Curo v. Becker

Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Kinser, JJ., and Poff, Senior Justice

DAVID P. CURO, ADULT
PROBATION OFFICER

v. Record No. 962366 OPINION BY JUSTICE CYNTHIA D. KINSER
October 3l, 1997
HELIANTHE DENT CINDY BECKER

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge

In this appeal, the sole issue is whether the circuit

court erred by awarding Helianthe Dent Cindy Becker a Writ of

Habeas Corpus on the basis that Becker was denied effective

assistance of counsel. Because we conclude that the attorney's

representation was not deficient, we will reverse the judgment

of the circuit court.
In March l993, a jury convicted Becker of arson, and on

September 27, l993, the trial court sentenced her to two years

of incarceration, suspended, and probation. After exhausting

the direct appeal process, Becker filed a Petition for Writ of

Habeas Corpus and asserted ineffective assistance of counsel
1
based on numerous alleged deficiencies. The circuit court
held a plenary hearing on August 2l, l996, and issued its

decision in a letter memorandum dated September 3, l996. The

court concluded that Becker's trial counsel had failed to

conduct both a meaningful review of the underlying data relied

upon by the forensic expert and an effective cross-examination

of the expert. Because of these errors, the court found that

1
The same judge presided at Becker's original trial for
arson and at the habeas hearing.
the attorney's representation of Becker fell below the standard

for reasonably effective assistance of counsel, and that, but

for the errors, the outcome of the trial would have been

different. Specifically, the court stated:
In this circumstantial evidence case, in which the
testimony of the expert was critical to the
Commonwealth's proof, a failure to fully examine both
the conclusions and the basis for the conclusions of
such expert not only is unreasonable but likely to
have affected the ultimate outcome of the case.

In an order entered on September 23, l996, the court vacated

Becker's arson conviction and awarded her a new trial. In a

separate order, it denied David P. Curo's 2 Motion for

Reconsideration. 3

I.

"One attacking a judgment of conviction in a habeas corpus

proceeding has the burden of proving by a preponderance of

evidence the allegations contained in [the] petition." Nolan

v. Peyton, 208 Va. l09, ll2, 155 S.E.2d 318, 321 (1967).

Because entitlement to habeas relief is a mixed question of law

and fact, the circuit court's findings and conclusions are not

binding upon this Court, but are subject to review to determine

whether the circuit court correctly applied the law to the
2
Throughout this proceeding, appellant's name has been
spelled "Curo" and "Curro." We are using the spelling that
appears in our order awarding the appeal.
3
The circuit court found no merit in Becker's other
allegations in her Petition for Writ of Habeas Corpus. Becker
did not assign cross-error to that finding. See Rule 5:9 and
Rule 5:l7(c).

2
facts. Williams v. Warden of Mecklenburg Correctional Ctr.,

254 Va. l6, 24, 487 S.E. 2d l94, l98 (1997). We hold that it

did not.

II.

To understand the significance of the evidence at the

habeas corpus hearing, we must first review the evidence

presented at Becker's trial. Becker testified that on the

morning of April 30, l992, she had planned to meet with her

attorney to prevent an impending foreclosure on her farm. She

had called to prearrange a taxi the previous evening, but when

the taxi arrived that morning at the appointed time, Becker was

not ready to leave. She asked the taxi driver to return a

little later. After the taxi left, Becker walked to the end of

the driveway to close the gate and also to gather some bark to

put on a fire in the fireplace in her den that she had ignited

earlier with fire starter logs. She then ate her breakfast and

went to the barn, located behind her house, to get some tools

she had promised to give to another individual.
Becker testified that, while in the barn, she heard a

noise and smelled "something like lacquer." Upon leaving the

barn, Becker discovered that her house was on fire. By this

time, the taxi driver had returned, and the taxi was parked in

Becker's driveway. Both Becker and the taxi driver saw smoke

coming out a door and some windows. Becker testified that she

went to the door and opened it, but she was not certain whether

3
she actually went inside. Since Becker did not have a

telephone, the taxi driver took her to a neighbor's house to

call for help. When she returned to her home, flames were

shooting out the windows. Becker tried to enter the house, but

people at the scene prevented her from going in. Later, Becker

went to a hospital by ambulance.

