Executed November 17, 2009 9:08 p.m. by Electric Chair in Virginia
46th murderer executed in U.S. in 2009
1182nd murderer executed in U.S. since 1976
3rd murderer executed in Virginia in 2009
105th murderer executed in Virginia since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
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(46) |
Larry Bill Elliott W / M / 51 - 60 |
|
Dana Thrall W / F / 25 Robert Finch W / M / 30 |
Citations:
Elliott v. Commonwealth, 267 Va. 396, 593 S.E.2d 270 (Va. 2004) (Direct Appeal).
Elliott v. Warden of Sussex I State Prison, 274 Va. 598, 652 S.E.2d 465 (Va. 2007) (State Habeas).
Elliott v. Kelly, Slip Copy, 2009 WL 855796 (E.D.Va. 2009) (Federal Habeas).
Final/Special Meal:
Confidential.
Final Words:
None. Shortly after the execution, his attorney read Elliott's handwritten statement: "In order to obtain my conviction and sentence of death, the Commonwealth assembled and presented a massive amount of false information. To all of the members of the Thrall and Finch facilities: I am deeply sorry that someone killed your loved ones," Elliott said, maintaining his innocence. He wrote that he hoped that the examination of the facts of his case will serve as "a launching pad" for the elimination of the death penalty and speculated that "God's purpose for my death is to demonstrate just how fractured our judicial system has become in regard to capital cases. The very system that I spent a lifetime defending has failed me." He signed the statement "God bless you. Bill."
Internet Sources:
"Elliott executed for ‘01 death," by Jim Nolan. (November 18, 2009)
JARRATT -- Death-row inmate Larry Bill Elliott was executed last night for the 2001 murder of Dana Thrall of Prince William County.
Elliott, 60, a former Army intelligence officer from Hanover, Md., died in the electric chair at Greensville Correctional Center, about 60 miles south of Richmond. He was pronounced dead at 9:08 p.m. He had met with his family, a spiritual adviser and his lawyers earlier in the day. Elliott entered the room under the escort of correction officers who attached a metal clasp lined with a moistened sponge to his shaved right calf, affixed a metallic cap lined with a sponge to his shaved head and covered his face with a leather mask.
He was then strapped into the oak chair. In the presence of representatives of the attorney general and state corrections officials, an officer in a side room pushed the "execute button" at 9 p.m., sending 1,800 volts through Elliott's body for 30 seconds, followed by a 60-second burst of 240 volts. Elliott's body tensed at the first surge and again a second time when the cycle was repeated for another 90 seconds. The room was silent.
Five minutes later, a physician entered and put a stethoscope to his chest. He looked up several seconds later at officials in the plain white room and said simply, "9:08."
The execution was witnessed by family members of Elliott's victims, who sat behind a one-way piece of glass. More than a dozen members of the public and four media witnesses were seated in another room.
Shortly after the execution, his attorney, Tom Kelly, of Seattle, read Elliott's handwritten statement: "In order to obtain my conviction and sentence of death, the Commonwealth assembled and presented a massive amount of false information. "To all of the members of the Thrall and Finch facilities: I am deeply sorry that someone killed your loved ones," Elliott said, maintaining his innocence. He wrote that he hoped that the examination of the facts of his case will serve as "a launching pad" for the elimination of the death penalty and speculated that "God's purpose for my death is to demonstrate just how fractured our judicial system has become in regard to capital cases." He signed the statement "God bless you. Bill."
Elliott was the oldest person on Virginia's death row, which now includes 13 men and one woman. Beltway sniper John Allen Muhammad was executed by lethal injection last week.
In 2003, Elliott was convicted and sentenced to death for the Jan. 2, 2001, murder of Thrall.
Thrall, 25, was pistol-whipped and shot three times in the head in her Dale City town house. Robert Finch, 30, who lived with Thrall, was shot in the head, chest and back. Elliott was given a sentence of life in prison without parole for Finch's murder. Prosecutors said Elliott murdered the couple because he viewed Finch as a threat to his "sugar daddy" relationship and obsession with Finch's former partner, Rebecca Gragg, a former stripper he had met through a Web site and on whom he had spent thousands of dollars.
"Like so many of these cases, it was tragic for everyone involved," said Prince William Commonwealth's Attorney Paul Ebert.
Police investigating the murders never found the murder weapon, but ballistic tests confirmed that the victims were killed by the same weapon. Additionally, Elliott's DNA profile was identified in blood found on the gate of the town home's privacy fence. Ebert described Elliott as "a very intelligent person who became obsessed" with Gragg and "used his knowledge and training to execute two innocent people."
On Monday, the U.S. Supreme Court denied Elliott's application for a stay of execution. Yesterday afternoon, Virginia Gov. Timothy M. Kaine declined to intervene in the case; in September, he had delayed Elliott's Oct. 5 execution date so his staff could review Elliott's claim of innocence and petition to commute the death sentence to a term of life in prison. "Having carefully reviewed the petition for clemency and judicial opinions regarding this case, I find no compelling reason to set aside the sentence that was recommended by the jury and then imposed and affirmed by the courts, " Kaine said in a statement.
Anti-death-penalty advocates said Elliott had a strong claim of innocence and should not have been put to death. "Virginia should not execute a man where so many questions about his guilt remain," wrote Beth Panilaitis of Virginians for Alternatives to the Death Penalty on the group's Web site. The group had organized protests at courthouses throughout Virginia and was outside Greensville Correctional Center when the sentence was carried out.
Elliott was the 105th person executed in Virginia since the death penalty was reinstated in 1976. Since 1995, when the state began offering the option of lethal injection, there have been 76 lethal injections and five electrocutions.
Ebert, who has prosecuted at least a half-dozen death-penalty cases in his career, said he has never taken any pleasure from the process but believes it is appropriate and necessary. "It's final justice for everyone involved; just final closure and relief for everyone involved."
"Va. inmate who killed 2 is executed in electric chair, by Dena Potter." (Associated Press November 18, 2009)
JARRATT - A former Army counterintelligence worker was executed by electric chair Tuesday for killing a Virginia couple, becoming the first U.S. inmate to die by electrocution in more than a year.
Larry Bill Elliott, 60, of Hanover, Md., was pronounced dead at 9:08 p.m. at Greensville Correctional Center. He was convicted of the January 2001 shooting deaths of 25-year-old Dana Thrall and 30-year-old Robert Finch.
Prosecutors said Elliott killed the couple to win the love of former stripper and escort Rebecca Gragg, who was involved in a bitter custody dispute with Finch.
Elliott said in the death chamber that he had prepared a final statement for his attorneys to read after the execution. In the three-page typed statement, Elliott maintained his innocence, saying he hoped groups that oppose the death penalty would use his case "as a launching pad for the elimination of the death penalty." "The very system that I spent a lifetime defending has failed me," the statement said.
When Elliott was brought into the death chamber at 8:55 p.m., he glanced at the oak chair several times before he was turned around and backed up to it and seated. Elliott looked forward or watched members of the execution team as they strapped him tightly into the chair and attached metal clamps with sea sponge soaked in a brine solution to his right calf and head, both of which had been shaved. The team attached electric cables from the floor to the metal clamps and placed a brown strap across much of Elliott's face that was tied to the back of the chair to support his head. When the operator in a room off to the side pushed the "execute" button, Elliott's body tensed as he received several bursts of electricity. Several minutes later, a doctor checked for a heartbeat and pronounced him dead.
Earlier in the day, Virginia Gov. Timothy M. Kaine declined to stop the execution, and the U.S. Supreme Court refused to intervene on Monday. Two separate juries convicted Elliott of the killings. A 2002 verdict was set aside because a juror discussed the case outside of the court. He was convicted again a year later.
Elliott, who was married with three adult children and a teenager, met Gragg online when she posted an ad looking for a "sugar daddy." She told Elliott she wanted to turn her life around and that she needed financial support to help start a business designing and selling stripper costumes.
Prosecutors said that over 18 months Elliott spent about $450,000 supplying Gragg a home, private school for her two children, a car, breast enhancement surgery, and a credit card. Prosecutors said Elliott was obsessed with Gragg and killed Finch to win her love. A court hearing in their custody case was scheduled for the week that Finch was killed.
Finch was shot three times, and Thrall was beaten before being shot several times in the face and chest while her two boys, ages 4 and 6, were upstairs in the couple's Woodbridge townhome.
At 60, Elliott was Virginia's oldest death row inmate. He was the fifth Virginia inmate to die by electrocution since lethal injection became an option for inmates to choose in 1995.
Of the 35 death-penalty states, seven Southern states still offer electrocution. Two others allow it only if lethal injection is deemed unconstitutional.
The last person executed by electrocution in the United States was James Earl Reed, who put to death in South Carolina in June 2008 for killing his ex-girlfriend's parents. The last Virginia inmate to choose electrocution was 27-year-old Brandon Hedrick, who died in 2006 for raping and killing a young mother. Kaine gave him up until the last minute to opt for lethal injection, but he went forward with electrocution.
"Killer of Va. couple is put to death in electric chair; Man shot Prince William pair in 2001 to impress and assist adult escort," by Josh White. (Wednesday, November 18, 2009)
JARRATT, VA. -- A former Army counterintelligence officer who became obsessed with an adult escort he met on the Internet was executed by electrocution Tuesday night for killing a young couple in Prince William County in 2001 to impress and help the woman.
Larry "Bill" Elliott, 60, of Hanover, Md., was electrocuted in Virginia's 101-year-old electric chair in the Greensville Correctional Center's death chamber, just the fifth condemned inmate to choose that method of execution since the state introduced lethal injections in 1995. He was placed in the oak armchair and secured at 8:58 p.m. After two 90-second cycles of electric current, Elliott was pronounced dead at 9:08 p.m.
Instead of making an oral statement, Elliott said he didn't know how much time he had to speak, so he gave a written statement to his attorneys. He expressed sympathy for the families of Dana Thrall and Robert Finch. "I am deeply sorry that someone killed your loved ones," he wrote. But he maintained his innocence, denouncing the criminal justice system he said he defended while in the Army. "Perhaps God's purpose for my death is to demonstrate just how fractured our judicial system has become," Elliott said. "In this great country, we should not arrest and convict innocent people of any crime, let alone capital murder, nor should we kill innocent people as the Commonwealth of Virginia has done today."
Larry Traylor, a Department of Corrections spokesman, said Elliott chose a final meal but did not want it made public.
Elliott entered the death chamber just before 9 p.m., and six correctional officers fixed him to the chair with wide leather straps. His head was shaved, as was his right leg, where the electrical contacts were clamped. A leather mask was put across his face, concealing all but his nose.
Then, at 9:03 p.m., one officer turned a key in the back of the room, and another concealed officer pushed a button marked "execute" in an adjoining room. The jolt of electricity caused Elliott to jerk back and upright into the chair, his hands gripping the oak arms. Smoke rose from his leg and his head. After two cycles of electricity, a doctor put a stethoscope to Elliott's chest and declared him dead.
The case
Elliott was the second person executed in Virginia in the past week, after the lethal injection of Washington area sniper John Allen Muhammad on Nov. 10. Both were convicted in Prince William and prosecuted by Commonwealth's Attorney Paul B. Ebert, who has now had nine of his cases result in executions. A 10th case of Ebert's involved a condemned inmate who committed suicide, and Ebert successfully prosecuted four of the remaining 14 people on Virginia's death row.
"Elliott's crime was vile, and the evidence was extremely clear," Ebert said before the execution. "Our country trained him to be a killer. Because of his intelligence and his capabilities, he became very dangerous."
Elliott was convicted of capital murder in the slayings of Finch, 30, and Thrall, 25, in their Woodbridge townhouse in January 2001. Finch was shot multiple times in the doorway of the townhouse in the early morning darkness, and Thrall, who ran downstairs because of the noise, was pistol whipped before the killer reloaded and shot her in the face as she tried to get to a phone. Thrall's two boys, then 4 and 6, were upstairs and heard her screams.
Although police never found a murder weapon -- presumed to be a revolver because no shell casings were left -- and had no evidence that Elliott had been in the home, prosecutors were able to secure a conviction because Elliott's DNA was found on a back fence. He also was spotted by someone in the neighborhood that morning.
But the key testimony in the case came from Rebecca Gragg, an escort who met Elliott on the Internet. Gragg, who was looking for someone to take care of her financially, persuaded Elliott to give her more than $400,000, some of which was stolen from Elliott's wife. Gragg testified that Elliott called her shortly after the slayings and said he had a "mess" to clean up.
Prosecutors alleged that Elliott was so desperate for Gragg's affections that he killed Finch, Gragg's ex-boyfriend, to solve Gragg's custody dispute. Gragg and Finch were due in court the week of the killings to settle the custody of their two children, and Gragg maintained that she knew nothing about the slayings. She was never charged.
Elliott maintained his innocence during two trials in Prince William. The first case was declared a mistrial when defense attorneys found juror misconduct after the conviction and sentencing. A second jury convicted Elliott of capital murder in 2003. In a long jailhouse interview with The Washington Post at the time, Elliott said he had nothing to do with the slayings. "I have been spending as much time as possible going over the information in the case, looking at the crime scene, trying to figure out what happened in that house," Elliott said in 2003, adding that his DNA was found at the scene because he had been watching Finch. "I want to know who actually killed these people."
At his sentencing, Elliott cried and said it was "not humanly possible for me to have done the things I was accused of" and blamed his conviction on "lies" told in court. In asking for clemency from Virginia Gov. Timothy M. Kaine (D), Elliott maintained his innocence to the end.
Amid defense allegations of trial irregularities and weak evidence, several courts upheld the conviction. Although Kaine delayed the Oct. 5 execution date so he could review the clemency petition, he declined to step in. The U.S. Supreme Court denied Elliott's final petitions Monday.
Victims' families
Clayton Finch asked Kaine to spare his son's killer largely because he thinks Gragg duped Elliott and pushed him to commit the crime. Finch met Elliott on death row a couple years ago and says there are enough doubts about what happened to warrant a life sentence. "His death doesn't make any difference whatsoever," Finch said. "It isn't going to bring Robert back. I'm worried that his death is going to make me feel even worse."
Gragg, who now lives in Florida, could not be reached for comment.
Robert Finch's sister, Jennifer Finch Robitaille, said the killings have become part of her life because she lost a brother and a best friend in them. Robitaille said she cannot forgive Elliott. "I think he deserves what he's getting," Robitaille said. "Robert's life was cut short by this guy who was jealous, who wasn't happy with his own life. I wonder very often where our family would be, where Robert and Dana's lives would be."
Thrall's two boys, now 15 and 13, were adopted by her brother and sister-in-law, Cameron and Becky Thrall, who live near Seattle. Cameron Thrall said the boys are doing well and speak often about their mother but have not delved into the details of the crime. The Thralls have saved the newspapers and court documents chronicling the murders so that the boys, at an appropriate age, can learn as much as they care to.
Cameron Thrall said the boys think that Elliott is receiving the appropriate punishment. And although he is philosophically against the death penalty, he said he thinks the crime deserved the harshest punishment. He also said he feels for Elliott's family, which lost a father and husband. "My personal view is that by taking Elliott's life, it doesn't bring back my sister, it doesn't undo the brutality of her murder and it doesn't erase the scars her children have to bear," said Cameron Thrall, a former Marine. "But do I think someone like that is deserving of death? Absolutely. . . . Put me in a room with him for an hour, and you'd have the same result as the death penalty."
Becky Thrall said she was pleased with the outcome. "To me, I feel I can move on," she said. "Never again do I have to think of this person." Adam Thrall, Dana's son, 15, said simply, "Good riddance."
"Elliott executed in 2001 slayings of Woodbridge couple," by Uriah A. Kiser. (November 17, 2009)
JARRATT, VA.—Larry “Bill” Elliott died in Virginia’s electric chair Tuesday night, nearly nine years after the murders that landed him on death row.
The 60-year-old was strapped into the chair at 9 p.m. at the Greensville Correctional Facility in Jarratt, Va., where he was administered two lethal applications of electricity each lasting one and a half minutes. Elliott chose electrocution over lethal injection. He was pronounced dead at 9:08 p.m., said Virginia Department of Corrections spokesman Larry Traylor. Elliott said in the death chamber that he had prepared a final statement for his attorneys to read after the execution. In the typed statement, Elliott maintained his innocence. “The very system that I spent a lifetime defending has failed me,“ the statement said.
The U.S. Supreme Court on Monday refused to consider his appeal. On Tuesday afternoon, Gov. Tim Kaine – who had previously delayed the execution to consider clemency – said he would not intervene.
Elliott’s death comes a week after Beltway sniper John Allen Muhammad was put to death in the same facility by way of lethal injection. Muhammad’s family held a funeral Tuesday in Baton Rouge, La.
Elliott, a former Army intelligence officer from Maryland, was convicted of capital murder in the slayings of 25-year-old Dana Thrall and 30-year-old Robert Finch. Both were killed inside Thrall’s Woodbridge townhouse on Jan. 2, 2001. During the trial, a Manassas jury also convicted Elliott of first-degree murder in Finch’s death.
Elliott was involved in a romantic relationship with a former stripper, Rebecca Gragg, who shared two children with Finch. The two met on an adult Web site, according to court records. Gragg was looking for someone to fund a new line of clothing tailored to strippers in an attempt to begin a new life, according to the records.
On New Year’s Day of that year, Gragg took the children to Florida and experienced car problems that prevented her from returning the children to Virginia, as was required in the couple’s visitation agreement. At the time, Gragg and Finch were in the middle of a bitter custody dispute, according to court documents. Finch threatened to call the police on Gragg when she called to report that she wouldn’t be able to return the children that day, court records show. Elliott killed Finch and Thrall the following day.
Four months after the slayings, investigators told Gragg that the results of a second polygraph test she took in connection with the case showed she was lying about her knowledge of the crimes. After consulting with her attorney, she told investigators she received a telephone call from Elliott the morning of the murders, in which he told her he would put an end to the problems between her and Finch, according to court documents.
Elliott selected his last meal Tuesday, but as in the case of Muhammad, declined to say what he chose.
Elliott’s attorneys again on Tuesday offered no comment about their client. A representative from their respective law offices said they were at the correctional facility with their client.
Elliott is the 105th inmate to be put to death in the commonwealth since a national moratorium on executions ended in 1976. In total, he is the 341st inmate to die by electrocution in the state since Virginia began using the method to carry out capital punishment sentences in 1908, according to information from the Virginia Department of Corrections.
Elliott was moved from Virginia’s death row, located at Sussex I State Prison in Waverly Va., to the Greensville Correctional Center, where the death chamber is located. The chamber has been located at the facility since 1991.
At approximately 4:00 a.m. on the morning of January 2, 2001, Mary Bracewell, a newspaper delivery person, was traveling her route in the Woodbridge community of Prince William County, Virginia. Bracewell was aware that there had been several recent vehicle break-ins in the neighborhood and became suspicious when she saw a man standing beside a pick-up truck parked on Belfry Lane. Bracewell observed the man, who appeared to be carrying a flashlight, walk to the north end of Belfry Lane, cross the street, walk onto a grassy area between two townhouses, and then disappear from her view. Bracewell called police on her cellular telephone to report her observations.
At 4:15 a.m., Officer Marshall T. Daniel of the Prince William County Police Department received a radio dispatch directing him to respond to Bracewell's call. He arrived at Belfry Lane three minutes later. Bracewell indicated the parked pick-up truck to Daniel and related to him what she had observed. Daniel noted that the pick-up truck, which was locked, had a Department of Defense windshield identification sticker and that there was a cellular telephone on the passenger seat.
At 4:27 a.m., Officer Daniel received a radio call to respond to a report of a domestic disturbance at a townhouse located at 3406 Jousters Way. Jousters Way is located approximately 300 yards north of Belfry Lane. Although the two streets do not intersect, one can reach Jousters Way on foot from Belfry Lane by walking in the same direction that Bracewell had seen the man beside the pick-up truck walking. Tina Miller, who lived in an adjoining townhouse, had made the report of a domestic disturbance at 3406 Jousters Way. Miller telephoned police after being awakened by a crashing sound coming from 3406 Jousters Way at approximately 4:20 a.m. As she placed the call, Miller heard three or four "hollow" sounds followed by "the most horrible scream" she had ever heard. Miller thought that the screaming voice sounded like that of Thrall, one of the occupants of 3406 Jousters Way.
Tommy Young, who lived in a townhouse on the opposite side of the street from 3406 Jousters Way, was walking his dog in front of his home at about the same time Miller was awakened by the crashing sound. Young heard two loud "banging noises" coming from 3406 Jousters Way, followed by the sound of a female scream and three more banging noises. Young went back to his house and told his wife to call the police. A few minutes later, Young looked out his front window and saw that the front storm door of 3406 Jousters Way, which had earlier been closed, was swaying back and forth. Young also noted that the front window shades of the home, which were normally left half-drawn, were fully closed.
Officer Scott Bigger of the Prince William County Police Department arrived at 3406 Jousters Way at 4:25 a.m. Officer Bigger knocked on the front door, but got no response. Officer Daniel arrived a few minutes later and walked around to the back of the townhouse. The backyard was enclosed by a privacy fence, and Officer Daniel could hear a large dog barking "pretty hysterical, angry" inside the yard. Returning to the front of the home, Officer Daniel observed that Officer Bigger had still received no response to his knocking on the front door. Looking through a gap between the shades of a front window, Officer Daniel was able to see the legs of a person lying prone and motionless in the foyer of the home. Officer Bigger opened the unlocked front door and he and Officer Daniel saw Finch, who lived with Thrall in the home, lying on the floor dead. Finch had suffered three gunshot wounds: one to his head, one to his back, and one to his chest.
Officer Daniel immediately returned to the back of the home to secure that area while Officer Bigger waited at the front of the home for additional officers to arrive. When those officers arrived, Officer Daniel immediately returned to the location on Belfry Lane where the pick-up truck had been parked. He arrived at that location at 4:38 a.m. The truck was gone.
Officer Sheldon R. Creamer, one of the officers who had responded to the call by the other officers for assistance, arrived at 3406 Jousters Way at approximately 4:45 a.m. Entering the home, he heard "a muffled breathing sound" coming from the kitchen at the back of the home. In the kitchen he found Thrall, shot and lying in a pool of blood. Emergency medical personal called to the scene took Thrall by ambulance to a helicopter, which in turn evacuated her to the Washington Hospital Center in the District of Columbia, where she later died. Thrall had suffered multiple gunshot wounds including a defensive wound to her right hand, three to her head, and one to her chest. She also suffered a blunt force trauma to the back of her head consistent with a pistol-whipping.
Officer Creamer found that the backdoor was locked by its doorknob lock, but that the door's deadbolt lock was not engaged. He could hear the dog barking in the back yard. Entering the yard from the kitchen, Officer Creamer found that the dog had calmed down. He then determined that the gate of the privacy fence was secured with a locked padlock. Meanwhile, because Officer Daniel had reported seeing a child looking out of a second floor back window, Officer Bigger reentered the home and went upstairs. There he found Thrall's two sons, aged six and four, who were crying and upset. Police officers removed the children from the home.
The Investigation Officer Thomas Leo, a crime scene analyst with the Prince William County Police Department, collected bloodstain samples at various locations inside the townhouse. Subsequent DNA testing of these samples confirmed that the blood was that of Thrall and Finch. Leo also found a bloodstain on the inside of the gate of the privacy fence. Subsequent DNA testing of this sample showed that it was consistent with Larry Bill Elliott's DNA to a degree that a match would occur "once in the entire world population."
Although a murder weapon was never recovered, forensic testing of ten bullets recovered from the home and during the autopsies of Thrall and Finch confirmed that all had been fired by the same weapon. The bullets were of a type used only in a revolver-type handgun. Gary Arnsten, a firearms expert with Virginia's Division of Forensic Science, testified at trial that because no weapon of this type could hold more than five or six bullets in its revolving chamber, he was certain that the weapon had been reloaded during the commission of the murders.
Detective Charles Hoffman of the Prince William County Police Department spoke with Finch's sister, Jennifer Finch, the day of the murders. She informed Detective Hoffman that Finch had a prior romantic relationship with Rebecca Gragg. She also told him that Finch and Gragg had been involved in a bitter custody dispute over their two children. Detective Hoffman went to Gragg's residence in Dale City, Virginia, located about six miles from the crime scene. Gragg was not at home, but there were two vehicles parked in front of the residence. One of the vehicles was registered in Elliott's name.
Gragg returned to her home later that day and was interviewed by two detectives. At that time, Gragg maintained that Elliott was her "friend and business partner." She denied knowing anything about the murders, but stated that Finch had many enemies. The following day, January 3, 2001, Detective Hoffman and another detective traveled to Fort Meade in Hanover, Maryland, where Elliott worked as a civilian employee for the United States Army as a counterintelligence expert. The detectives had learned that Elliott owned a pick-up truck and wanted "to determine whether that truck could, in fact, have been the truck that was seen nearby the [crime] scene." The detectives located the truck in a parking lot at Fort Meade, and Detective Hoffman observed that there was a flashlight, a cellular telephone, and a box of bandages on the seat of the truck.
As Detective Hoffman was taking photographs of the truck, Elliott approached him, identified himself as the owner of the truck, and agreed to talk to the detectives. During that conversation, Elliott told the detectives that Gragg was an employee at a brewing company he owned in West Virginia. He admitted that he had supplied Gragg with a credit card in the name of "Rebecca L. Elliott," but maintained that this had been for business purposes. He also told the detectives that he had been traveling over the New Year's holiday, as had Gragg, and that during that time he had spoken with her several times on his cellular telephone in an effort to arrange a business meeting with her. Elliott told the detectives that he was aware that Gragg and Finch were involved in a dispute regarding the custody of their two children. Elliott related that Gragg had traveled to Florida over the New Year's holiday and had taken the children with her. He further related that Gragg had told him that she was having car trouble and would not be able to return to Virginia with the children in time to return them to Finch at 2:00 p.m. on New Year's Day as she was required to do under a visitation agreement. Elliott claimed that he had driven to Gragg's residence in the early afternoon of New Year's Day "in case Robert Finch showed up so that [Elliott] could explain to him the problems Rebecca was having with getting back." Elliott denied he had any relationship with Gragg other than as her employer. He also denied knowing Finch and claimed that he had seen him only once.
Although Detective Hoffman told Elliott that his truck had been seen in Finch's neighborhood in the early morning hours of the day of the murders, Elliott denied having been in the area. Elliott claimed that he had spent the night of January first to second sleeping in his truck at a rest area in Maryland. Elliott voluntarily accompanied the detectives to the Anne Arundel County, Maryland Police Department. During the course of an interview there, Elliott admitted the true nature of his involvement with Gragg. He told the detectives that he had initiated a relationship with Gragg in mid-1999 after viewing her photograph on an Internet website called "Adult Friend Finders." In her advertisement, Gragg had indicated that she was looking for a "sugar daddy." During their first meeting, Gragg told Elliott that she had worked as a stripper and "private escort," a euphemism for a "call-girl" prostitute. Gragg told Elliott that she wanted to turn her life around and needed financial support to start a business designing and selling costumes for strippers. She told Elliott that she was not interested in having a romantic or sexual relationship with him. Elliott agreed to this arrangement, saying that he wanted only friendship from Gragg. Elliott subsequently provided Gragg with significant financial support, including paying private school tuition for her children, paying the mortgage on one house Gragg owned in West Virginia and rental on others where she lived with her husband and children at various times, providing her with cars, and permitting her to use his credit cards. Elliott also paid for breast augmentation surgery for Gragg, who had begun operating a pay-to-view pornographic website. Elliott admitted that his support of Gragg had placed a significant financial burden on him and that he had to sell investments to pay her credit card debts.
Elliott further admitted that he knew where Finch lived and that, after he had gone to Gragg's house on the afternoon of January 1, 2001, he had driven to Finch's house. He denied getting out of his truck, however, and claimed that he had seen "a black man with a slinky walk going to the front door of the home." Elliott maintained that he had then driven to a large national retail store and a restaurant before driving to the rest stop in Maryland where he had spent the night. He then claimed that he had driven back to Gragg's residence about 3:00 a.m. on the morning of January 2, 2001, to retrieve a case of motor oil that he had seen there the day before. He then went to a convenience store where he called Gragg's cellular telephone on a pay telephone. Elliott claimed that he used the pay telephone because his own cellular telephone's battery had run down. Telephone company records showed that a call had been placed from the pay telephone to Gragg's cellular telephone at 3:28 a.m. on January 2, 2001. Elliott admitted that after calling Gragg, he drove to Finch's neighborhood. He admitted leaving his truck, claiming that he did so only because he needed to urinate. Elliott stated that after urinating by a guardrail on the side of the road, he walked by Thrall's and Finch's townhouse. He denied going onto the property and stated that he had not heard gunshots, a scream, or anything unusual. At the conclusion of this interview, Detective Hoffman took a photograph of an abrasion he had noticed on one of Elliott's hands.
