478 S.E.2d 542 (Va. 1996), 951874, Mueller v. Murray

Docket Nº:951874.
Citation:478 S.E.2d 542, 252 Va. 356
Opinion Judge:[8] The opinion of the court was delivered by: Keenan
Party Name:Everett Lee MUELLER v. Edward W. MURRAY, Director, Virginia Department of Corrections.
Case Date:November 01, 1996
Court:Supreme Court of Virginia

Page 542

478 S.E.2d 542 (Va. 1996)

252 Va. 356

Everett Lee MUELLER


Edward W. MURRAY, Director, Virginia Department of Corrections.

No. 951874.

Supreme Court of Virginia.

November 1, 1996.

Page 543

[252 Va. 357] Michael HuYoung (Angela D. Whitley, Richmond; Edward D. Barnes, Chesterfield, on brief), for appellant.

Page 544

[252 Va. 358] Robert H. Anderson, III, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

[252 Va. 356] Present: All the Justices.

[252 Va. 358] KEENAN, Justice.

Everett Lee Mueller was convicted by a jury of the capital murder, rape, and abduction of Charity Powers and sentenced to death. We affirmed the judgment of the circuit court in Mueller v. Commonwealth, 244 Va. 386, 422 S.E.2d 380 (1992), cert. denied, 507 U.S. 1043, 113 S.Ct. 1880, 123 L.Ed.2d 498 (1993).

Mueller filed a petition for habeas corpus in the circuit court alleging, among other things, that his federal and state constitutional rights were violated because "the sentencing jury was not allowed to know of his ineligibility for parole." The circuit court dismissed the petition in part and denied it in part, and we awarded Mueller an appeal limited to that issue.

In considering this question, we determine whether Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), announced a "new rule" within the meaning of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). We conclude that Simmons established a "new" rule that does not apply retroactively to Mueller's case. 1


On the evening of October 5, 1990, Taryn Potts took her ten year old daughter, Charity Powers, to a skating rink. Potts had arranged to have a friend drive Charity home from the rink later that night, but the friend fell asleep and did not go to the rink. When Potts arrived home at 3:00 a.m. on October 6, 1990, and discovered that her friend had not brought Charity home, she immediately contacted the police, who initiated a search for her daughter.

Kevin H. Speeks, who knew Charity, testified that he saw her at a fast food restaurant near the skating rink at about 12:50 a.m. on October 6, 1990. While at the restaurant, Speeks also saw a man who appeared to be thirty years of age and of medium height, driving a cream-colored station wagon with wood siding through the parking [252 Va. 359] lot several times. As Speeks left the restaurant, he saw the man standing on the right side of the building, and he also observed Charity sitting on a curb located on the same side of the building. Sergeant Mike Spraker of the Chesterfield County Police Department testified that Mueller customarily drove a cream-colored station wagon which had wood siding.

When Mueller spoke with the police on October 8 and 9, 1990, he admitted that he had talked to a young female on October 5, 1990, at a fast food restaurant that might have been near the skating rink. Based on information gained over the course of their investigation, the police searched the area near Mueller's home. On February 8, 1991, they found "a clump of hair and what looked like some white bone sticking out of the ground." As a result of this discovery, the police exhumed Charity's body, which had been buried about 900 feet behind Mueller's house. The police found a knife stuck in the ground about 174 feet from the grave.

The police arrested Mueller on February 12, 1991, and advised him of his Miranda rights. During an interrogation, Mueller confessed to the crime. He stated that he had agreed to give Charity a ride home from the restaurant but that he drove her to his house instead.

Mueller said that he thought Charity was 18 or 19 years old. Charity was about 4'8" tall and weighed 90 pounds. Mueller told the police that Charity agreed to have sex with him, and that he took her to the woods behind his house where he had sexual intercourse with her. He stated that, although he had a knife nearby, he did not use it.

Page 545

Mueller told the police that he strangled Charity to death because he was afraid that she would report the incident. He later purchased a shovel from a local store, buried her body, and burned her clothes and jewelry. After making this confession, Mueller showed the police the area where he had buried the body, as well as the locations where he had raped her and had left the knife.

