Present: All the Justices
TERRY WILLIAMS
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 960534 June 6, 1997
WARDEN OF THE MECKLENBURG
CORRECTIONAL CENTER
UPON A PETITION FOR A WRIT OF HABEAS CORPUS
This is the first habeas corpus petition filed by a prisoner
held under a sentence of death that we have addressed in a
published opinion since the applicable statute was amended
effective July 1, 1995. See Acts 1995, ch. 503.
The 1995 amendment to Code § 8.01-654 added subsection (C).
It provides that this Court shall have "exclusive jurisdiction"
to consider and award writs of habeas corpus with respect to any
such petition filed by a convict held under a death sentence.
§ 8.01-654(C)(1). The amendment further provides that the
circuit court "which entered the judgment order setting the
sentence of death shall have authority to conduct an evidentiary
hearing on such a petition only if directed to do so by order of
the Supreme Court." Id.
The amendment fixes time limits within which the circuit
court "shall conduct" a hearing on the issues enumerated in this
Court's order and within which the circuit court "shall report
its findings of fact and recommend conclusions of law to the
Supreme Court." § 8.01-654(C)(3). Finally, the amendment
provides that any objection to the circuit court's report must be
filed in this Court, within a specified time limit. Id.
Petitioner Terry Williams was convicted in a jury trial in
the Circuit Court of the City of Danville of the capital murder
of Harris Thomas Stone. The crime was committed in November
1985, the accused was indicted in July 1986, and the jury found
him guilty in September 1986.
After a separate proceeding on the issue of punishment and
after hearing evidence of the accused's history, including
aggravating factors and mitigating evidence, the jury fixed his
sentence at death. This sentence was based upon the "future
dangerousness" predicate of the statutory scheme; the verdict
stated there is a probability that the defendant "would commit
criminal acts of violence that would constitute a continuing
serious threat to society."
Following a statutorily mandated hearing before the trial
judge on punishment, the defendant was sentenced in November 1986
to death. This Court affirmed the conviction and death sentence
on direct appeal. Williams v. Commonwealth, 234 Va. 168, 360
S.E.2d 361 (1987). The United States Supreme Court refused
review. Williams v. Virginia, 484 U.S. 1020 (1988).
In August 1988, the convict filed a habeas corpus petition
in the Danville Circuit Court. After a 1989 hearing, the court
dismissed a number of the habeas claims. An amended petition was
filed in April 1995, and the court heard evidence in June 1995 on
the issue of ineffective assistance of trial counsel.
On July 1, 1995, jurisdiction over the case was transferred
to this Court pursuant to the changes in Code § 8.01-654.
- 2 -
Subsequently, this Court directed the circuit court to "report
its findings of fact and recommend conclusions of law regarding
the issue of ineffective assistance of counsel, as alleged in
claim VII" of the amended petition. In June 1996, the circuit
court heard argument of counsel on the ineffective assistance of
counsel claim.
In August 1996, the circuit court forwarded its report to
this Court and to counsel for the parties. The circuit court
found that the accused's two trial counsel were effective in all
but one stage of the trial proceedings. The circuit court
concluded that trial counsel's failure to present certain
mitigating evidence at the sentencing hearing before the jury
warranted the granting of relief to the petitioner.
Both the petitioner and the respondent, J. D. Netherland,
Warden of the Mecklenburg Correctional Center, filed objections
to the circuit court's rulings. In a January 1997 order, this
Court ordered briefing and argument on the issue that the circuit
court had found warranted relief. Petitioner's objections to the
circuit court's findings recommending dismissal of all the other
claims for relief were overruled.
The evidence presented in the 1986 criminal trial
established the following basic facts. The victim, an elderly
man, was found dead at 2:00 a.m. lying in a bed at his Danville
home. He was fully clothed and there was no sign of a struggle.
The victim's wallet, customarily kept fastened in his trouser
- 3 -
pocket, was missing.
Later, the accused made several confessions to the murder
and robbery of the victim. The defendant said he had struck the
victim on the chest, and later on the back, with a mattock and
had removed three dollars from the victim's wallet. The victim
died from the blows, which fractured two ribs and displaced them
inward, puncturing the left lung and depositing a quantity of
blood in the left chest cavity.
During the penalty phase of the trial, the prosecution
presented evidence of the 31-year-old accused's extensive
criminal record, beginning when he was 11 years old. This
included a robbery in 1976, a burglary involving an assault upon
the victim in 1982, and a vicious and brutal malicious wounding
of an elderly woman in March 1986 that caused brain damage and
left her a "vegetable." In addition, there was evidence of a
December 1985 assault by the accused upon an elderly man while
the accused was committing arson of the victim's home. Two
forensic psychological experts who examined the accused testified
there was a high probability that he would commit future criminal
acts of violence and that he constituted a continuing threat to
society.
