Executed September 23, 2010 9:13 p.m. by Lethal Injection in Virginia
39th murderer executed in U.S. in 2010
1227th murderer executed in U.S. since 1976
3rd murderer executed in Virginia in 2010
108th murderer executed in Virginia since 1976
12th female murderer executed in U.S. since 1976
1st female murderer executed in Virginia since 1912
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
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(39) |
Teresa Wilson Bean Lewis FEMALE W / F / 33 - 41 |
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Julian Lewis W / M / 51 C.J. Lewis W / M / 25 |
Stepson |
Citations:
Lewis v. Commonwealth, 267 Va. 302, 593 S.E.2d 220 (Va. 2004) (Direct Appeal).
Lewis v. Wheeler, 609 F.3d 291 (4th Cir. 2010) (Habeas).
Final/Special Meal:
Fried chicken, sweet peas, a Dr Pepper, and apple pie for dessert.
Final Words:
"I just want Kathy to know I love you and I'm very sorry."
Internet Sources:
"Teresa Lewis executed for 2002 slayings of husband, stepson," by Frank Green. (September 24, 2010)
JARRATT -- Teresa Lewis died by injection last night for the murders of her husband and stepson in Pittsylvania County, the first execution of a woman in Virginia since 1912. Lewis, 41, was pronounced dead at 9:13 p.m., Larry Traylor, spokesman for the Virginia Department of Corrections, announced outside the prison. Minutes earlier, given a chance to make a last statement, Lewis said: "I just want Kathy to know I love you and I'm very sorry."
The murders left Lewis' stepdaughter, Kathy Clifton, the only surviving member of her family.
At 9:09 p.m., the curtain opened and Lewis was asked whether she had a last statement. She asked if "Kathy" was present, presumably referring to Kathy Clifton, the daughter and sister of the two murdered men.
Clifton had said earlier that she and her husband would attend the execution. Family witnesses view from a private room; corrections officials said they did not respond to Lewis' question.
The first of three chemicals then began flowing. Lewis' left foot had been moving as if she were tapping it, but the movement quickly stopped. She was pronounced dead at 9:13 p.m. and the curtains were redrawn, again blocking the view.
Outside the prison, about a dozen people stood in protest. They were outnumbered by about three dozen members of the media, including reporters from Great Britain and Italy.
Lou Hart, who said he was a Quaker from Charlottesville, said it was his first time to stand outside the prison. "I'm not against every death penalty, but I am against most," he said. "This one bothered a lot of people because of the harshness of the penalty."
Longtime death-penalty foe Annette Blankenship of Colonial Heights said she and Lewis had been corresponding for the past several years.
"I have two sons. And seeing this, I really feel bad -- when I saw her son, it just tore me up," she said. Lewis had a grown son and daughter and a 14-month-old grandson.
After the execution, Rocap said: "Tonight the machinery of death in Virginia extinguished the childlike and loving spirit of Teresa Lewis."
He said she met with both of her children yesterday and wrote letters to both of them.
The execution was just the 12th of a woman -- compared with more than 1,200 for men -- since the death penalty resumed in the United States in 1977. The rare event drew attention, and criticism, from across the nation and abroad.
Lewis was sentenced to death in 2003 for the Oct. 30, 2002, murder-for-hire slayings of her husband and stepson. Using sex and promises of money, she persuaded two men to kill for her in a failed effort to gain $250,000 in life insurance.
Julian Lewis, 51, and C.J. Lewis, 25, were hit with multiple shotgun blasts in their beds while Teresa Lewis stood by in the kitchen of the family trailer early that morning. As her husband was dying, she took his wallet, split the money inside it with the gunmen, and then waited 45 minutes to call for help.
The shooters, Matthew Shallenberger, who was her lover, and Rodney Fuller, each were sentenced to life. The evidence led the judge to deem Lewis "the head of this snake," and he sentenced her to death.
The European Union's U.S. delegation, concerned about Lewis' mental capacity, sent a letter this month to Gov. Bob McDonnell asking that he commute the sentence to life. Iranian officials, stung by criticism over a woman convicted of adultery there and sentenced to death by stoning, blasted the West this week for hypocrisy.
The governor's office had no comment.
Those asking that her life be spared included Amnesty International, best-selling author John Grisham, religious and anti-death-penalty groups, and thousands of people who signed petitions.
McDonnell twice turned down clemency pleas, most recently on Monday. He noted that no professional evaluation of Lewis ever found she met the medical or legal definition of mental retardation.
