PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PAUL WARNER POWELL,
Petitioner-Appellant,
v.
No. 08-3
LORETTA K. KELLY, Warden,
Sussex I State Prison,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, Senior District Judge.
(1:07-cv-00059-TSE-TRJ)
Argued: December 3, 2008
Decided: April 15, 2009
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge Shedd wrote the major-
ity opinion, in which Judge Motz joined. Judge Gregory wrote
a separate opinion concurring in part and dissenting in part.
COUNSEL
ARGUED: Jonathan P. Sheldon, DEVINE, CONNELL &
SHELDON, P.L.C., Fairfax, Virginia, for Appellant. Kather-
ine Baldwin Burnett, OFFICE OF THE ATTORNEY GEN-
2 POWELL v. KELLY
ERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON
BRIEF: Robert L. Jenkins, Jr., BYNUM & JENKINS,
P.L.L.C., Alexandria, Virginia, for Appellant. Robert F.
McDonnell, Attorney General of Virginia, Jerry P. Slonaker,
Senior Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Vir-
ginia, for Appellee.
OPINION
SHEDD, Circuit Judge:
Paul Warner Powell, a Virginia capital inmate, appeals the
denial of his petition for a writ of habeas corpus. We granted
a certificate of appealability ("COA") on three issues: (1)
whether the imposition of a death sentence is precluded by the
Double Jeopardy Clause of the Fifth Amendment of the
United States Constitution; (2) whether trial counsel rendered
ineffective assistance by failing to object to the admission of
an inaccurate National Crime Information Center report; and
(3) whether trial counsel rendered ineffective assistance by
failing to develop and present available mitigating evidence.
For the following reasons, we affirm.
I.
A.
We begin with a summary of the facts pertaining to the
underlying crimes, as articulated by the Supreme Court of
Virginia in Powell’s first direct appeal:
"Powell was acquainted with Stacey Lynn Reed ("Stacey")
for two and a half years prior to the commission of the crimes
in question. Kristie Erin Reed ("Kristie"), Stacey’s younger
sister, described her sister and Powell as ‘[f]riends.’ Powell,
POWELL v. KELLY 3
who was 20 years old at the time of the murder, had wanted
to date Stacey, who was 16 years old, but recognized that she
was underage and he ‘could go to jail for that.’
"Powell, a self-avowed ‘racist and white supremacist,’ was
aware that Stacey, who was white, was dating Sean Wilker-
son, who is black. Wilkerson had recently moved to another
locality, but he and Stacey remained in contact. Stacey was a
member of her high school’s Junior Reserve Officer’s Train-
ing Corps and planned to attend a military ball with Wilker-
son.
"Just before noon on January 29, 1999, Stacey arrived
home from school early, having completed her examinations
that were being given that day. Powell was waiting for her at
her home when she arrived. When Powell learned that Robert
Culver, a friend of the girls’ mother, would be home shortly
for lunch, Powell left and returned at about 12:45 p.m., after
Culver had left. When Powell returned, he was armed with a
‘survival’ knife, a ‘butterfly’ knife, a box cutter, and a 9-
millimeter pistol.
"Stacey was talking to Wilkerson on the telephone. After
Stacey ended the telephone conversation, Powell confronted
her about her relationship with Wilkerson. He demanded that
Stacey end her relationship with Wilkerson. According to
Powell, he and Stacey argued, and the argument grew into a
struggle. Powell drew the survival knife from his belt and
Stacey ‘got stuck.’ Powell denied stabbing Stacey deliber-
ately. The struggle continued briefly until Stacey collapsed on
the floor in her sister’s bedroom.
"Although Powell did not know whether Stacey was still
alive, he made no effort to determine her condition or call for
medical assistance. Powell ‘wandered around the house, got
some iced tea, had a cigarette.’ Kristie arrived home from
school shortly after 3 p.m. and was met at the door of the
home by Powell. Powell told her that Stacey was in her room,
4 POWELL v. KELLY
but moments later Kristie discovered her sister’s body in Kris-
tie’s bedroom. She dropped her schoolbooks and began to cry.
"Powell ordered Kristie to go to the basement. Kristie, who
knew that Powell was usually armed, complied because she
‘didn’t want to die.’ In the basement, Powell ordered Kristie
to remove her clothes and to lie on the floor. Powell then
raped Kristie, and she ‘begg[ed] him not to kill her.’ Powell
later admitted that he knew that Kristie, who was 14 years old
at the time of the rape, had been a virgin.
"While Powell and Kristie were in the basement, Mark
Lewis, a friend of Kristie, came to the house and knocked on
the door. When Powell heard the knock, he tied Kristie’s legs
together and tied her hands behind her back with shoelaces he
cut from her athletic shoes. Powell then dressed and went
upstairs.
"While Powell was upstairs, Kristie managed to loosen the
bonds on her hands and attempted to ‘scoot across the floor
to hide’ under the basement steps. Hearing Powell coming
back to the basement, she returned to the position on the floor
where he had left her. Powell then strangled Kristie with a
shoelace and she lost consciousness. While she was uncon-
scious, Powell stabbed Kristie in the abdomen and slit her
wrists and throat.
"Powell returned upstairs, searching for ‘anything worth
taking.’ He fixed another glass of iced tea, which he took with
him when he left the home a short time later. Powell went to
a friend’s house and then drove with the friend to the District
of Columbia to buy crack cocaine.
"Kristie regained consciousness sometime after Powell had
left her home. About 4:10 p.m., she heard Culver return
home, and she called out his name. Culver discovered Kristie
in the basement, called the 911 emergency response telephone
number, and began rendering first aid to her. He later discov-
POWELL v. KELLY 5
ered Stacey’s body upstairs. Shortly thereafter, paramedics
arrived. In response to a question from one of them, Kristie
identified Powell as her attacker. Powell was arrested later
that day at the home of his friend’s girlfriend, where he and
the friend had gone after buying drugs.
"Kristie was transported by helicopter to Inova Fairfax
Hospital where she received treatment for her injuries. It was
ultimately determined that the wounds to her throat and abdo-
men each came within one centimeter of severing a major
artery which likely would have caused her death.
"An autopsy revealed that Stacey had died from a knife
wound to the heart. The medical examiner testified that there
was a single entrance wound and two exit wounds indicating
that the knife had been withdrawn, at least partially, and then
reinserted into the heart. One wound path pierced the left ven-
tricle and the other went through both the left and right ventri-
cles, exiting the heart at the back of the right ventricle.
