Powell v. Warden of Sussex I State Prison, Record No. 042716 (VA 11/8/2005)
| Decision Date | 08 November 2005 |
| Docket Number | Record No. 042716. |
| Parties | Paul Warner Powell, Petitioner, v. Warden of the Sussex I State Prison, Respondent. |
| Court | Virginia Supreme Court |
Upon consideration of the petition for a writ of habeas corpus filed December 27, 2004, and the respondent's motion to dismiss, the Court is of the opinion that the motion should be granted and the writ should not issue.
Petitioner, Paul Warner Powell, was originally convicted in the Circuit Court of Prince William County of the capital murder of Stacey Lynn Reed, abduction, rape of Stacey's younger sister, Kristie Reed, and attempted capital murder of Kristie Reed. The jury fixed petitioner's sentence at death for the capital murder conviction and three terms of life imprisonment and fines totaling $200,000 for the remaining convictions. Upon review of the capital murder conviction and the death sentence imposed upon petitioner, this Court reversed the capital murder conviction upon a finding that the indictment charging petitioner with capital murder in the commission of robbery and/or attempted robbery had been improperly amended to include a charge of capital murder "during the commission of or subsequent to rape and/or attempted rape and/or sodomy and/or attempted sodomy." Powell v. Commonwealth, 261 Va. 512, 532, 552 S.E.2d 344, 355-56 (2001) ("Powell I"). This Court reversed petitioner's conviction for capital murder, affirmed the remaining convictions, and remanded the case "for a new trial on a charge of no greater than first degree murder for the killing of Stacey Reed, if the Commonwealth be so advised." Id. at 546, 552 S.E.2d at 363.
After the opinion issued and petitioner had been indicted for first-degree murder, petitioner wrote a letter to the Commonwealth's Attorney in which petitioner described how he had attempted to rape Stacey Reed before he murdered her. Based on this new evidence, the Commonwealth moved to enter a nolle prosequi of the indictment in the remanded case, and sought a new indictment against petitioner for capital murder. On December 3, 2001, the grand jury returned an indictment charging petitioner with the capital murder of "Stacey Lynn Reed during the commission of or subsequent to the attempted rape of Stacey Lynn Reed."
Apart from the new evidence of petitioner's October 21, 2001 letter to the Commonwealth's Attorney in which petitioner confessed to the attempted rape of Stacey, the evidence presented during the guilt-determination phase of petitioner's second trial was not markedly different from that received during the first trial. The jury found petitioner guilty of capital murder and fixed his sentence at death, finding both aggravating factors of future dangerousness and vileness. The trial court confirmed the jury's sentence of death. This Court affirmed petitioner's conviction and approved the sentence of death in Powell v. Commonwealth, 267 Va. 107, 590 S.E.2d 537 (2004), cert. denied, ___ U.S. ___, 125 S.Ct. 86 (2004) ("Powell II").
"A petition for writ of habeas corpus is not a substitute for an appeal or a writ of error." Morrisette v. Warden, 270 Va. 188, ___, 613 S.E.2d 551, 554 (2005) (citing Slayton v. Parrigan, 215 Va. 27, 29, 205 S.E.2d 680, 682 (1974), cert. denied, 419 U.S. 1108 (1975); Brooks v. Peyton, 210 Va. 318, 321-22, 171 S.E.2d 243, 246 (1969)). Further, claims that have been previously raised and decided at trial and on direct appeal are not cognizable in a petition for writ of habeas corpus. Henry v. Warden, 265 Va. 246, 249, 576 S.E.2d 495, 496 (2003).
In claim I(A), petitioner alleges that the Commonwealth violated his right against double jeopardy by trying him twice for the same offense. In the first portion of claim I(B), petitioner alleges that the prosecutor's animosity towards him demonstrates that petitioner's due process rights were violated and he was tried a second time for capital murder because of prosecutorial vindictiveness. In claim II(D), petitioner alleges that the Commonwealth violated his right to counsel by eliciting incriminating statements from him on November 2, 2001 while petitioner was still represented by the attorney who had been appointed to represent petitioner in his previous trial. In claim IV(C), petitioner alleges that his due process rights and right to a reliable sentencing proceeding were violated by the trial court's vague vileness jury instruction.
The Court holds that claims I(A), II(D), IV(C), and the first portion of I(B) are barred because these issues were raised and decided in the trial court and on direct appeal from the criminal conviction and, therefore, they cannot be raised on habeas corpus. Henry, 265 Va. at 249, 576 S.E.2d at 496.
