VIRGINIA:
In the Supreme Court of Virginia held at the Supreme
Court Building in the City of Richmond, on Thursday, the
3rd day of March, 2005.
Christopher Scott Emmett, Petitioner,
against Record No. 031201
Warden of the Sussex I
State Prison, Respondent.
Upon a Petition for Writ of Habeas Corpus
Upon a Rehearing
In a petition for writ of habeas corpus, the
petitioner, Christopher Scott Emmett, claimed, among other
things, that he was denied effective assistance of counsel
in his capital murder trial because his trial counsel failed
to object to a penalty phase verdict form. 1 Relying on this
Court’s decision in Atkins v. Commonwealth, 257 Va. 160, 510
S.E.2d 445 (1999), Emmett asserted that the verdict form was
incomplete because it did not include an option requiring a
sentence of life imprisonment upon a finding that the
Commonwealth had proven neither the “future dangerousness”
nor the “vileness” aggravating factor. Applying the two-
part test set forth in Strickland v. Washington, 466 U.S.
668, 687 (1984), we concluded, in an order dated June 4,
2004, that trial counsel’s performance was deficient by
failing to object to an incomplete verdict form but that
Emmett suffered no prejudice because the jury found that the
1
This Court previously affirmed Emmett’s convictions
for robbery and capital murder and upheld the sentence of
death. Emmett v. Commonwealth, 264 Va. 364, 569 S.E.2d 39
Commonwealth had proven both aggravating factors beyond a
reasonable doubt. 2 Thus, the jury would not have had any
occasion to consider imposing the mandatory sentence of life
when neither aggravating factor was established. We
subsequently granted a petition to rehear filed by the
respondent, Warden of the Sussex I State Prison (Warden), on
the question whether trial counsel’s performance was
deficient. 3
At issue in Emmett’s habeas petition and in this
rehearing is the following penalty phase verdict form
provided to the jury:
VERDICT FORM
(The foreperson should initial the line for each
finding made unanimously by the jury.)
(1) We, the jury, on the issue joined, having found
the defendant guilty of capital murder in the
commission of robbery of John Fenton Langley and
___ a) find beyond a reasonable doubt that
after consideration of his prior history
that there is a probability that he
would commit criminal acts of violence
that would constitute a continuing
serious threat to society;
and/or
b) find beyond a reasonable doubt that
his conduct in committing the offense
is outrageously and wantonly vile,
horrible or inhuman in that it involved
(2002), cert. denied, 538 U.S. 929 (2003).
2
The June 4, 2004 order also disposed of Emmett’s
other claims and dismissed his petition for writ of habeas
corpus.
3
The order granting the Warden’s petition for
rehearing stated that the judgment rendered on June 4, 2004
was “set aside.”
2
___ 1) depravity of mind;
and/or
___ 2) aggravated battery to the victim
and having considered the evidence in mitigation
of the offense, unanimously fix his punishment
at death.
Signed______________________, foreperson
or
(2) We, the jury, on the issue joined, having
found the defendant guilty of capital murder
in the commission of robbery of John Fenton
Langley and
___ a) find beyond a reasonable doubt
that after consideration of his prior
history that there is a probability
that he would commit criminal acts of
violence that would constitute a
continuing serious threat to society;
and/or
b) find beyond a reasonable doubt
that his conduct in committing the
offense is outrageously or wantonly
vile, horrible or inhuman in that it
involved
___ 1) depravity of mind;
and/or
___ 2) aggravated battery to the victim
and believe from all the evidence, including the
evidence in mitigation, that the death penalty is
not justified, fix his punishment at:
___ a) imprisonment for life;
or
___ b) imprisonment for life and a fine
of ____________, an amount not to
exceed $100,000.00.
Signed _____________________, foreperson
3
The Warden argues that this verdict form paralleled the
trial court’s sentencing instructions 4 and provided a
“simple decisional tree” allowing the imposition of either a
life sentence or a death sentence if the jury found one or
both aggravating factors but leaving only the option of a
4
The trial court instructed the jury that the
Commonwealth had to prove at least one of the aggravating
factors beyond a reasonable doubt before a sentence of death
could be imposed for Emmett’s conviction of capital murder.