The accused's mother testified that he was never violent at
home and that she did not believe he was a threat to others. A
female acquaintance of the accused who had known him for 11 years
testified he was never violent in her presence. Another witness,
- 4 -
whose foster daughter had dated the accused, testified he was not
a violent person.
Based on the June 1995 habeas evidentiary hearing and the
subsequent argument of counsel, the circuit judge, who had
presided at the trial, made a number of "findings of fact" and
"recommended conclusions of law." The court found that the
convict's "trial attorneys were both experienced in criminal
defense work and thoroughly prepared the case in defense of
capital murder." In this connection, the court concluded that
counsel's "performance at the guilt phase of the trial was both
professional and competent."
Elaborating, the court stated that counsel "properly
explored the mental competency of" the accused, who, according to
the evidence at trial, had a "borderline level of intellectual
functioning." Also, the circuit court found that trial counsel
"adequately investigated the issues of robbery and cause of
death"; that counsel "was justified in relying on" the
conclusions of the medical examiner regarding the cause of death;
that counsel's "conduct with regard to the confession and
suppression hearing was competent and professional"; and that
they were not ineffective for their failure to investigate
whether the accused suffered from a so-called "Fetal Alcohol
Syndrome." Further, the court concluded that counsel performed
adequately regarding voir dire, evidentiary objections, and jury
instructions.
- 5 -
Additionally, the circuit court found that the performance
of defense counsel, in the main, during the penalty phase
proceedings did not warrant habeas relief. And, the court
determined counsel was effective on appeal.
The court reported, however, that certain actions of counsel
during the trial's penalty phase were "the only real concern."
"Specifically," the court said, "little evidence was presented on
the issue of mitigation, and there exists evidence that
petitioner had a deprived and abused upbringing; that he may have
been a neglected and mistreated child; that he came from an
alcoholic family; and that he was borderline mentally retarded."
Continuing, the court said there also exists "evidence that
petitioner's conduct had been good in certain structured settings
in his life (such as when he was incarcerated) and there were
friends, neighbors and family of petitioner who would have
testified that he had redeeming qualities." The court was of the
view that some of this testimony "such as [from] petitioner's
wife, daughter and Bruce Elliott, was worthy of a jury's
consideration on mitigation. However, none of this testimony was
developed and presented at the sentencing phase of the trial."
The court stated: "Probably the most persuasive mitigating
evidence which was not tendered to the jury involved the failure
to interview and call Bruce Elliott as a witness during the
sentencing phase." Elliott, a certified public accountant,
contacted defense counsel prior to trial and offered his help,
- 6 -
but, according to the court, "counsel never followed up by
talking to the witness." The court found that Elliott had known
the accused since 1978 and would have portrayed the accused "as a
decent human being who struggled to prove his worth in spite of
his being somewhat disadvantaged mentally, emotionally and
financially." Elliott, who did not testify at the habeas
hearing, stated in an affidavit that the accused "took pride in
his achievements," such as graduation from carpentry school while
incarcerated in a correctional facility.
The court found that trial counsel "made a tactical decision
to focus attention at the penalty phase" on the accused's
confession, which was unsolicited and volunteered. Counsel's
strategy, the court concluded, was to convince the jury that the
accused's life should be spared, and that he should be given a
life sentence, because of the unsolicited confession.
Also, the court said that counsel "made a tactical decision
not to put certain witnesses before the jury to prevent the
Commonwealth from reminding the jury of the `horrible and
terrible crimes'" committed by the accused. Nevertheless, the
court said, "it is troubling . . . that favorable evidence was
not pursued and introduced for `whatever it was worth' when the
decision which was to be made by the jury involved life or
death."
Summarizing, the court opined that at "a capital murder
sentencing, any evidence which might be favorable or mitigating
- 7 -
can mean the difference between `life or death.'" Continuing,
the court stated that "mitigating testimony is absolutely crucial
and if none is offered, this amounts to prejudice." In addition,
the court said that a failure "to present favorable mitigation
evidence which was available upon investigation and development
falls below the range expected of reasonable, professional
competent assistance of counsel, and because this evidence is so
crucial to the outcome of the jury's ultimate decision of life or
death, it is prejudicial to a defendant when it is not presented
at the sentencing phase." This is such a case, according to the
court, because "Terry Williams needed anything and everything
that might be available as favorable evidence to persuade the
jury to save his life. Anything less was not enough."
Therefore, the court recommended that a writ of habeas
corpus be granted and that the convict be granted a rehearing on
the sentencing phase of his trial.
The right to counsel, guaranteed by the Sixth Amendment to
the Federal Constitution and made applicable to the states
through the Fourteenth Amendment, includes the right to effective
assistance of counsel. Murray v. Griffith, 243 Va. 384, 388, 416
S.E.2d 219, 220 (1992) (citing Virginia Dep't of Corrections v.