On January 4, 2001, Gragg, accompanied by her lawyer, was again interviewed by detectives investigating the murders of Thrall and Finch. During that interview, she admitted receiving a telephone call early on the morning of the murders, but claimed that the call had come from Finch. Gragg claimed that Finch had threatened to call the police if she did not return their children to him that afternoon. Gragg also told the detectives that she did not believe that Elliott had committed the murders.
On January 7, 2001, Detective Hoffman conducted another interview with Elliott during which Elliott admitted that he had been in Finch's neighborhood "hundreds of times." He further admitted walking through the neighborhood, but again denied that he had ever been on the property of the townhouse where Thrall and Finch lived. On January 8, 2001, Officer Leo, the crime scene analyst, took possession of Elliott's pick-up truck pursuant to a search warrant. He determined that the interior of the truck had recently been cleaned, noting that the carpet was wet and that the seats and interior had been covered with a "silicone type base cleaner." Nonetheless, testing of samples collected from the underside of the truck's floor mats showed a trace residue of blood, though the samples were too small for accurate DNA testing. A further blood sample found in the seat cushion was consistent with Elliott's DNA.
Detectives investigating the murders interviewed Gragg on January 12, 2001 and again on January 19, 2001. She continued to deny any knowledge of the murders. Based on the results of a polygraph examination that Gragg had agreed to take, police suspected that Gragg was not being fully forthcoming, but they were not certain to what extent she had knowledge of the murders or whether she may have been directly involved. Over the next several months, Gragg had continuing contact with the police concerning the investigation of the murders, but she did not provide any additional information concerning Elliott.
On May 9, 2001, Elliott was arrested in Maryland and charged with capital murder. At that time, according to Maryland State Police, Elliott was "leaving [in his vehicle] at a high rate of speed," and there was some concern that he was attempting to flee. Elliott claimed, however, that he had intended to turn himself in.
On May 10, 2001, Prince William County detectives again interviewed Gragg. During that interview, Gragg agreed to submit to a second polygraph examination. After the polygraph examiner and Detective Hoffman told Gragg that her responses to questions concerning her knowledge of the murders indicated that she was being untruthful, Gragg asked to speak with her attorney. After consulting with her attorney, Gragg told the police that the telephone call she had received early on the morning of the murders was not from Finch, although initially she had assumed it was because the connection was not good and she could not hear the caller clearly. Gragg then related that when the caller realized that she thought she was talking to Finch, the caller said he was "tired of this s*** and was going to take care of it" and hung up. Gragg then realized that the call had come from Elliott. She attempted to call his cellular telephone, but the call was answered by a voice mail system. Gragg told the detectives that she received several more calls on her cellular telephone from Elliott later on January 2, 2001. During one call, Elliott told her that "all of our problems had been taken care of." In another call, Elliott claimed that "Jerry," a cryptic figure Elliott supposedly knew through his work with military counterintelligence, "had come out of nowhere to help him, that he had to go clean up this mess."
Later, Elliott told Gragg that he was looking for a place "to dump . . . these bloodied black trash bags from the mess that Jerry had made." Gragg told the police that she had not been truthful in her prior interviews because she was afraid of Elliott and "Jerry," because Elliott had once told her that "Jerry" was watching her and that he would kill her or her family if she went to the police. Once Elliott was in custody and the police had assured her that there was no "Jerry," she stated that she had decided to be truthful. Gragg's attorney confirmed that she had told him on several occasions that she feared Elliott would harm her if she told the police what she knew.
Indictment and Pre-trial Proceedings On August 6, 2001, the Prince William County grand jury returned indictments charging Elliott with the capital murder of Thrall, the first degree murder of Finch, and two counts of the use of a firearm in the commission of a felony. Elliott was tried on these indictments initially in a jury trial in July 2002. After the jury had found Elliott guilty and sentenced him to death, the trial court declared a mistrial after it had been determined that a juror had improperly discussed the case with a third party during the trial. After four hours of deliberation, the second jury returned its verdicts, convicting Elliott of the capital murder of Thrall, the first degree murder of Finch, and the two related firearm offenses.
Virginians for Alternatives to the Death Penalty
Larry Bill Elliot
Date of Birth: November 13, 1949
Sex: Male
Race: White
Entered the Row: May 22, 2003
District: Prince William County
Conviction: Capital murder
Virginia DOC Inmate Number: 321011
On Aug. 6, 2001, a grand jury indicted Larry Bill Elliott, a former army intelligence officer, with one count of first degree murder in the death of Robert A. Finch, 30, and capital murder in the death of Finch’s live-in girlfriend, Dana Thrall, 25.[i] Finch was in a custody dispute with a woman Elliott met on the Internet and became his love interest during an 18-month relationship.
A newspaper delivery woman told police that she saw a man next to a pickup truck at the crime scene that fit the description of Elliott. An officer arrived at the site and noted the pickup had a Department of Defense decal but failed to write down the tag number.
Police investigators visited Rebecca Gragg, the mother of Finch’s children and eyed a vehicle with Maryland tags registered to Elliott. Detectives learned that Elliott also owned a pickup truck that matched the description of the vehicle at the murder scene. After a series of inconsistent statements by Gragg and Elliott, police arrested Elliott. Accompanied by her attorney, Gragg admitted to investigators that she had received a series of phone calls from Elliott on the morning of the murders.[ii]
On July 25, 2002, after deliberating for 4 ½ hours, a jury found Elliott guilty of first-degree murder and capital murder in the deaths of the Prince William couple. On July 31, the jury recommended life in prison in the murder of Finch and the death penalty in the murder of Thrall.[iii] A few weeks later, Circuit Court Judge William D. Hamblen threw out the verdict and ordered a retrial because a juror had discussed the case with her husband, an attorney, on the day the panel decided on the punishment. Elliott was retried and on April, 2, 2003, he was once again convicted by a new jury of all counts.
On April 4, 2003, the jury recommended that Mr. Elliott’s punishment be fixed to life in prison for the murder of Finch and a death sentence for killing Thrall. The trial judge affirmed the jury’s recommendation and sentenced Mr. Elliott to die on May 22, 2003. The U.S. Supreme Court declined to hear defense appeals on Jan. 10, 2005.[iv]
[i] Washington Post. May 21, 2001. B01. [ii] Larry Bill Elliott v. Commonwealth of Virginia. Supreme Court of Virginia. March 5, 2004. [iii] Associated Press. July 31, 2002. [iv] Larry Bill Elliott v. Virginia. Supreme Court of the United States. Jan. 10, 2005.
Elliott v. Commonwealth, 267 Va. 396, 593 S.E.2d 270 (Va. 2004) (Direct Appeal).
Background: Defendant was convicted in the Circuit Court, Prince William County, William D. Hamblen, J., of capital murder and first degree murder. Defendant was sentenced to death for capital murder conviction. Defendant appealed. Upon consolidation for automatic review of defendant's death sentence with appeal of his capital murder conviction and his appeal of first degree murder conviction, certified from Court of Appeals,
Holdings: The Supreme Court, Koontz, Jr., J., held that: (1) trial court did not abuse its discretion in denying defendant's motion in limine to admit into evidence videotape of witness's polygraph examinations; (2) trial court did not abuse its discretion by not allowing defendant to introduce evidence concerning an incident in which husband of Commonwealth witness had brandished a gun at victim; and (3) imposition of sentence of death was not excessive or disproportionate to the penalty imposed in similar cases. Affirmed.
KOONTZ, Justice.
In this appeal, we review the capital murder conviction and death sentence imposed on Larry Bill Elliott for the murder of Dana L. Thrall, Code § 18.2-31(7) (willful, deliberate, and premeditated killing of more than one person as part of the same act or transaction), along with his convictions for the first degree murder of Robert A. Finch, Code § 18.2-32, and firearm offenses related to these two murders, Code § 18.2-53.1.
The Murders
At approximately 4:00 a.m. on the morning of January 2, 2001, Mary Bracewell, a newspaper delivery person, was traveling her route in the Woodbridge community of Prince William County, Virginia. Bracewell was aware that there had been several recent vehicle break-ins in the neighborhood and became suspicious when she saw a man standing beside a pick-up truck parked on Belfry Lane. Bracewell observed the man, who appeared to be carrying a flashlight, walk to the north end of Belfry Lane, cross the street, walk onto a grassy area between two townhouses, and then disappear from her view. Bracewell called police on her cellular telephone to report her observations.
At 4:15 a.m., Officer Marshall T. Daniel of the Prince William County Police Department received a radio dispatch directing him to respond to Bracewell's call. He arrived at Belfry Lane three minutes later. Bracewell indicated the parked pick-up truck to Daniel and related to him what she had observed. Daniel noted that the pick-up truck, which was locked, had a Department of Defense windshield identification sticker and that there was a cellular telephone on the passenger seat.
At 4:27 a.m., Officer Daniel received a radio call to respond to a report of a domestic disturbance at a townhouse located at 3406 Jousters Way. Jousters Way is located approximately 300 yards north of Belfry Lane. Although the two streets do not intersect, one can reach Jousters Way on foot from Belfry Lane by walking in the same direction that Bracewell had seen the man beside the pick-up truck walking.
Tina Miller, who lived in an adjoining townhouse, had made the report of a domestic disturbance at 3406 Jousters Way. Miller telephoned police after being awakened by a crashing sound coming from 3406 Jousters Way at approximately 4:20 a.m. As she placed the call, Miller heard three or four “hollow” sounds followed by “the most horrible scream” she had ever heard. Miller thought that the screaming voice sounded like that of Thrall, one of the occupants of 3406 Jousters Way.
Tommy Young, who lived in a townhouse on the opposite side of the street from 3406 Jousters Way, was walking his dog in front of his home at about the same time Miller was awakened by the crashing sound. Young heard two loud “banging noises” coming from 3406 Jousters Way, followed by the sound of a female scream and three more banging noises. Young went back to his house and told his wife to call the police. A few minutes later, Young looked out his front window and saw that the front storm door of 3406 Jousters Way, which had earlier been closed, was swaying back and forth. Young also noted that the front window shades of the home, which were normally left half-drawn, were fully closed.
Officer Scott Bigger of the Prince William County Police Department arrived at 3406 Jousters Way at 4:25 a.m. Officer Bigger knocked on the front door, but got no response. Officer Daniel arrived a few minutes later and walked around to the back of the townhouse. The backyard was enclosed by a privacy fence, and Officer Daniel could hear a large dog barking “pretty hysterical[ly], angry” inside the yard.
Returning to the front of the home, Officer Daniel observed that Officer Bigger had still received no response to his knocking on the front door. Looking through a gap between the shades of a front window, Officer Daniel was able to see the legs of a person lying prone and motionless in the foyer of the home. Officer Bigger opened the unlocked front door and he and Officer Daniel saw Finch, who lived with Thrall in the home, lying on the floor dead. Finch had suffered three gunshot wounds: one to his head, one to his back, and one to his chest.
Officer Daniel immediately returned to the back of the home to secure that area while Officer Bigger waited at the front of the home for additional officers to arrive. When those officers arrived, Officer Daniel immediately returned to the location on Belfry Lane where the pick-up truck had been parked. He arrived at that location at 4:38 a.m. The truck was gone.
Officer Sheldon R. Creamer, one of the officers who had responded to the call by the other officers for assistance, arrived at 3406 Jousters Way at approximately 4:45 a.m. Entering the home, he heard “a muffled breathing sound” coming from the kitchen at the back of the home. In the kitchen he found Thrall, shot and lying in a pool of blood. Emergency medical personal called to the scene took Thrall by ambulance to a helicopter, which in turn evacuated her to the Washington Hospital Center in the District of Columbia, where she later died. Thrall had suffered multiple gunshot wounds including a defensive wound to her right hand, three to her head, and one to her chest. She also suffered a blunt force trauma to the back of her head consistent with a pistol-whipping.
Officer Creamer found that the backdoor was locked by its doorknob lock, but that the door's deadbolt lock was not engaged. He could hear the dog barking in the back yard. Entering the yard from the kitchen, Officer Creamer found that the dog had calmed down. He then determined that the gate of the privacy fence was secured with a locked padlock.
Meanwhile, because Officer Daniel had reported seeing a child looking out of a second floor back window, Officer Bigger reentered the home and went upstairs. There he found Thrall's two sons, aged six and four, who were crying and upset. Police officers removed the children from the home.
The Investigation
Officer Thomas Leo, a crime scene analyst with the Prince William County Police Department, collected bloodstain samples at various locations inside the townhouse. Subsequent DNA testing of these samples confirmed that the blood was that of Thrall and Finch. Leo also found a bloodstain on the inside of the gate of the privacy fence. Subsequent DNA testing of this sample showed that it was consistent with Elliott's DNA to a degree that a match would occur “once in the entire world population.”
Although a murder weapon was never recovered, forensic testing of ten bullets recovered from the home and during the autopsies of Thrall and Finch confirmed that all had been fired by the same weapon. The bullets were of a type used only in a revolver-type handgun. Gary Arnsten, a firearms expert with Virginia's Division of Forensic Science, testified at trial that because no weapon of this type could hold more than five or six bullets in its revolving chamber, he was certain that the weapon had been reloaded during the commission of the murders.
Detective Charles Hoffman of the Prince William County Police Department spoke with Finch's sister, Jennifer Finch, the day of the murders. She informed Detective Hoffman that Finch had a prior romantic relationship with Rebecca Gragg. She also told him that Finch and Gragg had been involved in a bitter custody dispute over their two children. Detective Hoffman went to Gragg's residence in Dale City, Virginia, located about six miles from the crime scene. Gragg was not at home, but there were two vehicles parked in front of the residence. One of the vehicles was registered in Elliott's name.
Gragg returned to her home later that day and was interviewed by two detectives. At that time, Gragg maintained that Elliott was her “friend and business partner.” She denied knowing anything about the murders, but stated that Finch had many enemies.
The following day, January 3, 2001, Detective Hoffman and another detective traveled to Fort Meade in Hanover, Maryland, where Elliott worked as a civilian employee for the United States Army as a counterintelligence expert. The detectives had learned that Elliott owned a pick-up truck and wanted “to determine whether that truck could, in fact, have been the truck that was seen nearby the [crime] scene.” The detectives located the truck in a parking lot at Fort Meade, and Detective Hoffman observed that there was a flashlight, a cellular telephone, and a box of bandages on the seat of the truck.
As Detective Hoffman was taking photographs of the truck, Elliott approached him, identified himself as the owner of the truck, and agreed to talk to the detectives. During that conversation, Elliott told the detectives that Gragg was an employee at a brewing company he owned in West Virginia. He admitted that he had supplied Gragg with a credit card in the name of “Rebecca L. Elliott,” but maintained that this had been for business purposes. He also told the detectives that he had been traveling over the New Year's holiday, as had Gragg, and that during that time he had spoken with her several times on his cellular telephone in an effort to arrange a business meeting with her.
Elliott told the detectives that he was aware that Gragg and Finch were involved in a dispute regarding the custody of their two children. Elliott related that Gragg had traveled to Florida over the New Year's holiday and had taken the children with her. He further related that Gragg had told him that she was having car trouble and would not be able to return to Virginia with the children in time to return them to Finch at 2:00 p.m. on New Year's Day as she was required to do under a visitation agreement. Elliott claimed that he had driven to Gragg's residence in the early afternoon of New Year's Day “in case Robert Finch showed up so that [Elliott] could explain to him the problems Rebecca was having with getting back.” Elliott denied he had any relationship with Gragg other than as her employer. He also denied knowing Finch and claimed that he had seen him only once.
Although Detective Hoffman told Elliott that his truck had been seen in Finch's neighborhood in the early morning hours of the day of the murders, Elliott denied having been in the area. Elliott claimed that he had spent the night of January first to second sleeping in his truck at a rest area in Maryland.
Elliott voluntarily accompanied the detectives to the Anne Arundel County, Maryland Police Department. During the course of an interview there, Elliott admitted the true nature of his involvement with Gragg. He told the detectives that he had initiated a relationship with Gragg in mid-1999 after viewing her photograph on an Internet website called “Adult Friend Finders.” In her advertisement, Gragg had indicated that she was looking for a “sugar daddy.” During their first meeting, Gragg told Elliott that she had worked as a stripper and “private escort,” a euphemism for a “call-girl” prostitute. Gragg told Elliott that she wanted to turn her life around and needed financial support to start a business designing and selling costumes for strippers. She told Elliott that she was not interested in having a romantic or sexual relationship with him. Elliott agreed to this arrangement, saying that he wanted only friendship from Gragg.
Elliott subsequently provided Gragg with significant financial support, including paying private school tuition for her children, paying the mortgage on one house Gragg owned in West Virginia and rental on others where she lived with her husband and children at various times, providing her with cars, and permitting her to use his credit cards. Elliott also paid for breast augmentation surgery for Gragg, who had begun operating a pay-to-view pornographic website. Elliott admitted that his support of Gragg had placed a significant financial burden on him and that he had to sell investments to pay her credit card debts.
Elliott further admitted that he knew where Finch lived and that, after he had gone to Gragg's house on the afternoon of January 1, 2001, he had driven to Finch's house. He denied getting out of his truck, however, and claimed that he had seen “a black man with a slinky walk going to the front door of the home.” Elliott maintained that he had then driven to a large national retail store and a restaurant before driving to the rest stop in Maryland where he had spent the night. He then claimed that he had driven back to Gragg's residence about 3:00 a.m. on the morning of January 2, 2001, to retrieve a case of motor oil that he had seen there the day before. He then went to a convenience store where he called Gragg's cellular telephone on a pay telephone. Elliott claimed that he used the pay telephone because his own cellular telephone's battery had run down. Telephone company records showed that a call had been placed from the pay telephone to Gragg's cellular telephone at 3:28 a.m. on January 2, 2001.
Elliott admitted that after calling Gragg, he drove to Finch's neighborhood. He admitted leaving his truck, claiming that he did so only because he needed to urinate. Elliott stated that after urinating by a guardrail on the side of the road, he walked by Thrall's and Finch's townhouse. He denied going onto the property and stated that he had not heard gunshots, a scream, or anything unusual. At the conclusion of this interview, Detective Hoffman took a photograph of an abrasion he had noticed on one of Elliott's hands.
On January 4, 2001, Gragg, accompanied by her lawyer, was again interviewed by detectives investigating the murders of Thrall and Finch. During that interview, she admitted receiving a telephone call early on the morning of the murders, but claimed that the call had come from Finch. Gragg claimed that Finch had threatened to call the police if she did not return their children to him that afternoon. Gragg also told the detectives that she did not believe that Elliott had committed the murders.
On January 7, 2001, Detective Hoffman conducted another interview with Elliott during which Elliott admitted that he had been in Finch's neighborhood “hundreds of times.” He further admitted walking through the neighborhood, but again denied that he had ever been on the property of the townhouse where Thrall and Finch lived.
On January 8, 2001, Officer Leo, the crime scene analyst, took possession of Elliott's pick-up truck pursuant to a search warrant. He determined that the interior of the truck had recently been cleaned, noting that the carpet was wet and that the seats and interior had been covered with a “silicone type base cleaner.” Nonetheless, testing of samples collected from the underside of the truck's floor mats showed a trace residue of blood, though the samples were too small for accurate DNA testing. A further blood sample found in the seat cushion was consistent with Elliott's DNA.
Detectives investigating the murders interviewed Gragg on January 12, 2001 and again on January 19, 2001. She continued to deny any knowledge of the murders. Based on the results of a polygraph examination that Gragg had agreed to take, police suspected that Gragg was not being fully forthcoming, but they were not certain to what extent she had knowledge of the murders or whether she may have been directly involved. Over the next several months, Gragg had continuing contact with the police concerning the investigation of the murders, but she did not provide any additional information concerning Elliott.
On May 9, 2001, Elliott was arrested in Maryland and charged with capital murder. At that time, according to Maryland State Police, Elliott was “leaving [in his vehicle] at a high rate of speed,” and there was some concern that he was attempting to flee. Elliott claimed, however, that he had intended to turn himself in.
On May 10, 2001, Prince William County detectives again interviewed Gragg. During that interview, Gragg agreed to submit to a second polygraph examination. After the polygraph examiner and Detective Hoffman told Gragg that her responses to questions concerning her knowledge of the murders indicated that she was being untruthful, Gragg asked to speak with her attorney.
After consulting with her attorney, Gragg told the police that the telephone call she had received early on the morning of the murders was not from Finch, although initially she had assumed it was because the connection was not good and she could not hear the caller clearly. Gragg then related that when the caller realized that she thought she was talking to Finch, the caller said he was “tired of this s* * * and was going to take care of it” and hung up. Gragg then realized that the call had come from Elliott. She attempted to call his cellular telephone, but the call was answered by a voice mail system.
Gragg told the detectives that she received several more calls on her cellular telephone from Elliott later on January 2, 2001. During one call, Elliott told her that “all of our problems had been taken care of.” In another call, Elliott claimed that “Jerry,” a cryptic figure Elliott supposedly knew through his work with military counterintelligence, “had come out of nowhere to help him, that he had to go clean up this mess.” Later, Elliott told Gragg that he was looking for a place “to dump ... these bloodied black trash bags from the mess that Jerry had made.”
Gragg told the police that she had not been truthful in her prior interviews because she was afraid of Elliott and “Jerry,” because Elliott had once told her that “Jerry” was watching her and that he would kill her or her family if she went to the police. Once Elliott was in custody and the police had assured her that there was no “Jerry,” she stated that she had decided to be truthful. Gragg's attorney confirmed that she had told him on several occasions that she feared Elliott would harm her if she told the police what she knew.
Prior to the July 2002 trial, Elliott had filed numerous motions, among which were motions to have the Virginia capital murder and death penalty statutes declared unconstitutional and to have the jury instructed that, if the Commonwealth presented evidence of vileness during the penalty determination phase of the trial, the jury was to be unanimous in its determination of the elements of the act that caused it to be vile. The trial court denied these motions without comment. After the mistrial was declared, Elliott did not renew any of these motions or otherwise request that the trial court adopt the pre-trial rulings of the first trial and apply them to the conduct of the retrial.
Prior to the retrial, Elliott filed motions seeking disclosure of exculpatory and impeaching information within Rebecca Gragg's initial statement to police and related police reports. Elliott maintained that, as a result of Gragg's testimony during the first trial, he now believed that the Commonwealth was in possession of statements by Gragg or police reports contradicting her testimony. Elliott also sought an in limine ruling from the trial court to permit the introduction at trial of a videotape of Gragg's polygraph examinations. Elliott maintained that the polygraph evidence would show that Gragg had a motive to fabricate a story implicating him when she learned that police knew that she had been untruthful in her prior interviews when she denied any knowledge of or involvement in the murders.
The trial court, by letter to counsel, directed the Commonwealth to disclose to Elliott all statements, whether exculpatory or not, “authored by Rebecca Gragg and furnished to the Office of the Commonwealth's Attorney at some point during the pendency of this prosecution.” The record shows that the Commonwealth provided Elliott with additional material not previously provided under a Brady order entered in the first trial, including a forty-eight-page statement “generated by Ms. Gragg.” The Commonwealth averred in a cover letter to the packet containing this material that Elliott had thus been “provided ... with transcripts or summaries of all material contacts between Ms. Gragg and the police concerning this ... case.”
On February 10, 2003, and in anticipation of Elliott's second trial, a hearing was conducted on Elliott's motion to permit the videotape of Gragg's polygraph examinations into evidence. During that hearing, Elliott's counsel asserted that he should be permitted to establish that Gragg had changed her “story” after the police told her that she had “failed” the polygraph examinations. The trial court ruled that during cross-examination of Gragg, Elliott could establish that police had confronted her on May 10, 2001, with the assertion that she had been untruthful in her prior interviews and that is why she had made prior inconsistent statements to the police. The trial court reasoned that Elliott's right to cross-examination could be conducted “without getting into this morass of polygraph, no polygraph, passing, failing and the like.”
Guilt Determination Phase
Elliott's second trial commenced on March 24, 2003.FN1 During the guilt determination phase of the trial, the Commonwealth presented evidence in accord with the above-recited facts concerning the murders and the subsequent police investigation. During the course of the guilt determination phase, several issues arose which principally relate to the polygraph examinations of Gragg and are the subject of various assignments of error asserted by Elliott in this appeal. For clarity, we will confine our recitation here to the facts relevant to the murders and subsequently recite additional facts where appropriate to address those assignments of error.
FN1. Elliott has not assigned error to any aspect of the jury selection process. Accordingly, we need not recount the incidents of that portion of the trial.
Brandon T. Jackson, an employee of the United States Army Intelligence & Security Command at Fort Belvoir, Virginia, had known Elliott since 1991. He testified that on December 26, 2000, Elliott had sent him an e-mail stating that Elliott and some co-workers at Fort Meade wanted to establish a gun range for practice shooting. Jackson recounted that Elliott knew that Jackson had a federal firearms dealer's license, and that Elliott wanted to know if Jackson could acquire gun silencers because these were needed for use at the gun range to avoid complaints from neighbors.
Jackson testified that he ignored the e-mail because he believed Elliott's request was “ludicrous.” He explained that gun silencers would never be used for practice shooting because the repeated use of silencers made them less effective at reducing the sound of gunfire. He also testified that obtaining gun silencers legally was a complex process. Several days after sending the e-mail, Elliott telephoned Jackson and asked if he had received the e-mail. He also asked Jackson detailed questions about gun silencers and whether Jackson thought Elliott could purchase a silencer at a gun show.
Gragg testified at length concerning her relationship with Elliott. While not denying her willingness to financially exploit Elliott's attraction to her, she maintained that from the outset she had made it clear to Elliott that she was not seeking a romantic or sexual relationship. Gragg testified, however, that Elliott had once claimed to her that they had sexual intercourse while Gragg had been under the effects of a pre-operative sedative the night before her breast augmentation surgery.
Following this incident, Elliott was “constantly” professing his love to Gragg and provided her with more and more financial support and material goods. Though continuing to accept these gifts, Gragg became uncomfortable with the relationship and began refusing to see Elliott socially. Elliott then began making excuses to see Gragg allegedly on business related matters and would arrive unannounced at places where he knew Gragg would be.
Elliott had employed a private investigator to aid Gragg in her child custody dispute with Finch. When the investigator failed to provide Elliott with any useful information, Elliott told Gragg that “he knew people that could do it better.” Gragg, who still had romantic feelings for Finch, told Elliott not to interfere.
Eventually, Gragg revealed to Elliott that she had resumed her relationship with Finch and was still in love with him. Elliott then told Gragg that “Jerry” was “checking up” on her so that Elliott could “keep [Gragg] in line.” When Gragg made light of this claim, Elliott grabbed her by the arm and told her that she should take him seriously because “people's lives were in danger.” Elliott also told her that if she went to the police, these people would be killed. Elliott specifically mentioned Finch as one of the people who would be killed.
In mid-December 2000, Elliott told Gragg that she “had gotten him into this mess,” and that she had to help him get out of it. Elliott said that, if Gragg refused, he did not know what “Jerry” might do. Elliott gave Gragg personal information about his wife's financial accounts and had her pose as his wife on the telephone to make transfers out of those accounts. Elliott threw the paper with the information on it away, but Gragg retrieved it and later turned it over to the police.
On December 26, 2000, the same day that Elliott sent the e-mail to Jackson inquiring about obtaining gun silencers, Elliott sent a rambling e-mail to Gragg to “give [her] a little more information concerning a couple of issues that are in the works.” Indicating that he had sent her a carbon copy of his e-mail to Jackson, Elliott further stated that Jackson was “only one of two people that I am working this issue with.” Elliott claimed that the other person, who he identified as “Mac,” was “into anything that went bang and he just may have some connections.” Elliott further indicated that he had to meet with “Mac” personally because “[h]e is the type of guy that would bolt if I mentioned any of this in an email.”
Throughout the e-mail, as he had in previous communications to Gragg, Elliott made references to having “this one issue resolved” and the possibility of he and Gragg “hav[ing] a relationship when [her] problem [is] taken care of.” Gragg testified that she understood that by the “issue” and the “problem” Elliott was referring to the child custody dispute with Finch. Elliott concluded the e-mail with a postscript telling Gragg to remember that he loved her even “if everything goes south.”
After the Commonwealth rested, Elliott recalled Detective Hoffman for the limited purpose of inquiring into one of the issues, previously referenced herein, that had arisen during the Commonwealth's presentation of evidence. Elliott otherwise did not offer any evidence. After being instructed by the trial court and hearing argument from the Commonwealth and the defense, the jury retired to consider its verdicts. During deliberations, the jury sent a question to the trial court asking to view a videotape of the crime scene that had been admitted into evidence. With the concurrence of the parties, the trial court permitted the jury to view the videotape. The record does not reflect that there was any other communication from the jury during this phase of the trial.