The court further instructed the jury about its sentencing
options:
If you find from the evidence that the
Commonwealth has proved beyond a reasonable doubt
both of these circumstances, then you may fix the
punishment of the defendant at death. But if you
nevertheless believe from all the evidence,
including evidence in mitigation, that the death
penalty is not justified, then you shall fix the
punishment of the defendant at:
(1) Imprisonment for life; or
(2) Imprisonment for life and a fine
. . .
If you find from the evidence that the
Commonwealth has proved beyond a reasonable doubt
either of these circumstances, then you may fix
the punishment of the defendant at death. But if
you believe from all the evidence, including
evidence in mitigation, that the death penalty is
not justified, then you shall fix the punishment
of the defendant at:
(1) Imprisonment for life; or
(2) Imprisonment for life and a fine
. . .
If the Commonwealth has failed to prove
beyond a reasonable doubt at least one of these
circumstances, then you shall fix the punishment
of the defendant at:
(1) Imprisonment for life; or
(2) Imprisonment for life and a fine
. . .
4
life sentence with or without a fine if the jury found
neither aggravating factor. According to the Warden, the
verdict form followed the format of the statutory verdict
form set out in Code § 19.2-264.4(D). Thus, argues the
Warden, Emmett’s trial counsel could not have been
ineffective for failing to object to a verdict form that
this Court had previously upheld when challenged in Roach v.
Commonwealth, 251 Va. 324, 336, 468 S.E.2d 98, 105, cert.
denied, 519 U.S. 951 (1996); Stewart v. Commonwealth, 245
Va. 222, 244-45, 427 S.E.2d 394, 408-09, cert. denied, 510
U.S. 848 (1993); and Mueller v. Commonwealth, 244 Va. 386,
412-13, 422 S.E.2d 380, 396-97 (1992), cert. denied, 507
U.S. 1043 (1993). 5
By comparing the verdict form used in Atkins with the
one given to the jury in Emmett’s sentencing proceeding, it
is evident that both verdict forms omitted the provisions
required by Code § 19.2-264.4(D)(2). 6 Contrary to the
5
The Warden also argues that this Court ignored this
binding precedent upholding use of the statutory verdict
form when we decided Powell v. Commonwealth, 261 Va. 512,
552 S.E.2d 344 (2001). However, the omission in the verdict
form in Powell was different than the one at issue in the
present case. Thus, the Warden’s arguments as to our
decision in Powell are not pertinent, and we do not address
them.
6
The sentencing option required by the version of Code
§ 19.2-264.4(D)(2) in effect during Atkins’ trial provided:
“We, the jury, on the issue joined, having found
the defendant guilty of (here set out statutory
language of the offense charged) and having considered
all of the evidence in aggravation and mitigation of
such offense, fix his punishment at imprisonment for
life.
5
Warden’s argument, Emmett’s verdict form cannot be read
otherwise. Thus, as in Atkins, the verdict form used in
Emmett’s sentencing proceeding, as a whole, was incomplete.
Since we decided Atkins more than two years before the
commencement of Emmett’s trial and since the verdict form
used in Emmett’s sentencing proceeding had the same omission
as the verdict form at issue in Atkins, we conclude that the
representation provided to Emmett by his trial counsel “fell
below an objective standard of reasonableness.” Strickland,
466 U.S. at 687. Reasonably competent counsel would have
objected to a verdict form that did not comport with the
holding in Atkins and the requirements of Code § 19.2-
264.4(D)(2). See Green v. Warden, 264 Va. 604, 609, 571
S.E.2d 135, 138 (2002). Thus, Emmett has satisfied the
“performance prong” of the two-part test set forth in
Strickland.
That conclusion does not end the inquiry. To prevail
on a claim of ineffective assistance of counsel, Emmett must
Signed__________________foreman”
Code § 19.2-264.4(D)(2) (1995 & Supp. 1997).
Atkins submitted “a proper verdict form” under Code
§ 19.2-264.4(D), but the trial court refused to give it to
the jury. Atkins, 257 Va. at 178, 257 S.E.2d at 456. That
form included the provisions of Code § 19.2-264(D)(2).
