UPON REHEARING
Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, Lemons,
and Agee, JJ.
MICHAEL W. LENZ
v. Record No. 012883 OPINION BY JUSTICE ELIZABETH B. LACY
March 5, 2004
WARDEN OF THE SUSSEX I
STATE PRISON
UPON A PETITION FOR A WRIT OF HABEAS CORPUS
In this case we granted a rehearing to the Warden to
consider whether trial counsel were ineffective because they
did not object to the verdict form given to the jury in the
sentencing phase of petitioner's capital murder trial. The
Warden argues that the verdict form the jury considered was
proper under this Court's holding in Atkins v. Commonwealth,
257 Va. 160, 178, 510 S.E.2d 445, 456 (1999), and that trial
counsel could not have been ineffective for failing to
anticipate this Court's subsequent decision in Powell v.
Commonwealth, 261 Va. 512, 545, 552 S.E.2d 344, 363 (2001),
requiring that the jury receive a verdict form that
specifically states that a life sentence may be imposed even
after finding one or both aggravating circumstances. The
Warden is correct.
In Atkins the jury was not given a verdict form that
allowed it to impose a life sentence if the Commonwealth
proved neither of the aggravating factors beyond a reasonable
doubt. 257 Va. at 178-79, 510 S.E.2d at 456-57. The defense
had offered the statutory verdict form, Code § 19.2-264.4,
that allowed this sentencing option, but the trial court
refused that form. Id. at 171-72, 510 S.E.2d at 452. We held
that the total absence of any jury verdict form allowing
imposition of a life sentence if neither of the aggravating
factors was proven was reversible error. Id. at 179, 510
S.E.2d at 457. We noted that, had the trial judge selected
the statutory verdict form Atkins' counsel offered, the
missing sentencing option would have been submitted to the
jury. Id. at 178, 510 S.E.2d at 456. That issue is not
present in this case, however, because the jury received the
statutory verdict form absent in Atkins.1
The issue petitioner raises here is whether the verdict
form must specifically provide the option of imposing a
sentence of life when the Commonwealth has established one or
both aggravating factors. We addressed that issue for the
1
The verdict form before the jury in the sentencing phase
of petitioner's capital murder trial comports with the
language contained in Code § 19.2-264.4(D):
We, the Jury, on the issue joined, having
found the defendant guilty of Capital
Murder, as charged in the indictment, and
having considered the evidence in
aggravation and mitigation of the offense,
fix his punishment at imprisonment for life.
2
first time in Powell. 261 Va. at 542, 552 S.E.2d at 361.
Powell was not decided until after petitioner's capital murder
trial concluded. Therefore, trial counsel could not have been
ineffective for failing to anticipate this Court's subsequent
decision in Powell, Kornahrens v. Evatt, 66 F.3d 1350, 1360
(4th Cir. 1995), and petitioner is not entitled to a new
sentencing hearing on that basis.
In light of this holding, we must address the claims in
petitioner's petition for writ of habeas corpus relating to
the sentencing phase of his capital murder trial.2 These
claims are allegations of improper jury contacts and
communications in connection with his sentencing hearing,
Claims I and II, and various allegations of ineffective
assistance of counsel in the sentencing proceeding, Claim VII.
CLAIMS I AND II
In Claim I, petitioner asserted that the bailiff in his
trial provided ex parte answers to jurors' questions about the
court's sentencing instructions and, in Claim II, that Juror
Anita J. Durrett was improperly seated and that one or more
jurors consulted a Bible in the jury room during sentencing
2
Petitioner raised ten claims in his petition for writ of
habeas corpus. In our original opinion we specifically
declined to address petitioner's claims relating to his prior
sentencing hearing and dismissed all his claims except the
claim involving the verdict form. Lenz v. Warden, 265 Va.
373, 379, 381-82, 579 S.E.2d 194, 197-99 (2003).
3
deliberations. We referred Claims I and II to the Circuit
Court of Augusta County for an evidentiary hearing by order
entered June 17, 2002.
Following the evidentiary hearing on August 9, 2002, the
circuit court issued a letter opinion stating its findings of
fact, conclusions of law, and recommendations. The circuit
court recommended rejecting both claims, finding that the
petitioner did not carry his burden of proof to establish that
the jury had asked the bailiff questions concerning their
sentencing instructions, that there was no evidence that Juror
Durrett was biased in favor of the death penalty, and that
there was "no reasonable possibility that the jury verdict was
influenced by an improper communication in the form of a
quotation from the Bible."
Petitioner filed a brief with this Court raising a number
of objections to the findings and conclusions of the circuit
court. The Commonwealth filed a brief responding to
petitioner's arguments and supporting the circuit court's
conclusions. Petitioner filed a reply brief.3
We begin by addressing two preliminary matters: the
Commonwealth's assertion that Claims I and II are procedurally
barred by the rule in Slayton v. Parrigan, 215 Va. 27, 205
3
Petitioner also filed a supplemental brief that was
rejected by order dated February 23, 2003.
4
S.E.2d 680 (1974), and petitioner's complaint that the circuit
court erred by limiting the evidentiary value of affidavits
submitted in the case.
A. Procedural Bar
The Commonwealth asserts that Slayton precludes
consideration of petitioner's Claims I and II in this habeas
corpus proceeding because petitioner did not raise those
claims at trial and on direct appeal. We disagree.