"Stacey’s body also exhibited a number of bruises on the
head, chest, abdomen, back, arms, and legs, abrasions on the
face, a stab wound to the back, and a cut and scrapes on the
left forearm. The autopsy further revealed that Stacey had
been struck on the head with sufficient force to cause bleeding
inside her scalp and in the membranes surrounding her brain
prior to death. These injuries were not consistent with Stacey
merely having fallen during a struggle.
"The DNA profile obtained from the blood found on Pow-
ell’s survival knife was consistent with the DNA profile of
Stacey’s blood. The DNA profile obtained from sperm frac-
tions from swabs taken from Kristie’s vagina and perianal
area was the same profile as that obtained from Powell’s
drawn blood sample.
"While in jail, Powell wrote letters to friends in which he
admitted having committed the murder, rape, and attempted
6 POWELL v. KELLY
murder because of Stacey’s relationship with a black man. He
further claimed that he had planned to kill Stacey’s family and
steal the family’s truck. Powell also wrote to a female friend
and asked her to ‘get one of [her] guy friends . . . to go to a
pay phone and call Kristie and tell her [that] she better tell the
cops she lied to them and tell her [that] she better not testify
against me or she’s gonna die.’
"Powell told another inmate that he had become angry with
Stacey when she refused to have sex with him after talking to
Wilkerson. Powell told the inmate that he stabbed Stacey
twice and that when he attempted to cut Kristie’s throat, his
knife was too dull, ‘[s]o he started stepping on her throat try-
ing to stomp her throat.’ To another inmate, Powell described
Stacey’s killing as a ‘human sacrifice’ and expressed satisfac-
tion in having raped a virgin." Powell v. Commonwealth, 552
S.E.2d 344, 347-348 (Va. 2001) ("Powell I").
B.
In the original indictment, Powell was charged with a sin-
gle count of capital murder in which the gradation crime was
the commission, or attempted commission, of robbery.1 In
2000, Powell was convicted of the capital murder of Stacey
and sentenced to death. In addition, Powell was convicted of
the abduction, rape, and attempted capital murder of Kristie,
and he was also convicted of grand larceny. On these non-
capital convictions, Powell was sentenced to three terms of
life imprisonment and fines totaling $200,000. Powell was
acquitted of robbery, attempted robbery, and three firearm
charges.
In June 2001, the Supreme Court of Virginia reversed Pow-
1
Virginia’s capital murder statute includes fifteen gradation offenses,
which when accompanied with the "willful, deliberate, and premeditated
killing" of a person, make the defendant eligible for the death penalty. See
Va. Code § 18.2-31.
POWELL v. KELLY 7
ell’s capital murder conviction, holding that the trial judge
erred by allowing a pretrial amendment of the capital murder
indictment to charge two new gradation crimes that were not
considered by the grand jury. See Powell I, 552 S.E.2d at 355-
56. The additional gradation crimes were the commission, or
attempted commission, of rape and the commission, or
attempted commission, of sodomy. The court held that includ-
ing these additional counts of capital murder expanded the
nature and character of the charges against Powell in a man-
ner not allowed by Va. Code § 19.2-231. Id. at 357.2
Based on the circumstances then existing, the state supreme
court also concluded that there was no basis to try Powell for
capital murder on remand. Id. at 363. In making this determi-
nation, the court noted that Powell had been acquitted of rob-
bery or attempted robbery, thereby eliminating these offenses
from being gradation offenses for the capital murder charge.
Further, the court held that "the evidence was insufficient to
support [Powell’s] conviction for the capital murder of Stacey
‘during the commission of or subsequent to’ the rape of Kris-
tie" because the evidence clearly showed the rape of Kristie
occurred after the murder of Stacey. Id. at 361. Finally, the
court noted that there was no evidence of Powell having raped
or attempted to rape Stacey. Id. at 363.
C.
While awaiting retrial and believing that he could no longer
be tried for capital murder, Powell wrote the Common-
wealth’s Attorney and disclosed new evidence regarding the
circumstances surrounding Stacey’s death. In Powell’s second
2
Va. Code § 19.2-231 allows the government to amend an indictment to
correct a defect in the form of the indictment or a variance between the
allegations and the evidence offered in proof thereof, so long as the
amendment does not change the nature or character of the offense charged.
8 POWELL v. KELLY
direct appeal, the Supreme Court of Virginia summarized the
events as follows:3
"On October 21, 2001, Powell wrote an obscenity-laced let-
ter to the Commonwealth’s Attorney who had prosecuted
Powell in his first trial. Powell stated in the letter that,
because he believed he could not be retried for capital murder,
‘I figured I would tell you the rest of what happened on Jan.
29, 1999, to show you how stupid all y’all . . . are.’ Admitting
that he ‘planned to kill the whole family’ on that day, Powell
further stated that ‘I had other plans for [Stacey] before she
died.’ Powell described how he had attempted to initiate con-
sensual sexual intercourse with Stacey, which he had previ-
ously admitted. Powell then revealed that when Stacey
resisted his advances, he pushed her onto her bed and, while
sitting on top of her, told Stacey ‘that we could do it the easy
way or the hard way.’
"Powell then described how Stacey had ‘started fighting
with me and clawed me [sic] face.’ Powell stated that he
‘slammed her to the floor . . . sat on top of her and pinned her
hands down again.’ Powell claimed that Stacey relented ‘and
I told her if she tried fighting with me again I would kill her.’
"Continuing, Powell stated that, at his direction, Stacey
began to disrobe, but stopped when the telephone rang. Stacey
put her clothes back on so that she could answer the tele-
phone. Powell refused to allow Stacey to answer the tele-
phone and ordered her to resume disrobing. When she
refused, Powell ‘pushed her back and pulled out [his] knife.’
When Stacey attempted to leave the bedroom, Powell stabbed
her. Stacey fell back and Powell removed the knife. Stacey
then stumbled to another bedroom and collapsed. Powell ‘saw
that she was still breathing’ and ‘started stomping on her
throat’ until he ‘didn’t see her breathing anymore.’
3
For purposes of clarity, we have omitted any footnotes within this sum-
mary that are irrelevant to the disposition of the issues before us.
POWELL v. KELLY 9
"Armed with this new evidence, the Commonwealth
elected to nolle prosequi the indictment in the remanded case,
under which it was limited to trying Powell for first degree
murder under our mandate, and sought a new indictment
against Powell for capital murder. On December 3, 2001, the
grand jury returned an indictment charging Powell with the
capital murder of ‘Stacey Lynn Reed during the commission
of or subsequent to the attempted rape of Stacey Lynn Reed.’