In 2003, after this Court’s decision in Powell, the
General Assembly amended Code § 19.2-264.4(D)(2) to add the
option of a life sentence and a monetary fine. Acts 2003,
chs. 1031 and 1040. Even though the amendment occurred
after Emmett’s trial, the verdict form used in his
sentencing proceeding included this option, which was
consistent with the provisions of Code § 18.2-10 (monetary
6
also show that the “deficient performance prejudiced the
defense.” Strickland, 466 U.S. at 687. To satisfy the
“prejudice prong” of the Strickland two-part test, Emmett
“must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694.
Emmett, however, argues that the omission in the
verdict form at issue is a “structural error” and thus not
subject to the Strickland prejudice analysis. 7 As the
Supreme Court of the United States has explained, a
structural error is a “defect affecting the framework within
which the trial proceeds, rather than simply an error in the
trial process itself.” Arizona v. Fulminante, 499 U.S. 279,
310 (1991); accord Neder v. United States, 527 U.S. 1, 8
(1999); Johnson v. United States, 520 U.S. 461, 466-67
(1997). Such errors “infect the entire trial process,”
thereby requiring “automatic reversal of [a] conviction.”
Brecht v. Abrahamson, 507 U.S. 619, 629-30 (1993). They
“necessarily render a trial fundamentally unfair.” Rose v.
Clark, 478 U.S. 570, 577 (1986).
“If [a] defendant had counsel and was tried by an
impartial adjudicator, there is a strong presumption that
any other errors that may have occurred are subject to
harmless-error analysis.” Id. at 579; accord Neder, 527
U.S. at 8. Thus, the Supreme Court has found an error to be
limits of fine for conviction of felony).
7
We did not decide in Atkins whether the omission in
the verdict form was subject to a harmless-error analysis.
7
“structural” and not subject to harmless-error analysis in a
“very limited class of cases.” Johnson, 520 U.S. at 468;
accord Neder, 527 U.S. at 8. See, e.g., Sullivan v.
Louisiana, 508 U.S. 275, 281-82 (1993) (constitutionally
deficient reasonable-doubt instruction to jury); Vasquez v.
Hillery, 474 U.S. 254, 263-64 (1986) (systematic exclusion
of grand jurors who were of defendant’s race); Waller v.
Georgia, 467 U.S. 39 (1984) (denial of the right to a public
trial); McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984)
(infringing the right of self-representation during trial);
Holloway v. Arkansas, 435 U.S. 475, 490-91 (1978)
(improperly requiring counsel to represent co-defendants
despite timely objection stating conflict of interest);
Gideon v. Wainwright, 372 U.S. 335, 342 (1963) (denial of
the right to counsel in criminal cases); Tumey v. Ohio, 273
U.S. 510, 535 (1927) (denial of right to have an impartial
trial judge).
Similarly, we have found structural error in a narrow
class of cases. For example, in a petition for writ of
habeas corpus asserting a claim of ineffective assistance of
counsel, we held that a jury instruction stating that the
jury shall find the defendant guilty if the Commonwealth
failed to prove each of the elements of the offense beyond a
reasonable doubt was not subject to the Strickland prejudice
analysis. Green, 264 Va. at 611-12, 571 S.E.2d at 140; see
also Strickland, 466 U.S. at 692 (prejudice is presumed in
certain Sixth Amendment contexts such as actual or
8
constructive denial of assistance of counsel altogether).
Because of the constitutionally erroneous jury instruction,
we could not “determine whether, but for counsel’s deficient
performance, the result of the proceeding would have been
different because there was no ‘result,’ i.e., no verdict of
guilty-beyond-a-reasonable-doubt.” Green, 264 Va. at 611,
571 S.E.2d at 140.
In contrast, the Supreme Court has applied the
harmless-error analysis to a broad range of constitutional
errors. See, e.g., Mitchell v. Esparza, 540 U.S. 12, 16-17
(2003) (trial court failed to instruct on all of the
statutory elements of a capital murder offense); Brecht v.
Abrahamson, 507 U.S. 619, 638 (1993) (use for impeachment
purposes of a defendant’s post-arrest silence after
receiving Miranda warnings); Clemons v. Mississippi, 494
U.S. 738, 752-54 (1990) (unconstitutionally vague jury
instruction regarding an aggravating factor in the
sentencing phase of a capital murder case); Carella v.
