Present: All the Justices
BRANDON WAYNE HEDRICK
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 992913 November 1, 2002
WARDEN OF THE SUSSEX I
STATE PRISON
UPON A PETITION FOR A WRIT OF HABEAS CORPUS
I.
Petitioner, Brandon Wayne Hedrick, was convicted of the
capital murder of Lisa Yvonne Alexander Crider in the
commission of robbery, forcible sodomy, and rape in violation
of Code § 18.2-31(4) and (5); robbery in violation of Code
§ 18.2-58; rape in violation of Code § 18.2-61; forcible
sodomy in violation of Code § 18.2-67.1; abduction in
violation of Code § 18.2-47; and use of a firearm in the
commission of murder in violation of Code § 18.2-53.1. The
jury fixed his punishment for the non-capital offenses within
the relevant statutory ranges. The jury fixed petitioner's
punishment at death for the capital murder convictions. The
circuit court sentenced petitioner in accord with the jury
verdicts. We affirmed the judgment of the circuit court in
Hedrick v. Commonwealth, 257 Va. 328, 513 S.E.2d 634, cert.
denied, 528 U.S. 952 (1999).
As permitted by Code § 8.01-654(C)(1), petitioner filed a
petition for writ of habeas corpus against the warden of the
Sussex I State Prison alleging, among other things, that his
trial counsel were ineffective. The warden filed a motion to
dismiss, and this Court entered an order directing that the
Circuit Court of Appomattox County conduct an evidentiary
hearing limited to the issue whether petitioner was denied
effective assistance of counsel during his capital murder
trial. The circuit court conducted the evidentiary hearing
required by Code § 8.01-654(C), and submitted a very thorough
and exhaustive written report that contained its findings of
fact and recommended conclusions of law. The circuit court
concluded that petitioner's allegations lacked merit, and the
court submitted its report to this Court. 1
While petitioner's habeas corpus petition was pending
before this Court, petitioner forwarded a notarized letter to
this Court and requested permission to withdraw his petition
for habeas corpus. The following day, petitioner wrote
another letter to this Court, which also contained his
notarized signature. Petitioner stated in that letter:
"Dear Supreme Court of Virginia
"My attorneys will not do what I say when I tell
them I wish to withdraw my appeals. My attorneys
are against the death penalty and I am for the death
penalty, so there is a conflict of intrest [sic]
there. I beleive [sic] in the Bible, and if someone
takes a life then that person should have his life
1
The Honorable Richard S. Blanton submitted the report to
this Court.
2
taken as well. I am guilty of the charges in which
Im [sic] being obtaind [sic] for. What I did was
cruel and selfes [sic], I had no disregard [sic] for
human life, there for [sic] I should be punished,
for my sake and the sake of my victim. There for
[sic] since my attorneys will not abide by my
demand, I personaly [sic] write my owne [sic] motion
to withdraw my habius corbus pititeon [sic] and to
have a [sic] execution date set as soon as possibal
[sic]. Thank you for your time in this matter.
"Sincerly [sic] yours,
"B.W.H.
"Brandon Wayne Hedrick"
Subsequently, petitioner forwarded another letter to this
Court that had apparently been prepared by his habeas
attorneys. In that letter, petitioner stated that he desired
to proceed with his habeas corpus petition. This Court
entered an order that directed the circuit court to conduct an
evidentiary hearing and determine whether petitioner desired
to proceed with his habeas corpus petition. The circuit court
conducted the hearing and concluded that petitioner "desire[d]
to continue with the litigation of his petition. When
questioned by the circuit court, petitioner . . . indicated
that this was his final decision on this matter."
II.
On May 10, 1997, Trevor Jones, William K. Dodson, and
petitioner were together in Jones' apartment in Lynchburg.
Petitioner and Jones left the apartment and traveled in Jones'
truck to an area in Lynchburg near Fifth and Madison Streets
3
to find some prostitutes. Petitioner and Jones met two
prostitutes and gave them money to purchase crack cocaine.
Petitioner, Jones, and the prostitutes went back to the
apartment where they smoked the crack cocaine and engaged in
sexual relations. Petitioner, Jones, and the prostitutes
returned to the area near Fifth and Madison Streets.
Petitioner and Jones gave the prostitutes money and asked them
to purchase more crack cocaine. The prostitutes took the
money and did not return.
Petitioner and Jones met two different prostitutes and
took them to Jones' apartment where petitioner and Jones drank
bourbon, smoked marijuana, and engaged in sexual relations
with the prostitutes. Around 11:00 p.m., petitioner, Jones,
and the prostitutes left the apartment and returned to the
area near Fifth and Madison Streets. The prostitutes got out
of Jones' truck, and Jones saw Lisa Crider, the victim in this
case.
Jones knew that Crider's boyfriend sold crack cocaine,
and petitioner and Jones decided to "pick up" Crider, have
sexual relations with her, and rob her of any crack cocaine in
her possession. Jones approached Crider and asked her if she
wanted to have sex. Crider got into the truck and went to the
apartment with Jones and petitioner. Jones paid her $50 and
4
had sexual intercourse with her. Petitioner did not have
sexual relations with her at the apartment.
Jones left his bedroom after he had sexual intercourse
with Crider, and while she was "getting dressed" Jones went to
another room and spoke with petitioner. Jones and petitioner
devised a plan in which petitioner would pretend to rob Jones
and Crider. Jones did not want Crider to know that he was
involved in the robbery because she knew where Jones lived,
and Jones was afraid that Crider's boyfriend would retaliate
against him. Jones directed petitioner to leave the apartment
and retrieve Jones' shotgun from the truck. When petitioner
entered the apartment with the shotgun, he "racked" the pump
on the shotgun and "motioned for" Crider and Jones and told
them to go into a bedroom. Petitioner told Jones to empty
Crider's pockets, and Jones took the $50 bill that he had paid
her, cigarettes, and a cigarette lighter. Jones placed
handcuffs on Crider, covered her eyes and mouth with duct
tape, and placed a shirt over her face. Petitioner took
Crider out of the apartment and placed her in the truck.
Petitioner, Jones, and Crider left the apartment at about
1:00 a.m. Petitioner and Crider were seated in the back of
the truck, and Jones drove the truck. Petitioner removed the
shirt and duct tape from Crider. Jones stopped the truck and
got out while petitioner raped Crider.
5
Petitioner and Jones decided that they would kill Crider
because they feared that her boyfriend might retaliate against
them. Jones drove the truck while he and petitioner tried to
find a suitable location to kill Crider, who cried and pled
for her life. As she pled for her life, Crider asked, "[i]s
there anything I can do to make y'all not do this?" and
petitioner replied that if Crider performed oral sex on him,
he would "think about it." Crider performed oral sex on
petitioner.
Around "daybreak," Jones drove the truck to a location
near the James River, where he, petitioner, and Crider got out
of the truck. Jones removed the handcuffs from Crider, bound
her hands together with duct tape, and placed duct tape around
her mouth and eyes. Petitioner and Jones took Crider to the
river bank. Jones "turned [Crider and] faced her back to the
river." As Jones began to walk to the truck, petitioner
killed Crider by shooting her in the face with the shotgun.
III.
A.
This is the first opportunity that we have had to discuss
the standard of review that we apply when we consider a
circuit court's findings of fact and conclusions of law made
in its report pursuant to Code § 8.01-654(C). We conclude
that the circuit court's recommended conclusions of law, as
6
required by Code § 8.01-654(C), involve mixed questions of law
and fact subject to our de novo review. The circuit court's
factual findings, however, are entitled to deference and are
binding upon this Court unless those findings are plainly
wrong or without evidence to support them.
B.
In this habeas corpus proceeding, petitioner claims that
his trial counsel were ineffective. In Strickland v.
