PRESENT: ALL THE JUSTICES
GEORGE JUNIOR GREEN
v. Record No. 012225 OPINION BY JUSTICE CYNTHIA D. KINSER
NOVEMBER 1, 2002
S.K. YOUNG, WARDEN
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Honorable James F. D’Alton, Jr.
In this appeal, a prisoner challenges a circuit
court’s dismissal of his petition for a writ of habeas
corpus. The issue is whether the prisoner was denied
effective assistance of counsel when his attorney failed to
object to a jury instruction that allowed the jury to find
the prisoner guilty even if the Commonwealth failed to
prove beyond a reasonable doubt each element of the charged
offense. Because we conclude that the prisoner has
demonstrated that his trial counsel’s performance was
deficient and that the deficient performance prejudiced his
defense, we will reverse the judgment of the circuit court.
I. MATERIAL FACTS AND PROCEEDINGS
The appellant, George Junior Green, was indicted in
the Circuit Court of the City of Petersburg on charges of
first-degree felony murder, two counts of malicious
wounding, conspiracy to commit robbery, four counts of
robbery, and seven counts of using a firearm in the
commission of those felonies. 1 In June 1998, a jury found
Green guilty on all charges except the two counts of
malicious wounding and the two related firearm charges.
After exhausting the direct appeal process, Green filed a
petition for a writ of habeas corpus in the circuit court,
alleging numerous claims.
The circuit court heard evidence and argument of
counsel at a plenary hearing. In a subsequent order, the
court dismissed Green’s petition for a writ of habeas
corpus for the reasons stated in its findings of fact and
conclusions of law set forth in the record of the plenary
hearing. We awarded Green an appeal from that judgment,
limited to one assignment of error: whether Green’s trial
attorney rendered ineffective assistance of counsel by
failing to object to an “unconstitutional instruction given
to the jury.”
The instruction at issue was Instruction No. 10, the
finding instruction for first-degree felony murder. In its
entirety, Instruction No. 10 reads as follows:
George Green is charged with the crime of first-
degree felony murder. The Commonwealth must prove
1
We note that the appellant was indicted and tried
under the name of “George Green, Jr.” However, the
appellant used the name of “George Junior Green” when
filing his petition for a writ of habeas corpus. In this
opinion, we will use the name appearing on the habeas
corpus petition.
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beyond a reasonable doubt each of the following
elements of that crime:
(1) That Karla E. Pettiford was killed; and,
(2) That her killing occurred while the
defendant and others were engaged in the act of
robbery.
If you find that the Commonwealth has failed to
prove beyond a reasonable doubt each of the above
elements of the offense as charged, then you shall
find the defendant guilty, but you shall not fix his
punishment until your verdict has been returned and
further evidence is heard by you.
If you find that the Commonwealth has failed to
prove beyond a reasonable doubt any one of the
elements of the offense, then you shall find the
defendant not guilty.
(Emphasis added.) The portion of the instruction about
which Green complains is the underscored sentence that
instructed the jury to find the defendant guilty even if
the Commonwealth failed to prove the elements of the
offense beyond a reasonable doubt. The instruction was not
only provided to the jurors in written form but also read
to them by the court. Neither the court, the attorney for
the Commonwealth, nor Green’s trial counsel noticed the
obvious mistake in the instruction. At the plenary hearing
on the habeas petition, Green’s trial counsel conceded that
the underscored language was “clearly erroneous.”
In dismissing this particular claim, the circuit court
characterized the mistake as a “typographical error,” which
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“had to be read in a common sense fashion.” The court
reasoned that common sense would have told the jury that
there was a mistake in the instruction, especially since
the last sentence contained a correct statement of law, and
that the jury, therefore, was not confused by the
instruction. Relying on Strickland v. Washington, 466 U.S.
668 (1984), the court concluded that Green had failed to
show any prejudice resulting from his trial counsel’s
failure to object to Instruction No. 10.
II. ANALYSIS
In a collateral attack on a judgment of conviction, a
prisoner has the burden of proving by a preponderance of
the evidence the claims asserted in the petition for a writ
of habeas corpus. Curo v. Becker, 254 Va. 486, 489, 493
S.E.2d 368, 369 (1997); Nolan v. Peyton, 208 Va. 109, 112,
155 S.E.2d 318, 321 (1967). The question whether a
prisoner is entitled to habeas relief is a mixed question
of law and fact. Curo, 254 Va. at 489, 493 S.E.2d. at 369.
Consequently, a circuit court’s conclusions of law are not
binding on this Court but are subject to review to
ascertain whether the circuit court correctly applied the
law to the facts. Id.
As previously stated, Green alleges a violation of his
right to effective assistance of counsel as guaranteed by
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the Sixth Amendment and made applicable to the states under
the Fourteenth Amendment. In order to establish
ineffective assistance of counsel, Green must prove that
his trial counsel’s “performance was deficient,” meaning
that “counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment.” Strickland, 466 U.S. at 687. Green
must also show that “the deficient performance prejudiced
the defense,” that is to say “counsel’s errors were so
serious as to deprive the defendant of a fair trial[.]”