California, 491 U.S. 263, 266-67 (1989) (jury instruction
contained conclusive presumptions as to the elements of the
charged crime); Satterwhite v. Texas, 486 U.S. 249, 258
(1988) (admission of psychiatric testimony at the sentencing
phase of a capital murder case in violation of the Sixth
Amendment right to counsel); Pope v. Illinois, 481 U.S. 497,
501-04 (1987) (element of the offense misstated in a jury
instruction); Rose v. Clark, 478 U.S. 570, 579-80 (1986)
(jury instruction impermissibly shifted the burden of proof
9
to the defendant on the issue of malice); Crane v. Kentucky,
476 U.S. 683, 691 (1986) (erroneous exclusion of the
defendant’s testimony as to the circumstances surrounding
his confession); Delaware v. Van Arsdall, 475 U.S. 673, 684
(1986) (restricted the defendant’s right to cross-examine a
witness to show bias in violation of the Sixth Amendment
Confrontation Clause); Rushen v. Spain, 464 U.S. 114, 117
(1983) (denial of a defendant's right to be present during a
juror’s communication with the trial judge); United States
v. Hasting, 461 U.S. 499, 505 (1983) (prosecutor’s improper
comment on the defendant’s failure to testify at trial in
violation of the Fifth Amendment privilege against self-
incrimination); Hopper v. Evans, 456 U.S. 605, 613-14 (1982)
(statute improperly precluded jury instruction on lesser-
included offense in a capital murder case); Kentucky v.
Whorton, 441 U.S. 786, 789-90 (1979) (trial court failed to
instruct the jury on presumption of innocence); Moore v.
Illinois, 434 U.S. 220, 232 (1977) (admission of corporeal
identification evidence in violation of the Sixth Amendment
right to counsel); Brown v. United States, 411 U.S. 223,
231-32 (1973) (admission of co-defendant’s out-of-court
statement in violation of the Sixth Amendment right to
counsel); Milton v. Wainwright, 407 U.S. 371, 372 (1972)
(admission of defendant’s confession obtained by an
undercover police officer in violation of Massiah v. United
States, 377 U.S. 201 (1964)); Chambers v. Maroney, 399 U.S.
42, 52-53 (1970) (admission of evidence obtained in
10
violation of the Fourth Amendment); Coleman v. Alabama, 399
U.S. 1, 10-11 (1970) (denial of the assistance of counsel at
a preliminary hearing in violation of the Sixth Amendment). 8
The decision in Neder is especially instructive in
explaining what constitutes a structural error. The trial
error at issue there was a jury instruction that omitted an
element of the charged offense. 527 U.S. at 8. The Supreme
Court found that, “[u]nlike such defects as the complete
deprivation of counsel or trial before a biased judge, an
instruction that omits an element of the offense does not
necessarily render a criminal trial fundamentally unfair or
an unreliable vehicle for determining guilt or innocence.”
Id. at 9. The Supreme Court further explained that its
holding was consistent with its decision in Sullivan v.
Louisiana. Id. at 10. The trial court in Sullivan gave the
jury a defective “reasonable doubt” instruction that
8
This Court has likewise applied the harmless-error
analysis to a broad range of constitutional errors. See,
e.g., Dearing v. Commonwealth, 260 Va. 671, 674, 536 S.E.2d
903, 904 (2000) (admission of co-defendant’s statement to
police); Lilly v. Commonwealth, 258 Va. 548, 551, 523 S.E.2d
208, 209 (1999) (admission of confession by accomplice who
refused to testify at trial in violation of defendant’s
Sixth Amendment right to confront a witness); Jenkins v.
Commonwealth, 254 Va. 333, 336, 492 S.E.2d 131, 132 (1997)
(admission of expert opinion concerning an ultimate fact at
issue); Hewitt v. Commonwealth, 226 Va. 621, 622-23, 311
S.E.2d 112, 113-14 (1984) (denial of defendant’s right to
cross-examine a witness for bias in violation of defendant’s
right to confront his accuser); Yager v. Commonwealth, 220
Va. 608, 614, 260 S.E.2d 251, 255 (1979) (failure to
instruct the jury regarding the presumption of innocence);
Reid v. Commonwealth, 213 Va. 790, 795-96, 195 S.E.2d 866,
870-71 (1973) (admission of defendant’s silence in violation
of his right to remain silent); Cardwell v. Commonwealth,
209 Va. 412, 416, 164 S.E.2d 699, 703 (1968) (admission of
defendant’s statement in violation of Miranda v. Arizona,
11
violated the defendant’s Fifth and Sixth Amendment rights to
have the charged offense proven beyond a reasonable doubt.
