Williams v. Warden of Mecklenburg Correctional Center

Present: All the Justices

TERRY WILLIAMS
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 960534 June 6, 1997

WARDEN OF THE MECKLENBURG
CORRECTIONAL CENTER

UPON A PETITION FOR A WRIT OF HABEAS CORPUS

This is the first habeas corpus petition filed by a prisoner

held under a sentence of death that we have addressed in a

published opinion since the applicable statute was amended

effective July 1, 1995. See Acts 1995, ch. 503.
The 1995 amendment to Code § 8.01-654 added subsection (C).

It provides that this Court shall have "exclusive jurisdiction"

to consider and award writs of habeas corpus with respect to any

such petition filed by a convict held under a death sentence.

§ 8.01-654(C)(1). The amendment further provides that the

circuit court "which entered the judgment order setting the

sentence of death shall have authority to conduct an evidentiary

hearing on such a petition only if directed to do so by order of

the Supreme Court." Id.

The amendment fixes time limits within which the circuit

court "shall conduct" a hearing on the issues enumerated in this

Court's order and within which the circuit court "shall report

its findings of fact and recommend conclusions of law to the

Supreme Court." § 8.01-654(C)(3). Finally, the amendment

provides that any objection to the circuit court's report must be

filed in this Court, within a specified time limit. Id.

Petitioner Terry Williams was convicted in a jury trial in
the Circuit Court of the City of Danville of the capital murder

of Harris Thomas Stone. The crime was committed in November

1985, the accused was indicted in July 1986, and the jury found

him guilty in September 1986.

After a separate proceeding on the issue of punishment and

after hearing evidence of the accused's history, including

aggravating factors and mitigating evidence, the jury fixed his

sentence at death. This sentence was based upon the "future

dangerousness" predicate of the statutory scheme; the verdict

stated there is a probability that the defendant "would commit

criminal acts of violence that would constitute a continuing

serious threat to society."
Following a statutorily mandated hearing before the trial

judge on punishment, the defendant was sentenced in November 1986

to death. This Court affirmed the conviction and death sentence

on direct appeal. Williams v. Commonwealth, 234 Va. 168, 360

S.E.2d 361 (1987). The United States Supreme Court refused

review. Williams v. Virginia, 484 U.S. 1020 (1988).

In August 1988, the convict filed a habeas corpus petition

in the Danville Circuit Court. After a 1989 hearing, the court

dismissed a number of the habeas claims. An amended petition was

filed in April 1995, and the court heard evidence in June 1995 on

the issue of ineffective assistance of trial counsel.

On July 1, 1995, jurisdiction over the case was transferred

to this Court pursuant to the changes in Code § 8.01-654.

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Subsequently, this Court directed the circuit court to "report

its findings of fact and recommend conclusions of law regarding

the issue of ineffective assistance of counsel, as alleged in

claim VII" of the amended petition. In June 1996, the circuit

court heard argument of counsel on the ineffective assistance of

counsel claim.

In August 1996, the circuit court forwarded its report to

this Court and to counsel for the parties. The circuit court

found that the accused's two trial counsel were effective in all

but one stage of the trial proceedings. The circuit court

concluded that trial counsel's failure to present certain

mitigating evidence at the sentencing hearing before the jury

warranted the granting of relief to the petitioner.
Both the petitioner and the respondent, J. D. Netherland,

Warden of the Mecklenburg Correctional Center, filed objections

to the circuit court's rulings. In a January 1997 order, this

Court ordered briefing and argument on the issue that the circuit

court had found warranted relief. Petitioner's objections to the

circuit court's findings recommending dismissal of all the other

claims for relief were overruled.

The evidence presented in the 1986 criminal trial

established the following basic facts. The victim, an elderly

man, was found dead at 2:00 a.m. lying in a bed at his Danville

home. He was fully clothed and there was no sign of a struggle.