Slayton holds that one may not use a habeas corpus
proceeding as a substitute for appeal. 215 Va. at 29, 205
S.E.2d at 682. Slayton makes clear, however, that this
procedural bar operates when the petitioner "has been afforded
a fair and full opportunity to raise and have adjudicated" the
constitutional issue at trial and on appeal. Id. If the
petitioner did not have that "fair and full opportunity"
during his criminal trial and direct appeal, the rule in
Slayton does not apply. See DiPaola v. Riddle, 581 F.2d 1111,
1113-14 (4th Cir. 1978).
In this case, the Commonwealth asserts that the Slayton
bar operates because the petitioner could have procured
information from the jurors regarding communications with the
bailiff and the presence and use of the Bible during sentence
deliberations "sooner − immediately after trial, in fact."
Adopting the Commonwealth's rationale for applying the Slayton
5
bar in this case would in effect impose a requirement on
defense counsel to poll jurors and any other persons involved
with the criminal trial immediately following the trial, often
at the same time that counsel is involved in filing post-trial
motions and preparing for appeal. Failure to conduct such a
poll or investigation in every case would then subject counsel
to an ineffective assistance of counsel claim in a habeas
corpus proceeding. We decline to impose such a requirement.
Absent any indication that counsel or petitioner knew or
should have known of the complained of conduct at a time when
the trial court could address the misconduct allegations, the
procedural bar in Slayton does not apply.
In this case there is no evidence that trial counsel or
petitioner had any information indicating that counsel should
have interviewed the jury members or the bailiff, and the
Commonwealth suggests none. Accordingly, we conclude that
Slayton does not bar petitioner's Claims I and II.
B. Affidavits
In its opinion letter, the circuit court stated that it
based its findings on the testimony of the witnesses at the
hearing and that it relied on the affidavits the petitioner
and respondent filed only as they affected the credibility of
the witnesses.
6
Petitioner asserts that the trial court erred in not
considering the affidavits as substantive evidence. He
suggests that because Code § 8.01-660 allows the use of
affidavits as evidence in a habeas corpus proceeding and
because at least some of the affiants did testify, the circuit
court should have either found that the affidavits were
credible testimony or resolved any credibility questions he
had through cross-examination of the testifying affiants.
Code § 8.01-660 provides that
In the discretion of the court or judge before whom
the petitioner is brought, the affidavits of
witnesses taken by either party, on reasonable
notice to the other, may be read as evidence.
This statute makes consideration of affidavits as substantive
evidence a matter in the court's discretion. Accordingly, we
apply an abuse of discretion standard when reviewing the
circuit court's decision regarding the use of the affidavits
in this case.
The circuit court identified a number of reasons why it
did not consider the affidavits as substantive evidence,
including that they had no indicia of inherent credibility,
were taken without benefit of a transcript, and were taken a
significant time after the events occurred. Based on this
record, we cannot say that the circuit court abused its
7
discretion in refusing to consider the affidavits as
substantive evidence.
We now turn to the circuit court's findings of fact and
conclusions of law regarding the claims that were the subject
of the evidentiary hearing. When we refer a petition for a
writ of habeas corpus involving a capital murder case to a
circuit court for an evidentiary hearing, we give deference to
the circuit court's factual findings and consider those
findings binding upon this Court unless they are plainly wrong
or without evidence to support them. Hedrick v. Warden, 264
Va. 486, 496, 570 S.E.2d 840, 847 (2002). We review de novo
any questions of law or mixed questions of fact and law that
the circuit court addressed. Id.
C. Improper Communications with the Bailiff
Responding to jury inquiries regarding sentencing
instructions without notifying defendant or his counsel
violates a defendant's Sixth Amendment right to counsel.
Rogers v. United States, 422 U.S. 35, 39-40 (1975); Remington
v. Commonwealth, 262 Va. 333, 360, 551 S.E.2d 620, 636-37
(2001); Palmer v. Commonwealth, 143 Va. 592, 605, 130 S.E.
398, 402 (1925). Petitioner claimed that he was deprived of
his Sixth Amendment right because the bailiff provided ex
parte responses to juror questions regarding the instructions
the jurors received in the sentencing phase of his capital
8
murder trial. Petitioner has the burden to establish that
such improper contact occurred. Stockton v. Virginia, 852
F.2d 740, 743 (4th Cir. 1988).
As recited above, the circuit court found no credible
evidence to support petitioner's allegations of improper
contact and rejected petitioner's misconduct claim.
Petitioner challenges these findings, asserting that the "most
credible evidence" shows that the jurors had questions about
the sentencing instructions during deliberations and the
bailiff answered some of their questions. Petitioner's attack
on the sufficiency of the evidence relies wholly on statements
in petitioner's affidavits; however, as we stated above, the
circuit court did not and was not required to consider those
affidavits as substantive evidence.
A review of the record shows that some of the jurors and
the bailiff could not recall whether the bailiff was asked any
questions at all; other jurors recalled that they asked the
bailiff some questions. No juror testified that any of the
questions that may have been asked related to the trial
court's instructions. Thus, the circuit court's factual
findings are neither plainly wrong nor without evidence to
support them and therefore are binding on us. Hedrick, 264
Va. at 496, 570 S.E.2d at 847.
9
Accordingly, we find that petitioner failed to carry his
burden to show that an improper contact occurred, and we
reject this claim.