508 U.S. at 277-78. The error was not subject to harmless-
error analysis because it “ ‘vitiate[d] all the jury’s
findings.’ ” Id. at 281. In contrast, the jury instruction
error at issue in Neder did not “ ‘vitiate all the jury’s
findings.’ ” Neder, 527 U.S. at 11 (quoting Sullivan, 508
U.S. at 281). The same rationale applies to the omission in
the verdict form at issue in this case. It did not “vitiate
all the jury’s findings,” Sullivan, 508 U.S. at 281,
specifically the findings that the Commonwealth had proven
both aggravating factors beyond a reasonable doubt.
Thus, the omission in the verdict form at issue was not
a structural error. Accordingly, the well-established
prejudice analysis set forth in Strickland is applicable to
Emmett’s claim. Applying that analysis, we once again
conclude that Emmett has failed to show that “there is a
reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694. Because
the jury found that the Commonwealth had proven both
aggravating factors beyond a reasonable doubt, it had no
reason or occasion to consider the option of a life sentence
with or without a fine mandated when the Commonwealth proves
neither aggravating factor.
For these reasons, we reinstate our order dated June 4,
384 U.S. 436 (1966)).
12
2004, and dismiss Emmett’s petition for writ of habeas
corpus.
_______________
JUSTICE KOONTZ, dissenting.
I respectfully dissent from the majority’s holding with
respect to petitioner’s claim (I)(C) of his petition for a
writ of habeas corpus. Following our rehearing in this
case, the majority correctly concludes that petitioner’s
trial counsel was ineffective for failing to object to the
incomplete verdict forms given to the jury at the penalty
determination phase of petitioner’s capital murder trial.
As a result, “[t]he jury was 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 were in conflict.” Atkins v. Commonwealth, 257
Va. 160, 179, 510 S.E.2d 445, 457 (1999). In Atkins, we set
aside the sentence of death imposed by the jury and remanded
the case to the trial court for a new penalty proceeding.
Id. In my view, the same result should obtain in the
present case.
Applying the “prejudice” prong of the two-part test
enunciated in Strickland v. Washington, 466 U.S. 668, 687
(1984), the majority holds that petitioner has failed to
demonstrate prejudice under the circumstances of this case
because there is not a reasonable probability that, but for
counsel’s error, the result of the proceeding would have
13
been different. The thrust of the majority’s reasoning to
support this holding is that because the jury found “both
aggravating factors beyond a reasonable doubt, it had no
reason or occasion to consider the option of a life
sentence with or without a fine mandated when the
Commonwealth proves neither aggravating factor.”
“[I]t is materially vital to the defendant in a
criminal case that the jury have a proper verdict form.”
Atkins, 257 Va. at 178, 510 S.E.2d at 456. The prejudice
which the majority finds lacking in the present case
occurred the moment that petitioner’s jury was permitted to
determine whether a sentence of death or life would be
imposed under circumstances we have condemned in Atkins.
While it may not be reasonable to require a perfect
trial in all cases, a death case is materially different
from all other criminal cases. Surely, the government does
not afford an accused a fair trial when his counsel is
ineffective and the jury is permitted to impose a sentence
of death in a situation where the verdict forms are
incomplete.
For these reasons, I would vacate petitioner’s
sentence of death and remand the case to the trial court
for a new sentencing hearing. *
*
Because I would conclude that petitioner was actually
14
This order shall be published in the Virginia Reports.
A Copy,
Teste:
Patricia Leas Harrington, Clerk
prejudiced by his counsel’s deficient performance under the
more exacting standard of Strickland, I express no opinion
on whether the failure to provide the jury with complete
verdict forms was also a “structural error” for which
prejudice would be presumed.
15