Pat Brandenburg, a lieutenant with the Loudoun County Fire

Marshall's Office, investigated the fire at Becker's home to

determine the cause and the origin of the fire. He concluded

that there were multiple points of origin, that an incendiary

means caused the fire, and that the fire was the result of

arson. During his investigation, he found boxes of Becker's

personal items in the barn wrapped in newspaper bearing the

same date as that of the fire. 4 Brandenburg also collected

several items of evidence that he submitted to the Commonwealth

of Virginia, Division of Forensic Science, for analysis. The

items included debris from the fire scene, a piece of "control

wood" from the flooring material, liquid found in a gasoline

can outside Becker's house, a tan skirt found inside the barn,

a yellow shirt that Becker wore on the day of the fire, blue
5
jeans, and a pair of shoes.
4
Becker testified that she had been packing items the night
before the fire. The newspaper was available on the afternoon
prior to its actual date.
5
Brandenburg did not personally collect the tan skirt,
yellow shirt, blue jeans, or shoes; he received them from
Investigator Merchant of the Loudoun County Sheriff's Office.

4
 At trial, Eileen A. Davis, a forensic scientist with the

Commonwealth of Virginia, Division of Forensic Science,

testified regarding the results of the analyses on these items.

Using a gas chromatograph, Davis concluded that the liquid

found in the gasoline can was a mixture of petroleum

distillates of the gasoline and fuel oil types. Likewise, some

of the debris samples from the scene and the yellow shirt

contained the same mixture. 6 She found no difference in the

nature of the petroleum mix on these items but acknowledged

that she could neither identify the specific type of commercial

gasoline nor state that the fuel oil on the yellow shirt was

the same type as that found on the debris. Finally, Davis

acknowledged some starter logs contain fuel oil distillates.
At the subsequent evidentiary hearing on her habeas

petition, Becker's claim of ineffective assistance of counsel

focused on the forensic evidence. She offered evidence from an

analytical chemist, Keith Flohr, regarding the chromatographic

charts that Davis' testing produced. Flohr concluded that the

raw data on the charts were reliable and the results of
7
appropriate testing. He agreed with Davis' conclusion that

6
Davis found no petroleum distillates on the blue jeans,
tan skirt, or piece of control wood. On the shoes, she found
characteristics of a petroleum distillate of the gasoline type
but could not make a more definitive determination.
7
Flohr did not repeat any testing of the items but reached
all his conclusions based upon the chromatographic charts
prepared by the Division of Forensic Science.

5
the blue jeans did not contain any appreciable amount of

petroleum distillate. 8 Flohr's most critical conclusion, based

on his interpretations of the tracings on the chromatographic

charts, was that the petroleum distillate found on the yellow

shirt came from exposure to smoke and not from exposure to

gasoline or fuel vapor.

Davis also testified at the evidentiary hearing on the

habeas petition and did not agree with Flohr's analysis. She

stated that "you cannot tell whether it was a vapor, whether it

was a liquid, whether it was splashed, whether it was pre-

existing, that there is no way to tell, looking at the

chromatograms, to make that determin[ation]."
Becker's trial attorney recognized that the prosecution's

most compelling evidence directly linking Becker to the fire

was the substance on the yellow shirt. However, Becker's trial

attorney was satisfied with Davis' admission that she could not

determine if the distillate on the shirt was the same type as

that on the debris. Becker's trial attorney believed that

Davis' admission coupled with the statement that some fire

starter logs contain fuel oil distillates corroborated the

defense theory that the distillate on the yellow shirt came

8
According to Flohr, the absence of distillate on the blue
jeans indicated that Becker did not pour the accelerant in the
house. First, he explained that gasoline has a low surface
tension and thus splashes easily. Second, when one comes in
contact with the gasoline, most of it, but not all, will
evaporate.

6
from the logs. Because she believed this defense was viable,

Becker's trial attorney did not employ an expert to check

Davis' work, obtain the chromatographic charts, or ask Davis

whether the distillate on the yellow shirt might have come from

smoke.

III.

