Williams v. Warden of the Mecklenburg Correctional Center

• Decision Date: 06 June 1997
• Docket Number: No. 960534,960534
• Citation: 254 Va. 16,487 S.E.2d 194
• Parties: Terry WILLIAMS v. WARDEN OF THE MECKLENBURG CORRECTIONAL CENTER. Record
• Court: Virginia Supreme Court

Page 194

487 S.E.2d 194

254 Va. 16

Terry WILLIAMS v. WARDEN OF THE MECKLENBURG CORRECTIONAL CENTER.

Record No. 960534.

Supreme Court of Virginia.

June 6, 1997.

Brian A. Powers (Francis J. Martorana; Ellen O. Boardman; Linda J. Tarlow; O'Donoghue & O'Donoghue, on brief), Washington, DC, for petitioner.

Robert Q. Harris, Assistant Attorney General (James S. Gilmore, III, Attorney General, on briefs), for respondent.

Present: All the Justices.

UPON A PETITION FOR A WRIT OF HABEAS CORPUS

COMPTON, Justice.

This is the first habeas corpus petition filed by a prisoner held under a sentence of death that we have addressed in a published opinion since the applicable statute was amended effective July 1, 1995. See Acts 1995, ch. 503.

The 1995 amendment to Code § 8.01-654 added subsection (C). It provides that this Court shall have "exclusive jurisdiction" to consider and award writs of habeas corpus with respect to any such petition filed by a convict held under a death sentence. § 8.01-654(C)(1). The amendment further provides that the circuit court "which entered the judgment order setting the sentence of death shall have authority to conduct an evidentiary hearing on such a petition only if directed to do so by order of the Supreme Court." Id.

The amendment fixes time limits within which the circuit court "shall conduct" a hearing on the issues enumerated in this Court's order and within which the circuit court "shall report its findings of fact and recommend conclusions of law to the Supreme Court." § 8.01-654(C)(3). Finally, the amendment provides that any objection to the circuit court's report must be filed in this Court, within a specified time limit. Id.

Petitioner Terry Williams was convicted in a jury trial in the Circuit Court of the City of Danville of the capital murder of Harris Thomas Stone. The crime was committed in November 1985, the accused was indicted in July 1986, and the jury found him guilty in September 1986.

After a separate proceeding on the issue of punishment and after hearing evidence of the accused's history, including aggravating factors and mitigating evidence, the jury fixed his sentence at death. This sentence was based upon the "future dangerousness" predicate of the statutory scheme; the verdict stated there is a probability that the defendant "would commit criminal acts of violence that would constitute a continuing serious threat to society."

Following a statutorily mandated hearing before the trial judge on punishment, the defendant was sentenced in November 1986 to death. This Court affirmed the conviction and death sentence on direct appeal. Williams v. Commonwealth, 234 Va. 168, 360 S.E.2d 361 (1987). The United States Supreme Court refused review. Williams v. Virginia, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 681 (1988).

In August 1988, the convict filed a habeas corpus petition in the Danville Circuit Court. After a 1989 hearing, the court dismissed a number of the habeas claims. An amended petition was filed in April 1995, and the court heard evidence in June 1995 on the issue of ineffective assistance of trial counsel.

On July 1, 1995, jurisdiction over the case was transferred to this Court pursuant to the changes in Code § 8.01-654. Subsequently, this Court directed the circuit court to "report its findings of fact and recommend conclusions of law regarding the issue of ineffective assistance of counsel, as alleged in claim VII" of the amended petition. In June 1996, the circuit court heard argument of counsel on the ineffective assistance of counsel claim.

In August 1996, the circuit court forwarded its report to this Court and to counsel for the parties. The circuit court found that the accused's two trial counsel were effective in all but one stage of the trial proceedings. The circuit court concluded that trial counsel's failure to present certain mitigating evidence at the sentencing hearing before the jury warranted the granting of relief to the petitioner.

Both the petitioner and the respondent, J.D. Netherland, Warden of the Mecklenburg Correctional Center, filed objections to the circuit court's rulings. In a January 1997 order, this Court ordered briefing and argument on the issue that the circuit court had found warranted relief. Petitioner's objections to the circuit court's findings recommending dismissal of all the other claims for relief were overruled.