D. Extraneous Influence
The second claim we referred to the circuit court for an
evidentiary hearing was that petitioner was denied his rights
under the Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution because jurors read from and relied
upon passages in the Bible in making their sentencing
determination. The United States Supreme Court set out the
following standard for evaluating a claim of extraneous jury
contact:
In a criminal case, any private communication,
contact or tampering, directly or indirectly, with
a juror during a trial about the matter pending
before the jury is, for obvious reasons, deemed
presumptively prejudicial, if not made in pursuance
of known rules of the court and the instructions
and directions of the court made during the trial,
with full knowledge of the parties. The
presumption is not conclusive, but the burden rests
heavily upon the Government to establish, after
notice to and hearing of the defendant, that such
contact with the juror was harmless to the
defendant.
Remmer v. United States, 347 U.S. 227, 229 (1954).
The circuit court found as a matter of fact that one
juror "had at least one Bible and perhaps a 'Woman's
Devotional' with her in the jury room during the deliberations
in the penalty phase of the trial." The circuit court also
10
found that the Bible was open during deliberations, that one
juror read from it, and that other jurors looked at it. The
circuit court assumed that those jurors who looked at the
Bible did read from it but found that there was no evidence
showing what Bible passage or passages were read.
The circuit court, applying Remmer, Burch v. Corcoran,
273 F. 3d 577 (4th Cir. 2001), and Stockton, concluded that,
absent any probative evidence that a juror relied on the
contents of a passage in the Bible in making the sentencing
decision, there was "no reasonable possibility that the jury
verdict was influenced by an improper communication in the
form of a quotation from the Bible."
Petitioner asserts that the circuit court erred in a
number of particulars in finding that there was no indication
that the "jury verdict was influenced by an improper
communication in the form of a quotation from the Bible." The
petitioner first complains that the circuit court's factual
findings ignore various jurors' testimony that the Bible was
read aloud and was consulted for purposes of determining what
punishment was appropriate for the crime of murder. As with
his complaints regarding the factual findings regarding
communications with the bailiff, the petitioner bases this
challenge on statements in the petitioner's affidavits, not on
testimony at the evidentiary hearing. As we have previously
11
stated, the trial court was not required to credit the
statements in the affidavits. Our review of the record shows
that the circuit court's factual findings are consistent with
the hearing testimony and are not plainly wrong. Thus, those
factual findings are binding upon us. Hedrick, 264 Va. at
496, 570 S.E.2d at 847.
The petitioner also complains that the circuit court
improperly misallocated the burden of proof in his claim of
extraneous jury contact. The Remmer presumption of prejudice
arises upon a showing of two elements: that an extraneous
contact with or by a member of the jury took place and that
such contact was "about the matter pending before the jury."
Remmer, 347 U.S. at 229. The character of the extraneous
contact must "reasonably draw into question the integrity of
the verdict." Stockton, 852 F.2d at 743. Once the petitioner
shows both elements, the presumption arises, the petitioner is
relieved of proving actual prejudice, and the burden shifts to
the government to establish that the potentially prejudicial
contact was harmless. Remmer, 347 U.S. at 229.
In this case, the petitioner established the first
element but did not establish the second: the relevance of
the contact to the pending matter. The circuit court found
that extraneous material, the Bible, was present in the jury
room during deliberations, but the circuit court also found
12
that there was no evidence of what Bible passages were read.
Implicit in this finding is a determination that no evidence
showed that jurors read Bible passages relating to the
sentencing decision. Thus, petitioner did not establish that
the "contact" with the Bible was "about the matter pending
before the jury."
Petitioner concedes that no evidence shows which Bible
passages were read. Nevertheless, petitioner argued
strenuously to this Court that "the evidence clearly
established that several of the jurors read passages regarding
the appropriate punishment for murder." Our review of the
record indicates otherwise.
At the evidentiary hearing, petitioner read Juror Durrett
a portion of the affidavit she gave to the petitioner in which
she stated that she had a Bible with her during the trial and
that while deliberating on the sentence "some jurors were able
to point to passages in the Bible that support the death
penalty for anyone who kills another person." In response to
petitioner's questions about these statements, Juror Durrett
testified that she could not recall which jurors had asked
about the Bible, that another juror had identified a book of
the Bible which contained information about death, that jurors
had referred to the location of passages in the Bible from
memory, that she had her Bible in the room but did not think
13
that she had it open during deliberations, and that no one had
"read out loud" from the Bible.
Juror Sallie Zirkle testified that a "female juror" did
read from the Bible, but Juror Zirkle could not remember which
juror did the reading, what verse was read, why it was read,
or if the reading occurred during the jury's deliberations
regarding guilt or sentencing.
Juror Barbara Pack testified that, while a Bible was on
the table in the jury room, she did not know if anyone other
than the owner of the Bible read or looked at the Bible.
Juror Pack "assumed" the owner of the Bible was reading it
when she "looked" at it.
Juror John M. Harmon testified that nothing was read
aloud from the Bible. He did not know what the owner of the
Bible read, if anything, when "looking through" it. Juror
Joan Lafferty testified that the Bible was a Women's
Devotional Bible and that neither the owner nor any other
juror read from this book.
The only reference to a matter related to the sentencing
decision was Juror Durrett's testimony that a juror recited,
by memory, the location of a Bible passage relating to the
appropriate punishment for murder. This is not evidence that
the jury consulted, read aloud, or discussed the referenced
passage or any other Bible passage.
