Present: All the Justices
PAUL WARNER POWELL
OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR.
v. Record No. 042716 September 15, 2006
WARDEN OF THE SUSSEX I
STATE PRISON
UPON A PETITION FOR A WRIT OF HABEAS CORPUS
UPON A REHEARING
I.
In this habeas corpus proceeding, we consider whether
petitioner, who was convicted of capital murder for the
killing of Stacey Lynn Reed during the commission of or
subsequent to an attempted rape in violation of Code § 18.2-
31(5), suffered prejudice within the meaning of Strickland v.
Washington, 466 U.S. 668 (1984) because his trial counsel
failed to object to the admission in evidence of a form that
contained an inaccuracy regarding petitioner's criminal
history.
II.
In September 2000, Paul Warner Powell was sentenced to
death for the capital murder of Stacey Lynn Reed. On direct
appeal, this Court reversed the conviction and remanded the
case to the circuit court for a new trial on a charge no
greater than first-degree murder for the killing of Stacey
Reed, if the Commonwealth be so advised. Powell v.
Commonwealth, 261 Va. 512, 552 S.E.2d 344 (2001).
After the proceeding was remanded, Powell wrote a letter
to the Commonwealth's Attorney who had prosecuted Powell
during the first trial. Powell described, in detail, the
murder and attempted rape of Stacey Reed, and he provided
facts that were previously unknown to the Commonwealth. The
Commonwealth then nolle prossed the indictment in the remanded
case. A grand jury for Prince William County subsequently
indicted Powell for the capital murder of Stacey Reed during
the commission of or subsequent to an attempted rape. Powell
was tried by a jury that convicted him of capital murder and
fixed his punishment at death. The circuit court entered a
judgment confirming the jury's verdict and we affirmed that
judgment. Powell v. Commonwealth, 267 Va. 107, 590 S.E.2d 537
(2004).
Subsequently, Powell filed a petition for habeas corpus
in this Court alleging numerous claims, including ineffective
assistance of counsel. During the sentencing hearing, the
Commonwealth introduced in evidence, without objection,
Exhibit 51 that is attached to this opinion. Exhibit 51,
captioned Powell's "Virginia Criminal Record," consists of
five pages and was generated by the Federal Bureau of
Investigation, National Crime Information Center. Powell
asserts, among other things, that trial counsel were
ineffective, and he was prejudiced by their failure to object
2
to this document and the inaccuracy contained therein. We
entered an order rejecting all Powell's habeas corpus claims.
Powell v. Warden of the Sussex I State Prison, Record No.
042716 (Nov. 8, 2005).
Powell filed a petition for rehearing and requested that
this Court reconsider its order dismissing his habeas claims,
including his claim that he was denied effective assistance of
counsel because of counsel's failure to object to an erroneous
entry on page three of Exhibit 51. This Court granted Powell
a rehearing limited to that one claim, and we placed this
matter on our argument docket.
III.
The following facts were presented to the jury that found
Powell guilty of capital murder and fixed his punishment at
death. In January 1999, Robert Culver and his fiancée,
Lorraine Reed, lived together in Manassas, Virginia, with
Reed's two daughters, Stacey Lynn Reed and Kristie Erin Reed.
On January 28, 1999, Powell went to the Reeds' home. Stacey,
then 16 years old, left home to go to work, and Powell
remained there alone with Kristie, who was 14.
That afternoon, Kristie called her mother by telephone
and informed her that Powell refused to leave the home.
Kristie's mother told Kristie to order Powell to leave.
3
Kristie was concerned because Powell "kept walking back and
forth down the hallway looking in the rooms."
On the afternoon of January 29, 1999, Kristie arrived
home from school and was startled to find Powell in her house.
She asked Powell "where Stacey was." He replied, "she was in
her room." Kristie walked to Stacey's room, but Stacey was
not there. Then, Kristie turned to enter her own room and saw
Stacey's body lying on the floor.
Powell, who had followed Kristie to the bedroom, ordered
Kristie to go downstairs to the basement. Kristie knew that
Powell customarily armed himself with a knife. She had
previously observed Powell with a butterfly knife and "another
long knife that was in a brown pouch type thing."
Powell forced Kristie to accompany him to the basement,
where he ordered her to remove her clothes. She took her
clothes off because she "didn't want to die." Powell told
Kristie to lay on the floor, and then he raped her.
After Powell raped Kristie, he dressed himself, and he
used shoelaces taken from Kristie's shoes to tie her feet
together. He also used shoelaces to tie her arms behind her
back. Someone knocked on the door to the house, and Powell
went upstairs, leaving Kristie naked and bound on the basement
floor.
4
While Powell was upstairs, Kristie was able to free her
hands, and she tried to "scoot" across the floor and hide
beneath the basement steps. Powell returned to the basement,
removed Kristie's eyeglasses, and strangled her until she was
unconscious. Powell stabbed Kristie in the stomach, and the
knife stopped within a centimeter of her aorta. He slashed
her in her neck numerous times, and the repair of the knife
wounds required 61 sutures. She had multiple stab wounds to
her neck and abdomen. She also had wounds on her wrists.