"On April 24, 2002, Powell filed a motion to dismiss the
December 3, 2001 indictment. Powell asserted that ‘[w]hen
the Supreme Court of Virginia issues an opinion concerning
a case, this opinion becomes the law of the case’ and, thus,
the directive of the opinion and mandate from this Court in
his first appeal limited his retrial to a charge no greater than
first degree murder, regardless whether that trial was con-
ducted under the original indictment or a new indictment. The
Commonwealth filed a response to this motion, asserting that
the judgment of this Court in Powell’s first appeal was not
applicable to the December 3, 2001 indictment because Pow-
ell had ‘never [previously] been charged with the capital mur-
der of Stacey Reed in the commission or attempted
commission [of] sexual assault against [Stacey Reed] because,
at the time of [Powell’s first] trial, no such evidence existed.’
Accordingly, the Commonwealth contended that the Decem-
ber 3, 2001 indictment was ‘a new charge, one that has never
been litigated in trial nor considered by the Virginia Supreme
Court. Following a hearing on this and other pre-trial matters,
the trial court overruled Powell’s motion to dismiss the indict-
ment in an order dated May 6, 2002.
"On May 17, 2002, Powell filed a second motion to dismiss
the December 3, 2001 indictment. . . . The import of Powell’s
argument was that his prior trial and the reversal of his con-
viction by [the Supreme Court of Virginia] acted as an
‘implied’ or ‘judicial’ acquittal of the attempted rape of
Stacey, thus barring his retrial for her capital murder premised
on that gradation offense. The Commonwealth responded that
10 POWELL v. KELLY
the issue whether Stacey had been the victim of a sexual
assault was not before the jury in his first trial because the bill
of particulars provided at Powell’s request indicated that only
Kristie was the victim of the sexual assault gradation offenses
charged in the amended indictment. Similarly, the Common-
wealth contended that our comments concerning the insuffi-
ciency of the evidence to prove a sexual assault or attempted
sexual assault against Stacey were not directed toward any
finding of the jury, but to the contrary were indicative of the
fact that the jury did not consider whether Stacey had been the
victim of such an assault or attempt.
"On June 5, 2002, the trial court held a hearing on Powell’s
second motion to dismiss the indictment. After hearing argu-
ment, the trial court stated that by identifying Kristie as the
victim of the rape or attempted rape in the bill of particulars,
the Commonwealth had clearly identified her as the victim of
those gradation crimes in the amended indictment for capital
murder. The trial court also agreed with the Commonwealth
that this Court’s reference to the lack of evidence to prove any
sexual assault or attempted sexual assault against Stacey was
merely a comment on the record, and not an assertion that this
was a theory of the case presented by the Commonwealth in
Powell’s first trial. On July 3, 2002, the trial court entered an
order overruling Powell’s second motion to dismiss the indict-
ment." Powell v. Commonwealth, 590 S.E.2d 537, 544-545
(Va. 2004) ("Powell II").
D.
In January 2003, Powell was convicted of the capital mur-
der of Stacey during the commission of rape or attempted rape
of Stacey and sentenced to death. Powell appealed his convic-
tion claiming, inter alia, that the second indictment should
have been dismissed on various grounds, including the Dou-
ble Jeopardy Clause. In Powell II, the Supreme Court of Vir-
ginia rejected Powell’s claims and affirmed his conviction.
POWELL v. KELLY 11
Powell next challenged his conviction and sentence in col-
lateral state proceedings. See Powell v. Warden of Sussex I
State Prison, No. 042716, 2005 WL 2980756 (Va. 2005)
("Powell III"). Powell raised numerous claims that the state
supreme court found were procedurally defaulted, including
an allegation that the Commonwealth violated his right
against double jeopardy by trying him twice for the same
offense. Among the new claims Powell asserted was an objec-
tion to the admission of a National Crime Information Center
report ("NCIC report") containing inaccurate information
about Powell’s criminal history during sentencing and a claim
that his trial counsel provided him ineffective assistance by
failing to investigate and present compelling mitigating evi-
dence. The Supreme Court of Virginia denied relief on all
grounds. Subsequently, the state supreme court granted
rehearing on the question of whether counsel was ineffective
in the sentencing phase for failing to object to the NCIC
report. See Powell v. Warden of Sussex I State Prison, 634
S.E.2d 289 (Va. 2006) ("Powell IV"). Ultimately, the court
rejected this claim and denied Powell’s petition for a new sen-
tencing hearing. Id.
Thereafter, Powell filed a petition for a writ of habeas cor-
pus in federal district court. See 28 U.S.C.A. § 2254. Powell
asserted nine claims for relief. See Powell v. Kelly, 531
F.Supp.2d 695, 705 (E.D.Va. 2008) ("Powell V"). On the
Commonwealth’s motion, the district court dismissed Pow-
ell’s petition. As noted, we granted a COA on three issues: (1)
whether the imposition of a death sentence is precluded by the
Double Jeopardy Clause; (2) whether trial counsel was consti-
tutionally ineffective in failing to object to the admission of
an inaccurate NCIC report; and (3) whether trial counsel was
constitutionally ineffective in failing to develop and present
available mitigating evidence. We address each in turn.
12 POWELL v. KELLY
II.
A.
We review the district court’s dismissal of Powell’s petition
de novo. See Tucker v. Ozmint, 350 F.3d 433, 438 (4th Cir.
2003). However, under 28 U.S.C. § 2254, "the scope of our
review is highly constrained." Jackson v. Johnson, 523 F.3d
273, 276 (4th Cir. 2008). We may only grant Powell relief if
the state court’s adjudication of his claims (1) "resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States," 28 U.S.C.
§ 2254(d)(1); or (2) "resulted in a decision that was based on
an unreasonable determination of the facts in light of the evi-
dence presented in the State court proceeding," 28 U.S.C.
§ 2254(d)(2).
The "contrary to" and "unreasonable application" clauses of
§ 2254(d) have independent meanings. Tucker, 350 F.3d at
438. A state court’s decision is "contrary to" clearly estab-
lished federal law under § 2254(d)(1) when it "applies a rule
that contradicts the governing law set forth" by the United
States Supreme Court, or "confronts a set of facts that are
materially indistinguishable from a decision of . . . [the
Supreme] Court and nevertheless arrives at a result different
from . . . [that] precedent," Williams v. Taylor, 529 U.S. 362,
405-06 (2000).