14
The circuit court's implicit and explicit factual
findings – that there was no evidence establishing that the
jurors' contact with extraneous material involved the "subject
matter" before the jury – are supported by the record and not
plainly wrong. Based on these factual findings, we agree that
the petitioner failed to carry his burden of showing an
extraneous contact with the jury about the pending sentencing
decision such that the integrity of the jury's verdict was
reasonably drawn into question. Therefore, petitioner has not
made the threshold showing entitling him to the presumption of
prejudice. See Burch, 273 F.3d at 591.
Petitioner also challenged the seating of Juror Durrett
based on the statement in her affidavit that the "Bible says
that the death penalty is the appropriate punishment for
murder." This statement, he asserts, shows that seating her
violated the principles set forth in Morgan v. Illinois, 504
U.S. 719, 729 (1992), because she would automatically vote for
the death penalty in every case. The circuit court rejected
this claim. After reviewing Juror Durrett's voir dire
testimony during the capital murder trial, the circuit court
found that she "was specifically asked whether she would
consider both alternatives available to her, either life
without parole or death, and that she answered she would."
Based on this finding, the circuit court concluded that there
15
was no support for the proposition that Juror Durrett was
biased in support of the death penalty and recommended that
this claim be denied.
We also reject petitioner's claim that Juror Durrett was
biased in support of the death penalty. The record supports
the circuit court's findings of fact. The single statement in
her affidavit regarding an "appropriate punishment" is
insufficient evidence upon which to find that Juror Durrett
herself concurred with the statement and that she would
automatically apply this "appropriate punishment" in every
capital murder case. During voir dire, Juror Durrett was
specifically asked whether she had any religious,
philosophical, or moral beliefs that would prevent her from
imposing the death sentence and she responded "no." She was
also asked if she would consider both life imprisonment
without parole and death as alternative penalties and she
responded that she would. Accordingly, we conclude that
seating Juror Durrett did not violate the requirements of
Morgan v. Illinois.
Accordingly, we reject Claim II.
CLAIM VII
In Claim VII, petitioner asserted that he was denied
effective assistance of counsel in the sentencing phase of his
capital murder trial because counsel failed to investigate and
16
present the circumstances of the offense, evidence regarding
petitioner's religion, and evidence regarding petitioner's
background; failed to develop relevant evidence regarding
petitioner's mental illness, to investigate the implications
of petitioner's medications, and to obtain the assistance of
an independent expert; and unreasonably failed to seek
additional time to investigate, all of which individually and
collectively prejudiced him.
To prevail on these claims, petitioner bears the burden
of showing that his counsel's performance was objectively
deficient and that the deficient performance prejudiced him.
Strickland v. Washington, 466 U.S. 668, 687 (1984). In
applying the performance prong of this test, the issue is
whether counsel's acts or omissions were unreasonable in light
of all the circumstances. Id. at 688. That determination
begins with a strong presumption that counsel's actions fall
within the wide range of adequate professional assistance, and
this presumption bars an inadequate assistance claim if the
complained of conduct might have been the result of tactics or
strategy. Id. at 689; Darden v. Wainwright, 477 U.S. 168,
185-86 (1986).
The "prejudice" prong of the Strickland test requires the
petitioner to show that there is a "reasonable probability
that, but for counsel's unprofessional errors, the result of
17
the proceeding would have been different." 466 U.S. at 694.
A "reasonable probability" is more than a "possibility" of
prejudice; it is a "probability sufficient to undermine
confidence in the outcome." Id. The errors must have
"actually had an adverse effect on the defense." Id. at 693.
Further, in applying this two-prong test, we need not
determine whether counsel's performance was deficient before
addressing the prejudice prong. If the petitioner fails to
show the requisite prejudice, we need not scrutinize counsel's
performance. Id. at 697.
A. Failure to Seek Additional Time to Investigate
On April 17, 2000, counsel for petitioner requested a
continuance based on difficulties they were experiencing in
meeting with petitioner and contacting other potential
witnesses. The trial court granted a two-month continuance.
Counsel did not seek a second continuance. Petitioner asserts
that his counsel should have sought a second continuance
because of difficulties in obtaining information and testing
regarding petitioner's background. We reject this claim.
Petitioner recites that "the trial court would have likely
granted" a second continuance if counsel had sought one and
that without the continuance counsel "were . . . unable to
investigate and present all relevant evidence" regarding
petitioner's background, religion, and mental health history.
18
The evidence petitioner proffers in support of this claim is
that some experts were not appointed until shortly before
trial, and affidavits from his trial counsel and mitigation
specialist explaining difficulties in meeting with petitioner
and expressing the opinion that "[e]veryone . . . could have
used" more time.
Many of the difficulties the mitigation expert
experienced in meeting with petitioner were the result of her
schedule and location. Even in light of those difficulties,
the mitigation expert affirmed counsel's mitigation strategy.
There is no evidence that any of petitioner's experts told his
counsel that they needed more time. Under these circumstances
we cannot say that counsel's failure to seek a second
continuance was unreasonable under the circumstances and,
accordingly, we reject this claim. Strickland, 466 U.S. at
689.
