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WILLIAMS v. WARDEN OF THE MECKLENBURG CORRECTIONAL CENTER (59876)


TERRY WILLIAMS

v.

WARDEN OF THE
MECKLENBURG CORRECTIONAL CENTER


June 6, 1997
Record No. 960534

TERRY WILLIAMS

v.

WARDEN OF THE MECKLENBURG
CORRECTIONAL CENTER

OPINION BY JUSTICE A. CHRISTIAN COMPTON
UPON A PETITION FOR A WRIT OF HABEAS CORPUS


This is the first habeas corpus petition filed by a prisoner
held under a sentence of death that we have addressed in a
published opinion since the applicable statute was amended
effective July 1, 1995. See Acts 1995, ch. 503.

The 1995 amendment to Code ? 8.01-654 added subsection
(C). It provides that this Court shall have "exclusive
jurisdiction" to consider and award writs of habeas corpus
with respect to any such petition filed by a convict held under a
death sentence. ? 8.01-654(C)(1). The amendment further
provides that the circuit court "which entered the judgment
order setting the sentence of death shall have authority to
conduct an evidentiary hearing on such a petition only if
directed to do so by order of the Supreme Court." Id.

The amendment fixes time limits within which the circuit court
"shall conduct" a hearing on the issues enumerated in
this Court’s order and within which the circuit court "shall
report its findings of fact and recommend conclusions of law to
the Supreme Court." ‘ 8.01-654(C)(3). Finally, the
amendment provides that any objection to the circuit court’s
report must be filed in this Court, within a specified time
limit. Id.

Petitioner Terry Williams was convicted in a jury trial in the
Circuit Court of the City of Danville of the capital murder of
Harris Thomas Stone. The crime was committed in November 1985,
the accused was indicted in July 1986, and the jury found him
guilty in September 1986.

After a separate proceeding on the issue of punishment and
after hearing evidence of the accused’s history, including
aggravating factors and mitigating evidence, the jury fixed his
sentence at death. This sentence was based upon the "future
dangerousness" predicate of the statutory scheme; the
verdict stated there is a probability that the defendant
"would commit criminal acts of violence that would
constitute a continuing serious threat to society."

Following a statutorily mandated hearing before the trial
judge on punishment, the defendant was sentenced in November 1986
to death. This Court affirmed the conviction and death sentence
on direct appeal. Williams v. Commonwealth, 234 Va.
168, 360 S.E.2d 361 (1987). The United States Supreme Court
refused review. Williams v. Virginia, 484 U.S. 1020
(1988).

In August 1988, the convict filed a habeas corpus petition in
the Danville Circuit Court. After a 1989 hearing, the court
dismissed a number of the habeas claims. An amended petition was
filed in April 1995, and the court heard evidence in June 1995 on
the issue of ineffective assistance of trial counsel.

On July 1, 1995, jurisdiction over the case was transferred to
this Court pursuant to the changes in Code ‘ 8.01-654.
Subsequently, this Court directed the circuit court to
"report its findings of fact and recommend conclusions of
law regarding the issue of ineffective assistance of counsel, as
alleged in claim VII" of the amended petition. In June 1996,
the circuit court heard argument of counsel on the ineffective
assistance of counsel claim.

In August 1996, the circuit court forwarded its report to this
Court and to counsel for the parties. The circuit court found
that the accused’s two trial counsel were effective in all but
one stage of the trial proceedings. The circuit court concluded
that trial counsel’s failure to present certain mitigating
evidence at the sentencing hearing before the jury warranted the
granting of relief to the petitioner.

Both the petitioner and the respondent, J. D. Netherland,
Warden of the Mecklenburg Correctional Center, filed objections
to the circuit court’s rulings. In a January 1997 order, this
Court ordered briefing and argument on the issue that the circuit
court had found warranted relief. Petitioner’s objections to the
circuit court’s findings recommending dismissal of all the other
claims for relief were overruled.

The evidence presented in the 1986 criminal trial established
the following basic facts. The victim, an elderly man, was found
dead at 2:00 a.m. lying in a bed at his Danville home. He was
fully clothed and there was no sign of a struggle. The victim’s
wallet, customarily kept fastened in his trouser pocket, was
missing.

Later, the accused made several confessions to the murder and
robbery of the victim. The defendant said he had struck the
victim on the chest, and later on the back, with a mattock and
had removed three dollars from the victim’s wallet. The victim
died from the blows, which fractured two ribs and displaced them
inward, puncturing the left lung and depositing a quantity of
blood in the left chest cavity.