Her lawyers contended that her low IQ, a personality disorder and addiction to pain medication made it impossible for her to have been the mastermind of the crime.
Lewis' lawyers and supporters also argued that she should have received the same sentence as the shooters.
On Tuesday, the U.S. Supreme Court turned down her appeal.
Lewis spent part of her last day visiting with family, her spiritual adviser and her lawyers, Traylor said.
"Teresa Lewis: the face of gender differences on death row," by Patrik Jonsson. (September 23, 2010)
Teresa Lewis admitted to her role in slaying her husband and stepson for money. That prompted the judge in the 2003 proceedings to call her "the head of this serpent" – a plot that also involved two gunmen, who agreed to sex and cash in exchange for murder.
As Ms. Lewis, a fervent Christian, prepares to face a Virginia execution at 9 p.m. Thursday, she's become another rallying cry for death-penalty opponents, who see the case as a potentially pivotal one in a larger debate about whether a modern nation should be in the business of killing its citizens.
But the fact that Lewis is a woman sets this case apart from many others. In a society where women have sought – and won – equality on nearly every front, the prospect of putting a woman to death still resonates in different ways. And it's not just the American public that might have a tempered view of women who commit capital offenses: Judges and juries tend to respond differently to female killers, too.
Intelligence tests show that Lewis is not bright, but is also not mentally retarded – which would automatically qualify her for commutation. The governor of Virginia and the US Supreme Court have both sided with the Virginia appeals courts, which upheld the conviction and the sentence.
"Nobody questions her guilt in this case. It's just whether or not she's a sympathetic figure," says David Muhlhausen, a senior policy analyst at the conservative Heritage Foundation in Washington. "[Clemency advocates] are playing on the public sentiment that women are less culpable than men."
To be sure, many death-row critics speaking up for Lewis say that they're calling for a commutation not because she's a woman, but because of the "injustice" of the case itself, in which the actual killers got life sentences and the admitted plotter received the death penalty.
"In short, Teresa's documented level of intellectual functioning, cognition and judgment make it far more likely that she was led into the scheme ... and not vice versa," writes human rights activist Bianca Jagger in an appeal to Virginia Gov. Bob McDonnell (R) on The Huffington Post website.
Yet it's clear to many that Lewis's case is being publicized at least in part because she is a woman. She would be the first woman in Virginia to die by the state's death penalty since 1912, many news accounts note.
Condemnations of Lewis's looming execution have come in from all over the world. Iranian President Mahmoud Ahmadinejad, in a speech to Islamic clerics in New York on Monday, said that the Western media's coverage of the Lewis case shows a double standard, when compared with recent coverage of an Iranian woman who had been sentenced to death for adultery, according to the Associated Press.
"Meanwhile, nobody objects to the case of an American woman who is going to be executed," the AP quotes Mr. Ahmadinejad as saying.
The Iranian president may be an imperfect messenger for death-penalty critics in the United States, but he does touch on the role of gender in the case.
"It seems clear in hindsight that both her death sentence and her clemency petition contain gender assumptions that the criminal justice system does not spell out explicitly," writes Dahlia Lithwick in Slate. "She was sentenced harshly because she used sexuality and adultery to mastermind a murder plot against loved ones, and she seeks a reprieve from death because her sexuality made her a victim in uniquely female ways."
While women make up 12 percent of all capital murder suspects in any given year, only 2 percent of death-row inmates are female. Women have made up 1 percent of the 1,168 total executions in the US since 1973.
"Although the Court has addressed the issue of arbitrariness almost exclusively in the context of race, discrimination based on gender is perhaps just as common," says a 2000 report by Phillip Barron in the Radical Philosophy Review, an academic journal. "Nonetheless, gender discrimination continues to be ignored by the judicial process."
One explanation from social scientists: Judges – who are mostly male – are likely to impose softer sanctions on women because a natural male reaction is to protect women. More broadly, the sense that women are physically smaller and men are more violent can play into how the legal system views female killers.
"It's like there's something more valuable about women's lives.... Women are also treated differently when they're victims," Ohio Northern University law professor Victor Streib has said, according to The Seattle Times.
But even if statistics indicate that gender biases can ultimately benefit many female murderers, Lewis's gender may have worked against her. She plotted the death of her husband and stepson, and the final words of her dying husband were included in the indictment against her: "My wife knows who done this to me."
"There is a kind of a play on the notion that you expect women to protect the family, and she is paying to get rid of the family," Professor Streib told the BBC.