B. Failure to Investigate and Present Circumstances of
the Offense
Citing affidavits his fellow inmates submitted,
petitioner asserts that his trial counsel should have
investigated and introduced evidence regarding petitioner's
dedication to the Asatru religion, including his belief in,
and fear of, "life-threatening black magic," which the victim,
Brent H. Parker, allegedly was using against petitioner. Such
19
evidence, petitioner claims, would have demonstrated to the
jury that he did not kill Parker because of a depraved mind
but because he feared for his life.4
We reject this claim. First, the petitioner presented
this evidence to the jury through his own testimony.
Petitioner testified about the nature of the Asatru religion
and his dedication to it as well as his relationship with the
victim and the threats the victim made toward him.
Petitioner also asserts that the inmate's testimony would
have shown that the killing was not related to petitioner's
depravity of mind, one of the grounds for establishing the
vileness aggravating factor. However, this assertion does not
address the other grounds supporting a finding of vileness –
torture and aggravated battery. The evidence that the victim
was stabbed 68 times supports a finding of vileness based on
torture or aggravated battery. Furthermore, the jury also
found that petitioner would be a future danger to society.
Nothing in the alleged missing testimony would have affected
that finding.
Accordingly, we reject petitioner's claim because he
failed to show that, had the additional testimony he cites
4
We do not treat petitioner's arguments as asserting a
claim of self-defense. At issue here is the sentencing
proceeding, at which point the jury had already rejected such
claim.
20
been presented to the jury, there would have been a reasonable
probability of a different result. Strickland, 466 U.S. at
694.
C. Failure to Investigate and Present Relevant Evidence
Regarding Petitioner's Religion
Petitioner claims that presenting evidence of the Asatru
religion and his immersion in it solely through his own
testimony was insufficient to inform the jury of the true
nature of the religion and its significance in his life.
Without receiving this information from other witnesses such
as fellow inmates or acquiring an understanding of prison
dynamics from an expert in prison life, petitioner asserts,
the jury was left with the "sole impression that Lenz's
religion was nothing more than a dangerous and scary cult."
If the jury had such information, petitioner concludes, "there
is a reasonable probability that the jury would not have
sentenced Lenz to death."
We reject this claim. Nothing in the record suggests
that the prison life expert petitioner asserts counsel should
have called, James E. Aiken, had any knowledge of the Asatru
religion or of petitioner's involvement in it. The record
shows only that Aiken had qualified as an expert in "prison
operations and classifications" and would have testified
21
regarding the probability of petitioner's future
dangerousness.
The record does show that petitioner called as a witness
the prison psychologist who had interviewed him following the
murder. The witness described some of the tenets of the
Asatru religion. The witness testified that he believed
petitioner was sincere in his dedication to this religion.
The record shows that petitioner's trial counsel did
attempt to put on the dynamics of the prison atmosphere and
religious groups through the prison psychologist. Counsel
ceased that line of questioning when the witness' answer
indicated a lack of violence connected with the Asatru
religious group and when the trial court barred further
inquiries regarding violent acts by other religious groups in
the prison. Counsel's decision to end this line of
questioning apparently was a strategic decision based on the
court's ruling and the testimony of the prison psychologist.
Similarly, the inmate testimony petitioner asserts that
the jury should have heard did not involve the substance of
the Asatru religion. That testimony described the contrast
between petitioner's immersion in his religion and the
victim's aggressive, bullying, non-religious character, as
well as the relationship between petitioner and his victim.
Petitioner himself testified to this evidence, and as
22
previously stated, other testimony related to the sincerity of
petitioner's religious beliefs.
This record does not support a finding that petitioner's
counsel acted unreasonably in light of all the circumstances
or that the failure to present testimony of other inmates and
James Aiken raises a reasonable probability that the result of
the sentencing proceeding would have been different.
Strickland, 466 U.S. at 689, 694.
D. Failure to Properly Investigate and Present Relevant
Evidence Regarding Petitioner's Background
Petitioner complains, in part, that trial counsel were
ineffective because they failed to investigate and develop
information about petitioner's family history of alcoholism,
drug abuse, and mental illness. We reject this part of the
claim.
Petitioner obtained an affidavit from trial counsel
stating that efforts were made to locate petitioner's
biological father but that they "never located [petitioner's]
biological father, or any other members of his biological
paternal family." Counsel did not make a decision that finding
these persons was unnecessary, compare Wiggins v. Smith,
___U.S. ___, 123 S.Ct. 2527 (2003); rather their investigation
of these matters was unsuccessful. Under these circumstances,
23
we cannot say that counsel's actions "fell below an objective
standard of reasonableness." Strickland, 466 U.S. at 688.
Petitioner also complains that his trial counsel were
ineffective because they did not present detailed information
regarding his psychiatric institutionalizations, diagnoses,
and treatments. We reject this claim also.
First, petitioner does not assert that counsel were
deficient in failing to investigate his background.
Petitioner acknowledges that counsel had obtained the records
relevant to the evidence he now asserts should have been
presented to the jury. "[C]ounsel had . . . stacks of records
regarding Lenz's treatment and diagnoses." He also
acknowledges that both petitioner and his mother testified
regarding his childhood and institutionalizations. That
testimony provided the jury with the following information.
Petitioner's mother met his biological father, Michael W.
Stagenga, while Stagenga was a student at the United States
Naval Academy, and they married upon Stagenga's graduation.
When petitioner was born in 1964, Stagenga was stationed in
Vietnam. Petitioner's parents divorced in 1967, in part
because his mother was concerned that his father had a
drinking problem.