Id. Unless Green establishes both prongs of this two-part
test, his claim of ineffective assistance of counsel will
fail. Id.
To satisfy the first prong of the Strickland test,
Green “must show that counsel’s representation fell below
an objective standard of reasonableness.” Id. at 688. In
order to do so, he must “identify the acts or omissions of
counsel that are alleged not to have been the result of
reasonable professional judgment.” Id. at 690. Then, we
must “determine whether, in light of all the circumstances,
the identified acts or omissions were outside the wide
range of professionally competent assistance.” Id.
The alleged deficient performance in this case is the
failure of Green’s trial counsel to object to Instruction
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No. 10. That instruction, as admitted by the Commonwealth
and Green’s trial counsel, was an erroneous statement of
law. The particular sentence at issue violated a basic
procedural safeguard required by the Due Process Clause,
i.e., that the prosecution prove beyond a reasonable doubt
every element of the charged offense. See Sullivan v.
Louisiana, 508 U.S. 275, 277-78 (1993); In re Winship, 397
U.S. 358, 363 (1970); Dobson v. Commonwealth, 260 Va. 71,
74, 531 S.E.2d 569, 571 (2000); Stokes v. Warden, 226 Va.
111, 117, 306 S.E.2d 882, 885 (1983). That safeguard is a
firmly established component of our criminal justice
system. See Sullivan, 508 U.S. at 278 (citing Winship, 397
U.S. at 364) (noting that the beyond-a-reasonable-doubt
standard is followed by virtually all common law
jurisdictions). Since Instruction No. 10, without
question, violated Green’s due process rights, any
reasonably competent attorney would have known that it was
incumbent upon him or her to object to the instruction.
See Stokes, 226 Va. at 118, 306 S.E.2d at 885; see also
Gray v. Lynn, 6 F.3d 265, 269 (5th Cir. 1993). Thus, we
conclude that the performance of Green’s trial counsel
“fell below an objective standard of reasonableness.”
Strickland, 466 U.S. at 688.
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Of course, that determination does not necessarily
mean that Green is entitled to habeas relief. He must also
establish that his counsel’s deficient performance
prejudiced his defense. To demonstrate prejudice, Green
“must 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. In
this particular case, our prejudice analysis must be guided
by the Supreme Court’s decision in Sullivan v. Louisiana.
In that case, which was an appeal of a state court
judgment of conviction, the question was “whether a
constitutionally deficient reasonable-doubt instruction may
be harmless error.” 508 U.S. at 276. In addressing that
question, the Court first noted “that the Fifth Amendment
requirement of proof beyond a reasonable doubt and the
Sixth Amendment requirement of a jury verdict are
interrelated[,]” meaning that “the jury verdict required by
the Sixth Amendment is a jury verdict of guilty beyond a
reasonable doubt.” Id. at 278. Such a verdict was not
returned in Sullivan because the trial judge’s jury
instruction defining the term “reasonable doubt” was
unconstitutional. Id. Consequently, the Court concluded
that the instruction could not be harmless error. Id. at
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280. The Court’s explanation for that conclusion is
important to our analysis here:
Harmless-error review . . . is not whether, in a trial
that occurred without the error, a guilty verdict
would surely have been rendered, but whether the
guilty verdict actually rendered in this trial was
surely unattributable to the error. That must be so,
because to hypothesize a guilty verdict that was never
in fact rendere–no matter how inescapable the findings
to support that verdict might be–would violate the
jury-trial guarantee.
* * *
There being no jury verdict of guilty-beyond-a-
reasonable-doubt, the question whether the same
verdict of guilty-beyond-a-reasonable-doubt would have
been rendered absent the constitutional error is
utterly meaningless. There is no object, so to speak,
upon which harmless-error scrutiny can operate. The
most an appellate court can conclude is that a jury
would surely have found petitioner guilty beyond a
reasonable doubt–not that the jury’s actual finding of
guilty beyond a reasonable doubt would surely not have
been different absent the constitutional error. That
is not enough.
Id. at 279-80.
As we have already pointed out, Instruction No. 10
contained an incorrect statement of law–a statement that
violated the Due Process Clause. While we recognize that
the last sentence of the instruction correctly told the
jury to find Green not guilty if the Commonwealth failed to
prove beyond a reasonable doubt each of the elements of
first-degree felony murder, the fact remains that the jury
received inconsistent directions with regard to that
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offense. “ ‘[J]uries are presumed to follow their
instructions.’ ” Zafiro v. United States, 506 U.S. 534,
540 (1993) (quoting Richardson v. Marsh, 481 U.S. 200, 211
(1987)); see also Strickland, 466 U.S. at 695 (“assessment
of prejudice should proceed on the assumption that the
decisionmaker is reasonably, conscientiously, and
impartially applying the standards that govern the
decision”). But, the jury in this case could not have
followed Instruction No. 10 in its entirety because of the
internal inconsistency. Although the circuit court
believed that the jury would have recognized that there was
a mistake in the instruction, we conclude that it would be
pure speculation to assume that the jury ignored the
misstatement of law in Instruction No. 10 but followed the
correct one. See Sullivan, 508 U.S. at 281 (misdescription
of burden of proof vitiated jury’s finding, thus reviewing
court would be engaging in speculation to determine what a
jury would have done).