After four hours of deliberation, the jury returned its verdicts, convicting Elliott of the capital murder of Thrall, the first degree murder of Finch, and the two related firearm offenses. At the request of the defense, the jury was polled and each juror indicated agreement with the verdicts.
Penalty Determination Phase
Elliott has not assigned error to the conduct of the evidentiary portion of the penalty determination phase of his trial. Accordingly, we will recount the evidence presented in summary fashion. The Commonwealth called Thrall's mother, brother, and sister-in-law as witnesses to give victim impact testimony. Each recounted the effect of Thrall's murder on her family, including the effect it had on her two sons.
Elliott called his wife and six of his co-workers as character witnesses. Their testimony consisted principally of assertions of Elliott's good character, mild manner, and strong work ethic, including his twenty years enlisted service in the United States Army as a counterintelligence specialist and his subsequent civilian employment in that same capacity.
Elliott's wife testified that they had married in 1976 and that they had a daughter. Elliott also had children from a prior marriage. She admitted that Elliott had not had a close relationship with their daughter. She maintained, however, that he was not a violent person and “would not hurt anybody.” On cross-examination, Elliott's wife maintained that she had been unaware of Elliott's relationship with Gragg. Mrs. Elliott also testified that she was unaware until after the murders that Elliott had dissipated about $200,000 of her separate assets during the course of his relationship with Gragg.
The trial court, having ruled that the Commonwealth could not argue Elliott's future dangerousness to society as an aggravating factor supporting the imposition of the death penalty, ruled that the case would be submitted to the jury only on the vileness aggravating factor. During consideration of the jury instructions, Elliott's counsel stated that he agreed with the proposed instruction which, in relevant part, defined the vileness aggravating factor as requiring that the murder of Thrall “was outrageously or wantonly vile, horrible or inhuman, in that it involved torture, depravity of mind or aggravated battery of the victim beyond the minimum necessary to accomplish the act of murder.”
Elliott did not request an instruction requiring that the jury agree unanimously on the basis for finding the murder to have been vile, as he had requested in his pre-trial motion prior to his first trial. Rather, Elliott's sole assertion at this point was that, “for the record,” he objected to the jury being instructed on capital murder because the evidence would not support a finding that the murder of Finch was vile. While conceding that he had no authority other than “a new article [he had] read,” Elliott's counsel contended that where the capital murder charge was premised on there having been one or more killings as part of the same transaction, the jury was required to find that all the killings were vile. The trial court overruled this objection and again asked if Elliott concurred with the instructions. Elliott's counsel replied, “Yes, other than the objection I've made.”
While the jury was deliberating, it sent a question to the trial court asking clarification on where the money to pay a fine imposed on Elliott would come from and “where would the money go.” With concurrence of the parties, the trial court instructed the jury that it was not to concern itself with these matters. The record does not reflect that there was any other communication from the jury during this phase of the trial.
The jury returned its verdicts, sentencing Elliott to death for the capital murder of Thrall, to life imprisonment for the first degree murder of Finch, and to a total of eight years imprisonment for the two firearm offenses. At the request of the defense, the jury was polled and each juror indicated agreement with the verdicts.
Sentencing
After the jury returned its verdict imposing the death sentence, the trial court ordered the preparation of a post-sentence report in accord with Code § 19.2-264.5. In that report, Elliott claimed for the first time that his relationship with Gragg had in fact evolved into a sexual, though not necessarily romantic, arrangement. Elliott maintained that he had not disclosed this fact to the police at Gragg's request. Elliott continued to maintain his innocence.
Following preparation of the post-sentence report, the trial court held a sentencing hearing on May 22, 2003. During that proceeding, the trial court overruled several post-verdict motions filed by Elliott. To the extent these motions are pertinent to issues raised in this appeal, we will address their substance within the discussion of the relevant assignments of error. Addressing the trial court prior to the imposition of sentence, Elliott denied any involvement in the murders of Thrall and Finch, asserting that he was the victim of “lies that were told in [the] courtroom” and “a police department that practices Gestapo techniques.” The trial court imposed sentence in accord with the jury's verdicts.
We consolidated the automatic review of Elliott's death sentence with his appeal of the capital murder conviction. Code § 17.1-313(F). Elliott's appeal of his non-capital convictions was certified from the Court of Appeals, Code § 17.1-409, consolidated with his capital murder appeal, and the consolidated appeals were given priority on our docket.FN2
FN2. Except to the extent that Elliott asserts that errors in the general conduct of his trial would require a reversal of all his convictions, Elliott does not directly challenge his convictions or sentences for the non-capital crimes.
DISCUSSION
Elliott raises twenty assignments of error with respect to the conduct of his trial and the imposition of the death sentence. The Commonwealth contends that many of Elliott's assignments of error either were not properly preserved in the trial court or otherwise have been procedurally defaulted. We will address Elliott's assignments of error seriatim, considering the Commonwealth's assertions of waiver where relevant.
The “Reasonable Doubt” Jury Question Issue
In preparing for this appeal, Elliott's appellate counsel FN3 discovered in the trial court's manuscript record a handwritten note, apparently composed by a juror, which reads:
Can you supply a more simplistic definition of reasonable Doubt from a guilt or im (sic) innocence point of View?
In his first assignment of error, Elliott contends that the trial court erred in failing to inform his counsel of this jury question. Elliott asks that this Court remand the case to the trial court for an evidentiary hearing “to determine whether the jury asked the reasonable doubt question appearing in the record.”
FN3. Elliott's trial counsel had sought to withdraw from representation following the mistrial of Elliott's first trial. The trial court denied the motion to withdraw, and trial counsel represented Elliott pro bono publico during the second trial. Subsequently, Elliott's appellate counsel were substituted and served pro bono publico.
Because the existence of the “reasonable doubt” jury question was not discovered until after the trial court's jurisdiction had expired, no inquiry was made in the trial court as to whether the jury had intended for this question to reach the trial judge. The Commonwealth contends that because the alleged failure of the trial court to inform Elliott of the question was not the subject of any objection in the trial court, the issue cannot be raised for the first time on appeal. Rule 5:25. Elliott responds that “a party can[not] waive an argument before becoming aware of the error.”
As we previously noted herein, there is no indication in the record that the trial court received any inquiry from the jury other than the request to view the crime scene videotape during the guilt determination phase and the question concerning the imposition of a fine during the penalty determination phase. Unlike the questions received by the trial court, the “reasonable doubt” jury question contains no response from the trial court. Beyond these facts, the matter reduces itself to one involving pure speculation, and we decline to speculate whether the jury actually intended to send the purported jury question at issue to the trial court for a response. Accordingly, we will take no further consideration of this issue in this appeal.FN4. Moreover, the relief that Elliott seeks, a remand for an evidentiary hearing in the trial court, is not one that may be afforded in a direct appeal.
In his second assignment of error, Elliott asserts that the trial court erred in overruling his motion in limine to have the videotape of Gragg's polygraph examinations admitted into evidence. Elliott acknowledges that evidence of polygraph examinations is not admissible to show the correctness of the results of such examinations. Relying on Crumpton v. Commonwealth, 9 Va.App. 131, 384 S.E.2d 339 (1989), he contends that evidence of a polygraph examination may be admissible to explain “the motive for, or context underlying, testimony or statements given by a witness after the witness is told of the results of his polygraph examination.” The Commonwealth responds that Elliott's reliance on Crumpton is misplaced and that the trial court's ruling in this case is in accord with our decision in Robinson v. Commonwealth, 231 Va. 142, 155, 341 S.E.2d 159, 167 (1986), where we held that results of a polygraph examination may not be used to impeach a witness. We agree with the Commonwealth.
In Crumpton, the Court of Appeals held that a criminal defendant had a right to give a full explanation of his prior inconsistent statements to the police “so long as that explanation did not also necessarily invoke the polygraph examination results as proof that he had been truthful” when he testified. 9 Va.App. at 137, 384 S.E.2d at 343. The Court in Crumpton emphasized that its holding was based upon “the particular facts and procedural posture” in which the issue arose in that case. Id., 384 S.E.2d at 342. Moreover, the Court expressly acknowledged our clear precedent, as expressed in Robinson, 231 Va. at 156, 341 S.E.2d at 167, that the results of polygraph examinations are not admissible whether they favor the accused or are agreed to by both the accused and the Commonwealth. Crumpton, 9 Va.App. at 135, 384 S.E.2d at 342.
Crumpton is inapplicable to the present case. It is evident that Elliott sought to impeach Gragg's credibility by the introduction of evidence of Gragg's polygraph examinations as reflected in the videotape of those examinations. Accordingly, our decision in Robinson is controlling, and we hold that the trial court did not err in denying Elliott's motion in limine to admit into evidence the videotape of Gragg's polygraph examinations.
The remaining polygraph issues raised by Elliott in this appeal arose at trial in the following context. During Elliott's counsel's cross-examination of Detective Hoffman in the guilt determination phase of the trial, the following exchange occurred:
Q. Now there is a gentleman in your police department-and I don't necessarily want you to tell me what he does, but I want to ask you the question. There is a Mr. Meyers; you are familiar with that name?
A. Yes, sir.
Q. He is a person that interviewed Rebecca [Gragg] as well as you; am I right?
A. I believe you're referring to the polygrapher?
Elliott's counsel immediately requested a bench conference. Counsel asserted that he had specifically framed his question so that Detective Hoffman would not identify Meyers as a polygraph examiner. The trial court agreed and asked, “[w]hat if anything do you want to do?” Elliott's counsel asserted that Hoffman had “opened the door and I want to go in it.” The trial court reflected that it was “a little dismayed by the answer [Hoffman] gave,” excused the jury, and proceeded to question Hoffman.
The trial court questioned Detective Hoffman on why he had referred to Meyers as “the polygrapher.” Hoffman explained that there were two officers in the police department named Meyers. He conceded upon further questioning, however, that the other officer was a patrolman who had not been involved in the investigation of the Thrall/Finch murders.
Elliott's counsel maintained that because the jurors were now aware that Gragg had taken a polygraph examination, they would naturally assume that she had passed the examination and, thus, tend to find her testimony more credible. The trial court offered to instruct the jury either that it should disregard Detective Hoffman's last answer and/or to specifically instruct the jury that the fact that a witness may have taken a polygraph examination should not lend credence to the witness's testimony. Elliott's counsel indicated that he would prefer that the jury only be instructed to disregard the answer, and that he agreed to this remedy “under protest.”
Elliott's counsel then moved for a mistrial, stating that “ [i]t was the responsibility on the part of the Commonwealth to inform [Detective Hoffman] not” to make reference to Gragg having taken polygraph examinations. Elliott's counsel further stated that while he did not “know why [Hoffman] did it ... he has been a police officer long enough to know that he shouldn't be discussing polygraphs in courtrooms ... it was intentional in that regard.” The trial court denied the motion for mistrial. The trial court then instructed Detective Hoffman that he was not to mention the polygraph examinations again. When the jury returned, the trial court instructed the jurors that they “will disregard the last answer given by this witness.”
Elliott subsequently filed a post-verdict motion for a new trial, asserting that the jury would have been unable to follow the trial court's instruction and disregard Detective Hoffman's answer indicating that Meyers was a polygraph examiner. During the sentencing hearing, the trial court expressly found that Hoffman had inadvertently mentioned Meyers' role as a polygraph examiner, and that, without a more definitive assertion that Gragg had undergone polygraph examinations, it would require “an inference upon inference upon inference” for the jury to have concluded that Gragg had passed the examinations. The trial court denied the motion for a new trial, ruling “that one can assume to the extent that answer has any effect at all, that [the jury] did in fact follow the Court's instructions to” disregard the answer.
In his third assignment of error, Elliott contends that the trial court erred in not permitting him to introduce the results of Gragg's polygraph examinations to rebut the false impression that Gragg had been truthful in her statements to the police. Elliott contends that the jury would naturally have such an impression from Detective Hoffman's reference to a “polygrapher” having interviewed Gragg. Elliott asserts, as he did at trial, that Hoffman's response “opened the door” to the admission of the results of Gragg's polygraph examinations. We disagree.
The term “opening the door” is a catchphrase often used to refer to the doctrine of curative admissibility. Curative admissibility, in its broadest form, allows a party to introduce otherwise inadmissible evidence when necessary to counter the effect of improper evidence previously admitted by the other party. See Clark v. State, 332 Md. 77, 629 A.2d 1239, 1244-45 (1993); see also 1 John H. Wigmore, Wigmore on Evidence, § 15 (Rev. ed.1983). The specific facts of this case do not implicate the application of this doctrine. We are of opinion that the trial court properly exercised its discretion to give a curative instruction to the jury under the circumstances rather than to permit Elliott to introduce otherwise inadmissible and unreliable evidence.
In his fourth and fifth assignments of error, Elliott contends, respectively, that the trial court erred in not granting his motion for mistrial and in not granting his motion for a new trial on the ground that the curative instruction given by the trial court was not adequate to cure the prejudice caused by Detective Hoffman's testimony.
A trial court exercises its discretion when it determines whether it should grant a motion for mistrial. Whether improper evidence is so prejudicial as to require a mistrial is a question of fact to be resolved by the trial court in each particular case. Unless this Court can say that the trial court's resolution of that question was wrong as a matter of law, it will not disturb the trial court's decision on appeal. A judgment will not be reversed for the improper admission of evidence that a court subsequently directs a jury to disregard because juries are presumed to follow prompt, explicit, and curative instructions.
Beavers v. Commonwealth, 245 Va. 268, 280, 427 S.E.2d 411, 420, cert. denied, 510 U.S. 859, 114 S.Ct. 171, 126 L.Ed.2d 130 (1993) (citations omitted).
As the trial court noted during the sentencing hearing, the oblique reference to a “polygrapher” is not so inherently prejudicial as to require the trial court to grant a mistrial or to set aside the verdict and order a new trial. See Epperly v. Commonwealth, 224 Va. 214, 234, 294 S.E.2d 882, 893-94 (1982) (holding that a witness's mention of the word “polygraph” did not cause harmful error because the reference was elicited “without definition or elaboration”). We hold that in this case the giving of a prompt curative instruction to disregard the reference, which the jury is presumed to have obeyed, was sufficient to avoid any prejudice to Elliott and, thus, the trial court did not abuse its discretion in denying the motions for a mistrial and for a new trial.
Gragg's Alleged False Testimony
During his cross-examination of Gragg, Elliott's counsel attempted to impeach Gragg by asserting that she had embellished her trial testimony with inculpatory details that had not been included in the interview she gave to police on May 10, 2001. Specifically, Elliott's counsel contended that, in contrast to her trial testimony, she had not told police that Elliott had said during one of the telephone calls after the murders that he was “ covered with blood” and that the police were “swarming” around. Gragg testified that while these details were not in the transcript of her interview with the police, she had “told [Detective Hoffman] everything when we were outside” taking a cigarette break and that “when I came back inside they made me-they wrote it down.” Under further questioning, Gragg was uncertain whether the police had written the statement containing these additional details for her to sign or whether she had written the statement herself.
Elliott's counsel, noting that such a statement “has not been provided to the Defense,” requested that Elliott be provided a copy of this written statement. The Commonwealth's Attorney advised the trial court that he had no knowledge of the written statement's existence. As it was late in the day, the trial court called a recess and directed the Commonwealth's Attorney to make inquiries regarding the existence of the written statement.
After the Commonwealth's Attorney and Elliott's counsel jointly interviewed Detective Hoffman, the Commonwealth's Attorney advised the trial court that, according to Hoffman, “no such document was created by him or by anyone ... he did not have [Gragg] sign anything or read over anything” on May 10, 2001. Elliott's counsel stated that he wanted “a stipulation from the government that there is no such statement.” The trial court ruled that either the Commonwealth could agree to such a stipulation or Elliott could call Hoffman “to establish that no such statement exists ... absent the stipulation by the Commonwealth the statement does not exist, you're entitled to prove that it doesn't exist.” The trial court then asked Elliott's counsel, “What else do we need to do?” Elliott's counsel replied, “Not a thing.”
Elliott's counsel then asked the Commonwealth's Attorney whether he would stipulate that the statement did not exist. The Commonwealth's Attorney replied, “We don't know it doesn't exist, we don't have any evidence on it. You've just got to argue that to the jury that there is no such document.” The trial court again asked, “Well, what else can we do today?” Elliott's counsel replied, “That's it, your Honor.”
When the trial resumed the following morning, Elliott's counsel continued his cross-examination of Gragg. Gragg conceded that she did not mention Elliott saying he was “covered in blood” or that police were “swarming” in either the May 10, 2001 interview or in a written statement she later prepared for the police.FN5. This written statement was the one provided to Elliott during the pre-trial proceedings.
Elliott's counsel then questioned Gragg about the written statement she alleged contained these details, asking her to describe the paper it had been written on and to clarify whether she or Detective Hoffman had written the statement. Gragg testified that she could not recall whether the statement had been written on a pad or on loose paper, but that she believed Hoffman had written the statement and she had read it and signed it. Gragg further testified that when she later asked the Commonwealth's Attorney for a copy of this statement, he told her to ask Detective Hoffman, who “told me that he could not find it.”
After Elliott's counsel concluded his cross-examination of Gragg, the trial court called a bench conference and asked the Commonwealth's Attorney if he had any recollection of having been asked by Gragg about the May 10, 2001 written statement or referring her to Detective Hoffman. The Commonwealth's Attorney stated that he had no such recollection.
Elliott's counsel stated that while he was “not suggesting that [the Commonwealth] did anything improper” concerning Gragg's testimony, his “concern is how do we proceed knowing there is no such statement.” The trial court again opined that Elliott could call Detective Hoffman to testify that the statement did not exist. Elliott's counsel then stated that he was concerned the Commonwealth might try to rehabilitate Gragg in redirect examination. The trial court then asked whether Elliott's counsel was asserting that “the Commonwealth knows this is ... perjury.” Elliott's counsel responded he was not making that assertion. Although the Commonwealth conducted a brief redirect examination of Gragg, it did not return to the issue of the alleged May 10, 2001 written statement.
After the Commonwealth rested, Elliott recalled Detective Hoffman and asked him whether he had prepared a written statement for Gragg to sign on May 10, 2001. Hoffman testified that neither he nor any other officer prepared a statement for Gragg to sign on that day.
Elliott filed a post-verdict motion for an evidentiary hearing “to determine the factual circumstances surrounding the existence of a written statement allegedly signed by Rebecca Gragg at the behest of the police on May 10, 2001.” Elliott contended that either “Gragg lied on the stand in a deliberate attempt to make her story appear more credible and consistent” or “ the written statement was signed by her off the record, and the police and/or the Commonwealth lost it or suppressed it.” Elliott stated that an evidentiary hearing was necessary because “any possibility of witness perjury or police misconduct must be fully explored.”
At the sentencing hearing, the trial court ruled that the matter had been “explored before this jury to the extent ... that the Defendant saw fit to do so .... [T]o conduct an additional hearing at this point on the same issue ... is not warranted.” The trial court denied the motion for an evidentiary hearing in the sentencing order.
In his sixth assignment of error, Elliott contends that “[t]he trial court erred in failing to declare a mistrial based upon the presentation of false testimony by the Commonwealth's witness Rebecca Gragg that she had signed a written statement during an interview with the police on May 10, 2001.” In his seventh assignment of error, Elliott contends that “[t]he trial court erred in failing to require the Commonwealth to cure the false testimony by its witness Rebecca Gragg that she had signed a written statement during an interview with the police on May 10, 2001.” In briefing these assignments of error, Elliott directs the Court to two points in the trial transcript, asserting that at these points “the trial court failed to declare a mistrial, to require the Commonwealth to take steps to correct the falsehood offered by its star witness, or to otherwise remedy the introduction of this testimony.”
The Commonwealth contends that the record does not show that Elliott requested a mistrial or otherwise requested the trial court to “remedy the introduction of this testimony.” Accordingly, the Commonwealth asserts that Elliott may not raise these issues for the first time on appeal. Rule 5:25.
In his eighth, ninth, and tenth assignments of error, Elliott contends, respectively, that the trial court erred “in failing to find that the Commonwealth violated its obligation to disclose exculpatory evidence,” in failing to grant his post-trial motion for an evidentiary hearing to inquire into the existence of Gragg's alleged written statement, and “in failing to grant a mistrial based upon the Commonwealth's failure to disclose exculpatory evidence.” The Commonwealth contends that Elliott, though purporting to relate these assignments of error to the question presented in which he argued his sixth and seventh assignments of error, failed to adequately brief these issues.
We have reviewed the trial transcript at the two points referenced by Elliott with respect to the trial court's failure to grant a mistrial or provide him with some other remedy for Gragg's alleged false testimony. In addition, we have considered the entire record of Gragg's testimony concerning the statement that she alleged she signed on May 10, 2001 and the various bench conferences related to that testimony. At no point in the record can we discern where Elliott requested that the trial court declare a mistrial, sought a directive from the trial court requiring the Commonwealth to “cure” Gragg's false testimony, or asked the trial court for any specific remedy.
At best, the record shows that Elliott's counsel asked whether the Commonwealth would stipulate that Gragg had not signed any statement on May 10, 2001. In response, the trial court opined that in the absence of such a stipulation, Elliott's recourse was to call Detective Hoffman to rebut Gragg's testimony. In each instance where the trial court offered this opinion, Elliott's counsel did not object or otherwise assert that this course of action was not adequate. Moreover, Elliott availed himself of that remedy by calling Detective Hoffman as his own witness. Thus, we agree with the Commonwealth that Elliott did not preserve for appeal in the trial court the issues raised in assignments of error six and seven.
Similarly, we can discern no argument of assignments of error eight, nine, and ten within Elliott's opening appellate brief. The failure to brief an assignment of error constitutes a waiver of the argument. See, e.g., Burns v. Commonwealth, 261 Va. 307, 318, 541 S.E.2d 872, 880, cert. denied, 534 U.S. 1043, 122 S.Ct. 621, 151 L.Ed.2d 542 (2001). Moreover, as with assignments of error six and seven, there does not appear to be any point in the record were Elliott requested the trial court to rule that the Commonwealth had failed to disclose exculpatory evidence, assuming that Gragg's alleged statement could be considered exculpatory, or sought a mistrial on that ground. Thus, even if argued on brief, these assignments of error would be barred in any case by the lack of preservation in the trial court.
In his reply brief, Elliott contends that even if he is precluded from raising these issues by his failure to preserve them in the trial court, “the ends of justice would demand that this Court address [these issues] because the false testimony by a government witness strikes at the very heart of the legitimacy of the judicial system.” Even if we were to assume, and indeed there is support in the record for making the contention, that Gragg fabricated her testimony concerning the May 10, 2001 written statement, the record is amply clear that the jury was aware of this possibility. Every instance in which it is possible, or even probable, that a witness has been untruthful with respect to some part of her testimony does not require the declaration of a mistrial, the striking of the witness's testimony, or some other intervention on the part of the trial court. To the contrary, one of the principal duties of a jury as factfinder is to make judgments on the credibility of the witnesses and “[a] factfinder who appreciates a heightened possibility of perjury will respond with heightened scrutiny.” Ohler v. United States, 529 U.S. 753, 764, 120 S.Ct. 1851, 146 L.Ed.2d 826 (2000).
Elliott thoroughly cross-examined Gragg about her claim to having signed the May 10, 2001 written statement and called Detective Hoffman to rebut that testimony.FN6 The record reflects that in the guilt determination phase of the trial, the question of Gragg's credibility was a central theme of Elliott's closing argument. Moreover, Elliott consistently maintained at trial that he did not ascribe any misconduct to the Commonwealth with respect to Gragg's questionable testimony. Under these circumstances, we perceive no reason to invoke the ends of justice exception in order to permit Elliott to raise here issues that were never presented to or ruled on by the trial court.
FN6. In his post-trial motion for an evidentiary hearing, Elliott contended that he wanted to question other police detectives who might have knowledge of whether the statement existed. As the trial court indicated in denying that motion, Elliott had ample opportunity to call witnesses at trial.
For these reasons, we hold that Elliott has waived the issues raised in assignments of error six, seven, eight, and ten by failing to preserve those issues in the trial court, and that he has waived the issue raised in assignment of error nine by failing to brief that issue in this appeal.
Exclusion of Evidence of Third Parties' Animosity Towards Finch
During the trial, Elliott sought to question Gragg about an incident in which Gragg's husband had brandished a gun at Finch. The trial court sustained the Commonwealth's objection, ruling that “unrelated acts of violence would have no bearing on the case ... I don't see that it's relevant.” In his eleventh assignment of error, Elliott contends that the trial court erred in not permitting him to introduce this evidence. Elliott contends that the evidence was relevant to show that Gragg's husband “had as much motivation as [Elliott] to murder Mr. Finch, and the evidence of his prior brandishment of a gun against Mr. Finch shows that he was capable of acting on that motivation.”
“Proffered evidence that merely suggests a third party may have committed the crime charged is inadmissible; only when the proffered evidence tends clearly to point to some other person as the guilty party will such proof be admitted. We have stated that a large discretion must and should remain vested in the trial court as to the admission of this class of testimony.” Johnson v. Commonwealth, 259 Va. 654, 681, 529 S.E.2d 769, 784, cert. denied, 531 U.S. 981, 121 S.Ct. 432, 148 L.Ed.2d 439 (2000) (citations and internal quotation marks omitted). As in Johnson, the evidence proffered by Elliott “bore no direct relation to the crimes charged,” but tended only to show a prior history of a bad relationship between one of the victims and a third party. Id., 529 S.E.2d at 785; cf. Karnes v. Commonwealth, 125 Va. 758, 766-67, 99 S.E. 562, 565 (1919) (holding evidence of recent death threats by third party admissible). Accordingly, we hold that the trial court did not abuse its discretion in ruling that this evidence was irrelevant and inadmissible.
Elliott also sought to question Detective Hoffman on whether he was aware of an allegation by Finch, found in an affidavit in the record of Gragg's and Finch's custody dispute, that Gragg had induced some acquaintances to assault Finch. The trial court ruled that the statement was inadmissible hearsay. In his twelfth assignment of error, Elliott contends, citing Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), that the trial court should not have “applied [the hearsay rule] mechanistically to defeat the ends of justice.” Id. The Commonwealth responds that Elliott did not argue for a Chambers exception to the hearsay rule in the trial court and, thus, this argument is barred by Rule 5:25.
We need not consider whether Elliott's generalized objection to the trial court's exclusion of this evidence as hearsay was adequate to encompass the argument he now makes on appeal. Even if the due process argument under Chambers were cognizable on this appeal, unlike the direct or exculpatory proof noted by the United States Supreme Court in that case, here the evidence is too tenuous and speculative to have relevance to prove that Gragg or some other third party acting for her may have committed the murders. Accordingly, we hold that the trial court properly excluded this evidence.
Sufficiency of the Evidence
At the conclusion of the Commonwealth's presentation of evidence in the guilt determination phase of the trial, Elliott made a motion to strike the Commonwealth's evidence “to preserve the record.” However, Elliott did not offer any express argument that the Commonwealth had failed to make out a prima facie case for capital murder or the other crimes with which he was charged. The trial court denied the motion to strike the Commonwealth's evidence.
In a post-trial motion for “a new trial,” Elliott contended that the evidence was not sufficient beyond a reasonable doubt to prove that he committed the murders.FN7 Elliott contended in that motion that the Commonwealth had failed to exclude every reasonable hypothesis of his innocence. Elliott further contended that even if the evidence were sufficient to prove that Elliott committed the murders, the Commonwealth failed to prove that Finch's murder preceded Thrall's murder. Though citing no authority for the proposition, Elliott contended that a capital murder premised upon the “killing of more than one person as a part of the same act or transaction” under Code § 18.2-31(7) required proof that the victim of the capital murder was killed after some other person had been killed. Following argument at the sentencing hearing, the trial court denied this motion without comment.
FN7. It goes without saying that if the trial court had concurred in Elliott's contention that the evidence had not proven his guilt beyond a reasonable doubt as a matter of law, the relief to which he would have been entitled was the setting aside of the verdicts and a dismissal of the indictments with prejudice, not a new trial.
In his thirteenth assignment of error, Elliott contends that the trial court erred in failing to grant his motion to strike during the guilt determination phase of the trial. In his fourteenth assignment of error, he contends that the trial court erred in failing to grant his “motion to set aside the verdicts for insufficiency of the evidence (denominated a motion for a new trial).” Elliott failed to expressly relate either of these assignments of error to a question presented and in reviewing his questions presented, we do not find any that would incorporate these issues. Moreover, we cannot discern any argument within his brief that expressly addresses these assignments of error. Accordingly, we hold that Elliott has waived these assignments of error.FN8 See Burns, supra.
