Lovitt v. Warden, Sussex I State Prison

PRESENT: All the Justices

ROBIN MCKENNEL LOVITT

v. Record No. 012663 OPINION BY JUSTICE BARBARA MILANO KEENAN
September 12, 2003
WARDEN, SUSSEX I STATE PRISON

UPON A PETITION FOR A WRIT OF HABEAS CORPUS

The petitioner, Robin M. Lovitt, was convicted by a jury of

the capital murder of Clayton Dicks in the commission of

robbery, in violation of Code § 18.2-31, and of robbery, in

violation of Code § 18.2-58. The circuit court sentenced Lovitt

in accordance with the jury verdict to death for capital murder

and to life imprisonment for robbery. We affirmed the circuit

court's judgment in Lovitt v. Commonwealth, 260 Va. 497, 520,

537 S.E.2d 866, 881 (2000), cert. denied, 534 U.S. 815 (2001).

Under Code § 8.01-654, Lovitt filed a petition for a writ

of habeas corpus against the warden of the Sussex I State Prison

(the warden). Lovitt alleged, among other things, that the

destruction of certain trial exhibits after his convictions were

affirmed by this Court violated his right of due process by

preventing adequate review of his habeas corpus petition. He

also alleged that the prosecution suppressed exculpatory

evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963),

and that he was denied effective assistance of counsel at trial.

We entered an order directing that the Circuit Court of

Arlington County (the circuit court) conduct an evidentiary
hearing under Code § 8.01-654(C) concerning all issues raised in

Lovitt's habeas corpus petition. The circuit court conducted an

evidentiary hearing (habeas hearing) pursuant to our order and

submitted a written report stating its findings of fact and

recommended conclusions of law. 1 See Code § 8.01-654(C)(3).

I. FACTS

In Lovitt, we stated in detail the facts relating to the

convictions and penalties imposed on Lovitt for the capital

murder and robbery charges. 260 Va. at 502-08, 537 S.E.2d at

870-73, 879. We will recite those facts from our previous

opinion that are relevant to the present habeas corpus

proceedings:

[I]n the early morning hours of November 18, 1998,
Clayton Dicks was stabbed six times in the chest and
back while working during the overnight shift at
Champion Billiards Hall (the pool hall) in Arlington
County.

A few months before the killing, Lovitt worked as
a cook at the pool hall on an evening shift that ended
when Dicks arrived to begin the overnight shift. Amy
Hudon, the manager at the pool hall, testified that
about two months before Dicks was killed, she had
trouble opening a cash register drawer near a pool
table and asked Lovitt to help her open the drawer.
Lovitt opened it by "wedging" a pair of scissors into
the drawer's latch. About two months before the
killing, Lovitt quit working at the pool hall.

. . . .

1
The Honorable F. Bruce Bach conducted the evidentiary
hearing and submitted the required report to this Court.

2
 [On November 18, 1998,] Dicks arrived at the pool
hall between 1:30 and 2:00 a.m. The other employees
present when Dicks arrived had left the pool hall by
3:00 a.m., leaving Dicks as the sole employee on the
premises. . . .

About 3:25 a.m., José N. Alvarado and Carlos
Clavell entered the pool hall and saw two men arguing
behind the bar. Alvarado testified that one man was
shorter than the other, and that the shorter man
repeatedly shoved the taller man, who was wearing an
apron. Alvarado stated that he and Clavell watched as
the shorter man stabbed the taller man six or seven
times with a silver-colored weapon. Alvarado saw
blood on the taller man's apron and watched as the
taller man fell to the floor behind the bar. Clavell
testified that he heard the taller man begging the
shorter man to stop attacking him. Both Alvarado and
Clavell saw the assailant repeatedly kick the man who
had fallen to the floor.

Alvarado and Clavell immediately ran from the
pool hall to a service station, where Alvarado
telephoned the "911" emergency response number and
reported what they had seen. Although Alvarado could
not identify Lovitt as Dicks's assailant at the
preliminary hearing held in this case, Alvarado
testified at trial that he was about "80% certain"
that Lovitt was the assailant.

When police and emergency medical personnel
arrived at the pool hall in response to Alvarado's
telephone call, they found Dicks lying on the floor
behind the bar in a pool of blood. Dicks was alive
but was unable to speak and was taken by helicopter to
a nearby hospital. The multiple stab wounds prevented
his heart from functioning, and he died while awaiting
surgery.

Dicks had been stabbed six times, five times in
the chest and once in the back. Four of these wounds
were lethal. Dicks also suffered two areas of
internal hemorrhage on both sides of his head, as well
as external abrasions on both shoulders and on his
left knee.

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 The police recovered from the pool hall a cash
register that was lying on the floor near where Dicks
was found. The register was broken into pieces, the
cash drawer had been removed from the register and was
missing, and a torn piece of a ten-dollar bill was
found nearby. A pair of scissors with orange handles
that was usually kept in a container on the bar was
missing. A police canine unit found an orange-handled
pair of scissors bearing blood lying open in the woods
about 15 yards behind the pool hall.

Warren A. Grant, Lovitt's cousin, testified that
Lovitt arrived at Grant's home in the early morning
hours of November 18, 1998. Grant lived about a
quarter of a mile from the pool hall in a residential
area located on the "other side" of the woods. Grant
stated that Lovitt knocked on his door sometime
between 1:30 and 3:00 a.m. Lovitt . . . entered the
house carrying what looked like a large, square, gray
metal box. After Lovitt unsuccessfully tried to open
the locked box, Grant eventually opened it by using a
screwdriver to "pop" some of the screws securing the
box. Lovitt removed money from the opened cash
register drawer and divided the cash between himself
and Grant. Lovitt left the cash register drawer with
Grant and instructed him to "[g]et rid of [it]." A
few days later, Grant began cutting the cash drawer
into pieces with tin snips and put them in a bag.

. . . .

On November 20, 1998, Arlington Detective Noel E.
Hanrahan obtained pieces of the cash register drawer
from Grant. Four days later, Lovitt was arrested and
charged with the present offenses. . . . When Officer
Stephen Ferrone collected Lovitt's clothing at the
jail, Ferrone asked a detective whether he needed to
seize Lovitt's jacket. Ferrone testified that, upon
hearing this question, Lovitt stated, "I wasn't
wearing it when it happened."

Julian J. Mason, Jr., a forensic scientist
employed by the Virginia Division of Forensic Science,
qualified as an expert witness on the subject of tool
mark identification. He testified that the cash
register drawer Grant surrendered to the police had
been removed from the broken cash register found on

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the floor of the pool hall. Mason also stated that
the pry marks on the cash register drawer were made by
the scissors that were found in the woods behind the
pool hall.

. . . .

Carol Palmer, a forensic scientist employed by
the Virginia Department of Forensic Science, qualified
as an expert witness on DNA testing. Palmer extracted
human DNA from two places on the scissors, on a blade
near the tip and on a blade near the finger loops.
She also extracted blood from three small circular
areas on the left front side of Lovitt's jacket, but
the DNA tests were inconclusive and Palmer was unable
to determine whether the blood on the jacket was
human. . . .

. . . The DNA extracted from the tip of the
scissors displayed a DNA profile that matched the DNA
profile of Dicks. The profile derived from this
sample did not match the DNA profiles of either Lovitt
or Grant, thus eliminating both as contributors of
this DNA. Palmer stated that the chance of someone
other than Dicks contributing the DNA sample on the
tip of the scissors was 1 in more than 5.5 billion.

The DNA extracted from the mid-section of the
scissors also matched the DNA profile of Dicks.
However, Palmer stated that this DNA evidence, unlike
the DNA evidence from the tip of the scissors, did not
exclude either Lovitt or Grant and, thus, was
inconclusive as to them.

After Lovitt's arrest, he was incarcerated in the
Arlington County Jail in the same unit as Casel Lucas.
Lovitt and Lucas developed a friendship during the two
months that they lived together in this unit. Lovitt
first told Lucas that after leaving the bathroom at
the pool hall on the night of the murder, Lovitt saw a
Hispanic man stabbing Dicks. Lovitt told Lucas that,
at that time, Lovitt saw the cash register drawer,
grabbed it, and ran from the pool hall.

According to Lucas, Lovitt later stated that he
knew Dicks and was aware that no one else would be in
the pool hall late at night. Lovitt further related

5
that he waited in the bathroom until everyone left the
pool hall before coming out of the bathroom to attempt
to open the cash register drawer. Dicks confronted
Lovitt as he unsuccessfully attempted to open the cash
drawer. Lovitt told Lucas that he had to kill Dicks
because Dicks had recognized him. According to
Lovitt, Dicks asked him, "[W]hy [are] you doing this?"
Lovitt admitted to Lucas that he stabbed Dicks several
times and took the cash register drawer to his
cousin's house where he and his cousin split the money
before leaving to buy some drugs. Lovitt told Lucas
that he discarded the murder weapon while en route to
or from Grant's house, and that he changed his clothes
at Grant's house because he had blood on his shirt and
pants.

. . . .

During the penalty phase of the trial, the
Commonwealth presented evidence of Lovitt's criminal
record. In October 1975, when Lovitt was 11 years
old, he was charged with assault and placed in
protective supervision. Also as a juvenile, in August
1979, Lovitt was committed to the Beaumont Learning
Center of the State Department of Corrections
(Beaumont) based on adjudication of charges of
breaking and entering and larceny. While at Beaumont,
Lovitt was disciplined for fighting, assault, and
possessing contraband items. After his release from
Beaumont in 1980, Lovitt was convicted of grand
larceny in 1981 and was sentenced to 12 months in
jail.

