On
December 8,2015, a jury sitting in the Circuit Court of
Spotsylvania County found Simpson guilty of armed statutory
burglary in violation of Virginia Code § 18.2-91;
entering the home of a person with a protective order in
violation of Virginia Code § 16.1-253.2; and the lesser
included offense[1] of assault and battery in violation of
Virginia Code § 18.2-57. (CR at 189-92).[2] On February
10,2016, the circuit court sentenced Simpson to: 20 years in
prison for
armed statutory burglary; a term of three months in jail for
entering the home of a person with a protective order; and a
term of 12 months in jail for assault and battery. The
sentences for assault and battery and entering the home of a
person with a protective order were run concurrent with each
other. The final judgment order was entered on March 3,2016.
(CR at 233-35).
Simpson
filed a petition for appeal in the Court of Appeals of
Virginia, assigning error to the court's admission of a
portion of a recorded 911 call and a series of text
screenshots into evidence:
1. The Trial Court erred in admitting a portion of the 911
call containing a child's statement, “Daddy,”
in the background because:
a. The child's statement was hearsay and there were no
facts introduced to establish that the statement fit within a
recognized hearsay exception; and
b. The child's statement was substantially more
prejudicial than probative and had a tendency to mislead the
jury.
2. The Trial Court erred in admitting screenshot images of
text messages because:
a. The screenshots lacked the proper foundation;
b. The screenshots were not relevant; and
c. The screenshots were substantially more prejudicial than
probative.
The
court granted the petition for appeal and after further
briefing and argument the court affirmed Simpson's
convictions. Simpson v. Commonwealth, No.
0311-16-2,2017 Va.App. LEXIS 292 (Va. Ct. App. Nov. 21,2017).
The opinion summarized the evidence as follows:
Appellant and Erica Simpson[3] ... married and had two children,
J. and Z. In March 2014, after several years of marriage, the
couple separated. After appellant moved out of the family
home, he began sending threatening text messages to [Erica].
[Erica] took screenshots of many of the messages and uploaded
them to her computer, and on April 2, 2015, she obtained a
protective order against appellant.
Three weeks later, during the early hours of April 23,
[Erica] and her boyfriend, Javelle Rowe, were asleep in
[Erica]'s home. They were in the master bedroom with the
door locked. J. and Z., who were three and four years old,
respectively, were asleep in their bedrooms across the hall.
Before going to bed, [Erica] had checked to see that the
house was secured and the doors were locked. She had left
a small table light burning to provide some illumination for
the hallway between the bedrooms.
At approximately 1:30 a.m., [Erica] and Rowe awoke to the
sound of shattering glass. A few seconds later, they heard
footsteps coming down the hall. [Erica] ran into the suite
bathroom while Rowe went to the bedroom door. [Erica] heard a
“banging sound” coming from the bedroom door,
“[t]he sound it makes when someone hits it or kicks
it.” Rowe positioned himself against the door to
prevent anyone from entering.
[Erica] left the bathroom and returned to the bedroom to get
her phone. She yelled that she was going to call the police
and began dialing 911. [Erica] could see Rowe trying to keep
the door closed, but the intruder had managed to get a hand
and arm inside the door. The intruder was swinging a pipe,
and Rowe felt himself being struck on the wrist and head with
“a hard metal type of object,... just coming down on me
very forceful.”
About that time, [Erica] heard appellant speak to Rowe. Asked
at trial how certain she was that the voice she heard was
appellant's, [Erica] replied that she was very certain.
[Erica] also testified that she heard appellant say[,]
“it's okay, [J.],” when “[J.] said
[‘]daddy['] in the hallway.” Asked whether J.
said anything in return, or whether any of her children said
anything, [Erica] replied that “[t]hey said
[‘]daddy.[']” Rowe testified at trial that he
heard a male voice, but did not recognize the speaker and was
not sufficiently familiar with appellant to identify his
voice. He heard the male “in conversation” with
J. and Z., and noted that the children were “very calm.
They were comfortable with whom they were [speaking].”
The intruder stopped hitting Rowe at about the time Rowe
heard J. and Z. speaking with someone. A few moments later,
Rowe opened the bedroom door and [Erica] was able to go out
and check on her children. In the kitchen, [Erica] discovered
broken windowpanes in the exterior door and fragments of
glass scattered across the floor.
