Present: Lacy, Keenan, Koontz, Kinser, Lemons, and Agee,
JJ., and Compton, S.J.
TIMOTHY JERMAN
v. Record No. 030461 OPINION BY JUSTICE CYNTHIA D. KINSER
March 5, 2004
DIRECTOR OF THE DEPARTMENT
OF CORRECTIONS
UPON A PETITION FOR WRIT OF HABEAS CORPUS
In this petition for writ of habeas corpus filed under
the Court’s original jurisdiction, we address claims of
ineffective assistance of counsel with regard to the
petitioner’s conviction for abduction. Concluding that
there is not a reasonable probability that, but for
counsel’s alleged deficiencies, the outcome of the
proceeding would have been different, we will dismiss the
petition.
PRIOR PROCEEDINGS AND PRESENT HABEAS CLAIMS
Timothy Jerman, the petitioner, was indicted in the
Circuit Court of Fairfax County for first-degree murder and
abduction. A jury convicted him of second-degree murder
and abduction. The Court of Appeals of Virginia reversed
Jerman’s abduction conviction. Jerman v. Commonwealth, 34
Va. App. 323, 328, 541 S.E.2d 307, 309 (2001). However,
this Court subsequently reversed the judgment of the Court
of Appeals and reinstated the abduction conviction.
Commonwealth v. Jerman, 263 Va. 88, 94, 556 S.E.2d 754, 758
(2002).
Jerman then filed a petition for writ of habeas corpus
pursuant to this Court’s original jurisdiction. See Code
§ 17.1-310; Rule 5:7. By order dated October 8, 2003, this
Court placed on its privileged docket the following claims
raised in the petition:
Claim (2)(C), in which petitioner alleges that he
was denied effective assistance of counsel when
counsel failed to raise at trial or on direct appeal
(1) that the evidence was constitutionally
insufficient to convict petitioner of abduction; and
(2) that petitioner “was denied his rights to due
process, to a fair trial, and to be free from double
jeopardy when the conviction for abduction was based
on the restraint inherent from the underlying
assault.”
Claim (2)(D), in which petitioner alleges that he
was denied effective assistance of counsel when
“counsel failed to present a jury instruction that the
restraint inherent in the assault/murder cannot serve
as the sole basis for a separate abduction
conviction.”[1]
RELEVANT FACTS
At trial, the evidence established that Jerman made
plans with several of his friends, Micah A. Bohn (“Bohn”),
with whom Jerman was living, Joe Kern (“Joe”) and his
brother Frank Kern (“Frank”), and Lisa A. Panko (“Panko”),
1
In the same order, the Court held that the writ
should not issue as to the other claims raised in Jerman’s
habeas corpus petition.
2
to have a party to celebrate the high school graduation of
Cassie Bohn, Jerman’s girlfriend. The party was to take
place at Jerman’s home. Some of the group decided to
purchase 100 Ecstasy pills for the party.2
Panko made arrangements to purchase the pills from the
victim, Justin Rhatigan (“Rhatigan”). Bohn, Panko, and
Frank met Rhatigan at an ice cream store where Bohn and
Rhatigan completed the drug transaction. According to
Panko, Rhatigan then “bolted” out of the store. Before
leaving the store, Panko and the others discovered that
Rhatigan had sold them aspirin instead of Ecstasy. They
tried to page Rhatigan, but he did not respond.
After several weeks of trying to contact Rhatigan,
Panko was finally able to do so through a friend. Panko
asked Rhatigan why he had not sold them Ecstasy, and he
responded that he needed money to repay some people. In
the same conversation, Rhatigan supposedly threatened to
kill Bohn. Panko and Rhatigan then made plans to “hangout”
sometime during the upcoming weekend. Panko told Bohn
about her conversation with Rhatigan, and Bohn asked her
where they could all meet so he could get back the money
that he had paid Rhatigan for the imitation pills.