Between 1983 and 1985, Lovitt was convicted of
petit larceny, grand larceny, breaking and entering,
and distribution of marijuana. In 1986, Lovitt was
convicted of attempted robbery and was sentenced to a
term of imprisonment of from one to three years.
After being released on parole in August 1987,
Lovitt's parole was revoked in August 1988 based, in
part, on additional arrests and his failure to pass
certain drug tests. Lovitt later was convicted of
statutory burglary and grand larceny. While
incarcerated on these convictions and the parole
violation, Lovitt was disciplined for damaging
property and for fighting.

6
 In September 1990, Lovitt again was released on
parole. In early 1991, Lovitt was convicted of
possession of cocaine, grand larceny, and burglary.
While incarcerated on these charges, Lovitt was the
subject of ten disciplinary actions for offenses
including possession of contraband, disobeying direct
orders, assault, possession of intoxicants, and
manufacturing "shank handles." After being released
on parole in October 1996, Lovitt was convicted in
1997 of possession of marijuana, petit larceny,
unlawful entry, assault and battery, and destruction
of property. Lovitt was on parole at the time of the
present offenses.

In October 1998, Arlington County Police Officer
Jerome A. Lee detained Lovitt in an apartment parking
lot in Arlington. Lovitt had parked his car behind
the apartments, appeared to be very nervous, and
consented to a search of his vehicle. Lee found a
long kitchen knife on the floor of the passenger area
and a soda can used to smoke crack cocaine in the rear
floor area of the vehicle.

Lovitt presented testimony from his sister,
[Lamanda] Jones, who testified that Lovitt was the
oldest of 12 children and that he helped take care of
his younger siblings, although not "gladly." Lovitt
also presented testimony from four deputies employed
by the Arlington County Sheriff's Office, who stated
that Lovitt had not presented any disciplinary
problems while being held in jail on the present
charges.

Id. at 502-08, 537 S.E.2d at 870-73.

In May 2001, about six months after we affirmed Lovitt's

convictions, the circuit court entered an order authorizing

destruction of the exhibits entered into evidence at Lovitt's

trial. Pursuant to the destruction order, all exhibits received

in evidence at trial, with the exception of one chart, were

destroyed. On October 1, 2001, the United States Supreme Court

7
denied Lovitt's petition for a writ of certiorari from this

Court's judgment. See Lovitt v. Virginia, 534 U.S. 815 (2001).

II. STANDARD OF REVIEW

When we consider a circuit court's findings of fact and

recommended conclusions of law submitted pursuant to Code

§ 8.01-654(C), we defer to the court's factual findings and are

bound by them unless they are plainly wrong or without

evidentiary support. Hedrick v. Warden, 264 Va. 486, 496, 570

S.E.2d 840, 847 (2002). However, the circuit court's

recommended conclusions of law involve mixed questions of law

and fact and are subject to our de novo review. Id.

III. HABEAS HEARING

At the habeas hearing, Lovitt presented evidence regarding

the destruction of the trial exhibits, the alleged Brady

violations, and his counsel's alleged failure to provide

effective assistance at trial.

A. DESTRUCTION OF EVIDENCE

Testimony at the habeas hearing revealed that in April

2001, Robert C. McCarthy, Chief Deputy Clerk of the Circuit

Court of Arlington County, drafted an order authorizing the

destruction of the exhibits received in evidence at Lovitt's

trial. McCarthy, who was responsible for evidence stored in the

clerk's office, testified that he thought he was authorized to

destroy the trial exhibits after receiving a mandate from this

8
Court indicating that Lovitt's convictions were affirmed.

McCarthy also stated that he decided to destroy the trial

exhibits to create additional space in the clerk's office

evidence room.

McCarthy drafted the evidence destruction order without

consulting anyone in the Commonwealth's Attorney's office, the

Attorney General's office, or the Arlington County Police

Department. McCarthy also did not notify any of the circuit

court judges, Lovitt's trial counsel, or his habeas counsel of

the impending evidence destruction.

McCarthy drafted the order before May 2, 2001, the date

that Code §§ 19.2-270.4:1 and –327.1 became effective. Code

§ 19.2-270.4:1 provides, in relevant part:

B. In the case of a person sentenced to death, the
court that entered the judgment shall, in all cases,
order any human biological evidence or representative
samples to be transferred by the governmental entity
having custody to the Division of Forensic Science.
The Division of Forensic Science shall store,
preserve, and retain such evidence until the judgment
is executed. . . .

. . . .

E. An action under this section or the performance of
any attorney representing the petitioner under this
section shall not form the basis for relief in any
habeas corpus or appellate proceeding.

With regard to such human biological evidence, Code § 19.2-

327.1 provides, in relevant part:

9
 A. Notwithstanding any other provision of law or rule
of court, any person convicted of a felony may, by
motion to the circuit court that entered the original
conviction, apply for a new scientific investigation
of any human biological evidence related to the case
that resulted in the felony conviction . . . .

. . . .

G. An action under this section or the performance of
any attorney representing the petitioner under this
section shall not form the basis for relief in any
habeas corpus proceeding or any other appeal.

McCarthy took the destruction order prepared in Lovitt's

case, along with between 15 and 20 other such orders, to the

chambers of Judge Paul F. Sheridan. McCarthy left the orders in

Judge Sheridan's chambers for entry without providing him any

information concerning the relevant cases. Judge Sheridan, who

did not conduct Lovitt's trial, entered the destruction orders

on May 21, 2001, authorizing the destruction of all exhibits

entered into evidence at Lovitt's trial. These exhibits, with

the exception of the one chart, were destroyed a few days later.

Two deputy court clerks, Clifford P. Kleback and Gwendolyn

Gilmore, testified that they spoke with McCarthy before he

submitted the destruction orders to Judge Sheridan. Both deputy

clerks told McCarthy, who was their immediate supervisor, that

he should not destroy the evidence in Lovitt's case because it

was a "capital case" and Lovitt had not been executed. Kleback,

who was the clerk assigned to the courtroom during Lovitt's

trial, stated that he told McCarthy that the case involved DNA

10
evidence, and that he repeatedly advised McCarthy not to destroy

the evidence.

Both Kleback and Gilmore testified that McCarthy told them

that the evidence could be destroyed because Lovitt's appeal had

ended. Kleback and Gilmore deferred to McCarthy's decision and,

at that time, did not report these conversations to either the

clerk of the circuit court or to anyone in the prosecutor's

office.

McCarthy testified that he did not recall speaking with

Kleback and Gilmore before the evidence in Lovitt's case was

destroyed. McCarthy also stated that he did not review Lovitt's

case file to determine whether Lovitt's appellate remedies were

exhausted but instead relied on this Court's mandate affirming

Lovitt's convictions. According to McCarthy, when he drafted

the destruction order, he may have known that Lovitt's case was

a "capital murder case," but he was unaware that it was a "death

penalty case." He further testified that at the time the

destruction order was entered, he was not aware of any change in

the law concerning the preservation of human biological

evidence.

The circuit court found that there was no evidence that any

official of the Commonwealth acted in bad faith or with the

intent to destroy exculpatory evidence. The court stated in its

findings that "McCarthy believed he had the authority to destroy

11
the trial exhibits once he received the mandate" from this

Court. The court also found that although Code § 19.2-270.4:1

became effective 20 days before entry of the destruction order,

McCarthy was unaware of the statute's provisions when the

evidence was destroyed.

B. BRADY CLAIMS

1. DR. PIERRE-LOUIS

Dr. Marie-Lydie Y. Pierre-Louis was the medical examiner

who performed the autopsy on Clayton Dicks. Among those present

during the autopsy were Assistant Commonwealth's Attorney

Margaret E. Lair-Eastman (Eastman), one of the prosecuting

attorneys at Lovitt's trial, and Detective Stuart Chase of the

Arlington County Police Department.

During the autopsy, Dr. Pierre-Louis was shown two pairs of

scissors recovered from a container next to the cash register

near the location where Dicks' body was found. Dr. Pierre-Louis

was not shown the orange-handled pair of scissors found with

blood on the blade tip (the bloody scissors), discovered in the

woods behind the pool hall and admitted into evidence at

Lovitt's trial.

The autopsy report prepared by Dr. Pierre-Louis indicated

that each of Dicks' six stab wounds displayed a blunt and a

sharp edge. The wounds ranged in depth between three and eight

12
inches, and three of these wounds were between six and eight

inches deep.

The autopsy report further indicated that one of the pairs

of scissors examined by Dr. Pierre-Louis had a total length of

eight-and-one-half inches with blades that were three-and-one-

half inches long and one-half inch wide at the base. The other

pair of scissors she examined was six-and-one-half inches in

length and had blades that were three inches long and one-half

inch wide at the base.

At the autopsy, Dr. Pierre-Louis told Eastman and Detective

Chase that neither of the two pairs of scissors that she

examined could have been the murder weapon because the length

and width of their blades were not consistent with the nature

and dimensions of Dicks' stab wounds. Dr. Pierre-Louis also

told Eastman and Chase that she would have to examine the bloody

scissors before she could reach a conclusion whether those

scissors were the source of Dicks' wounds.

Dr. Pierre-Louis' opinion concerning the two pairs of

scissors she examined was not included in the autopsy report.

Neither Eastman nor anyone else in the prosecutor's office

informed Lovitt's trial counsel of Dr. Pierre-Louis' opinion.

During Lovitt's trial, Dr. Pierre-Louis was not asked to give

her opinion concerning the two pairs of scissors that she had

13
examined, nor was she asked to opine whether the bloody scissors

admitted into evidence were consistent with Dicks' stab wounds.

At the habeas hearing, Dr. Pierre-Louis testified that she

is an "expert on the wounds on the body" and that part of her

expertise includes determining "whether an object is consistent

with a wound." Dr. Pierre-Louis stated that each of Dicks' stab

wounds had both a blunt and a sharp edge, indicating that a

"single-edged blade" was used to cause those wounds.