Robert Culver arrived at the home at 4:15 p.m. on January
29, 1999. He could not locate Kristie or Stacey. He went to
the girls' bedrooms and saw that Stacey's room was in
disarray. He entered Kristie's room, turned on the lights,
and found Stacey's body on the floor. He observed blood on
her body and saw that she was not breathing.
When Culver went to the basement in search of a
telephone, he discovered Kristie lying naked and bound on the
floor, bleeding from her neck and stomach. He saw that she
had been stabbed in the stomach and her "throat was slit
pretty severely, many times." Culver found a telephone,
dialed 911, and spoke to emergency response personnel.
Although Kristie was experiencing life-threatening injuries,
she was able to tell police officers and paramedics that Paul
Powell was her assailant.
5
Stacey's death was caused by a stab wound to her chest.
The wound pattern indicated that the blade of the knife
pierced her heart and was twisted upon withdrawal. The blade
of Powell's knife was consistent with the stab wounds.
There were numerous bruises on Stacey's head, neck,
chest, abdomen, back, arms, and legs. She suffered stab
wounds in her back and arm. She also had abrasions on her
left hand and wrist that were characterized as defensive
wounds. Stacey's body contained bruises on her lower neck
that were consistent with someone stepping or stomping on her
face and neck.
Police officers arrested Powell on January 30, 1999 at
the home of a friend. The police officers also located a blue
sports bag that belonged to Powell. A nine-millimeter
semiautomatic pistol with a full magazine containing 10
Winchester nine-millimeter cartridges was in the bag. The bag
also contained a survival knife with a five and one-half inch
blade inside a black sheath and a butterfly knife with a five-
inch blade. The survival knife sheath contained a dark
reddish-brown stain. The DNA profile obtained from the stain
on the sheath was consistent with the DNA profile of Stacey
Reed and different from the DNA profile of Kristie Reed and
Paul Powell. The probability of selecting an unrelated
individual with a matching DNA profile at the Powerplex loci
6
as contained on the sheath is approximately one in 1.1 billion
in the Caucasian population.
After his arrest, Powell consented to several interviews
with police officers. During one interview, he stated that he
had been at the Reeds' home on January 29, 1999 and that
Stacey was dead because "she was stupid." Powell told the
police officers that he and Stacey had an argument because she
had a black boyfriend, and Powell "didn't agree with
interracial dating." Powell claimed that during the argument,
Stacey attacked him and scratched his face, and then he pushed
her to the floor. He claimed that Stacey attacked him again,
and that she "got stuck" on his knife. Powell also initially
denied raping Kristie.
In a second statement to police officers, Powell admitted
that he raped Kristie. The detective who interviewed Powell
testified that Powell stated that he had to kill Kristie
because "she was the only witness and he would have to go to
jail."
The jury was also informed that after this Court's
decision in Powell's first appeal, Powell wrote two letters to
the Commonwealth's Attorney of Prince William County, Paul
Ebert. Below is the content of a letter that Powell wrote,
dated October 21, 2001.
"Mr. Ebert,
7
"Since I have already been indicted on first
degree murder and the Va. Supreme Court said that I
can't be charged with capital murder again, I
figured I would tell you the rest of what happened
on Jan. 29, 1999, to show you how stupid all of
y'all mother fuckers are.
"Y'all should have known that there is more to the
story than what I told by what I said. You had it
in writing that I planned to kill the whole family.
Since I planned to kill the whole family, why would
I have fought with Stacie before killing her? She
had no idea I was planning to kill everybody and
talked and carried on like usual, so I could've
stabbed her up at any time because she was
unsuspecting.
"I had other plans for her before she died. You
know I came back to the house after Bobby's lunch
break was over and he had went back to work. When I
got back, she was on the phone so I went inside and
I laid down on the couch. When the cab came to
bring me my pager, I ran out of the house and she
jumped and got off the phone and came off the porch
to see why I ran out of the house like I did.
"When the cab left we went in the house. I laid on
the couch again and she went to her room and got her
clothes and went downstairs to do her laundry. When
she went downstairs, I got up and shut and locked
the back door and went downstairs. We talked while
she put her clothes in the wash. We continued
talking when she had everything in the wash and I
reached over and touched her tit and asked if she
wanted to fuck. She said no, because she had a
boyfriend.
"I started arguing with her because she had never
turned anybody down because of having a boyfriend.
"We started walking upstairs, arguing the whole
time. When we got upstairs we went to her room and
she turned the radio off. After she turned the
radio off I pushed her onto her bed and grabbed her
wrists and pinned her hands down by her head and sat
on top of her. I told her that all I wanted to do
8
was fuck her and then I would leave and that we
could do it the easy way or the hard way.
