Stamper v. Townley, 0059-85

• Decision Date: 07 April 1987
• Docket Number: No. 0059-85,0059-85
• Citation: 4 Va.App. 101,354 S.E.2d 802
• Parties: Charles Sylvester STAMPER v. Sherman L. TOWNLEY, Acting Warden, Virginia State Penitentiary. Record
• Court: Virginia Court of Appeals

Page 802

354 S.E.2d 802

4 Va.App. 101

Charles Sylvester STAMPER v. Sherman L. TOWNLEY, Acting Warden, Virginia State Penitentiary.

Record No. 0059-85.

Court of Appeals of Virginia.

April 7, 1987.

Dennis W. Dohnal (Bremner, Baber & Janus, Richmond, on briefs), for appellant.

Thomas D. Bagwell, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and BAKER and KEENAN, JJ.

JOSEPH E. BAKER, Judge.

Charles Sylvester Stamper (appellant) appeals from a judgment of the Circuit Court of the County of Henrico (habeas court) denying his petition for a writ of habeas corpus. On November 17, 1978, appellant was convicted by a jury of three counts of capital murder, one count of robbery, and three counts of use of a firearm during the commission of a felony. In accordance with the jury verdicts he was sentenced to death on each of the capital murder charges, life in the penitentiary on the robbery charge, and one year each on the weapons use charges.

Appellant's appeal of the convictions to the Supreme Court of Virginia was unsuccessful, see Stamper v. Commonwealth, 220 Va. 260, 257 S.E.2d 808 (1979), and his petition for a writ of certiorari was denied by the Supreme Court of the United States. See Stamper v. Commonwealth, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980).

On July 3, 1980, appellant filed a petition for habeas corpus in the habeas court asserting as his only ground for relief that the death penalty constitutes cruel and unusual punishment in violation of the Fifth, Eighth, Ninth and Fourteenth Amendments to the Constitution of the United States. The petition was denied by the habeas court on December 4, 1980, and that judgment was affirmed by the Supreme Court of Virginia on November 20, 1981. Appellant then sought relief in the United States District Court (district court), initially alleging only that the death penalty was unconstitutional. The district court appointed new counsel to represent appellant in the federal system and claims of ineffective assistance of counsel were added to appellant's allegations. The petition was denied by the district court on its merits on February 12, 1982. See Stamper v. Baskerville, 531 F.Supp. 1122 (E.D.Va.1982).

On October 4, 1982, the United States Court of Appeals for the Fourth Circuit remanded the case to the district court with direction that the petition be dismissed on the ground that appellant had not exhausted his state remedies as to his claim of ineffective assistance of counsel. The Commonwealth's petition for a writ of certiorari was denied by the United States Supreme Court on February 22, 1983. See Baskerville v. Stamper, 459 U.S. 1225, 103 S.Ct. 1231, 75 L.Ed.2d 466 (1983). On remand to the district court, the Commonwealth waived its right to claim failure to exhaust state remedies and the district court accepted the waiver on March 22, 1983. See Stamper v. Baskerville, 558 F.Supp. 100 (E.D.Va.1983). Appellant appealed the waiver ruling and the United States Court of Appeals vacated the waiver judgment, remanding the matter to the district court for dismissal. See Stamper v. Baskerville, 724 F.2d 1106 (4th Cir.1984). On February 6, 1984, an order dismissing the petition for a writ of habeas corpus was entered by the district court.

A new petition for habeas corpus upon which the present appeal is based was filed in the habeas court on July 10, 1984, and several allegations not made in the first petition were added. The Commonwealth's motion to dismiss the new petition was denied and a plenary hearing was ordered.

The new petition asserts that appellant at his trial on the several indictments was denied effective assistance of counsel in that:

1. Trial counsel failed to adequately voir dire the venire on the issue of pre-trial publicity, their prior knowledge of the case, and on the issue of the imposition of the death sentence;

2. trial counsel failed to request an adequate voir dire of certain jurors who indicated that during the trial they had visited the scene of the crime and heard publicity about the case; and

3. trial counsel concurred in a jury instruction which precluded a possible theory of defense and which suggested an improper statement of law.

The plenary hearing was held in the habeas court on September 6, 1984, and an order denying relief was entered on December 28, 1984. Appellant filed his notice of appeal on January 15, 1985.

I. JURISDICTION

Initially, we are confronted with a jurisdiction question. Three of the convictions underlying appellant's habeas petition are for capital murder for which death penalties were imposed. "[T]his court is without jurisdiction to hear habeas corpus appeals arising from convictions where the death penalty has been imposed." Peterson v. Bass, 2 Va.App. 314, 316, 343 S.E.2d 475, 477 (1986).

Prior to July 1, 1985, however, we were authorized to hear habeas appeals relative to the robbery and weapons use convictions. Id. at 317-18, 343 S.E.2d at 477-78. Finding no error, we affirm.

II. STANDARDS FOR EFFECTIVENESS

While appellant separates the issues into four parts, the ultimate question is whether trial counsel rendered ineffective assistance which was prejudicial to the defense. The basic question is whether the defendant had a fair trial. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984). In this regard, we note that the defendant is entitled to a fair trial, not a perfect one. Oliver v. Commonwealth, 151 Va. 533, 541, 145 S.E. 307, 309 (1928). "[A] fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding." Strickland, 466 U.S. at 685, 104 S.Ct. at 2063. In such a proceeding, a person accused of a crime has the right to have counsel appointed if he cannot retain one. Id. And the right to counsel is the right to effective assistance of counsel. Id. at 686, 104 S.Ct. at 2063. The defendant can be deprived of the right to effective assistance by counsel's failure to render adequate legal assistance. Id.

"The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id.

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687, 104 S.Ct. at 2064; see also Correll v. Commonwealth, 232 Va. 454, ---, 352 S.E.2d 352, 361 (1987).

There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.

Id., 466 U.S. at 691-92, 104 S.Ct. at 2066-2067 (citations omitted).

The standard required for attorney performance is that of reasonably effective assistance, and "when a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 687-88, 104 S.Ct. at 2064-2065.

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to secondguess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.

Id. at 689, 104 S.Ct. at 2065 (citations omitted).

Having reviewed Strickland's general standards for judging ineffectiveness of trial counsel, we now examine defense counsel's actions at trial, together with their responses made in the habeas proceedings, to determine whether those standards were met in the defense of the robbery and use of weapons charges over which we had jurisdiction when this appeal was presented to us.

To properly evaluate counsel's performance we must consider the salient facts disclosed by the...