evidence in aggravation of the murders was
the fact that Lewis waited at least 45 minutes, while her
husband was alive and suffering from the multiple bullet wounds,
before she contacted emergency response personnel by telephone.
When the emergency response personnel arrived and attempted to
assist the victims, one of whom was still alive, Lewis engaged
in a telephone conversation with a friend discussing C.J.’s
alleged failure to lock the back door of the home.
The totality of the available mitigation evidence included
information and assessments concerning Lewis’ mental
functioning, dependent personality issues, drug use, employment
history, and general background. On the issue of mental
retardation, Lewis was unable to present any witnesses who would
opine that she met the definition of “mentally retarded” set
forth in Code § 19.2-264.3:1.1.
31
With regard to the issue of Lewis’ mental functioning, the
evidence was disputed concerning her cognitive ability to plan
the murders. Although Dr. Costanzo and Dr. McCance-Katz opined
that it was highly unlikely that persons with Lewis’ level of
mental functioning could plan the murders, Dr. Hagan testified
that Lewis had the mental capacity to plan the murders with
Shallenberger and to help execute the ultimate plan they
devised. Also, Dr. McCance-Katz acknowledged that Lewis’
behavior around the time of the murders was purposeful and
“goal-directed.”
The mitigation evidence on the issue whether Lewis suffered
from a dependent personality disorder also was in dispute. Dr.
Costanzo and Dr. Haskins concluded that Lewis suffered from a
dependent personality disorder. Dr. Costanzo explained that as
a result of this disorder, Lewis experienced many problems,
including trouble making ordinary decisions without the advice
of others, a difficulty initiating activities on her own, and a
need for other people to assume responsibility for most major
aspects of her life.
Dr. Hagan, however, gave contrary testimony that Lewis did
not suffer from such a personality disorder but exhibited
conduct that showed “a passive aggressive or an aggressive
dependency.” According to Dr. Hagan, these characteristics
involved the use of other people to achieve one’s objectives.
32
With regard to Lewis’ drug use, Dr. McCance-Katz testified
that Lewis had a severe addiction to drugs and that the amount
of narcotic medications she was taking during the time of the
murders would have impaired her cognition and inhibited the
“affect” or expression that she displayed to others. However,
Dr. McCance-Katz admitted that Lewis’ ability to carry out the
murder plans was not affected by her use of prescription drugs.
Dr. Eliacin and Deborah Grey also concluded that Lewis was
addicted to prescription drugs. In addition, Dr. Haskins
testified that Lewis had a dependence on narcotics.
In contrast, Dr. Hagan testified that “there is not
sufficient eyewitness, third party report, nor evidence of
record to support the conclusion that she was actually
addicted.” Further, Lewis had not complained of any problems
associated with drug withdrawal when incarcerated about one week
after the murders.
This evidence concerning Lewis’ prescription drug abuse is
evidence of a type that the Court in Wiggins termed “double
edge[d].” See Wiggins, 539 U.S. at 535. While Lewis presented
evidence at the habeas hearing that her abuse of narcotics and
other prescription drugs could have affected her judgment and
have caused her to appear “uncaring” at the time of the
offenses, the evidence also showed that, initially, Lewis
voluntarily consumed excessive prescription drugs. Therefore,
33
this evidence could be viewed both in aggravation and mitigation
of the offense. See Burger, 483 U.S. at 793-94; Darden, 477
U.S. at 186-87; Lovitt 266 Va. at 257, 585 S.E.2d at 825.
On the subject of Lewis’ employment history and general
background, the mitigation evidence was undisputed that Lewis
had held 49 different jobs during a 14 year period and that she
had exhibited kindness to others, particularly to her sick and
dying mother. The evidence also was undisputed that Lewis did
not have a history of violent behavior.
The several witnesses who testified concerning the
available mitigation evidence thus described various problems
Lewis faced as a result of her personality deficits, drug
dependence, and level of intellectual functioning. This
testimony, however, did not satisfy Lewis’ burden of proof in
the present proceedings. The evidence in aggravation of the
offenses, when weighed against the totality of the available
mitigation evidence, showed that notwithstanding the various
difficulties Lewis experienced over the course of her life, she
killed her two relatives solely for monetary gain in a
deliberately planned and executed scheme. Any psychological,
cognitive, and physical difficulties Lewis may have had could
not explain or even mitigate the carefully calculated conduct
that Lewis exhibited in carrying out these crimes.
34
Accordingly, upon our review of the evidence in mitigation
and aggravation of the offenses pursuant to the holding in
Wiggins, we conclude that Lewis has failed to demonstrate that
her defense was prejudiced by trial counsel’s failure to
investigate and present the available mitigation evidence
introduced at the habeas hearing. We hold that the record does
not demonstrate that, but for trial counsel’s alleged failures,
there is a reasonable probability that the result of the
proceedings would have been different.4 See Strickland, 466 U.S.
at 694, see also Wiggins, 539 U.S. at 534; Williams, 529 U.S. at
391; Yarbrough, 269 Va. at 202, 609 S.E.2d at 40; Lovitt, 266
Va. at 257, 585 S.E.2d at 825.
In a related argument, however, Lewis asserts that trial
counsel provided ineffective assistance regarding her decision
to plead guilty because counsel failed to adequately advise
Lewis about the mitigating evidence that could be presented on
her behalf. In addition, Lewis argues that trial counsel
improperly failed to inform her that if she were deemed mentally
retarded, she would not be eligible to receive the death
penalty. According to Lewis, these failures adversely affected
4
Because we hold that Lewis failed to prove that she was
prejudiced as a result of her counsel’s failure to investigate
and present certain available mitigation evidence, we do not
address whether counsel’s performance was ineffective under
Strickland. See Strickland, 266 U.S. at 697; Yarbrough, 269 Va.