"She said she would fuck me so I got up. After I
got up, she got up and started fighting with me and
clawed me face. We wrestled around a little and
then I slammed her to the floor. When she hit the
floor I sat on top of her and pinned her hands down
again. She said she would fuck me and I told her
that if she tried fighting with me again, I would
kill her.
"When I got up she stood up and kept asking me why I
was doing this and all I kept saying is take your
clothes off. Finally she undid her pants and pulled
them down to her ankles. She was getting ready to
take them the rest of the way off and the phone
rang. When she heard the phone she pulled her pants
back up and said she had to answer the phone. I
pushed her back and said no. She said that she
wouldn't say anything about me being there and I
told her no and to take her clothes off.
"She tried to get out of the room again and I pushed
her back and pulled out my knife. I guess she
thought I was just trying to scare her and that I
wouldn't really stab her because she tried to leave
again.
"When she got to me and tried to squeeze between me
and the door jam I stabbed her. When I stabbed her,
she fell back against the door jam and just looked
at me with a shocked look on her face.
"When I pulled the knife out she stumbled a couple
steps and fell in her sister's room. I walked over
and looked at her. I saw that she was still
breathing so I stepped over her body and into the
bedroom. Then I put my foot on her throat and
stepped up so she couldn't breath. Then I stepped
down and started stomping on her throat. Then I
stepped back onto her throat and moved up and down
putting more pressure to make it harder to breathe.
"When I didn't see her breathing anymore, I left the
room and got some iced tea and sat on the couch and
9
smoked a cigarette. You know the rest of what
happened after that point.
"I would like to thank you for saving my life. I
know you're probably wondering how you saved my
life, so I'll tell you.
"You saved my life by fucking up. There were 2 main
fuck-ups you made that saved me. The first was the
way you worded my capital murder indictment. The
second was the comment you made in your closing
argument when you said we won't know because he
won't tell us.
"One more time, thank you! Now y'all know
everything that happened in that house at 8023
McLean St. on Jan. 29, 1999.
"I guess I forgot to mention these events when I was
being questioned. Ha Ha! Sike!
"I knew what y'all would be able to prove in court,
so I told you what you already knew. Stacey was
dead and no one else was in the house so I knew
ya'll would never know everything she went through
unless she came back to life.
"Since the Supreme Court said I can't be charged
with capital murder again, I can tell you what I
just told you because I no longer have to worry
about the death penalty. And y'all are supposed to
be so goddamn smart. I can't believe that y'all
thought I told you everything.
"Well, it's too late now. Nothing you can do about
it now so fuck you you fat, cocksucking, cum
guzzling, gutter slut. I guess I'll see your bitch
ass on Dec. 18 at trial because I'm not pleading to
shit. Tell the family to be ready to testify and
relive it all again because if I have to suffer for
the next 50 or 60 years or however long then they
can suffer the torment of reliving what happened for
a couple of days.
"I'm gone. Fuck you and anyone like you or that
associates with people like you. I almost forgot,
10
fuck your god, too. Jesus knows how to suck a dick
real good. Did you teach him?
"Well, die a slow, painful, miserable death. See ya
punk.
"Do you just hate yourself for being so stupid and
for fuckin' up and saving me?
"Sincerely,
"Paul Powell."
In a statement to a police officer on November 2, 2001,
Powell gave the following description of Stacey's murder:
"She walked over to and uh I pushed her back. And
then she walked over to me again I think and then I
pulled my knife out and you know, and she looked at
me you know. I guess she thought I wouldn't stab
her or whatever. So she tried to leave and go to
answer the phone. That's that.
. . . .
"[After she got stabbed,] [s]he just looked at me
for a minute you know and then you know, she . . .
she was surprised and them um, I pulled the knife
out, you know she stumbled a few steps, fell down in
Christy's doorway. I just walked over and looked at
her. And I stepped over top of her and stepped on
her throat and then stood on her throat and then
stomped on her throat . . . then I stood on her
throat until I didn't see her breathing no more.
. . . .
"What I'm saying I was stepping on her. I'm saying
I put all my weight on her. I'm saying that I put
my foot there you know and then I lifted myself up
to where I was standing on top of her. Started
stomping on her throat. And then man, I just stood
on her throat again until I didn't see her breathe
no more."
11
Before he raped Kristie, Powell knew that he intended to
kill her. In response to a police officer's question:
"Before you raped [Kristie], you knew you were going to kill
her; didn't you?", Powell responded: "I really didn't have a
choice; did I?"
While incarcerated in jail awaiting his capital murder
trial, Powell sent a letter to Lorraine Reed, the mother of
Stacey and Kristie. Powell enclosed a photograph of a
partially nude woman. Powell wrote:
"Lorraine,
"I was wondering if you might be able to help
me think of something. I found this picture in a
magazine and it kinda looks like someone I know or
used to know, but I can't think of the persons name.
