Porter v. Warden of the Sussex I State Prison

• Decision Date: 02 March 2012
• Docket Number: Record No. 091615.
• Citation: 283 Va. 326,722 S.E.2d 534
• Court: Virginia Supreme Court
• Parties: Thomas Alexander PORTER, Petitioner, v. WARDEN OF THE SUSSEX I STATE PRISON, Respondent.

283 Va. 326

722 S.E.2d 534

Thomas Alexander PORTER, Petitioner,

v.WARDEN OF THE SUSSEX I STATE PRISON, Respondent.

Record No. 091615.

Supreme Court of Virginia.

March 2, 2012.

Present: KINSER, C.J., LEMONS, GOODWYN and MILLETTE, JJ., and CARRICO, LACY and KOONTZ, S.JJ.

Upon a Petition for a Writ of Habeas Corpus

Upon consideration of the petition for a writ of habeas corpus filed August 10, 2009, the respondent's motion to dismiss, the petitioner's opposition to the motion to dismiss, the respondent's supplemental motion to dismiss, the petitioner's opposition to the supplemental motion to dismiss, and the respondent's reply to petitioner's opposition, as well as the criminal, appellate, and habeas records in this case, the Court is of the opinion that the motion to dismiss should be granted and the writ should not issue.

Thomas Alexander Porter was convicted in the Circuit Court of the City of Norfolk of capital murder, use of a firearm in the commission of a felony, and grand larceny. The jury found the aggravating factor of “future dangerousness” and fixed Porter's sentence at death for the capital murder conviction and 22 years' imprisonment for the non-capital offenses. The trial court imposed the sentences fixed by the jury. This Court affirmed petitioner's convictions and upheld the sentence of death in Porter v. Commonwealth, 276 Va. 203, 215, 661 S.E.2d 415, 419 (2008), cert. denied, 556 U.S. 1189, 129 S.Ct. 1999, 173 L.Ed.2d 1097 (2009).

CLAIM (I)

In Claim (I), petitioner alleges he was denied the right to a fair trial by an impartial jury because Juror T, who served as a juror during petitioner's trial, failed to disclose during voir dire that Juror T's brother was employed as a deputy sheriff in Chesapeake, Virginia. When asked by defense counsel if he had any family members involved in law enforcement, Juror T stated only that he had a nephew who was a police officer in Arlington County, where the case was being tried after a change of venue from the City of Norfolk. Petitioner alleges that Juror T's service was affected because the victim was a law enforcement officer. Petitioner contends that Juror T found the victim's wife to be a powerful witness and that he found her testimony moving and emotional precisely because Juror T's brother is a deputy sheriff. Petitioner alleges that due to Juror T's concealment of his brother's service as a Chesapeake law enforcement officer, petitioner was unable to conduct meaningful voir dire as to the juror's potential prejudice.

The Court holds that it can consider Claim (I), but it is without merit. The record, including the trial transcript and the affidavits provided in support of the petition for a writ of habeas corpus, demonstrates that Juror T did not disclose his brother's service as a Chesapeake law enforcement officer during voir dire or at any time prior to the conclusion of petitioner's direct appeal. Thus, this constitutional claim could not have been raised at trial or on direct appeal and is ripe for consideration.

In determining whether to grant a new trial based on an allegation that a juror was dishonest during voir dire, this Court applies the two-part test enunciated in McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984), which states that

to obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. The motives for concealing information may vary, but only those reasons that affect a juror's impartiality can truly be said to affect the fairness of a trial.

Id. at 556, 104 S.Ct. 845.

In this case, defense counsel, Joseph A. Migliozzi, Jr., asked the jurors, “But is anyone here, or a member of your close personal family, worked in law enforcement in any capacity as a volunteer or an employee?” Several prospective jurors, including Juror T, raised hands in response. The entirety of the exchange with Juror T was as follows:

[JUROR T]: My nephew is an Arlington County police officer.

MR. MIGLIOZZI: Your nephew?

[JUROR T]: Yes.

MR. MIGLIOZZI: In this county here?

[JUROR T]: Yes.

MR. MIGLIOZZI: Do you think, with that being the case, that that would impair your ability to sit on this jury and render a fair and impartial verdict in this case?

[JUROR T]: No.

Upon receiving Juror T's negative response, counsel moved on to the next prospective juror. The record demonstrates that Juror T answered truthfully that he had a nephew who was an Arlington County Police Officer, Arlington County being the jurisdiction where the case was being tried following a change of venue, and that he was not asked, nor did he have the opportunity to answer, if he had any additional relationships with law enforcement officers. Thus, petitioner has failed to demonstrate that Juror T failed to answer honestly a material question during voir dire.