35
her decision to plead guilty and waive her right to a jury
trial. Lewis asserts that “but for” counsel’s failures in
advising her of these matters, she would have pleaded not guilty
and demanded a trial by jury. We find no merit in Lewis’
argument.
The two-part Strickland test is also applicable when a
petitioner challenges her guilty pleas based on a claim of
ineffective assistance of counsel. Hill v. Lockhart, 474 U.S.
52, 58 (1985); Bowles v. Nance, 236 Va. 310, 311-12, 374 S.E.2d
19, 20-21 (1988). When an alleged error of counsel is the
failure to investigate or advise a defendant regarding certain
evidence that purportedly caused the defendant to plead guilty
rather than to stand trial, a defendant must show that there is
a reasonable probability that, absent counsel’s alleged errors,
the defendant would not have pleaded guilty and would have gone
to trial. Hill, 474 U.S. at 59.
The determination whether a defendant would have pleaded
not guilty involves an inquiry whether it is likely that
counsel’s knowledge of the additional evidence would have
changed counsel’s recommendation regarding the defendant’s plea.
Hill, 474 U.S. at 59. This assessment, in turn, focuses on an
evaluation whether the additional evidence that could have been
at 197, 609 S.E.2d at 37; Lovitt, 266 Va. at 250, 585 S.E.2d at
821.
36
presented likely would have changed the outcome of a trial.
Hill, 474 U.S. at 59-60. In accordance with Strickland, such an
assessment of the outcome at a possible trial must be made
objectively, without consideration of the peculiarities or
habits of a particular decision maker. Hill, 474 U.S. at 59-60;
Strickland, 466 U.S. at 695.
In the present case, we hold that the habeas record does
not satisfy Lewis’ burden of proving that, if her trial counsel
had gathered the available mitigation evidence, counsel would
have recommended that Lewis plead not guilty, she would have
pleaded not guilty and proceeded to trial, and the outcome of
the proceedings likely would have been different. The
additional mitigation evidence could not change the fact that
Lewis confessed to the crimes, giving a detailed explanation of
her extensive role in planning and carrying out the two murders
in order to benefit financially. Lewis also had told the police
that she was not under the influence of drugs on the night of
the murders. She hired the actual perpetrators of the murders,
paid them, and assisted them in carrying out the planned murder
of her two relatives.
In addition, the Commonwealth could have rebutted the
additional mitigation evidence recited above with expert
testimony that Lewis did not suffer from a dependent personality
disorder, was not addicted to drugs, and had the cognitive
37
ability to plan and execute the murders. Thus, Lewis has failed
to establish that if she had been informed of the additional
mitigation evidence, she would have pleaded not guilty,
proceeded to trial, and a jury hearing this evidence likely
would have imposed a lesser sentence.
Our conclusion is not altered by Lewis’ additional
contention that her plea of guilty was not knowing, voluntary,
and intelligent because trial counsel failed to inform her that
if a judge or jury were to find her mentally retarded, she would
not be eligible for the death penalty. As stated above, Lewis
did not present evidence at the habeas hearing that she met the
comprehensive definition of “mentally retarded” set forth in
Code § 19.2-264.3:1.1. In the absence of such evidence, Lewis
was not prejudiced by trial counsel’s failure to inform her as
part of the decision whether to plead guilty that a finding of
mental retardation would preclude the imposition of a death
sentence.
Raising another issue concerning mental retardation, Lewis
additionally contends that trial counsel provided ineffective
assistance because they failed to present evidence of Lewis’
mental retardation and because they failed to demand that a jury
make a determination of whether Lewis is mentally retarded. The
observations we have already made with regard to the issue of
38
mental retardation permit us to dispose of this contention
summarily.
Simply stated, because Lewis failed to present evidence at
the habeas hearing that she is “mentally retarded,” as that term
is defined in Code § 19.2-264.3:1.1, her claim that counsel were
ineffective for failing to present such evidence and submit the
issue for a jury’s determination necessarily fails. The fact
that Lewis could have presented evidence to a jury that she met
part of the statutory definition of “mentally retarded” is
wholly unpersuasive. A person is not “mentally retarded,”
within the meaning of Code § 19.2-264.3:1.1, unless that person
meets the comprehensive definition of this statutory term.
Having failed to do so, Lewis cannot successfully argue that
trial counsel were ineffective for failing to present before a
jury evidence that did not exist.
Accordingly, we hold that Lewis has failed to demonstrate
that but for trial counsel’s alleged failures addressed above,
there is a reasonable probability that Lewis would have pleaded
not guilty and the result of the proceedings would have been
different. See Strickland, 466 U.S. at 694; Hill, 474 U.S. at
59; see also Wiggins, 539 U.S. at 534; Williams, 529 U.S. at
391; Yarbrough, 269 Va. at 202, 609 S.E.2d at 40; Lovitt, 266
Va. at 257; 585 S.E.2d at 825. In sum, the record before us
does not undermine confidence in the outcome of the proceedings.
39
See Strickland, 466 U.S. at 694; see also Wiggins, 539 U.S. at
534; Williams, 529 U.S. at 391; Yarbrough, 269 Va. at 202, 609
S.E.2d at 40; Lovitt, 266 Va. at 257, 585 S.E.2d at 825.
For these reasons, and for the reasons stated in our order
decided today addressing additional claims raised by Lewis, we
will dismiss the petition for a writ of habeas corpus.
Petition dismissed.
40