During the penalty phase of the trial, the prosecution
presented evidence of the 31-year-old accused’s extensive
criminal record, beginning when he was 11 years old. This
included a robbery in 1976, a burglary involving an assault upon
the victim in 1982, and a vicious and brutal malicious wounding
of an elderly woman in March 1986 that caused brain damage and
left her a "vegetable." In addition, there was evidence
of a December 1985 assault by the accused upon an elderly man
while the accused was committing arson of the victim’s home. Two
forensic psychological experts who examined the accused testified
there was a high probability that he would commit future criminal
acts of violence and that he constituted a continuing threat to
society.

The accused’s mother testified that he was never violent at
home and that she did not believe he was a threat to others. A
female acquaintance of the accused who had known him for 11 years
testified he was never violent in her presence. Another witness,
whose foster daughter had dated the accused, testified he was not
a violent person.

Based on the June 1995 habeas evidentiary hearing and the
subsequent argument of counsel, the circuit judge, who had
presided at the trial, made a number of "findings of
fact" and "recommended conclusions of law." The
court found that the convict’s "trial attorneys were both
experienced in criminal defense work and thoroughly prepared the
case in defense of capital murder." In this connection, the
court concluded that counsel’s "performance at the guilt
phase of the trial was both professional and competent."

Elaborating, the court stated that counsel "properly
explored the mental competency of" the accused, who,
according to the evidence at trial, had a "borderline level
of intellectual functioning." Also, the circuit court found
that trial counsel "adequately investigated the issues of
robbery and cause of death"; that counsel "was
justified in relying on" the conclusions of the medical
examiner regarding the cause of death; that counsel’s
"conduct with regard to the confession and suppression
hearing was competent and professional"; and that they were
not ineffective for their failure to investigate whether the
accused suffered from a so-called "Fetal Alcohol
Syndrome." Further, the court concluded that counsel
performed adequately regarding voir dire, evidentiary objections,
and jury instructions.

Additionally, the circuit court found that the performance of
defense counsel, in the main, during the penalty phase
proceedings did not warrant habeas relief. And, the court
determined counsel was effective on appeal.

The court reported, however, that certain actions of counsel
during the trial’s penalty phase were "the only real
concern." "Specifically," the court said,
"little evidence was presented on the issue of mitigation,
and there exists evidence that petitioner had a deprived and
abused upbringing; that he may have been a neglected and
mistreated child; that he came from an alcoholic family; and that
he was borderline mentally retarded."

Continuing, the court said there also exists "evidence
that petitioner’s conduct had been good in certain structured
settings in his life (such as when he was incarcerated) and there
were friends, neighbors and family of petitioner who would have
testified that he had redeeming qualities." The court was of
the view that some of this testimony "such as [from] petitioner’s wife, daughter and Bruce Elliott, was worthy of a
jury’s consideration on mitigation. However, none of this
testimony was developed and presented at the sentencing phase of
the trial."

The court stated: "Probably the most persuasive
mitigating evidence which was not tendered to the jury involved
the failure to interview and call Bruce Elliott as a witness
during the sentencing phase." Elliott, a certified public
accountant, contacted defense counsel prior to trial and offered
his help, but, according to the court, "counsel never
followed up by talking to the witness." The court found that
Elliott had known the accused since 1978 and would have portrayed
the accused "as a decent human being who struggled to prove
his worth in spite of his being somewhat disadvantaged mentally,
emotionally and financially." Elliott, who did not testify
at the habeas hearing, stated in an affidavit that the accused
"took pride in his achievements," such as graduation
from carpentry school while incarcerated in a correctional
facility.

The court found that trial counsel "made a tactical
decision to focus attention at the penalty phase" on the
accused’s confession, which was unsolicited and volunteered.
Counsel’s strategy, the court concluded, was to convince the jury
that the accused’s life should be spared, and that he should be
given a life sentence, because of the unsolicited confession.

Also, the court said that counsel "made a tactical
decision not to put certain witnesses before the jury to prevent
the Commonwealth from reminding the jury of the `horrible and
terrible crimes’" committed by the accused. Nevertheless,
the court said, "it is troubling . . . that
favorable evidence was not pursued and introduced for `whatever
it was worth’ when the decision which was to be made by the jury
involved life or death."

Summarizing, the court opined that at "a capital murder
sentencing, any evidence which might be favorable or
mitigating can mean the difference between `life or death.’"
Continuing, the court stated that "mitigating testimony is
absolutely crucial and if none is offered, this amounts to
prejudice." In addition, the court said that a failure
"to present favorable mitigation evidence which was
available upon investigation and development falls below the
range expected of reasonable, professional competent assistance
of counsel, and because this evidence is so crucial to the
outcome of the jury’s ultimate decision of life or death, it is
prejudicial to a defendant when it is not presented at the
sentencing phase." This is such a case, according to the
court, because "Terry Williams needed anything and
everything that might be available as favorable evidence to
persuade the jury to save his life. Anything less was not
enough."

Therefore, the court recommended that a writ of habeas corpus
be granted and that the convict be granted a rehearing on the
sentencing phase of his trial.