Petitioner and his mother returned to Virginia. His
mother married Bill Lenz, a Navy helicopter pilot, in April
24
1968. Bill Lenz wanted to and eventually did adopt
petitioner. Mrs. Lenz testified that Bill Lenz never told
petitioner that "he loved him" and was intense and strict with
petitioner. Bill Lenz told Mrs. Lenz not to "hug" petitioner
all the time.
The Lenz family moved a number of times as Bill Lenz's
station assignments changed. In first grade, Mrs. Lenz was
told that her son was "rough on the play ground" and "fidgety
in class." When he was in second grade, petitioner's brother
Lance was born.
When petitioner was in fourth grade, his parents sent him
to San Diego Children's Home, a day school, because he was
having trouble controlling his anger. The family went to
counseling although Bill Lenz "didn't like it." The next year
the family returned to Virginia when Bill Lenz left the Navy
and joined the Secret Service. Petitioner attended public
schools in Woodbridge and needed no special help. He was
involved in scouting, soccer, and church activities. Mrs.
Lenz testified that petitioner and Bill Lenz had no close
father-son relationship and that Bill Lenz disciplined
petitioner by making him go to his room for long periods of
time. There was no physical abuse.
When petitioner was 14 years-of-age, his mother was
looking after a neighbor's house and car while the neighbor
25
was away. Petitioner and a friend took the car keys and drove
the car around. When confronted, petitioner was "scared",
and, according to Mrs. Lenz, held a kitchen knife and
threatened to take his own life. As a result of this
incident, petitioner's parents admitted him to Potomac
Hospital, a crisis center, in Woodbridge, Virginia. He was
transferred to Dominion Psychiatric Treatment Center
(Dominion) in Falls Church, Virginia, a few weeks later
because he was showing depression and repressing anger. The
family participated in counseling, although Bill Lenz was
embarrassed "about it" and didn't like doing it.
A few months after petitioner was released from Dominion,
he and a boy he had met at Dominion burglarized a home and
stole some jewelry. Petitioner was returned to Potomac Crisis
Center at the insistence of Bill Lenz. At the hearing on the
burglary charges, the juvenile court judge sent petitioner to
Commonwealth Psychiatric Hospital (Commonwealth) in Richmond
as an alternative to jail. The family participated in
counseling while petitioner was at Commonwealth.
When released from Commonwealth, petitioner was enrolled
in Gladden School, a school for boys with behavioral problems.
That school closed. Petitioner again got "into trouble" and
this time was sent to Beaumont Learning Center. He acquired
his general equivalency diploma while at Beaumont. After one
26
trip home from Beaumont, petitioner did not return to Beaumont
as required. He went to Virginia Beach for two days.
When petitioner was released from Beaumont, his parents
had moved to New Jersey. He went to New Jersey and enrolled in
a small college. After a "short time," petitioner was in
"trouble" again and sentenced to jail in New Jersey. When
released, his mother, who had moved to Iowa, returned to New
Jersey and helped him find a place to stay there. Eventually
petitioner returned to Virginia.
Petitioner complains that this evidence is inadequate
because it does not recite the specific diagnoses and
treatments he underwent in the various institutions. However,
those records show that at age 14 petitioner tested at or above
grade level in all tested areas but spelling, had a verbal IQ
of 112, a performance IQ of 117 and a full scale IQ of 116. He
was classified in the bright to normal range. His
psychological evaluations showed that he had poor impulse
control, exhibited destructive behavior, had been using "pot"
for over a year, had used LSD, and had used cocaine for five
months before he was placed in Dominion. Petitioner also
admitted he was "dealing" to finance his drug supply. He was
evaluated as not psychotic but "demanding, infantile, depressed
and angry." The evaluator recommended help in improving his
self-esteem and controlling his anger. Later evaluations
27
reinforced the notion that petitioner was "above average" in
intelligence but continued to abuse drugs and alcohol.
In light of the information contained in the reports and
evaluations from the various institutions in which petitioner
received treatment, counsel's decision not to present more
detail regarding those reports was not unreasonable. The
particulars of those reports would have represented a "two
edged sword" that counsel often confront when constructing the
strategy most likely to assist rather than harm a client.
Barnes v. Thompson, 58 F.3d 971, 980-81 (4th Cir. 1995)(cross-
purpose evidence capable of aggravation and mitigation).
Finally, petitioner has failed to show what the jury
could have heard that would have had a reasonable probability
of changing the sentencing result. The jury heard about
petitioner's unloving and demanding step-father, his natural
father's drinking problem, his suicidal tendencies, his low
self-esteem and feelings of worthlessness, and his own
extensive drug and alcohol use. The possibility that
description of these facts could have been presented in more
detail does not support a finding of a reasonable probability
that the jury would have reached a different result.
Strickland, 466 U.S. at 694.
E. Failure to Develop Relevant Evidence Regarding
Petitioner's Mental Illness
28
Petitioner claims that his social and psychiatric history
indicates that he suffers from a "cognitive dysfunction" and
that this dysfunction leads to low self-esteem, suspiciousness,
paranoia, and eccentric behavior – actions that were documented
by prior evaluations of petitioner. Such dysfunction,
petitioner asserts, "helps explain" petitioner's loss of
control and extreme reaction to the victim's behavior. Thus,
petitioner concludes, his counsel were ineffective because they
did not sufficiently develop this information regarding his
mental illness.
Again we reject this claim. We note that petitioner is
not asserting that counsel failed to engage in any
investigation of petitioner's mental state; rather,
petitioner's complaint is that counsel's development and
presentation of the evidence was inadequate.