CLAIM (II)

In Claim (II), petitioner alleges the Commonwealth failed to disclose exculpatory information as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and presented false testimony or allowed it to go uncorrected in violation of Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

As the Court has stated previously:

In Brady[ ], the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87 . Whether evidence is material and exculpatory and, therefore, subject to disclosure under Brady is a decision left to the prosecution. Pennsylvania v. Ritchie, 480 U.S. 39, 59 [107 S.Ct. 989, 94 L.Ed.2d 40] (1987). Inherent in making this decision is the possibility that the prosecution will mischaracterize evidence, albeit in good faith, and withhold material exculpatory evidence which the defendant is entitled to have under the dictates of Brady. If the defendant does not receive such evidence, or if the defendant learns of the evidence at a point in the proceedings when he cannot effectively use it, his due process rights as enunciated in Brady are violated. United States v. Russell, 971 F.2d 1098 (4th Cir.1992); United States v. Shifflett, 798 F.Supp. 354 (1992); Read v. Virginia State Bar, 233 Va. 560, 564–65, 357 S.E.2d 544, 546–47 (1987).

Exculpatory evidence is material if there is a reasonable probability that the outcome of the proceeding would have been different had the evidence been disclosed to the defense. “A reasonable probability” is one which is sufficient to undermine confidence in the outcome of the proceeding. United States v. Bagley, 473 U.S. 667, 682 [105 S.Ct. 3375, 87 L.Ed.2d 481] (1985); Robinson v. Commonwealth, 231 Va. 142, 151, 341 S.E.2d 159, 164 (1986).

Muhammad v. Warden, 274 Va. 3, 4, 646 S.E.2d 182, 186 (2007) (quoting Muhammad v. Commonwealth, 269 Va. 451, 510, 619 S.E.2d 16, 49–50 (2005) (quoting Bowman v. Commonwealth, 248 Va. 130, 133, 445 S.E.2d 110, 111–12 (1994))), cert. denied, 552 U.S. 1319, 128 S.Ct. 1889, 170 L.Ed.2d 760 (2008).

Furthermore, this Court has previously held that, “[i]n order to find that a violation of Napue occurred[,] ... we must determine first that the testimony [at issue] was false, second that the prosecution knew of the falsity, and finally that the falsity affected the jury's judgment.” Teleguz v. Commonwealth, 273 Va. 458, 492, 643 S.E.2d 708, 729 (2007), cert. denied, 552 U.S. 1191, 128 S.Ct. 1228, 170 L.Ed.2d 78 (2008).

(A)

In Claim (II)(A), petitioner alleges the Commonwealth was required to, but did not, disclose that a prosecution witness, Jim Downey, was under arrest for a probation violation that exposed him to a 17 year prison sentence at the time he testified at petitioner's trial. Petitioner contends that the Commonwealth failed to disclose that the prosecutor pursuing the probation violation charges against Downey was the same prosecutor who elicited Downey's testimony at petitioner's trial, and that Downey was arrested on the same day that he provided testimony in petitioner's trial, and then later released on his own recognizance.

Because the information regarding Downey's arrest was available to petitioner via public records in existence at the time of his direct appeal, the Court holds that Claim (II)(A) is barred because this non-jurisdictional issue could have been raised on direct appeal and, thus, is not cognizable in a petition for a writ of habeas corpus. Slayton v. Parrigan, 215 Va. 27, 29, 205 S.E.2d 680, 682 (1974), cert. denied, 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975).

(B)

In Claim (II)(B), petitioner alleges the Commonwealth failed to disclose to him that Simone Coleman, a prosecution witness, contradicted the claim of Selethia Anderson, another prosecution witness, of having seen the shooting occur. Relying on an affidavit by Coleman, petitioner argues that Anderson's testimony that she was sitting on her front porch when she saw the police vehicle arrive, watched as petitioner approached the officer and shot him, and observed petitioner run towards his parked vehicle and point his gun in her direction, causing her to flee inside with her baby, was subject to impeachment by Coleman's statement that she lived in the same apartment and did not see anyone sitting on the porch during the same time frame.

The Court need not resolve questions related to whether this information was material because the Court holds that the evidence was not favorable to petitioner, as it did not contradict the testimony of Selethia Anderson and, therefore, failure to disclose was not a violation of Brady. In order to show a violation of Napue, petition...