The victim's wallet, customarily kept fastened in his trouser

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pocket, was missing.

Later, the accused made several confessions to the murder

and robbery of the victim. The defendant said he had struck the

victim on the chest, and later on the back, with a mattock and

had removed three dollars from the victim's wallet. The victim

died from the blows, which fractured two ribs and displaced them

inward, puncturing the left lung and depositing a quantity of

blood in the left chest cavity.
During the penalty phase of the trial, the prosecution

presented evidence of the 31-year-old accused's extensive

criminal record, beginning when he was 11 years old. This

included a robbery in 1976, a burglary involving an assault upon

the victim in 1982, and a vicious and brutal malicious wounding

of an elderly woman in March 1986 that caused brain damage and

left her a "vegetable." In addition, there was evidence of a

December 1985 assault by the accused upon an elderly man while

the accused was committing arson of the victim's home. Two

forensic psychological experts who examined the accused testified

there was a high probability that he would commit future criminal

acts of violence and that he constituted a continuing threat to

society.

The accused's mother testified that he was never violent at

home and that she did not believe he was a threat to others. A

female acquaintance of the accused who had known him for 11 years

testified he was never violent in her presence. Another witness,

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whose foster daughter had dated the accused, testified he was not

a violent person.

Based on the June 1995 habeas evidentiary hearing and the

subsequent argument of counsel, the circuit judge, who had

presided at the trial, made a number of "findings of fact" and

"recommended conclusions of law." The court found that the

convict's "trial attorneys were both experienced in criminal

defense work and thoroughly prepared the case in defense of

capital murder." In this connection, the court concluded that

counsel's "performance at the guilt phase of the trial was both

professional and competent."
Elaborating, the court stated that counsel "properly

explored the mental competency of" the accused, who, according to

the evidence at trial, had a "borderline level of intellectual

functioning." Also, the circuit court found that trial counsel

"adequately investigated the issues of robbery and cause of

death"; that counsel "was justified in relying on" the

conclusions of the medical examiner regarding the cause of death;

that counsel's "conduct with regard to the confession and

suppression hearing was competent and professional"; and that

they were not ineffective for their failure to investigate

whether the accused suffered from a so-called "Fetal Alcohol

Syndrome." Further, the court concluded that counsel performed

adequately regarding voir dire, evidentiary objections, and jury

instructions.

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 Additionally, the circuit court found that the performance

of defense counsel, in the main, during the penalty phase

proceedings did not warrant habeas relief. And, the court

determined counsel was effective on appeal.

The court reported, however, that certain actions of counsel

during the trial's penalty phase were "the only real concern."

"Specifically," the court said, "little evidence was presented on

the issue of mitigation, and there exists evidence that

petitioner had a deprived and abused upbringing; that he may have

been a neglected and mistreated child; that he came from an

alcoholic family; and that he was borderline mentally retarded."
Continuing, the court said there also exists "evidence that

petitioner's conduct had been good in certain structured settings

in his life (such as when he was incarcerated) and there were

friends, neighbors and family of petitioner who would have

testified that he had redeeming qualities." The court was of the

view that some of this testimony "such as [from] petitioner's

wife, daughter and Bruce Elliott, was worthy of a jury's

consideration on mitigation. However, none of this testimony was

developed and presented at the sentencing phase of the trial."

The court stated: "Probably the most persuasive mitigating

evidence which was not tendered to the jury involved the failure

to interview and call Bruce Elliott as a witness during the

sentencing phase." Elliott, a certified public accountant,

contacted defense counsel prior to trial and offered his help,

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but, according to the court, "counsel never followed up by

talking to the witness." The court found that Elliott had known

the accused since 1978 and would have portrayed the accused "as a

decent human being who struggled to prove his worth in spite of

his being somewhat disadvantaged mentally, emotionally and

financially." Elliott, who did not testify at the habeas

hearing, stated in an affidavit that the accused "took pride in

his achievements," such as graduation from carpentry school while

incarcerated in a correctional facility.
The court found that trial counsel "made a tactical decision

to focus attention at the penalty phase" on the accused's

confession, which was unsolicited and volunteered. Counsel's

strategy, the court concluded, was to convince the jury that the

accused's life should be spared, and that he should be given a

life sentence, because of the unsolicited confession.

