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Effective assistance provided at attempted murder trial

Where defense counsel pursued a mistaken identity defense in this attempted murder case, the decision was reasonable under the circumstances.

To pursue the defenses appellant preferred — intoxication or lack of intent — would have required counsel to concede that appellant was the shooter. This would have been unreasonable because appellant’s identity as being the shooter was based solely on circumstantial evidence.


Appellant Williams was shirtless while he rode a horse and pointed a gun at Isaac Dean as he drove by Williams. “According to Isaac, Williams was wearing jeans, but no shirt. He appeared ‘messed up’ and was ‘swaying side to side.’”

Isaac heard gunshots and saw in his rear-view mirror that Williams firing into the air. Isaac drove home and told his mother about the incident. “[T]hey both called the police.”

Deputy Pultz was the first to respond to the calls. From a distance of 10 feet, he saw a shirtless Williams riding a horse. He said he did not notice any tattoos, although Williams had eight “fairly large” ones on his chest, back and arms.

Williams rode into the woods. Pultz and Williams yelled back and forth at each other. Pultz lost sight of him. About 15 minutes later, Morris, a police investigator, saw someone approaching Pultz on foot. Morris admitted he could not identify the person.

Pultz saw the person and yelled “let me see your hands.” He then heard the same voice he had heard earlier telling him to “get out of here.” Immediately afterward, Pultz heard shots fired.

When asked at trial if he could tell where the shots were going, Pultz described the first shot as passing above his head, rustling leaves in the trees above him.

The jury found Williams guilty of attempted murder and using a firearm while committing a felony. The trial court denied his motion to set aside the verdict. The Court of Appeals affirmed. Williams next filed a habeas corpus petition, which the circuit court denied. Williams appealed, arguing he received ineffective assistance of counsel.

Intent or identity

Under Strickland v. Washington, 466 U.S. 668 (1984), to establish an ineffective assistance claim, a defendant must show that counsel’s performance was unreasonable and that defendant suffered prejudice as a result.

In this case, the issue is whether counsel reasonably pursued a mistaken identity defense.

Williams argues that because the evidence was “overwhelming” that he was the shooter, counsel should have pursued a defense based on lack of intent to kill Deputy Pultz.

“It is worth noting that a defense based on the Commonwealth’s failure to prove premeditation or lack of specific intent would essentially require Williams to admit that he was, in fact, the shooter. In other words, Williams is directly challenging the trial strategy of his trial counsel, as the two strategies are effectively mutually exclusive. …

“[T]he evidence identifying Williams as the shooter was not as overwhelming as he claims.

“Notably, Deputy Pultz’ initial identification of Williams as the person he initially encountered was significantly impeached by his failure to notice any of the eight fairly large tattoos on Williams’ chest, back and arms, even though the two men were only about 10 feet away from each other.

“Investigator Morris’ testimony about seeing an individual approaching Deputy Pultz was similarly impeached, as he initially stated that the individual was wearing a red shirt, but he later testified that the individual was not wearing a shirt.

“It is further worth noting that Deputy Pultz stated that he lost sight of Williams for approximately 15 minutes before he saw the individual who he believes shot at him.

“Further, he candidly admitted that he could not definitively identify the individual who shot at him due to the darkness and the thickness of the vegetation. His view was so obscured that he could not even tell if the individual was on foot or on horseback.

“Taken as a whole, the record establishes that the identification of Williams as the shooter was entirely based on circumstantial evidence. The only concrete evidence that establishes that Williams had a firearm occurred well before the events that resulted in his conviction.

“Thus, it cannot be said that it was unreasonable for trial counsel to focus on the identity of the shooter. Accordingly, Williams has failed to prove the performance prong of the Strickland test on this claim.”

Intoxication instruction

Williams argues that counsel should have asked the court for an intoxication instruction. It was not reasonable for counsel to have done so.

“Once trial counsel made the decision to focus on identity, arguing intoxication to the jury would have seemed inconsistent or contradictory to the identity defense.

“Thus, it was entirely reasonable for trial counsel to avoid a defense based on intoxication and the corresponding instruction, as such a defense necessarily implies that Williams was, in fact, the shooter.

“Having already determined that the identification defense was reasonable under these circumstances, it cannot be said that trial counsel’s failure to pursue a contradictory defense is unreasonable. Accordingly, Williams has failed to prove the performance prong on this claim.”

Jury’s question

Williams claims counsel should have asked the trial court to answer the jury’s question: “‘[i]f an officer tells a suspect to put down his weapon and [the] suspect pulls [a] gun and fires in the air, not in direction of the officer can he still be charged with attempted murder[?]’ …

“Williams does not argue that his trial counsel’s initial response to the second jury question was incorrect; nor does he argue that the trial court’s eventual answer was incorrect.

“Rather, Williams takes issue with the fact that his trial counsel failed to push the matter further once the trial court rejected his initial response. …

“The record demonstrates that trial counsel implicitly requested that the trial court instruct the jury that firing into the air was insufficient to prove intent as a matter of law.

“In response, the trial court correctly noted that the jury’s question involved a factual determination and, therefore, its response was limited to telling the jury to make a factual determination and apply it to the law as described in the jury instructions.

“Under these circumstances, it cannot be said that trial counsel’s actions were deficient, as it was reasonable for trial counsel to accept the trial court’s ruling. Accordingly, Williams has failed to prove the performance prong on this claim.”


Williams v. Clarke, Record No. 210294 (unpublished order) March 31, 2022. Upon an appeal from a judgment rendered by the Circuit Court of Rockingham County. VLW 022-6-019, 10 pp.

VLW 022-6-019

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