Petitioner's argument relies primarily on the affidavit
of a clinical neuropsychologist who tested petitioner and
reviewed his records years after the capital murder trial. At
the time of trial, petitioner had never been diagnosed with a
mental illness of any type. Petitioner's psychiatric
evaluations had identified psychological problems but never
suggested a mental illness or "cognitive dysfunction" amounting
to a mental illness.
29
Counsel cannot be considered ineffective for failing to
develop a "mental illness" theory to use in mitigation when
such a condition had not even been suggested by any expert or
individual who had evaluated petitioner. See Poyner v. Murray,
964 F.2d 1404, 1418-19 (4th Cir. 1992).
F. Failure to Obtain Assistance of an Independent Expert
At trial, petitioner sought the assistance of James
Aiken as an expert witness on the operation and classification
of inmates in the Virginia prison system. The trial court
denied petitioner's motion to appoint this expert, saying that
the services of the expert were "expensive" and that the
information petitioner sought was available from persons who
were in Virginia and who could "tell you better how it's done."
Counsel for petitioner noted his objection but made no further
argument. At trial, petitioner called the Virginia Department
of Corrections Director of Operations and the Assistant Warden
of Operations at Red Onion Prison to testify on the system of
prisoner classification and security.
Petitioner argues that under Ake v. Oklahoma, 470 U.S. 68
(1985), he was entitled to an independent expert and that the
expert petitioner sought could have assisted in "preparing a
defense to the Commonwealth's case for future dangerousness" in
the context of a prison environment. Such assistance,
petitioner argues, would not have been forthcoming from
30
employees of the Commonwealth's prison system. Counsel's
failure to advise the trial court of the need for this
independent expert constituted ineffective assistance of
counsel, according to petitioner.
We reject this claim. Trial counsel appealed the denial
of petitioner's motion for the appointment of the expert at
issue on direct appeal. This Court resolved the issue, holding
that Ake did not require the trial court to appoint the expert.
Lenz v. Commonwealth, 261 Va. 451, 462, 544 S.E.2d 299, 305
(2001).
To the extent petitioner is complaining that counsel's
ineffectiveness is based on their failure to make the argument
that the expert would be testifying not only to prison
classifications and operation but also opining on petitioner's
future dangerousness in the context of a prison setting, we
also reject the claim. We have held that Code § 19.2-264.2
does not limit the consideration of whether the defendant would
pose a continuing threat to society to a "prison society"
because a defendant would be sentenced to life imprisonment
without parole. Lovitt v. Commonwealth, 260 Va. 497, 517, 537
S.E.2d 866, 879 (2000). While Lovitt was decided one month
after petitioner's sentencing proceeding, we cannot conclude
that counsel was ineffective for failing to advance an argument
that we have subsequently rejected.
31
G. Failure to Investigate Implications
of Petitioner's Medications
Petitioner asserts that he was being treated with the
steroid prednisone and the antihistamine Benadryl at the time
of the murder and that trial counsel was ineffective for
failing to seek expert assistance to determine if these
medications negatively affected petitioner.
We reject this claim. Petitioner's mitigation theory
revolved around the sincerity of his religious beliefs and his
feelings of low esteem and repressed anger stemming from his
relationship with his step-father. Petitioner never suggested
that he was not in control of his actions when he stabbed and
killed Parker or that the sincerity of his religious beliefs
was the product of some adverse reaction to medication.
Decisions regarding trial strategy often require rejection of
other potential strategies. The course of actions petitioner
suggests in this habeas proceeding is inconsistent with the
trial strategy his trial counsel elected. We cannot conclude
that trial counsel's actions were deficient for failing to make
the argument petitioner suggests. Strickland, 466 U.S. at 689.
H. Cumulative Prejudice
Lastly, petitioner complains that the cumulative effect
of trial counsel's actions and omissions during the sentencing
phase "individually and cumulatively, prejudiced Lenz." We
32
reject this claim. Having rejected each of petitioner's
individual claims, there is no support for the proposition that
such actions when considered collectively have deprived
petitioner of his constitutional right to effective assistance
of counsel. Mueller v. Angelone, 181 F.3d 557, 586 n.22 (4th
Cir. 1999), Fisher v. Angelone, 163 F.3d 835, 852 (4th Cir.
1998).
CONCLUSION
For these reasons, we deny the petition for a writ of
habeas corpus.
Writ denied.
JUSTICE KOONTZ, with whom CHIEF JUSTICE HASSELL and JUSTICE
KEENAN join, dissenting.
I respectfully dissent. At its core, the issue that
Michael W. Lenz raises in this habeas corpus case ultimately
evolves from our recent consideration of a defendant’s rights
in view of the awesome responsibility statutorily entrusted to
the jury in a capital murder case to determine whether a
defendant shall be sentenced to death or life imprisonment.