Washington, 466 U.S. 668 (1984), the Supreme Court established
the legal principles that we must apply. The circuit court
properly applied these principles in its report filed in this
Court. The Supreme Court has stated that "actual
ineffectiveness claims alleging a deficiency in attorney
performance are subject to a general requirement that the
defendant affirmatively prove prejudice." Id. at 693; accord
Williams v. Taylor, 529 U.S. 362, 394-95 (2000); Basden v.
Lee, 290 F.3d 602, 616-17 (4th Cir. 2002); Sheikh v.
Buckingham Correctional Center, 264 Va. ___, ___, ___ S.E.2d
___, ___ (2002) (this day decided). The Supreme Court held in
Strickland that "[e]ven if a defendant shows that particular
errors of counsel were unreasonable . . . the defendant must
show that they actually had an adverse effect on the defense."
466 U.S. at 693; accord Moore v. Hinkle, 259 Va. 479, 487, 527
7
S.E.2d 419, 423 (2000); Murray v. Griffith, 243 Va. 384, 388,
416 S.E.2d 219, 221 (1992).
The Supreme Court has articulated the following test that
we must apply to ascertain 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.
"In making the determination whether the
specified errors resulted in the required prejudice,
a court should presume, absent challenge to the
judgment on grounds of evidentiary insufficiency,
that the judge or jury acted according to law. . . .
The assessment of prejudice should proceed on the
assumption that the decisionmaker is reasonably,
conscientiously, and impartially applying the
standards that govern the decision.
. . . .
"The governing legal standard plays a critical
role in defining the question to be asked in
assessing the prejudice from counsel's errors. When
a defendant challenges a conviction, the question is
whether there is a reasonable probability that,
absent the errors, the factfinder would have had a
reasonable doubt respecting guilt.
. . . .
"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."
8
Strickland, 466 U.S. at 694-95; accord Roe v. Flores-Ortega,
528 U.S. 470, 481-82, 484-86 (2000); Bell v. Cone, ___ U.S.
___, ___, 122 S.Ct. 1843, 1850 (2002).
Additionally, as the Supreme Court stated in Roe,
" 'no particular set of detailed rules for counsel's
conduct can satisfactorily take account of the
variety of circumstances faced by defense counsel.'
Rather, courts must 'judge the reasonableness of
counsel's conduct on the facts of the particular
case, viewed as of the time of counsel's conduct,'
and 'judicial scrutiny of counsel's performance must
be highly deferential.' "
Roe, 528 U.S. at 477 (quoting Strickland, 466 U.S. at 688-90)
(citations omitted). We also observe that the Supreme Court
has held that "Strickland's standard, although by no means
insurmountable, is highly demanding." Kimmelman v. Morrison,
477 U.S. 365, 382 (1986).
IV.
A.
Petitioner argues that "[t]he pervading problem in this
case was trial counsel's failure to communicate" which
rendered them ineffective. Petitioner asserts that trial
counsel did not discuss trial strategy until one business day
before the trial. Petitioner claims that trial counsel did
not "seriously" discuss: the witnesses; whether petitioner
would plead guilty and avoid a trial on the guilt phase of the
capital murder trial; a theory of defense for the guilt phase;
9
what records trial counsel had obtained relevant to the case;
and the witnesses' prospective testimony. Continuing,
petitioner contends that trial counsel failed to communicate
regarding: voir dire of the jury; the names of the
Commonwealth's witnesses; assignment of the opening statement
and closing argument; witness subpoenas; and other
information.
The circuit court concluded in its report, and we agree,
that petitioner's claims are without merit. Lee R. Harrison
and James P. Baber were petitioner's trial counsel. Harrison
testified at the evidentiary hearing that any communication
problem between trial counsel was limited to a complaint that
Baber had not promptly disseminated information to Harrison.
Harrison "testified that only on one occasion did Baber not
forward material to him in a timely manner and that [Harrison]
solved the problem by going to Baber's office to copy the
material." Additionally, even though trial counsel did not
meet in either counsel's office, trial counsel discussed the
trial of this case on numerous occasions.
Trial counsel discussed the division of trial
responsibility, pretrial investigation, witnesses, and trial
strategies. Harrison agreed to prepare the expert witnesses,
and Baber agreed to locate lay witnesses. Baber collected
information about petitioner's background and contacted
10
petitioner's parents and grandparents. Trial counsel provided
petitioner's mental health expert witness with information
Baber had collected from his own investigation and materials
provided by the Commonwealth. Therefore, we hold that
petitioner's claim that trial counsel's purported failure to
communicate rendered them ineffective fails to satisfy either
the performance or prejudice standards established in
Strickland v. Washington.
B.
Petitioner argues that trial counsel failed to
investigate and prepare adequately for trial. Petitioner
claims that the circuit court "provided [him] two attorneys,
one of whom had never even selected a jury in a capital case,
and neither of whom had completed even a single capital
trial." Petitioner contends that trial counsel did not speak
to his friends or relatives about petitioner's background and
had not spoken with witnesses prior to their testimony during
the sentencing hearing. Petitioner also claims that Dr. Gary
Hawk, who was appointed to serve as petitioner's mental health
expert witness during the capital murder trial, urged trial
counsel to contact and interview petitioner's family members,
friends, or other individuals who might have had information
about petitioner's background or behavior relevant at the
11
sentencing phase of the trial, and that trial counsel failed
to do so.
Continuing, petitioner claims that trial counsel failed
to obtain his public school records, which indicated that
petitioner had "borderline" intellectual abilities, and
records concerning his family's history of alcohol and drug
addiction. Petitioner argues that trial counsel made no
effort to obtain an expert witness to assist or advise him in
scientific areas. Petitioner states that even though trial
counsel visited him separately on several occasions, there
were only five meetings when both counsel met together with
petitioner.
The circuit court, in its report, rejected petitioner's
allegations. The circuit court found that after petitioner
was indicted, trial counsel researched legal issues and
prepared and filed numerous motions. Trial counsel reviewed
extensive discovery provided to them by the Commonwealth that
included police investigation reports, witness statements, and
certificates of analysis related to forensic testing. Trial
counsel collected information about petitioner's background,
contacted petitioner's parents, grandparents, former employers
and school personnel, and tried to obtain his school records.
Trial counsel met with expert witnesses designated by the
Commonwealth, including the medical examiner, a firearms
12
expert, and an expert on DNA. Trial counsel met with Dr. Gary
Hawk, the mental health expert witness who was appointed by
the court at their request.
The circuit court found that trial counsel met with
petitioner on numerous occasions before trial. In preparation
for sentencing, trial counsel met with petitioner's family
members and discussed the need to provide character testimony.
Trial counsel solicited petitioner's family members' help in
locating friends and family character witnesses.
The circuit court also found that Baber, one of
petitioner's trial counsel, had practiced law for 39 years and
had maintained a practice in Cumberland County, which is in
the same judicial circuit as Appomattox. Baber, who had
served as the Commonwealth's Attorney for Cumberland County
for 16 years, also had extensive criminal law experience and
had tried innumerable felony jury trials throughout the
Commonwealth. Harrison, petitioner's other trial counsel, had
been involved in 12 previous capital murder cases, and he had
tried jury trials involving serious felony charges such as
murder, rape, and robbery. Both trial counsel had also
attended seminars on capital murder trials.
In view of the circuit court's findings that are
supported by the record, we hold that petitioner's contentions
that trial counsel were ineffective because they allegedly
13
failed to investigate and prepare for trial are without merit.
Petitioner fails to demonstrate that trial counsel were
ineffective, and he fails to satisfy the performance or
prejudice standards established in Strickland v. Washington.
C.
Petitioner argues that his trial counsel were ineffective
because they failed to develop guilt phase theories.