Dr. Pierre-Louis was shown a photograph of the bloody

scissors found in the woods near the pool hall. Using a

measurement scale depicted in the photograph, she determined

that one blade was three-and-one-half inches long from its tip

to the base where the two blades are joined, and that this blade

was one-half inch wide at the base. She was unable to measure

the other blade because of its position in the photograph.

Dr. Pierre-Louis testified that the bloody scissors shown

in the photograph were inconsistent with Dicks' wounds. She

stated that three of those wounds, which measured between six

and eight inches in depth, were deeper than the length of the

three-and-one-half inch blade. She also stated that while the

other three wounds, which ranged between three and five inches

in depth, were "more or less" consistent with the length of the

blade, the wounds were twice as wide as the width of the blade.

14
 Dr. Pierre-Louis further testified that if the blade had

been completely inserted into Dicks' body, she would have

expected to discover a "notch" from the other blade or a

contusion from the scissors' handle in the immediate vicinity of

the stab wounds. However, she did not discover any evidence of

such "marginal abrasions" near Dicks' wounds. Dr. Pierre-Louis

completely discounted "tissue compression" as an explanation for

the discrepancy between the scissors' blade length and Dicks'

wounds because of the lack of "marginal abrasions" in the wound

areas. She stated that the discovery of Dicks' blood on the

scissors would not influence her opinion that those scissors are

inconsistent with Dicks' wounds because she does not know how

the blood was transferred to those scissors.

On cross-examination, Dr. Pierre-Louis testified that she

never examined the bloody scissors depicted in the photograph

and was unable to determine the thickness of the blades or

whether their outside edges were sharp. Contrary to her

testimony on direct examination, she conceded that it was

possible that a single blade of the scissors depicted in the

photograph could have caused the three stab wounds that measured

between three and five inches deep.

Both Detective Chase and Deputy Commonwealth's Attorney

Barbara Walker, one of the prosecuting attorneys at Lovitt's

trial, testified that the bloody scissors were different in size

15
from the two pairs of scissors presented to Dr. Pierre-Louis.

Detective Chase also testified that he contacted Dr. Pierre-

Louis after the autopsy and informed her that the police had

recovered a certain pair of scissors that he concluded was the

murder weapon, which he described to her. He stated that when

he described the bloody scissors to Dr. Pierre-Louis, "she made

some comment that, I guess I was wrong, or, I made a mistake."

Eastman testified that when she told Dr. Pierre-Louis after

the autopsy that Dicks' blood had been identified on the bloody

pair of scissors, Dr. Pierre-Louis shrugged and responded, "oh

well." Eastman interpreted Dr. Pierre-Louis' response as a

departure from her previous opinion and an abandonment of "any

notion that scissors could not be the murder weapon."

Eastman testified that Lovitt's counsel had a copy of the

autopsy report and had access to the physical evidence in the

case, including the bloody scissors. She further testified that

she did not consider Dr. Pierre-Louis' opinion concerning the

two pairs of scissors to be exculpatory because neither pair was

the murder weapon presented at trial.

Denman Rucker, one of Lovitt's trial attorneys, testified

at the habeas hearing that the trial evidence concerning the

bloody scissors "actually worked to [his] benefit" during trial,

and allowed him to assert that an unknown assailant had

perpetrated the crimes, which was the "strongest argument"

16
available for Lovitt's defense. Rucker explained that this

evidence also allowed him to avoid having the jury infer that

Lovitt brought a deadly weapon with him to the pool hall.

The circuit court made a factual finding that after DNA

test results confirmed the presence of Dicks' blood on the

bloody scissors, "Dr. Pierre-Louis indicated to the

Commonwealth's attorneys that she had been wrong in her

conclusion regarding the scissors." The court also found that

Lovitt's defense counsel had access to the bloody scissors, the

autopsy report, and to Dr. Pierre-Louis prior to Lovitt's trial.

Based on additional testimony by Denman Rucker, the circuit

court also found that Rucker had recognized the differences in

the blade lengths of the scissors listed in the autopsy report

and the depth of Dicks' wounds and, as a result, had consulted

with an expert at the Northern Virginia Forensic Laboratory.

Rucker further testified that the expert informed him that a

pair of scissors with a blade measuring between three-and-one-

half and four-and-one-half inches in length could inflict a

wound up to seven inches deep during a "frenzied" and "violent"

attack based on a victim's breathing and the compression of body

tissue. The court found that the expert informed Rucker that

such scissors could have been the murder weapon.

2. CASEL LUCAS

a. LUCAS' PRIOR COOPERATION WITH AUTHORITIES

17
 Before Lucas testified at trial, Eastman and Walker

provided Lovitt's defense counsel with a report detailing Lucas'

extensive criminal record. However, neither Eastman nor Walker

disclosed to defense counsel that Lucas had provided information

to various police departments in four previous criminal cases.

The circuit court found that before the trial, the prosecutors

in Lovitt's case were "unaware that Casel Lucas had provided

information regarding any other case."

The evidence at the habeas hearing showed that in 1998,

Lucas testified in Alexandria against Steven Evans, who had been

charged with robbery. In exchange for his testimony, Lucas

received a total recommended sentence of 20 years' imprisonment

for various pending criminal charges, including robbery,

abduction with the intent to defile, and attempted rape.

Walker testified that although Lucas told her about his

cooperation with the police in the Evans case, she did not tell

either Rucker or Janell Wolfe, Lovitt's co-counsel at trial,

about Lucas' role in that prosecution. However, Walker stated

that Lucas' sentence in the Evans case was included in his

criminal record that the prosecution provided to defense counsel

before Lucas testified.

When Wolfe interviewed Lucas prior to his testifying, Lucas

told her of his involvement in the Evans case. However, Lucas

did not inform Wolfe that he had cooperated with the police in

18
any other cases. Wolfe testified that had she received such

information, she and Rucker would have used it to impeach Lucas'

credibility at trial. At Lovitt's trial, Rucker cross-examined

Lucas concerning his cooperation with the police in the Evans

case.

In 1996, Lucas provided information to the police

concerning a "jailhouse confession" made by Edward Young, who

had been charged with rape in Arlington County. Walker served

as the prosecutor during the sentencing in the Young case and

Wolfe served as Young's counsel. However, neither Walker nor

Wolfe was aware of Lucas' involvement in the Young case because

the case did not proceed to trial and the defendant's plea

agreement did not mention Lucas. Lucas did not receive any

benefit in exchange for the information that he provided in the

Young case.

In 1997, Lucas provided information to detectives in the

District of Columbia concerning the "Starbucks triple homicide"

case. One of the detectives sent a letter to the judges of the

Circuit Court of the City of Alexandria informing them of Lucas'

cooperation in the Starbucks case. There was no evidence that

Lucas received any benefit resulting from his cooperation with

the police in that case. Further, prior to Lovitt's trial, the

Arlington prosecutors did not have any information about

Lovitt's cooperation in the Starbucks case.

19
 In 1998, Lucas provided Alexandria authorities with a

statement detailing a defendant's "jailhouse confession" in the

"Eddie Lee case." Lucas did not receive any benefit as a result

of his cooperation in that case, and the Arlington prosecutors

were not aware of Lucas' involvement in the Lee case prior to

Lovitt's trial.

In June 1999, before Lovitt's trial, Lucas sent a letter to

Judge Paul F. Sheridan of the Arlington County Circuit Court

requesting reconsideration of one of his sentences. In the

letter, Lucas stated that he had cooperated with the police in

previous matters but did not mention Lovitt's case. The letter

was sent directly to Judge Sheridan's chambers and a copy of the

letter apparently was not placed in Lucas' file until after

Lovitt's trial. Lucas' request for reconsideration was denied.

The prosecutors in Lovitt's case were not aware of Lucas' letter

at the time of Lovitt's trial.

b. LUCAS' PRIOR INCONSISTENT STATEMENTS

At the habeas hearing, the court considered an affidavit

handwritten by Lovitt's habeas counsel and signed by Lucas in

September 2001. The affidavit, which was prepared after

Lovitt's trial, contained several statements that conflicted

with Lucas' trial testimony. For example, in the affidavit,

Lucas stated that he initially informed the prosecutors that

Lovitt had stated he used a gun to shoot Dicks, that Lovitt had

20
discarded the weapon in a drain, and that Warren Grant had

driven Lovitt from the pool hall to Grant's house. These

statements contradicted Lucas' trial testimony that Lovitt

stated he used a knife or other object to stab Dicks, and that

he discarded the weapon while walking from the pool hall to

Grant's house.

In the affidavit, Lucas also stated that he received a

reduced sentence for his cooperation in the Young case, and that

he learned about the details of Dicks' murder from "Crime

Stoppers" and the Washington Post. At habeas counsel's request,

Lucas had "initialed" each paragraph of the affidavit.

Lucas testified that the inconsistent statements contained

in the affidavit were not accurate and that his testimony during

Lovitt's trial was truthful. Lucas stated that on the day he

signed the affidavit, he was "confused" after answering "three

hours' worth of questions" posed by Lovitt's habeas counsel.

Lucas also stated that he did not feel "too good" that day

because he had undergone a tooth extraction and was waiting to

receive some medication.

Lucas further testified that he did not thoroughly read the

affidavit, but merely "glimpsed through it" and "glanced over

it," not paying attention to its content. He also testified

that he was mistaken when he had stated that he received a

sentence reduction in exchange for his cooperation in the Young

21
case. Additionally, Lucas stated that Lovitt was his sole

source of information concerning the testimony he gave at

Lovitt's trial.

Eastman testified that Lucas' trial testimony was

consistent with the statements he had made before Lovitt's

trial. She stated that Lucas' description of Lovitt's initial

story was consistent with a statement that Lovitt had given to

the police shortly after his arrest. Included in Lovitt's

initial story to Lucas were assertions that Lovitt was in the

pool hall restroom during Dicks' murder, and that he took the

cash register drawer after an allegedly unknown assailant had

killed Dicks. 2

The circuit court found that Lucas had "disavowed" the

affidavit written by Lovitt's habeas counsel that had set forth

the inconsistent statements Lucas allegedly had made before

trial. The court also found that Lucas did not make any

statements before trial that were inconsistent with his trial

testimony.