I think you know the person too, so I was wondering
if you could tell me the name of the person this
picture resembles so I can quit racking my brain
trying to think of it? I would appreciate it. If
you don't know the person I'm talking about, ask
Kristie or Kelly Welch because I know they know who
I'm thinking of. If you talk to the person I'm
talking about, please give her my address and tell
her to write me."
The partially nude woman shown in the photograph resembled
Lorraine Reed's daughter, Stacey.
Powell wrote a letter to a friend while he was
incarcerated. He stated:
"About when you asked me why I wouldn't do to you
what I did to Stacie, I couldn't ever hurt you
because you mean to much to me. See Stacie didn't
mean anything to me. She was a nigger lover and
some of her wannabe skin head friends were supposed
12
to kill me. That's part of the reason why she died.
Almost everything that happened in that house was
planned. The only thing that wasn't planned was
trying to fuck Kristie. What was supposed to happen
was, Stacie was supposed to die, and did, Kristie
was supposed to die and then I was going to wait for
their mom and stepdad to get home and I was going to
kill them and then I was going to take their moms
truck and then I was gonna go to North Carolina and
knock this dude off that stole all of my clothes and
everything else I owned. I had been thinking about
doing it for along time but I could never bring
myself to do it. I don't know what happened to make
me finally do it. I feel bad for doing it. Stacie
was a good kid."
Powell wrote, in another letter:
"Hey babe, what's happening? Not too much
here. I writing you to see if you could get one of
your guy friends to do me a favor. You know that
Kristie is telling the cops things and that she is
going to testify against me in court. I was
wondering if you could get somebody to go to a pay
phone and call Kristie and tell her she better tell
the cops that she lied to them and tell her she
better not testify against me or she's gonna die."
Powell sent the following letter to the Commonwealth's
Attorney of Prince William County:
"Fat Ebert,
"What's up you fat head fucker? I'm just
writing to tell you, since you want to kill me so
Goddamn bad for killing your nigger loving whore,
set up a court date closer than Oct. 25 so I can go
ahead and get this bullshit over with and plead
guilty so you can kill me and get it over with,
unless you want to let me out so I can kill the rest
of the nigger lovers and all the niggers, Jews,
Spics and everybody else in this fucked up country
that's not white. That includes you because you are
a nigger loving Jewish fucking faggot. I will see
you in hell bitch.
13
"your buddy,
"Paul Powell
"P.S. Watch your back!"
The jury viewed writings and drawings taken from Powell's
jail cell that demonstrated his hatred of people who were not
Caucasian. Additionally, the jury heard evidence that Powell
told police officers that he was a racist and described his
violent racial views. He stated, "[e]verybody that ain't
white shouldn't – he needs to die." Powell had told a police
officer that he wanted to purchase a gun to "[k]ill somebody.
Kill a lot of somebodies . . . [j]ust for something to do."
The jury was aware of Powell's criminal record, including
three convictions for contributing to the delinquency of a
minor, two larceny convictions, and three felony convictions
for abduction, rape, and attempted capital murder of Kristie.
IV.
Powell argues that his trial counsel were ineffective and
that he was prejudiced because they failed to object to the
admission of the NCIC form that contained an incorrect entry
that Powell had a prior conviction for capital murder.
The United States Supreme Court, in Strickland v.
Washington, 466 U.S. 668 (1984), articulated the relevant
principles that we must apply in the resolution of Powell's
claim. In Strickland, the Supreme Court stated:
14
"A convicted defendant's claim that counsel's
assistance was so defective as to require reversal
of a conviction or death sentence has two
components. First, the defendant must show that
counsel's performance was deficient. This requires
showing that counsel made errors so serious that
counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient
performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to
deprive the defendant of a fair trial, a trial whose
result is reliable. Unless a defendant makes both
showings, it cannot be said that the conviction or
death sentence resulted from a breakdown in the
adversary process that renders the result
unreliable."
Id. at 687. Accord Wiggins v. Smith, 539 U.S. 510, 534
(2003); Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993);
Lenz v. Washington, 444 F.3d 295, 302-03 (4th Cir. 2006);
Hedrick v. True, 443 F.3d 342, 349 (4th Cir. 2006); Vinson v.
True, 436 F.3d 412, 418 (4th Cir. 2005).
Explaining the two-part test enunciated in Strickland,
the Supreme Court noted:
"An error by counsel, even if professionally
unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had
no effect on the judgment. Cf. United States v.
Morrison, 449 U.S. 361, 364-365 (1981). The purpose
of the Sixth Amendment guarantee of counsel is to
ensure that a defendant has the assistance necessary
to justify reliance on the outcome of the
proceeding. Accordingly, any deficiencies in
counsel's performance must be prejudicial to the
defense in order to constitute ineffective
assistance under the Constitution."
Strickland, 466 U.S. at 691-92.