"The right to counsel which is guaranteed by the Sixth

Amendment to the Federal Constitution and made applicable to

the States through the Fourteenth Amendment includes the right

to effective assistance of counsel." Virginia Dep't. of

Corrections v. Clark, 227 Va. 525, 533, 3l8 S.E.2d 399, 403

(l984). "The benchmark for judging any claim of

ineffectiveness must be whether counsel's conduct so undermined

the proper functioning of the adversarial process that the

trial cannot be relied on as having produced a just result."

Strickland v. Washington, 466 U.S. 668, 686 (l984). "In other

words, the accused is entitled to counsel who is a reasonably

competent attorney and to advice that is within the range of

competence demanded of attorneys in criminal cases." Murray v.

Griffith, 243 Va. 384, 388, 4l6 S.E.2d 219, 221 (l992) (citing

Strickland, 466 U.S. at 687).

In Strickland v. Washington, the Supreme Court of the

United States enunciated a two-part test for judging claims of

ineffective assistance of counsel in a collateral attack on the

conviction. "First, the defendant must show . . . that counsel

7
made errors so serious that counsel was not functioning as the

`counsel' guaranteed the defendant by the Sixth Amendment."

Strickland, 466 U.S. at 687. The second element of the test

requires the defendant to show "that the deficient performance

prejudiced the defense." Id. Unless the defendant satisfies

both elements, the claim of ineffective assistance will fail.

Id.

In applying this two-part test, the Supreme Court

cautioned against second-guessing counsel's representation

through hindsight. Instead, the Court stated that "a court

deciding an actual ineffectiveness claim must judge the

reasonableness of counsel's challenged conduct on the facts of

the particular case, viewed as of the time of counsel's

conduct." Id. at 690. Furthermore, the Court recognized that

"[t]he reasonableness of counsel's actions may be determined or

substantially influenced by the defendant's own statements or

actions." Id. at 691.

This last admonition is determinative of the present case.

Becker's theory of ineffective assistance of counsel rests on

the trial attorney's failure to develop the forensic evidence.

Becker claims that her attorney erred by not obtaining the

chromatographic charts and procuring expert testimony such as

that offered at the habeas hearing by Flohr to establish that

the distillate on the yellow shirt might have come from smoke

rather than from gasoline or fuel vapor. Becker also contends

8
that her attorney's failure to understand the methodology and

data led to an ineffective cross-examination of the expert.

The above theory erroneously presupposes that Becker had

not previously offered any explanation for the presence of the

distillate on the yellow shirt. However, Becker had told her

attorney that she had used fire starter logs that morning, and

she attributed the presence of distillate on her shirt to her

handling of those logs. Upon investigating this explanation,

Becker's attorney learned three important things from Davis:

(1) that some fire starter logs contain fuel oil distillates;

(2) that Davis could not distinguish between specific types of

fuel oil; and (3) that Davis would admit that she could not

determine whether the petroleum distillate found on debris

taken from the fire scene and that found on the yellow shirt

were the same type.
Despite this defense premised on information from Becker,

the circuit court concluded that Becker's attorney erred in the

manner in which she developed the forensic evidence and cross-

examined Davis. That judgment, however, runs afoul of the

instructions in Strickland. "[W]hen the facts that support a

certain potential line of defense are generally known to

counsel because of what the defendant has said, the need for

further investigation may be considerably diminished or

eliminated altogether." Strickland, 466 U.S. at 69l. Because

the attorney developed a defense based on Becker's version of

9
the events, we cannot now say that the representation "fell

below an objective standard of reasonableness" just because the

attorney did not also investigate alternative defenses. Id. at

688.

For these reasons, we conclude that Becker was not denied

the effective assistance of counsel guaranteed by the Sixth

Amendment. Since Becker has not shown that her trial

attorney's performance was deficient, we do not need to address

the prejudice element of the Strickland test. We hold,

therefore, that the circuit court erred in granting the Writ of

Habeas Corpus. Accordingly, the judgment of the circuit court

will be reversed and vacated, and final judgment will be

entered here dismissing Becker's Petition for Writ of Habeas

Corpus.

Reversed and final judgment.

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