C. INEFFECTIVE ASSISTANCE OF COUNSEL

2
In that statement to the police, Lovitt claimed that when
he discovered Dicks on the pool hall floor "gurgling blood" and
"dying right there on the spot," he thought to himself, "I'm
broke. Might as well take [the cash register drawer] with me,"
and then he grabbed the drawer and left the premises. Lovitt's
statement to the police was not entered into evidence at
Lovitt's trial.

22
 Two of Lovitt's stepsisters and a cousin testified at the

habeas hearing about Lovitt's family background. We will

describe that testimony in detail in Part IV(C), infra, of our

discussion which addresses the issue whether Lovitt received

effective assistance of counsel at trial. In that discussion,

we will also describe the various jail, substance abuse,

juvenile, and other records introduced into evidence at the

habeas hearing.

Rucker and Wolfe testified at the habeas hearing that they

were concerned that if the jury was told about the criminal

records and substance abuse of Lovitt's siblings and stepfather,

the jury could conclude that Lovitt's family background

increased his future danger to society. Wolfe also stated that

she asked Lamanda Jones to testify on Lovitt's behalf and spoke

with her for between "45 minutes or an hour" before presenting

her as a witness in the penalty phase proceeding. Wolfe

explained that Jones testified regarding "exactly what we wanted

her to get on the stand and say," and that Jones' testimony

"humanized" Lovitt by showing the jury that he had a family.

With regard to the guilt phase of the trial, the circuit

court found that defense counsel made a tactical decision not to

pursue additional DNA testing of the bloody scissors and

Lovitt's jacket, which allowed counsel to argue that an unknown

assailant killed Dicks. The court concluded that Rucker's

23
investigation into the discrepancy between the length of the

scissors and the depth of Dicks' stab wounds yielded information

from an expert that scissors of the specified dimensions could

have caused such wounds. The court also found that Wolfe

interviewed Lucas and obtained his criminal record prior to his

testifying at Lovitt's trial.

With regard to the penalty phase of the trial, the circuit

court found that trial counsel adopted a strategy for the

penalty phase that focused on efforts to "humanize" Lovitt and

to show that he would not be dangerous in the penitentiary by

emphasizing his good behavior while he was incarcerated awaiting

trial. The court also found that in preparation for trial,

Rucker and Wolfe obtained "all of Lovitt's jail records from the

Arlington County Detention Facility, all of his juvenile

records, his records from the Beaumont juvenile facility, his

medical records, and his pre-sentence report."

The court further found that both Rucker and Wolfe were

aware of the criminal history of Lovitt's family members from

having represented some of his siblings in prior criminal

proceedings, and from their "general reputation in the

community" of having a "predilection for criminal activity."

The court found that trial counsel made a strategic decision not

to introduce evidence of Lovitt's family background, and that

the social services records of Lovitt's siblings would not have

24
assisted defense counsel in preparing for the penalty phase of

the trial. In addition, the court found that Lovitt had not

given trial counsel any indication that he had been a victim of

sexual or physical abuse by his stepfather.

IV. DISCUSSION

A. DESTRUCTION OF EVIDENCE

Lovitt argues that McCarthy, an agent of the Commonwealth,

procured the destruction of the trial exhibits in bad faith, and

that the destruction of this evidence violated his right of due

process by preventing meaningful review of his habeas corpus

petition. Lovitt also observes that under Code §§ 19.2-270.4

and –270.4:1, trial evidence may not be destroyed until after

all appellate remedies have been exhausted, and that DNA

evidence in a death penalty case may not be destroyed until the

final judgment is executed. He asserts that the death penalty

is "not a reliably appropriate punishment" under circumstances

when material evidence has been destroyed and that, therefore,

his sentence should be vacated. We disagree with Lovitt's

arguments.

We first address Lovitt's due process claim. He asserts

that he is entitled to habeas corpus relief because he has been

deprived of an opportunity to seek new scientific testing of the

DNA found on the bloody scissors and his jacket. Lovitt asserts

that this testing is necessary for him to seek a writ of actual

25
innocence under Code §§ 19.2-327.2 through –327.6. 3 However, he

fails to present authority to support his claim that habeas

corpus relief is the proper remedy for his inability to obtain

this further testing. He further acknowledges that the United

States Supreme Court has not addressed the question whether due

process rights may be asserted against the post-trial

destruction of evidence.

In the absence of such authority, Lovitt relies on Arizona

v. Youngblood, 488 U.S. 51 (1988), and California v. Trombetta,

467 U.S. 479 (1984), in which the Supreme Court considered due

process claims involving the pre-trial destruction of evidence.

In Youngblood, the Supreme Court drew a distinction between the

government's failure to disclose material exculpatory evidence

and the failure to preserve potentially exculpatory evidence.

The Court explained that:

The Due Process Clause of the Fourteenth Amendment, as
interpreted in Brady, makes the good or bad faith of
the State irrelevant when the State fails to disclose
to the defendant material exculpatory evidence. But
we think the Due Process Clause requires a different
result when we deal with the failure of the State to
preserve evidentiary material of which no more can be
said than that it could have been subjected to tests,
the results of which might have exonerated the
defendant. . . . We think that requiring a defendant

3
Lovitt also asserts that further DNA testing of these
items is required in order to establish that he was denied the
effective assistance of counsel at trial. However, based on our
resolution of this aspect of his ineffective assistance claim,
infra, we need not address the destruction of these items as
they relate to the ineffective assistance claim.

26
 to show bad faith on the part of the police both
limits the extent of the police's obligation to
preserve evidence to reasonable bounds and confines it
to that class of cases where the interests of justice
most clearly require it, i.e., those cases in which
the police themselves by their conduct indicate that
the evidence could form a basis for exonerating the
defendant. We therefore hold that unless a criminal
defendant can show bad faith on the part of the
police, failure to preserve potentially useful
evidence does not constitute a denial of due process
of law.

488 U.S. at 57-58; see also Trombetta, 467 U.S. at 489; Thomas

v. Commonwealth, 244 Va. 1, 18, 419 S.E.2d 606, 615-16 (1992).

This constitutional standard of materiality, decided in the

context of a state's pre-trial destruction of evidence, reflects

the importance courts attach to the integrity of the trial

process and to the ability of an accused to defend against

criminal charges brought against him. See Trombetta, 467 U.S.

at 485. Therefore, during the course of a criminal trial, the

Due Process Clause of the Fourteenth Amendment requires that the

government satisfy such prevailing concepts of fundamental

fairness. See id.

In a habeas corpus proceeding, however, the truth-seeking

function of the trial process yields to a focus on the legality

of a petitioner's detention and whether the petitioner presently

is detained in violation of any constitutional rights. See

Virginia Parole Bd. v. Wilkins, 255 Va. 419, 420-21, 498 S.E.2d

695, 696 (1998); McClenny v. Murray, 246 Va. 132, 134-35, 431

27
S.E.2d 330, 331 (1993); Smyth v. Holland, 199 Va. 92, 96-97, 97

S.E.2d 745, 748-49 (1957). This different focus raises the

issue whether a due process right may be asserted in a habeas

corpus proceeding to challenge the post-trial destruction of

evidence when a petitioner's trial and direct appeal have

concluded.

We need not resolve this issue in the present case,

however, because Lovitt fails to establish that he qualifies for

relief under the Youngblood standard that he asks us to apply.

Therefore, for purposes of this petition only, we will assume,

without deciding, that a habeas petitioner may assert a due

process claim regarding the post-trial destruction of evidence,

and that the Youngblood standard governing pre-trial destruction

of evidence also applies to a due process claim involving

evidence destroyed post-trial.

As provided above, under the Youngblood standard, a state's

failure to preserve potentially useful evidence does not

constitute a denial of due process unless a defendant can show

bad faith on the part of the state. Youngblood, 488 U.S. at 58;

United States v. Newsome, 322 F.3d 328, 334 (4th Cir. 2003);

Basden v. Lee, 290 F.3d 602, 615 (4th Cir. 2002), cert. denied,

537 U.S. 980 (2002); Thomas, 244 Va. at 18, 419 S.E.2d at 615.

The presence or absence of bad faith by the state depends on

whether agents of the state had knowledge of the exculpatory

28
value of the evidence when it was lost or destroyed.

Youngblood, 488 U.S. at 56 n.*; Holdren v. Legursky, 16 F.3d 57,

60 (4th Cir. 1994). Thus, the possibility that evidence could

have exculpated a defendant depending on future testing results

is not enough to satisfy the constitutional standard of

materiality. See Youngblood, 488 U.S. at 56 n.*.

In the present case, the circuit court concluded that

"[t]here [was] no evidence that any official of the Commonwealth

acted in bad faith." The court also found that "[t]here [was]

no evidence to conclude that there was an intent by anyone in

the Clerk's office to destroy exculpatory evidence." The court

further found that while Robert McCarthy's judgment was

erroneous, he "wanted to remove the box of exhibits from the

evidence room to make additional space," and he "believed he had

the authority to destroy the trial exhibits once he received the

mandate indicating that Lovitt's appeal to the Virginia Supreme

Court had been denied."

The circuit court's determination that there was an absence

of bad faith was a finding of fact, not of law, because that

finding rested on the knowledge of the Commonwealth's agents

concerning the exculpatory value of the evidence at the time it

was destroyed. See id.; Holdren, 16 F.3d at 60; Thomas, 244 Va.

at 18, 419 S.E.2d at 615-16. Such factual findings made by the

circuit court are entitled to deference and are binding in this

29
proceeding unless they are plainly wrong or without evidence to

support them. Hedrick, 264 Va. at 496, 570 S.E.2d at 847.