15
As the Supreme Court has instructed, Powell is required
to establish that trial counsel's alleged error, in this
instance, the failure to object to the admission of evidence,
resulted in prejudice to him. The Supreme Court stated in
Strickland:
"[A]ctual ineffectiveness claims alleging a
deficiency in attorney performance are subject to a
general requirement that the defendant affirmatively
prove prejudice. . . . Even if a defendant shows
that particular errors of counsel were unreasonable,
therefore, the defendant must show that they
actually had an adverse effect on the defense."
Id. at 693.
The Supreme Court has also held that "a court need not
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." Id. at 697.
The United States Supreme Court has identified three
"circumstances that are so likely to prejudice the accused
that the cost of litigating their effect in a particular case
is unjustified." United States v. Cronic, 466 U.S. 648, 658
(1984); Bell v. Cone, 535 U.S. 685, 695-96 (2002) ("[In
Cronic,] we identified three situations implicating the right
to counsel that involved circumstances 'so likely to prejudice
16
the accused that the cost of litigating their effect in a
particular case is unjustified.' [Cronic, 466 U.S. at 658]").
The United States Supreme Court held that a defect is
presumptively prejudicial if (1) there has been a "complete
denial of counsel" at "a critical stage" of the proceedings,
Cronic, 466 U.S. at 659, 662; or (2) "counsel entirely fails
to subject the prosecution's case to meaningful adversarial
testing," id. at 659; or (3) counsel is called upon to render
assistance under circumstances where competent counsel very
likely could not, id. at 659-62. Bell, 535 U.S. at 695-96.
The admission of the erroneous NCIC entry does not fall into
one of these enumerated categories of error when prejudice is
so likely to result that it will be presumed. Accordingly,
this Court must apply the Strickland test to determine whether
the error was prejudicial.
The Supreme Court's decision in Strickland applies to
cases in which a habeas petitioner has been sentenced to death
and in Strickland, the Supreme Court discussed the standard
that this Court must apply to determine whether Powell
suffered prejudice:
"The defendant must show that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine confidence in
the outcome.
17
. . . .
"When a defendant challenges a death sentence such
as the one at issue in this case, the question is
whether there is a reasonable probability that,
absent the errors, the sentencer – including an
appellate court, to the extent it independently
reweighs the evidence – would have concluded that
the balance of aggravating and mitigating
circumstances did not warrant death.
"In making this determination, a court hearing
an ineffectiveness claim must consider the totality
of the evidence before the judge or jury. Some of
the factual findings will have been unaffected by
the errors, and factual findings that were affected
will have been affected in different ways. Some
errors will have had a pervasive effect on the
inferences to be drawn from the evidence, altering
the entire evidentiary picture, and some will have
had an isolated, trivial effect. Moreover, a
verdict or conclusion only weakly supported by the
record is more likely to have been affected by
errors than one with overwhelming record support.
Taking the unaffected findings as a given, and
taking due account of the effect of the errors on
the remaining findings, a court making the prejudice
inquiry must ask if the defendant has met the burden
of showing that the decision reached would
reasonably likely have been different absent the
errors."
Id. at 694-96.
The Supreme Court stated in Kimmelman v. Morrison, 477
U.S. 365, 382 (1986): "As is obvious, Strickland's standard,
although by no means insurmountable, is highly demanding."
Accord Fitzgerald v. Thompson, 943 F.2d 463, 468 (4th Cir.
1991).
As the Supreme Court directed in Strickland, we need not
consider whether Powell's trial counsel's performance was
18
deficient because we proceed directly to the issue whether
Powell suffered prejudice "as a result of the alleged
deficiencies." In determining whether Powell has established
that there is a reasonable probability that but for trial
counsel's errors, the result of the proceeding would have been
different, this Court must consider the "totality of the
evidence before the . . . jury." Strickland, 466 U.S. at 695.
Powell complains about trial counsel's failure to object
to an entry on the bottom of page three of the NCIC form. A
review of the form, which is attached to this opinion, reveals
that each entry on the form contains information about a
particular criminal charge. Each entry contains the name and
date of the offense charged with the statutory reference, an
arrest date, the jurisdiction where the offense was charged,
the resulting conviction if any, a date of disposition, and
various codes.
Powell contends that he was prejudiced by trial counsel's
failure to object to the entry on the bottom of page three of
the form that incorrectly stated that Powell was convicted of
capital murder. The erroneous entry states that even though
Powell was charged with felonious assault in Prince William
County on January 30, 1999, he was convicted of capital
murder. This entry, which refers to Powell's attack on
Kristie Reed, erroneously contains the phrase "capital murder"
19
when it should have contained the phrase "attempted capital
murder."
When introducing the NCIC report, the Commonwealth's
Attorney accurately recited Powell's criminal record:
"Your honor, as an initial matter, the
Commonwealth would move for the introduction of
the Certified Copy of the Defendant's prior
criminal record consisting of two convictions in
1997 for contributing to the delinquency of a
minor. One conviction in 1999 for that same
crime. A petty larceny in 1998 and a grand
larceny in 2001 along with the three felony
convictions that is; rape, abduction with intent
to defile and attempted capital murder involving
Kristie."
