Hedrick v. Warden of Sussex I State Prison

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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