Clark, 227 Va. 525, 533, 318 S.E.2d 399, 403 (1984)). This
constitutional guarantee "includes the right to the care and
skill which a reasonably competent attorney would exercise for
similar services under the circumstances." Stokes v. Warden, 226
- 8 -
Va. 111, 116-17, 306 S.E.2d 882, 884 (1983). In other words, the
accused is entitled to counsel who is a reasonably competent
attorney and to advice that is within the range of competence
demanded of attorneys in criminal cases. Strickland v.
Washington, 466 U.S. 668, 687 (1984).
In a collateral attack on a conviction, however, "a prisoner
not only has the burden of proving ineffective assistance of
counsel, but also must prove actual prejudice as a result."
Stokes, 226 Va. at 118, 306 S.E.2d at 885. Accord Strickland,
466 U.S. at 687; Murray, 243 Va. at 388, 416 S.E.2d at 221. In
order to establish prejudice, there must be a showing "that
counsel's errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable." Strickland, 466
U.S. at 687. "An error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the judgment."
Id. at 691.
In sum, Strickland requires a prisoner to "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." Id. at 694.
And, in determining the existence of prejudice, the court must
consider the totality of the evidence presented at the criminal
trial. Id. at 695. Accord Strickler v. Murray, 249 Va. 120,
- 9 -
128, 452 S.E.2d 648, 652, cert. denied, ___ U.S. ___, 116 S.Ct.
146 (1995).
"As is obvious, Strickland's standard, although by no means
insurmountable, is highly demanding." Kimmelman v. Morrison, 477
U.S. 365, 382 (1986). Accord Strickler, 249 Va. at 128, 452
S.E.2d at 652. Moreover, "an analysis focusing solely on mere
outcome determination, without attention to whether the result of
the proceeding was fundamentally unfair or unreliable, is
defective." Lockhart v. Fretwell, 506 U.S. 364, 369 (1993).
And, "[t]o set aside a conviction or sentence solely because the
outcome would have been different but for counsel's error may
grant a defendant a windfall to which the law does not entitle
him." Id. at 369-70.
Further, we have adopted the Strickland suggestion, 466 U.S.
at 697, that if it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, that course
should be followed. Strickler, 249 Va. at 128, 452 S.E.2d at
652. We shall employ that procedure in the present case.
This brings us to a determination of the standard of review
that we shall apply to the circuit court's findings of fact and
conclusions of law. We hold that, under the 1995 amendment to
Code § 8.01-654, the issue whether a prisoner held under a death
sentence is entitled to habeas relief is a mixed question of law
and fact. Therefore, a circuit court's finding and conclusion on
the issue is not conclusive and binding upon this Court but is
- 10 -
properly subject to judicial review. See The Stenrich Group v.
Jemmott, 251 Va. 186, 192, 467 S.E.2d 795, 798 (1996). Indeed,
this is the standard of review employed in similar cases in the
federal system. The Supreme Court has said "that both the
performance and the prejudice components of the ineffectiveness
test are mixed questions of fact and law" and that "a state
court's ultimate conclusions regarding competence and prejudice
are not findings of fact binding on the federal court."
Kimmelman, 477 U.S. at 388-89 (citing Strickland, 466 U.S. at
698).
In the present case, the factual part of the mixed question
is whether there was evidence in mitigation that was available
but not presented at the criminal trial. There is no doubt there
was such evidence; the facts really are not in dispute. The
legal part of the mixed question is whether this deficient
performance constitutes "prejudice" within the meaning of that
term as defined by the decided cases. In resolving this part of
the question, the crucial inquiry is whether the circuit court
correctly applied the law to the established facts. We hold that
it did not.
In his brief filed in this Court in support of the circuit
court's conclusions, the prisoner dwells upon the facts relating
to the performance prong of the Strickland test, and has
comparatively little to say about circumstances relating to the
prejudice prong. He says there is "no merit" to the respondent's
- 11 -
contention "that presentation of any additional witnesses would
have done Petitioner more harm than good as each new witness
would only give the prosecutor a renewed opportunity to hammer
home the details of Petitioner's checkered criminal past."
Reverting to a discussion of performance in a prejudice
section of his brief, the prisoner states: "In any event, even
if counsel had sought to discover [available mitigation evidence
of which counsel was ignorant], fear of `opening the door' with
each witness - to a repetition of Petitioner's criminal history -
is not a reasoned decision given the facts of this case."
Continuing, he argues that the prosecutor's "relentless
recitation of Petitioner's bad acts had already been detailed for
the jury through twelve different witnesses before Petitioner's
counsel even stepped up to the plate. Any door that trial
counsel feared would be opened by the presentation of additional
mitigation witnesses had already been swung wide with gusto," and
no amount of vigorous cross-examination by the prosecutor "could
have left the jury feeling any worse about Petitioner than they
had at the conclusion of the prosecutor's case."
