Virginia Dept. of Corrections v. Clark

• Citation: 318 S.E.2d 399,227 Va. 525
• Decision Date: 15 June 1984
• Docket Number: No. 830584,830584
• Parties: VIRGINIA DEPARTMENT OF CORRECTIONS, et al. v. James T. CLARK, Jr. Record
• Court: Supreme Court of Virginia

Page 399

318 S.E.2d 399

227 Va. 525

VIRGINIA DEPARTMENT OF CORRECTIONS, et al. v. James T. CLARK, Jr.

Record No. 830584.

Supreme Court of Virginia.

June 15, 1984.

Jacqueline G. Epps, S. Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on briefs), for appellants.

Jaclyn Leonhard, Fairfax (Robert T. Hall; Hall, Surovell, Jackson & Colten, P.C., Fairfax, on brief), for appellee.

Present: All the Justices.

STEPHENSON, Justice.

The dispositive question in this habeas corpus appeal is whether trial counsel's representation of James T. Clark, Jr., during the penalty phase of his capital murder trial, constituted ineffective assistance of counsel.

I

On August 29, 1978, a jury convicted Clark of capital murder for willful, deliberate, and premeditated killing for hire, Code § 18.2-31(b). Following a separate penalty proceeding, pursuant to Code § 19.2-264, the jury determined that Clark's conduct in committing the offense was "outrageously or wantonly vile, horrible or inhuman in that it involved depravity of mind or aggravated battery to the victim," and fixed his punishment at death.

On November 21, 1978, after conducting a sentencing hearing, the trial court imposed the death sentence. On appeal, we found no reversible error in Clark's conviction and sentence. In compliance with Code § 17-110.1 C, we also concluded that the death sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor and that it was not excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. We, therefore, affirmed the judgment of the trial court. Clark v. Commonwealth, 220 Va. 201, 257 S.E.2d 784 (1979), cert. denied, 444 U.S. 1049, 100 S.Ct. 741, 62 L.Ed.2d 736 (1980).

Thereafter, Clark filed a petition for a writ of habeas corpus in the court in which he had been tried and convicted of capital murder. After an evidentiary hearing before the same judge who presided at the murder trial, the habeas court found, inter alia, that "[t]rial counsel failed to adequately and properly investigate, develop, consider, and present lay and psychiatric evidence in mitigation of the death penalty," adding that "[c]ounsel's performance in this regard was not within the range of competence demanded of lawyers in criminal cases."

Whereupon, the habeas court granted the writ with respect to Clark's sentence only, and purportedly commuted his sentence to life imprisonment. ¹ This appeal ensued.

II

In the guilt stage of the trial, the evidence established that George Harold Scarborough was found dead in his home. His death was the result of five gunshots to his head and chest. Clark was arrested and confessed to the murder.

Clark and his cousin, Charles Daniel Stewart, were hired to kill Scarborough for $7,000. They broke into Scarborough's home and ransacked the residence, simulating a burglary. While waiting for Scarborough to arrive, they planned their attack and ate and drank from their victim's refrigerator.

Upon Scarborough's arrival, Stewart, armed with a knife, grabbed Scarborough and tried to chloroform him. Scarborough broke free, and Clark, armed with a gun, ordered him to cease resisting. When Scarborough continued to struggle, Clark "shot him at pointblank" range five times, using a pillow to muffle the noise.

Clark then removed $435 from the deceased's back pocket, and he and Stewart departed, taking the money and other items of personal property. The two men joined their girl friends and celebrated Scarborough's murder.

At the penalty stage of the trial, Clark's counsel presented mitigating evidence consisting of the testimony of Clark's parents. James Clark, Sr., testified that his son was a fairly normal child until age nine when he was accidentally burned "over forty percent of his body." As a result, he was hospitalized for approximately eight months, receiving intensive treatment. According to his father, Clark's "whole character changed" after this incident. He lost interest in school and began to have "some legal problems."

Clark's mother and father separated when he was three years old. His paternal grandmother "raised him until he was seven." Thereafter, he lived with either his father, his mother, or his grandmother.

Clark's mother testified that her son "was normal until he was burnt." She said that he was "pampered a lot" while in the hospital, but she didn't really notice any personality changes after the accident. She further stated that she never observed anything about her son which would suggest he had a violent nature. She acknowledged, however, that although Clark had lived with her from approximately age 14 to 17, he had not resided with her for the five years immediately preceding Scarborough's murder.