2
“Ecstasy” is metholanedioxine, an amphetamine. See
Wolfe v. Commonwealth, 265 Va. 193, 203, 576 S.E.2d 471,
3
Panko and Rhatigan subsequently decided to get
together on Saturday evening, July 10, 1999. Panko
informed Rhatigan that one of her friends was coming to her
house that same night, but Rhatigan did not object. Panko
also told Bohn that Rhatigan would probably be at her house
on that particular Saturday evening and that they could
confront him there about the money.
Sometime between 9:30 p.m. and 10:00 p.m. on that
Saturday, Jerman, Bohn, and Joe drove to Panko’s house in
Bohn’s van. From the time they arrived until around
midnight, Panko paged Rhatigan several times, but he did
not respond to the pages. During this same period of time,
Jerman, Bohn, and Joe decided that, when Rhatigan arrived,
they would position themselves on each of the three floors
of the house, with Joe in the basement, Bohn in the kitchen
on the second floor, and Jerman upstairs on the third
floor. Their strategy was to keep Rhatigan from getting
away if he tried to run. Panko testified that, at some
point during this same period of time, Joe brought a
baseball bat into the house and told the others there to
hit Rhatigan only in the legs, not in the head.
Finally, between 12:30 a.m. and 1:00 a.m., Rhatigan
called Panko in response to her prior pages. She told him
477, cert. denied, ____ U.S. ____, 124 S.Ct. 566 (2003).
4
that several of her friends were at her house and they “all
wanted to trip.” Panko arranged to pick Rhatigan up and
drive him back to her house. She did not tell Rhatigan her
true reason for bringing him there, so her friends could
confront him about the money.
When Panko returned home with Rhatigan and both walked
upstairs to the living room, Jerman, Bohn, and Joe emerged
from their respective positions in the house. Panko
testified that the three men grabbed Rhatigan near the
front door, and then “they went all the way downstairs.”
Panko heard Bohn ask Rhatigan, “Remember me?” And, she
then heard Rhatigan saying, “Oh, stop, stop.” Panko
remained in the kitchen.
A minute or two later, Jerman came upstairs and asked
Panko how to open the gate located in the backyard fence.
She told him that the gate was “boarded shut” and that
there was no way to get to the other side of the fence. A
13-year-old neighbor, Joseph R. Worsham (“Worsham”),
observed two people emerge from Panko’s house, carry a
body-like object through the yard to the fence, and then
run back into the house without the object. Worsham also
saw a third person fixing the curtains inside the house and
someone running back out to the fence. Soon thereafter,
everyone left Panko’s house.
5
Testifying on his own behalf, Jerman admitted that he
knew that Bohn and Panko “had been ripped off” by Rhatigan.
On the Saturday evening in question, Jerman heard Panko and
Bohn discussing the fact that Rhatigan might be coming to
her house and that, if he did, Bohn could get his money
back from Rhatigan. Jerman thought there might be an
altercation if Bohn confronted Rhatigan about the money.
According to Jerman, Joe brought three baseball bats into
the house after Panko left to pick up Rhatigan because they
thought some of Rhatigan’s friends might come back with
him. Joe carried one of the baseball bats up to the third
level of the house where Jerman was sitting. While Jerman
denied ever picking up that baseball bat, he acknowledged
hearing Joe’s statement to hit Rhatigan in the legs, not in
the head.
Jerman testified that, after Panko and Rhatigan
arrived at the house, Jerman first heard the verbal
exchange between Bohn and Rhatigan and then heard “a bunch
of racket[; n]o words, just a bunch of commotion.” Jerman
claimed that he then ran from the top level of the house to
the middle level where Panko was standing and on down to
the basement. There, he saw Bohn and Joe each holding a
baseball bat and Rhatigan lying on a couch.
6
Continuing, Jerman admitted that Bohn and Joe picked
up Rhatigan’s body, carried it through the backyard, and
tossed it over the fence. He also admitted that he was the
other person that Worsham had seen running out to the
fence. Jerman claimed that he tried to open the fence gate
so he could determine if Rhatigan was “okay” before
everyone left Panko’s house. Jerman acknowledged that,
when he departed, he knew an unconscious man had been left
lying on the ground behind the fence.