At approximately 2:00 a.m., appellant knocked on the door of
a cousin who lived near [Erica]'s home. He told her that
his mother's car was “acting up, like it was going
to break down,” and asked if he could sleep on her
couch. She agreed to let him do so. Shortly before 2:30 a.m.,
First Sergeant Woodard from the Spotsylvania County Sheriffs
Office arrived near the cousin's townhouse. Woodard
located a car suspected to be involved in the incident at
[Erica]'s home, a red Toyota Corolla, and inspected the
area around it. Woodard found a shard of glass beside the
vehicle. He also touched the Corolla's hood, and although
other vehicles in the area were cold to the touch, the
Corolla was warm. The car was towed to the sheriffs office
and released a few hours later to its registered owner,
appellant's mother. A detective testified at trial that
in releasing the vehicle, he was able to drive it out of the
sheriffs compound without difficulty.
Over appellant's objection, a portion of the recording of
[Erica]'s 911 call was entered into evidence at trial.
During the call, [Erica] tells the 911 operator that
appellant broke into her house and she thinks he is still
inside. The operator tells [Erica] to try and get her
children, but [Erica] says, “[n]o, I can hear him.
I'm not
going out there, I can hear him talking.” A few seconds
later, [Erica] tells the operator, “I can hear my
kids.” After a few more seconds, a voice in the
background says “daddy.”
Simpson, 2017 Va.App. LEXIS 292, *2-5.
The
Court of Appeals observed that Simpson had raised an
evidentiary error with regard to the 911 tape, and, applying
“the standard for non-constitutional harmless
error,” found that admitting the statement was harmless
error. Id. at *10. At trial, after the 911 tape was
played “which included the child's statement,
‘daddy,' audible in the background;” Erica
“testified that she heard appellant speak to their son
‘when [J.] said [‘]daddy['] in the
hallway;” and “that after the intruder spoke to
J.,” she heard her children say “daddy.”
Id. at * 11-12. “Thus, the recorded
child's statement, if erroneously admitted, was merely
cumulative of [Erica]'s testimony that a child said
‘daddy' during the home invasion.”
Id. at * 12. The court also found that the trial
court had not abused its discretion in finding the text
messages relevant, that the probative value outweighed the
prejudice, and that a proper foundation had been laid through
the unrebutted and unchallenged testimony of Erica.
Id. at *14-18.
Simpson
raised the same assertions of error in his petition for
appeal to the Supreme Court of Virginia, [Dkt. No. 23-11],
which, on June 29,2018, refused Simpson's petition for
appeal, [Dkt. No. 23-1], and on October 5,2018, denied
Simpson's petition for a rehearing. [Dkt. Nos. 23-2,
23-15].
On
September 30,2019, Simpson filed a petition for a writ of
habeas corpus in the Circuit Court of Spotsylvania
County,[4] asserting the following claims.
a) “Counsel Was Ineffective For Failure To Move For
Dismissal Of Screenshot Of The Text Messages When The
Commonwealth Failed To Present Their Forensic Analysis
Testimony Through Witness Detective Rickens: In Violation
Of Petitioner's Sixth And Fourteenth Amendment Rights Of
The United States Constitution.”
b) “Counsel Was Ineffective Pursuant To Conflict Of
Interest For Presenting To The Jury That Petitioner Was The
Author Of The Commonwealth's Evidence Of Screenshot Text
Messages: In Violation Of Petitioner's Sixth And
Fourteenth Amendment Rights Of The United States
Constitution.”
c) “Counsel Was Ineffective For Failure To Object To
Hearsay Evidence Pursuant To Son's Statement In 911 Tape:
In Violation Of Petitioner's Sixth And Fourteenth
Amendment Rights Of The United States Constitution.”
d) “Counsel Was Ineffective For Failure To Object To
The Commonwealth Using The 911 Tape of Son's Statement As
Identification: In Violation Of Petitioner's Sixth And
Fourteenth Amendment Rights Of The United States
Constitution.”
(Hab. at 5,6-7).
Over
six months later, on April 23,2020, Simpson filed a
memorandum in...
