Pender v. Angelone

Present: All the Justices

SHANTEL D. PENDER

v. Record No. 981269 OPINION BY JUSTICE ELIZABETH B. LACY
April 16, 1999
RONALD J. ANGELONE, DIRECTOR,
VIRGINIA DEPARTMENT OF CORRECTIONS

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Robert G. O'Hara, Jr., Judge

On June 28, 1993, Shantel D. Pender was tried without a

jury in the Circuit Court of the City of Petersburg and

convicted of first degree murder. After affirmance of the

conviction on direct appeal, Pender filed a petition for a

writ of habeas corpus with this Court pursuant to Code § 8.01-

654, claiming that he was denied his rights under the Sixth

Amendment to the United States Constitution because his trial

counsel was ineffective. By order entered November 7, 1996, a

writ of habeas corpus was issued pursuant to Code § 8.01-657

directing the Circuit Court of the City of Petersburg to

determine the issue of ineffective assistance of counsel.

Following an evidentiary hearing, the circuit court concluded

that Pender was not denied effective assistance of counsel and

dismissed Pender's petition for writ of habeas corpus. Pender

appeals the order of dismissal.

In considering Pender's appeal, we apply well-established

principles. The Sixth Amendment to the United States

Constitution guarantees a defendant in a criminal trial the
right to effective assistance of counsel. Strickland v.

Washington, 466 U.S. 668, 686 (1984). To prevail in a claim

of ineffective assistance of counsel, a petitioner bears the

burden of showing not only that his counsel's performance was

deficient but also that he was actually prejudiced as a

result. Murray v. Griffith, 243 Va. 384, 388, 416 S.E.2d 219,

221 (1992). In order to establish prejudice, the evidence

must 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. The prejudice analysis includes a focus on "whether

the result of the proceeding was fundamentally unfair or

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

The circuit court dismissed Pender's petition for a writ

of habeas corpus because it found that "[u]pon the entire

record, the errors of counsel were not of the type, nature or

character that would render the result of the petitioner's

criminal trial unreliable or unfair." Accordingly, in this

appeal, we need not consider whether the alleged errors of

Pender's criminal trial counsel rendered counsel's performance

deficient, but, we direct our review to whether the evidence

presented at the habeas trial demonstrated prejudice as

required under Strickland. See Williams v. Warden of the

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Mecklenberg Correctional Center, 254 Va. 16, 23, 487 S.E.2d

194, 198 (1997).

Pender contends that the evidence adduced at the habeas

proceeding, if produced at his criminal trial, "would have

prevented the Commonwealth from meeting its burden to

establish the elements of first degree murder in this case."

Thus, according to Pender, his criminal trial counsel's

failure to present this evidence was prejudicial under the

standard in Strickland because it rendered the criminal trial

unreliable and unfair in violation of his Sixth Amendment

rights. We disagree.

To sustain the charge of first degree murder in the

criminal trial, the Commonwealth had to show that Pender

committed a "willful, deliberate, and premeditated killing."

Code § 18.2-32. The element that distinguishes first degree

murder from second degree murder is that of premeditation, a

specific intent to kill. Rhodes v. Commonwealth, 238 Va. 480,

486, 384 S.E.2d 95, 98 (1989). The specific intent to kill

"'may be formed only a moment before the fatal act is

committed provided the accused had time to think and did

intend to kill.'" Id. at 485, 384 S.E.2d at 98 (citations

omitted). If a defendant only intended serious bodily harm to

the decedent, the offense is murder in the second degree. Id.

at 486, 384 S.E.2d at 98.

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 To understand the significance of the evidence produced

in the habeas proceeding, we must first review the evidence in

the criminal proceeding. In that proceeding the Commonwealth

produced two witnesses: Rodney Turner, a friend of Pender's

who was with him at the time of the murder; and Detective

Patrick Kelleher, the officer who investigated the murder and

interviewed Pender. The defense did not call any witnesses.

Turner testified that he and two other men, John E.

Taylor and Tony Brown, were standing in front of a residence

when Pender approached them and stated that the deceased, who

"had taken the package of drugs," was "at the store." Pender

told the three men "to come on and let's go get him."

According to Turner, the four men chased the deceased down the

street, through an alley, and onto the porch of a house. The

deceased then jumped off the porch and went through the bushes

to another house, where he "was knocking on the door trying to

get in." When he could not get inside, the deceased ran to a

third house. The four men continued the chase to the third

house, but only Pender and Taylor followed the deceased onto

the porch. Turner testified that he heard Pender and the

deceased "saying words," and that when Taylor and Pender came

off the porch, Pender told Turner that he had stabbed the

deceased. Turner also testified that he did not see any

weapons on the deceased and that he could not see what

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happened on the porch of the third house because he was too

far away. No weapons were found on the deceased.

Although Pender did not testify at his trial, his written

confession was introduced by the Commonwealth. In his

confession Pender stated that the deceased

stole drugs from 2 of my friends one week. So he
tried to wait till every thing goes down and comes
back. Well he came back and stole my 100 dollar
bill so I started chasing him and my other friends
chased him to [sic]. Well we caught up with him &
my friend started hitting him. Then, he ran some
more & he had some on him because he reached to
his side & thats [sic] when I cut him. I was not
trying to kill him. I just wanted to protect
myself. He could of [sic] had a gun & just wanted
us to case [sic] him away from the crowd. I
didn't try to kill him. I didn't know he was dead
because he didn't seem to be hurt. And I was not
tryin [sic] to skip town because it would have
made matters worst [sic]. All I wanted was my
money. Not to kill anyone or be classified as a
murderer. I just though [sic] I had cut him. But
I am sorry and scared.