A state court’s decision involves an "unreasonable applica-
tion" of clearly established federal law under § 2254(d)(1) "if
the state court identifies the correct governing legal rule from
. . . [the Supreme] Court’s cases but unreasonably applies it
to the facts of the particular state prisoner’s case." Williams,
529 U.S. at 407. This standard is quite deferential: "The state
court’s application of clearly established federal law must be
‘objectively unreasonable,’ and ‘a federal habeas court may
not issue the writ simply because that court concludes in its
POWELL v. KELLY 13
independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incor-
rectly.’" Robinson v. Polk, 438 F.3d 350, 355 (4th Cir. 2006)
(quoting Williams, 529 U.S. at 411). Moreover, when "assess-
ing the reasonableness of the state court’s application of fed-
eral law, the federal courts are to review the result that the
state court reached, not whether [its decision] [was] well rea-
soned." Wilson v. Ozmint, 352 F.3d 847, 855 (4th Cir. 2003)
(quotation marks omitted).
Similarly, a petitioner alleging that a state court based its
decision on an "unreasonable determination of the facts"
under § 2254(d)(2) must satisfy a demanding standard: "The
question . . . is not whether a federal court believes the state
court’s determination was incorrect but whether that determi-
nation was unreasonable — a substantially higher threshold."
Schriro v. Landrigan, 127 S.Ct. 1933, 1939 (2007). Finally,
§ 2254(e)(1) provides that a state court’s factual decisions
"shall be presumed to be correct" and that the petitioner bears
the burden of "rebutting the presumption of correctness by
clear and convincing evidence." 28 U.S.C § 2254(e)(1).4
B.
We begin with Powell’s double jeopardy claim. Powell
asserts two arguments in this regard. First, he contends that
the gradation offenses charged at both trials were the same –
that is, he was tried for capital murder during the rape or
attempted rape of Stacey in both trials. Alternatively, if we
decide the same offense was not charged in both trials, Powell
nevertheless argues that the crime charged in the second trial
had actually been litigated in the first trial, even if not for-
4
Moreover, in cases proceeding under either § 2254(d)(1) or
§ 2254(d)(2), we can only grant the petitioner relief if the error had "a sub-
stantial and injurious effect or influence in determining the jury’s verdict."
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation marks omit-
ted).
14 POWELL v. KELLY
mally charged. Conversely, the Commonwealth argues that
the capital murder charges were different in each trial – that
is, Powell was charged with the capital murder of Stacey dur-
ing the rape or attempted rape of Kristie in the first trial and
charged with the capital murder of Stacey during the rape or
attempted rape of Stacey in the second trial.
The Double Jeopardy Clause prohibits any person from
being put in jeopardy twice for the same offence. See U.S.
Const. amend. V. The Supreme Court held in Sanabria v.
United States, 437 U.S. 54, 64 (1978) (citing Ball v. United
States, 163 U.S. 662, 670 (1896)), that the Fifth Amendment
prohibits subjecting a defendant to a second trial on the same
offense for which he has been acquitted. In Sanabria, the
Court stated that when a defendant is charged with several
violations of the same criminal statute, the appropriate double
jeopardy inquiry is whether the legislature intended the
charged violations to be separate "allowable unit[s] of prose-
cution." Id. at 70. Stated differently for purposes of this case,
the issue is whether the Virginia legislature intended that a
defendant could be charged with multiple counts of capital
murder where there is one murder victim accompanied by
multiple gradation offenses.
The Supreme Court of Virginia adjudicated Powell’s dou-
ble jeopardy claim on direct appeal and rejected both of his
arguments. Powell II, 590 S.E.2d 537. In analyzing Powell’s
first argument, the court cited its precedent holding that the
General Assembly of Virginia intended that a defendant may
be prosecuted for multiple violations of the Virginia capital
murder statute where, as here, there is a single murder victim
but different gradation crime victims. Id. at 553 (citing Payne
v. Commonwealth, 509 S.E.2d 293 (Va. 1999)). The state
court found that the capital murder charge in the second trial
alleging the murder of Stacey and attempted rape of Stacey
was a distinct and separate crime from the offense charged in
the first trial – namely, the capital murder of Stacey during the
commission of, or subsequent to, Powell’s rape of Kristie.
POWELL v. KELLY 15
The court concluded that Powell’s second capital murder trial
was not barred by the Double Jeopardy Clause.
As to Powell’s first argument, we hold that the Virginia
Supreme Court’s decision was consistent with Supreme Court
precedent and was not an unreasonable application of federal
law. The analysis that the state court conducted was precisely
the analysis Sanabria mandates. Therefore, the decision was
not contrary to clearly established federal law. Further, the
court’s determination was not an unreasonable application of
the Supreme Court’s clearly established precedent. Sanabria
requires a court to determine whether the legislature intended
to allow multiple charges under the statute. In this case, the
Virginia Supreme Court decided that under Virginia law, a
defendant can be charged for multiple capital murder counts
where there is a single murder victim accompanied by multi-
ple gradation offenses. Id. Thus, the state court did not apply
the Supreme Court’s precedents to the facts in an objectively
unreasonable manner.
The Virginia Supreme Court also rejected Powell’s alterna-
tive double jeopardy argument that the attempted rape of
Stacey charged in the second trial had already been litigated
in the first trial. The court relied on settled state law that
Stacey’s attempted rape was not at issue in the first trial
because the Commonwealth’s bill of particulars limited the
first trial solely to the capital murder of Stacey subsequent to,
or in the commission of, the rape of Kristie. See Powell II,
590 S.E.2d at 554 (holding that "by naming a specific victim
of the gradation offense in a bill of particulars, jeopardy will
attach only to the capital murder charge as made specific by
the bill of particulars").5 In reaching this result, the court fol-
5
A defendant does not have a right to a bill of particulars in Virginia.
See Quesinberry v. Commonwealth, 402 S.E.2d 218, 223 (Va. 1991)
(holding whether the Commonwealth is required to file a bill of particulars
lies within the discretion of the trial court). Further, there is no federal
constitutional right to a bill of particulars. See United States v. Bales, 813
16 POWELL v. KELLY
lowed its precedent holding that "the bill of particulars and
the indictment must be read together" as specifying the crime
charged. See Livingston v. Commonwealth, 36 S.E.2d 561,
565 (Va. 1946). The court recognized that the original indict-
ment in the first trial did not identify the name of the victim
of the gradation offense. However, upon Powell’s request, the
Commonwealth specified in a bill of particulars that the
charged offense only involved Kristie as the victim of the gra-
dation offense. Thus, the court concluded that Powell was
only tried in the first trial for the capital murder of Stacey dur-
ing the commission of, or subsequent to, the rape of Kristie.
See Powell II, 590 S.E.2d 537. Based on established state law
principles, the court ruled that Powell’s second trial was not
a double jeopardy violation because the indictment in the sec-
ond trial charged a crime not charged in the first trial.
Powell argues that this holding was an unreasonable deter-
mination of the facts in light of the evidence presented at trial.