FN8. In any case, when considering challenges to the sufficiency of the evidence in a criminal trial, we will not disturb the factfinder's verdict unless it is plainly wrong or without evidence to support it. Stockton v. Commonwealth, 227 Va. 124, 146, 314 S.E.2d 371, 385, cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984). The record of Elliott's second trial is adequate to support the jury's verdicts convicting him of the murders of Thrall and Finch and the related firearm offenses.
Vileness Aggravating Factor Issues
In his fifteenth assignment of error, Elliott contends that the trial court erred in overruling his motion to have Virginia's capital murder and death penalty statutes declared unconstitutional “on the ground that the ‘vileness' aggravator ... is unconstitutionally vague on its face and as applied in this case and therefore fails to provide meaningful guidance to the jury.” This contention is an amalgam of three arguments raised by Elliott in the omnibus motion filed prior to his first trial challenging the constitutionality of the capital murder and death penalty statutes.
In his sixteenth assignment of error, Elliott contends that “[t]he trial court erred in failing to instruct the jury on the narrowing construction of the ‘vileness' aggravator adopted by this Court.” FN9 Although it is not entirely clear from the argument he makes on brief with respect to this assignment of error, it would appear that Elliott is asserting the same argument as was made in one section of the omnibus motion to have the capital murder and death penalty statutes declared unconstitutional filed prior to his first trial. In any event, we can find nothing in the record of his second trial to suggest that he sought an instruction giving a “narrowing construction” of the vileness aggravator.
FN9. Elliott does not expressly state how the definition of the vileness aggravating factor should have been narrowed or limited in jury instructions. Presumably, Elliott is contending that the killing of Thrall lacked one or more of the elements tending to show that it involved “torture, depravity of mind or an aggravated battery to the victim.” Elliott provides no authority for his assertion that this Court has “adopted” instructions to this effect, although we have permitted trial courts the discretion to provide further guidance as to the meaning of these terms. See Jones v. Commonwealth, 228 Va. 427, 446, 323 S.E.2d 554, 564-65 (1984), cert. denied, 472 U.S. 1012, 105 S.Ct. 2713, 86 L.Ed.2d 728 (1985).
In his seventeenth assignment of error, Elliott contends that “[t]he trial court erred in denying appellant's motion to instruct the jury to agree unanimously upon a single element of ‘vileness.’ ” This argument was also raised in the omnibus motion filed prior to Elliott's first trial and in a separate motion filed prior to the first trial seeking a specific jury instruction. Elliott did not proffer an instruction to this effect during the penalty determination phase of his second trial.
The Commonwealth asserts that because Elliott did not renew the pre-trial motions from his first trial or ask that the trial court adopt its prior rulings on those motions in his second trial, he failed to preserve these issues for appeal. The Commonwealth further contends that by agreeing to the jury instruction defining the vileness aggravating factor in his second trial and not proffering any alternative instructions, he has waived his claims that the trial court should have given “narrowing construction” and “single element of vileness unanimity” instructions.
In his reply brief, Elliott asserts that he was not required to reassert his pre-trial motions from his first trial because “the rulings in the first trial automatically carry over to the second one.” For the same reason, Elliott contends that he was not required to proffer his alternative instructions limiting the vileness aggravating factor or requiring a unanimous determination of the elements making the crime vile, because the trial court had ruled on these issues prior to his first trial.
The cases that Elliott relies upon for his assertion that rulings from a mistrial carry over to a subsequent retrial are inapposite and distinguishable. In Bradley v. Duncan, 315 F.3d 1091 (9th Cir.2002), the federal Court of Appeals for the Ninth Circuit ruled that where a trial court had determined that an entrapment instruction was required in a trial that ended in a mistrial, the instruction was also required to be given in the subsequent retrial where “no additional evidence to the contrary” rebutted the prior ruling. Id. at 1098. Thus, Bradley does not stand for the proposition that all rulings of a trial court in a prior mistrial carry over to a subsequent trial but, rather, that the rationale underlying a particular ruling in the first trial had been correct and should have been applied to identical circumstances in the retrial.
In City of Cleveland v. Cleveland Electric Illuminating Co., 538 F.Supp. 1328 (N.D.Ohio 1981), the trial court did observe that “a mistrial does not affect or invalidate any of the pre-trial proceedings in the case.” Id. at 1330. However, that statement is made in an opinion addressing a motion to have the pre-trial rulings from a mistrial adopted in the retrial. Moreover, the rulings at issue were those in orders disposing of discrete claims within a complex litigation, not rulings on issues of law related to matters that would arise during the retrial. In commenting on the rationale of the Cleveland Electric decision, the federal Court of Appeals for the Sixth Circuit has opined that the trial court is not bound in a subsequent trial by the rulings of a prior mistrial, so much as it has the discretion to “recognize and enforce prior rulings ... but also retains the power to reconsider previously decided issues as they arise in the context of a new trial.” United States v. Todd, 920 F.2d 399, 404 (6th Cir.1990).
We concur in the view expressed by the Commonwealth in the present case that when a criminal case ends in a mistrial, the rulings made by the trial court prior to or during the aborted trial do not automatically carry over to a subsequent retrial. Thus, a defendant may not rely upon objections made at an aborted trial to preserve issues for appeal following his conviction in a subsequent trial. See, e.g., United States v. Palmer, 122 F.3d 215, 221 (5th Cir.1997) (“objections made at the aborted trial have no bearing on the retrial, as the two are entirely separate affairs”). Similarly, a defendant may not assert that rulings made on pre-trial motions prior to a mistrial are binding upon the trial court in a subsequent trial unless the trial court adopts those rulings on its own motion or in addressing a motion of one or both of the parties. See, e.g., United States v. Oakey, 853 F.2d 551, 554 (7th Cir.1988), cert. denied, 488 U.S. 1033, 109 S.Ct. 846, 102 L.Ed.2d 977 (1989). In the absence of a ruling in the second trial adopting the rulings of the aborted trial, the defendant is required to renew his motions with specificity in order to preserve the record of the trial court's rulings and the defendant's objections thereto for any subsequent appeal of the retrial.
Elliott does not assert that the trial court adopted its prior rulings for purposes of his second trial, and we have not been directed to any place in the record where such was done or requested. Accordingly, we hold that under these circumstances Elliott is barred from raising the issues asserted in this appeal in assignments of error fifteen, sixteen, and seventeen. Additionally, we also agree that Elliott's failure to proffer in his second trial alternative instructions limiting the definition of the vileness aggravating factor or requiring unanimity on the elements of vileness acts as a waiver of the claim that the trial court should have given such instructions to the jury.FN10
FN10. We note further that, as framed within the omnibus pretrial motion challenging the constitutionality of Virginia's capital murder and death penalty statutes, Elliott's contention that the vileness aggravating factor is vague is a reassertion of an argument previously rejected by this Court on numerous occasions. See, e.g. Wolfe, 265 Va. at 208, 576 S.E.2d at 480 and cases cited therein. Shortly before Elliott's first trial commenced, the United States Supreme Court released its opinion in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In briefing his argument in this appeal that the vileness aggravating factor is unconstitutionally vague, Elliott for the first time asserts that Ring somehow implicates our prior consideration of this issue. Elliott's failure to argue the application of Ring in the trial court, despite the fact that nine months elapsed between that opinion's release and the commencement of his second trial, not only constitutes a waiver of that issue on appeal, but demonstrates the necessity of prohibiting a defendant from attempting to rely upon rulings from a prior aborted trial. In any event, we have already addressed the claim that Ring affects our prior consideration of constitutional issues in death penalty cases and have determined that “nothing ... in Ring suggests that the Court intended to revisit broader issues of due process protections afforded in the penalty determination phase of all capital murder trials.” Powell v. Commonwealth, 267 Va. 107, 137, 590 S.E.2d 537, 555 (2004).
Statutory Review
Elliott's eighteenth and nineteenth assignments of error merely restate the elements of the statutory review of any death sentence mandated by Code § 17.1-313(C). Accordingly, we will combine the mandatory review of Elliott's death sentence with our discussion of the issues raised by Elliott in his assignments of error.
Code § 17.1-313(C)(1) requires that we determine whether the jury imposed the sentence of death under the influence of passion, prejudice, or any other arbitrary factor. Elliott makes no particularized argument that the jury's verdict was not the product of a reasoned and dispassionate deliberation. Nor does our review of the record in this case disclose that the jury failed to give fair consideration to all the evidence both in favor and in mitigation of the death sentence, or was otherwise improperly influenced in favor of imposing the death penalty. Accordingly, we hold that the sentence of death was not imposed under passion, prejudice, or any arbitrary factor.
With respect to the consideration “[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant,” Code § 17.1-313(C)(2), Elliott contends that “[t]he Commonwealth has never imposed such a sentence upon a man with as long and accomplished a record of service to his country as” Elliott. He further contends that “this case lacks the characteristics that normally distinguish the cases in which the death penalty is imposed based upon multiple homicides and vileness from those in which juries choose to impose life imprisonment.”
During the penalty determination phase of the trial, the jury heard testimony recounting Elliott's service as a soldier and non-commissioned officer in, and later as a civilian employee of, the United States Army. The jury also heard evidence throughout the course of the trial that Elliott betrayed his wife of twenty-three years, pursuing a former prostitute and squandering hundreds of thousands of dollars on this illicit relationship. The evidence showed that Elliott murdered two innocent people in a brutal and premeditated manner, showing no remorse for and purposefully seeking to conceal his crimes. The murder of Thrall was particularly heinous in that it appears she was a victim of opportunity, killed while her young children were nearby and simply because she was present in the home with Finch or perhaps because she saw and could have identified Elliott.
The jury could reasonably have concluded from Elliott's actions in his secret relationship with Gragg that he had renounced the values he purported to support and follow in his public life. Faced with the incongruent reality of Elliott's two lives, the jury was well within its province to determine that the mitigating value of Elliott's years of service in the armed forces did not outweigh his culpability for the death of Thrall under the circumstances of that murder.
Because of the statutory directive that we compare this case with “similar cases,” we have focused on cases in which an individual was murdered as part of the same act or transaction as another killing and the death penalty was imposed upon a finding of the vileness aggravating factor. However, our proportionality review includes all capital murder cases presented to this Court for review and is not limited to selected cases. Even though no two capital murder cases are identical, we are confident that, given the heinousness associated with the murder of Thrall, the sentence of death imposed on Elliott is neither excessive nor disproportionate to sentences generally imposed by other sentencing bodies in this Commonwealth for crimes of a similar nature considering the crime and this defendant. See, e.g., Hudson v. Commonwealth, 267 Va. 29, 590 S.E.2d 362 (2004); Bailey v. Commonwealth, 259 Va. 723, 529 S.E.2d 570, cert. denied, 531 U.S. 995, 121 S.Ct. 488, 148 L.Ed.2d 460 (2000); Kasi v. Commonwealth, 256 Va. 407, 508 S.E.2d 57 (1998), cert. denied, 527 U.S. 1038, 119 S.Ct. 2399, 144 L.Ed.2d 798 (1999); Woodfin v. Commonwealth, 236 Va. 89, 372 S.E.2d 377 (1988), cert. denied, 490 U.S. 1009, 109 S.Ct. 1649, 104 L.Ed.2d 163 (1989).
In his twentieth assignment of error, Elliott contends that “[t]he trial court erred in sentencing appellant to death.” Elliott purports to relate this assignment of error to the questions presented addressing his challenges to the constitutionality of the vileness aggravating factor and the mandatory review of his death sentence. Within the sections of his brief addressing those questions presented, we can discern no particularized argument that the trial court erred in imposing the sentence of death in accord with the jury's verdict. Thus, we conclude that this assignment of error is merely an assertion of general or cumulative error in the conduct of the trial. We do not consider such generalized assertions of error.
CONCLUSION
Having found no error below and perceiving no other reason to commute or set aside the sentence of death, we will affirm the judgment of the trial court. Affirmed.
Elliott v. Warden of Sussex I State Prison, 274 Va. 598, 652 S.E.2d 465 (Va. 2007) (State Habeas).
Background: Defendant petitioned for writ of habeas corpus after his murder convictions were affirmed by the Supreme Court, 267 Va. 396, 431, 593 S.E.2d 270.
Holdings: The Supreme Court held that:
(1) Commonwealth did not commit a Brady violation, and
(2) counsel was not ineffective. Petition dismissed.
Upon a Petition for a Writ of Habeas Corpus
Upon consideration of the petition for a writ of habeas corpus filed April 5, 2005, the respondent's motion to dismiss, and the petitioner's reply to the respondent's motion to dismiss, the Court is of the opinion that the motion should be granted and the writ should not issue.
Larry Bill Elliott was convicted in the Circuit Court of Prince William County of one count of capital murder of Dana Thrall, one count of first-degree murder of Robert Finch, and two counts of use of a firearm in the commission of a felony. Finding that the Commonwealth had proven the aggravating factor of “vileness” beyond a reasonable doubt, see Code § 19.2-264.2, the jury fixed Elliott's sentence at death on the capital murder conviction and at one life sentence plus eight years' imprisonment for the non-capital convictions. The trial court sentenced Elliott in accordance with the jury's verdict. This Court affirmed Elliott's convictions and sentence of death. Elliott v. Commonwealth, 267 Va. 396, 431, 593 S.E.2d 270, 292 (2004), cert. denied, 543 U.S. 1081, 125 S.Ct. 875, 160 L.Ed.2d 825 (2005).
Section (I) of the petition for a writ of habeas corpus does not contain any claims.
Procedural Defaults
In claim (II), petitioner raises several allegations that the Commonwealth failed to meet its obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) by withholding certain material and exculpatory evidence.
In claim (II)(1), petitioner alleges the Commonwealth did not disclose statements “of the Thrall boy(s) likely containing exculpatory evidence about a black man leaving the house.” Petitioner relies on several affidavits containing hearsay information that at least one of the Thrall boys said he saw “either a black man or a man wearing black running from the rear of the townhouse.” Petitioner, however, has proffered no evidence properly before this Court to demonstrate that the Commonwealth had exculpatory evidence that was not disclosed. The record, including affidavits by the Commonwealth's Attorneys involved in the case, demonstrates that neither the police nor these attorneys had any knowledge of any exculpatory statements made by the Thrall children.
In claim (II)(6), petitioner alleges that the Commonwealth did not provide reports on all of Rebecca Gragg's polygraph tests. Petitioner contends that Gragg, who was Finch's ex-girlfriend, was subjected to a third polygraph examination and argues that any inconsistent statements Gragg made during administration of the third test could have been used to impeach her trial testimony. Petitioner has proffered no evidence properly before this Court to support his claim that a third polygraph test was administered. The record, including affidavits of the Commonwealth's Attorney and the polygrapher, demonstrates that there were only two polygraph tests administered by the Commonwealth in connection with the investigation.
The Court holds that the alleged Brady violations contained in claims (II)(1) and (II)(6) are factually without merit. Petitioner has proffered no evidence properly before the Court to support the allegations and, thus, has failed to establish that the Commonwealth withheld any exculpatory evidence in violation of Brady.
In claim (II)(2), petitioner alleges that the Commonwealth did not produce photographs, provided by Robert Finch's parents, depicting Finch after he allegedly had been severely beaten by friends of Rebecca Gragg. The record, including the trial transcript, demonstrates that petitioner was aware, at trial, of the alleged existence of these photographs and of the Commonwealth's denial that the photographs existed.
In claim (II)(3), petitioner alleges that the Commonwealth did not provide a recording of a conversation between Gragg and Detective Charles Hoffman during a “smoke break” from the police interrogation of Gragg on May 10, 2001. The record, including the trial transcripts and the issues raised on appeal, demonstrates that petitioner was aware of this conversation that took place on May 10 and questioned whether or not it was recorded. Although petitioner raised a similar claim on direct appeal, this Court determined the argument to be waived because petitioner had not raised the same argument at trial.
In claims (II)(4) and (II)(5), petitioner alleges that the Commonwealth did not provide reports prepared by Detectives Masterson, Hoffman, and McClelland with regard to a request Gragg allegedly made for a copy of her written statement to police, which was allegedly prepared after a conversation Gragg had with officers during a “smoke break.” Petitioner contends also that Gragg believed her written statement had been prepared on a computer and that the Commonwealth did not provide an electronic version of Gragg's statement. The record, including the trial transcripts, petitioner's direct appeal brief, and this Court's opinion on direct appeal, demonstrates that the issue of whether a written statement of the “smoke break” conversation existed was raised at trial and that the detectives involved denied that such a statement existed. This Court rejected petitioner's argument on direct appeal because the argument was different than the one petitioner raised at trial.
In claim (II)(7), petitioner alleges that the Commonwealth intentionally ignored evidence implicating others present at the crime scene. Petitioner argues that, although forensic testing confirmed that the blood and DNA found on the front and back doors of the house and on Finch's jeans did not belong to petitioner, the Commonwealth did not attempt to learn the source of this DNA.
In claim (II)(8), petitioner alleges that, taken together, his allegations of Brady violations show materiality because but for the violations, he could have impeached the testimony of Gragg and Hoffman.
In claim (III)(A), petitioner claims that his rights under Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) and Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) were violated when Officer Thomas Leo falsely testified that he collected blood from the back gate on January 2, 2001, instead of on a different date, and when the Commonwealth then presented false evidence by submitting the blood sample marked with the January 2 date.
In claim (III)(B), petitioner claims his rights under Napue and Giglio were violated when Detective Charles Hoffman testified falsely on three occasions. Petitioner alleges that Hoffman lied when he testified that he never received any photographs showing Finch had been assaulted and when he explained why he used the word “polygrapher” during his testimony. Petitioner further alleges that Hoffman appeared to commit perjury when his testimony about the existence of a tape recording of a conversation that occurred during a “smoke break” differed from Gragg's testimony.
In claim (III)(C), petitioner alleges that the Commonwealth improperly “sponsored” Gragg's testimony despite questions concerning Gragg's credibility before trial. Petitioner contends that the Commonwealth “vouched” for Gragg as a principal witness and solicited false testimony from her.
In claim (III)(D), petitioner alleges that the cumulative impact of the Giglio and Napue right violations proves a reasonable likelihood that the Commonwealth knowingly presented false testimony, which affected the jury's judgment.
The Court holds that claims (II)(2), (II)(3), (II)(4), (II)(5), (II)(7), (II)(8), (III)(A), (III)(B), (III)(C) and (III)(D) are procedurally defaulted because these non-jurisdictional issues could have been raised at trial and on direct appeal and, thus, are not cognizable in a petition for a writ of habeas corpus. Slayton v. Parrigan, 215 Va. 27, 29, 205 S.E.2d 680, 682 (1974), cert. denied, 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975).
Ineffective Assistance of Counsel Claims
In claim (IV)(A), petitioner alleges he was denied the effective assistance of counsel during the guilt phase of his trial because counsel failed to adequately investigate and prepare for trial. Petitioner asserts that counsel failed to obtain a complete transcript of the first trial, which ended in a mistrial, and failed to interview jurors from the first trial.
The Court holds that claim (IV)(A) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The record, including the trial transcript of the second trial and William Moffitt's affidavit, demonstrates that Moffitt, one of the attorneys who represented petitioner in his first trial, also represented petitioner in the second trial and obtained transcripts of portions of the first trial. Petitioner does not articulate how obtaining transcripts of the remainder of the first trial would have been helpful and does not specify how the lack of transcripts affected counsel's performance. Petitioner does not proffer what questions counsel should have asked jurors from the first trial, how the jurors would have responded, or how such information would have aided counsel's performance in the second trial. Counsel was not required to interview any jurors following the grant of a mistrial in the first trial. Lenz v. Warden, 267 Va. 318, 326, 593 S.E.2d 292, 296-97 (2004). Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In the first portion of claim (IV)(A)(1)(a), petitioner alleges he was denied the effective assistance of counsel during the guilt phase of his trial because counsel failed to identify, interview, or call Todd Prach to testify to petitioner's location, activities, and appearance on the morning of the murders. Petitioner alleges that Prach would have testified that, between 5:00 and 5:30 a.m. on the morning of the murders, he spoke with petitioner at Ft. Meade and observed no blood on or anything unusual about petitioner. Petitioner contends that Prach's testimony would have refuted the Commonwealth's suggested timeline for the morning of the murders because petitioner could not have committed the murders, cleaned himself and the crime scene, driven to the restaurant where he placed a call to Gragg, disposed of trash bags containing evidence, and then arrived at Fort Meade by 5:30 a.m.
The Court holds that the first portion of claim (IV)(A)(1)(a) fails to satisfy the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the trial transcript, demonstrates that petitioner's truck was seen in the neighborhood between 4:15 a.m. and 4:25 a.m. on the morning of the murders and petitioner repeatedly admitted that he was in the area of the murders at that time. No evidence was presented at trial concerning how much time petitioner spent cleaning the crime scene; however, petitioner was no longer in the house when police responded at 4:25 a.m. While petitioner contends that it would have been impossible for him to have cleaned himself up prior to seeing Prach, he fails to point to any evidence that the killer was bloody or where on the killer's person the blood would have been. In addition, the evidence presented at trial did not specify the exact time petitioner disposed of the trash bags. Thus, petitioner has failed to demonstrate that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In the second portion of claim (IV)(A)(1)(a), petitioner asserts that counsel was ineffective for failing to adequately interview Kathy Elliott, petitioner's wife, who now claims she would have testified that, at 6:00 a.m. on the morning of the murders, petitioner returned home from a weekend away and did not appear unusual in appearance or demeanor and that petitioner had a reputation for being non-violent. Petitioner contends his wife could also have testified that petitioner had no recent bleeding from the scabbed abrasions on the back of petitioner's hand.
The Court holds that the second portion of claim (IV)(A)(1)(a) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including Kathy Elliott's affidavit, demonstrates that petitioner came home and immediately began doing a load of laundry and took a shower; raising an inference that petitioner was attempting to remove evidence linking him to the murders. Contrary to petitioner's argument, Kathy Elliott's affidavit does not reference the injury to petitioner's hand. Furthermore, the evidence demonstrates that petitioner and Gragg had worked together to defraud Kathy Elliott of a large sum of money, and trial counsel cannot be faulted for failing to pursue a witness whom petitioner had defrauded. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In the third portion of claim (IV)(A)(1)(a), petitioner alleges he was denied the effective assistance of counsel because counsel failed to adequately interview Kaitlynn Elliott, petitioner's daughter. Petitioner alleges he drove Kaitlynn to school in his truck the morning of the murders and that Kaitlynn noticed nothing unusual about her father or the truck and did not see any bags in the truck.
The Court holds that the third portion of claim (IV)(A)(1)(a) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the trial transcripts, demonstrates that the only evidence concerning the trash bags came from Gragg, who testified that petitioner called her from a restaurant and told her he had stopped to dispose of trash bags. No evidence established that trash bags were actually ever in petitioner's vehicle or specifically when petitioner disposed of the bags. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In the first portion of claim (IV)(A)(1)(b), petitioner alleges he was denied the effective assistance of counsel during the guilt phase of his trial because counsel failed to identify, interview, or call key witnesses to testify about petitioner's interest in silencers for weapons to use on target ranges. Petitioner contends that several witnesses would have testified that they had discussed the possibility of creating a target shooting range at Ft. Meade and that petitioner sought information concerning silenced weapons for use at the range.
The Court holds that the first portion of claim (IV)(A)(1)(b) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the trial transcript and petitioner's e-mail to Randy Jackson, demonstrates that the information petitioner contends counsel should have elicited would have been cumulative. The jury was informed that petitioner sought information from Jackson on silencers purportedly as part of an investigation concerning the development of a shooting range in a building at Fort Meade. The jury was also aware that petitioner had then sent Gragg an e-mail concerning this inquiry and his plan to seek more information from different sources. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In the second portion of claim (IV)(A)(1)(b), petitioner alleges he was denied the effective assistance of counsel during the guilt phase of his trial because counsel failed to identify, interview, or call Gail and Terry McGraw, who would have testified that Jackson, with whom petitioner had e-mailed about obtaining a silencer, had a romantic interest in Gail and was jealous of petitioner's friendship with Gail. Petitioner contends that Jackson's jealously would explain Jackson's motive to exaggerate his testimony to harm petitioner.
The Court holds that the second portion of claim (IV)(A)(1)(b) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. Petitioner fails to articulate how such testimony would not have constituted inadmissible hearsay. Furthermore, impeaching Jackson's testimony in this manner would not have undermined the evidence of the e-mail containing petitioner's inquiry into silencers immediately before the murders. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (IV)(A)(1)(c), petitioner alleges he was denied the effective assistance of counsel during the guilt phase of his trial because counsel failed to identify, interview, or call key witnesses to testify about petitioner's habit of “compulsively cleaning” his vehicles. Petitioner asserts that Chris McSpadden and Robert Barrow would have testified that beer was spilled in petitioner's truck at a football game a few days before the murders, explaining any recent cleaning of the truck and rebutting the Commonwealth's speculation of why the truck was so clean after the murders.
The Court holds that claim (IV)(A)(1)(c) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. Evidence of petitioner's cleaning habits would also have bolstered the Commonwealth's case by reinforcing the expert witness testimony that a thorough, recent cleaning of the truck could have removed any evidence existing in it after the crimes. The fact that petitioner may have cleaned his truck in the days immediately preceding the murders does not negate a conclusion that petitioner also cleaned his truck after the murders. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (IV)(A)(1)(d), petitioner alleges he was denied the effective assistance of counsel during the guilt phase of his trial because counsel failed to identify, interview, or call the victims' family members. Petitioner asserts that Robert Finch's parents and Dana Thrall's father would have testified about their various theories that Rebecca Gragg was responsible for the murders or that the murders were connected to Robert Finch's alleged illegal drug connections. These witnesses believed Gragg was responsible because she allegedly had previously arranged to have Robert Finch beaten in West Virginia and she was afraid Finch would gain permanent custody of her children.
The Court holds that claim (IV)(A)(1)(d) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The trial court and this Court held that evidence of third party involvement was not proven; therefore, testimony on alternative theories of who committed the murders would not have been admissible under Johnson v. Commonwealth, 259 Va. 654, 681, 529 S.E.2d 769, 784, cert. denied, 531 U.S. 981, 121 S.Ct. 432, 148 L.Ed.2d 439 (2000). Furthermore, evidence of Gragg's alleged involvement in arranging the murders does not negate the evidence that petitioner actually committed the murders. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In the first portion of claim (IV)(A)(1)(e), petitioner alleges he was denied the effective assistance of counsel during the guilt phase of his trial because counsel failed to call Larry Kent Smith to testify that Gragg's relatives had previously beaten Finch and Finch had once told Smith that if Finch ever turned up dead, Gragg would have been responsible; Finch kept large amounts of money in the house; and Finch's dog, a 150-pound Mastiff, would not let anyone it did not know through the back gate of Finch's home.
The Court holds that the first portion of claim (IV)(A)(1)(e) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. Smith's testimony about Gragg's relatives beating Finch and about Finch keeping money in his home would have constituted inadmissible hearsay. Furthermore, no testimony about the dog could impeach the fact that petitioner's DNA was found on the inside of the back gate of the home. Officer Creamer testified that when he entered the backyard the dog was calm and friendly. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In the second portion of claim (IV)(A)(1)(e), petitioner alleges he was denied the effective assistance of counsel during the guilt phase of his trial because counsel failed to call Dorothy Roberts, a secretary of the guardian ad litem appointed to represent the interests of the couple's children during the custody dispute between Finch and Gragg. Petitioner contends Roberts would have rebutted testimony that the couple's relationship was still intimate and would have contradicted Gragg's testimony that she kept Finch informed about his children's whereabouts.
The Court holds that the second portion of claim (IV)(A)(1)(e) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. Any information provided by Roberts concerning the intimacy of Finch's and Gragg's relationship and whether Finch was informed about his children's whereabouts would have constituted inadmissible hearsay. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In the third portion of (IV)(A)(1)(e), petitioner alleges he was denied the effective assistance of counsel during the guilt phase of his trial because counsel failed to call fifteen witnesses to testify to petitioner's reputation for being peaceable and non-violent.
The Court holds that the third portion of claim (IV)(A)(1)(e) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. While these witnesses may have been able to testify to petitioner's reputation for being non-violent, these witnesses would have been subject to cross-examination as to their knowledge of petitioner's relationship with Gragg and how petitioner and Gragg defrauded his wife of large amounts of money. Furthermore, in light of the sufficient evidence of petitioner's guilt, petitioner cannot demonstrate that testimony as to petitioner's reputation in those limited areas of his life would have had any significant impact on the jury's decision. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (IV)(A)(2), petitioner alleges he was denied the effective assistance of counsel during the guilt phase of his trial because counsel failed to obtain key documents, identify key witnesses, and call crime scene reconstruction and blood spatter experts. Petitioner asserts that counsel failed to obtain petitioner's and Gragg's complete cell phone records with detailed cell tower information, which might have confirmed that petitioner made the 5:23 a.m. phone call to Gragg from his office parking lot, not at a restaurant. Petitioner also asserts that counsel should have obtained (1) Thrall's and Finch's financial records to discover whether they had a legitimate source of funds to purchase a $300,000 home, (2) medical records where Finch received treatment for his beating allegedly caused by Gragg's friends, and (3) police reports about the beating. Petitioner contends that this information would have bolstered the theory that Finch was involved in illegal activities and that others had a motive to kill Finch. Petitioner also asserts that counsel should have called a crime scene/blood spatter expert to challenge the Commonwealth's version of how the murders transpired.