Rhatigan’s body was discovered in the early morning
hours on Sunday. Rhatigan was taken to a hospital where he
eventually died. The cause of death was blunt force trauma
to his head.
ANALYSIS
In this collateral attack on the abduction conviction,
Jerman has the burden of proving by a preponderance of the
evidence his claims of ineffective assistance of counsel.
See Green v. Young, 264 Va. 604, 608, 571 S.E.2d 135, 138
(2002); Nolan v. Peyton, 208 Va. 109, 112, 155 S.E.2d 318,
321 (1967). To prevail on the claims, Jerman must satisfy
both parts of a two-part test established in Strickland v.
Washington, 466 U.S. 668, 687 (1984). Jerman must first
prove that his counsel’s “performance was deficient,”
meaning that “counsel made errors so serious that counsel
7
was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Id. Jerman must next
show that “the deficient performance prejudiced the
defense,” that is to say “counsel’s errors were so serious
as to deprive the defendant of a fair trial.” Id. Unless
Jerman establishes both prongs of the two-part test, his
claims of ineffective assistance of counsel will fail. Id.
To resolve Jerman’s claims, we will proceed directly
to the prejudice prong of the Strickland two-part test. We
do so because it is not necessary to determine whether
counsel’s performance was deficient before deciding whether
Jerman suffered any prejudice because of the alleged
deficiencies. See id. at 697. The test for determining
prejudice is whether “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 694.
All Jerman’s claims of ineffective assistance of
counsel turn on his assertion that the abduction conviction
was based solely on the restraint inherent in the physical
attack on Rhatigan that led to his death, and that there
was no evidence of any restraint separate and apart from
that necessary to carry out the assault. Thus, he claims
that trial counsel was ineffective for failing to renew a
motion to strike on that basis at the close of all the
8
evidence and for failing to offer a jury instruction
stating that the restraint inherent in the assault/murder
of Rhatigan could not serve as the sole basis for a
conviction for abduction.3 He also claims that appellate
counsel was ineffective for failing to raise sufficiency of
evidence and double jeopardy questions on direct appeal of
his abduction conviction.
Jerman was convicted of abduction in violation of Code
§ 18.2-47. That statute, in relevant part, states that
“[a]ny person, who, by force, intimidation or deception,
and without legal justification or excuse, seizes, takes,
transports, detains or secretes the person of another, with
the intent to deprive such other person of his personal
liberty . . . shall be deemed guilty of ‘abduction[.]’ ”
In Scott v. Commonwealth, 228 Va. 519, 526, 323 S.E.2d 572,
576 (1984), we held that Code § 18.2-47 changed the common-
law rule requiring proof of asportation in order to sustain
3
Trial counsel moved to strike at the close of the
Commonwealth’s evidence. Counsel argued, among other
things, that there was no evidence of any restraint
separate and apart from that inherent in the assault.
After presenting evidence on behalf of the defense, trial
counsel did not renew the motion to strike. In an
affidavit filed as an exhibit to the respondent’s
memorandum of law in support of his motion to dismiss the
habeas petition, trial counsel stated that he did not renew
the motion to strike at the conclusion of the evidence
because he “believ[ed] it to be a futile gesture in lieu
9
a conviction for abduction. Now, under the statute, mere
detention is sufficient, id., and the asportation or
detention can be accomplished by either force,
intimidation, or deception. Code § 18.2-47. However, when
one is accused of abduction by detention and another crime
involving restraint of the victim, both arising out of a
continuing course of conduct, convictions for separate
offenses with separate penalties are permitted “only when
the detention committed in the act of abduction is separate
and apart from, and not merely incidental to, the restraint
employed in the commission of the other crime.” Brown v.
Commonwealth, 230 Va. 310, 314, 337 S.E.2d 711, 714 (1985).