He claims, among other arguments, that the bill of particulars
did not limit the charge because the jury heard argument from
the prosecutor that Powell "wanted something more" from
Stacey, the jury heard testimony from witnesses suggesting
that Stacey refused to have sex with Powell, and the jury was
not told about the limitation of the bill of particulars.
F.2d 1289 (4th Cir. 1987) (internal citations omitted). The purpose of a
bill of particulars is "to state sufficient facts regarding the crime to inform
an accused in advance of the offense for which he is to be tried." Quesin-
berry, 402 S.E.2d at 223 (citing Hevener v. Commonwealth, 54 S.E.2d
893, 899 (Va. 1949)). Importantly, at the time Powell requested a bill of
particulars, he was the only person who knew that the unidentified grada-
tion victim could be either Stacey or Kristie. Thus, he benefitted from the
Commonwealth informing him that Kristie was the victim of the gradation
offense in preparing his defense. Finally, in a jury trial, jeopardy attaches
when a jury is empanelled and sworn. Serfass v. United States, 420 U.S.
377, 388 (1975) (citing Downum v. United States, 372 U.S. 734 (1963)).
It is clear that at the time the jury was sworn in Powell’s first trial, Powell
was only in jeopardy, so far as is relevant here, for the murder of Stacey
during the rape of Kristie as specified by the bill of particulars.
POWELL v. KELLY 17
Powell’s argument falls short of showing an unreasonable
determination of the facts in light of the evidence presented.
First, under settled Virginia precedent, the court determined
that, as a matter of state law, Powell was not charged with the
attempted rape of Stacey in the first trial. Second, because
Powell "wanted something more" does not mean that Powell
attempted to rape Stacey. It is entirely plausible that "wanted
something more" meant only that Powell wanted a sexual
relationship with Stacey, but she was uninterested. This is not
a basis for a charge of attempted rape. Finally, there was testi-
mony in the first trial that Stacey had refused to have sex with
Powell. Again, rejecting sexual advances, without more, is not
evidence of an attempted rape. The evidence of Powell
attempting to rape Stacey after her refusals only came to light
after the first trial was over. If the Commonwealth had been
prosecuting Powell for this gradation offense, it would not
have restricted the bill of particulars to identifying only Kris-
tie as the victim of the gradation offense. Clearly, the state
court’s determination that the charge that Powell had
attempted to rape Stacey was not litigated in the first trial was
not an unreasonable determination of the facts in light of the
evidence presented.6 Accordingly, we find no error in the state
6
The dissent’s criticism of our decision rests on a misunderstanding of
the facts of this case. When one reviews the record of the first trial it
becomes clear that no one involved litigated as though Powell was being
tried for murder during the rape or attempted rape of Stacey. The Com-
monwealth certainly did not offer evidence on that purported charge dur-
ing that trial. Moreover, the bill of particulars unambiguously identified
Kristie only as the victim of the rape or attempted rape, and Powell’s trial
counsel clearly recognized this fact as evidenced by their comments to the
court and to the jury. See, e.g., Record, Vol. 2, at 1068 ("The rape
involved Kristi[e], not Stac[ey]"); Record, Vol. 2, at 1052 ("Stac[ey] is the
victim or alleged victim on the capital murder, the robbery, and the
attempted robbery. And . . . Kristi[e] the victim or alleged victim on rape
. . ."); Record, Vol. 2, at 995 ("and on the rape allegation, obviously, Kris-
ti[e] Reed"); Record, Vol. 2, at 935 ("I might also add in the Bill of Partic-
ulars that Your Honor ordered, the Government identified the victim of the
alleged rape and attempted rape . . . as being Kristie, not Stac[ey], but
Kristie").
18 POWELL v. KELLY
court’s application of federal law.7
C.
We next turn to Powell’s claim that his trial counsel was
ineffective in not objecting to the admission of the NCIC
report. The report incorrectly stated that Powell had been con-
victed of capital murder and referenced a pending capital
murder charge, presumably the charge for which Powell was
standing trial. Finally, the report contained correct entries that
Powell asserts were inadmissible at trial, such as charges that
were nolle prossed or for which Powell was found not guilty.
In Strickland v. Washington, 466 U.S. 668 (1984), the
Supreme Court articulated the relevant standard for a claim of
ineffective assistance of counsel:
A convicted defendant’s claim that counsel’s assis-
tance was so defective as to require reversal of a
conviction or death sentence has two components.
The trial judge likewise recognized this fact. For example, the trial
judge instructed the jury that "[s]exual intercourse means an actual pene-
tration, no matter how slight, of the Defendant’s penis into the sexual
organ of Kristi[e] Reed." Record, Vol. 2, at 1024-25. Although the dissent
contends that the trial judge’s response to the jury question suggests that
he was confused as to the identity of the rape victim, the proceedings that
followed the receipt of the question demonstrate that the judge was not
confused on that point. It is clear that the trial judge was not concerned
with who the victim of the rape was; instead, he was concerned with the
timing of the rape of Kristie and whether the murder of Stacey could be
found to have occurred "subsequent to" or "during the commission of" the
rape of Kristie. See J.A. 53-55, 62.
7
Related to his double jeopardy claim, Powell argues that his second
trial is barred by principles of collateral estoppel. See Ashe v. Swenson,
397 U.S. 436, 443 (1970). Although the state argues this claim is proce-
durally defaulted, we find that it lacks merit in any event. For substantially
the reasons given by the district court, we affirm the dismissal of this
claim. See Powell V, 531 F.Supp.2d at 724-25.
POWELL v. KELLY 19
First, the defendant must show that counsel’s perfor-
mance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defen-
dant by the Sixth Amendment. Second, the defen-
dant must show that the deficient performance
prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reli-
able. Unless a defendant makes both showings, it
cannot be said that the conviction or death sentence
resulted from a breakdown in the adversary process
that renders the result unreliable.
Id. at 687.
The Supreme Court of Virginia found, in its first opinion
denying Powell’s state habeas petition, that there was a single
capital murder conviction entry listed on the NCIC report.
Powell III, 2005 WL 2980756, at 14. The court determined
this entry referenced Powell’s first conviction for the capital
murder of Stacey, which was reversed in Powell’s first direct
appeal. Id. Powell petitioned the court for rehearing on this
issue and the court granted his motion. See Powell IV, 634
S.E.2d 289. On rehearing, the court found that there was an
additional incorrect capital murder conviction entry in the
NCIC report that referred to Powell’s conviction for the
attempted capital murder of Kristie. After acknowledging
these errors, the court found that there was no valid claim for
ineffective assistance of counsel under Strickland because
Powell could not demonstrate prejudice. Id. at 299.