The circuit court's findings concerning the absence of bad

faith are supported by the evidence and are not plainly wrong.

McCarthy's actions, and the failure of Kleback and Gilmore to

report his intentions to another supervisor, do not establish

that an agent of the Commonwealth had knowledge of any

exculpatory value of the trial exhibits at the time they were

destroyed. See Youngblood, 488 U.S. at 56 n.*; Holdren, 16 F.3d

at 60. The mere fact that the exhibits included DNA evidence,

and that Kleback may have related this information to McCarthy,

does not establish that McCarthy was aware that an analysis of

some of the DNA evidence had produced inconclusive results, or

that such evidence may have been subject to further testing.

Moreover, even if McCarthy had been aware of these

considerations, such awareness would not have met the

constitutional standard of materiality under Youngblood, because

Lovitt can assert no more than the mere possibility that further

testing could have exculpated him. See Youngblood, 488 U.S. at

56 n.*.

In addition, the circuit court found that at the time the

evidence was destroyed, McCarthy was unaware that Code § 19.2-

270.4:1, enacted 20 days before the destruction order was

entered, mandated the storage of human biological evidence

30
received in the case of a person sentenced to death. McCarthy's

testimony adequately supports this finding.

The circuit court made an additional factual finding that

no employees of either the Commonwealth's Attorney or the

Attorney General knew about the destruction of evidence until

after the destruction occurred. This finding is supported by

the testimony of Margaret Eastman, Barbara Walker, and McCarthy.

The record also shows that Judge Paul F. Sheridan, who entered

the evidence destruction order, had not presided over Lovitt's

trial. Therefore, we hold that the record lacks any evidence

that an agent of the Commonwealth acted in bad faith with regard

to the destruction of the trial exhibits.

We turn now to consider Lovitt's claim that he is entitled

to habeas corpus relief because the destruction of the trial

exhibits violated Code §§ 19.2-270.4 and –270.4:1. Code § 19.2-

270.4(A) provides, in relevant part:

Except as provided in § 19.2-270.4:1 and unless
objection with sufficient cause is made, the trial
court in any criminal case may order the donation or
destruction of any or all exhibits received in
evidence during the course of the trial (i) at any
time after the expiration of the time for filing an
appeal from the final judgment of the court if no
appeal is taken or (ii) if an appeal is taken, at any
time after exhaustion of all appellate remedies.

In the case of a person sentenced to death, Code § 19.2-

270.4:1(B) requires the Commonwealth to store, preserve, and

retain any human biological evidence, or representative samples

31
thereof, until the judgment is executed. This statute also

provides that any noncompliance with the terms of the statute

"shall not form the basis for relief in any habeas corpus or

appellate proceeding." Code § 19.2-270.4:1(E).

In enacting Code §§ 19.2-270.4 and –270.4:1, the General

Assembly provided for both the retention of trial evidence,

including evidence containing DNA, and the ultimate disposal of

such evidence when all appellate remedies have been exhausted

and judgment has been executed. Such procedures protect the

efficacy of the appellate process, as well as the need to

preserve evidence for use in the event of a retrial or other

proceeding allowed by law. However, in stating the procedural

requirements relating to the retention of human biological

evidence in Code § 19.2-270.4:1, the General Assembly also

recognized that noncompliance with those procedures may occur

and provided statutory language plainly excluding any such

noncompliance as a basis for appellate or habeas corpus relief.

Based on this unambiguous statutory proscription, we find

no merit in Lovitt's contention that the Commonwealth's failure

to comply with either statute's provisions relating to human

biological evidence presented at his trial entitles him to

habeas corpus relief. Thus, we hold that Lovitt has failed to

advance any valid basis for habeas corpus relief arising from

the destruction of the trial exhibits in his case.

32
 B. BRADY CLAIMS

Lovitt argues that the Commonwealth failed to disclose

certain exculpatory evidence before trial. He contends that Dr.

Pierre-Louis' comments at the autopsy concerning the scissors

she examined were exculpatory, and that the Commonwealth's

failure to disclose this information prejudiced him because

these comments directly contradicted the Commonwealth's theory

that Dicks was murdered with a pair of scissors. Lovitt also

argues that the Commonwealth was required to disclose evidence

of Lucas' allegedly inconsistent prior statements and his

cooperation with different law enforcement authorities, and

asserts that such information could have been used to attack

Lucas' credibility at trial. 4

In response, the warden argues that Dr. Pierre-Louis'

comments were not exculpatory because she did not examine the

bloody scissors that were admitted at trial and those scissors

were different in size from the two pairs of scissors she

actually examined. The warden also asserts that Casel Lucas did

not make any prior inconsistent statements that should have been

disclosed by the Commonwealth, and that the Commonwealth was not

4
We do not consider Lovitt's additional contention that the
Commonwealth engaged in misconduct by arguing to the jury that
the bloody scissors were the murder weapon when the Commonwealth
knew of Dr. Pierre-Louis' comments concerning the other scissors
examined during the autopsy. Lovitt failed to make this
allegation in his habeas petition. See Code § 8.01-654(B)(2).

33
required to disclose Lucas' cooperation in other criminal cases

of which the Commonwealth was unaware at the time of Lovitt's

trial.

We review these claims under settled constitutional

principles concerning the disclosure of exculpatory evidence.

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held

that a due process violation occurs when the prosecution

suppresses evidence favorable to an accused that is material

either to guilt or to punishment, irrespective whether the

prosecution acted in good faith or bad faith. Id. at 87; see

also Strickler v. Greene, 527 U.S. 263, 280 (1999); Kyles v.

Whitley, 514 U.S. 419, 432 (1995); Soering v. Deeds, 255 Va.

457, 464, 499 S.E.2d 514, 517 (1998); Bowman v. Commonwealth,

248 Va. 130, 133, 445 S.E.2d 110, 111 (1994).

Exculpatory evidence is material if there is a reasonable

probability that the proceeding would have resulted in a

different outcome had the evidence been disclosed to the

defense. Strickler, 527 U.S. at 280; Kyles, 514 U.S. at 433;

United States v. Bagley, 473 U.S. 667, 682 (1985); Cherrix v.

Commonwealth, 257 Va. 292, 302, 513 S.E.2d 642, 649, cert.

denied, 528 U.S. 873 (1999); Soering, 255 Va. at 464, 499 S.E.2d

at 517; Bowman, 248 Va. at 133, 445 S.E.2d at 112. A

"reasonable probability" is one that is sufficient to undermine

confidence in the outcome of the proceeding. Kyles, 514 U.S. at

34
434; Bagley, 473 U.S. at 682; Soering, 255 Va. at 464, 499

S.E.2d at 517; Bowman, 248 Va. at 133, 445 S.E.2d at 112. At

the heart of this inquiry is a determination whether the

evidence favorable to the defendant could reasonably be

considered as placing the entire case in such a different light

that confidence in the verdict is undermined. Strickler, 527

U.S. at 290; Kyles, 514 U.S. at 435.

The Brady disclosure requirements extend to information

that can be used to impeach a witness' credibility. Strickler,

527 U.S. at 282 n.21; Bagley, 473 U.S. at 676; Bramblett v.

Commonwealth, 257 Va. 263, 276, 513 S.E.2d 400, 409, cert.

denied, 528 U.S. 952 (1999); Goins v. Commonwealth, 251 Va. 442,

456, 470 S.E.2d 114, 124, cert. denied, 519 U.S. 887 (1996). A

prosecutor's suppression of impeachment evidence creates a due

process violation only if the suppression deprives the defendant

of a fair trial under the Brady standard of materiality.

Bagley, 473 U.S. at 678; see McDowell v. Dixon, 858 F.2d 945,

949 (4th Cir. 1988).

This due process analysis requires consideration on an

item-by-item basis whether the evidence at issue was

exculpatory. Kyles, 514 U.S. at 436 n.10; United States v.

Ellis, 121 F.3d 908, 916 (4th Cir. 1997). However, the

determination whether undisclosed exculpatory evidence was

material must be made by considering its cumulative effect.

35
Kyles, 514 U.S. at 436 n.10; Monroe v. Angelone, 323 F.3d 286,

302 (4th Cir. 2003); Ellis, 121 F.3d at 916.

We first consider Dr. Pierre-Louis' comments made at the

autopsy that the two pairs of scissors she was shown were not

consistent with Dicks' wounds. As stated above, both Detective

Chase and Barbara Walker testified that these scissors were not

the same size as the bloody scissors, which were the scissors

introduced at trial. In addition, after the bloody scissors

were subjected to DNA testing, which showed that Dicks' blood

was on the tip of the scissors, Dr. Pierre-Louis told Detective

Chase that she had been wrong in her earlier conclusion

regarding the pairs of scissors she examined.

We conclude that Dr. Pierre-Louis' opinion concerning the

scissors presented at the autopsy was not exculpatory evidence

because that opinion related to scissors that were not

introduced into evidence, were not the alleged murder weapon,

and were not shown to be the same size as the alleged murder

weapon. Her initial opinion also was not exculpatory in light

of the circuit court's factual finding, supported by the

testimony of Detective Chase, that Dr. Pierre-Louis changed her

opinion before trial. Therefore, we hold that the prosecution

was not required to provide the defense information concerning

Dr. Pierre-Louis' initial opinion stated at the autopsy.

36
 Because Dr. Pierre-Louis' statement was not exculpatory, we

are not required to consider the issue of the materiality of

that evidence. Nevertheless, we observe that the Commonwealth's

failure to disclose this information could not have prejudiced

Lovitt's defense because Dr. Pierre-Louis conceded at the

evidentiary hearing in the present case that two of Dicks' fatal

wounds, designated on the autopsy report as wounds #2 and #3,

could have been caused by the bloody scissors. This

acknowledgement that the bloody scissors could have been the

source of two of Dicks' fatal wounds completely negates Lovitt's

claim that there is a reasonable probability that his trial

would have resulted in a different outcome if Dr. Pierre-Louis'

initial opinion had been provided to the defense.