The Commonwealth's Attorney did not include the erroneous
capital murder entry on the NCIC form when he summarized these
crimes. Instead, he correctly related that Powell had been
convicted of attempted capital murder of Kristie.
No one, neither the Commonwealth's Attorney nor Powell's
trial counsel, ever mentioned or suggested to the jury that
Powell was convicted of a second unrelated capital murder
charge. In fact, various statements made by Powell's trial
counsel and the Commonwealth's Attorney informed the jury that
Powell had never been convicted of an unrelated capital murder
charge. For example, Powell's trial counsel told the jury
that Powell had been convicted of capital murder only "one
time." None of the attorneys referenced the incorrect capital
20
murder conviction on the NCIC report in their arguments to the
jury.
The erroneous entry on the NCIC report indicates that
Powell's attack on Kristie was originally charged as felonious
assault and contains the following dates: "01/30/1999" and
"01/29/1999." The jury that sentenced Powell to death knew,
however, that "01/30/1999" was the date of Powell's arrest and
"01/29/1999" was the date Powell committed the crimes against
Stacey and Kristie Reed. The erroneous entry refers to
"Prince William Co." and the jury knew that Prince William
County was the location of Powell's crimes against Stacey and
Kristie. Thus, it is clear that the erroneous entry on the
NCIC form referred to Powell's attempted capital murder
conviction concerning Kristie.
Upon our review of the totality of the evidence that the
jury considered, "[t]aking the unaffected findings as a given,
and taking due account of the effect of the errors on the
remaining findings," Strickland, 466 U.S. at 696, we conclude
that Powell has failed to demonstrate a reasonable probability
that the result of the capital murder trial would have been
different and hence he has not suffered prejudice as required
21
by the highly demanding standard that the Supreme Court
established in Strickland.*
Code § 19.2-264.2 prescribes the conditions that must be
satisfied before a jury can impose the sentence of death in
Virginia:
"In assessing the penalty of any person
convicted of an offense for which the death penalty
may be imposed, a sentence of death shall not be
imposed unless the court or jury shall (1) after
consideration of the past criminal record of
convictions of the defendant, find that there is a
probability that the defendant would commit criminal
acts of violence that would constitute a continuing
serious threat to society or that his conduct in
committing the offense for which he stands charged
was outrageously or wantonly vile, horrible or
inhuman in that it involved torture, depravity of
mind or an aggravated battery to the victim; and (2)
recommend that the penalty of death be imposed."
The jury that imposed the sentence of death upon Powell
concluded:
"We, the jury, on the issue joined, having
found the defendant, PAUL WARNER POWEL [sic], guilty
of capital murder in that he did willfully,
deliberately, and premeditatively kill and murder
*
Contrary to the Supreme Court's instructions in
Strickland, the dissent focuses solely upon the improperly
admitted evidence and does not consider the totality of the
evidence before the jury. The dissent argues that we have
usurped the jury's "very broad discretion" and engaged in
"speculation" by considering the weight of the Commonwealth's
evidence against Powell. However, in order to perform the
review mandated by Strickland, we must weigh the evidence to
determine whether there is a reasonable probability that the
error affected the outcome of the proceedings. Wiggins, 539
U.S. at 534; Yarbrough v. Warden, 269 Va. 184, 197-202, 609
S.E.2d 30, 38-40 (2005); Lovitt v. Warden, 266 Va. 216, 250-
57, 585 S.E.2d 801, 821-26 (2003).
22
one Stacey Lynn Reed, and, having found unanimously
and beyond a reasonable doubt after consideration of
his history and background that there is a
probability that he would commit criminal acts of
violence that would constitute a continuing serious
threat to society and having found unanimously and
beyond a reasonable doubt that his conduct in
committing the offense was outrageously or wantonly
vile, horrible or inhuman in that it involved . . .
[d]epravity of mind . . . [a]ggravated battery to
the victim beyond the minimum necessary to
accomplish the act of murder [a]nd having considered
all the evidence in mitigation of the offense,
unanimously fixed his punishment at death."
The day before Powell committed these gruesome crimes, he
went to the victims' home and surveyed the interior of the
house. He returned the next day and tried to rape Stacey, who
struggled with him. He stabbed her in the heart, twisted the
knife, and reinserted the knife in her heart. He stomped upon
her throat and he placed the entire weight of his body on her
throat until she died. Next, he drank a glass of iced tea,
smoked a cigarette, and waited for Stacey's younger 14-year-
old sister to return home. When Kristie arrived, Powell
directed her to her sister's body, forced her downstairs into
the basement, and raped her on the floor. He then tied her
hands and feet while she was naked, choked her until she was
unconscious, stabbed her in the stomach, and slashed her neck
numerous times in an attempt to kill her.
We conclude that the jury's finding that Powell's conduct
was "outrageously or wantonly vile, horrible or inhuman in
23
that it involved . . . [d]epravity of mind [and]. . .