The Court holds that claim (IV)(A)(2) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. Petitioner does not provide a copy of the cell phone records provided to counsel or a copy of any unredacted records to establish what the records would have proven. As to evidence concerning a beating Finch received in West Virginia, the circuit court held that similarly suggestive evidence involving an altercation was inadmissible and that a theory of alternate killers was also inadmissible. Finally, petitioner provides no blood spatter analysis different from that presented at trial but merely speculates that a defense expert would have provided favorable evidence. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (IV)(B)(1) and a portion of claim (IV)(B)(10), petitioner alleges he was denied the effective assistance of counsel during the guilt phase of his trial because counsel failed to object when, during opening statement, the Commonwealth's Attorney called petitioner a “liar” and a “thief” who was willing to steal from his own family and failed to move for a new trial at the end of the Commonwealth's case, because the Commonwealth failed to prove what was asserted in the opening statement. Petitioner also contends counsel should have objected, during opening statement, when the Commonwealth's Attorney (1) read e-mails allegedly written by petitioner which were not marked as exhibits, authenticated, or admitted, (2) made inflammatory statements that petitioner was “flawed,” and (3) showed the jury a photograph of the victims and their children.
The Court holds that claim (IV)(B)(1) and this portion of claim (IV)(B)(10) satisfy neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the trial transcript, demonstrates that the Commonwealth's opening statement constituted a fair depiction of the evidence to be presented and a fair inference of what the evidence would prove and, thus, was not objectionable. Evidence is not usually authenticated at the time of opening statements and the e-mails were later authenticated by Gragg and admitted as evidence. Photographs of the victims are admissible and may be used in opening statements. Bennett v. Commonwealth, 236 Va. 448, 471, 374 S.E.2d 303, 317, (1988), cert. denied, 490 U.S. 1028, 109 S.Ct. 1765, 104 L.Ed.2d 200 (1989). Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In the first portion of claim (IV)(B)(2) and a portion of claim (IV)(B)(10), petitioner alleges he was denied the effective assistance of counsel during the guilt phase of his trial because counsel promised the jury in opening statements that he would play an audiotape of petitioner denying his guilt and ultimately did not play the tape.
The Court holds that the first portion of claim (IV)(B)(2) and this portion of claim (IV)(B)(10) satisfy neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the trial transcripts, demonstrates that counsel told the jury that there was a tape of Gragg's conversation with petitioner and that the jury could hear that during that conversation Gragg never mentioned the bloody bags or the phone call in which she mistook petitioner for Finch. Counsel may have intended to play the tape in order to impeach Gragg's testimony at trial. Nevertheless, upon cross-examining her, counsel obtained Gragg's admission to these facts. The transcript of the tape provided by petitioner demonstrates that counsel's subsequent decision not to play the tape was reasonable because the tape was merely cumulative and contained evidence that would have been detrimental to petitioner's defense. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In the second portion of claim (IV)(B)(2) and a portion of claim (IV)(B)(10), petitioner alleges he was denied the effective assistance of counsel during the guilt phase of his trial because counsel portrayed Gragg as a possible murder suspect rather than as someone who enlisted others to commit the murders. Petitioner suggests that this error allowed the Commonwealth to rebut such a theory by showing that Gragg was out of town at the time of the murders.
The Court holds that the second portion of claim (IV)(B)(2) and this portion of claim (IV)(B)(10) satisfy neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the trial transcript, demonstrates that counsel suggested only that Gragg had a motive for the killings, but did not imply that Gragg actually committed the murders. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In the third portion of claim (IV)(B)(2) and a portion of claim (IV)(B)(10), petitioner alleges he was denied the effective assistance of counsel during the guilt phase because counsel failed to address the issue concerning petitioner's blood on the back gate, the only physical evidence placing petitioner near the scene, thereby conceding a crucial point in the Commonwealth's case. Petitioner suggests that counsel could have argued that there was no way to determine when the blood got on the gate or how petitioner would have been able to go through the gate and past an aggressive dog.
The Court holds that the third portion of claim (IV)(B)(2) and this portion of claim (IV)(B)(10) do not satisfy the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the trial transcript, demonstrates that there was no evidence that petitioner had been inside that back gate at any other time and no innocent explanation existed for why petitioner's blood was found on the inside of the locked gate. Petitioner has proffered no explanation for the presence of his blood on the gate. Furthermore, Officer Creamer testified at trial that when he entered the backyard from the house, the dog in the backyard was calm and friendly. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (IV)(B)(3)(a) and a portion of (IV)(B)(10), petitioner alleges he was denied the effective assistance of counsel during the guilt phase of his trial because counsel failed to object to evidence offered by the Commonwealth that petitioner had committed other criminal or immoral acts. Petitioner asserts that the Commonwealth introduced evidence of (1) petitioner's alleged theft of money from his wife, (2) petitioner's alleged rape of Gragg when she was sedated prior to surgery, (3) petitioner's alleged illegal attempt to obtain a silencer, and (4) petitioner's alleged attempt to flee from police and evade arrest.
The Court holds that claim (IV)(B)(3)(a) and this portion of claim (IV)(B)(10) satisfy neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the trial transcripts, demonstrates that the Commonwealth's theory of the case was that petitioner was enamored of Gragg and was motivated to kill Finch in order to please Gragg, who was going through a child custody dispute with Finch. This evidence was relevant and admissible to prove petitioner's motive to kill Finch, the acts he took in furtherance of his plan to kill Finch, and as evidence of his guilt. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (IV)(B)(3)(b) and a portion of claim (IV)(B)(10), petitioner alleges he was denied the effective assistance of counsel during the guilt phase of his trial because counsel failed to object to the introduction of evidence of petitioner's blood on the back gate. Petitioner asserts that the chain of custody pertaining to this evidence was not established and thus the evidence should have been inadmissible.
The Court holds that claim (IV)(B)(3)(b) and this portion of claim (IV)(B)(10) satisfy neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the trial transcripts, demonstrates that Officer Leo collected the bloodstain and submitted it to the Department of Forensic Science; therefore, no meritorious objection was available to challenge the chain of custody of the DNA evidence. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (IV)(B)(3)(c) and a portion of claim (IV)(B)(10), petitioner alleges he was denied the effective assistance of counsel during the guilt phase of his trial because counsel failed to object to autopsy photographs and a crime scene videotape on the basis that the prejudicial impact outweighed any probative value and because the videotape was cumulative.
The Court holds that claim (IV)(B)(3)(c) and this portion of claim (IV)(B)(10) satisfy neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. This Court has established the admissibility, at trial, of autopsy photographs and crime scene videotapes. See, e.g., Gray v. Commonwealth, 233 Va. 313, 342, 356 S.E.2d 157, 173, cert. denied, 484 U.S. 873, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987); Joseph v. Commonwealth, 249 Va. 78, 85, 452 S.E.2d 862, 867, cert. denied, 516 U.S. 876, 116 S.Ct. 204, 133 L.Ed.2d 137 (1995). Therefore, counsel reasonably did not make groundless objections to the photographs or videotape. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (IV)(B)(4)(a) and a portion of claim (IV)(B)(10), petitioner alleges he was denied the effective assistance of counsel during the guilt phase of his trial because counsel failed to object to prejudicial hearsay testimony. Petitioner contends counsel should have objected to (1) Raymond Whalen's hearsay testimony concerning Gragg's trip to Florida; (2) Officer Daniel's hearsay testimony about what a witness told him she saw on the night of the murders; (3) Laura Didion's hearsay testimony that Gragg was upset because Finch abused Gragg's children and that Gragg said she and Finch had an ongoing sexual relationship; (4) Suzanne Knowlinger's hearsay testimony that Gragg told her she had car trouble on her trip home from Florida; and (5) Jennifer Finch's hearsay testimony that Gragg told her that Finch and the Gragg children had been abused by Clayton Finch, Finch's father. Petitioner asserts this testimony improperly focused the jury on irrelevant evidence.
The Court holds that claim (IV)(B)(4)(a) and this portion of claim (IV)(B)(10) satisfy neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the trial transcripts, demonstrates that (1) counsel successfully objected to the portion of Whalen's testimony which would have constituted hearsay; (2) Officer Daniel's testimony was not objectionable because it was used to explain why the officer was in the neighborhood investigating petitioner's truck; (3) Didion's testimony about Finch's abuse of his children did not contain hearsay testimony, and Didion's testimony about Gragg and Finch's relationship was not objectionable because it was not admitted for its truth but was used to show that petitioner believed Gragg and Finch were still sexually involved with each other; (4) Knowlinger's testimony contained no hearsay; and (5) Jennifer Finch's testimony was not objectionable because it was not offered to prove that her father had abused Finch and Gragg's children, but as further evidence in support of petitioner's motive to gain favor with Gragg by killing Finch. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In footnote 44, petitioner alleges that he was denied the effective assistance of counsel because counsel failed to object to the admission of several exhibits as hearsay. Petitioner does not articulate a reason as to why any of the exhibits are inadmissible hearsay, what arguments counsel should have made, or that any objections would have been successful. The Court holds that the allegations made in footnote 44 are conclusional and, therefore, will not support the issuance of a writ of habeas corpus. Penn v. Smyth, 188 Va. 367, 370-71, 49 S.E.2d 600, 601 (1948).
In claim (IV)(B)(4)(b) and a portion of claim (IV)(B)(10), petitioner alleges he was denied the effective assistance of counsel during the guilt phase of his trial because counsel failed to object to extrinsic testimony on collateral issues including testimony about Clayton Finch's alleged sexual abuse of Jennifer Finch, a neighbor's testimony concerning the manner in which Dana Thrall dealt with her children, information about a fire in Gragg's home, and testimony concerning Gragg's separation from her husband.
The Court holds that claim (IV)(B)(4)(b) and this portion of claim (IV)(B)(10) satisfy neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the trial transcript, demonstrates that the evidence about which petitioner complains was relevant to establish petitioner's relationship with Gragg and his motive for the killings on Gragg's behalf. Petitioner fails to allege how objections to this evidence would have affected the outcome of his trial. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (IV)(B)(5) and a portion of claim (IV)(B)(10), petitioner alleges he was denied the effective assistance of counsel during the guilt phase of his trial because counsel failed to elicit testimony that was admitted in the first trial. Petitioner asserts that counsel failed to ask questions challenging the competence of the crime scene investigation that were asked in petitioner's first trial.
The Court holds that claim (IV)(B)(5) and this portion of claim (IV)(B)(10) satisfy neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. Petitioner fails to allege anything more than that the evidence came out slightly different in the second trial. Petitioner does not articulate the testimony counsel would have elicited or how this testimony would have affected the jury's decision. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (IV)(B)(6) and a portion of claim (IV)(B)(10), petitioner alleges he was denied the effective assistance of counsel during the guilt phase of his trial because counsel failed to properly move to strike the evidence by stating no grounds for the motion when many compelling grounds existed and failed to move for a mistrial on those same grounds.
The Court holds that claim (IV)(B)(6) and this portion of claim (IV)(B)(10) satisfy neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the trial transcript and the exhibits, demonstrates that the evidence was sufficient to overcome a motion to strike and to support petitioner's convictions. Elliott, 267 Va. at 425 n. 8, 593 S.E.2d at 288 n. 8. Petitioner fails to allege how a more specific motion to strike would have affected his case and fails to allege any viable basis upon which counsel should have sought a mistrial. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (IV)(B)(7) and a portion of claim (IV)(B)(10), petitioner alleges he was denied the effective assistance of counsel during the guilt phase of his trial because counsel failed to put on a defense, calling only one witness to the stand and asking only four questions of that witness. In support of claims (IV)(B)(7) and this portion of claim (IV)(B)(10), petitioner refers to his prior arguments concerning counsel's performance but makes no additional proffers as to the witnesses counsel should have called or what information counsel should have elicited. The Court holds that these claims constitute an allegation that the cumulative effect of counsel's ineffective assistance in the presentation of a defense prejudiced petitioner and holds that this claim has no merit. “Having rejected each of petitioner's individual claims, there is no support for the proposition that such actions when considered collectively have deprived petitioner of his constitutional right to effective assistance of counsel.” Lenz, 267 Va. at 340, 593 S.E.2d at 305.
In claim (IV)(B)(8) and a portion of claim (IV)(B)(10), petitioner alleges he was denied the effective assistance of counsel during the guilt phase of his trial because counsel failed to object to the Commonwealth's improper statements in its closing arguments and failed to move for a mistrial. Petitioner asserts that the Commonwealth maligned petitioner's character by mentioning uncharged crimes of theft, use of a silencer, and flight to avoid prosecution. Petitioner also asserts that the Commonwealth impermissibly vouched for the truthfulness of three of its witnesses.
The Court holds that claim (IV)(B)(8) and this portion of claim (IV)(B)(10) satisfy neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the trial transcripts, demonstrates that the prosecutor's closing argument was properly based upon the evidence admitted at trial. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (IV)(B)(9) and a portion of claim (IV)(B)(10), petitioner alleges he was denied the effective assistance of counsel during the guilt phase of his trial because counsel failed to object to the jury's viewing, during deliberations, of the videotape of the crime scene and failed to ask for any cautionary instructions regarding the videotape. Petitioner contends that the probative value of the videotape was outweighed by its prejudicial impact.
The Court holds that claim (IV)(B)(9) and this portion of claim (IV)(B)(10) satisfy neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. Any objection concerning the prejudicial impact of the videotape should have been made prior to its admission into evidence. Having been properly admitted into evidence, the videotape was available for the jury to view during deliberations. Petitioner fails to articulate what type of objection counsel could have successfully made or what type of cautionary instruction counsel should have sought. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (V)(A), petitioner alleges he was denied the effective assistance of counsel during the penalty phase because counsel failed to reassert motions raised in the first trial concerning the penalty phase, thus denying petitioner an opportunity to appeal these issues.
The record demonstrates that, after the mistrial, counsel informed the prosecutor that the motions previously argued and ruled upon by the trial court would not be re-litigated during the second trial, because the court's rulings were unlikely to change. Nothing in the record demonstrates that the court adopted its previous rulings and this Court, on direct appeal, held that the issues raised in the motions filed prior to the mistrial were not preserved for appellate review. Elliott, 267 Va. at 427-28, 593 S.E.2d at 289-90.
The Court holds that claim (V)(A) fails to satisfy the “prejudice” prong of the two-part test enunciated in Strickland. Although petitioner identifies these motions in a footnote, he does not address the merits of the individual motions and does not articulate the basis upon which an appellate challenge to any of the circuit court's previous rulings would have had merit or have been successful. Thus, petitioner cannot demonstrate that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (V)(B)(1), petitioner alleges he was denied the effective assistance of counsel during the penalty phase because counsel failed to object to improper and prejudicial victim impact testimony. Petitioner asserts that Cyndia Johnson, Thrall's mother, improperly testified to watching her fatally wounded daughter shed tears. Petitioner also asserts that Cameron and Rebecca Thrall, Thrall's brother and sister-in-law, improperly testified about the effect of the murders on Dana Thrall's children and that counsel should have objected to the hearsay evidence of what the children were thinking and to the hearsay evidence of the children's posttraumatic stress disorder.
The Court holds that claim (V)(B)(1) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. Code § 19.2-264.4(A1) specifically allows victim impact testimony; therefore, Cyndia Johnson's testimony concerning what she observed during Dana's last minutes of life was admissible evidence. Furthermore, the testimony concerning the children's thoughts and their diagnoses was not offered to prove the truth of the matter asserted, i.e., that petitioner was going to harm the children or that the children actually suffered particular disorders, but instead was offered to demonstrate how the murders affected the children. Counsel is not ineffective for failing to raise an unreasonable objection. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (V)(B)(2), petitioner alleges he was denied the effective assistance of counsel during the penalty phase because counsel failed to object to the Commonwealth's Attorney's emphasis, during closing arguments, on the testimony concerning the children's counseling and nightmares. Petitioner also asserts that counsel should have objected to the argument that the victim's families would “get some solace” from the death sentence because Thrall's father and Finch's parents oppose petitioner being executed.
The Court holds that claim (V)(B)(2) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The Commonwealth's Attorney's argument constituted a fair comment based upon the evidence, including the testimony of some members of Thrall's family. Whether members of Finch's family wanted petitioner sentenced to death would be irrelevant as petitioner was only subject to the death penalty for his killing of Thrall. Counsel is not ineffective for failing to raise an unreasonable objection. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (V)(B)(3), petitioner alleges he was denied the effective assistance of counsel during the penalty phase because counsel failed to object to eleven statements made by the Commonwealth's Attorney that petitioner would be a future danger. Petitioner asserts that the issue of “future dangerousness” was not proven at the first trial; and that the trial court ruled it could not be reasserted in the second case due to double jeopardy concerns.
The Court holds that claim (V)(B)(3) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the trial transcripts, demonstrates that counsel successfully moved to preclude the Commonwealth from seeking the death penalty based upon future dangerousness. Later, when the Commonwealth argued that imposing the death sentence would preclude petitioner from harming anybody else, counsel objected on the grounds that future dangerousness was not an issue. The trial court, however, ruled that, despite its earlier ruling, the Commonwealth was entitled to make a general argument that imposition of the death sentence would prevent further harm. Petitioner has not articulated alternate grounds upon which he contends counsel should have objected and, having obtained an adverse ruling from the court, counsel is not required to reassert objections that are meritless. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (V)(B)(4), petitioner alleges he was denied the effective assistance of counsel during the penalty phase because counsel failed to object during closing argument to the Commonwealth's mention of petitioner's having sex with Gragg while she was unconscious. The Court holds that claim (V)(B)(4) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the trial transcript, demonstrates that the prosecutor's argument was a proper comment based upon the evidence. As addressed previously, petitioner's statement to Gragg concerning a sexual encounter he allegedly had with her while she was sedated was admissible to prove his motive to kill Finch and as a “circumstance [ ] surrounding the offense.” See Code § 19.2-264.4. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (V)(C), petitioner alleges he was denied the effective assistance of counsel during the penalty phase because counsel failed to adequately develop and present mitigation evidence. Petitioner asserts that he provided counsel with twenty-seven mitigation witnesses and that counsel erred in not calling these people as witnesses because they would have either testified about his good reputation or would have testified in favor of sparing petitioner's life.
The Court holds that claim (V)(C) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the sentencing transcripts, demonstrates that the evidence petitioner contends counsel should have presented would have merely been cumulative of that presented at trial. Counsel called several witnesses during the penalty phase to testify to petitioner's qualities of being “easygoing, reliable, kind, gentle, generous, and decent.” Additionally, the Commonwealth relied on this “reputation” evidence to argue that petitioner was an individual who solved problems, rather than getting angry, and that his act of killing Finch and Thrall was simply a selfish, calculated act designed to solve Gragg's problem and gain her affection. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (V)(D), petitioner alleges that the cumulative effect of counsel's ineffective assistance during the penalty phase prejudiced petitioner. The Court holds this claim has no merit. “Having rejected each of petitioner's individual claims, there is no support for the proposition that such actions when considered collectively have deprived petitioner of his constitutional right to effective assistance of counsel.” Lenz, 267 Va. at 340, 593 S.E.2d at 305.
In claim (V)(E), petitioner alleges he was denied the effective assistance of counsel during the penalty phase because counsel failed to seek a continuance or other relief based on the pre-sentence report, which reflects Clayton Finch's belief that Detective Hoffman had “sabotaged” the defense.
The Court holds that claim (V)(E) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The pre-sentence report does not include the basis for Clayton Finch's belief and petitioner provides nothing to substantiate an allegation that Detective Hoffman “sabotaged” petitioner's defense. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (VI)(A), petitioner alleges he was denied the effective assistance of counsel because during the guilt phase counsel withdrew his proffered “mere presence” instruction when the trial court required the instruction to be given with a “principal in the second-degree” instruction, and because counsel failed to request a “triggerman” instruction.
The Court holds that claim (VI)(A) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. Counsel reasonably made a tactical decision to avoid liability as a principal in the second-degree and to proceed under the theory, based on petitioner's statements, that petitioner committed no criminal act. Counsel's representation does not fall “below an objective standard of reasonableness” when counsel relies upon information supplied by his client. Curo v. Becker, 254 Va. 486, 493, 493 S.E.2d 368, 371 (1997) (citing Strickland, 466 U.S. at 688, 691, 104 S.Ct. 2052). Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (VI)(B)(1) and portions of (VI)(B)(2), petitioner alleges he was denied the effective assistance of counsel during the guilt phase because counsel failed to object to jury instructions and verdict forms. Petitioner asserts that instruction number 4 and the capital murder verdict form were erroneous because they told the jury that if it did not find that the murders were part of the same transaction, it must find petitioner was guilty of first-degree murder rather than second-degree murder. Petitioner further asserts the instruction and form should have included the element of malice.
The Court holds that claim (VI)(B)(1) and these portions of claim (VI)(B)(2) satisfy neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. Instruction number 4 did not misstate the law of murder in Virginia. This Court has previously held that where a jury is instructed to determine “whether the killing was willful, deliberate, and premeditated, ... a separate instruction on malice [is] unnecessary.” Mackall v. Commonwealth, 236 Va. 240, 254, 372 S.E.2d 759, 768 (1988), cert. denied, 492 U.S. 925, 109 S.Ct. 3261, 106 L.Ed.2d 607 (1989). As the jury found petitioner guilty of the capital murder of Dana Thrall, petitioner cannot demonstrate that an instruction providing the jury the option of finding second-degree murder, if it did not find capital murder, would have affected the jury's decision. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In other portions of claim (VI)(B)(2) and in claims (VI)(B)(3) and (VI)(B)(4), petitioner alleges he was denied the effective assistance of counsel during the guilt phase because counsel failed to object to language contained in the verdict forms. Petitioner contends that by adding the language “as charged in the indictment” to the verdict forms, and because the trial court failed to instruct the jury as to the meaning of words such as “murder” and “felony,” the trial court rendered the forms confusing.
The Court holds that these portions of claim (VI)(B)(2) and claims (VI)(B)(3) and (VI)(B)(4) satisfy neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the jury instructions and the verdict forms, demonstrates that the jury was adequately instructed and the verdict forms were not confusing. Additionally, petitioner has not provided this Court with the definitions he contends counsel should have sought. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (VI)(C)(1), petitioner alleges he was denied the effective assistance of counsel because counsel failed to request, at the penalty phase, an instruction, which had been given during the first trial's penalty phase, explaining how to evaluate victim impact testimony. Petitioner contends that counsel's failure to seek this instruction led the jurors to believe that the Commonwealth had met its burden of proving an aggravating circumstance merely by putting on victim impact testimony.
The Court holds that claim (VI)(C)(1) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the trial transcript, demonstrates that the jury was properly instructed that, before imposing a sentence of death, the jury must find that the Commonwealth proved beyond a reasonable doubt the aggravating circumstance that petitioner's “conduct in committing the offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or aggravated battery to the victim beyond the minimum necessary to accomplish the act of murder.” There is no indication that the jury failed to follow the court's instructions and nothing to rebut the presumption that the jury did follow the instructions. See Emmett v. Commonwealth, 264 Va. 364, 371, 569 S.E.2d 39, 44 (2002) (holding that a jury is presumed to follow the instructions of the court). Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (VI)(C)(2), petitioner alleges he was denied the effective assistance of counsel because counsel failed to object, at the penalty phase, to defects in the signed capital murder verdict form, which referred to (1) “capital murder” with no definition, (2) “the offense,” which petitioner contends is a vague and confusing term, and (3) “torture” and “depravity of the mind” for which, petitioner contends, there was no evidence.
The Court holds that claim (VI)(C)(2) satisfies neither the “ performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the trial transcripts and jury verdict forms, demonstrates that the jury was adequately instructed and the forms were not confusing. Furthermore, the jury instructions and verdict forms properly placed before the jury the task of determining whether the Commonwealth had met its burden to prove that the murder of Dana Thrall involved torture, depravity of the mind, or aggravated battery to the victim beyond the minimum necessary to accomplish the act of murder. The evidence presented at trial established beyond a reasonable doubt that Dana Thrall's murder involved aggravated battery beyond the minimum necessary to accomplish the act of murder. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (VI)(C)(3), petitioner alleges he was denied the effective assistance of counsel because counsel failed to provide the court, at the penalty phase, proper verdict forms for capital sentencing. Petitioner asserts the forms used erroneously required jurors to find unanimously that the Commonwealth failed to prove an aggravating factor in order to sentence petitioner to life. In claim (VI)(C)(4), petitioner alleges he was denied the effective assistance of counsel because counsel failed to request an instruction, at the penalty phase, on unanimity on “vileness” and counsel failed to object to instruction 1 on the basis that it improperly permitted the jury to find “vileness” without requiring specification of, and unanimous agreement about, that statutory element.
The Court holds that claims (VI)(C)(3) and (VI)(C)(4) satisfy neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. Counsel is not unreasonable for failing to object to jury instructions and verdict forms that follow the statute and have previously been approved by this Court. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (VI)(C)(5), petitioner alleges he was denied the effective assistance of counsel because counsel failed to object, at the penalty phase, to inclusion of the term “torture” in the instructions or verdict form or, in the alternative, because counsel did not ask that “torture” be defined.
The Court holds that claim (VI)(C)(5) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. Counsel is not unreasonable for failing to object to jury instructions and verdict forms that follow the statute and have previously been approved by this Court. Furthermore, petitioner does not articulate the grounds upon which counsel could have reasonably objected to the use of the word “torture” in the instructions and on the verdict form. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (VI)(C)(6), petitioner alleges he was denied the effective assistance of counsel because counsel failed to object, at the penalty phase, to the inclusion of the “depravity of mind” element in the vileness instruction when no evidence of “depravity of mind” existed.
The Court holds that claim (VI)(C)(6) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. Counsel is not unreasonable for failing to object to jury instructions that follow the statute and have previously been approved by this Court. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (VI)(C)(7), petitioner alleges he was denied the effective assistance of counsel because counsel failed to propose and request that the instructions include a definition of the element of “aggravated battery beyond the minimum necessary to accomplish the act of murder.” Petitioner contends that failure to request such a definition invited the jury to speculate as to the definition of aggravated battery or to assume that the mere act of murder would be sufficient to satisfy this element.
The Court holds that claim (VI)(C)(7) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including Instruction No. 1, demonstrates that the plain language of the instruction “aggravated battery to the victim beyond the minimum necessary to accomplish the act of murder” provided the definition petitioner contends counsel should have requested. Furthermore, the instruction as given required the jury to find more than “the mere act of murder” to satisfy this element. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (VI)(C)(8), petitioner alleges he was denied the effective assistance of counsel because counsel failed to object that Instruction No. 6 contradicted Instruction No. 5. Petitioner contends that the instructions are identical except that one instructs that the punishment is three years and the other instructs that the punishment is five years.
The Court holds that claim (VI)(C)(8) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the jury instructions, demonstrates that the instructions numbered five and six concerned the punishments the jury was to impose for petitioner's two convictions for use of a firearm in the commission of a murder, which were statutorily fixed at three years and at five years, respectively. Counsel is not unreasonable for failing to object to jury instructions that follow the statute. Furthermore, as the jury had no discretion concerning these sentences, petitioner cannot demonstrate how any alleged confusion impacted the sentence he received. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (VI)(C)(9), petitioner alleges counsel failed to propose instructions for the penalty phase on the following five legal principles: “defendant is presumed innocent,” “he does not have to testify,” “he does not have to produce any evidence,” “the burden is on the Prosecution,” and the burden is “beyond a reasonable doubt.” Petitioner contends that the failure to instruct the jury on these principles at the penalty phase was confusing because they had been instructed on them during the guilt phase.