"Teresa Lewis put to death for murders of husband, stepson," by Maria Glod. (September 24, 2010)
JARRATT, Va.- Teresa Lewis, who plotted with a lover to kill her husband and stepson for insurance money, became "the first woman executed in Virginia in nearly 100 years Thursday night when she was killed by lethal injection.
Lewis, 41, was a mother who became a grandmother behind bars. Just before she was executed, she asked whether her husband's daughter was in the death chamber. "I want you to know I love you, and I'm sorry for what I did," she said.
Lewis was pronounced dead at 9:13 p.m.
Her case generated passion and interest across the world. The European Union asked Virginia Gov. Bob McDonnell to commute her sentence to life, citing her mental capacity. Iranian President Mahmoud Ahmadinejad cited the case at an appearance in New York.
It began on an October night in rural Pittsylvania County nearly eight years ago, when Lewis prayed with her husband, slipped into bed next to him, and waited for her two conspirators to come inside the door she had left unlocked. The two men showed up about 3:15 a.m., opened fire, then fled.
After the shooting, Lewis waited about half an hour to call 911. Her stepson, Charles "C.J." Lewis, died quickly. But her husband, Julian Lewis, whose body was riddled with bird shot, was moaning when police arrived.
At first, Lewis told officers the shooting was the work of an unknown intruder dressed in black. But she eventually confessed that she and her lover, Matthew Shallenberger, then 22, had killed for money. She led police to Shallenberger and a second gunman and ultimately admitted her crimes in court.
Lewis is the 12th woman to be executed in the United States since capital punishment was reinstated in 1976. The most recent was in Texas in 2005, when Frances Newton was killed by lethal injection for shooting her husband and two children.
Although the fight for Lewis' life did not draw nearly the attention of that surrounding Karla Faye Tucker, the pickax killer turned born-again Christian executed in 1998, more than 5,500 people signed an electronic petition asking McDonnell to spare her.
The Virginia Catholic Conference, the Virginia Conference of the United Methodist Church, and the ARC of Virginia, which advocates for people with mental disabilities, were among the groups that urged that Lewis' sentence be commuted to life in prison.
On Saturday, Lewis was moved to the Greensville Correctional Center, site of Virginia's death house. She requested her final meal: fried chicken, sweet peas with butter, German chocolate cake and Dr Pepper, corrections officials said.
Her supporters never said Lewis was innocent or that she shouldn't be punished. But they said she did not deserve to die because she was borderline mentally retarded, with the intellectual ability of about a 13-year-old, and was manipulated by a smarter conspirator. It was wrong for her to be sentenced to death, they said, when the two men who fired the shots received life terms.
Prison chaplains and fellow inmates supported Lewis, saying she created a ministry of sorts in prison and was a source of strength for other women looking for a maternal figure. Some prisoners said she sang gospel music, calming the ward.
McDonnell, who has supported legislation to expand the use of the death penalty, denied a first clemency request, then a second renewed plea. He said in a statement that no medical expert had determined that Lewis was mentally retarded as defined by Virginia law.
McDonnell said Lewis was an active participant in the crime, giving the men cash to buy weapons and drawing her 16-year-old daughter, who had sex with one of the gunmen, into the plot. Lewis had helped orchestrate an earlier failed plot to kill Julian Lewis and left the door unlocked the night of the shootings.
In 2003, Lewis pleaded guilty to capital murder and was sentenced to death by a judge who called her "the head of this serpent." One shooter, Rodney Fuller, made a deal with prosecutors in return for a life sentence. The judge sentenced Shallenberger to life, saying that was only fair because of Fuller's deal.
But Shallenberger, who dreamed of becoming a mob hit man, later told a former girlfriend in a letter that he had used Lewis because he wanted money to go to New York and become a drug dealer. He committed suicide in prison.
On Friday evening, Kathy Clifton, Julian Lewis' daughter and C.J.'s sister, learned from McDonnell's office that the execution would probably be carried out. After dinner, she went to the cemetery where her father and brother are buried.
"We went just to visit," Clifton said. "That's the last place I saw them."
Clifton said this week that she planned to witness Lewis' execution to honor her father and brother. She has kept scrapbooks documenting the criminal case.
In an interview last month at the Fluvanna Correctional Center for Women, where Lewis was imprisoned for seven years because the state's death row accommodates only men, she said she prayed and read her Bible. She had nightmares about the murders and said she thought of Julian Lewis and C.J. Lewis each day.