[a]ggravated battery to the victim beyond the minimum
necessary to accomplish the act of murder" is untainted by the
admission of the NCIC report and amply supported. The jury's
consideration of Powell's past criminal offenses is related to
the issue of future dangerousness but has nothing to do with
vileness of the act which serves as the basis of the capital
offense. The instruction given to the jury on this issue and
the verdict form confirm that the jury was instructed to
consider the defendant's criminal history only with regard to
future dangerousness. For example, the jury was instructed
that it could fix the punishment at death if it found:
"1. That, after consideration of his history and
background, there is a probability that he would
commit criminal acts of violence that would
constitute a continuing serious threat to society;
or
"2. That his conduct in committing the offense was
outrageously or wantonly vile, horrible or inhuman,
in that it involved torture, depravity of mind or
aggravated battery to the victim beyond the minimum
necessary to accomplish the act of murder."
Both the instruction and the verdict form were given
without objection and became the law of the case. Spencer v.
Commonwealth, 240 Va. 78, 89, 393 S.E.2d 609, 616 (1990).
Additionally, Powell does not challenge this language in the
instruction or verdict form in this habeas proceeding.
24
We also observe that Powell's own statements provided
compelling evidence of his future dangerousness. Powell's
letters and confessions to police demonstrate that he planned
to kill the victims' entire family and that he continued to
taunt the victims' family even while he was incarcerated
awaiting his capital murder trial by sending the victims'
mother a photograph of a partially-nude woman who resembled
the deceased victim. Powell also sought to intimidate Kristie
by having another individual contact her by telephone and tell
her that she would be killed if she testified against Powell.
He also bragged about his desire to kill people who are non-
Caucasian.
As the Supreme Court instructed in Strickland, "a verdict
or conclusion only weakly supported by the record is more
likely to have been affected by errors than one with
overwhelming record support." 466 U.S. at 696. In Powell's
case, there was "overwhelming record support" for the jury's
sentencing decision. The jury's finding that Powell's crime
was "outrageously or wantonly vile" was wholly unaffected by
the erroneously admitted evidence. Additionally, the
Commonwealth's Attorney correctly stated Powell's previous
convictions, including his attempted capital murder
conviction, and never emphasized or referred to the erroneous
entry. "Taking the unaffected findings as a given, and taking
25
due account of the effect of the errors on the remaining
findings," we hold that Powell has not "met the burden of
showing that the decision reached would reasonably likely have
been different absent the errors." Id.
Upon our review of the totality of the evidence that
Powell constitutes a continuing serious threat to society and
that his acts were vile in that he committed an aggravated
battery to the victim beyond the minimum necessary to
accomplish the act of murder, and that he demonstrated
depravity of mind, we conclude that Powell failed to satisfy
the high standard of prejudice established by the Supreme
Court's holding in Strickland. Accordingly, we will dismiss
the petition for habeas corpus.
Dismissed.
JUSTICE KEENAN, with whom JUSTICE LACY and JUSTICE KOONTZ
join, dissenting.
I respectfully dissent and would hold that Powell is
entitled to a new sentencing hearing. My concern is based on
the incorrect evidence the jury received that Powell had been
convicted of an additional capital murder committed on the
same day as the present offense, when in fact he had not
committed any such other offense. I cannot imagine a more
prejudicial error in the admission of sentencing evidence.
26
When a jury in this Commonwealth is asked to decide
whether a defendant convicted of capital murder should live or
die, the jury undertakes one of the most serious tasks that
any citizen can be asked to perform. An essential component
of this decision is the jury’s consideration of the
defendant’s criminal record.
Under Code § 19.2-264.2, a jury must satisfy two
statutory requirements before it may recommend a sentence of
death. Ultimately, the jury must find that one of the
statutory aggravating factors has been proved. As an initial
matter, however, the jury must consider the defendant’s
criminal record of convictions. Code § 19.2-264.2 requires
that the jury analyze the statutory aggravating factors only
“after consideration of the past criminal record of
convictions of the defendant.” Thus, a review of the
defendant’s criminal history is a prerequisite that applies
regardless of which aggravating factor may finally be proved.
Here, the sentencing proceedings conducted by the circuit
court failed to comply with the first requirement of Code
§ 19.2-264.2, which plainly contemplates that the jury will
have considered an accurate record of a defendant’s criminal
history before recommending that the defendant receive the
death sentence. Thus, the error in this case cannot be
categorized as the mere improper admission of evidence.
27
Because of this failure in the sentencing process, the jury
was unable to perform a mandatory duty assigned by statute.