Powell contends that the state court’s interpretation of the
inaccuracies in the report is itself error because the court’s
determinations of what the state capital convictions actually
meant was based on speculation. However, Powell’s argu-
ments fails. We must presume the correctness of a state
court’s factual determination unless the habeas petitioner
20 POWELL v. KELLY
rebuts the presumption of correctness by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1). Powell has offered no clear
and convincing evidence to rebut the presumption of correct-
ness that we afford the state court’s factual findings.
Next, Powell contends that the state court unreasonably
applied Strickland because he has shown that his trial counsel
was ineffective in failing to object to the NCIC report. We
disagree. Under Strickland, Powell must show that "there is
a reasonable probability that, absent the errors, the sentencer
. . . would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death." Strickland,
466 U.S. at 695. Stated differently, Powell can show prejudice
and is entitled to relief only if he can show that had the NCIC
report not been admitted, "there is a reasonable probability
that at least one juror would have struck a different balance."
Wiggins v. Smith, 539 U.S. 510, 537 (2003). Absent this
showing, Powell is not entitled to relief.
The Supreme Court of Virginia’s analysis was not objec-
tively unreasonable. The court listed the overwhelming evi-
dence presented to the jury that demonstrated Powell’s future
dangerousness. This evidence included, inter alia: 1) the hei-
nous details of the crimes; 2) the letter Powell wrote to the
prosecutor following the first trial divulging of the circum-
stances of Stacey’s attempted rape and death; 3) a taunting
letter Powell wrote to Stacey’s mother;8 4) another letter Pow-
ell wrote to the Commonwealth’s Attorney stating that he
wanted to get out of prison to "kill . . . everybody else in this
f[**]ked up country that’s not white;" 5) a letter Powell wrote
asking a friend to threaten Kristie; and 6) Powell’s admission
8
While incarcerated, Powell sent a letter to Lorraine Reed, the mother
of Stacey and Kristie. Powell enclosed a photograph of a woman who
resembled Stacey and who was naked from the waist up. Among other
things, Powell asked Lorraine for her help in indentifying who the woman
in the picture resembled, directed Lorraine to ask Kristie for help if she
could not determine who it resembled, and asked Lorraine to give his
address to the person about whom he was referring.
POWELL v. KELLY 21
to police that he wanted to "[k]ill a lot of somebodies . . .
[j]ust for something to do." See Powell IV, 634 S.E.2d at 290-
94. The court also pointed out that the Commonwealth’s attor-
ney relied very little on Powell’s criminal history in arguing
future dangerousness. See Id. at 297. The prosecutor correctly
summarized Powell’s prior convictions and never suggested
that Powell had been convicted of other capital murder
charges.
The state court balanced the aggravating evidence against
the limited use of the NCIC report and noted that "a verdict
or conclusion only weakly supported by the record is more
likely to have been affected by errors than one with over-
whelming record support." Id. at 298 citing Strickland, 466
U.S. at 696. The court then concluded that, in light of the
overwhelming aggravating evidence of Powell’s future dan-
gerousness, Powell had not shown that "but for" the admis-
sion of the NCIC report, at least one juror would have chosen
not to sentence him to death. Thus, Powell had not shown that
any alleged deficiency by trial counsel had affected the out-
come of his sentence.
Powell’s ineffective assistance of counsel claim fails. The
state court properly applied Strickland to the facts of this case.
First, it is reasonable to believe the jury understood Powell
had not previously been convicted of the capital murder of
two other victims in addition to Stacey. The jury knew Pow-
ell’s previous conviction of the capital murder of Stacey had
been successfully appealed and vacated based on the contents
of Powell’s letter to the Commonwealth’s attorney. Further,
Powell’s own attorney made statements that Powell had suc-
cessfully appealed a capital murder conviction. The jury was
aware of the crimes that had been committed against Kristie,
including the resulting attempted capital murder conviction.
See id. Thus, it is reasonable that the jury, upon seeing the
two entries for capital murder, would understand that the
NCIC report’s entries were inaccurate and actually referred to
22 POWELL v. KELLY
the attempted capital murder of Kristie and the vacated con-
viction for the capital murder of Stacey.
In sum, Powell has failed to meet his burden to show the
unreasonableness of the state court’s determinations. We con-
clude that the state court’s determination that Powell had not
shown prejudice is not an unreasonable application of
Supreme Court precedent or based on an unreasonable deter-
mination of the facts in light of the evidence presented at trial.
Therefore, we affirm the dismissal of this claim.9
D.
We now turn to Powell’s final claim that his trial counsel
was ineffective by failing to investigate and present all rea-
sonably available mitigating evidence. Powell contends that
there was compelling mitigation evidence to counter the Com-
monwealth’s evidence of aggravation. Powell maintains that
counsel failed to counter the Commonwealth’s arguments
that, inter alia, he: held racist beliefs and tortured animals;
was inherently violent; had no remorse; and was of above
average intelligence. Generally, Powell contends that counsel
was ineffective in failing to offer the following evidence: that
9
Powell asserts three other reasons that the state court unreasonably
applied federal law. First, Powell argues the state court failed to consider
the totality of the evidence in performing its prejudice analysis. Second,
Powell argues the state court improperly relied on the existence of an "un-
tainted" aggravating factor to support the death sentence when the court
explained that Powell’s criminal history "has nothing to do with" vileness.
We have reviewed the record in this regard and find no basis for relief.
Finally, Powell argues that the state court unreasonably applied Strick-
land by using an improperly elevated standard of prejudice. The state
court described Strickland’s standard as "highly demanding." Powell IV,
634 S.E.2d at 296 quoting Kimmelman v. Morrison, 477 U.S. 365, 382
(1986). Powell’s argument in this regard is not persuasive. In reviewing
the state court’s opinion, it is clear that it did not require a more demand-
ing showing under Strickland; rather, the court was simply commenting
that the standard was high and Powell had not met it.
POWELL v. KELLY 23
Powell made racist statements for their shock value on listen-
ers, rather than as expressions of true beliefs; that he was
actually kind to animals; that he had never been inherently
violent; that numerous persons witnessed him showing seri-
ous remorse for his crime; and that he is not of above average
intelligence.