In addition, as the circuit court found, the evidence in

the present case showed that trial counsel Denman Rucker

investigated before trial whether the scissors like those

presented at the autopsy could have caused Dicks' wounds. Upon

consultation with a forensic expert, Rucker was told that

scissors of that approximate size could have caused Dicks'

wounds. Thus, Lovitt cannot show he was prejudiced by the

Commonwealth's failure to inform him of Dr. Pierre-Louis'

initial opinion, because he was aware of the issues involving

scissors of that approximate size and investigated those issues

as part of his defense in Lovitt's trial.

37
 We next consider the issue whether the Commonwealth failed

to disclose material exculpatory evidence concerning Casel Lucas

that could have been used to impeach his credibility at trial.

Although the circuit court received evidence that Lucas had

provided information to the police on several occasions, the

evidence showed that on only one such occasion, the Evans

prosecution in Alexandria, did Lucas receive any benefit from

his cooperation with the police.

When a person has provided information to governmental

agents about the commission of a crime for which he received a

benefit in the disposition of criminal charges against him, this

fact may be used to impeach his credibility when he testifies as

a witness for the prosecution. See Giglio v. United States, 405

U.S. 150, 154-55 (1972); Cargle v. Mullin, 317 F.3d 1196, 1215-

16 (10th Cir. 2003); United States v. Lee, 867 F.2d 206, 207-08

(4th Cir. 1989). However, when a person does not receive a

benefit from providing such information, and later testifies as

a prosecution witness, the mere fact of his prior cooperation

with the governmental agents does not constitute impeachment

evidence subject to disclosure as exculpatory evidence. See

Collier v. Davis, 301 F.3d 843, 849 (7th Cir. 2002), cert.

denied, ___ U.S. ___, 123 S.Ct. 1290 (2003); Knox v. Johnson,

224 F.3d 470, 482 (5th Cir. 2000), cert. denied, 532 U.S. 975

(2001).

38
 Applying these principles, the Commonwealth was required to

provide Lovitt's trial counsel with information concerning

Lucas' cooperation with the police in the Evans case. Thus,

when we consider below the effect of undisclosed exculpatory

evidence to determine its materiality, see Kyles, 514 U.S. at

436 n.10, we must include in our analysis the Commonwealth's

failure to disclose this information about Lucas. However,

because the record shows that Lucas did not receive a benefit

for his cooperation in any of the other cases placed in issue by

Lovitt, that cooperation did not constitute impeachment evidence

subject to disclosure by the Commonwealth.

Lovitt also argues that Lucas made inconsistent statements

to the police about Lovitt's case that were subject to

disclosure by the Commonwealth under the Brady rule as

impeachment evidence. In support of this allegation, Lovitt

relies on the affidavit prepared by habeas counsel and signed by

Lucas describing inconsistent statements made by Lucas to the

police prior to Lovitt's trial. Among those statements were

comments relating to the type of murder weapon, the means by

which Lovitt left the scene of Dicks' killing, and the source of

Lucas' information concerning the murder.

The circuit court found that Lucas did not make the

inconsistent statements to the police detailed in the affidavit.

This factual finding is supported by Lucas' testimony that he

39
did not read the entire affidavit prepared by habeas counsel

before signing it, and that he did not agree with its contents.

The circuit court's factual finding also is supported by

Margaret Eastman's testimony that Lucas' statements before trial

were consistent with those Lovitt gave to the police when he was

arrested. Because the circuit court's finding is supported by

the evidence, we conclude that Lovitt has not demonstrated that

the Commonwealth failed to provide exculpatory evidence

regarding statements Lucas made prior to trial.

We conclude our Brady inquiry by examining the effect of

the one item of exculpatory evidence that the Commonwealth

failed to disclose to Lovitt's trial counsel, namely, the fact

that Lucas had received a benefit for his cooperation with the

police in the Evans case. We conclude that the failure to

disclose this evidence did not place Lovitt's trial in a posture

that would undermine confidence in the verdict. See Strickler,

527 U.S. at 290; Kyles, 514 U.S. at 435. Wolfe learned this

information before trial when she interviewed Lucas, and Rucker

cross-examined Lucas at trial about the benefit Lucas received

in the Evans case from his cooperation with the police. The

jury also was informed that Lucas had been convicted of 13

felonies and was able to include this information in its

assessment of Lucas' credibility. Thus, we hold that Lovitt's

Brady claim is without merit.

40
 C. INEFFECTIVE ASSISTANCE OF COUNSEL

Lovitt argues that his trial counsel provided ineffective

assistance during both the guilt phase and the penalty phase of

the trial. With regard to the guilt phase, he challenges

several decisions of his trial counsel, including their failure

to have additional DNA tests performed on the bloody scissors

and the jacket that he wore when he was arrested. Among

Lovitt's other contentions are that counsel failed to conduct a

reasonable investigation of the alleged murder weapon, failed to

conduct a thorough investigation of Casel Lucas, and failed to

request a jury instruction on the credibility of "jailhouse

informants."

Lovitt also argues that his trial counsel rendered

ineffective assistance at the penalty phase because they failed

to conduct an adequate investigation into his background and

family history. He asserts that trial counsel were required to

perform such an investigation to ensure that counsel had made an

informed decision regarding whether to present extensive

mitigation evidence to the jury. Lovitt maintains that he was

prejudiced by trial counsel's failure to conduct an adequate

investigation because evidence of his family background could

41
have reasonably convinced the jury to fix a sentence of life

imprisonment. 5

In response, the warden argues that Lovitt's trial counsel

provided effective assistance during both the guilt phase and

the penalty phase of the trial. With regard to the guilt phase,

the warden contends that trial counsel's decisions were based on

a careful strategy to emphasize the circumstantial nature of the

evidence and the fact that the DNA evidence did not point to any

single person as the perpetrator of the crime. With regard to

the penalty phase, the warden asserts that trial counsel were

adequately familiar with Lovitt's record and family background,

and that Lovitt has failed to demonstrate prejudice because

evidence of his personal history would have supported a

conclusion that he was a future danger to society.

We consider Lovitt's claims under established principles of

review. 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 Roe

v. Flores-Ortega, 528 U.S. 470, 476 (2000); United States v.

Cronic, 466 U.S. 648, 654 (1984); Sheikh v. Buckingham Corr.

5
Lovitt also argues on brief that his trial counsel were
ineffective at the penalty phase for failing to object to the
jury verdict form. However, we do not consider this argument
because Lovitt did not make this allegation in his petition for
a writ of habeas corpus. See Sheikh v. Buckingham Corr. Ctr.,
264 Va. 558, 565 n.1, 570 S.E.2d 785, 789 n.1 (2002).

42
Ctr., 264 Va. 558, 564, 570 S.E.2d 785, 788 (2002). 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. ___, ___, 123

S.Ct. 2527, 2535 (2003); Kimmelman v. Morrison, 477 U.S. 365,

384 (1986); Green v. Young, 264 Va. 604, 609, 571 S.E.2d 135,

138 (2002); Sheikh, 264 Va. at 564, 570 S.E.2d at 788. The

issue whether counsel provided a defendant effective assistance

at trial presents a mixed question of law and fact. Strickland,

466 U.S. at 698; see Sheikh, 264 Va. at 564, 570 S.E.2d at 788.

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 ___, 123 S.Ct. at 2535; Williams v. Taylor,

529 U.S. 362, 390 (2000). 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

Wiggins, 539 U.S. at ___, 123 S.Ct. at 2535; Bell v. Cone, 535

U.S. 685, 695 (2002); Williams, 529 U.S. at 390-91; Friedline v.

Commonwealth, 265 Va. 273, 277, 576 S.E.2d 491, 493 (2003). 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

43
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); Sheikh, 264 Va. at 564, 570 S.E.2d at 788.

To show that counsel's conduct fell outside the range of

reasonable professional assistance, a defendant 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; see Bell, 535 U.S. at

698; Darden, 477 U.S. at 186. However, "'strategic choices made

after less than complete investigation are reasonable' only to

the extent that 'reasonable professional judgments support the

limitations on investigation.'" Wiggins, 539 U.S. at ___, 123

S.Ct. at 2541 (quoting Strickland, 466 U.S. at 690-91); see also

Burger v. Kemp, 483 U.S. 776, 794 (1987).

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

___, 123 S.Ct. at 2541.

Rather, in deciding whether trial counsel exercised

reasonable professional judgment with regard to the

44
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

___, 123 S.Ct. at 2536; Strickland, 466 U.S. at 690-91. 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 ___, 123 S.Ct. at

2538.

If counsel's performance is found to have been deficient

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

the petitioner must also show that "there is a reasonable

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

result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine

confidence in the outcome." Strickland, 466 U.S. at 694; see

also Wiggins, 539 U.S. at ___, 123 S.Ct. at 2542; Williams, 529

U.S. at 390-91; Hedrick v. Warden, 264 Va. 486, 496-97, 570

S.E.2d 840, 847 (2002).

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

45
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 Strickler

v. Murray, 249 Va. 120, 128, 452 S.E.2d 648, 652 (1995).

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 which should have been presented

at trial. Wiggins, 539 U.S. at ___, 123 S.Ct. at 2543;

Williams, 529 U.S. at 397-98.

We first consider Lovitt's arguments pertaining to trial

counsel's strategy and actions during the guilt phase of his

trial. We find no merit in his contention that trial counsel

were ineffective based on an alleged failure to conduct a

reasonable investigation of the murder weapon. The circuit

court found that trial counsel investigated whether the bloody

scissors could have caused Dicks' wounds. The court's finding

is supported by Rucker's testimony that he consulted a forensic

expert at the Northern Virginia Forensic Laboratory, who opined

that scissors of that approximate size could have caused the

46
wounds due to tissue compression at the time the wounds were

inflicted. Based on this evidence, we conclude that counsel's

investigation of the murder weapon was objectively reasonable.