Specifically, petitioner contends that "Baber did not think
that 'accidental shooting' was 'a credible theory of the
case,'" but Harrison acknowledged that it was "an important
point for [the defense] to make before the jury . . . [and
that he] wanted to try to find someone to confirm what Brandon
had to say about this accidental shooting." Petitioner claims
that trial counsel failed to reconcile their difference in
approaches to this potential defense. Continuing, petitioner
asserts that trial counsel could have consulted other expert
witnesses to pursue an "accidental shooting" defense.
Petitioner argues that the Commonwealth's medical examiner
provided information to trial counsel that supported a defense
theory that the victim's death was accidental.
We reject petitioner's contentions that trial counsel
were ineffective because they purportedly failed to develop a
defense of accidental shooting. As the circuit court noted in
its report, the jury did hear testimony that petitioner had
14
indicated that he was trying to shoot over the victim's head
to scare her. The Commonwealth's evidence, however, showed
that petitioner killed the victim by shooting her in the face
with a 12-gauge shotgun from a distance of three to seven
feet. The victim was not shot in the top of her head, but the
"full load" hit her in the mouth.
Additionally, the evidence at trial clearly established
that the suggestion that the victim was killed accidentally
was initially made by Special Agent Holt, not petitioner.
Special Agent Holt testified that when he interviewed
petitioner, Holt attempted to minimize petitioner's
involvement in the crime by suggesting to petitioner that when
he shot the victim, he did so accidentally. Petitioner did
not testify that the shotgun discharged accidentally.
Additionally, petitioner admitted in his judicial admission
filed with this Court that he was guilty of the crimes
charged, which included the intentional killing of the victim.
We hold that petitioner's argument that trial counsel were
ineffective because they failed to develop guilt phase
theories does not satisfy the performance or prejudice
standards established in Strickland v. Washington.
D.
Petitioner asserts that trial counsel were ineffective
because they failed to obtain an expert witness to help them
15
develop and present evidence to the jury that petitioner
accidentally killed Crider. Petitioner claims that the
medical examiner's finding that the shotgun blast entered the
victim's brain at a slightly "upwards angle" supported the
theory that the shotgun accidentally discharged with the gun
at petitioner's hip.
Petitioner introduced the de bene esse deposition of
Brian Berger in evidence at the habeas evidentiary hearing.
Berger, who works in a laboratory at the Department of
Anesthesiology at the Medical College of Virginia, described
himself as a part-time gunsmith and self-taught "wound
ballistics expert." Berger testified that it was impossible
for petitioner to have held the shotgun against his shoulder
when the shotgun discharged because the entry of the wound on
the victim's face was consistent with petitioner having held
the gun on his hip and "shooting slightly upward." Petitioner
claims that Berger's testimony demonstrates that expert
assistance was available to trial counsel to support the
theory of accidental discharge.
We hold that petitioner's contentions are without merit.
The circuit court implicitly rejected Berger's testimony, and
we find no reason to disagree with the circuit court. Also,
the circuit court concluded that Berger "conceded that a
slightly upward tilt of the victim's head at the time of the
16
shotgun blast would have produced the identical wound path
from a shotgun held at [petitioner's] shoulder." As we have
already stated in Part IV.C. of this opinion, the facts do not
support a theory that petitioner accidentally killed Crider.
Additionally, petitioner testified at the capital murder
trial that he tried to shoot the shotgun over the victim's
head; he did not testify that the shotgun accidentally
discharged. Furthermore, petitioner made a judicial admission
in this Court that he was guilty of the crimes charged, which
included the capital murder charge. Therefore, we hold that
petitioner's claims that trial counsel were ineffective
because they did not obtain any expert witness to support this
theory fail to satisfy the performance or prejudice standards
established in Strickland v. Washington.
E.
Petitioner claims that trial counsel "failed to develop
evidence of involuntary intoxication as a defense." 2
Petitioner says that because he testified at the capital
murder trial that he "was stoned and didn't realize what [he]
was doing and didn't have a clear mind," trial counsel were
2
In the context of petitioner's argument, this appears to
be a typographical error. Petitioner presents no evidence to
suggest involuntary intoxication.
17
deficient for "failing to investigate and properly present at
trial evidence of [his] voluntary intoxication."
As the circuit court found in its report, trial counsel
did present evidence of petitioner's drug and alcohol abuse,
and trial counsel argued to the jury that petitioner had
consumed alcohol and drugs the night preceding the murder.
And, the circuit court's conclusions are supported by the
record. However, there was no evidence of the quantities of
alcohol and drugs that petitioner ingested the night before
the murder other than his own vague assertions made before
trial and in his testimony at trial. The circuit court found
that "a minimum of five hours had transpired from the time
[petitioner] last ingested any substance" and the time the
murder occurred. As many as seven hours may have passed
between the time petitioner last ingested alcohol or drugs and
the time of the murder. The evidence at trial did not depict
petitioner as someone who was intoxicated or impaired by
drugs. The conduct of Jones and petitioner during the early
morning hours preceding Crider's murder was planned and
purposeful. Jones stopped the truck and he and petitioner
discussed the necessity of killing Crider. They spent several
hours looking for a suitable secluded location. They removed
the handcuffs to avoid leaving evidence, and petitioner wore
gloves to avoid leaving any fingerprints. They placed duct
18
tape around the victim's hands, mouth, and eyes before they
took her to the river bank. Before fleeing to Nebraska, they
disposed of much of the incriminating evidence. Additionally,
the fact that petitioner may have been impaired by alcohol and
drugs was presented to the jury by Dr. Hawk at the sentencing
phase as evidence in mitigation.
In light of defense counsel's presentation of evidence
regarding alcohol and drug use, as well as the facts
effectively negating an assertion of impairment, we hold that
petitioner's contentions are without merit because he fails to
satisfy the performance or prejudice standards established in
Strickland v. Washington.
F.
Petitioner argues that trial counsel were ineffective
because they failed to submit a jury instruction on voluntary
intoxication. We disagree with petitioner.
Trial counsel's performance was not deficient because, as
the circuit court stated, "the evidence at the trial did not
depict [petitioner] as someone who was significantly
intoxicated and impaired." We have already summarized the
extensive reasons why the evidence did not support a voluntary
intoxication jury instruction in Part IV.E. of this opinion,
and we will not repeat those reasons here. We hold that
19
petitioner fails to satisfy the performance or prejudice
standards established in Strickland v. Washington.
G.
Petitioner argues that trial counsel made errors
affecting the penalty phase of the capital murder trial.
Petitioner states that one counsel in this case spent a total
of 53 hours working on the case during the year he had to
prepare for trial. Continuing, petitioner claims that defense
counsel failed to investigate petitioner's background,
character, and mental condition. Petitioner says that despite
"any imprudent reliance that counsel had on their
mistaken belief that [petitioner] would plead guilty
or the case would 'plead out' without any indication
that the prosecution would allow [petitioner] to
plead to charges that did not involve the death
penalty, [petitioner's] trial counsel conducted no
meaningful penalty phase investigation. They made
only the most superficial effort to collect records
concerning [petitioner's] background. They made no
effort to identify and interview individuals
concerning [petitioner's] background, and, in fact,
resisted the repeated urging to do so by the mental
health expert appointed to assist them, Dr. Hawk."
Petitioner alleges that trial counsel did not subpoena any
witnesses for the sentencing or guilt phases of the trial and
did not talk to witnesses about their testimony before trial.