The Court holds that claim (VI)(C)(9) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the trial transcript, demonstrates that the jury was properly instructed at the penalty phase as to the Commonwealth's burden to prove the aggravating factors beyond a reasonable doubt. Upon the jury's determination that petitioner was guilty of the offenses for which it would be sentencing him, petitioner was no longer presumed innocent and an instruction otherwise would have been erroneous. Petitioner presented evidence in mitigation and, thus, an instruction that petitioner was not required to present evidence would have been confusing. Finally, the jury was instructed during the guilt phase that petitioner was not required to testify. Petitioner fails to provide a legal basis for re-instructing the jury on this issue. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (VI)(D), petitioner states that the Court should grant an evidentiary hearing on whether the jury had requested an instruction on reasonable doubt. Petitioner contends that he was unaware of a note from the jury requesting such an instruction until the direct appeal proceeding. On appeal, we declined to address the issue because it was based on pure speculation and held that petitioner's requested relief in the form of an evidentiary hearing could not be afforded on direct appeal. Elliott, 267 Va. at 414-15 & n. 4, 593 S.E.2d at 282 & n. 4. Petitioner asks that his convictions and sentences be reversed for failure to answer the jury question or in the alternative “a new trial or hearing [be granted] to establish that the request was made and not communicated to the Defense.”
The Court holds that claim (VI)(D) is not cognizable in a habeas corpus proceeding. Petitioner raises no allegations that this issue is the result of ineffective assistance of counsel or misconduct and provides no evidence that “the jury actually intended to send the purported jury question at issue to the trial court for a response.” Id. at 414-15, 593 S.E.2d at 282. “The function of a writ of habeas corpus is to inquire into jurisdictional defects amounting to want of legal authority for the detention of a person on whose behalf it is asked. The court in which a writ is sought examines only the power and authority of the court to act, not the correctness of its conclusions, and the petition for a writ may not be used as a substitute for appeal or writ of error.” Brooks v. Peyton, 210 Va. 318, 321, 171 S.E.2d 243, 246 (1969).
In claim (VII)(A), petitioner alleges he was denied the effective assistance of counsel on appeal because counsel failed to assign error to the trial court's ruling which allowed the Commonwealth to make an argument on future dangerousness and on the Commonwealth's improper argument regarding victim impact testimony.
The Court holds that claim (VII)(A) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The selection of issues to address on appeal is left to the discretion of appellate counsel and counsel need not address every possible issue on appeal. Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). The record, including the trial transcript, demonstrates that the jury was properly instructed that it could impose the death penalty only if it were to find that the Commonwealth had proven the vileness aggravating factor beyond a reasonable doubt. A jury is presumed to follow its instructions and petitioner has provided no basis upon which his appellate counsel could have argued that either the trial court's ruling was incorrect or that the jury did not follow the court's instructions. Furthermore, petitioner concedes that no argument or objection was made concerning the victim impact evidence and, therefore, this argument was not preserved for appeal. Rule 5:25. Petitioner also does not articulate the substantive legal argument he contends counsel should have made on these issues or how such argument would have had merit. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (VII)(B), petitioner alleges he was denied the effective assistance of counsel on appeal because counsel requested the wrong relief when counsel requested an evidentiary hearing instead of asking the Court to reverse his conviction on the basis of an alleged unanswered jury question found in the record.
The Court holds that claim (VII)(B) fails to satisfy the “prejudice” prong of the two-part test enunciated in Strickland. The record, including this Court's opinion, demonstrates that this Court could not consider petitioner's arguments on this issue because the record was incomplete and, therefore, any consideration would have required this Court to engage in improper speculation. Elliott, 267 Va. at 414-15, 593 S.E.2d at 282. Thus, petitioner has failed to demonstrate that there is a reasonable probability that, but for counsel's failure to seek reversal rather than an evidentiary hearing, the result of the proceeding would have been different.
In claim (VII)(C), petitioner alleges he was denied the effective assistance of counsel on appeal because counsel failed to present argument for and, thereby, waived assignments of error 8, 9, 10, 13, and 14. Assignments of error 8, 9 and 10 each concerned the alleged “smoke break” statement Gragg made to police, which Gragg claimed was memorialized and signed by her. Assignments of error 13 and 14 concerned the sufficiency of the evidence to support petitioner's convictions.
The Court holds that claim (VII)(C) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the trial transcript and the appellate brief, demonstrates that assignments of error 8, 9, 10, 13 and 14 were without merit. This Court determined on direct appeal that there was ample evidence to support petitioner's convictions. Furthermore, the arguments raised in assignments of error 8, 9 and 10 were not preserved at trial and would have been barred by Rule 5:25, as counsel had been given the opportunity to impeach Gragg's testimony concerning the alleged statement and counsel had asked for no other relief. The selection of issues to address on appeal is left to the discretion of appellate counsel, and counsel need not address every possible issue on appeal. Barnes, 463 U.S. at 751-52, 103 S.Ct. 3308. Counsel is certainly not deficient for choosing to focus his arguments on issues that had been properly preserved at trial. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (VII)(D), petitioner alleges he was denied the effective assistance of counsel on appeal because counsel failed to cite authority requiring the adoption of a narrowing instruction regarding the vileness factors.
The Court holds that claim (VII)(D) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. This Court does not require a trial court to define the statutory terms or for a jury to receive instructions beyond the statutory factors. See Bunch v. Commonwealth, 225 Va. 423, 442, 304 S.E.2d 271, 282, cert. denied, 464 U.S. 977, 104 S.Ct. 414, 78 L.Ed.2d 352 (1983). Furthermore, the holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) does not require jury instructions on the definitions of the composite parts of Virginia's vileness aggravator. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (VII)(E), petitioner alleges he was denied the effective assistance of counsel on direct appeal because counsel failed to argue that, based on errors made during the trial, the perjured testimony, prosecutorial misconduct, and the fact that the evidence against petitioner was minimal, circumstantial, and conflicting, the jury's verdict was not the product of a reasoned and dispassionate deliberation.
The Court holds that claim (VII)(E) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. On direct appeal, this Court reviewed the record and considered, as required by Code § 17.1-313(C)(1), whether the jury imposed petitioner's death sentence under the influence of passion, prejudice, or any other arbitrary factor and determined that the sentence was appropriate. Petitioner does not articulate how an affirmative argument by counsel would have affected this Court's mandatory review, nor does petitioner articulate the specific arguments he contends counsel should have made. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In claim (VIII), petitioner claims that the cumulative effect of all the preceding claims demonstrates that the Court should grant petitioner relief. The Court holds that claim (VIII) has no merit. “Having rejected each of petitioner's individual claims, there is no support for the proposition that such actions when considered collectively have deprived petitioner of his constitutional right to effective assistance of counsel.” Lenz, 267 Va. at 340, 593 S.E.2d at 305.
Upon consideration whereof, petitioner's motions for leave to issue subpoenas duces tecum; for leave to depose petit jurors; for leave to propound interrogatories; for an order releasing physical evidence for examination and authorization to retain a DNA expert, a crime scene reconstruction expert, a blood spatter expert, and a fingerprint expert; for leave to conduct depositions of witnesses; for leave to amend his habeas corpus petition with a recently discovered due process claim and to conduct discovery; and for oral argument are denied. Upon further consideration whereof, the respondent's motion to strike petitioner's exhibits containing hearsay testimony is denied and the exhibits are considered pursuant to the appropriate evidentiary rules; petitioner's motion to strike a letter and an exhibit filed in support of the warden's motion is denied.
Accordingly, the petition is dismissed.
Elliott v. Kelly, Slip Copy, 2009 WL 855796 (E.D.Va. 2009) (Federal Habeas).
MEMORANDUM OPINION
Petitioner Larry Bill Elliott was convicted of the capital murder of Dana Thrall, the first degree murder of Robert A. Finch, and of firearm offenses relating to these murders. After the first trial ended in mistrial, a second trial was held in the Circuit Court of Prince William County from March 23 to April 4, 2003. The jury returned guilty verdicts on all counts. After a separate sentencing proceeding on April 4, 2003, the jury sentenced Elliott to death for the murder of Dana Thrall, to life imprisonment for the murder of Robert Finch, and to eight years total imprisonment for the firearms offenses. The jury based the death sentence on the “vileness” aggravating factor for the murder of Dana Thrall. On May 22, 2003, the trial court imposed its sentence in accord with the jury's verdicts, and entered final judgment on June 13, 2003. After unsuccessfully challenging the imposition of the death penalty on both direct appeal and in state collateral proceedings, Elliott now petitions the Court on writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the Court is the Petition for Writ of Habeas Corpus (Dkt. No. 22), Respondent's Motion to Dismiss (Dkt.Nos.26), as well as other motions pertaining to this appeal. For the reasons stated in the following memorandum opinion, it is hereby ORDERED that Respondent's Motion to Dismiss is GRANTED, Elliott's Petition for Writ of Habeas Corpus is DISMISSED in full, and the remaining motions are deemed MOOT.
I. Facts
The following recitation of essential facts is taken verbatim from the direct appeal decision of the Supreme Court of Virginia, Elliott v. Commonwealth, 267 Va. 396, 593 S.E.2d 270, 273-278 (Va.2004):
At approximately 4:00 a.m. on the morning of January 2, 2001, Mary Bracewell, a newspaper delivery person, was traveling her route in the Woodbridge community of Prince William County, Virginia. Bracewell was aware that there had been several recent vehicle break-ins in the neighborhood and became suspicious when she saw a man standing beside a pick-up truck parked on Belfry Lane. Bracewell observed the man, who appeared to be carrying a flashlight, walk to the north end of Belfry Lane, cross the street, walk onto a grassy area between two townhouses, and then disappear from her view. Bracewell called police on her cellular telephone to report her observations.
At 4:15 a.m., Officer Marshall T. Daniel of the Prince William County Police Department received a radio dispatch directing him to respond to Bracewell's call. He arrived at Belfry Lane three minutes later. Bracewell indicated the parked pick-up truck to Daniel and related to him what she had observed. Daniel noted that the pick-up truck, which was locked, had a Department of Defense windshield identification sticker and that there was a cellular telephone on the passenger seat.
At 4:27 a.m., Officer Daniel received a radio call to respond to a report of a domestic disturbance at a townhouse located at 3406 Jousters Way. Jousters Way is located approximately 300 yards north of Belfry Lane. Although the two streets do not intersect, one can reach Jousters Way on foot from Belfry Lane by walking in the same direction that Bracewell had seen the man beside the pick-up truck walking.
Tina Miller, who lived in an adjoining townhouse, had made the report of a domestic disturbance at 3406 Jousters Way. Miller telephoned police after being awakened by a crashing sound coming from 3406 Jousters Way at approximately 4:20 a.m. As she placed the call, Miller heard three or four “hollow” sounds followed by “the most horrible scream” she had ever heard. Miller thought that the screaming voice sounded like that of Thrall, one of the occupants of 3406 Jousters Way.
Tommy Young, who lived in a townhouse on the opposite side of the street from 3406 Jousters Way, was walking his dog in front of his home at about the same time Miller was awakened by the crashing sound. Young heard two loud “banging noises” coming from 3406 Jousters Way, followed by the sound of a female scream and three more banging noises. Young went back to his house and told his wife to call the police. A few minutes later, Young looked out his front window and saw that the front storm door of 3406 Jousters Way, which had earlier been closed, was swaying back and forth. Young also noted that the front window shades of the home, which were normally left half-drawn, were fully closed.
Officer Scott Bigger of the Prince William County Police Department arrived at 3406 Jousters Way at 4:25 a.m. Officer Bigger knocked on the front door, but got no response. Officer Daniel arrived a few minutes later and walked around to the back of the townhouse. The backyard was enclosed by a privacy fence, and Officer Daniel could hear a large dog barking “pretty hysterically, angry” inside the yard.
Returning to the front of the home, Officer Daniel observed that Officer Bigger had still received no response to his knocking on the front door. Looking through a gap between the shades of a front window, Officer Daniel was able to see the legs of a person lying prone and motionless in the foyer of the home. Officer Bigger opened the unlocked front door and he and Officer Daniel saw Finch, who lived with Thrall in the home, lying on the floor dead. Finch had suffered three gunshot wounds: one to his head, one to his back, and one to his chest.
Officer Daniel immediately returned to the back of the home to secure that area while Officer Bigger waited at the front of the home for additional officers to arrive. When those officers arrived, Officer Daniel immediately returned to the location on Belfry Lane where the pick-up truck had been parked. He arrived at that location at 4:38 a.m. The truck was gone.
Officer Sheldon R. Creamer, one of the officers who had responded to the call by the other officers for assistance, arrived at 3406 Jousters Way at approximately 4:45 a.m. Entering the home, he heard “a muffled breathing sound” coming from the kitchen at the back of the home. In the kitchen he found Thrall, shot and lying in a pool of blood. Emergency medical personal called to the scene took Thrall by ambulance to a helicopter, which in turn evacuated her to the Washington Hospital Center in the District of Columbia, where she later died. Thrall had suffered multiple gunshot wounds including a defensive wound to her right hand, three to her head, and one to her chest. She also suffered a blunt force trauma to the back of her head consistent with a pistol-whipping.
Officer Creamer found that the backdoor was locked by its doorknob lock, but that the door's deadbolt lock was not engaged. He could hear the dog barking in the back yard. Entering the yard from the kitchen, Officer Creamer found that the dog had calmed down. He then determined that the gate of the privacy fence was secured with a locked padlock.
Meanwhile, because Officer Daniel had reported seeing a child looking out of a second floor back window, Officer Bigger reentered the home and went upstairs. There he found Thrall's two sons, aged six and four, who were crying and upset. Police officers removed the children from the home.
The Investigation:
Officer Thomas Leo ... found a bloodstain on the inside of the gate of the privacy fence. Subsequent DNA testing of this sample showed that it was consistent with Elliott's DNA to a degree that a match would occur “once in the entire world population.”
Although a murder weapon was never recovered, forensic testing of ten bullets recovered from the home and during the autopsies of Thrall and Finch confirmed that all had been fired by the same weapon. The bullets were of a type used only in a revolvertype handgun. Gary Arnsten, a firearms expert with Virginia's Division of Forensic Science, testified at trial that because no weapon of this type could hold more than five or six bullets in its revolving chamber, he was certain that the weapon had been reloaded during the commission of the murders.
Detective Charles Hoffman ... [was] informed ... that Finch had a prior romantic relationship with Rebecca Gragg ...
Detective Hoffman and another detective traveled to Fort Meade in Hanover, Maryland, where Elliott worked as a civilian employee for the United States Army as a counterintelligence expert ... The detectives located the truck in a parking lot at Fort Meade, and Detective Hoffman observed that there was a flashlight, a cellular telephone, and a box of bandages on the seat of the truck.
Elliott told the detectives that Gragg was an employee at a brewing company he owned in West Virginia. He admitted that he had supplied Gragg with a credit card in the name of “Rebecca L. Elliott,” but maintained that this had been for business purposes. He also told the detectives that he had been traveling over the New Year's holiday, as had Gragg, and that during that time he had spoken with her several times on his cellular telephone in an effort to arrange a business meeting with her.
Elliott told the detectives that he was aware that Gragg and Finch were involved in a dispute regarding the custody of their two children. Elliott related that Gragg had traveled to Florida over the New Year's holiday and had taken the children with her. He further related that Gragg had told him that she was having car trouble and would not be able to return to Virginia with the children in time to return them to Finch at 2:00 p.m. on New Year's Day as she was required to do under a visitation agreement. Elliott claimed that he had driven to Gragg's residence in the early afternoon of New Year's Day “in case Robert Finch showed up so that [Elliott] could explain to him the problems Rebecca was having with getting back.” Elliott denied he had any relationship with Gragg other than as her employer. He also denied knowing Finch and claimed that he had seen him only once.
Although Detective Hoffman told Elliott that his truck had been seen in Finch's neighborhood in the early morning hours of the day of the murders, Elliott denied having been in the area. Elliott claimed that he had spent the night of January first to second sleeping in his truck at a rest area in Maryland ...
Elliott [later] admitted the true nature of his involvement with Gragg ... Elliott further admitted that he knew where Finch lived and that, after he had gone to Gragg's house on the afternoon of January 1, 2001, he had driven to Finch's house. He denied getting out of his truck, however, and claimed that he had seen “a black man with a slinky walk going to the front door of the home.” ...
Elliott admitted that after calling Gragg, he drove to Finch's neighborhood. He admitted leaving his truck, claiming that he did so only because he needed to urinate. Elliott stated that after urinating by a guardrail on the side of the road, he walked by Thrall's and Finch's townhouse. He denied going onto the property and stated that he had not heard gunshots, a scream, or anything unusual. At the conclusion of this interview, Detective Hoffman took a photograph of an abrasion he had noticed on one of Elliott's hands.
On January 4, 2001, Gragg, ... admitted receiving a telephone call early on the morning of the murders, but claimed that the call had come from Finch. Gragg claimed that Finch had threatened to call the police if she did not return their children to him that afternoon. Gragg also told the detectives that she did not believe that Elliott had committed the murders.
On January 7, 2001, ... Elliott admitted that he had been in Finch's neighborhood “hundreds of times.” ...
On January 8, 2001, ... testing of samples collected from the underside of the truck's floor mats showed a trace residue of blood, though the samples were too small for accurate DNA testing. A further blood sample found in the seat cushion was consistent with Elliott's DNA ...
On May 10, 2001, ... Gragg told the police that the telephone call she had received early on the morning of the murders was not from Finch, although initially she had assumed it was because the connection was not good and she could not hear the caller clearly. Gragg then related that when the caller realized that she thought she was talking to Finch, the caller said he was “tired of this s* * * and was going to take care of it” and hung up. Gragg then realized that the call had come from Elliott ...
Elliott told her that “all of our problems had been taken care of.” ... Later, Elliott told Gragg that he was looking for a place “to dump ... these bloodied black trash bags from the mess that Jerry had made.”
Gragg told the police that she had not been truthful in her prior interviews because she was afraid of Elliott and “Jerry,” because Elliott had once told her that “Jerry” was watching her and that he would kill her or her family if she went to the police. Once Elliott was in custody and the police had assured her that there was no “Jerry,” she stated that she had decided to be truthful. Gragg's attorney confirmed that she had told him on several occasions that she feared Elliott would harm her if she told the police what she knew.
II. Procedural History
Elliott was charged in Prince William County Circuit Court with the Capital Murder of Dana Thrall, under Va.Code § 18.2-31 (killing of more than one person as part of the same act or transaction); First Degree Murder of Robert Finch, under Va.Code § 18.2-32; and with two firearm offenses related to the murders. Elliott's first jury trial, from July 15 to July 31, 2002, ended in a mistrial. He was convicted on all counts after a second trial from March 23 to April 4, 2003.
Elliott filed appeals of his convictions, which were consolidated and heard by automatic priority appeal before the Virginia Supreme Court. On March 5, 2004, the Virginia Supreme Court affirmed Elliott's convictions and the sentence of death in an extensive opinion. See Elliott v. Commonwealth, 267 Va. 396, 593 S.E.2d 270 (Va.2004). Thereafter, Elliott sought a writ of certiorari in the Supreme Court of the United States, which the Supreme Court denied on January 10, 2005. See Elliott v. Virginia, 543 U.S. 1081, 125 S.Ct. 875, 160 L.Ed.2d 825 (2005).
On March 11, 2005, Elliott filed a 74-page original petition for writ of habeas corpus in the Virginia Supreme Court. After the Virginia Supreme Court denied his motion for leave to exceed the page limits, Elliott filed his 50-page petition, with 49 supporting affidavits, and the Warden moved to dismiss. Elliott filed a number of discovery motions in June 2006, including a Motion for Preservation and Transfer of Evidence Pursuant to Virginia Code § 18.2-270.4:1. The Prince William County Circuit Court conducted a hearing on this motion on July 8, 2006, and ordered preservation of human biological evidence on August 11, 2005. On April 24, 2006, Elliott filed with the Virginia Supreme Court a Petition for a Writ of Mandamus to the Circuit Court, asking for an order to transfer to the Virginia Department of Forensic Sciences all human biological evidence from the murders that had been collected by any government entity. On August 1, 2006, the Virginia Supreme Court dismissed the petition. After Elliott moved for an order requiring the Prince William County police and Commonwealth's Attorney to comply with the August 11, 2005 order, the Circuit Court held another evidentiary hearing on November 28-29, 2006. At the conclusion of this hearing, the Circuit Court ordered the police department to transfer all physical evidence in the case to the Division of Forensic Science.
On November 2, 2007, the Virginia Supreme Court dismissed Elliott's petition and denied Elliott's related discovery motions. Elliott v. Warden of Sussex, 593 S.E.2d 465 (Va.2007). On March 6, 2008, the Virginia Supreme Court denied Elliott's Petition for Rehearing. On May 6, 2008, this Court stayed Elliott's execution, and granted Elliott's request to file a Petition for Writ of Habeas Corpus. On July 3, 2008, Elliott filed his Petition for Writ of Habeas Corpus in this Court. Elliott's petition sets out the numerous grounds for relief, which are summarized in short form as follows:
A. Counsel Rendered Ineffective Assistance at Guilt Phase.
1. Failure to Interview or Call Alibi Witnesses.
2. Failure to Obtain Business Records and Failure to Call Experts.
3. Failure to Interview and/or Call Witnesses Regarding the Cleaning of Elliott's Truck.
4. Failure to Interview and/or Call Witnesses Regarding Evidence of other Suspects.
5. Failure to Call Larry Smith.
6. Failure to Interview and/or Call Witnesses Regarding Silencers.
7. Failure to Interview and/or Call Witnesses as to Elliott's Peacefulness and Nonviolence.
8. Counsel Unreasonably Failed to Investigate and Prepare for Trial
9. Failure to Object During Opening.
10. Promising Jury It Would Play Tape and Not Playing It.
11. Portraying Gragg as the Actual Murderer.
12. Failure to Adequately Address the Blood on the Back Gate.
13. Failure to Object to Inadmissible, Prejudicial Evidence of Uncharged Crimes and of Collateral Events.
14. Failure to Effectively Move for a Dismissal.
15. Failure to Put on a Defense.
16. Failure to Object to the Prosecution's Improper Closing Arguments.
17. Cumulative Prejudice to Elliott.
B. Counsel Rendered Ineffective Assistance at the Penalty Phase.
1. Failure to Adequately Develop and Present Mitigation Evidence.
2. Failure to Renew Penalty Phase Motions Raised in Trial 1.
3. Failure to Object to Improper and Prejudicial Victim Impact Testimony.
4. Failure to Object to Prosecution's Improper Closing Arguments.
5. Failure to Seek Continuance or Other Relief Based on the Pre-Sentence Report.
6. Cumulative Effect of Counsel's Ineffective Assistance in the Penalty Phase Prejudiced Elliott.
C. Claims Relating to the Jury Instructions/Verdict Forms.
1. The Failure to Request the “Mere Presence” Instruction at Guilt Phase.
2. The Absence of the “Triggerman” Instruction at Guilt Phase.
3. Failure to Object to the Capital Murder Instruction and its Verdict Form at Guilt Phase.
4. Failure to Object to the Verdict Form for the Finch Murder at Guilt Phase.
5. Failure to Request a Victim Impact Testimony Instruction at Penalty Phase.
6. Errors in Signed Capital Murder Verdict Form at Penalty Phase.
7. Failure to Provide Proper Verdict Form For the “Life In Prison” Sentence at Penalty Phase.
8. Multiple Assignments of Errors and Claims Regarding Instruction No. 1 and the Signed Capital Verdict Form at Penalty Phase.
9. Failure to Request Instructions that the “Defendant is Presumed Innocent of the Aggravating Factors,” that “He Does Not Have to Testify In the Penalty Phase, and On the Definition of “Reasonable Doubt.”
D. Counsel Rendered Ineffective Assistance On Direct Appeal.
1. Failure to Assign Error to the Evidentiary Penalty Phase of Trial.
2. Failure to Argue Assignments of Error.
3. Failure to Cite Authority Requiring the Adoption of a Narrowing Instruction Regarding the Three Vileness Factors.
4. Failure to Argue that the Jury's Verdict was not the Product of a Reasoned and Dispassionate Deliberation.
E. Cumulative Effect of all Preceding Ineffective Assistance of Counsel Claims.
F. The Handwritten Note Found in the Appellate Record.
G. The Post-trial Destruction and/or Release of Human Biological Evidence Violated Elliott's Due Process Rights.
H. The Exclusion of Polygraph Evidence Violated Elliott's Right to Confront Witnesses.
I. Claims Found Procedurally Defaulted By the Virginia Supreme Court.
a. Claims under Brady v. Maryland.
1. Failure to Produce Statements of the Thrall boys.
2. Failure to Produce Photographs Provided by Victim Robert Finch's Parents.
3. Failure to Produce Alleged Tape Recording of “the Smoke Break Conversation” and Statements Regarding that Conversation.
4. Failure to Produce Third Polygraph Report.
5. Failure to Comply With Constitutional Duties.
6. Cumulative Materiality.
b. Claims under Napue/Giglio.
1. The Commonwealth Sponsored Perjured Testimony from Officer Leo.
2. The Commonwealth Sponsored Perjured Testimony from Detective Hoffman and Gragg.
3. The Alleged May 10, 2001 Written Statement.
c. Miscarriage of Justice.
III. Standard of Review
The federal habeas statute, the Antiterrorism and Effective Death Penalty Act (AEDPA), provides “a highly deferential standard for evaluating state court rulings.” Bell v. Cone, 543 U.S. 447, 455, 125 S.Ct. 847, 160 L.Ed.2d 881 (2005). This deferential standard strictly constrains federal review of a petition for habeas relief from a state conviction and sentence. Specifically, the federal habeas statute mandates that federal habeas relief is only proper when state court proceedings:
i) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or
ii) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
The Supreme Court has interpreted these provisions as requiring considerable deference upon federal review of state court proceedings. A state court decision is “contrary to” clearly established Supreme Court precedent if “the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases” or confronts facts “materially indistinguishable” from a Supreme Court decision and arrives at a result different than that dictated by Supreme Court precedent. See Williams v. Taylor, 529 U.S. 362, 405-406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Lovitt v. True, 403 F.3d 171, 178 (4th Cir.2005). Similarly, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 178 (quoting Williams, 529 U.S. at 411). An application of federal law is unreasonable when the state court “identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of [a] petitioner's case.” See Lenz v. Washington, 444 F.3d 295, 300 (4th Cir.2006) (quoting Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005)).
Furthermore, on federal habeas review, “a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 324, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). The court must presume a factual determination made by the state court to be correct unless the habeas petitioner rebuts the presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
These established principles provide the framework upon which this Court reviews Elliott's habeas claims.
IV. Merits Review
Elliott asserts seventeen grounds for ineffective assistance of counsel at the guilt phase of his trial, and eight grounds for ineffective assistance at the penalty phase of trial. Under Strickland v. Washington, a successful claim for ineffective assistance of counsel requires proof that: (1) counsel's performance fell below an objective standard of reasonableness; and (2) the deficient performance of counsel prejudiced the defense. 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the “performance” prong of the Strickland test, “[j]udicial scrutiny of counsel's performance must be highly deferential,” and “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.’ ” Id. at 689. Under the “prejudice” prong of the Strickland test, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
On state habeas appeal, the Virginia Supreme Court rejected each of Elliott's claims for ineffective assistance of counsel. See Elliott v. Warden of Sussex, 593 S.E.2d 465, 473-489 (Va.2007). Upon careful review of the record and transcripts, this Court agrees with the Virginia Supreme Court that Elliott has not shown ineffective assistance of counsel, and dismisses these claims for the reasons detailed below.
1. Failure to interview or call alibi witnesses.
Elliott argues that counsel failed to call three alibi witnesses, his co-worker Todd Prach, his wife Kathy Elliott, and his daughter Kaitlynn Elliott. According to Elliott, Mr. Prach would have testified that he spoke with Elliott between 5:00 and 5:30 a.m. on the morning of the murders at their workplace at Fort Meade, Maryland. This testimony allegedly would have refuted the Commonwealth's theory of the case because Elliott could not have committed the murders, cleaned up, disposed of the evidence, and arrived at Fort Meade by 5:30 a.m.
The Court agrees with the Virginia Supreme Court that this claim fails to satisfy the “prejudice” prong of Strickland. Elliott v. Warden, 652 S.E.2d at 473. The record shows that Elliott's truck was seen in the neighborhood as early as 4:15 a.m. on the morning of the murders and that he was no longer in the house when police responded at 4:25 a.m., and he admitted he was in the neighborhood at the time of the murders. There was no testimony at trial as to how long he spent cleaning the crime scene or disposing of evidence, or exactly when he did so. Even had Mr. Prach testified that he saw Elliott between 5:15 and 5:30 a.m. at Fort Meade, there was sufficient time for Elliott to drive to Fort Meade after the murders. In short, there is no irreconcilable conflict with the timeline presented at trial, and therefore there is not a reasonable probability that the result at trial would have been different but for counsel's decision not to call Mr. Prach. Strickland, 466 U.S. at 687.