In the second portion of claim I(B), petitioner alleges, for the first time, that because the prosecutor sought a capital murder charge after the petitioner had been successful on appeal, there is a "presumption" that his second trial for capital murder was the result of prosecutorial vindictiveness. In claim I(C), petitioner alleges that his subsequent trial violated "the collateral estoppel component of the Double Jeopardy Clause" and violated petitioner's right against double jeopardy.
In claim II(A), petitioner alleges the Commonwealth violated his constitutional rights by taking statements from petitioner on January 30 and 31, 1999 without obtaining a waiver of petitioner's Sixth Amendment right to counsel. Petitioner claims that his right to counsel had attached because a magistrate had issued a warrant for his arrest. In claim II(B), petitioner alleges that his subsequent statements on February 4, 1999 were unconstitutionally obtained as they were "fruits of the poisonous tree" as a result of the Commonwealth illegally obtaining his January 30 and 31, 1999 statements. In claim II(C), petitioner alleges his February 4, 1999 statements were "per se invalid" as the police elicited the statements from him without counsel being present even though petitioner had requested counsel and counsel had been appointed on February 1, 1999.
In claim II(E), petitioner alleges that the Commonwealth violated his right to counsel by scheduling the November 2, 2001 interview before petitioner was formally indicted on December 3, 2001. In claim II(F), petitioner alleges that the prosecution "unconstitutionally and unethically" communicated to him through the police interview on November 2, 2001, violated Rules of Professional Conduct 4.2 and 5.3, interfered with petitioner's relationship with counsel, and violated his right to counsel. In claim II(G), petitioner alleges his Fourth and Fifth Amendment rights were violated as petitioner's waiver of his Miranda rights on November 2, 2001, was involuntarily given.
In claim III(A), petitioner alleges that the remarks made by the Commonwealth's Attorney in opening and closing arguments violated his rights under the Fifth, Eight, and Fourteenth Amendments as the "remarks vouched for the personal opinions of the prosecutors that [petitioner] deserved the death penalty." In claim III(B), petitioner alleges that remarks made by the Commonwealth's Attorney in the penalty phase of the trial regarding the effect of the death penalty in deterring other people from committing future crimes violated his Fifth, Eighth, and Fourteenth Amendments rights.
In claim IV(A), petitioner alleges he was unconstitutionally prosecuted because the indictment against him was deficient as it did not allege either vileness or future dangerousness and neither factor was proven beyond a reasonable doubt at trial. In claim IV(B), petitioner alleges that the Commonwealth was collaterally estopped from presenting the issue of future dangerousness at his second trial because the jury at petitioner's first trial returned a finding only of vileness.
In claim IV(D), petitioner alleges that his constitutional rights were violated by the vague jury instruction on future dangerousness. In claim IV(E), petitioner alleges that the jury instruction on future dangerousness unconstitutionally "relieved the Commonwealth of its burden to prove every element beyond a reasonable doubt" because it told the jury that it only had to find a "probability" of future dangerousness. In claim IV(F), petitioner alleges that his due process rights and right to a reliable sentencing proceeding were violated because the future dangerousness aggravating factor excludes consideration of petitioner's life in prison.
In claim V(A), petitioner alleges that his right to due process, his right to be able to participate in his trial, and his right to "heightened reliability" in his trial were violated by the medication administered to him in prison before trial and the stun belt he wore at trial.
In claim VI(A), petitioner alleges that his rights to due process and a reliable sentencing hearing were violated when the Commonwealth knowingly introduced Exhibit 51 as evidence of his criminal history at the penalty phase of the trial. In claim VI(B), petitioner alleges that the Commonwealth violated his due process rights by failing to inform petitioner that "some of the entries on Commonwealth Exhibit 51 were false and misleading." In a portion of claim VI(C), petitioner alleges that the Commonwealth violated Code §§ 19.2-295.1, -264.2, and -264.4 because Exhibit 51 was not a "record of convictions" and listed charges which had been either nolle prossed or of which petitioner was found not guilty. In another portion of claim VI(C), petitioner alleges that the Commonwealth violated Code § 19.2-264.3:2 because the Commonwealth failed to give notice of its intent to present evidence of unadjudicated criminal conduct. In claim VI(D), petitioner alleges the Commonwealth violated his Sixth Amendment rights when it introduced Exhibit 51 because there was no "foundational testimony as to the personal knowledge of the record-keeper, the regularity of its...
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