In my opinion, the majority’s holding further suffers
from extensive speculation and a failure to address the broad
discretion afforded a jury in making a death penalty
determination. Even when a jury has determined that the
Commonwealth has proved both statutory aggravating factors
beyond a reasonable doubt, the jury still can recommend that
the defendant serve a sentence of life imprisonment. See Code
§§ 19.2-264.2, -264.4; Smith v. Commonwealth, 219 Va. 455,
472, 248 S.E.2d 135, 145 (1978); see also Tuggle v. Thompson,
57 F.3d 1356, 1371 (4th Cir.), vacated on other grounds by
Tuggle v. Netherland, 516 U.S. 10 (1995); Briley v. Bass, 750
F.2d 1238, 1241 (4th Cir. 1984). The jury may impose a
sentence of life imprisonment for any reason based on any
mitigating circumstance, and is not required to weigh the
evidence in mitigation against the evidence in aggravation of
the crime. See Swann v. Commonwealth, 247 Va. 222, 236-37,
441 S.E.2d 195, 205 (1994); see also Tuggle, 57 F.3d at 1362.
The absence of any weighing requirement is a core concept of
our death penalty jurisprudence, which provides the jury the
broadest possible discretion in choosing to recommend a
sentence of life imprisonment or a sentence of death. Thus,
the two main arguments on which the majority relies, namely,
28
the weight of the Commonwealth’s evidence against Powell, and
the jury’s determination that the Commonwealth proved both
statutory aggravating factors, are not dispositive of the
issue before us.
A jury’s exercise of this very broad sentencing
discretion is particularly difficult to assess under the
Strickland test because the jury can sentence a defendant to
life imprisonment even in the face of overwhelming evidence in
aggravation of a crime. Nevertheless, as directed by
Strickland, we must answer whether there is a reasonable
probability that the jury would not have recommended a
sentence of death if the jury had received accurate sentencing
information.
The Supreme Court provided guidance in Strickland when it
defined the term “reasonable probability.” The Court stated:
“A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at
694; see Lovitt v. Warden, 266 Va. 216, 250, 585 S.E.2d 801,
821 (2003); Hedrick v. Warden, 264 Va. 486, 497, 570 S.E.2d
840, 847 (2002). The Court has further elaborated that the
reasonable probability standard is a standard lower than “more
likely than not.” See Holland v. Jackson, 542 U.S. 649, 654
(2004); Woodford v. Visciotti, 537 U.S. 19, 22 (2002).
29
The Supreme Court’s definition of the term “reasonable
probability” underscores one of my major concerns in the
present case. In my view, a court cannot have confidence in
the outcome of a death penalty determination when the court’s
Strickland analysis relies on speculation. Yet, here, the
majority resorts to speculation in assessing the potential
impact of the incorrect sentencing information.
The majority opines that the jury ultimately would have
been able to determine that the additional capital murder
conviction shown on the NCIC report was an erroneous entry.
Although the majority, as skilled members of the legal
profession, can easily identify this inaccuracy, the majority
simply speculates that the jurors had sufficient knowledge of
the law to reach the same conclusion. Based on the evidence
presented, the jurors could easily have viewed the NCIC report
as proof that Powell committed a separate capital offense in
Prince William County on the same day, brutally murdering an
additional victim.
The majority also suggests that because the prosecutor
did not reference the incorrect sentencing information when he
summarized the contents of the NCIC report at the time of its
admission into evidence, his oral summary of Powell’s crimes
would likely have resolved any confusion created by the
erroneous written exhibit. The majority further relies on
30
defense counsel’s comments, noting that he indicated that
Powell had been convicted of one capital murder offense. The
majority’s reasoning, however, is flawed because it requires
an assumption that the jury disregarded the instructions of
the circuit court. In every jury trial in this Commonwealth,
the court instructs the jury that the statements of counsel
are not evidence in the case and may not be considered as
such. Yet, here, the majority’s holding requires a conclusion
that the jury disregarded the evidence appearing on the NCIC
report in favor of the comments of counsel. Thus, the
majority’s rationale extends beyond simple speculation and
also requires an improper conclusion that the jury rejected
duly admitted evidence in favor of counsels’ remarks.
Because a Strickland analysis cannot rest on such
speculation and improper assumptions, I am required to
conclude that the jury viewed the NCIC report as uncontested
evidence that Powell had committed another capital murder.
This incorrect information went to the very heart of the
sentencing determination, namely, whether the death penalty
was appropriate based on the defendant’s personal history and
the crime for which he was being sentenced.
I would hold that the jury’s receipt of incorrect
information of such magnitude negates any reasonable
31
confidence in the outcome of Powell’s sentencing proceeding.
My concerns, however, reach far beyond the present case.
In my opinion, such a serious mistake in a capital murder
case may well cause the public to question whether our courts
adequately ensure the fair application of our death penalty
statutes. When a jury has determined that a defendant should
die for the commission of a heinous murder, the public should
be able to have confidence that this determination was made
without fundamental errors having occurred in the sentencing
process. A central premise in support of the death penalty is
that society exacts this penalty only in rare instances, and
only after the penalty has been determined with full and fair
adherence to constitutional, statutory, and evidentiary
safeguards. Because those safeguards failed in this case when
a very able prosecutor made an unintentional error, I would
grant a writ of habeas corpus limited to the award of a new
sentencing proceeding.
32