Elliott's wife, Kathy Elliott, allegedly would have testified that she saw him in their home around 6:00 a.m. on the morning of the murders. She allegedly would have testified that Elliott returned from travel that morning, that she watched him unload his truck and saw no sign of blood or a cleanup of a crime scene, and that his customary practice was to shower upon return from a trip. But Kathy Elliott's own affidavit stated that Elliott showered and did laundry immediately after arrival, which supported an inference that he did so in order to remove evidence linking him to the murders. The prosecution theory at trial was that Elliott cleaned up his truck and disposed of the evidence prior to his arrival at home at 6 a.m., which is consistent with Kathy Elliott's proffered testimony. And, as the Virginia Supreme Court noted, because Elliott had defrauded his wife out of savings-acting in concert with another woman-defense counsel hardly can be faulted for not calling her as a witness given her potential bias. Elliott v. Warden, 652 S.E.2d at 474.
Kaitlynn Elliott's proffered testimony was not relevant. Kaitlynn Elliott did not see her father until hours after the murders-around 7:15 a.m.-leaving plenty of time for him to dispose of trash bags and clean his truck. Moreover, her affidavit does not square with evidence that his truck had a hard cover that blocked the truck bed from view. Finally, Elliott certainly knew the substance of the testimony his wife and daughter now proffer, and cannot now fault his counsel for failing to call alibi witnesses he failed to bring to counsel's attention.
2. Failure to Obtain Business Records and Failure to Call Experts.
The Virginia Supreme Court rejected each of these claims, holding that they satisfied neither the “performance” nor the “prejudice” prongs of Strickland. It found that Elliott merely speculated as to what the cell phone records and financial statements would have shown, which did not support an ineffective assistance claim. As to the failure to call a blood spatter expert, the Virginia Supreme Court rejected the theory of multiple killers as being inconsistent with the crime scene evidence showing that each bullet was fired from the same gun. Elliott v. Warden, 652 S.E.2d at 476-477.
This Court agrees. The Court does not see the relevance of Finch's medical records showing that he received hospital treatment, or the relevance of Finch and Thrall's financial records. The blood spatter expert would not have rebutted the evidence that a single gun was used in the killings, nor would it have rebutted the fact that Elliott's blood and DNA was found on the back fence behind the house. Thus, the Court holds that these claims fail under Strickland.
3. Failure to Interview and/or Call Witnesses Regarding the Cleaning of Elliott's Truck.
Elliott argues that counsel erred by failing to call several witnesses, including his wife Kathy Elliott and his former wife Sandy Rooks, who would have testified to his lifelong habit of compulsively cleaning his vehicles. His friends Chris McSpadden and Robert Barrow allegedly would have testified that beer was spilled in his truck at a tailgate party a few days before the murders, which would have provided an alternative explanation for why Elliott cleaned his truck mitigated or negated the inference that he cleaned the truck to destroy evidence.
The Virginia Supreme Court found that such testimony would have bolstered the Commonwealth's case by reinforcing expert testimony that a thorough, recent cleaning of the truck could have removed any evidence of crimes. 652 S.E.2d at 475. Moreover, the purported testimony that Elliott cleaned his truck days prior to the murders is not probative as to whether he cleaned his truck immediately after the murders to destroy evidence. Id. This Court agrees with the Virginia Supreme Court that these claims fail to demonstrate ineffective assistance of counsel under Strickland.
4. Failure to Interview and/or Call Witnesses Regarding Evidence of Other Suspects.
Elliott contends that counsel was ineffective for failing to introduce evidence of other suspects, such as Gregg's husband and relatives, who supposedly had a motive to kill Finch. Elliott proffers that Finch had been beaten by Gragg's relatives and argues that these relatives should have been investigated as suspects. Jennifer Finch, the victim's sister, allegedly would have testified that her inspection of her brother's home after the murders revealed a missing computer, drug paraphernalia, and missing cash. William Thrall, the other victim's father, allegedly would have testified that he found drug paraphernalia at the house, and that the police refused to investigate further.
The Virginia Supreme Court found that these claims satisfied neither prong of the Strickland test because the trial court found no evidence of third party involvement and thus testimony on alternative theories would not have been admissible under Johnson v. Commonwealth, 259 Va. 654, 529 S.E.2d 769 (2000), cert. denied, 531 U.S. 981, 121 S.Ct. 432, 148 L.Ed.2d 439 (2000); Elliott v. Warden, 652 S.E.2d at 475. This finding was affirmed on direct appeal. Elliott v. Commonwealth, 593 S.E.2d at 287-88. This Court agrees. Elliott is merely postulating that others might have had motives to kill Finch. Even if admitted, none of this purported testimony or evidence would have given the jury a sound evidentiary basis for concluding that another suspect committed the murders. Accordingly, it was not ineffective assistance for counsel not to introduce these witnesses, and these claims are denied.
5. Failure to Call Larry Smith.
Counsel did not call Larry Smith, a friend of Finch who bred Finch's 150 pound Mastiff dog. Smith allegedly would have testified to various things Finch told him about his finances, that Finch kept a lot of money around the house and that he trained Finch's Mastiff and knew the dog was prone to biting intruders. Elliott argues that this testimony, if admitted, would have undermined the prosecution theory that he went out the back door past the Mastiff and left his blood on the back gate.
The jury's conviction rested in part on unimpeachable DNA evidence-his blood on the gate-that Finch was in the backyard near the time of the murders. Nor would Smith's testimony about the dog have undermined confidence in the verdict, given the testimony from Officer Creamer that he entered the backyard without rousing the dog. Much of Smith's proffered testimony amounts to inadmissible hearsay, and the remainder of it ( e.g., Finch kept a lot of money around the house) was not prejudicial to Elliott. Moreover, the fact that Smith testified at the first trial, but not the second, gives rise to an inference that counsel had tactical reasons for not calling him again. Strickland, 466 U.S. at 689. As such, this Court joins the Virginia Supreme Court in rejecting these claims. Elliott v. Warden, 652 S.E.2d at 476.
6. Failure to Interview and/or Call Witnesses Regarding Silencers.
Five days before the murders, Elliott emailed Mr. Randon Jackson urgently seeking to acquire a silencer, allegedly for use at a shooting range. Mr. Jackson testified that using silencers at a shooting range was “ludicrous” and “silly.” Elliott now claims that counsel should have called witnesses who would have testified that he had conversations with them regarding silencers at a shooting range. This might have discredited the prosecution's theory that Elliott was seeking silencers to use in the murders and using the shooting range as a pretext for acquiring the silencers in his emails with Mr. Jackson. The affidavits of two of Elliott's witnesses, Mr. Robert Booher and Mr. David Dyke, mentioned nothing about communicating with Elliott regarding silencers. Mr. McSpadden's affidavit mentions conversations about shooting ranges, generally, but does not specifically aver that he discussed obtaining silencers with Elliott or that Elliott was the one who mentioned silencers for use at shooting ranges. None of this testimony would have undermined the prosecution's evidence that Elliott sought silencers from Mr. Jackson five days before the murders, or the inference that he used the pretextual purpose of a shooting range. The Court concludes that these claims do not satisfy the “performance” or “prejudice” prongs of Strickland.
7. Failure to Interview and/or Call Witnesses as to Elliott's Peacefulness and Nonviolence.
Elliott claims that counsel erred by failing to call various witnesses to testify as to his reputation for peacefulness and non-violence. He claimed that 15 such witnesses were identified in the habeas investigation, and that with such testimony Elliott would be entitled to a jury instruction that his character be considered in determining guilt or innocence. The Virginia Supreme Court found that these claims failed both prongs of Strickland. 652 S.E.2d at 476. The Court agrees. Given the overwhelming evidence of Elliott's commission of these murders, including the DNA evidence on the back gate and witness testimony and his own admissions placing him at the scene at the time of the murders, there is no reason to believe that the result at trial would have been changed by character testimony. This is particularly true given that these character witnesses did not know about his other life with Gragg, or how he and Gragg conspired to defraud his wife. As the Virginia Supreme Court put it, “petitioner cannot demonstrate that testimony as to petitioner's reputation in those limited areas of his life would have had any significant impact on the jury's decision.” Id. Accordingly, the claims fail both the performance and prejudice prongs of Strickland.
8. Counsel Unreasonably Failed to Investigate and Prepare for Trial.
Elliott claims that his counsel failed to adequately prepare for the second trial by failing to adequately investigate or to effectively counter the prosecution's trial strategy. This Court is mindful of the Supreme Court's admonition that “[j]udicial scrutiny of counsel's performance must be highly deferential,” and “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.’ ” Strickland, 466 U.S. at 689. In light of this high burden, a habeas petitioner cannot prevail on general or boilerplate claims that counsel was ineffective because he or she did not “effectively counter” the opposition's trial strategy. Elliott points to no case holding that counsel was ineffective because he or she failed to effectively counter the prosecution's trial strategy at a second trial after an initial mistrial. Further, Elliott's assertion that his counsel failed to investigate for the second trial ignores the fact that Mr. William Moffitt was his counsel at both trials, and therefore could rely on his investigation from the first trial. Counsel are not required to duplicate investigative work to avoid being ineffective. Accordingly, this claim must be denied.
9. Failure to Object During Opening.
Elliott next asserts ineffective assistance because his counsel failed to object during the prosecution's opening statement, which “speculated about elements of the crimes that were never supported by evidence.” He lists several examples of objectionable statements during the opening, such as “Dana [Thrall] was murdered because she ... witnessed the execution of Finch.” The evidence at trial, however, supported an inference that Elliott's motive for killing Ms. Thrall was that she witnessed him shooting Finch. Elliott also argues that the prosecution accused him of crimes other than the ones charged in the indictment, such as stealing from his wife. Under Virginia law, however, the Commonwealth is allowed to show evidence of other crimes “if the evidence is connected with or leads up to the offense for which the accused is on trial.” Woodfin v. Commonwealth, 236 Va. 89, 372 S.E.2d 377, 380-381 (Va.1988). Therefore this Court agrees with the Virginia Supreme Court that the “record ... demonstrates that the Commonwealth's opening statement constituted a fair depiction of the evidence to be presented and a fair inference of what the evidence would prove and, thus, was not objectionable.” Elliott v. Warden, 652 S.E.2d at 477.
10. Promising Jury It Would Play Tape and Not Playing It.
Elliott's counsel promised during opening statement to play an audio tape of a phone conversation between Elliott and Gragg in which he denied his guilt. When counsel attempted to play the tape during cross-examination of Gragg, the trial court ruled it inadmissible, but ruled that counsel could offer the tape during its case-in-chief. Counsel elected not to play the tape. Elliott contends this tactical trial decision constituted ineffective assistance of counsel. The Virginia Supreme Court disagreed, holding that because counsel obtained Gragg's admissions to facts that it planned to establish with the tape, the decision not to play the tape was reasonable. 652 S.E.2d at 477-78. Moreover, the tape contained statements that would have been harmful to the defense, such as Elliott repeating that he was at the townhouse at the time of the murders. Accordingly, this claim fails the Strickland test.
11. Portraying Gragg as the Actual Murderer.
Elliott next asserts that counsel erred by suggesting in its opening statement that Gragg might have committed the murders, which allowed the prosecution to counter at trial that Gragg was nowhere near the scene. This misstates the opening statement, which rhetorically asked “Who was the person that benefitted from this?” At most, this statement implied that Gragg had a motive and may have manipulated Elliott into murdering Finch. It does not imply that she committed the murders herself. This Court joins the Virginia Supreme Court in rejecting this claim. Elliott v. Warden, 652 S.E.2d at 478.
12. Failure to Adequately Address the Blood on the Back Gate.
Elliott contends ineffective assistance because counsel did not adequately address or refute the presence of Elliott's blood on the inside of the back gate at the townhome where the murders occurred. There is little doubt as to the significance of this piece of physical evidence-it placed Elliott, bleeding, at the scene of the murders. It is unclear how counsel could have countered such damning evidence. It is beyond dispute that Elliott's blood was found on the inside of a padlocked gate in the backyard, and there was no evidence adduced at trial explaining how his blood was left there another time. The chain of custody was established beyond dispute at trial, Officer Leo collected the blood and delivered it to the Virginia Department of Forensic Science. It is not ineffective assistance to refrain from raising theories for which there is no supporting evidence, or refrain from making objections that have no merit.
13. Failure to Object to Inadmissible. Prejudicial Evidence of Uncharged Crimes and of Collateral Events.
Elliott asserts that counsel failed to object to evidence of his alleged “theft” of money from his wife's account; his alleged “rape” of Gragg when she was sedated prior to surgery; the alleged illegal attempt to obtain a silencer, a felony under the Virginia Code; and his alleged attempt to flee and evade the police. He cites Virginia cases holding that collateral facts prejudicial to the defendant are not admissible. See, e.g., Seilheimer v. Melville, 224 Va. 323, 295 S.E.2d 896 (Va.1982). But these facts were not collateral. As the Virginia Supreme Court determined, such evidence was relevant to Elliott's motive by showing that he would consider killing Gragg's exhusband Finch in a twisted attempt to curry favor with her, as well as acts he took in furtherance of his plan to kill Finch. Gragg testified about the theft of money from Elliott's wife, which showed the intertwined nature of her relationship with Elliott and further established background relating to his motive. Elliott v. Warden, 652 S.E.2d at 478-479. Evidence of Elliott's attempt to obtain a silencer clearly was relevant to his plan to use a firearm to commit murder and escape detection. Finally, Elliott misstates Hoffman's testimony about Elliott's supposed attempt to flee; the entirety of Hoffman's testimony was that Elliott drove fast, leading Hoffman to fear that he was trying to flee, but then Elliott told him he was going to turn himself in.
In short, these claims do not meet the “performance” or “prejudice” prongs of the Strickland test.
14. Failure to Effectively Move for a Dismissal.
Counsel moved to strike the prosecution's case when it rested, but offered no basis for the motion other than to “preserve the record.” Elliott argues that grounds for mistrial existed and therefore counsel was ineffective in failing to move for dismissal on these grounds. This Court concurs with, and adopts the reasoning of, the Virginia Supreme Court:
The record, including the trial transcript and the exhibits, demonstrates that the evidence was sufficient to overcome a motion to strike and to support petitioner's convictions ... Petitioner fails to allege how a more specific motion to strike would have affected his case and fails to allege any viable basis upon which counsel should have sought a mistrial. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
652 S.E.2d at 480-81.
15. Failure to Put on a Defense.
Elliott's claims for failure to put on a defense largely rehash and restate his other claims for habeas relief, such as counsel's failure to play the audio tape and failure to use character testimony. As the Virginia Supreme Court noted, Elliott fails to identify any additional witnesses whose testimony would have had a reasonable probability of changing the outcome at trial. Cumulative and boilerplate objections to trial strategy do not establish ineffective assistance of counsel under Strickland. See also Lenz, 593 S.E.2d at 305 (“Having rejected each of petitioner's individual claims, there is no support for the proposition that such actions when considered collectively have deprived petitioner of his constitutional right to effective assistance of counsel.”).
16. Failure to Object to the Prosecution's Improper Closing Arguments.
Elliott further asserts cumulative habeas claims when he argues that his counsel failed to object to the prosecution's closing argument, which allegedly maligned Elliott's character and emphasized “uncharged” crimes such as theft, attempting to acquire a silencer, and fleeing from the police. The Court has addressed these specific arguments above, and will add only that the trial transcript reveals no improprieties in the prosecution's closing argument. The prosecution was entitled to argue the truthfulness of prosecution witnesses, corroborating testimony, and evidence adduced at trial. The Court agrees with the Virginia Supreme Court that these claims fail under Strickland. Elliott v. Warden, 652 S.E.2d at 481.
17. Cumulative Prejudice.
Elliott claims he was prejudiced by the cumulative effect of counsel's alleged failings. “Having rejected each of petitioner's individual claims, there is no support for the proposition that such actions when considered collectively have deprived petitioner of his constitutional right to effective assistance of counsel.” Elliott v. Warden, 652 S.E.2d at 481 (quoting Lenz v. Warden, 267 Va. 318, 593 S.E.2d 292, 305 (Va.2004)); see also Mueller v. Angelone, 181 F.3d 557, 586 n. 22 (4th Cir.1999); Fisher v. Angelone, 163 F.3d 835, 852-53 (4th Cir.1998) (“Having just determined that none of counsel's actions could be considered constitutional error ... it would be odd, to say the least, to conclude that those same actions, when considered collectively, deprived Fisher of a fair trial”).
B. Counsel Rendered Ineffective Assistance at the Penalty Phase.
Elliott asserts additional grounds for ineffective assistance at the penalty phase of trial. The Court will evaluate these claims in sequence.
1. Failure to adequately develop and present mitigation evidence.
Elliott claims that counsel did not interview or call 27 mitigation witnesses, including coworkers and childhood friends, who could have testified about his positive attributes and perhaps convinced the jury to spare his life. “Although counsel should conduct a reasonable investigation into potential defenses, Strickland does not impose a constitutional requirement that counsel uncover every scrap of evidence that could conceivably help their client.” Tucker v. Ozmint, 350 F.3d 433, 442 (4th Cir.2003). Counsel presented similar mitigation evidence through six other witnesses, including Elliott's wife and six of his friends and coworkers, who testified about Elliott's kindness and decency, and his service to his country. The Virginia Supreme Court held that testimony from the other mitigation witnesses would have been cumulative and would not have made a difference to the sentence. Elliott v. Warden, 652 S.E.2d at 483-484. This Court agrees. Elliott offers no reason to believe that additional mitigation witnesses would have dissuaded the jury from imposing the death penalty, and he cannot demonstrate ineffectiveness merely by proffering additional, duplicative testimony. Hedrick v. True, 443 F.3d 342, 353 (4th Cir.2006), cert. denied, 127 S.Ct. 10 (2006).
2. Failure to renew penalty phase motions raised in Trial 1.
Elliott next claims that counsel was ineffective for failing to renew motions made in the first trial. These motions sought to declare Virginia's death penalty statutes unconstitutional, to instruct the jury to be unanimous on vileness and to exclude victim impact evidence. Each of these motions was denied for good reason, as they were contrary to Virginia Supreme Court authority. Winston v. Commonwealth, 268 Va. 564, 604 S.E.2d 21, 29 (Va.2004) (holding that the Virginia death penalty statutes, and use of the term “vileness” as an aggravating factor, is constitutional); Hoke v. Commonwealth, 237 Va. 303, 377 S.E.2d 595, 602 (Va.1989) (specific instruction on unanimity for vileness is not required), cert. denied, 491 U.S. 910, 109 S.Ct. 3201, 105 L.Ed.2d 709 (1989); Beck v. Commonwealth, 253 Va. 373, 484 S.E.2d 898, 906 (Va.1997) (holding that victim impact evidence is admissible), cert. denied, 522 U.S. 1018, 118 S.Ct. 608, 139 L.Ed.2d 495 (1997). Plainly, counsel was reasonable in not renewing motions unsupported in law, and which were unsuccessful in the first trial.
3. Failure to object to improper and prejudicial victim impact testimony.
Elliott argues that the victim impact testimony put on by the prosecution violated his Due Process Clause rights. Specifically, Elliott points to the testimony of Dana Thrall's mother about Dana Thrall's last minutes of life, and testimony of Dana Thrall's brother and sister-in-law about the impact of the events on Dana's two boys, ages 4 and 6, which allegedly included hearsay testimony about their fear of the man who killed their mother and their psychological problems resulting from this tragedy.
Victim impact testimony is allowed under Virginia Code § 19.2-264.4. Such testimony is permitted during the sentencing proceeding so long as it is “necessary and relevant,” see Thomas v. Commonwealth, 263 Va. 216, 559 S.E.2d 652 (Va.2002), and more probative than prejudicial, see Beck v. Commonwealth, 253 Va. 373, 484 S.E.2d 898, 906 (Va.1997). Under this statute, Ms. Thrall's mother was entitled to testify about her daughter's last minutes of life, and counsel made no error in failing to object during her testimony. The statements about Ms. Thrall's children were not hearsay because they were not offered for truth, i.e., that the children actually feared for their lives or suffered psychologically. Rather, these statements were offered to show the severe psychological impact of the murders on the kids. Elliott v. Warden, 652 S.E.2d at 482. This determination of state law by the Virginia Supreme Court will not be disturbed by this Court. Accordingly, the Court finds no ineffective assistance based on counsel's failure to object to victim impact testimony.
4. Failure to object to prosecution's improper closing arguments.
Elliott makes three sets of arguments that his counsel unreasonably failed to object to the prosecution's closing argument. First, he urges that his counsel unreasonably failed to object when the prosecution told the jury that the victims' families would “get some solace” from a death sentence, despite the parents of the victims allegedly opposing a death sentence. Next, Elliott criticizes his counsel for failing to object to the prosecution's “eleven separate statements” in its closing that Elliott would be a future danger. Third, Elliott asserts that his counsel should have objected to the prosecution's statement that Elliott had sex with Gragg while she was sedated and unconscious.
As to the first argument, the Virginia Supreme Court correctly held that the prosecution's statement that members of the victims' families would get solace from a death sentence was fairly supported by the evidentiary record. 652 S.E.2d at 482. As to the second argument, Elliott claims that the prosecution made eleven statements on his future dangerousness, but fails to specifically identify any of those eleven statements. This is insufficient to support a habeas claim. Moreover, the Virginia Supreme Court dismissed this claim because counsel was not unreasonable in accepting the trial court ruling allowing general argument that a death sentence would prevent future harm. In short, counsel made reasonable objections at reasonable times, and having failed to prevail on those objections, there was nothing further to do. Id. at 482-483. As to Elliott's argument regarding sexual involvement with Gragg while she was sedated, the statement in closing was based on evidence of “circumstances surrounding the offense.” See VA Code § 19.2-264.4(B). This Court agrees with the Virginia Supreme Court that such evidence was relevant to Elliott's fatal attraction to Gragg and thus to his motive to kill Finch. Elliott v. Warden, 652 S.E.2d at 483. Elliott's habeas claims based upon statements during closing argument are hereby denied.
5. Failure to seek continuance or other relief based on the pre-sentence report.
Elliott claims that he received a copy of the presentence report only one day prior to sentencing, and asks the Court to infer that his counsel did not review that report. He asserts that counsel should have asked for a continuance of the hearing based on Clayton's Finch's statement in the report that Detective Hoffman “sabotaged” the defense. The Virginia Supreme Court properly held that this claim was baseless speculation, that there was nothing in the report or elsewhere to substantiate this speculation, and dismissed this claim. Id. at 484. Nor is there any basis for a belief that asking for a continuance of the sentencing proceedings would have altered the outcome. This Court dismisses this claim under both prongs of Strickland.
6. Cumulative effect of counsel's ineffective assistance in the penalty phase prejudiced Elliott.
Elliott again argues that he was prejudiced by the cumulative effect of counsel's alleged failings during the penalty phase. Again, “[h]aving rejected each of petitioner's individual claims, there is no support for the proposition that such actions when considered collectively have deprived petitioner of his constitutional right to effective assistance of counsel.” Elliott v. Warden, 652 S.E.2d at 481 (quoting Lenz, 593 S.E.2d at 305); see also Mueller, 181 F.3d at 586 n. 22; Fisher, 163 F.3d at 852-53.
C. Claims of Ineffective Assistance Relating to the Jury Instructions/Verdict Forms.
Elliott makes a volley of habeas claims based on his counsel's alleged ineffectiveness for failure to request certain jury instructions and failure to object to others. Applying Strickland, the Virginia Supreme Court found each of these claims deficient. 652 S.E.2d at 484-487. This Court agrees with the Virginia Supreme Court's conclusions, and shall address each of these claims below.
1. The failure to request the “mere presence” instruction at guilt phase.
Elliott claims that counsel unreasonably failed to ask for a “mere presence” instruction, which allegedly denied him due process of law by permitting him to be found guilty even if he was only present at the scene of the crimes. In reality, counsel asked for the instruction but the trial court required that it be coupled with the “principal in the second degree” instruction. Since Elliott's involvement as a principal in the second degree did not fit the defense theory of the case-that Elliott had no criminal involvement in the killings at all-counsel withdrew his request for a “mere presence” instruction. The Virginia Supreme Court held that this tactical decision was reasonable given that Elliott's theory was that he committed no criminal act. Elliott v. Warden, 652 S.E.2d at 484. This Court holds that these claims do not meet Strickland's “performance” or “prejudice” prongs. Counsel cannot be faulted for refusing instructions contrary to his theory of the case.
2. The absence of the “triggerman” instruction at guilt phase.
The same reasoning applies to Elliott's next habeas claim, which argues ineffective assistance because counsel failed to seek the “triggerman” instruction. The “triggerman” rule provides that a person who assists, but does not actually commit, a murder cannot be liable for capital murder; “only the actual perpetrator of the crime may be convicted of capital murder.” See Va.Code § 18.2-18; Johnson v. Commonwealth, 220 Va. 146, 255 S.E.2d 525 (Va.1979). The practical effect of this rule is that a triggerman can be liable only as a principal in the second degree. Thus, a triggerman instruction would have conflicted with the defense theory of the case that Elliott was not involved in the murders at all. Nor does a triggerman instruction fit the evidence adduced at trial. It was reasonable for counsel to elect not to seek this instruction, and the Court rejects this claim under Strickland. 652 S.E.2d at 484.
3. Failure to object to the capital murder instruction and its verdict form at guilt phase.
Elliott claims that Jury Instruction No. 4, and verdict form APP 307, erroneously instructed the jury that if it did not find beyond a reasonable doubt that the Capital Murder was “part of the same transaction” as the other murder, then it must find Elliott guilty of First Degree Murder. Through a strained interpretation of the Virginia Code, Elliott argues that the proper instruction should have directed the jury to find Second Degree Murder if it did not find Capital Murder. This misapprehends Virginia law. Under the Virginia Code, premeditated murder-whether capital or not-is first degree murder. See Va.Code § 18.2-32. The Virginia Supreme Court has upheld a jury instruction on capital murder similar to Jury Instruction No. 4 used in this trial. See Elliott v. Warden, 652 S.E.2d at 484 (citing Mackall v. Commonwealth, 236 Va. 240, 372 S.E.2d 759, 768 (Va.1988), cert. denied, 492 U.S. 925, 109 S.Ct. 3261, 106 L.Ed.2d 607 (1988)). Moreover, Elliott cannot show prejudice because the jury found him guilty of the capital murder of Dana Thrall and therefore an instruction giving the jury the option of finding second degree murder was immaterial. In short, these claims satisfy neither the performance nor the prejudice prongs of Strickland.
4. Failure to object to the verdict form for the Finch murder at guilt phase.
Elliott also objects to verdict form APP 309, used for the Finch murder, because it told the jury to find him guilty or not guilty “as charged in the indictment.” Elliott relies on a synthetic contradiction between the verdict form and Jury Instruction No. 5, which required the jury to find three elements to convict of First Degree Murder. As the Virginia Supreme Court held, the jury instructions and verdict forms were clear and straightforward and conformed to the law. Elliott v. Warden, 652 S.E.2d at 484-485. Counsel need not make spurious objections. This claim fails under Strickland as well.
5. Failure to request a victim impact testimony instruction at penalty phase.
Elliott next claims ineffective assistance because counsel failed to request a jury instruction at the second trial on how to evaluate victim impact testimony, after counsel had obtained such an instruction in the first trial. But Elliott offers no authority holding that a victim impact instruction at the penalty phase is mandatory. The jury was properly instructed on the need to find vileness as an aggravating factor before imposing a sentence of death, and there is no evidence that the jury disregarded this instruction. Elliott v. Warden, 652 S.E.2d at 485. As such, this habeas claim has no merit.
6. Errors in capital murder verdict form at penalty phase.
Elliott objects to the capital murder verdict form because it referred to “Capital Murder,” “the offense,” and “torture” and “depravity of mind” without defining those terms. He argues that counsel violated Strickland by not objecting to this verdict form. This ignores the fact that the jury instructions provided definitions of these terms, and that the verdict form represented an accurate statement of the statutory law. Nor were these terms likely to confuse the jury. Elliott points to no evidence that the jury was, in fact, confused. Unsubstantiated assertions of jury confusion do not amount to a claim for ineffective assistance under Strickland.
7. Failure to provide proper verdict form for the “life in prison” sentence at penalty phase.
Elliott misreads the “life in prison” sentence verdict form, which, he argues, told the jurors that they must unanimously find that the prosecution failed to prove the aggravating factor before they could give Elliott life in prison. In Virginia, juries must decide criminal cases and sentencing by unanimous verdict. Rule 3A:17(a), Rules of Supreme Court of Virginia; Evans v. Commonwealth, 228 Va. 468, 323 S.E.2d 114, 121 (Va.1984), cert. denied, 474 U.S. 1025 (1985). Thus, the verdict form conformed to Virginia law, and counsel made no error in failing to object to it. See Elliott v. Warden, 652 S.E.2d at 485-486.
