Gray v. Warden of The Sussex I State Prison

• Citation: 281 Va. 303,707 S.E.2d 275
• Decision Date: 04 March 2011
• Docket Number: Record No. 080524.
• Court: Supreme Court of Virginia
• Parties: Ricky Jovan GRAY, Petitioner,v.WARDEN OF the SUSSEX I STATE PRISON, Respondent.

281 Va. 303

707 S.E.2d 275

Ricky Jovan GRAY, Petitioner,

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

Record No. 080524.

Supreme Court of Virginia.

March 4, 2011.

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

Upon consideration of the petition for a writ of habeas corpus filed March 14, 2008, and the respondent's motion to dismiss, the Court is of opinion that the writ should be granted in part and dismissed in part.

Petitioner, Ricky Jovan Gray, was convicted in the Circuit Court of the City of Richmond of capital murder in the commission of a robbery or attempted robbery under Code § 18.2–31(4), capital murder of more than one person as part of the same transaction under Code § 18.2–31(7), capital murder of more than one person within a three-year period under Code § 18.2–31(8), and two counts of capital murder of a person under the age of fourteen by a person age twenty-one or older under Code § 18.2–31(12). The crimes concerned the killing of four members of a family during a home invasion robbery. After finding the aggravating factor of vileness, the jury fixed petitioner's sentence at death for each of the two convictions under Code § 18.2–31(12) and life imprisonment for each of the three remaining capital convictions. The trial court sentenced petitioner in accordance with the jury's verdicts. This Court affirmed petitioner's convictions and upheld his sentence of death in Gray v. Commonwealth, 274 Va. 290, 295, 645 S.E.2d 448, 451 (2007), cert. denied, 552 U.S. 1151, 128 S.Ct. 1111, 169 L.Ed.2d 826 (2008).

I.

In claim (IV), petitioner alleges he was denied the effective assistance of counsel because counsel failed to protect petitioner's rights to be free from double jeopardy. Petitioner contends he was tried and punished for separate counts of capital murder under Code § 18.2–31(7) and (8) even though the crimes arose from the same criminal act and “one punishment is for a crime which is a lesser included offense of the other.” Furthermore, petitioner contends that counsel failed to advise petitioner that a non-frivolous ground for appeal existed, namely that petitioner's rights against double jeopardy had been violated as alleged in claim (IV).

The Court holds that claim (IV) satisfies the “performance” and the “prejudice” prongs of the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As this Court held in Andrews v. Commonwealth, 280 Va. 231, 287–88, 699 S.E.2d 237, 269–70 (2010), the double jeopardy prohibition against multiple punishments is violated when a defendant receives separate sentences under Code § 18.2–31(7) and (8) when each of the constituent murders for both convictions occurred as part of the same act or transaction. There is a reasonable probability that, but for counsel's failure to raise this issue at trial, the Commonwealth would have been permitted to proceed to sentencing on only one of the two indictments. Therefore, petitioner is granted a writ of habeas corpus as to his life sentences imposed under Code § 18.2–31(7) and (8), and these convictions are remanded and the Circuit Court of the City of Richmond is directed to exercise its discretion to vacate one of the underlying convictions. See Ball v. United States, 470 U.S. 856, 864, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985).

II.

The remainder of the petition is dismissed for the reasons as follows:

In a portion of claim (I), petitioner alleges that the Commonwealth improperly concealed material and exculpatory evidence and knowingly made false representations in violation of the holdings in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). During argument at petitioner's October 23, 2006 sentencing hearing, the prosecutor commented that Ray Dandridge, who had participated in the murders of the family members, had pleaded guilty to capital murder and been sentenced to life imprisonment in connection with another set of murders, “was one or two points above the level of retardation, depending on when in his life he was tested and depending on who tested him.” Petitioner contends that the comment was made to undercut petitioner's argument that Dandridge was relatively more culpable in the crimes and that petitioner's sentence should be proportional to the life sentence Dandridge received. Relying on a September 2006 report prepared by a mental health expert in anticipation of Dandridge's capital murder trial for the other set of murders, petitioner contends that the Commonwealth was aware that its representations about Dandridge were false. Petitioner contends further that the report was not made available to him.