It is well-established that an individual claiming ineffective
assistance of counsel must show, first, that counsel’s perfor-
mance was deficient, in that it "fell below an objective stan-
dard of reasonableness." Strickland, 466 U.S. at 688. Once
counsel conducts a reasonable investigation of law and facts
in a particular case, his strategic decisions are "virtually
unchallengeable." Id. at 690. Tactical or reasonable profes-
sional judgments are not deficient but a failure to investigate
a material matter due to inattention may be deficient. When
the claim is that counsel failed to present a sufficient mitigat-
ing case during sentencing, the inquiry "is not whether coun-
sel should have presented a mitigation case" but "whether the
investigation supporting counsel’s decision not to introduce
mitigating evidence . . . was itself reasonable." See Wiggins,
539 U.S. at 523 (internal citations omitted).
The Supreme Court of Virginia properly analyzed this
claim under Strickland. Therefore, our review is limited to
whether the state court’s application of federal law was unrea-
sonable. The Supreme Court of Virginia examined each claim
and properly made a determination under Strickland of
whether Powell had shown deficiency of counsel’s perfor-
mance and prejudice. We have examined each of Powell’s
contentions and find that the state court’s determinations were
not an unreasonable application of Strickland. Therefore, we
affirm the dismissal of this claim.
III.
Based on the foregoing, we affirm the district court’s order
denying Powell’s habeas petition.
AFFIRMED
24 POWELL v. KELLY
GREGORY, Circuit Judge, concurring in part and dissenting
in part:
I concur with the reasoning of the majority’s opinion on
Powell’s ineffective assistance of counsel claims. However, I
find nothing reasonable about the Supreme Court of Virgin-
ia’s finding in Powell II that the bill of particulars nullified
the Commonwealth’s conduct at Powell’s first trial. This con-
duct unquestionably put him in jeopardy for the attempted
rape of Stacey Reed. Even taking into account the nearly
insurmountable burden placed on Powell by virtue of the
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), I am left with the firm conclusion that the
Supreme Court of Virginia’s post-hoc rationalization in Pow-
ell II is an unreasonable determination of the facts in light of
the evidence presented, and thus Powell’s conviction for capi-
tal murder must be reversed.
The Fifth Amendment to the United States Constitution
provides that no "person be subject for the same offense to be
twice put in jeopardy of life or limb." There can be no doubt
that Powell was actually put in jeopardy for the gradation
offense of the attempted rape of Stacey during the first trial,
and thus his second capital murder trial violated the Double
Jeopardy Clause. Although the bill of particulars purportedly
identified Kristie Reed as the victim of the gradation offense,
the Commonwealth nevertheless argued throughout the first
trial that Powell attempted to rape Stacey prior to her murder.
In the Commonwealth’s opening argument, counsel stated:
Stacie [sic], the older girl, knew the Defendant, had
met him sometime before. They had a friendship, a
social acquaintance. You’ll hear evidence that he
wanted more from her than that. You’ll hear evi-
dence that she was cool towards him.
....
POWELL v. KELLY 25
. . . And on the afternoon of the 29th, there was
nobody home with Stacie [sic] when he came over
and they argued about this boy that she was dating.
And he wanted something from her and she wasn’t
going to give it to him and for that she lost her life.
(J.A. 24-25 (emphasis added).) During the trial, the Common-
wealth put on circumstantial evidence suggesting that Powell
had attempted to rape Stacey, and even argued as much to the
trial court. In response to Powell’s motion to strike the indict-
ment for insufficiency of the evidence, counsel argued that
[W]e have evidence here, again, from Mr. Neff that
according to him [Powell] was having sex or
attempting to have sex with Stacie [sic] when the
phone rang. When she got up and answered the
phone, then she wanted nothing to do with him, and
at that point in time he got mad and said —the testi-
mony was, he said, "It was that nigger, wasn’t it?"
He pulled out his knife and stabbed her.
Again, evidence, in that regard of his intent to rape
and have sex and wanting sex.
(J.A. 43 (emphasis added).) Furthermore, the Commonwealth
elicited testimony from Officer Daigneau, who testified that
a physical evidence recovery kit had been obtained from
Stacey and such kits are "routinely done in cases of sexual
assault." (J.A. 29; see also J.A. 29-31.)
Tellingly, at no time during the trial did the Commonwealth
ever specifically identify Kristie as the victim of the gradation
offense.1 Nor did the trial court make any attempt to clarify
1
While the majority points out that the evidence presented by the Com-
monwealth during the first trial was "not a basis for a charge of attempted
rape" (Maj. Op. 17), that analysis conflates the issue of whether an indi-
vidual was put in jeopardy for an offense with the issue of whether the
prosecution put on sufficient evidence to convict an individual for that
offense. The Commonwealth did not fail to prosecute Powell for the
attempted rape of Stacey, it just failed to do so successfully, and the
majority misses that point in its analysis.
26 POWELL v. KELLY
that the bill of particulars identified Kristie as the victim of
the gradation offense. In its instructions to the jury, the trial
court stated that
[t]he Commonwealth must prove beyond a reason-
able doubt each of the following elements of that
crime:
1. That the defendant killed Stacie [sic] Reed; and
2. That the killing was willful, deliberate and pre-
meditated; and
3. That the killing occurred during the commission
of robbery and/or attempted robbery and/or during
the commission of, or subsequent to rape.
(J.A. 59 (emphasis added).) With regard to first-degree mur-
der, the trial court gave similarly broad instructions:
If you find from the evidence that the Common-
wealth has failed to prove that the killing was delib-
erate and premeditated, but the killing was willfully
committed during the commission of robbery or
attempted robbery and/or rape or attempted rape,
you shall find the defendant guilty of first degree
murder.
(J.A. 60 (emphasis added).) Given the lack of specificity in
the jury instructions, it is not surprising that during delibera-
tions the jury asked: "Can a guilty verdict for the rape of Kris-
tie be used to satisfy jury instruction number 4, element 3?"2
2
In fact, the trial judge initially indicated that the answer to this question
was "no." (J.A. 53.) Such an answer would only make sense if the judge
thought that the attempted rape of Stacey would satisfy the requirement of
the gradation offense and that the jury could convict Powell of that
offense.
POWELL v. KELLY 27
(J.A. 62.) The fact that the jury needed to ask this question
demonstrates that the jury was unaware that the bill of partic-
ulars identified Kristie as the sole victim of the gradation
offense, and it further implies that the jury was considering
the rape or attempted rape of both Stacey and Kristie in reach-
ing its verdict.
On appeal, the Supreme Court of Virginia itself recognized
that Powell had been put in jeopardy for the rape or attempted
rape of Stacey, and indeed based its decision in part on that
finding. See Powell I, 552 S.E.2d at 363. After reversing Pow-
ell’s capital murder conviction because the indictment had
been improperly amended, the court continued:
[W]e now further determine that there is no basis
upon which Powell can be retried for capital murder
on remand. The poll of the jury establishes that Pow-
ell was acquitted of the charge of capital murder in
the commission of robbery or attempted robbery. It
is equally clear that there is simply no evidence upon
which the jury could have relied to find that Powell
committed or attempted to commit any sexual assault
against Stacey before or during her murder, or that
the rape of Kristie did not occur after the murder of
her sister. . . .