8. Multiple assignments of errors and claims regarding Instruction No. 1 and the capital verdict form at penalty phase.
Elliott argues that the Virginia Supreme Court, on direct appeal, erred by refusing to review errors he assigned to the trial court's rulings in the first trial. See Elliott v. Commonwealth, 593 S.E.2d at 290. The Virginia Supreme Court was not required, after the second trial, to review errors assigned during the first trial. Nor did counsel's choice not to renew these motions at the second trial constitute ineffective assistance under Strickland. Simply put, counsel need not assign error for every conceivable issue on appeal. Rather, attorneys have the discretion to advance the issues most likely to prevail. See Jones v. Barnes, 463 U.S. 745, 751-752, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).
Elliott next argues that the trial court did not use standard jury instructions and verdict forms, and that the Virginia Supreme Court mistakenly concluded that the instructions and forms were standard. The language on the forms-“depravity of mind” and “torture”-came directly from the Virginia statute at issue. See Va.Code § 19.2-264.4(D)(1). The trial court certainly was not required to omit language from the statute defining “vileness” on the instructions and forms pertaining to the vileness aggravating factor.
Elliott further contends that because there was no evidence of depravity or torture, the trial court should have omitted those terms from the jury submissions. This is wrong for two reasons. First, as a matter of law, jury instructions and verdict forms that track the language of the statute are accurate statements of the law, and it is not improper to submit accurate statements of the law to the jury. See Elliott v. Warden, 652 S.E.2d at 486; Tuggle, 323 S.E.2d at 553. Second, as a matter of fact, there was evidence in this case to support a finding of torture. After murdering Ms. Thrall's boyfriend, Elliott then pistol-whipped her, shot her execution-style, and left her to die with her young children upstairs in the house. The jury reasonably could have concluded that such evidence supported “depravity of mind.”
Nor was counsel required to ask for an instruction defining “depravity of mind,” a phrase which does not require further definition under Virginia law, see Tuggle v. Commonwealth, 228 Va. 493, 323 S.E.2d 539, 553 (Va.1984), rev'd on other grounds, 471 U.S. 1096, 105 S.Ct. 2315, 85 L.Ed.2d 835 (1985), or “aggravated battery,” which was defined elsewhere in the instructions as force “beyond the minimum necessary to accomplish the act of murder.”
Lastly, Elliott asserts that counsel failed to ask for an instruction that the jury's finding on the “vileness” factor be unanimous, but the jury was elsewhere instructed that it must reach unanimous verdict. Elliott v. Warden, 652 S.E.2d at 485-486.
9. Failure to request instructions that the “defendant is presumed innocent of the aggravating factors.” that “he does not have to testify in the penalty phase.” and on the definition of “reasonable doubt.”
Elliott next contends that the jury should have been instructed at the penalty phase that “defendant is presumed innocent of the aggravating factors,” that “he does not have to testify in the penalty phase,” and on the meaning of “reasonable doubt.” Elliott admits that the jury was instructed on the presumption of innocence, the Fifth Amendment right not to testify, and the meaning of “reasonable doubt” during the guilt phase of trial. There is no evidence of unresolved jury confusion carrying over into, or arising during, the penalty phase.
Moreover, an instruction that the defendant is “presumed innocent” would have been misleading and confusing at the penalty phase. Elliott already had been adjudged guilty of the crimes, and once the Commonwealth proved the existence of an aggravating factor, the burden shifted to Elliott to prove mitigating factors. Accordingly, this Court must reject these claims. Elliott v. Warden, 652 S.E.2d at 484, 487.
D. Counsel Rendered Ineffective Assistance On Direct Appeal.
Criminal defendants have a due process right to the effective assistance of counsel on appeal. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). The standard for ineffective assistance is the same for trial and appellate counsel, and counsel's actions are measured against the Strickland standard. 466 U.S. at 688; Smith v. Murray, 477 U.S. 527, 535-536, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). Counsel are not required to raise every possible issue on appeal; they are given considerable discretion in making tactical decisions. Jones, 463 U.S. at 751-752. Counsel's performance is deficient only if it falls below the wide range of competence demanded of attorneys in criminal cases. Strickland, 466 U.S. at 688. Furthermore, under the prejudice prong, a petitioner must show a reasonable probability that, but for appellate counsel's poor performance, he would have obtained a reversal or new trial. Smith v. Robbins, 528 U.S. 259, 285-286, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (“[appellant] must show a reasonable probability that ... he would have prevailed on his appeal”).
Elliott advances an array of claims relating to the alleged ineffectiveness of his counsel on direct appeal:
1. Failure to assign error to the penalty phase of trial.
Elliott rehashes his prior argument that the prosecution impermissibly argued future dangerousness during the penalty phase. As explained above, the trial court allowed a general argument that a death sentence was the appropriate punishment, in part because it would prevent future harm, and this ruling was affirmed by the Virginia Supreme Court. On state habeas appeal, the Virginia Supreme Court found that the jury was instructed that it could impose the death penalty only if it found the vileness factor proven beyond a reasonable doubt. Elliott v. Warden, 652 S.E.2d at 488. The instructions therefore clearly informed the jury that a death sentence had to be based on vileness, not future dangerousness. The jury is presumed to have followed the instructions and Elliott proffers nothing leading the Court to believe otherwise. The Court dismisses this claim.
2. Failure to argue assignments of error.
The next contention is that counsel was ineffective for failing to argue five particular assignments of error. On state habeas appeal, the Virginia Supreme Court held, these assignments of error were without merit. Id. at 488. Counsel is not ineffective for failing to pursue arguments lacking merit. Furthermore, three of these assignments of error were not preserved at trial and thus would have been barred by Rule 5:25, Rules of the Supreme Court of Virginia, 652 S.E.2d at 488. Clearly, it is not deficient representation to focus an appeal on issues that were preserved at trial, and forego issues that were not.
3. Failure to cite authority requiring the adoption of a narrowing instruction regarding the three vileness factors.
Next, Elliott recycles his habeas challenges to the jury instructions by arguing that counsel failed to convince the court to include a limiting instruction that specified how the three “vileness” factors are applied. As explained above, supra at 35-36, the jury instructions on vileness were proper. “Depravity of mind, aggravated battery, and torture are not discrete elements of vileness that would require separate proof but rather are ‘several possible sets of underlying facts [that] make up [the] particular element’ ” of vileness. Richardson v. United States, 526 U.S. 813, 817, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). This claim is dismissed.
4. Failure to argue that the jury's verdict was not the product of a reasoned and dispassionate deliberation.
Under Virginia Code § 17.1-313(C)(1), the Virginia Supreme Court must determine whether the jury imposed the death sentence “under the influence of passion, prejudice, or any other arbitrary factor.” Elliott argues that his appellate counsel failed to argue on direct appeal that the jury's sentence violated this provision. However, on state habeas review the Virginia Supreme Court found that its prior review on direct appeal comported with Section 17.1-313(C)(1). Elliott v. Warden, 652 S.E.2d at 489. Elliott fails to articulate how counsel could have changed the Virginia Supreme Court's mind on direct appeal, and he offers no specific arguments that might have changed the outcome. As such, this claim fails under Strickland.
E. Cumulative Effect of all Preceding Ineffective Assistance of Counsel Claims.
As before, Elliott argues that the “cumulative effect” of the preceding ineffective assistance claims demonstrates that habeas relief is warranted. Again, “[h]aving rejected each of petitioner's individual claims, there is no support for the proposition that such actions when considered collectively have deprived petitioner of his constitutional right to effective assistance of counsel.” Elliott v. Warden, 652 S.E.2d at 489 (quoting Lenz, 593 S.E.2d at 305).
F. The Handwritten Note Found In Appellate Record.
Elliott contends that the trial court failed to inform him about a handwritten note, which he postulates was a jury question never brought to the attention of counsel. This note appeared in the manuscript record that was forwarded to the Virginia Supreme Court by the trial court Clerk. It stated: “Can you supply a more simplistic definition of reasonable doubt from a guilt or innocence point of view?” There is little reason to believe that this note was a jury question. The trial transcript does not suggest that any such note was submitted to the jury. The jury submitted questions on two occasions during the trial, and each time the court's procedure was to read the question to counsel and seek input from the attorneys on what action should be taken. This procedure was not initiated for a question on reasonable doubt.
On direct appeal, the Virginia Supreme Court concluded that this claim was pure speculation and that there was no evidence suggesting that the note was a jury question. Elliott v. Commonwealth, 593 S.E.2d at 282. On state habeas appeal, the Virginia Supreme Court found that the claim “was not cognizable in a habeas corpus proceeding” because Elliott's request for a hearing was not a jurisdictional defect remediable in a habeas proceeding. Elliott v. Warden, 652 S.E.2d at 487. This Court agrees with these prior holdings and adds that, under Virginia law, it is not reversible error to refrain from giving a jury instruction that defines “reasonable doubt.” See Strawderman v. Commonwealth, 200 Va. 855, 108 S.E.2d 376, 379 (Va.1959) (“It should be remembered ... that on numerous occasions we have stated that instructions attempting to define reasonable doubt should be discouraged as it is highly probable that any definition devised would be less illuminating than the expression itself.”). Thus, the trial court would have been under no obligation to supply a definition of reasonable doubt, even had the jury asked for one.
G. Post-trial Destruction and/or Release of Human Biological Evidence Violated Elliott's Due Process Rights.
Elliott argues that his due process rights were violated by the Commonwealth when the Prince William County Police Department allegedly destroyed two sets of stains/swabs that the police took from the crime scene, and allegedly released components of Elliott's pickup truck, on which it had found biological evidence, to an insurance company. Relying on Arizona v. Youngblood, Elliott argues that the government's bad faith destruction of “potentially useful evidence” denied him due process. 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). According to Elliott, bad faith was present because the police supposedly admitted at the November 2006 hearing before the Circuit Court that they deliberately destroyed and released the evidence-in violation of two Virginia statutes. See Va.Code § 19.2-270.4 (authorizing destruction of trial evidence “after exhaustion of all appellate remedies”); § 19.2-270.4:1 (prohibiting destruction of “human biological evidence” in a death penalty case until after “the judgement is executed”).
The Commonwealth argues that: federal habeas review of a claim for disposed-of biological evidence is barred by a Virginia statute; the claim is precluded by the state habeas statute of limitations; there was no bad faith by the police here and cases finding bad faith each considered pre-trial, not post-trial, destruction of evidence; and no physical evidence introduced at trial was destroyed or disposed of, nor was the critical physical evidence linking Elliott to the murder scene.
As a threshold matter, Virginia Code § 19.2-270.4:1, “Storage, preservation and retention of human biological evidence in felony cases,” expressly provides in subsection (E) as follows:
An action under this section or the performance of any attorney representing the petitioner under this section shall not form the basis for relief in any habeas corpus or appellate proceeding.
Thus, this statutory provision plainly bars the habeas relief sought by Elliott. See Lovitt v. Warden, 266 Va. 216, 585 S.E.2d 801, 816 (Va.2003) ( “in stating the procedural requirements relating to the retention of human biological evidence in Code § 19.2-270.4:1, the General Assembly also recognized that noncompliance with those procedures may occur and provided statutory language plainly excluding any such noncompliance as a basis for appellate or habeas corpus relief”).
Moreover, this claim is barred from federal habeas review under Gray v. Netherland, 518 U.S. 152, 162, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996). Elliott was required to present due process violations to the state court in a timely manner. This claim was not timely presented to the state court on direct appeal or during state habeas proceedings; indeed, the Virginia Supreme Court denied Elliott's motion “for leave to amend his habeas corpus petition with a recently discovered due process claim and to conduct discovery.” Elliott v. Warden, 652 S.E.2d at 489 (emphasis added). As such, Gray precludes federal review. 518 U.S. at 162.
Finally, the physical evidence relating to the back fence gate-from which Elliott's DNA was collected, which established his presence at the murder scene-was not destroyed. Further, courts have not applied the bad-faith standard for constitutional due process violations to post-trial destruction of evidence by police departments. See Lovitt v. True, 403 F.3d 171, 187 (4th Cir.2005).
For the reasons given above, the Court must dismiss this habeas claim.
H. Exclusion of Polygraph Evidence Violated Elliott's Right to Confront Witnesses.
Elliott makes a Confrontation Clause argument based upon the trial court's exclusion of evidence from two polygraphs administered to Gragg, which he contends would have rebutted a false impression that Gragg had been truthful with the police. At trial, Elliott argued that the prosecution had “opened the door” to cross-examination of Gragg about the polygraphs when Detective Hoffman referred to a “polygrapher” during his direct testimony. On direct appeal, the Virginia Supreme Court disagreed, reasoning that the doctrine of “curative admissibility” did not compel the trial court to allow “inadmissible and unreliable” polygraph evidence, and that the court correctly gave a curative instruction. Elliott v. Commonwealth, 593 S.E.2d at 283-284.
In Virginia, as well as in the Fourth Circuit, evidence that a witness has taken a polygraph test is inadmissible. Robinson v. Commonwealth, 231 Va. 142, 341 S.E.2d 159, 167 (1986) (holding that results of a polygraph examination may not be used to impeach a witness); U.S. v. A & S Council Oil Co., 947 F.2d 1128, 1133 (4th Cir.1991). In light of this rule, this Court agrees with the Virginia Supreme Court that the trial court made a reasonable decision to exclude evidence of Gragg's polygraph tests. Refusing to allow cross-examination on inadmissible polygraph evidence did not violate the Confrontation Clause. See A & S Council Oil Co., 947 F.2d at 1133 (explaining that Fourth Circuit law “precludes direct attacks on or bolstering of the credibility of a witness through evidence that the witness has taken a polygraph test”).
I. Claims Found Procedurally Defaulted By the Virginia Supreme Court.
The Virginia Supreme Court found that Elliott's Brady claims and Napue/ Giglio claims were procedurally defaulted. Under Gray v. Netherland, 518 U.S. 152, 162, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996), and Fisher v. Angelone, 163 F.3d 835, 851-52 (4th Cir.1998), cert. denied, 526 U.S. 1035, 119 S.Ct. 1290, 143 L.Ed.2d 382 (1999), “a federal habeas court may not review a claim when a state court has declined to consider the claim's merits on the basis of an adequate and independent state procedural rule.” Fisher, 163 F.3d at 844. A rule is adequate “if it is regularly and consistently applied by the state court,” and is independent “if it does not depend on a federal constitutional ruling.” See Yeats v. Angelone, 166 F.3d 255, 261-62 (4th Cir.1999) (internal citations and quotations omitted). When a state court has declined review under a state procedural rule, “concerns of comity and federalism counsel in favor of a federal habeas court declining to reach the merits of the federal claim.” Id. at 261. Thus, the federal court should dismiss the defaulted habeas claim unless the petitioner shows either cause for the default and prejudice arising from the default, or a fundamental miscarriage of justice. Fisher, 163 F.3d at 844.
Here, the Virginia Supreme Court held that the Brady claims “are procedurally defaulted because these non-jurisdictional issues could have been raised at trial and on direct appeal and, thus, are not cognizable in a petition for a writ of habeas corpus.” Elliott v. Warden, 652 S.E.2d at 473 (citing Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680, 682 (Va.1974)). In Slayton, the Virginia Supreme Court held that “when a prisoner has been afforded a fair and full opportunity to raise and have adjudicated the question ... in his trial and upon appeal,” and has failed to do so, the “prisoner is not entitled to use habeas corpus to circumvent the trial and appellate process for an inquiry into an alleged non-jurisdictional defect of a judgment of conviction.” 205 S.E.2d at 682. The Slaylon rule has been upheld by the Supreme Court and the Fourth Circuit as an “independent” and “adequate” state procedural rule. See Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986); Reid v. True, 349 F.3d 788, 804 (4th Cir.2003), cert. denied, 540 U.S. 1097, 124 S.Ct. 979, 157 L.Ed.2d 810 (2003); Wright v. Angelone, 151 F.3d 151, 159-60 (4th Cir.1998), cert. denied, 525 U.S. 946 (1998).
In accord with these authorities, this Court holds that each of Elliott's Brady and Napue/Giglio claims are procedurally defaulted and barred from federal habeas review. The Court now turns to whether Elliott can establish an exception by showing cause for default and resulting prejudice, or a fundamental miscarriage of justice, that would warrant federal habeas review. Cause for default exists only when the “prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986); see also Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). As shown below, there is no cause and prejudice for any of Elliott's Brady claims.
a. Claims Under Brady v. Maryland.
Elliott alleges that the Commonwealth did not disclose exculpatory statements allegedly made by the Thrall boys. He relies on several affidavits containing hearsay statements that one of the Thrall boys' claimed to see “either a black man or a man wearing black running from the rear of the townhouse.” Elliott v. Warden, 652 S.E.2d at 471. These affidavits came from a neighbor, from Elliott's habeas investigator, and from the Thrall boys' grandfather. None of these affidavits contains admissible evidence, much less establishes that the police or prosecution had any knowledge of the alleged exculpatory statements. Id. Thus, there is no cause for default or prejudice, and this claim fails.
2. Failure to produce photographs provided by victim Robert Finch's parents.
Elliott alleges that the prosecution failed to produce photographs of Robert Finch taken after he was severely beaten by Gragg's friends and family members. Elliott claims that these photographs were exculpatory because they tended to support his theory that other people had a motive for killing Finch. During trial, Elliott's counsel claimed to have information that the photographs existed, the prosecution denied it, and counsel made no objection or motion based on non-disclosure of exculpatory evidence. If counsel believed these photographs existed, he could have moved for disclosure during trial. He did not. Elliott now offers no cause for his default on this issue during state proceedings, beyond a bald assertion that the Commonwealth was “feigning ignorance of evidence.” This Court will not impute a severe ethical breach to the prosecution based on such speculation.
Moreover, it is unlikely the alleged photographs would have been admissible. On direct appeal, the Virginia Supreme Court held that evidence of a prior assault on Finch by Gragg's associates was “too tenuous and speculative” to be relevant, and therefore was properly excluded at trial. Elliott v. Commonwealth, 593 S.E.2d at 288. Thus, the alleged photographs would have been excluded, and therefore Elliott cannot establish prejudice.
3. Failure to produce alleged tape recording of the “smoke break conversation” and written statements regarding that conversation.
Next Elliott postulates that the police recorded a conversation between Gragg and investigators during a smoke break from her interview, and composed written reports memorializing the substance of these conversations. He claims the Commonwealth failed to produce this evidence of the “smoke break conversation.” At trial the prosecution represented that it had produced “every statement that [Gragg] made to any of [our] agents.” When questioned directly by the trial court, the prosecution denied the existence of a recording or written statement of the smoke break conversation. The Virginia Supreme Court held this claim defaulted, both on direct review and state habeas review. 593 S.E.2d at 288, 652 S.E.2d at 472.
The existence of recordings or written statements of the smoke break conversation is pure conjecture. Elliott has no evidence of their existence. The prosecution team and three police detectives all denied the existence of such materials, the trial court saw no cause for further investigation, and the Virginia Supreme Court twice denied relief on this claim. Furthermore, to show cause for default and prejudice Elliott would need evidence that the transcription of the smoke break conversation contained exculpatory material. He has no such evidence. In fact, the trial record shows quite the opposite-at trial, Gragg testified that during the smoke break she told Detective Hoffman about phone calls with Elliott during which he made incriminating statements. Thus, the Court finds no cause for default and no prejudice.
4. Failure to produce third polygraph report.
In his next Brady claim, Elliott asserts that the police gave Gragg a third polygraph on May 14, 2001, and then failed to produce the report from this polygraph despite a court order to produce all polygraph reports. He relies on a discrepancy in the dating of the second polygraph, which bears a handwritten date “5-10-2001” near the examiner's signature for “time of testing,” but the typed report reads “Date: 5/14/01” (the following Monday). The most logical inference is that these dates both refer to the same polygraph, which was administered on May 10 with a report prepared on May 14. Four witnesses (Ebert, Willett, Detective Hoffman, Marlett) confirmed that Gragg was administered only two polygraphs. The Virginia Supreme Court concluded that the record shows only two polygraph tests administered to Gragg, one on January 12, 2001, and another on May 10, 2001. Elliott v. Warden, 652 S.E.2d at 472. Accordingly, the Court found his claim “factually without merit.” Id. This Court affirms that finding, as Elliott has not proven by “clear and convincing” evidence that this factual determination by the state court was erroneous. See 28 U.S.C. § 2254(e)(1). Nor can Elliott show prejudice. There is no evidence that any third polygraph would have contained exculpatory material.
5. Failure to comply with constitutional duties.
Elliott asserts a Brady violation for the alleged failure of the Commonwealth to investigate potential leads suggesting that another perpetrator committed the crimes. He relies on a hearsay statement by William Thrall and his own investigator's critique of the police investigation. The Virginia Supreme Court found this claim procedurally defaulted. Elliott v. Warden, 652 S.E.2d at 472. Elliott offers no cause for the default. Moreover, police are allowed to cease investigation once they believe that they have apprehended the murderer. An ex post facto assertion that a police investigation was incomplete-without evidence of bad faith by the police-does not create a due process violation. See Holdren v. Legursky, 16 F.3d 57, 60 (4th Cir.1994) (failure to test evidence at the scene or conduct an investigation in a particular way does not state a due process violation), cert. denied, 513 U.S. 831, 115 S.Ct. 106, 130 L.Ed.2d 53 (1994).
Nor does this claim constitute a Brady violation. Brady obligates the government to disclose exculpatory information in its possession; it applies only “when evidence is ‘known to the prosecution but unknown to the defense.’ ” Lovitt v. True, 403 F.3d 171, 185 (4th Cir.2005) (quoting United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)).
6. Cumulative materiality.
Finally, Elliott argues the alleged Brady violations, aggregated together, show materiality. The Virginia Supreme Court found this claim procedurally defaulted as well, 652 S.E.2d at 472-473, and this Court agrees. Having found each of the individual claims procedurally defaulted, the Court must reject the argument that they accumulate to a Brady violation.
b. Claims Under Napue/Giglio.
Elliott claims that his rights were violated under Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) and Giglio v. United States, 405 U.S. 150,153 (1972). A Napue claim “requires a showing of the falsity and materiality of testimony and the prosecutor's knowledge of its falsity.” Basden v. Lee, 290 F.3d 602, 614 (4th Cir.2002). Elliott claims that Officer Thomas Leo falsely testified as to the date (January 2, 2001) he collected the blood containing Elliott's DNA from the back gate of the townhouse. The Virginia Supreme Court found this claim procedurally defaulted, and this Court concurs. Elliott v. Warden, 652 S.E.2d at 473.
Based on the inadmissible hearsay testimony of his state habeas investigator, Elliott alleges that the Commonwealth hid evidence that Officer Leo's testimony was false. The investigator claims that a retired police officer, Mr. Zinn, told him that Officer Leo collected the blood sample from the back gate within a day or two of January 2, 2001. By contrast, Officer Leo testified that he collected the sample on January 2, 2001, and contemporaneously recorded that date on the collection bag. Another officer, Detective Watson, supervised the collection and confirmed by sworn affidavit that it was done on January 2. Furthermore, there is no viable Napue claim because-even assuming Officer Leo's testimony was false-Elliott offers no basis for a belief that the prosecutor knew of this falsity. Basden, 290 F.3d at 614. Nor would the date of collection affect the admissibility of the evidence; the chain of custody was sound and it was properly authenticated. Thus, Elliott cannot show cause for default or resulting prejudice for this claim.
2. The Commonwealth sponsored perjured testimony from Detective Hoffman and Gragg.
Elliott next claims that Detective Hoffman testified falsely three times, that Gragg testified falsely about incriminating phone calls that she received from Elliott, and that the Commonwealth improperly “sponsored” the testimony of these witnesses. The Virginia Supreme Court also found these claims procedurally defaulted. Elliott v. Warden, 652 S.E.2d at 472-473. Elliott does not proffer any cause for his default or prejudice resulting from the default. If he believed these witnesses were falsely testifying at trial, his counsel could have impeached them during cross-examination, called other witnesses to cast doubt on their credibility, or raised these issues on appeal. His failure to do so bars this Court from reviewing these claims under Slayton, 205 S.E.2d at 682.
3. The alleged May 10, 2001 written statement.
Elliott claims that Gragg testified that, during a smoke break on May 10, 2001, she told Detectives Hoffman and Masterson about a phone conversation with Elliott wherein he discussed “bloody bags” and “police swarming” at the scene. Elliott further claims that Gragg testified that one of the detectives wrote down what she said and had her initial and sign the written statement.
These claims attempt to recast Elliott's Brady claims on the smoke break conversation as Napue claims. For the reasons discussed above, such claims are procedurally defaulted. Elliott v. Commonwealth, 593 S.E.2d at 288; Elliott v. Warden, 652 S.E.2d at 472. Elliott argued that Gragg perjured herself to the Virginia Supreme Court on direct appeal, and the Court held the argument waived under Rule 5:25. Elliott, 593 S.E.2d at 286-287. Elliott offers no cause excusing this default, and cannot show prejudice given that the comments allegedly made during the smoke break conversation were not helpful to his case.
Moreover, the record shows that the trial court considered the prosecutor's truthfulness about his lack of knowledge of these alleged written statements. As such, there is no Napue claim. Basden, 290 F.3d at 614 ( Napue “requires a showing of the falsity and materiality of testimony and the prosecutor's knowledge of its falsity”).
c. Miscarriage of Justice.
Lastly, Elliott argues that his procedurally defaulted claims should be considered by this Court because there has been a fundamental miscarriage of justice. Murray v. Carrier, 477 U.S. 478, 488 (1986). For there to be a miscarriage of justice, the defendant must be actually innocent of the capital crime, or innocent of the aggravating factor qualifying him for the death penalty. Schlup v. Delo, 513 U.S. 298, 301, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). Neither circumstance is present here. Elliott was convicted of first degree murder and capital murder by a jury of his peers. The evidence at trial unequivocally proved that Elliott committed these murders. Police found blood containing his DNA on the inside of the padlocked back gate of the townhouse where the murders occurred. When police questioned him the day after the murders, Elliott had an abrasion on his hand and bandages in his truck. Forensic testing a week later found blood bearing his DNA on a seat cushion in his truck.
Further, his truck was seen in the neighborhood by a witness minutes before neighbors reported hearing gunshots. Elliott even admitted to police that he had been in the neighborhood the morning of the murders and that he left his truck while there, but gave no explanation for why he would be more than 50 miles from his home at four in the morning. In addition, Elliott's obsession with Gragg, the victim Finch's ex-wife, gave him a clear motive. Gragg testified that Elliott called her early the morning of the murders, said that he was “tired of this s* * * and was going to take care of it” and hung up. He also called her after the murders and told her that “all of our problems had been taken care of,” and later told her that he was looking for a place “to dump ... these bloodied black trash bags from the mess that Jerry had made.” Forensic analysis of the bullets recovered from the crime scene showed that each was fired from the same gun, thus precluding any inference of multiple killers.
Finally, the grisly detail of Elliott's murder of Dana Thrall supported the jury's finding of the “vileness” aggravating factor beyond a reasonable doubt. He shot a mother in her home with her two small kids upstairs,FN1 after killing her boyfriend in front of her. Elliott shot Ms. Thrall multiple times in her head and once in her chest-at close range, as evidenced by the defensive bullet wound to her hand. He pistol-whipped her in the head. He callously left her to die an agonizing death, with her children upstairs. Under these facts, the jury's finding of vileness was reasonable, and there was no miscarriage of justice.
FN1. Given that Elliott admitted he had been to the house “hundreds of times,” the jury could infer that Elliott knew Thrall lived in that house with her kids.
V. Conclusion
For all of the reasons stated above, the Respondent's Motion to Dismiss must be granted and the Elliott's Petition for Writ of Habeas Corpus must be dismissed in full. All other pending motions in this matter are hereby deemed moot. The stay of execution entered by Order of this Court on May 6, 2008, is hereby lifted.
LIAM O'GRADY, District Judge.
A. Counsel Rendered Ineffective Assistance at Guilt Phase.
Elliott claims that counsel failed to obtain exculpatory records, including: cell phone tower records for Gragg's and Elliott's cell phones, to demonstrate which cell towers were used to send and receive calls. Elliott contends this was critical because without the cell tower records, he was unable to prove that he made a 5:23 a.m. phone call from his office parking lot, not Kaufman's Restaurant, which was 6.6 miles away; Thrall and Finch's bank and other financial records, which supposedly would have shown that Finch lacked a legitimate source of funds to purchase a $300,000 house; and medical records from the hospital where Finch received treatment after being beaten by Gragg's friends and relatives. Elliott also asserts ineffective assistance because counsel failed to call a crime scene/blood spatter reconstruction expert, who allegedly would have provided evidence supporting an inference that multiple persons committed the murders.
1. Failure to produce statements of the Thrall boys.
1. The Commonwealth sponsored perjured testimony from Officer Leo.