Petitioner asserts that trial counsel's performance was
ineffective because counsel did not adequately utilize its
mental health expert, Dr. Hawk. Petitioner claims that
defense counsel did not communicate with each other regarding
20
Dr. Hawk's testimony and that defense counsel failed to
respond to Dr. Hawk's suggestion that counsel interview
witnesses regarding petitioner's background. Petitioner
contends that trial counsel did not meet with Dr. Hawk until
the night before his testimony and made no efforts to
ascertain the information that Dr. Hawk would need to conduct
a thorough evaluation of petitioner.
Petitioner claims that the Commonwealth's Attorney was
able to argue in his closing argument during the penalty phase
of the capital murder trial that petitioner "has a decent
family" because trial counsel failed to introduce accurate
evidence about petitioner's family and home life. Petitioner
states that his family members "could have described for the
jury a vivid and compelling picture of the extremely chaotic
and often violent environment in which [petitioner] grew up."
Petitioner also asserts that certain "[r]ecords of the
Commonwealth's investigations of [his] family" could have been
easily obtained and would have provided trial counsel with an
accurate understanding of his family. Petitioner points out
that trial counsel were provided a report from Dr. Hawk that
referenced petitioner's father's history of drug abuse.
During the evidentiary hearing in the circuit court, Dr.
Kent McDaniel testified about certain factors leading to
"family chaos -- [petitioner's] parents' substance abuse, his
21
father's physical absence from the home for extended periods
of time, his mother's psychological limitations, his father's
psychiatric symptoms and his own psychological limitations,
[petitioner's brother's] extensive behavioral problems, and
the overall recurrent violence that was in the home" and the
effect these factors had on petitioner's emotional
development. Petitioner argues that this information would
have created a considerably different picture of his family
environment than that which was presented during his capital
murder trial.
We hold petitioner's claims are without merit. As the
circuit court noted in its report, trial counsel requested the
appointment of Dr. Hawk to assist trial counsel to identify
and present mitigating evidence at trial. Trial counsel
provided Dr. Hawk with information they had obtained. Dr.
Hawk had previously worked with Harrison, and Harrison was
aware that Dr. Hawk would contact trial counsel if he needed
additional information. According to Harrison's testimony at
the evidentiary hearing, Dr. Hawk only made one request for
additional information.
Dr. Hawk interviewed and tested petitioner, and he
conducted his own interviews with petitioner's mother and
brother. Dr. Hawk informed trial counsel of a number of
mitigating factors that could be offered at trial. Dr. Hawk
22
identified, among other things, such mitigating factors as
petitioner's intellectual limitations, depression, immaturity,
drug use, and alcohol abuse. Dr. Hawk also testified about
these mitigating factors at the capital murder trial.
Contrary to petitioner's assertions, trial counsel met
with Dr. Hawk in preparation for the capital murder trial.
Trial counsel met with Dr. Hawk in Charlottesville and
Appomattox. During the week of the trial, they communicated
with Dr. Hawk and spoke about the progression of the trial.
Petitioner's assertion that trial counsel failed to
develop evidence concerning his intellectual limitations is
without merit. Dr. Hawk testified at the capital murder trial
that petitioner's I.Q. was 76 and that 95% of similarly-aged
individuals were intellectually superior to petitioner. Dr.
Hawk also testified that petitioner had performed poorly in
school and that petitioner had failed the third grade. Dr.
Hawk opined that petitioner's pattern of failure "normally
would indicate the presence of possibly a learning disorder or
some other problem at school, but none was apparently
diagnosed."
Even though petitioner contends that trial counsel failed
to present evidence at the capital murder trial of his
disruptive family environment, the circuit court found that
petitioner "personally had directed his attorneys not to
23
attempt to present evidence of a 'bad childhood.'" Petitioner
cannot, in a subsequent habeas corpus petition, assert that he
was prejudiced by trial counsel's performance simply because
they followed his directive.
Additionally, during petitioner's sentencing hearing at
the capital murder trial, his family members and friends
testified that he was raised in a "normal" family, he had not
been abused, and he had been taught right from wrong. His
family members described him as quiet, helpful, and
respectful, and testified that recently he had become involved
"with people who led him into criminal activities."
Trial counsel also presented evidence of petitioner's
drug and alcohol dependence at the sentencing phase. Dr. Hawk
described petitioner's history of drug and alcohol abuse, and
he testified that petitioner's drug use at the time of the
crimes would have "affected his thinking in a negative way."
We agree with the circuit court's report that trial counsel
"presented this mitigation evidence to the jury in the manner
it had been formulated by Dr. Hawk."
Even though petitioner contends that trial counsel failed
to develop and effectively present evidence to the jury of
petitioner's intoxication at the time of the offense,
petitioner ignores the record of the capital murder trial.
Trial counsel presented evidence that petitioner had ingested
24
alcohol and drugs the night prior to the murder. Trial
counsel also argued these facts to the jury. However, no one,
including petitioner, knew the exact quantity of substances
that he had consumed. Petitioner's own expert witness, Dr.
Kent McDaniel, testified at the habeas evidentiary hearing
that he could not opine with any degree of certainty that
petitioner was intoxicated at the time he killed the victim.
Dr. McDaniel also stated that he could not opine that
petitioner was intoxicated to the point where petitioner could
not form an intent to commit a specific act. Clearly, trial
counsel's performance cannot be deemed deficient when
petitioner could not tell counsel the quantity of drugs and
alcohol that he had ingested. And, petitioner could not have
been prejudiced by trial counsel's alleged deficient
performance because the evidence of record clearly showed that
petitioner acted with deliberation in the development and
implementation of his plan to rob and kill the victim.
We note that petitioner's contention in his brief that
"[b]oth Dr. Hawk and Dr. McDaniel were of the opinion that
given information that [petitioner] was significantly
intoxicated at the time of the offense, this condition would
have significantly impaired his capacity to conform his
conduct [to the] requirements of the law" is inconsistent with
the record before this Court. Based on that record, neither
25
Dr. Hawk nor Dr. McDaniel knew, or could have known, the
quantity of alcohol and drugs that petitioner ingested the
night before the murder. We hold that petitioner's argument
that trial counsel made errors affecting the penalty phase of
the capital murder trial fails to satisfy the performance or
prejudice standards established in Strickland v. Washington.
H.
Petitioner argues that trial counsel did not thoroughly
present evidence of his remorse and cooperation. Petitioner
states that three weeks before the capital murder trial,
Special Agent Holt testified at petitioner's sentencing
hearing in another court regarding an unrelated robbery
conviction that petitioner "fully cooperated with [police
officers] in making [his] statement" about Crider's death, and
that petitioner expressed remorse for his acts. Additionally,
petitioner contends that trial counsel failed to question
Jones before or during the trial regarding petitioner's
reaction to the crimes.
Petitioner also claims that trial counsel were
ineffective because even though Susan Poindexter, a youth
minister who had provided spiritual counseling to petitioner,
testified at the capital murder trial, trial counsel did not
speak with her prior to her testimony and did not question her
about the substance of her contact with petitioner.
26
Petitioner also argues that trial counsel could have used jail
records containing a notation that petitioner was "currently
expressing extreme shame, remorse, [and] pessimism" to
demonstrate that he was remorseful.
Petitioner's assertions are without merit. Trial counsel
presented evidence of petitioner's cooperation with police
officers. Additionally, trial counsel presented 14 lay
witnesses at the sentencing hearing, and many of these
witnesses testified that petitioner was remorseful. As the
circuit court pointed out in its report, these witnesses
described petitioner as "very regretful," "extremely
remorseful," "quite remorseful," and "very sorry." The
circuit court also noted in its report that every member of
petitioner's family expressed remorse for the victim except
petitioner himself. The circuit court stated in its report
that petitioner
"undermined his cooperation with police by asserting
at trial that he had not made the statements
attributed to him by police officers. Further,
[petitioner's] statements to police and to a
cellmate disparaging his victim clearly undermined
any arguments that counsel could have made in
regards to his remorse. His comments disparaging
his victim as 'just another nigger dead' belied his
professions of remorse. Trial counsel presented at
sentencing [a black] cellmate who testified that he
had not detected any racial animosity from
[petitioner]. Defense counsel did present to the
jury evidence of [petitioner's] cooperation and
remorse to the extent that it existed."