[252 Va. 360] The medical examiner who conducted an autopsy on Charity's body testified that Charity's throat had been cut to the depth of one inch, resulting in a horizontal cut on the epiglottis. She stated that such a cut would result in the severance of the carotid artery and the jugular vein. According to the medical examiner, a person suffering from such an injury would die after several minutes, and there were indications that Charity had bled before her death. Based on these facts, the medical examiner concluded that the cause of death was "acute neck injury."

The medical examiner also stated that, on examining the skin over the breast area, there were "irregular holes in the area where each nipple would be." The medical examiner also observed a "big gash" on the victim's upper left thigh. She also determined that there were three tears to the hymenal ring of the vagina which were consistent with sexual penetration.

At the conclusion of this phase of the bifurcated trial, the jury found Mueller guilty of capital murder in violation of Code § 18.2-31(5) and former Code § 18.2-31(8) 2 (murder in the commission of a rape, and murder of a child under 12 in the commission of an abduction). The jury also convicted Mueller of rape and abduction with intent to defile, and it fixed his punishment at life imprisonment on both these charges.

At the penalty phase of the trial, each of four women, including Mueller's sister, testified that Mueller had raped her at knife point. Two of these rapes resulted in criminal convictions. Mueller's expert, Dr. Mariah Travis, a clinical psychologist, acknowledged that Mueller did not have "a working conscience," and that he had "graduated to ... a new and even more dangerous level."

Mueller testified during the penalty phase. When asked whether he felt any remorse for having raped one particular victim, Mueller replied, "Which one is that? Ha, ha." On completing his testimony, Mueller stated, "Get this God damn shit over with so that I can go smoke a cigarette."

At the conclusion of the penalty phase evidence, the jury fixed Mueller's punishment for capital murder at death, based on findings of both vileness and future dangerousness. After the hearing required by Code § 19.2-264.5, the trial court imposed the sentences fixed by the jury.


In this appeal, Mueller argues that his death sentence should be set aside because the trial court did not allow him to inform the jury that he was ineligible for parole under Code § 53.1-151(B1). That section provides in part that "[a]ny person convicted of three separate felony offenses of (i) murder, (ii) rape or (iii) robbery by the [252 Va. 361] presenting of firearms or other deadly weapon ... shall not be eligible for parole."

In support of his argument, Mueller relies on Simmons, in which the Supreme Court held that, when the prosecution seeks the death sentence based on the defendant's future dangerousness, and the only alternative sentence is life imprisonment without the possibility of parole, the defendant has a due process right to inform the jury that he is parole ineligible. 512 U.S. at ----, 114 S.Ct. at 2196. Mueller contends that, under Simmons, the trial court's ruling denied him due process because he was not able to rebut the Commonwealth's argument of future dangerousness with evidence of his parole ineligibility.

Page 546

Mueller asserts that the rule articulated in Simmons is not a "new" rule, because it was compelled by two United States Supreme Court decisions in effect at the time of his trial and direct appeal, Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), and Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). Thus, Mueller argues that the rule in Simmons applies retroactively to his case. We disagree.


In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334, the Supreme Court stated that, on habeas corpus review, constitutional error must be evaluated together with the interests of comity and finality. Id. at 308, 109 S.Ct. at 1074. Based on these multiple considerations, a Supreme Court decision articulating a "new" constitutional rule of criminal procedure generally will not be applied to a conviction which has become final before the rule is announced. Id. at 310, 109 S.Ct. at 1075.

"[A] case announces a 'new' rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Id. at 301, 109 S.Ct. at 1070. Since Mueller seeks the benefit of a rule articulated after his conviction became final on direct appeal, this Court must first determine whether Simmons announced a "new" rule under Teague before considering the merits of Mueller's claim. See Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994); O'Dell v. Netherland, 95 F.3d 1214, 1220-21 (4th Cir.1996).

The Teague analysis requires three steps. First, the reviewing court must determine the date on which the defendant's conviction became final for retroactivity purposes. Caspari, 510 U.S. at 390, 114 S.Ct. at 953. Second, the reviewing court must "survey the legal landscape" as it existed on the date the defendant's conviction became final to determine whether existing constitutional precedent compelled the conclusion [252 Va. 362] which the defendant sought. Id. Third, if the reviewing court determines that the defendant seeks the benefit of a "new" rule, the court "must decide whether that rule falls within one of the two narrow exceptions to the...

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