Also, the court said that counsel "made a tactical decision

not to put certain witnesses before the jury to prevent the

Commonwealth from reminding the jury of the `horrible and

terrible crimes'" committed by the accused. Nevertheless, the

court said, "it is troubling . . . that favorable evidence was

not pursued and introduced for `whatever it was worth' when the

decision which was to be made by the jury involved life or

death."

Summarizing, the court opined that at "a capital murder

sentencing, any evidence which might be favorable or mitigating

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can mean the difference between `life or death.'" Continuing,

the court stated that "mitigating testimony is absolutely crucial

and if none is offered, this amounts to prejudice." In addition,

the court said that a failure "to present favorable mitigation

evidence which was available upon investigation and development

falls below the range expected of reasonable, professional

competent assistance of counsel, and because this evidence is so

crucial to the outcome of the jury's ultimate decision of life or

death, it is prejudicial to a defendant when it is not presented

at the sentencing phase." This is such a case, according to the

court, because "Terry Williams needed anything and everything

that might be available as favorable evidence to persuade the

jury to save his life. Anything less was not enough."
Therefore, the court recommended that a writ of habeas

corpus be granted and that the convict be granted a rehearing on

the sentencing phase of his trial.

The right to counsel, guaranteed by the Sixth Amendment to

the Federal Constitution and made applicable to the states

through the Fourteenth Amendment, includes the right to effective

assistance of counsel. Murray v. Griffith, 243 Va. 384, 388, 416

S.E.2d 219, 220 (1992) (citing Virginia Dep't of Corrections v.

Clark, 227 Va. 525, 533, 318 S.E.2d 399, 403 (1984)). This

constitutional guarantee "includes the right to the care and

skill which a reasonably competent attorney would exercise for

similar services under the circumstances." Stokes v. Warden, 226

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Va. 111, 116-17, 306 S.E.2d 882, 884 (1983). In other words, the

accused is entitled to counsel who is a reasonably competent

attorney and to advice that is within the range of competence

demanded of attorneys in criminal cases. Strickland v.

Washington, 466 U.S. 668, 687 (1984).

In a collateral attack on a conviction, however, "a prisoner

not only has the burden of proving ineffective assistance of

counsel, but also must prove actual prejudice as a result."
Stokes, 226 Va. at 118, 306 S.E.2d at 885. Accord Strickland,

466 U.S. at 687; Murray, 243 Va. at 388, 416 S.E.2d at 221. In

order to establish prejudice, there must be a showing "that

counsel's errors were so serious as to deprive the defendant of a

fair trial, a trial whose result is reliable." Strickland, 466

U.S. at 687. "An error by counsel, even if professionally

unreasonable, does not warrant setting aside the judgment of a

criminal proceeding if the error had no effect on the judgment."

Id. at 691.

In sum, Strickland requires a prisoner to "show that there
is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome." Id. at 694.

And, in determining the existence of prejudice, the court must

consider the totality of the evidence presented at the criminal

trial. Id. at 695. Accord Strickler v. Murray, 249 Va. 120,

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128, 452 S.E.2d 648, 652, cert. denied, ___ U.S. ___, 116 S.Ct.

146 (1995).

"As is obvious, Strickland's standard, although by no means

insurmountable, is highly demanding." Kimmelman v. Morrison, 477

U.S. 365, 382 (1986). Accord Strickler, 249 Va. at 128, 452

S.E.2d at 652. Moreover, "an analysis focusing solely on mere

outcome determination, without attention to whether the result of

the proceeding was fundamentally unfair or unreliable, is

defective." Lockhart v. Fretwell, 506 U.S. 364, 369 (1993).