Since the jury in this case could have found Green
guilty of first-degree felony murder without finding that
the Commonwealth had proved the elements of that offense
beyond a reasonable doubt, we have the same situation here
as the Supreme Court dealt with in Sullivan, the absence of
a verdict of guilty-beyond-a-reasonable-doubt. Without
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such a verdict, there was no “object” in Sullivan upon
which to apply a harmless error analysis, and the absence
of that verdict in this case leaves us with no “result”
upon which to apply a prejudice analysis. In other words,
we cannot determine whether, but for counsel’s deficient
performance, the result of the proceeding would have been
different because there was no “result,” i.e., no verdict
of guilty-beyond-a-reasonable-doubt. Accordingly, we
conclude that Green has demonstrated his trial counsel’s
error was so serious as to deprive him of a fair trial. 2
See Strickland, 466 U.S. at 687.
2
In Henderson v. Kibbe, 431 U.S. 145, 154 (1977), the
Supreme Court of the United States held that the “burden of
demonstrating that an erroneous instruction was so
prejudicial that it will support a collateral attack on the
constitutional validity of a state court’s judgment is even
greater than the showing required to establish plain error
on direct appeal.” Id. The question there was whether a
trial judge’s failure to instruct on the issue of causation
was constitutional error requiring habeas corpus relief.
Id. at 147. The Court framed the relevant test as
“ ‘whether the ailing instruction by itself so infected the
entire trial that the resulting conviction violates due
process,’ . . . not merely whether ‘the instruction is
undesirable, erroneous, or even “universally
condemned.” ’ ” Id. at 154 (quoting Cupp v. Naughten, 414
U.S. 141, 147 (1973)); see also, United States v. Frady,
456 U.S. 152, 169 (1982). Unlike the present case,
Henderson did not involve a claim of ineffective assistance
of counsel. Nevertheless, Instruction No. 10 “so infected”
the trial that we cannot be confident that the jury found
Green guilty beyond a reasonable doubt of first-degree
felony murder. Thus, Green’s conviction violated the Due
Process Clause.
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Even if we treat the jury’s verdict in this case as a
“result” to which the Strickland prejudice analysis can be
applied, we reach the same conclusion. The right to a jury
verdict of guilty-beyond-a-reasonable-doubt is a “ ‘basic
protectio[n]’ whose precise effects are unmeasurable, but
without which a criminal trial cannot reliably serve its
function.” Sullivan, 508 U.S. at 281 (quoting Rose v.
Clark, 478 U.S. 570, 577 (1986)). “The right to trial by
jury reflects . . . ‘a profound judgment about the way in
which law should be enforced and justice administered.’ ”
Id. (quoting Duncan v. Louisiana, 391 U.S. 145, 155
(1968)).
When, as here, a jury is not properly instructed about
its responsibility to find a defendant not guilty if the
prosecution fails to prove the elements of the offense
beyond a reasonable doubt, there is a reasonable
probability, sufficient to undermine our confidence in the
outcome, that, but for trial counsel’s failure to object to
the erroneous instruction, the result of the trial would
have been different. See Strickland, 466 U.S. at 694-95.
Thus, Green has demonstrated prejudice to his defense as a
result of his counsel’s deficient performance. In our
opinion, there can be no doubt that deprivation of the
right to a verdict of guilty-beyond-a-reasonable-doubt is
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prejudicial and has “consequences that are necessarily
unquantifiable and indeterminate.” Sullivan, 508 U.S. at
282.
We are not persuaded otherwise by the Commonwealth’s
argument that the error did not occur in a vacuum because
the jury was told during voir dire, opening statements,
closing arguments, and in other instructions that the
Commonwealth must prove Green’s guilt beyond a reasonable
doubt. We note that those other instructions primarily
defined the elements of the additional charges for which
Green was standing trial and that the jury, with proper
instructions, found Green not guilty of the two malicious
wounding charges and the two related firearm offenses.
Instruction No. 10 was the only instruction that addressed
the elements of first-degree felony murder. Just as the
jury instruction in Sullivan was a “structural defect[] in
the constitution of the trial mechanism,” the instruction
in this case also qualifies as a “structural error.”
Sullivan, 508 U.S. at 281-82.
III. CONCLUSION
For these reasons, we will reverse the judgment
appealed from, set aside Green’s convictions for felony
first-degree murder and the use of a firearm in the
commission of that felony, and remand the case to the
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circuit court with directions to issue the writ of habeas
corpus and require that Green be returned to the custody of
said court to be tried on the indictments at issue.
Reversed and remanded.
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