27
Based on these findings of fact by the circuit court
which are supported by the record, we hold that petitioner's
contentions are without merit and that petitioner fails to
satisfy the performance or prejudice standards established in
Strickland v. Washington.
I.
Petitioner argues that trial counsel's performance in the
guilt phase, along with their performance at the penalty
phase, affected the outcome of the penalty phase of the trial.
Petitioner claims that trial counsel's "failure to adequately
cross-examine Trevor Jones [about] his bias and his prior
inconsistent statements left the jury with the impression that
[petitioner] was probably not impaired due to drugs and
alcohol at the time of the offense, significantly diminishing
the impact of this mitigating factor." Petitioner also
asserts that trial counsel's failure to advise him whether he
should testify and their failure to competently prepare him to
testify resulted in a very unsympathetic presentation of
petitioner to the jury.
Petitioner's claims are without merit. As will be
discussed in Part IV.K. of this opinion, trial counsel were
not ineffective in their cross-examination of Jones. And, as
we have already stated, there is no evidence in this record
that petitioner was impaired because of alcohol or drugs at
28
the time of the offense. Even though petitioner observes that
one of his trial counsel only spent 53 hours out of court
prior to trial, petitioner neglects to mention that his other
trial counsel spent approximately 119 hours in preparation for
the trial.
Additionally, as we will discuss in Part IV.L. of this
opinion, trial counsel adequately advised petitioner whether
he should testify at trial, and trial counsel adequately
prepared petitioner to testify at trial. And, as the circuit
court found, petitioner wanted to testify at trial and tell
his version of the events related to the crimes. Thus, we
hold that petitioner's contentions fail to satisfy either the
performance or prejudice standards established in Strickland
v. Washington.
J.
Petitioner argues that trial counsel were ineffective
because they failed to present his family's history of drug
abuse as mitigation evidence in the penalty phase of his
capital murder trial. As we have already stated, petitioner
specifically directed trial counsel to refrain from presenting
evidence of his "bad childhood." For example, Baber gave the
following testimony during the habeas evidentiary hearing:
"Q: From Brandon Hedrick or from his parents,
did anyone ever give you a reason to suspect that he
29
had a bad childhood -- that he had been neglected or
bad childhood? [sic]
"A: Well, he -- no; he told me that he didn't
want any evidence like that. I had talked to him
about -- I mean, we talked about getting a
mitigation expert. And I -- you know, we had a
conversation that indicated that that probably was
one of the factors that might be developed or words
to that effect. And he told me that he didn't want
to put on any evidence that he came from a bad house
or, you know, a bad home . . . that he didn't feel
like he did. . . ."
Petitioner also claims that had the jury been presented
with evidence of his "borderline intelligence" and his
vulnerability to the influence of others, such evidence would
have significantly influenced the jury's appraisal of his
moral culpability. However, petitioner ignores the evidence
presented during the trial of the capital murder proceeding.
Trial counsel presented evidence of petitioner's "borderline
intelligence" and Jones' strong influence upon petitioner.
Therefore, we hold that petitioner's claims regarding a
lack of mitigation evidence in the penalty phase fail to
satisfy the performance or prejudice standards of the test
established in Strickland v. Washington.
K.
Petitioner claims that trial counsel's failure to cross-
examine Jones effectively constituted ineffective assistance
of counsel. Petitioner argues that even though trial counsel
knew that Jones was biased against petitioner, trial counsel
30
failed to elicit such bias at trial. Apparently, trial
counsel's notes indicated that allegedly Jones had assaulted
petitioner when they were in jail because petitioner had made
statements to the police officers that implicated Jones in the
crimes.
Additionally, petitioner asserts that Baber's cross-
examination of Jones was ineffective because when the
Commonwealth's Attorney concluded his direct examination of
Jones, Baber, who was supposed to conduct the cross-
examination, purportedly "turned to Harrison and stated,
'[y]ou do the cross.'" Harrison refused this request.
Petitioner claims that Baber, who conducted the cross-
examination, failed to impeach Jones about inconsistent
statements that Jones had made to the police officers and
failed to question Jones thoroughly about his felony
convictions. Petitioner also contends that trial counsel
failed to question Jones about offers of leniency that the
Commonwealth's Attorney had made to Jones in exchange for his
testimony.
The circuit court concluded in its recommendations to
this Court, and we agree, that these contentions are without
merit. The circuit court accepted trial counsel's testimony
at the habeas evidentiary hearing that they made a tactical
decision to emphasize in their cross-examination of Jones his
31
leadership role in the crimes. "Prior to trial, Baber and
Harrison discussed the goal of stressing Jones' leadership
role consistent with Dr. Hawk's recommendation." Baber
elicited testimony during his cross-examination of Jones that
demonstrated that Jones was "the 'brains' and that he directed
[petitioner] throughout the criminal activity." Jones
acknowledged his dominant role in these crimes during the
cross-examination. On direct examination, Jones admitted his
prior felony convictions, and he admitted that he had
previously lied to police officers. As the circuit court
found, Jones "acknowledged the inconsistent statements that he
had previously given to law enforcement officials."
Even though Harrison was surprised when Baber asked
Harrison if he would conduct the cross-examination of Jones,
Baber effectively elicited the information from Jones that
Harrison and Baber had agreed prior to trial should be
elicited. For example, during the cross-examination, Jones
admitted that his truck was used during the crimes, that he
knew the victim, and that he suggested the idea of robbing the
victim. And, just as important, petitioner failed to
demonstrate how he was prejudiced as a result of the alleged
deficiencies of trial counsel during the cross-examination of
Jones. Indeed, petitioner, who admitted his guilt on at least
three occasions including the judicial admission in this
32
Court, cannot satisfy the performance or prejudice
requirements established in Strickland v. Washington.
We also agree with the circuit court's recommendation
that trial counsel were not ineffective in failing to question
Jones about his expectations of receiving a reduced sentence
for his testimony at petitioner's capital murder trial. The
Commonwealth's Attorney at the capital murder trial, Thomas W.
Lawson, testified during the habeas evidentiary hearing that
no promise had been made to Jones in return for his testimony.
The circuit court noted in its report to this Court that "at
the time Jones entered his pleas of guilty he represented to
the court that no promises had been made to him" and, in fact,
the Commonwealth did not recommend a reduced sentence.
We also hold that even though trial counsel did not
cross-examine Jones about his purported bias against
petitioner, petitioner failed to demonstrate how he was
prejudiced, and he failed to establish that there is a
reasonable probability that the outcome of the capital murder
trial would have been different had such testimony been
elicited. Furthermore, in view of petitioner's judicial
admission in this Court that he is guilty of the crimes
charged, he could not have been prejudiced. Therefore, we
hold that petitioner fails to satisfy the performance or
prejudice standards established in Strickland v. Washington.
33
L.
Petitioner argues that trial counsel should have advised
petitioner that he should not have testified at the capital
murder trial because of his intellectual limitations and
emotional immaturity. Petitioner also alleges that trial
counsel failed adequately to prepare him for his testimony and
failed to rehabilitate him after he had performed poorly
during cross-examination.