And, "[t]o set aside a conviction or sentence solely because the

outcome would have been different but for counsel's error may

grant a defendant a windfall to which the law does not entitle

him." Id. at 369-70.

Further, we have adopted the Strickland suggestion, 466 U.S.

at 697, that if it is easier to dispose of an ineffectiveness

claim on the ground of lack of sufficient prejudice, that course

should be followed. Strickler, 249 Va. at 128, 452 S.E.2d at

652. We shall employ that procedure in the present case.

This brings us to a determination of the standard of review

that we shall apply to the circuit court's findings of fact and

conclusions of law. We hold that, under the 1995 amendment to

Code § 8.01-654, the issue whether a prisoner held under a death

sentence is entitled to habeas relief is a mixed question of law

and fact. Therefore, a circuit court's finding and conclusion on

the issue is not conclusive and binding upon this Court but is

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properly subject to judicial review. See The Stenrich Group v.

Jemmott, 251 Va. 186, 192, 467 S.E.2d 795, 798 (1996). Indeed,

this is the standard of review employed in similar cases in the

federal system. The Supreme Court has said "that both the

performance and the prejudice components of the ineffectiveness

test are mixed questions of fact and law" and that "a state

court's ultimate conclusions regarding competence and prejudice

are not findings of fact binding on the federal court."
Kimmelman, 477 U.S. at 388-89 (citing Strickland, 466 U.S. at

698).

In the present case, the factual part of the mixed question

is whether there was evidence in mitigation that was available

but not presented at the criminal trial. There is no doubt there

was such evidence; the facts really are not in dispute. The

legal part of the mixed question is whether this deficient

performance constitutes "prejudice" within the meaning of that

term as defined by the decided cases. In resolving this part of

the question, the crucial inquiry is whether the circuit court

correctly applied the law to the established facts. We hold that

it did not.

In his brief filed in this Court in support of the circuit

court's conclusions, the prisoner dwells upon the facts relating

to the performance prong of the Strickland test, and has

comparatively little to say about circumstances relating to the

prejudice prong. He says there is "no merit" to the respondent's

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contention "that presentation of any additional witnesses would

have done Petitioner more harm than good as each new witness

would only give the prosecutor a renewed opportunity to hammer

home the details of Petitioner's checkered criminal past."

Reverting to a discussion of performance in a prejudice

section of his brief, the prisoner states: "In any event, even

if counsel had sought to discover [available mitigation evidence

of which counsel was ignorant], fear of `opening the door' with

each witness - to a repetition of Petitioner's criminal history -

is not a reasoned decision given the facts of this case."

Continuing, he argues that the prosecutor's "relentless

recitation of Petitioner's bad acts had already been detailed for

the jury through twelve different witnesses before Petitioner's

counsel even stepped up to the plate. Any door that trial

counsel feared would be opened by the presentation of additional

mitigation witnesses had already been swung wide with gusto," and

no amount of vigorous cross-examination by the prosecutor "could

have left the jury feeling any worse about Petitioner than they

had at the conclusion of the prosecutor's case."
The prisoner argues there "is a `reasonable probability'

that at least one juror would have been moved to spare

Petitioner's life had he heard" the mitigation evidence developed

at the habeas hearing that was not presented at the trial.

Summarizing, he contends there "is a `reasonable probability'

that had at least one juror heard any of this evidence -- let

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alone all of this evidence -- the outcome of this case would have

been different."

We reject these contentions. The prisoner's discussion

flies in the face of the Supreme Court's admonition in Lockhart,

supra, that "an analysis focusing solely on mere outcome

determination, without attention to whether the result of the

proceeding was fundamentally unfair or unreliable, is defective."