At the close of the evidence, Pender moved to strike the

first degree murder charge based on the uncontradicted

statement in his confession that he was not trying to kill the

deceased but only stabbed him because he thought the deceased

was armed. The trial court rejected the defense's motion and

found Pender guilty of the charge, stating that there was "no

evidence" that the deceased resisted or had a weapon "with the

exception of the statement that defendant made to the police

after a time of reflection that he made a move to his side."

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 At the sentencing hearing, the defense again moved to

have the charge reduced to second degree murder or voluntary

manslaughter based on Pender's "unrebutted" statement that "he

struck at his hand believing that [the deceased] was going to

produce a weapon that would endanger Pender's life or limb,

and that he did not intend to do any more damage than to a

strike of the hand, he did not intend the mortal wound at

all."

The trial court rejected Pender's claim that he intended

only to cut the deceased's hand concluding that it was

impossible for Pender to pull out a knife and prepare to

"strike the blow" to the deceased's hand "in that second" that

the deceased allegedly made a sudden move for his waistband.

According to the trial court, if the deceased

made a quick move there is no way that
[Pender] could have stabbed at his hand
unless [Pender] already had a knife in
[his] hand ready to use it. That's why
the Court infers intent to kill. That
[Pender] planned this from the very start
or somewhere during the chase.

The evidence presented at the habeas hearing, which

Pender asserts makes the result of the criminal trial

unreliable, includes a statement given to the police by Taylor

and the testimony of Crystal Brown, Tony Brown, and Mario

Hawkins. The substance of the testimony by Crystal Brown and

Tony Brown refuted that portion of Turner's testimony at the

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criminal trial that Pender sought to enlist Taylor, Turner,

and Brown in a chase of the defendant because drugs were

taken. In Taylor's statement to the police, he stated that he

saw the deceased reach in his coat just before Pender stabbed

him. Hawkins, whose name was given to defense counsel by

Pender as a possible witness, testified that the deceased had

sold a gun earlier in the evening and that, while "words were

exchanged" just prior to the chase, the deceased "stepped back

and he put his hand behind his back" like he was going to get

a gun.

This testimony, Pender asserts, provided the evidence the

trial court found missing in the criminal trial to support

Pender's belief that the deceased was armed and may have been

reaching for a weapon when Pender stabbed him. In this

regard, Pender also bases claims of prejudice on trial

counsel's failure to introduce the videotape of his confession

in which he says that he only intended to cut the hand of the

deceased and on trial counsel's failure to adequately advise

Pender of his right to testify at the criminal trial. Pender

claims that he would have testified that he only intended to

do bodily injury in stabbing the deceased and that his

testimony would have refuted Turner's testimony that he urged

others to chase and harm the deceased.

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 None of this evidence, however, has any bearing on the

facts upon which the trial court based its finding that Pender

intended to kill the deceased. As recited above, the trial

court concluded that Pender could not have pulled out the

knife and stabbed the deceased "in that second" the deceased

made a movement for his waistband. Thus, the trial court

concluded that Pender had engaged in a prolonged chase of the

deceased with his knife drawn and had formed the intention to

kill the deceased at an earlier point in time. * Whether the

purpose of the chase was to recover drugs or to recover money

taken from Pender and whether Pender thought the deceased was

armed or not, are irrelevant distinctions that do not render

unreliable the court's factual conclusions in the criminal

trial that Pender had his knife drawn during the chase and

intended to use it to kill the deceased.

Further, Pender's claim that his counsel did not

adequately advise him of his right to testify at the criminal

trial is not borne out by the record. At the criminal trial,

there was an exchange between the trial court and Pender in

*
Pender apparently does not contest the trial court's
conclusion that he had the knife drawn prior to his final
confrontation with the deceased. At the habeas proceeding,
Pender testified that the knife was in his hand because it had
fallen out of his boot during the chase. This testimony does
not support a theory that the knife was drawn or held because
Pender believed the deceased was armed, and Pender does not

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which he stated that he had been fully advised of his right to

testify and chose not to do so.

Finally, Pender cites other alleged shortcomings that he

claims affected the outcome of his trial, including trial

counsel's failure to present evidence of the deceased's delay

in seeking medical help after the stabbing, as well as trial

counsel's failure to adequately investigate witnesses who may

have seen the deceased take the $100 bill from Pender just

prior to the chase. Again, such evidence does not relate to

or contradict the facts that formed the basis of the trial

court's finding of an intent to kill.

In summary, none of the evidence or other claims asserted

in the habeas proceeding relate to the facts that formed the

basis of the trial court's conclusion that Pender formed an

intent to kill during the chase. Pender admitted to the

persons present at the stabbing and to the investigating

officer that he stabbed the deceased, and he confessed that he

chased the deceased because the deceased had taken drugs and

money from him and two associates. The trial court was

entitled to base its conclusion on this evidence.

"Premeditation and formation of an intent to kill seldom can

be proved by direct evidence. A combination of circumstantial

claim he should have been allowed to give this testimony at
the criminal trial.

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factors may be sufficient." Rhodes, 238 Va. at 486, 384

S.E.2d at 98, citing Epperly v. Commonwealth, 224 Va. 214,

232, 294 S.E.2d 882, 892-93 (1982).

The habeas court found that these facts entitled the

trial court in the criminal case to find Pender guilty of

first degree murder and that the evidence at the habeas

proceeding did not support a finding that any errors of

counsel in the criminal trial presented issues or facts that

"would render the result of the petitioner's criminal trial

unreliable or unfair." Based on our review of the record, we

concur and will affirm the judgment of the circuit court

denying the relief sought by Pender and dismissing the

petition for a writ of habeas corpus.

Affirmed.

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