The Court holds that this portion of claim (I) is without merit. The September 2006 capital sentencing evaluation report of Dandridge, proffered by petitioner in support of his petition for a writ of habeas corpus, demonstrates that Dandridge had taken a number of I.Q. tests during the course of his life and that his performance I.Q. score in 2006 was two points above the legal threshold under which one could be classified as being mentally retarded in Virginia. See Johnson v. Commonwealth, 267 Va. 53, 75, 591 S.E.2d 47, 59 (2004), vacated on other grounds, 544 U.S. 901, 125 S.Ct. 1589, 161 L.Ed.2d 270 (2005). As a result, the prosecutor's comment that Dandridge scored a few points above the cut-off for determining mental retardation, “depending on when in his life he was tested and depending on who tested him,” did not violate Napue because it was not false.

Furthermore, petitioner has failed to show that Dandridge's evaluation report was material to petitioner's case. Evidence is only material if its suppression would undermine the confidence in the outcome of the trial. Teleguz v. Commonwealth, 273 Va. 458, 488, 643 S.E.2d 708, 727 (2007). The record, including the September 2006 evaluation report, the trial and sentencing hearing transcripts, and petitioner's pre-sentence report, demonstrates that Dandridge's evaluation occurred after the jury returned with its findings of guilt and recommendations as to the sentences petitioner should receive. Petitioner has failed to prove that the court would not have imposed the death sentence as the jury had recommended had the report been made available to petitioner prior to being sentenced by the court.

In another portion of claim (I), petitioner alleges that the Commonwealth presented misleading testimony from Detective Howard Peterman, who testified that a written narrative of petitioner's interview constituted the entirety of petitioner's statement. Detective Peterman denied that he had informed petitioner about anything that Dandridge had told the police. Petitioner claims that Detective Peterman's testimony conflicts with petitioner's recollection that Detective Peterman had provided petitioner with information obtained from Dandridge. Petitioner contends also that Detective Peterman provided inconsistent testimony a year and a half after petitioner's trial during a pretrial hearing in Culpeper County. At that time, Detective Peterman stated that he had spoken with petitioner about the murders before he memorialized the statement into writing.

The Court holds that this portion of claim (I) is barred. Petitioner was present during the interview and, therefore, knew what Detective Peterman said to him, whether the written statement covered the entirety of petitioner's interview, and whether Detective Peterman's testimony was truthful. Thus, this non-jurisdictional issue could have been raised at trial and on direct appeal and, thus, is not cognizable in a petition for a writ of habeas corpus. Slayton v. Parrigan, 215 Va. 27, 29–30, 205 S.E.2d 680, 682 (1974), cert. denied, 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975).

In another portion of claim (I), petitioner alleges that during closing arguments, the prosecutor falsely told the jury that petitioner was not “under the influence of anything” when he committed the murders even though petitioner had told the police when he was arrested that he was on “PCP” on the day of the murders.

The Court holds that this portion of claim (I) is barred because this non-jurisdictional issue could have been raised at trial and on direct appeal and, thus, is not cognizable in a petition for a writ of habeas corpus. Id.

In claim (I), footnote (2), petitioner alleges: “Should the Court determine that claims alleged herein are defaulted because counsel could have presented the claim[s] at trial and on appeal, [petitioner] alleges that he was deprived of his right to effective representation under Strickland ... by counsel's failure to investigate and present the claims set out herein under Brady and Napue.”

The Court holds that this portion of claim (I) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the affidavit of counsel, demonstrates that petitioner did not inform counsel that he had been provided details of the crimes, and that, despite his statement that he was on PCP the day of the murders, petitioner assured counsel that “PCP could not be to blame” as petitioner “knew what he was doing.” Counsel made a tactical decision not to try to blame petitioner's actions on his use of drugs because counsel decided that a defense of intoxication would detract from the best defense at sentencing, which would be to focus on the abuse petitioner suffered as a child. Additionally, assuming counsel had Dandridge's September 2006 mental evaluation, petitioner cannot demonstrate that counsel should have used the report to rebut the Commonwealth's argument. The report did not indicate that Dandridge controlled petitioner but rather contained information that Dandridge believed petitioner had tricked him and that Dandridge suffered mental...