We shall demonstrate that the criminal proceeding sentencing

defendant to death was not fundamentally unfair or unreliable,

and that the prisoner's assertions about the potential effects of

the omitted proof do not establish a "reasonable probability"

that the result of the proceeding would have been different, nor

any probability sufficient to undermine confidence in the

outcome. Therefore, any ineffective assistance of counsel did

not result in actual prejudice to the accused.
The jury was presented with the murder of an intoxicated,

elderly person in his own bedroom committed by a 31-year-old man.

The murder weapon was a tool customarily used to dig stumps. At

the time, defendant had been out of the penitentiary for only

seven months, released on parole for convictions of burglary and

grand larceny.

The accused was in the midst of a crime spree, preying upon

defenseless individuals. Following commission of these crimes of

murder and robbery in November 1985, the defendant savagely beat

an elderly woman about her head in March 1986, leaving her lying

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in the street unconscious with multiple injuries. At the time of

trial, she was in a nursing home "vegetating" from a brain injury

with no hope of recovery.

Upon being questioned in April and May 1986 about the

November 1985 crimes, the defendant admitted to the recent theft

of two motor vehicles. He also admitted setting fire to clothes

on the porch of a residence late one night in December 1985,

luring the occupant outside, and stabbing him with a knife in

order to rob him. The accused later was convicted of the vehicle

thefts and, at the time of trial for the present crimes, had been

convicted of an arson that took place in the city jail.
While held in jail on the present offenses, he related to a

police officer "that he wanted to just choke some of the guys in

the jail cell, and one day some had gone to the library and one

guy was laying on the bed, and he got the urge to just go over

and choke him. Another time he was playing cards and he thought

he could just hit someone and break that person's jaw without him

ever knowing what hit him."

The jury also heard that defendant had served time in the

penitentiary for an armed robbery committed when he was about 20

years old. The jury did not know of 14 criminal offenses

committed by defendant from 1966 to 1975.

Drawing on Strickland, we hold that, even assuming the

challenged conduct of counsel was unreasonable, the prisoner

"suffered insufficient prejudice to warrant setting aside his

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death sentence," 466 U.S. at 698-99, the predicate of which was

that there is a probability that he would commit criminal acts of

violence which would constitute a continuing serious threat to

society. The mitigation evidence that the prisoner says, in

retrospect, his trial counsel should have discovered and offered

barely would have altered the profile of this defendant that was

presented to the jury. At most, this evidence would have shown

that numerous people, mostly relatives, thought that defendant

was nonviolent and could cope very well in a structured

environment. Of course, those assumptions are belied by the

four-month crime spree beginning with the present crimes and by

the defendant's current attitude while in jail toward other

inmates.
What the Supreme Court said in Strickland applies with full

force here: "Given the overwhelming aggravating factors, there

is no reasonable probability that the omitted evidence would have

changed the conclusion that the aggravating circumstances

outweighed the mitigating circumstances and, hence, the sentence

imposed." 466 U.S. at 700. Indeed, disclosure of the

defendant's juvenile history might even have been harmful to his

case.

Unfortunately, the circuit court appears to have adopted a

per se approach to the prejudice element. The court opined that

"any evidence which might be favorable or mitigating can mean the

difference between `life or death'"; that "mitigating testimony

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is absolutely crucial and if none is offered, this amounts to

prejudice"; and that the accused "needed anything and everything

that might be available as favorable evidence to persuade the

jury to save his life. Anything less was not enough." This

demonstrates an emphasis on mere outcome determination, without

proper attention to whether the result of the criminal proceeding

was fundamentally unfair or unreliable.

In conclusion, employing the language of Strickland, the

prisoner "has made no showing that the justice of his sentence

was rendered unreliable by a breakdown in the adversary process

caused by deficiencies in counsel's assistance. [The prisoner's]

sentencing proceeding was not fundamentally unfair." 466 U.S. at

700.
Accordingly, the petition for a writ of habeas corpus, as

amended, will be denied.

Writ denied.

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