The right to counsel, 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. Murray v. Griffith, 243 Va.
384, 388, 416 S.E.2d 219, 220 (1992) (citing Virginia Dep’t of
Corrections
v. Clark, 227 Va. 525, 533, 318 S.E.2d
399, 403 (1984)). This constitutional guarantee "includes
the right to the care and skill which a reasonably competent
attorney would exercise for similar services under the
circumstances." Stokes v. Warden, 226 Va. 111,
116-17, 306 S.E.2d 882, 884 (1983). 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. Strickland v. Washington,
466 U.S. 668, 687 (1984).

In a collateral attack on a conviction, however, "a
prisoner not only has the burden of proving ineffective
assistance of counsel, but also must prove actual prejudice as a
result." Stokes, 226 Va. at 118, 306 S.E.2d at 885. Accord
Strickland, 466 U.S. at 687; Murray, 243 Va. at
388, 416 S.E.2d at 221. In order to establish prejudice, there
must be a showing "that counsel’s errors were so serious as
to deprive the defendant of a fair trial, a trial whose result is
reliable." Strickland, 466 U.S. at 687. "An
error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if
the error had no effect on the judgment." Id. at 691.

In sum, Strickland requires a prisoner to "show
that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Id.
at 694. And, in determining the existence of prejudice, the court
must consider the totality of the evidence presented at the
criminal trial. Id. at 695. Accord Strickler
v. Murray, 249 Va. 120, 128, 452 S.E.2d 648, 652, cert.
denied, ___ U.S. ___, 116 S.Ct. 146 (1995).

"As is obvious, Strickland‘s standard, although by
no means insurmountable, is highly demanding." Kimmelman
v. Morrison, 477 U.S. 365, 382 (1986). Accord Strickler,
249 Va. at 128, 452 S.E.2d at 652. Moreover, "an analysis
focusing solely on mere outcome determination, without attention
to whether the result of the proceeding was fundamentally unfair
or unreliable, is defective." Lockhart v. Fretwell,
506 U.S. 364, 369 (1993). And, "[t]o set aside a conviction
or sentence solely because the outcome would have been different
but for counsel’s error may grant a defendant a windfall to which
the law does not entitle him." Id. at 369-70.

Further, we have adopted the Strickland suggestion, 466
U.S. at 697, that if it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient
prejudice, that course should be followed. Strickler, 249
Va. at 128, 452 S.E.2d at 652. We shall employ that procedure in
the present case.

This brings us to a determination of the standard of review
that we shall apply to the circuit court’s findings of fact and
conclusions of law. We hold that, under the 1995 amendment to
Code ‘ 8.01-654, the issue whether a prisoner held under a
death sentence is entitled to habeas relief is a mixed question
of law and fact. Therefore, a circuit court’s finding and
conclusion on the issue is not conclusive and binding upon this
Court but is properly subject to judicial review. See The
Stenrich Group
v. Jemmott, 251 Va. 186, 192, 467
S.E.2d 795, 798 (1996). Indeed, this is the standard of review
employed in similar cases in the federal system. The Supreme
Court has said "that both the performance and the prejudice
components of the ineffectiveness test are mixed questions of
fact and law" and that "a state court’s ultimate
conclusions regarding competence and prejudice are not findings
of fact binding on the federal court." Kimmelman, 477
U.S. at 388-89 (citing Strickland, 466 U.S. at 698).

In the present case, the factual part of the mixed question is
whether there was evidence in mitigation that was available but
not presented at the criminal trial. There is no doubt there was
such evidence; the facts really are not in dispute. The legal
part of the mixed question is whether this deficient performance
constitutes "prejudice" within the meaning of that term
as defined by the decided cases. In resolving this part of the
question, the crucial inquiry is whether the circuit court
correctly applied the law to the established facts. We hold that
it did not.

In his brief filed in this Court in support of the circuit
court’s conclusions, the prisoner dwells upon the facts relating
to the performance prong of the Strickland test, and has
comparatively little to say about circumstances relating to the
prejudice prong. He says there is "no merit" to the
respondent’s contention "that presentation of any additional
witnesses would have done Petitioner more harm than good as each
new witness would only give the prosecutor a renewed opportunity
to hammer home the details of Petitioner’s checkered criminal
past."

Reverting to a discussion of performance in a prejudice
section of his brief, the prisoner states: "In any event,
even if counsel had sought to discover [available mitigation
evidence of which counsel was ignorant], fear of `opening the
door’ with each witness – to a repetition of Petitioner’s
criminal history – is not a reasoned decision given the facts of
this case." Continuing, he argues that the prosecutor’s
"relentless recitation of Petitioner’s bad acts had already
been detailed for the jury through twelve different witnesses
before Petitioner’s counsel even stepped up to the plate. Any
door that trial counsel feared would be opened by the
presentation of additional mitigation witnesses had already been
swung wide with gusto," and no amount of vigorous
cross-examination by the prosecutor "could have left the
jury feeling any worse about Petitioner than they had at the
conclusion of the prosecutor’s case."

