Home / Fulltext Opinions / Supreme Court of Virginia / CURO, ADULT PROBATION OFFICER v. BECKER



October 3l, 1997

Record No. 962366






Thomas D. Horne, Judge

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

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 based on
numerous alleged deficiencies. The circuit court[1] 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 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]


"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 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.


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 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

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 jeans, and a pair of shoes. [5]

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 appropriate testing. [7] He agreed with Davis’
conclusion that 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 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.


"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 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 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 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.




[1] The same judge presided at
Becker’s original trial for arson and at the habeas hearing.

[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).

[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.

[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

[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.

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