Petitioner's contentions are without merit. The circuit
court found in its report that even though trial counsel were
aware of petitioner's intellectual limitations, they knew that
he was capable of telling his version of the events
surrounding the crimes. Trial counsel knew that petitioner
had given his version of the events to law enforcement
officers on two occasions, and petitioner repeatedly informed
trial counsel of his version of the crimes. And, the circuit
court found that "trial counsel also knew that [petitioner]
wanted to testify and tell his version of events." Harrison
testified at the evidentiary hearing that petitioner "wanted
to testify and that he had a story he wanted to tell." Baber
testified at the evidentiary hearing that petitioner "wanted
to testify and that he wanted to tell his story."
Contrary to petitioner's contention, the circuit court
found that even though trial counsel did not formally rehearse
34
petitioner's testimony with him, trial counsel adequately
prepared him for trial. Trial counsel "repeatedly" reviewed
petitioner's version of events with him, and they questioned
him about petitioner's inconsistencies in his statements to
the police officers and to trial counsel. Trial counsel "made
sure that [petitioner] was familiar with his statements and
stressed to [petitioner] how he should present himself." The
circuit court stated in its report that "[w]hen cross-
examined, [petitioner] was combative with the prosecutor and
after being confronted with his inconsistent statements,
announced that he was not going to answer any further
questions. It is certainly doubtful that [petitioner] could
have been rehabilitated on re-direct examination. Counsel
elected to get him off of the stand and use the beneficial
parts of his testimony in closing arguments."
Based on these findings which are supported by the
record, we hold that petitioner fails to satisfy the
performance or prejudice standards established in Strickland
v. Washington. Indeed, in view of petitioner's judicial
admission that he is guilty of the crimes for which he was
charged, he could not have suffered prejudice as a result of
trial counsel's purported deficiencies.
M.
35
Petitioner alleges that trial counsel were ineffective
because they failed to cross-examine law enforcement officers.
Petitioner asserts that the Commonwealth's Attorney "pressed
the argument that [petitioner] got the idea that the shooting
was accidental from Special Agent Holt, who purportedly
suggested it during interrogation as a ruse to get
[petitioner] to own up to shooting Lisa Crider. Trial counsel
never challenged the prosecutor's rendition of events."
Continuing, petitioner asserts that Deputy Sheriff Williamson,
who made contemporaneous handwritten notes during his
interrogation of petitioner in Nebraska, stated at the
evidentiary hearing that he did not suggest to petitioner that
the shooting may have been accidental. Petitioner also
asserts that "Williamson also testified that, although Agent
Holt 'may have said that,' Williamson did not make any
notation in his contemporaneous notes that the suggestion was
made."
Petitioner claims that Agent Holt's notes do not suggest
that petitioner's account of the accidental shooting was a
suggestion that originated with Holt. Petitioner contends
that the detailed contemporaneous written notes of Deputy
Sheriff Williamson and Agent Holt conflicted with Holt's
testimony at trial and, therefore, adequate cross-examination
would have demonstrated this conflict to the jury.
36
Additionally, petitioner asserts that testimony could have
been elicited from these officers that petitioner had been
cooperative in their investigation.
The circuit court concluded in its report, and we agree,
that even though trial counsel could have cross-examined
Deputy Sheriff Williamson and that trial counsel could have
cross-examined Special Agent Holt further, the cross-
examination of these police officers would not have led to a
reasonable probability that the outcome of the trial would
have been different. The circuit court noted that at the
capital murder trial, Williamson demonstrated to the jury the
manner in which petitioner had shown Williamson how petitioner
used the shotgun to kill Crider. Williamson demonstrated the
shooting by placing the stock of the weapon on his shoulder
and pointing the barrel directly at the victim. And, contrary
to petitioner's contentions, during trial counsel's cross-
examination of him, Special Agent Holt disclosed evidence that
petitioner had been cooperative with the police. We also
observe that trial counsel presented other evidence during the
capital murder trial that petitioner was cooperative.
We hold that petitioner fails to satisfy the performance
or prejudice standard established by the test in Strickland v.
Washington. And, we note that petitioner fails to demonstrate
prejudice because, among other things, he admitted his guilt
37
in his statements to the police officers and in his judicial
admission in this Court.
N.
Petitioner contends that trial counsel were ineffective
because they failed to object to the testimony of Edna
Alexander, the victim's grandmother. During the guilt phase
of the capital murder trial, Alexander identified a photograph
of the victim's son and she described the events that occurred
the day before the victim was killed. We disagree with
petitioner.
As the circuit court found in its report, trial counsel
made a tactical decision that they would not object to this
testimony because they believed that the information was
unlikely to cause any prejudice to petitioner, and the
Commonwealth's evidence "opened the door," permitting trial
counsel to cross-examine Alexander about the victim's past
criminal history. During trial counsel's cross-examination of
Alexander, they were able to elicit information that the
victim lived with Alexander because the victim had been
incarcerated for drug-related convictions. Trial counsel also
cross-examined Alexander about her knowledge that the victim
"was a prostitute who sold drugs."
We hold that petitioner's claim regarding the testimony
of the victim's grandmother fails to satisfy the performance
38
or prejudice standards established in Strickland v.
Washington.
O.
Petitioner argues that trial counsel were ineffective
because they failed to object to the Commonwealth's Attorney's
closing argument. During closing argument, trial counsel
argued that petitioner was guilty only of manslaughter and
suggested that the victim was killed accidentally. The
Commonwealth's Attorney stated in rebuttal:
"This case is not about negligent manslaughter,
as [petitioner's attorney] says, and the defendant
is [not] not guilty. Not guilty means he gets to
walk right out that door. That means he gets to
take Trevor's shotgun with him. That's not what
this case is about. It's about capital murder."
Assuming, without deciding, that trial counsel should
have objected to this argument, petitioner failed to
demonstrate prejudice. There is simply no reasonable
probability that the outcome of the trial would have been
different. As the circuit court aptly concluded, "[t]he jury
already knew that [petitioner] had been convicted in other
jurisdictions and had received a lengthy prison sentence.
[The jury] could not have been misled by this statement." In
short, the jury knew that in view of petitioner's other
convictions, he would not have been released from
incarceration in the event the jury failed to convict him of
39
capital murder. Therefore, we hold that petitioner fails to
satisfy the prejudice standard established in Strickland v.
Washington.
P.
Petitioner, in a very conclusional argument, asserts that
trial counsel were ineffective because they failed to object
to venue. Petitioner says that "[t]he record in this case
clearly demonstrated that venue was not proved on the
substantive charges of forcible sodomy and rape, and that
trial counsel neglectfully failed to object to the venue of
those charges."
Petitioner's contention is without merit. As the circuit
court stated in its report, "[i]t is not disputed that the
murder of Lisa Crider occurred in Appomattox County at the
conclusion of the criminal enterprise. Capital murder is a
distinct species of homicide and venue was proper for all of
the capital murder indictments in Appomattox County,
regardless of where the underlying offenses occurred." See
Code §§ 19.2-244 and -247. Additionally, robbery is a
continuing offense and the crime was not completed until the
victim was murdered and venue for that offense was proper in
Appomattox. See Bassett v. Commonwealth, 222 Va. 844, 855-56,
284 S.E.2d 844, 851 (1981), cert. denied, 456 U.S. 938 (1982);
accord Linwood Earl Briley v. Commonwealth, 221 Va. 532, 543-
40
44, 273 S.E.2d 48, 55-56 (1980), cert. denied, 451 U.S. 1031
(1981). We hold that petitioner's contention regarding a
purported failure to object to venue does not satisfy the
performance or prejudice standards established in Strickland
v. Washington.
Q.
Petitioner alleges that trial counsel were ineffective
because defense counsel failed to make a motion for a change
of venue when members of the venire had been exposed to
coverage about the case in the media. Petitioner states that
he "was charged in a rural county with the brutal rape,
sodomy, abduction, robbery, and murder of a young mother on
Mother's Day" and that articles with detailed descriptions of
the facts and circumstances of the case appeared in local
newspapers. The petitioner claims that these articles
identified him as a suspect, described the details of the
crimes, and included a statement that he had confessed to the
murder.