For these reasons, we will reverse Powell’s convic-
tion for capital murder, affirm his convictions for
abduction, rape, attempted capital murder, and grand
larceny, and remand the case for a new trial on a
charge of no greater than first degree murder for the
killing of Stacey Reed, if the Commonwealth be so
advised.
Id. (emphasis added). It is perplexing that the Supreme Court
of Virginia would have made such a finding if, in fact, the
rape or attempted rape of Stacey had not been litigated in the
first trial.
28 POWELL v. KELLY
In affirming Powell’s capital murder conviction in Powell
II, however, the Supreme Court of Virginia reversed course.
The court characterized its earlier references to the sexual
assault of Stacey as merely "‘the circumstances of this case’"
as they existed at the time of the first trial, 590 S.E.2d at 552
(quoting Powell I, 552 S.E.2d at 363). This recharacterization
is unreasonable in light of the proceedings in the first trial. At
every turn, the Commonwealth, the trial court, the jury, and
even the Supreme Court of Virginia acted as though Powell
were on trial for the murder of Stacey in the commission of
any rape or attempted rape, and not specifically on trial for the
murder of Stacey in the commission of the rape of Kristie.
Like the Supreme Court of Virginia, the majority claims
that "no one involved litigated as though Powell was being
tried for murder during the rape or attempted rape of Stacey."
(Maj. Op. 17 n.6.) Yet, the majority provides no explanation
for why the Commonwealth elicited testimony that police
officers performed a physical evidence recovery kit on Stacey
or made intimations that Powell attempted to sexually assault
Stacey. (See J.A. 29, 24-25.) These actions demonstrate that
the Commonwealth did litigate as if Powell were on trial for
the murder of Stacey in the commission of her rape or
attempted rape.
In further support of its finding that Powell had not already
been put in jeopardy for the rape or attempted rape of Stacey,
the Supreme Court of Virginia found that the bill of particu-
lars served to narrow the offense of jeopardy to include only
the rape of Kristie:
[W]here, prior to the attachment of jeopardy, the
Commonwealth limits the prosecution of a capital
murder, undifferentiated in the indictment by the
identity of the victim of the gradation offense, by
naming a specific victim of the gradation offense in
a bill of particulars, jeopardy will attach only to the
POWELL v. KELLY 29
capital murder charge as made specific by the bill of
particulars.
Powell II, 590 S.E.2d at 554. The majority now relies on this
holding in finding that the Supreme Court of Virginia com-
mitted no reversible error in its application of federal law.
(See Maj. Op. 15-17.)
Even assuming that this holding is not unreasonable as a
matter of law, it overlooks the fact that the Commonwealth
did not actually limit its prosecution for capital murder to the
rape of Kristie. Moreover, neither the prosecution nor the trial
court ever specified to the jury that the bill of particulars iden-
tified Kristie as the victim of the gradation offense. Had the
trial court excluded evidence suggesting that Powell had
attempted to rape Stacey or clarified that the attempted rape
of Stacey could not satisfy the requirements of the gradation
offense, the Commonwealth would have a stronger argument
that the bill of particulars had a limiting effect—but that is not
the case here. Instead, the bill of particulars operated as a
double-edged sword for Powell: on one hand, the Common-
wealth ignored its import in putting on circumstantial evi-
dence suggesting that Powell had sexually assaulted Stacey
before her murder, while on the other hand the Common-
wealth was able to use the bill of particulars as a safety valve
to later retry Powell for capital murder when new evidence
came to light.
Notwithstanding the above analysis, the majority concludes
that the rape or attempted rape of Stacey was somehow not
litigated because Powell’s trial counsel "clearly recognized"
the limiting effect of the bill of particulars, "as evidenced by
their comments to the court and to the jury." (Maj. Op. 17
n.6.) Again, the majority misses the point. I agree that Pow-
ell’s trial counsel understood that the bill of particulars should
limit the prosecution of the gradation offense. Indeed, Pow-
ell’s trial counsel submitted proposed jury instructions speci-
fying that Kristie was the victim of the gradation offense. (R.
30 POWELL v. KELLY
vol. 21 at 1213.) The problem is that despite counsel’s exhor-
tations, the trial court did not use the proposed jury instruc-
tions or otherwise clarify this point to the jury.
Finally, the majority contends that the trial judge impliedly
recognized the effect of the bill of particulars when he
instructed the jury that "[s]exual intercourse means an actual
penetration, no matter how slight, of the Defendant’s penis
into the sexual organ of Kristi[e] Reed." (R. vol. 20 at 1024-
25.) But the majority takes this instruction out of context.
Along with capital murder, Powell was charged with the rape
of Kristie. It was in instructing the jury on this latter charge
that the trial judge used the phrase "sexual intercourse."3 (R.
vol. 20 at 1020.) Thus, when the trial judge clarified the defi-
nition of sexual intercourse, it was for the purposes of the rape
charge, which specified Kristie as the victim, and not the capi-
tal murder charge, which did not specify Kristie as the victim.
Undoubtedly, the crimes committed by Paul Powell were
atrocious. Given the explicit details revealed by Powell in his
letter to the Commonwealth’s attorney, one understands the
strong inclination to prosecute Powell for those heinous acts.
Yet, it is in these very cases that we must be most vigilant in
protecting our long-standing constitutional guarantees. The
Double Jeopardy Clause makes no distinction between the
innocent and the guilty, nor any exception based on the sever-
ity of the offense or the personal attributes of the accused. In
3
The trial judge gave the following instructions on the rape charge: "The
Commonwealth must prove beyond a reasonable doubt each of the follow-
ing elements of th[e] crime [of rape]: One, that the Defendant had sexual
intercourse with Kristi[e] Reed; and two, that it was against her will and
without her consent; and three, that it was by force, threat, or intimida-
tion." (R. vol. 20 at 1020.) By contrast, the trial judge gave the following
instructions on the capital murder charge: "The Commonwealth must
prove beyond a reasonable doubt each of the following elements of th[e]
crime [of capital murder]: . . . 3. That the killing occurred during the com-
mission of robbery and/or attempted robbery and/or during the commis-
sion of, or subsequent to rape." (J.A. 59.)
POWELL v. KELLY 31
finding that the attempted rape of Stacey had not been liti-
gated in the first trial, the Supreme Court of Virginia made an
unreasonable determination of the facts in light of the conduct
of all parties involved in that trial. This determination had the
unconstitutional effect of permitting the Commonwealth to try
Powell a second time in violation of his Fifth Amendment
rights. Given this outcome, Powell’s second capital murder
conviction should not stand, and I must dissent.