Emmett v. Warden of Sussex I State Prison

Citation609 S.E.2d 602,269 Va. 164
Decision Date03 March 2005
Docket NumberNo. 031201.,031201.
CourtVirginia Supreme Court
PartiesChristopher Scott EMMETT, Petitioner, v. WARDEN OF THE SUSSEX I STATE PRISON, Respondent.

UPON A PETITION FOR WRIT OF HABEAS CORPUS. UPON A REHEARING.

In a petition for writ of habeas corpus, the petitioner, Christopher Scott Emmett, claimed, among other things, that he was denied effective assistance of counsel in his capital murder trial because his trial counsel failed to object to a penalty phase verdict form.1 Relying on this Court's decision in Atkins v. Commonwealth, 257 Va. 160, 510 S.E.2d 445 (1999), Emmett asserted that the verdict form was incomplete because it did not include an option requiring a sentence of life imprisonment upon a finding that the Commonwealth had proven neither the "future dangerousness" nor the "vileness" aggravating factor. Applying the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we concluded, in an order dated June 4, 2004, that trial counsel's performance was deficient by failing to object to an incomplete verdict form but that Emmett suffered no prejudice because the jury found that the Commonwealth had proven both aggravating factors beyond a reasonable doubt.2 Thus, the jury would not have had any occasion to consider imposing the mandatory sentence of life when neither aggravating factor was established. We subsequently granted a petition to rehear filed by the respondent, Warden of the Sussex I State Prison (Warden), on the question whether trial counsel's performance was deficient.3

At issue in Emmett's habeas petition and in this rehearing is the following penalty phase verdict form provided to the jury:

VERDICT FORM

(The foreperson should initial the line for each finding made unanimously by the jury.)
(1) We, the jury, on the issue joined, having found the defendant guilty of capital murder in the commission of robbery of John Fenton Langley and
___ a) find beyond a reasonable doubt that after consideration of his prior history that there is a probability that he would commit criminal acts of violence that would constitute a continuing serious threat to society;
and/or
b) find beyond a reasonable doubt that his conduct in committing the offense is outrageously and wantonly vile, horrible or inhuman in that it involved
___ 1) depravity of mind;
and/or
___ 2) aggravated battery to the victim and having considered the evidence in mitigation of the offense, unanimously fix his punishment at death.

Signed _______________________ foreperson

or
(2) We, the jury, on the issue joined, having found the defendant guilty of capital murder in the commission of robbery of John Fenton Langley and ___ a) find beyond a reasonable doubt that after consideration of his prior history that there is a probability that he would commit criminal acts of violence that would constitute a continuing serious threat to society;
and/or
b) find beyond a reasonable doubt that his conduct in committing the offense is outrageously or wantonly vile, horrible or inhuman in that it involved
___ 1) depravity of mind;
and/or
___ 2) aggravated battery to the victim and believe from all the evidence, including the evidence in mitigation, that the death penalty is not justified, fix his punishment at:
___ a) imprisonment for life;
or
___ b) imprisonment for life and a fine of ____________, an amount not to exceed $100,000.00.

Signed _______________________ foreperson

The Warden argues that this verdict form paralleled the trial court's sentencing instructions4 and provided a "simple decisional tree" allowing the imposition of either a life sentence or a death sentence if the jury found one or both aggravating factors but leaving only the option of a life sentence with or without a fine if the jury found neither aggravating factor. According to the Warden, the verdict form followed the format of the statutory verdict form set out in Code § 19.2-264.4(D). Thus, argues the Warden, Emmett's trial counsel could not have been ineffective for failing to object to a verdict form that this Court had previously upheld when challenged in Roach v. Commonwealth, 251 Va. 324, 336, 468 S.E.2d 98, 105, cert. denied, 519 U.S. 951, 117 S.Ct. 365, 136 L.Ed.2d 256 (1996); Stewart v. Commonwealth, 245 Va. 222, 244-45, 427 S.E.2d 394, 408-09, cert. denied, 510 U.S. 848, 114 S.Ct. 143, 126 L.Ed.2d 105 (1993); and Mueller v. Commonwealth, 244 Va. 386, 412-13, 422 S.E.2d 380, 396-97 (1992), cert. denied, 507 U.S. 1043, 113 S.Ct. 1880, 123 L.Ed.2d 498 (1993).5

By comparing the verdict form used in Atkins with the one given to the jury in Emmett's sentencing proceeding, it is evident that both verdict forms omitted the provisions required by Code § 19.2-264.4(D)(2).6 Contrary to the Warden's argument, Emmett's verdict form cannot be read otherwise. Thus, as in Atkins, the verdict form used in Emmett's sentencing proceeding, as a whole, was incomplete.