The prisoner argues there "is a `reasonable probability’
that at least one juror would have been moved to spare
Petitioner’s life had he heard" the mitigation evidence
developed at the habeas hearing that was not presented at the
trial. Summarizing, he contends there "is a `reasonable
probability’ that had at least one juror heard any of this
evidence — let alone all of this evidence — the outcome of this
case would have been different."

We reject these contentions. The prisoner’s discussion flies
in the face of the Supreme Court’s admonition in Lockhart,
supra, that "an analysis focusing solely on mere
outcome determination, without attention to whether the result of
the proceeding was fundamentally unfair or unreliable, is
defective."

We shall demonstrate that the criminal proceeding sentencing
defendant to death was not fundamentally unfair or unreliable,
and that the prisoner’s assertions about the potential effects of
the omitted proof do not establish a "reasonable
probability" that the result of the proceeding would have
been different, nor any probability sufficient to undermine
confidence in the outcome. Therefore, any ineffective assistance
of counsel did not result in actual prejudice to the accused.

The jury was presented with the murder of an intoxicated,
elderly person in his own bedroom committed by a 31-year-old man.
The murder weapon was a tool customarily used to dig stumps. At
the time, defendant had been out of the penitentiary for only
seven months, released on parole for convictions of burglary and
grand larceny.

The accused was in the midst of a crime spree, preying upon
defenseless individuals. Following commission of these crimes of
murder and robbery in November 1985, the defendant savagely beat
an elderly woman about her head in March 1986, leaving her lying
in the street unconscious with multiple injuries. At the time of
trial, she was in a nursing home "vegetating" from a
brain injury with no hope of recovery.

Upon being questioned in April and May 1986 about the November
1985 crimes, the defendant admitted to the recent theft of two
motor vehicles. He also admitted setting fire to clothes on the
porch of a residence late one night in December 1985, luring the
occupant outside, and stabbing him with a knife in order to rob
him. The accused later was convicted of the vehicle thefts and,
at the time of trial for the present crimes, had been convicted
of an arson that took place in the city jail.

While held in jail on the present offenses, he related to a
police officer "that he wanted to just choke some of the
guys in the jail cell, and one day some had gone to the library
and one guy was laying on the bed, and he got the urge to just go
over and choke him. Another time he was playing cards and he
thought he could just hit someone and break that person’s jaw
without him ever knowing what hit him."

The jury also heard that defendant had served time in the
penitentiary for an armed robbery committed when he was about 20
years old. The jury did not know of 14 criminal offenses
committed by defendant from 1966 to 1975.

Drawing on Strickland, we hold that, even assuming the
challenged conduct of counsel was unreasonable, the prisoner
"suffered insufficient prejudice to warrant setting aside
his death sentence," 466 U.S. at 698-99, the predicate of
which was that there is a probability that he would commit
criminal acts of violence which would constitute a continuing
serious threat to society. The mitigation evidence that the
prisoner says, in retrospect, his trial counsel should have
discovered and offered barely would have altered the profile of
this defendant that was presented to the jury. At most, this
evidence would have shown that numerous people, mostly relatives,
thought that defendant was nonviolent and could cope very well in
a structured environment. Of course, those assumptions are belied
by the four-month crime spree beginning with the present crimes
and by the defendant’s current attitude while in jail toward
other inmates.

What the Supreme Court said in Strickland applies with
full force here: "Given the overwhelming aggravating
factors, there is no reasonable probability that the omitted
evidence would have changed the conclusion that the aggravating
circumstances outweighed the mitigating circumstances and, hence,
the sentence imposed." 466 U.S. at 700. Indeed, disclosure
of the defendant’s juvenile history might even have been harmful
to his case.

Unfortunately, the circuit court appears to have adopted a per
se approach to the prejudice element. The court opined
that "any evidence which might be favorable or
mitigating can mean the difference between `life or death’";
that "mitigating testimony is absolutely crucial and if none
is offered, this amounts to prejudice"; and that the accused
"needed anything and everything that might be available as
favorable evidence to persuade the jury to save his life.
Anything less was not enough." This demonstrates an emphasis
on mere outcome determination, without proper attention to
whether the result of the criminal proceeding was fundamentally
unfair or unreliable.

In conclusion, employing the language of Strickland,
the prisoner "has made no showing that the justice of his
sentence was rendered unreliable by a breakdown in the adversary
process caused by deficiencies in counsel’s assistance. [The
prisoner's] sentencing proceeding was not fundamentally
unfair." 466 U.S. at 700.

Accordingly, the petition for a writ of habeas corpus, as
amended, will be denied.

Writ denied.

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