Focusing on our decision in Brown, Jerman argues that
“the charges of abduction and murder grew out of a
continuing course of conduct, and the detention committed
in the act of abduction was merely incidental to, not
separate and apart from, the restraint employed in the
commission of the assault.” Jerman’s argument ignores the
evidence establishing two acts of abduction that clearly
were not inherent in, but were distinct from, the physical
attack upon Rhatigan.
[sic] of the evidence that had been introduced during the
course of the trial.”
10
The first abduction was accomplished through
asportation by deception, which is proscribed by Code
§ 18.2-47. Panko picked Rhatigan up and drove him to her
house on the pretext that some of her friends were there
and they “all wanted to trip.” She did not disclose to
Rhatigan the fact that Jerman, Bohn, and Joe were awaiting
him with baseball bats. Jerman, along with the others,
knew about and participated in the scheme to lure Rhatigan
to Panko’s house for the purpose of confronting him about
the money paid for the imitation pills.
The second abduction occurred when Bohn and Joe
carried Rhatigan’s body out of the house, through the
backyard to the fence, and then tossed him over the fence.
This occurred when Jerman, even by his own testimony, was
in the basement; he admitted seeing Bohn and Joe pick
Rhatigan’s body up off the couch. Jerman also admitted
that he was the person who ran back out to the fence and
who asked Panko how to open the gate.
In both acts of abduction, Jerman acted, at a minimum,
as a principal in the second degree.4 See Jones v.
Commonwealth, 208 Va. 370, 372, 157 S.E.2d 907, 909 (1967)
(“A principal in the second degree, or an aider or abettor
4
The jury was instructed with regard to the law
concerning a principal in the second degree.
11
as he is sometimes termed, is one who is present, actually
or constructively, assisting the perpetrator in the
commission of the crime.”) Thus, we conclude that the
evidence was sufficient to convict Jerman of abduction.
Consequently, under the Strickland prejudice prong, there
is not a reasonable probability that there would have been
a different outcome if Jerman’s trial counsel had moved, at
the close of all the evidence, to strike the evidence on
the abduction charge. Such a motion would have been
without merit.
We further conclude that there is not a reasonable
probability that the jury would have acquitted Jerman of
the abduction charge if trial counsel had requested a jury
instruction stating that the restraint inherent in the
assault of Rhatigan could not serve as the sole basis for a
separate abduction conviction. The jury in this case was
instructed that the crime of abduction requires, among
other things, “[t]hat the defendant by force, intimidation
or deception did seize, take, transport, detain or hide
Justin Rhatigan.” Under that instruction, the evidence in
this case proved abduction by deception before the assault
and abduction by force after the assault. Neither involved
the restraint or force inherent in the act of murdering
Rhatigan. It is that restraint which is the subject of the
12
instruction now proposed by Jerman. Thus, Jerman’s defense
was not prejudiced by trial counsel’s failure to offer the
instruction. See Strickland, 466 U.S. at 687.
Finally, with regard to his claim of ineffective
assistance of appellate counsel, we again find no prejudice
under the Strickland test. Based on the evidence of
abduction already discussed, there is not a reasonable
probability that a different result would have been
obtained on appeal if appellate counsel had challenged the
sufficiency of that evidence or raised a double jeopardy
claim. Moreover, appellate counsel’s performance was not
deficient under the Strickland test. Appellate counsel
could not have successfully challenged Jerman’s abduction
conviction for lack of evidence because that argument was
procedurally defaulted when trial counsel failed to renew
the motion to strike at the close of all the evidence. See
Spangler v. Commonwealth, 188 Va. 436, 438, 50 S.E.2d 265,
266 (1948); Rule 5:25. Counsel does not render ineffective
assistance when making a strategic decision to appeal
certain errors and not to appeal weaker claims. See Jones
v. Barnes, 463 U.S. 745, 751 (1983); see also Strickland,
466 U.S. at 689.
CONCLUSION
13
For these reasons, we conclude that Jerman’s claims of
ineffective assistance of counsel are without merit. Thus,
we will dismiss the petition for writ of habeas corpus.
Dismissed.
14