The jury’s determination is aided by two fundamental and
pertinent principles. A death sentence may not be imposed
unless the jury finds beyond a reasonable doubt that one or
both of the so-called aggravating factors of future
dangerousness or vileness have been proven. However, the jury
33
may fix the defendant’s punishment at life imprisonment even
when it finds that one or both of these aggravating factors
have been proven. Code §§ 19.2-264.2 and 19.2-264.4. In this
context, our decision in Atkins v. Commonwealth, 257 Va. 160,
178, 510 S.E.2d 445, 456 (1999), was premised upon the well
established rule that “it is materially vital to the defendant
in a criminal case that the jury have a proper verdict form”
reflecting all of its sentencing options. In my view, the
majority either ignores the rationale of Atkins or unduly
limits that rationale to the specific facts of that case. Our
subsequent decision in Powell v. Commonwealth, 261 Va. 512,
552 S.E.2d 344 (2001), illustrates the point that it is
reversible error when the jury is not given complete or
adequate verdict forms that comport with the correct statement
of the law given to the jury by the trial court in its
sentencing instructions regarding the sentencing options
available to the jury, regardless of the specific manner in
which those forms are incomplete or inadequate. For the
reasons that follow, I would vacate Lenz’s death sentence and
remand the case to the trial court for a new sentencing
hearing.
Beyond question, the jury in Lenz’s case was not given a
verdict form that specifically reflected the jury’s option of
imposing a life sentence, or a life sentence and a fine of not
34
more than $100,000, even if the jury found that the
Commonwealth had proven beyond a reasonable doubt one or both
of the aggravating factors necessary for imposing a sentence
of death. The trial court was required to provide the jury
with a verdict form expressly providing this sentencing
option, and we expressly so held in Powell, 261 Va. at 545,
552 S.E.2d at 363.
The Warden in this case misses the mark when arguing
essentially that there is no “Atkins error” in the verdict
forms given to Lenz’s jury because unlike Atkins the jury in
Lenz’s case was given the statutory verdict form provided by
Code § 19.2-264.4. That statutory verdict form was also given
to the jury in Powell and there we explained:
The issue is not whether the jury was provided with
the means to discharge its obligation. If that were
the only goal, it could be achieved by providing the
jury with a generic verdict form and advising the
jury to fill in the particulars of the sentence from
the instructions. Rather, the issue is whether the
jury is likely to be confused where it is instructed
that it may impose a sentence other than death if it
finds one or both of the aggravating factors have
been proven beyond a reasonable doubt, but receives
verdict forms that do not expressly state that the
jury is allowed to fix a sentence of life
imprisonment even though one or both aggravating
factors are present.
Id. at 545, 552 S.E.2d at 363. We applied the rationale of
Atkins in Powell and the specific deficiency in the verdict
35
forms given to the jury in the former case was not material to
our analysis in the latter case. Id.
The majority does not dispute that, in the absence of the
procedural differences in the two cases, Powell would control
the verdict form issue raised by Lenz in this case. In
Powell, the inadequacy of the jury verdict forms was an issue
raised at trial and preserved for appeal. Id. In Lenz’s
case, the very same issue was not raised at trial and
preserved for appeal. In Lenz’s direct appeal we raised the
issue, sua sponte, and asked the parties to address it in view
of our decision in Atkins. We ultimately held, however, that
the issue was procedurally defaulted under Rule 5:25 because
Lenz had neither raised the issue in the trial court nor
assigned error to the verdict forms before this Court. Lenz
v. Commonwealth, 261 Va. 451, 472, 544 S.E.2d 299, 311 (2001).
The issue is now before this Court on Lenz’s claim that his
counsel was ineffective in not preserving the issue of the
inadequate jury verdict forms used in his capital murder
trial.
Adopting the position asserted by the Warden in Lenz’s
habeas corpus case, the majority concludes that Lenz’s counsel
was not ineffective because “trial counsel could not have been
ineffective for failing to anticipate this Court’s subsequent
decision in Powell.” I agree, but counsel did not need to
36
anticipate our decision in Powell. In my view, trial counsel
was ineffective in not recognizing after our decision in
Atkins, which was rendered one and one half years prior to
Lenz’s trial, that it was materially vital to Lenz that the
jury be given a proper verdict form reflecting all of its
sentencing options. Specifically, any reasonably effective
counsel would have recognized after Atkins that a jury form
that did not specifically reflect the jury’s option of
imposing a life sentence, or a life sentence and a fine of not
more than $100,000, even if the jury found that the
Commonwealth had proven beyond a reasonable doubt one or both
of the aggravating factors necessary for imposing the death
sentence, would not comport with the correct statement of law
given to the jury by the trial court in its sentencing
instructions. In such a case, the jury would be presented
“with a confusing situation in which the trial court’s
instructions and the form the jury was given to use in
discharging its obligations [would be] in conflict.” Atkins,
257 Va. at 179, 510 S.E.2d at 457. Indeed, that was the
reason we raised this issue sua sponte in Lenz’s direct
appeal. Our concern was the application of the rationale of
Atkins, not the specific manner in which the verdict forms
were inadequate in that case, and not the decision we would
render in Powell.
37
In short, in view of this Court’s decision in Atkins,
Lenz’s counsel was ineffective in failing to object to the
inadequate verdict form given to the jury at Lenz’s capital
murder trial. That failure precluded Lenz from having his
sentence determined by a jury with verdict forms that
reflected all of its sentencing options under the law or
receiving relief on direct appeal. Lenz obviously was
prejudiced by counsel’s failure. Accordingly, I would vacate
Lenz’s death sentence and remand the case to the trial court
for a new sentencing hearing.*
*
Because I would remand the case for a new sentencing
hearing based upon the claim of ineffective assistance of
counsel with respect to the failure to object to the improper
verdict form, I would not reach the other issues addressed by
the majority and express no opinion thereon.
38