Petitioner's contentions are without merit. As the
circuit court concluded in its report, "[p]etitioner has
collected newspaper articles from at least three different
newspapers. Over half of the articles describe the trial and
subsequent events. These articles could not have influenced
the jury. The majority of the remaining articles appear to be
41
routine and accurate coverage of events. The jurors who were
seated in the [capital murder trial] all assured the trial
court that they could set aside any information that they had
acquired about the case and base their decisions solely on the
basis of the evidence presented. Three jurors who indicated a
fixed opinion as to [petitioner's] guilt were excused."
Based upon the record before this Court, trial counsel
had no legitimate basis to file a motion for a change of venue
based on the venire members' exposure to the media coverage.
Additionally, petitioner failed to demonstrate how he could
have been prejudiced by trial counsel's alleged deficient
performance. Therefore, we hold that petitioner fails to
satisfy the performance or prejudice standards established in
Strickland v. Washington.
R.
Petitioner claims that trial counsel were ineffective
because they failed to conduct an adequate voir dire of the
jury. Petitioner argues that trial counsel failed to ask the
members of the venire what they had read or heard about
petitioner's crimes and what effect this information may have
had on their abilities to serve as jurors. Petitioner argues
that even though juror Shirley Baker testified that "if
someone killed someone else they should accept the same,"
42
trial counsel failed to ask questions that may have shown that
she was unable to consider any penalty other than death.
Petitioner also claims that juror Melanie Burrell
indicated that she believed he was guilty before she heard any
evidence, but that she later changed her mind to state that
she agreed that what she had heard about the case would not
affect her judgment. Petitioner contends that trial counsel
were ineffective because they failed to ask her about the
information to which she had been exposed and how that
information might affect her at the penalty phase of the
trial. Petitioner claims that jurors Bonnie Burks and Thomas
Franklin stated that they had fixed opinions of petitioner's
guilt. Petitioner claims that jurors Raymond Coggins and
Alice Dill had demonstrated strong biases in favor of the
death penalty, and that trial counsel failed to scrutinize
those biases. Petitioner claims that juror Dennis C. Haley
stated that he "would not impose the death penalty right off,"
and trial counsel failed to challenge his statement.
Petitioner contends that trial counsel were ineffective in
their failure to scrutinize these jurors in greater detail or
seek their removal from the venire for cause.
We disagree with petitioner's contentions. The record of
the capital murder trial discloses that trial counsel
conducted voir dire of prospective jurors, and that trial
43
counsel were successful in removing certain jurors for cause.
Even though juror Baker stated that "if someone killed someone
else they should accept the same," a review of the trial
transcript indicates that she also stated, "I would be willing
to listen to all the evidence before deciding." She said, in
response to a question by trial counsel, that she would
consider both aggravating factors and mitigating factors and
"the whole circumstance" in deciding whether to impose a
penalty of life imprisonment or the death penalty. Baker also
stated, in response to a question from trial counsel, that she
had not formed any opinions or conclusions that might affect
her judgment based upon the information she had acquired from
the media. She said that she would listen to both sides of
the case and decide the case based upon the evidence presented
in the courtroom.
Juror Burrell initially indicated that she had formed an
opinion based upon what she had read in the newspaper, but she
unequivocally stated that she could set that opinion aside and
that she did not have a fixed opinion. When trial counsel
specifically asked her if she felt that what she had heard
about the case would affect her judgment, Burrell responded
"no." When trial counsel asked her if she had any
predisposition towards the imposition of the death penalty,
44
Burrell stated that she did not and that she could consider an
alternative punishment of life in prison.
Even though petitioner claims that trial counsel failed
to make any inquiry of juror Burks, the circuit court
concluded, and we agree, that the record of the capital murder
trial indicates otherwise. Trial counsel specifically asked
juror Burks whether "what you already heard about this case is
going to affect your judgment about what you are going to hear
here? Are you going to have some notion of what you think of
it already?" She responded no to these questions.
Juror Franklin stated that even though he had formed some
opinion regarding the guilt or innocence of petitioner, he
could set whatever impression or opinion he had formed aside
and render a verdict based solely on the evidence that he
would hear at trial. He stated that he had no bias or
prejudice against either the Commonwealth or petitioner.
Juror Coggins initially indicated his belief that the
Bible supports the death penalty and that if he found
petitioner guilty he would impose a sentence of death. After
further questioning, Coggins unequivocally stated that he
could consider a lesser penalty. Juror Dill unequivocally
stated that she would listen to all the evidence before she
reached a decision about petitioner's guilt and that she did
not remember the details about the articles she had read in
45
the newspapers. She stated that she had not formed any pre-
conceived ideas about the capital murder trial or about
petitioner's guilt or innocence.
Contrary to petitioner's contention, trial counsel did
conduct voir dire questions of juror Haley after he stated
that he "would not impose the death penalty right off."
According to the record of the capital murder trial, counsel
asked Haley whether he was willing to listen to the evidence
and at the conclusion of the trial, if petitioner were found
guilty, whether Haley would consider life imprisonment as well
as the death penalty, and Haley responded, "yes." Trial
counsel further asked Haley if he was predisposed to one
punishment over another, and Haley responded, "no."
We hold that petitioner's arguments regarding voir dire
fail to satisfy the performance or prejudice standards
established in Strickland v. Washington.
S.
Petitioner claims that trial counsel failed to coherently
advise him regarding a statement that he made to police
officers. In May 1997, after petitioner's arrest, he was
interviewed in Nebraska by Deputy Sheriff Williamson and
Special Agent Holt. Trial counsel were appointed after that
statement was made. Subsequently, Jones and his attorney met
with Deputy Sheriff Williamson and Agent Holt and gave a
46
voluntary statement concerning Crider's murder. Petitioner,
who was concerned about what information Jones may have given
the police officers about the crimes, desired to give a second
statement to the police officers. Petitioner contacted his
attorneys and told them that he intended to make another
statement to the police officers. According to petitioner,
one of his trial counsel, Baber, informed petitioner that if
petitioner made a second statement to the police officers, the
statement could not hurt him and might help him. Harrison,
petitioner's other trial counsel, stated that he told
petitioner that he should not make a second statement.
Petitioner claims that trial counsel failed to obtain
information that would have permitted them to render competent
advice to him. Petitioner says that he made the second
statement to the police officers before trial counsel had the
benefit of a preliminary hearing, that trial counsel did not
go to the Commonwealth's Attorney's office to examine its
files, that trial counsel had not determined or assessed the
mental health and intellectual and emotional capacities of
petitioner, and that trial counsel did not formulate "ground
rules" for the statement with the police officers.
The circuit court in its report concluded that
petitioner's claims are without merit, and we agree.
Harrison, one of petitioner's trial counsel, testified at the
47
evidentiary hearing that when he told petitioner that it was
"a bad idea to give the statement," petitioner responded that
"he was making the statement" with or without counsel.
Harrison also testified that petitioner "wasn't going to allow
[trial counsel] to stop the statement." The circuit court
concluded in its report that "[t]rial counsel cannot be
faulted for being present for [petitioner's] statement after
he voluntarily and intelligently waived his right and
submitted to questions by the police."
Petitioner, who made a conscious decision to speak with
police officers, cannot complain in a habeas corpus petition
that his trial counsel did not prevent him from making the
statement, even though one of his counsel tried to do so. We
hold that petitioner's claim that trial counsel inadequately
advised him regarding his statement to police officers fails
to satisfy the performance or the prejudice standards
established in Strickland v. Washington.
T.