The prisoner argues there "is a `reasonable probability'
that at least one juror would have been moved to spare
Petitioner's life had he heard" the mitigation evidence developed
at the habeas hearing that was not presented at the trial.
Summarizing, he contends there "is a `reasonable probability'
that had at least one juror heard any of this evidence -- let
- 12 -
alone all of this evidence -- the outcome of this case would have
been different."
We reject these contentions. The prisoner's discussion
flies in the face of the Supreme Court's admonition in Lockhart,
supra, that "an analysis focusing solely on mere outcome
determination, without attention to whether the result of the
proceeding was fundamentally unfair or unreliable, is defective."
We shall demonstrate that the criminal proceeding sentencing
defendant to death was not fundamentally unfair or unreliable,
and that the prisoner's assertions about the potential effects of
the omitted proof do not establish a "reasonable probability"
that the result of the proceeding would have been different, nor
any probability sufficient to undermine confidence in the
outcome. Therefore, any ineffective assistance of counsel did
not result in actual prejudice to the accused.
The jury was presented with the murder of an intoxicated,
elderly person in his own bedroom committed by a 31-year-old man.
The murder weapon was a tool customarily used to dig stumps. At
the time, defendant had been out of the penitentiary for only
seven months, released on parole for convictions of burglary and
grand larceny.
The accused was in the midst of a crime spree, preying upon
defenseless individuals. Following commission of these crimes of
murder and robbery in November 1985, the defendant savagely beat
an elderly woman about her head in March 1986, leaving her lying
- 13 -
in the street unconscious with multiple injuries. At the time of
trial, she was in a nursing home "vegetating" from a brain injury
with no hope of recovery.
Upon being questioned in April and May 1986 about the
November 1985 crimes, the defendant admitted to the recent theft
of two motor vehicles. He also admitted setting fire to clothes
on the porch of a residence late one night in December 1985,
luring the occupant outside, and stabbing him with a knife in
order to rob him. The accused later was convicted of the vehicle
thefts and, at the time of trial for the present crimes, had been
convicted of an arson that took place in the city jail.
While held in jail on the present offenses, he related to a
police officer "that he wanted to just choke some of the guys in
the jail cell, and one day some had gone to the library and one
guy was laying on the bed, and he got the urge to just go over
and choke him. Another time he was playing cards and he thought
he could just hit someone and break that person's jaw without him
ever knowing what hit him."
The jury also heard that defendant had served time in the
penitentiary for an armed robbery committed when he was about 20
years old. The jury did not know of 14 criminal offenses
committed by defendant from 1966 to 1975.
Drawing on Strickland, we hold that, even assuming the
challenged conduct of counsel was unreasonable, the prisoner
"suffered insufficient prejudice to warrant setting aside his
- 14 -
death sentence," 466 U.S. at 698-99, the predicate of which was
that there is a probability that he would commit criminal acts of
violence which would constitute a continuing serious threat to
society. The mitigation evidence that the prisoner says, in
retrospect, his trial counsel should have discovered and offered
barely would have altered the profile of this defendant that was
presented to the jury. At most, this evidence would have shown
that numerous people, mostly relatives, thought that defendant
was nonviolent and could cope very well in a structured
environment. Of course, those assumptions are belied by the
four-month crime spree beginning with the present crimes and by
the defendant's current attitude while in jail toward other
inmates.
What the Supreme Court said in Strickland applies with full
force here: "Given the overwhelming aggravating factors, there
is no reasonable probability that the omitted evidence would have
changed the conclusion that the aggravating circumstances
outweighed the mitigating circumstances and, hence, the sentence
imposed." 466 U.S. at 700. Indeed, disclosure of the
defendant's juvenile history might even have been harmful to his
case.
Unfortunately, the circuit court appears to have adopted a
per se approach to the prejudice element. The court opined that
"any evidence which might be favorable or mitigating can mean the
difference between `life or death'"; that "mitigating testimony
- 15 -
is absolutely crucial and if none is offered, this amounts to
prejudice"; and that the accused "needed anything and everything
that might be available as favorable evidence to persuade the
jury to save his life. Anything less was not enough." This
demonstrates an emphasis on mere outcome determination, without
proper attention to whether the result of the criminal proceeding
was fundamentally unfair or unreliable.
In conclusion, employing the language of Strickland, the
prisoner "has made no showing that the justice of his sentence
was rendered unreliable by a breakdown in the adversary process
caused by deficiencies in counsel's assistance. [The prisoner's]
sentencing proceeding was not fundamentally unfair." 466 U.S. at
700.
Accordingly, the petition for a writ of habeas corpus, as
amended, will be denied.
Writ denied.
- 16 -