Since we decided Atkins more than two years before the commencement of Emmett's trial and since the verdict form used in Emmett's sentencing proceeding had the same omission as the verdict form at issue in Atkins, we conclude that the representation provided to Emmett by his trial counsel "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Reasonably competent counsel would have objected to a verdict form that did not comport with the holding in Atkins and the requirements of Code § 19.2-264.4(D)(2). See Green v. Warden, 264 Va. 604, 609, 571 S.E.2d 135, 138 (2002). Thus, Emmett has satisfied the "performance prong" of the two-part test set forth in Strickland.

That conclusion does not end the inquiry. To prevail on a claim of ineffective assistance of counsel, Emmett must also show that the "deficient performance prejudiced the defense." Strickland, 466 U.S. at 687, 104 S.Ct. 2052. To satisfy the "prejudice prong" of the Strickland two-part test, Emmett "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052.

Emmett, however, argues that the omission in the verdict form at issue is a "structural error" and thus not subject to the Strickland prejudice analysis.7 As the Supreme Court of the United States has explained, a structural error is a "defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); accord Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)

; Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). Such errors "infect the entire trial process," thereby requiring "automatic reversal of [a] conviction." Brecht v. Abrahamson, 507 U.S. 619, 629-30, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). They "necessarily render a trial fundamentally unfair." Rose v. Clark, 478 U.S. 570, 577, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986).

"If [a] defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis." Id. at 579, 106 S.Ct. 3101; accord Neder, 527 U.S. at 8,

119 S.Ct. 1827. Thus, the Supreme Court has found an error to be "structural" and not subject to harmless-error analysis in a "very limited class of cases." Johnson, 520 U.S. at 468,

117 S.Ct. 1544; accord Neder, 527 U.S. at 8,

119 S.Ct. 1827. See, e.g., Sullivan v. Louisiana, 508 U.S. 275, 281-82, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (constitutionally deficient reasonable-doubt instruction to jury); Vasquez v. Hillery, 474 U.S. 254, 263-64, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (systematic exclusion of grand jurors who were of defendant's race); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (denial of the right to a public trial); McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (infringing the right of self-representation during trial); Holloway v. Arkansas, 435 U.S. 475, 490-91, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978) (improperly requiring counsel to represent co-defendants despite timely objection stating conflict of interest); Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (denial of the right to counsel in criminal cases); Tumey v. Ohio, 273 U.S. 510, 535, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (denial of right to have an impartial trial judge).

Similarly, we have found structural error in a narrow class of cases. For example, in a petition for writ of habeas corpus asserting a claim of ineffective assistance of counsel, we held that a jury instruction stating that the jury shall find the defendant guilty if the Commonwealth failed to prove each of the elements of the offense beyond a reasonable doubt was not subject to the Strickland prejudice analysis. Green, 264 Va. at 611-12, 571 S.E.2d at 140; see also Strickland, 466 U.S. at 692,

104 S.Ct. 2052 (prejudice is presumed in certain Sixth Amendment contexts such as actual or constructive denial of assistance of counsel altogether). Because of the constitutionally erroneous jury instruction, we could not "determine whether, but for counsel's deficient performance, the result of the proceeding would have been different because there was no `result,' i.e., no verdict of guilty-beyond-a-reasonable-doubt." Green, 264 Va. at 611, 571 S.E.2d at 140.

In contrast, the Supreme Court has applied the harmless-error analysis to a broad range of constitutional errors. See, e.g., Mitchell v. Esparza, 540 U.S. 12, 16-17, 978, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (trial court failed to instruct on all of the statutory elements of a capital murder offense); Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (use for impeachment purposes of a...

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    • United States
    • U.S. District Court — Western District of Virginia
    • 20 Mayo 2005
    ...itself, the court explained, "this issue is not controlled by Atkins." Powell, 552 S.E.2d at 363; cf. Emmett v. Warden of Sussex I State Prison, 269 Va. 164, 609 S.E.2d 602, 605 (2005) (finding counsel's performance ineffective for failing to object to a verdict form prior to Powell when th......
  • Jones v. West
    • United States
    • Supreme Court of Virginia
    • 9 Agosto 2005
    ...the framework within which the trial proceeds, rather than simply an error in the trial process itself.'" Emmett v. Warden, 269 Va. 164, 168, 609 S.E.2d 602, 605 (2005) (quoting Fulminante, 499 U.S. at 310, 111 S.Ct. at 1265). Examples of errors which affect the framework of a trial include......
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    • United States
    • Supreme Court of Virginia
    • 3 Junio 2005
    ...the trial process itself." Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); see Emmett v. Warden, 269 Va. 164, 168, 609 S.E.2d 602, 605 (2005). As such, it is the constitutional magnitude of the error that defies "harmless error review." Neder v. United Stat......
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