Petitioner alleges that trial counsel were ineffective
because they failed to request a jury instruction that would
have informed the jury that it must accept the testimony of an
accomplice with great caution. We disagree.
Trial counsel were not required to request a cautionary
accomplice instruction. "Cautionary accomplice instructions
48
. . . deal with a lack of evidence, evidence of a
corroborative nature. The test, therefore, in determining
whether a cautionary instruction should be granted becomes
this: is corroborative evidence lacking? If it is, the
instruction should be granted; if it is not lacking, the
instruction should be refused. . . ." Smith v. Commonwealth,
218 Va. 455, 456, 237 S.E.2d 776, 777 (1977) (quoting Dillard
v. Commonwealth, 216 Va. 820, 822, 224 S.E.2d 137, 139
(1976)).
As the circuit court pointed out in its report,
corroborative evidence was not lacking at petitioner's capital
murder trial. Petitioner incorrectly asserts that Jones was
the Commonwealth's only source of evidence that petitioner had
raped Crider. Petitioner stated to the police officers that
he had consensual sexual intercourse with Crider at the
apartment in Lynchburg, and he used a condom. However,
seminal fluid that was consistent with petitioner's DNA type
and inconsistent with the DNA type of Jones was detected in
the victim's vaginal and anal areas. Petitioner admitted to
the police officers that it was possible that he had committed
acts of sodomy upon the victim. Additionally, petitioner
failed to show that he was prejudiced by trial counsel's
alleged deficient performance, particularly in light of the
judicial admission he made to this Court that he is guilty of
49
the charged crimes, which includes the crimes of rape and
sodomy. Furthermore, petitioner does not assert that
corroboration was necessary to support his conviction of
capital murder during the commission of robbery. We hold that
petitioner fails to satisfy the performance or prejudice
standards established in Strickland v. Washington.
U.
Petitioner contends that trial counsel were ineffective
because they failed to request a jury instruction directing
the jury that it must find unanimously and beyond a reasonable
doubt that petitioner forced Crider to commit either oral
sodomy, anal sodomy, or both before finding him guilty of
forcible sodomy or capital murder in the commission of a
forcible sodomy. Continuing, petitioner states that "[a]
conviction for forcible sodomy requires proof that the accused
engaged in 'cunnilingus, fellatio, anallingus or anal
intercourse with a complaining witness,' by force."
Petitioner states that the jury instructions in this case
instructed the jury that it could convict petitioner if the
jury found that "the penis of the defendant penetrated into
the mouth or the anus of Lisa Yvonne Crider who was not then
the defendant's spouse" and that the crime was against her
will and by force, threat, or intimidation. Finally,
petitioner claims that this instruction was constitutionally
50
defective because it permitted the jury to make two alternate
findings to prove the element of sodomy – anal penetration or
oral penetration – and did not require the jury to find
unanimously that either act had been proven beyond a
reasonable doubt.
We need not, and do not, decide whether trial counsel
were required to request such jury instruction because even if
counsel were required to do so, this petitioner cannot
demonstrate any prejudice. Petitioner was convicted of
capital murder in the commission of robbery, capital murder in
the commission of forcible sodomy, and capital murder in the
commission of a rape. Even if petitioner prevailed on his
claim regarding the lack of unanimity for the forcible sodomy
instruction, petitioner's convictions for capital murder in
the commission of robbery and capital murder in the commission
of a rape would not be affected. These convictions, which
support the imposition of the death penalty, remain valid and
enforceable. Therefore, we hold that petitioner's arguments
fail to satisfy the prejudice requirement established in
Strickland v. Washington.
V.
Petitioner claims that trial counsel were ineffective
because they failed to request a jury instruction that
required that the jury unanimously agree upon "the vileness
51
aggravating circumstance." Petitioner claims that the jury
was required to agree unanimously whether petitioner possessed
depravity of mind, whether petitioner committed an aggravated
battery upon the victim, or whether petitioner committed acts
of torture upon the victim. Petitioner claims that trial
counsel were ineffective because the vileness instruction that
was submitted to the jury created a risk that petitioner was
sentenced to death based upon the vileness predicate even
though some members of the jury may have concluded that his
conduct demonstrated a depravity of mind, other jurors may
have concluded that he committed an aggravated battery, and
yet other jurors may have believed that he committed acts of
torture upon the victim. Petitioner says that his trial
counsel were ineffective for failing to request a jury
instruction which remedied this so-called constitutional
defect.
We hold that petitioner fails to satisfy the prejudice
standard of the two-part test in Strickland v. Washington. At
the penalty phase of the capital murder trial, the jury found
that petitioner represented a continuing serious threat to
society and that his offense was outrageously or wantonly
vile, horrible, or inhuman in that it involved torture,
depravity of mind, or aggravated battery to the victim.
Petitioner does not challenge the jury's finding that he
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presents a continuing threat to society, and this finding
alone is sufficient to support the judgment imposing the
sentence of death.
W.
Petitioner argues that trial counsel failed to preserve
and argue meritorious issues on appeal. Petitioner failed to
present any evidence during the evidentiary hearing on this
issue. We hold that in view of petitioner's failure to
present any evidence to support this claim, he fails to
satisfy the performance or prejudice standard established in
Strickland v. Washington.
V.
A.
Petitioner claims that the circuit court erred because it
refused to permit his habeas corpus counsel to inspect the
Commonwealth's Attorney's files. We disagree. This Court,
pursuant to Code § 8.01-654(C)(2), entered an order directing
the circuit court to conduct an evidentiary hearing limited to
the issues raised in Claim I of the habeas corpus petition
alleging trial counsel's ineffectiveness. Petitioner's
allegations regarding Claim I do not raise any issue
concerning the Commonwealth's Attorney's files or trial
counsel's access to information in those files. Petitioner is
not allowed to expand the scope of this Court's order.
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Additionally, a habeas corpus petitioner is not allowed to
embark upon a "fishing expedition" of the Commonwealth's
Attorney's files. Therefore, we hold that the circuit court
properly denied habeas counsel's request to examine the
Commonwealth's Attorney's files.
B.
Contrary to petitioner's contentions, we hold that the
circuit court did make proper findings of fact, and the
circuit court resolved those factual disputes as required by
Code § 8.01-654(C)(3) and this Court's order.
C.
Petitioner, in his amended petition for habeas corpus,
raised two claims that he failed to assert in petitioner's
opening brief. Specifically, petitioner alleged in his
amended petition for habeas corpus that the Commonwealth
failed to disclose favorable information to him in violation
of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, and
petitioner argued that "[j]urors failed to consider evidence
presented at sentencing prior to determining to impose the
death penalty and relied on prayer and religious teachings
during deliberations to reach their verdict rather than the
instructions of the court." We hold that these claims are
procedurally defaulted because the petitioner failed to
discuss these claims in his opening brief.
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VI.
In view of the foregoing, we conclude that all
petitioner's claims are without merit, and we will dismiss the
petition for writ of habeas corpus.
Petition dismissed.
JUSTICE KINSER, with whom JUSTICE LEMONS joins, concurring.
I concur in the result of the majority opinion because I
conclude that the petitioner, Brandon Wayne Hedrick, failed to
establish the “prejudice” prong of the two-part test
articulated by the Supreme Court of the United States in
Strickland v. Washington, 466 U.S. 668, 687 (1984), for
judging claims of ineffective assistance of counsel in a
collateral attack on a judgment of conviction. To satisfy the
“prejudice” prong, the petitioner had to “show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.” Id. at 694. The petitioner did not do so with
regard to any of his claims. When, as in this case, “it is
easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, . . . that course should be
followed.” Id. at 697; accord Strickler v. Murray, 249 Va.
120, 128, 452 S.E.2d 648, 652 (1995). Thus, I respectfully
concur.
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