The evidence presented in the 1986 criminal trial established the following basic facts. The victim, an elderly man, was found dead at 2:00 a.m. lying in a bed at his Danville home. He was fully clothed and there was no sign of a struggle. The victim's wallet, customarily kept fastened in his trouser pocket, was missing.

Later, the accused made several confessions to the murder and robbery of the victim. The defendant said he had struck the victim on the chest, and later on the back, with a mattock and had removed three dollars from the victim's wallet. The victim died from the blows, which fractured two ribs and displaced them inward, puncturing the left lung and depositing a quantity of blood in the left chest cavity.

During the penalty phase of the trial, the prosecution presented evidence of the 31-year-old accused's extensive criminal record, beginning when he was 11 years old. This included a robbery in 1976, a burglary involving an assault upon the victim in 1982, and a vicious and brutal malicious wounding of an elderly woman in March 1986 that caused brain damage and left her a "vegetable." In addition, there was evidence of a December 1985 assault by the accused upon an elderly man while the accused was committing arson of the victim's home. Two forensic psychological experts who examined the accused testified there was a high probability that he would commit future criminal acts of violence and that he constituted a continuing threat to society.

The accused's mother testified that he was never violent at home and that she did not believe he was a threat to others. A female acquaintance of the accused who had known him for 11 years testified he was never violent in her presence. Another witness, whose foster daughter had dated the accused, testified he was not a violent person.

Based on the June 1995 habeas evidentiary hearing and the subsequent argument of counsel, the circuit judge, who had presided at the trial, made a number of "findings of fact" and "recommended conclusions of law." The court found that the convict's "trial attorneys were both experienced in criminal defense work and thoroughly prepared the case in defense of capital murder." In this connection, the court concluded that counsel's "performance at the guilt phase of the trial was both professional and competent."

Elaborating, the court stated that counsel "properly explored the mental competency of" the accused, who, according to the evidence at trial, had a "borderline level of intellectual functioning." Also, the circuit court found that trial counsel "adequately investigated the issues of robbery and cause of death"; that counsel "was justified in relying on" the conclusions of the medical examiner regarding the cause of death; that counsel's "conduct with regard to the confession and suppression hearing was competent and professional"; and that they were not ineffective for their failure to investigate whether the accused suffered from a so-called "Fetal Alcohol Syndrome." Further, the court concluded that counsel performed adequately regarding voir dire, evidentiary objections, and jury instructions.

Additionally, the circuit court found that the performance of defense counsel, in the main, during the penalty phase proceedings did not warrant habeas relief. And, the court determined counsel was effective on appeal.

The court reported, however, that certain actions of counsel during the trial's penalty phase were "the only real concern." "Specifically," the court said, "little evidence was presented on the issue of mitigation, and there exists evidence that petitioner had a deprived and abused upbringing; that he may have been a neglected and mistreated child; that he came from an alcoholic family; and that he was borderline mentally retarded."

Continuing, the court said there also exists "evidence that petitioner's conduct had been good in certain structured settings in his life (such as when he was incarcerated) and there were friends, neighbors and family of petitioner who would have testified that he had redeeming qualities." The court was of the view that some of this testimony "such as [from] petitioner's wife, daughter and Bruce Elliott, was worthy of a jury's consideration on mitigation. However, none of this testimony was developed and presented at the sentencing phase of the trial."

The court stated: "Probably the most persuasive mitigating evidence which was not tendered to the jury involved the failure to interview and call Bruce Elliott as a witness during the sentencing phase." Elliott, a certified public accountant, contacted defense counsel prior to trial and offered his help, but, according to the court, "counsel never followed up by talking to the witness." The court found that Elliott had known the accused since 1978 and would have portrayed the accused "as a decent human being who struggled to prove his worth in spite of his being somewhat disadvantaged mentally, emotionally and financially." Elliott, who did not testify at the habeas hearing, stated in an affidavit that the accused "took pride in his achievements," such as graduation from carpentry school while incarcerated in a correctional facility.

The court found that trial counsel "made a tactical decision to focus attention at the penalty phase" on the accused's confession, which was unsolicited and volunteered. Counsel's strategy, the court concluded, was to convince the jury that the accused's life should be spared, and that he should be given a life sentence, because of the unsolicited confession.

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