III

At the habeas hearing, Clark's parents testified more extensively concerning his background. Clark was an unwanted child, born when his mother was 15. She frequently left her husband and children for varying time periods and eventually left permanently to live with a married man. Following their parents' divorce, Clark and his brother John, who was 13 months younger than Clark, lived mostly with their paternal grandmother. They, however, did visit their mother occasionally.

Clark's mother later became a prostitute in the District of Columbia. The two boys stayed with her at times during this period and were subjected to the influence of a "madam" named Lil and a professional gambler with whom their mother was involved.

When Clark was nine years old, his mother was injured in an automobile accident, and he and John went to live with their father. A short time later, Clark was playing with a model airplane, which exploded, burning him severely. His brother saved Clark's life by pushing him into a swimming pool.

During the next eight months, Clark received treatment for his burns in several hospitals. His wounds became infected and maggot-infested. He suffered greatly during this period, and to ease his pain, he received doses of morphine regularly. Clark sustained extensive permanent scars from the burns.

Shortly after he was released from the hospital, Clark's mother remarried and moved to Maryland. The marriage failed, and his mother became involved in a lesbian relationship. During this period, Clark and his brother lived with their mother intermittently.

When the lesbian relationship ended, Clark's mother attempted suicide. Clark and his brother found her in a coma. While his mother convalesced, Lil cared for the two boys. She gave them money and clothes and purchased an automobile for John, although he had not reached the legal driving age. Lil and John became lovers.

Clark and his brother always had a close relationship. When John was 17, he enlisted in the Army for six months, and following his discharge, he was murdered. His murderer was not discovered, and Clark swore to avenge his brother's death.

Several other witnesses testified at the habeas hearing, including one of Clark's Maryland neighbors, a principal at a school Clark attended, and one of Clark's former elementary teachers. The thrust of their testimony was that Clark lacked supervision and his mother showed little concern for his welfare.

Dr. Richard Saunders, a clinical psychologist, and Dr. John Follansbee, a psychiatrist, also testified at the habeas hearing. Dr. Saunders administered a series of tests to determine Clark's intelligence, the possibility of brain damage, and his personality assessment. He concluded that Clark was of average intelligence and had no brain damage. He also considered Clark's history in assessing his personality.

Dr. Saunders described Clark as "a dictatorial kind of person," who was "especially willing to admit to material about himself that is markedly socially deviant, antisocial, in many cases aggressive ...." He found that Clark had a "negativistic" attitude toward authority, and he "has apparently been acting in a very antisocial way since age ten."

Dr. Saunders was unable to detect that Clark had experienced "any significant emotional impact of the loss of his brother or of the experience he had in being burned." He described Clark's morality as "very primitive," and diagnosed Clark as an "[a]ntisocial personality." When asked if, based on his findings, people could conclude that Clark is extremely dangerous, Dr. Saunders replied, "[t]hey certainly could." He added that "if [people] are counting on him to restrain himself from illegal behavior, they would be making a mistake," and that Clark was capable of killing again for money.

Dr. Follansbee could obtain only a "sparse and fragmentary" history from Clark. He opined that Clark's personality was damaged during the first three years of his life, due to deprivation and instability. He described Clark as "one of the more serious antisocial personalities that I've seen," and he believed that Clark is incapable of dealing in moral concepts. Like Dr. Saunders, Dr. Follansbee also stated that Clark is a very dangerous person, capable of killing for hire again.

Clark called a practicing trial lawyer licensed in the Commonwealth as an expert witness. The expert opined that in every capital murder case, defendant's counsel has a duty to investigate and consider using psychiatric evidence in mitigation of punishment if the evidence tends to show the defendant's mental abnormality. According to the witness, failure to do so constitutes ineffective assistance of counsel. Summarizing his thoughts on the subject, he said:

So there is no excuse in any capital case not to have a psychiatric evaluation of the defendant for the purpose of establishing mitigating mental abnormalities to put into the trial at sentencing.

Now, I would add that because you have the evaluation doesn't mean that that information is going to be presented. It may be, on balance, it may do more harm than good. But there is never an instance, in my opinion, that a...