See Strickland, 466 U.S. at 687-88; see also Wiggins, 539 U.S.

at ___, 123 S.Ct. at 2535; Williams, 529 U.S. at 390-91.

Lovitt argues, nevertheless, that counsel were ineffective

for failing to cross-examine the Commonwealth's witnesses

concerning the "inconsistencies" between the stab wounds and the

bloody scissors. We disagree because the record establishes

that Rucker's investigation revealed that the wounds were not

inconsistent with scissors of that approximate size. Therefore,

Rucker had an objectively reasonable basis for failing to pursue

this subject on cross-examination of the Commonwealth's

witnesses. See Strickland, 466 U.S. at 687-88; see also

Wiggins, 539 U.S. at ___, 123 S.Ct. at 2535; Williams, 529 U.S.

at 390-91.

We also hold that trial counsel did not render ineffective

assistance by failing to object to certain DNA evidence and by

failing to request further testing of the bloody scissors and

Lovitt's jacket. Rucker testified that trial counsel

purposefully adopted a strategy not to question the inconclusive

DNA test results from the tests performed on these items.

According to Rucker, this strategy permitted counsel to argue to

the jury that the DNA tests failed to identify Lovitt as the

47
perpetrator of the crime, and that the Commonwealth had failed

to bear its burden of proof on this issue. This strategy was

objectively reasonable because it underscored the alleged

deficiency in the Commonwealth's proof while avoiding the

possibility that further testing of the scissors and jacket

would yield results further implicating Lovitt in the murder.

See Strickland, 466 U.S. at 687-88; see also Wiggins, 539 U.S.

at ___, 123 S.Ct. at 2535; Williams, 529 U.S. at 390-91.

Lovitt next argues that trial counsel were ineffective for

failing to request a continuance to investigate Lucas'

background after counsel learned that Lucas would be testifying

on behalf of the Commonwealth. We find no merit in this

contention because Wolfe interviewed Lucas before he testified

and obtained information concerning his multiple felony

convictions and his participation in the Evans prosecution for

which he obtained the benefit of a plea bargain. Given this

extensive impeachment evidence obtained by Wolfe in her

interview of Lucas, we conclude that trial counsel's

investigation of Lucas constituted an objectively reasonable

exercise of professional judgment, and that a continuance was

not needed for further investigation. See Strickland, 466 U.S.

at 687-88; see also Wiggins, 539 U.S. at ___, 123 S.Ct. at 2535;

Williams, 529 U.S. at 390-91.

48
 Lovitt also argues that trial counsel were ineffective for

failing to request a jury instruction regarding the "credibility

of jailhouse informants." Citing a decision from another

jurisdiction, Lovitt contends that he was entitled to an

instruction stating that the testimony of an "informer" must be

weighed with greater care than the testimony of an "ordinary"

witness. See Dodd v. State, 993 P.2d 778, 784 (Okla. Crim. App.

2000). Lovitt's contention is without merit because the law of

this Commonwealth does not require a fact finder to give

different consideration to the testimony of a government

informant than to the testimony of other witnesses. In

addition, we observe that the jury at Lovitt's trial was

properly instructed regarding its duty to determine the

credibility of the witnesses. Therefore, we conclude that

Lovitt has failed to prove that his counsel rendered ineffective

assistance during the guilt phase of the trial.

We turn now to consider Lovitt's argument that trial

counsel were ineffective in the penalty phase of the trial and

that he suffered resulting prejudice. His contentions primarily

address trial counsel's alleged failure to investigate his

family background, which he asserts contained evidence of drug

and sexual abuse, and counsel's failure to present more

extensive evidence of his personal history to the jury.

49
 Guided by Strickland, we directly consider the issue

whether Lovitt suffered prejudice sufficient to undermine

confidence in the outcome of his sentencing as a result of his

counsel's failure to investigate and present certain mitigation

evidence. See Strickland, 466 U.S. at 694; see also Wiggins,

539 U.S. at ___, 123 S.Ct. at 2542; Williams, 529 U.S. at 391.

We focus our analysis on the Wiggins decision in which the

Supreme Court, applying Strickland, recently invalidated a

habeas petitioner's death sentence based on trial counsel's

failure to investigate and present certain mitigation evidence

to the jury at the petitioner's sentencing proceeding. Wiggins,

539 U.S. at ___, 123 S.Ct. at 2541-44.

In Wiggins, the petitioner was convicted of capital murder

in a bifurcated proceeding. Id. at ___, 123 S.Ct. at 2532.

During the penalty phase, trial counsel elected to present no

mitigation evidence, instead seeking to prove that the evidence

was insufficient to establish that the defendant was the actual

perpetrator of the murder rather than a lesser participant in

the crime. Id. at ___, 123 S.Ct. at 2532-33. Under Maryland

law, this determination is made at the penalty phase of a

capital murder trial, and a jury may impose the death penalty

only if it determines that the defendant was the actual

perpetrator of the offense. See Md. Code Ann., Crim. Law § 2-

202 (2002).

50
 Prior to adopting this approach, trial counsel had the

defendant evaluated by a psychologist, who concluded that the

defendant "had an IQ of 79, had difficulty coping with demanding

situations, and exhibited features of a personality disorder."

Wiggins, 539 U.S. ___, 123 S.Ct. at 2536. However, the

psychologist's report did not describe or address the

defendant's extensive personal history. Id. at ___, 123 S.Ct.

at 2536. Trial counsel also reviewed court and social services

records, which referred to the defendant's "misery as a youth"

and to the fact that he had spent most of his childhood in

foster care. Id. at ___, 123 S.Ct. at 2536.

At the habeas hearing in Wiggins, the petitioner presented

evidence from a psychologist that petitioner "experienced severe

privation and abuse in the first six years of his life while in

the custody of his alcoholic, absentee mother." Id. at ___, 123

S.Ct. at 2542. Evidence from the psychologist further indicated

that the petitioner "suffered physical torment, sexual

molestation, and repeated rape during his subsequent years in

foster care." Id. at ___, 123 S.Ct. at 2542. In addition, the

evidence showed that the petitioner was homeless for a period of

time and had "diminished mental capacities." Id. at ___, 123

S.Ct. at 2542.

The Supreme Court held that trial counsel's decision to

limit their investigation of mitigation evidence was

51
unreasonable, because the evidence counsel had seen in the

social services records would have led a reasonably competent

attorney to conduct a further investigation. Id. at ___, 123

S.Ct. at 2541-42. The Court concluded that the petitioner was

prejudiced by counsel's unprofessional errors of judgment

because the mitigating evidence that counsel failed to discover

and present was "powerful." Id. at ___, 123 S.Ct. at 2542. In

reaching this conclusion, the Court also observed that the

petitioner's social history contained "little of the double edge

we have found to justify limited investigations in other cases."

Id. at ___, 123 S.Ct. at 2542.

Unlike the record in Wiggins, the record from Lovitt's

trial shows that counsel presented some recent personal history

as mitigation evidence at the penalty phase of the trial. That

evidence, provided by four sheriff's deputies working at the

Arlington jail, showed that Lovitt had made a very good

adjustment to his incarceration and had participated in Bible

study, in Alcoholics Anonymous meetings, and in voluntary work

programs.

In addition, trial counsel presented some family history

evidence through the testimony of Lamanda Jones, Lovitt's

stepsister, who testified about the help that Lovitt had

provided to his younger siblings in various aspects of their

upbringing. She stated that Lovitt helped take care of the

52
other children because his stepfather was an alcoholic and

"wasn't allowed around us most of the time." According to

Jones, Lovitt regularly fed the younger children and helped them

get ready for school. Jones also testified that, as an adult,

Lovitt visited her children every weekend and that she trusted

him to be with them.

At the habeas hearing, the evidence of Lovitt's family and

social history consisted of testimony from family members and

various records from the courts, social services, and juvenile

corrections. Lovitt did not present testimony from a

psychologist or a psychiatrist concerning his family history and

any effect that such history may have had on his development.

The testimony of Lovitt's family members at the habeas

hearing consisted of mostly general statements concerning abuse

directed toward Lovitt by his stepfather. Sherry Taylor,

Lovitt's cousin, testified that Lovitt's stepfather was "very

abusive" toward Lovitt and the other children. However, Taylor

did not describe any abuse specifically directed at Lovitt,

other than the fact that the stepfather "curs[ed] [Lovitt] out

. . . all the time."

Taylor also testified regarding Lovitt's good qualities,

stating that he was very protective of his siblings, helpful,

and "good with kids." She further stated that all the children

in the family loved him.

53
 Lamanda Jones testified that Lovitt's stepfather abused

alcohol and drugs, and that she had observed him "beat" Lovitt

with a telephone cord on a frequent basis. Jones also stated

that Lovitt's stepfather "molested" all the children, and that

such abuse was a "regular occurrence." However, Jones did not

relate any particular type or instance of sexual abuse directed

at Lovitt, and her only specific testimony regarding sexual

abuse concerned some of the other children.

Addressing Lovitt's good qualities, Jones stated that

Lovitt tried to protect his younger siblings from their father's

abuse. She also indicated that Lovitt was a "father figure" to

her during her childhood, and stated that he was "like [a]

father" to her own children.

Tonjala Carter, another stepsister, testified that Lovitt's

stepfather abused alcohol and drugs and was very violent toward

Lovitt. However, her testimony concerning such violence was

limited to a general description that the stepfather was "always

hitting on him, always cursing at him," and was very "mean."

Carter also related that Lovitt had good qualities as a

brother and an uncle. She stated that he often tried to protect

the younger siblings from their father and was a "father figure"

to them in several of the aspects of their daily life. Carter

also testified that Lovitt was "[v]ery good" with his nieces and

nephews.

54
 The various records introduced at the habeas hearing were

equivocal in some respects and could have been viewed by a jury

as either evidence in aggravation or in mitigation of the

offense. For example, Lovitt's substance abuse and medical

records showed that Lovitt had an antisocial personality

disorder and "polysubstance" dependence. The records stated

that Lovitt began drinking alcohol, supplied by his stepfather,

at the age of five, and began using marijuana at the age of

eight.

These records also showed that Lovitt abused many different

types of drugs as an adult, including heroin, amphetamines,

"acid," and phencyclidine. The records described Lovitt as

having a "serious problem with his anger" and having

"[d]ifficulty in respecting others." Also, in some of these

records, Lovitt described his family as "growing up close" and

stated that he "had everything he needed."

In his juvenile court records, Lovitt's childhood home was

described by a caseworker as being "very clean and nicely

furnished," and his mother and stepfather were described as

"strong individuals" who provided Lovitt with "a stable home

life." Lovitt's childhood home was further described by a

caseworker "as being well-maintained and adequate for the

family's needs." In addition, a clinical assessment contained

in the juvenile records stated that Lovitt did not relate any

55
problems with his family and "reported no difficulties in the

relationship with his stepfather." However, other juvenile

records showed that Lovitt described his stepfather as a "heavy

drinker [who] would sometimes become abusive toward his wife and

children."

The juvenile records also contained references to Lovitt's

lack of remorse for his behavior, lack of empathy for others,

lack of respect for the law, and propensity to blame others for

trouble that he instigated. These records also described Lovitt

as being "physically aggressive" and "manipulative," and as

having assaulted other juveniles at the Beaumont Correctional

Center.

In determining prejudice, we "reweigh the evidence in

aggravation against the totality of available mitigating

evidence." Wiggins, 539 U.S. at ___, 123 S.Ct. at 2542; see

also Williams, 529 U.S. at 397-98. The evidence in aggravation

included the brutal nature of the attack on Dicks, and the fact

that Lovitt murdered Dicks solely to eliminate any witness to

the robbery. Lovitt's prior record contained numerous felonies

including attempted robbery, several burglaries and larcenies,

and drug violations. While incarcerated for some of these

crimes, Lovitt was charged with many disciplinary violations,

which included assault, manufacturing "shank handles," and

56
possession of cocaine. He was on parole at the time he murdered

Dicks.

The mitigation evidence concerning Lovitt's home life as a

child is mixed, with some evidence from his juvenile records

suggesting that the situation might not have been as difficult

as the testimony at the habeas hearing indicated. In addition,

there is no evidence describing the nature or extent of sexual

abuse allegedly inflicted on Lovitt by his stepfather. Without

such evidence, this Court would have to resort to speculation to

consider any sexual abuse that Lovitt may have suffered.

The evidence regarding Lovitt's stepfather's other actions

toward him is somewhat general in nature. Nevertheless, the

evidence in mitigation at the habeas hearing contained

information about Lovitt's stepfather having provided Lovitt

alcohol at an early age and having hit him repeatedly with a

telephone cord and cursing him.

The evidence in mitigation also included descriptions of

Lovitt helping to take care of his siblings to compensate for

Lovitt's alcoholic stepfather's failure to assume this role.

However, the jury was informed of this fact, although in less

detail, when Lamanda Jones testified at the penalty phase

proceeding. There also was evidence in mitigation, which was

not presented by trial counsel, that Lovitt helped protect his

younger siblings from abuse by their father.

57
 The evidence concerning Lovitt's extensive drug abuse and

antisocial personality disorder is evidence of a type that the

Court in Wiggins termed "double edge." See Wiggins, 539 U.S. at

___, 123 S.Ct. at 2542. As such, this evidence could be viewed

both in aggravation and in mitigation of the offense. See

Burger, 483 U.S. at 793-94; Darden, 477 U.S. at 186-87.

Lovitt's juvenile and other records also are evidence reflecting

a "double edge," and show that he began a cycle of crime and

aggressive behavior at an early age and continued this pattern

throughout his adult life, despite the many occasions he was

offered assistance to resolve his problems.

We also observe that there is no evidence in the record

from a psychologist or a psychiatrist providing an evaluation of

Lovitt's mental health. Thus, there is no evidence directly

addressing the effect Lovitt's family life may have had on his

development. The absence of such evidence represents a failure

of proof regarding Lovitt's contention that he was prejudiced by

trial counsel's failure to present extensive evidence of his

family and social history at the penalty phase proceeding.

In addition, there is no evidence in the record that Lovitt

has a diminished mental capacity. This aspect of the case

represents a major distinction from the evidence presented in

Wiggins, which showed that the petitioner exhibited "borderline

retardation." Wiggins, 539 U.S. at ___, 123 S.Ct. at 2533.

58
 The evidence in Wiggins also showed that the petitioner had

no prior convictions. Id. at ___, 123 S.Ct. at 2543. By

contrast, as indicated above, Lovitt's prior record depicts a

person who, in essence, was a "career criminal" unaffected by

the many attempts to offer him rehabilitative services.

Upon reviewing the evidence in aggravation and in

mitigation of the offense presented at the penalty phase of the

trial and at the habeas hearing, we conclude that Lovitt has

failed to demonstrate that his defense was prejudiced by trial

counsel's failure to investigate and present the available

mitigation evidence. Based on all the evidence before us, we

hold that the record fails to show that, but for his trial

counsel's stated failures, there is a reasonable probability

that the result of the proceedings would have been different.

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

___, 123 S.Ct. at 2542; Williams, 529 U.S. at 391. In short,

the record before us does not undermine confidence in the

outcome of the proceedings. See Strickland, 466 U.S. at 694;

see also Wiggins, 539 U.S. at ___, 123 S.Ct. at 2542; Williams,

529 U.S. at 391.

Our conclusion in this regard is not altered by the Supreme

Court's decision in Williams. There, the Court concluded that a

defendant had suffered prejudice resulting from his counsel's

failure to present substantial available mitigation evidence at

59
the penalty phase of his capital murder trial. Williams, 529

U.S. at 396.

The available mitigation evidence that was not presented in

Williams showed that the petitioner had suffered extreme abuse

and neglect in his early childhood years. Id. at 395. The

evidence indicated that the petitioner's parents both had been

imprisoned for criminally neglecting the petitioner, "that

Williams had been severely and repeatedly beaten by his father,

[and] that he had been committed to the custody of the social

services bureau for two years during his parents' incarceration

(including one stint in an abusive foster home)." Id. In

addition, the evidence available, but not presented, in Williams

indicated that the petitioner was "'borderline mentally

retarded' and did not advance beyond sixth grade in school."

Id. at 396.

In contrast, the record before us does not contain

extensive evidence of abuse that Lovitt suffered as a child.

Nor does the evidence suggest that he has a diminished mental

capacity. In fact, Lovitt obtained a high school equivalency

diploma, commonly known as a G.E.D. degree, as an adult. Thus,

the evidence before us does not raise the same concerns that the

Supreme Court in Williams held "might well have influenced the

jury's appraisal of [the petitioner's] moral culpability." Id.

at 398.

60
 Finally, we observe that in reaching its conclusion in

Williams that the petitioner suffered prejudice as a result of

his counsel's errors, the Supreme Court also observed that trial

counsel did not introduce evidence from certain witnesses who

were not related to the petitioner and were available to

testify. Id. at 396. The Court observed that a certified

public accountant, who had visited Williams frequently as part

of a prison ministry program, had been available to testify that

Williams appeared to thrive in the structured environment of

prison and had earned a carpentry degree while incarcerated.

Id. The Court also stated that certain prison officials would

have testified that, in their opinion, Williams was not likely

to act in a dangerous or violent manner while incarcerated. Id.

At Lovitt's trial, however, the jury did hear testimony

regarding his good adjustment to prison life while awaiting

trial. As we have already noted, four correctional officers

testified to this effect at the penalty phase proceeding. Thus,

for all the above reasons, we conclude that the nature and

amount of mitigation evidence that was proved to be available,

but not presented, in Lovitt's case is materially different from

the available mitigation evidence not presented in Williams.

We also find no merit in Lovitt's claim that the judge at

the habeas hearing improperly excluded certain affidavits by

several of Lovitt's family members that Lovitt attempted to

61
introduce into evidence. Assuming, without deciding, that such

affidavits are admissible subject to the trial court's

discretion in an evidentiary hearing held under Code § 8.01-

654(C), we conclude that the circuit court did not abuse its

discretion in refusing to admit them into evidence. The facts

alleged in those affidavits were cumulative of the testimony of

Taylor, Jones, and Carter.

Lovitt also is incorrect in his assertion that the

affidavits at issue would have been admissible in the penalty

phase proceeding and, thus, should have been admitted into

evidence on that basis at the habeas hearing. Unlike some other

jurisdictions, Virginia does not permit the admission of such

hearsay evidence during penalty phase proceedings. See Code

§ 19.2-264.4(B).

We do not consider in this habeas corpus proceeding

Lovitt's claim that he is actually innocent. This issue was

resolved by the jury in his trial on the capital murder and

robbery charges. As stated above, we affirmed the judgment of

the circuit court, and the United States Supreme Court denied

Lovitt's petition for a writ of certiorari challenging those

convictions. We also observe that an assertion of actual

innocence is outside the scope of habeas corpus review, which

concerns only the legality of the petitioner's detention. See

Wilkins, 255 Va. at 420-21, 498 S.E.2d at 696; McClenny, 246 Va.

62
at 134-35, 431 S.E.2d at 331; Smyth, 199 Va. at 96-97, 97 S.E.2d

at 748.

Finally, we have reviewed Lovitt's remaining allegations

and conclude that they have no merit.

For these reasons, we will dismiss the petition for a writ

of habeas corpus.

Petition dismissed.

63