"I wish I could give Kathy the world and take away her hurt," Lewis said then. "I can't even imagine the pain she's been through all these years."
"Teresa Lewis to be executed tonight," by Maria Glod. (09/27/10)
Teresa Lewis, who plotted the killings of her husband and stepson, is scheduled to die by injection in Virginia's death chamber Thursday night. She would be the first woman the state has executed in nearly 100 years.
The U.S. Supreme Court and Virginia Gov. Robert F. McDonnell (R) both have declined to halt the execution, which is set to be carried out at 9 p.m. at Greensville Correctional Center in Jarratt.
Lewis, 41, was condemned to death for plotting the 2002 killings of Julian Lewis and his son, Charles “C.J.” Lewis, to collect insurance money. Her two conspirators, the men who fired the deadly shots, were sentenced to life terms.
Lewis’s supporters have pleaded for her to be spared, saying she is borderline mentally retarded and was manipulated by a smarter conspirator. Her punishment, they say, should not be harsher than that of the triggermen.
Lewis's case has generated international interest. In a letter this month to McDonnell, the European Union asked the governor to commute her sentence to life, citing Lewis's mental capacity. And Iranian President Mahmoud Ahmadinejad accused Western media of having a double standard in reporting the execution, comparing it to the coverage of a woman in Iran who was sentenced to be stoned to death for adultery.
But prosecutors say Lewis was a mastermind of the deadly plan, giving the men money to buy the weapons and orchestrating an earlier failed attempt to have her husband killed.
“Instead of pulling a trigger on a gun, she pulled a couple of young men in to pull the trigger for her,” Pittsylvania County Commonwealth’s Attorney David Grimes told a judge at the time.
A woman was last executed in the United States in 2005, when Frances Newton was killed by injection in Texas for the fatal shootings of her husband and two young children. Eleven women have been executed nationwide since capital punishment was reinstated in 1976.
Lewis’s supporters said that, during her years in prison, she has expressed deep remorse for her crime and became a counselor to other women.
The following women have been executed in the United States since 1976, when capital punishment was reinstated:
Margie Velma Barfield, by injection on Nov. 2, 1984 in North Carolina. Barfield confessed in court to poisoning four people, including her mother. She was convicted in 1978 of using ant and roach poison to kill her fiance, a tobacco farmer.
Karla Faye Tucker, by injection on Feb. 3, 1998 in Texas. Tucker and a friend killed a man and woman in 1983. Tucker used a pickax.
Judy Buenoano, in the electric chair March 30, 1998 in Florida. She was executed for the arsenic poisoning of her husband in 1971, but also drowned her paralyzed son.
Betty Lou Beets, by injection on Feb. 24, 2000 in Texas for fatally shooting her fifth husband. Beets also was convicted of shooting and wounding her second husband and was charged, but never tried, in the shooting death of her fourth husband.
Christina Riggs, by injection on May 2, 2000 in Arkansas for suffocating her two children.
Wanda Jean Allen, by injection on Jan. 11, 2001 in Oklahoma. She was condemned for killing her lesbian lover. She also served two years for fatally shooting a childhood friend.
Marilyn Plantz, by injection on May 1, 2001 in Oklahoma. She was convicted of hiring two men to beat and burn her husband.
Lois Nadean Smith, by injection Dec. 4, 2001 in Oklahoma. Smith killed her son’s ex-girlfriend.
Lynda Lyon Block, in the electric chair on May 10,2002 in Alabama for the 1993 murder of a policeman.
Aileen Wuornos, by injection Oct. 9, 2002 in Florida. Wuornos was a prostitute who killed six men.
Frances Newton, by injection Sept. 14, 2005 in Texas for the fatal shootings of her husband and two children.
"Teresa Lewis's execution and the reaction to women on death row."
Powell murdered one woman, raped another and was executed in the electric chair in March. Walker killed two men in premeditated murders. He died by injection in May. Both were executed in Virginia.
Virginia death row inmate Teresa Lewis did not commit any murders with her own hands. But she has appeared 29 times on the Post's website in the last 60 days. She has been a Google trending topic on the web.
Best-selling author John Grisham has called her execution unjust. The European Union asked the Virginia governor to commute her sentence to life. Bianca Jagger asked for clemency. Even Iranian President Mahmoud Ahmadinejad weighed in on Lewis, accusing the western media of having a double standard in reporting Lewis' execution, compared to the coverage of a woman in Iran who was sentenced to be stoned to death for adultery.
Walker, Powell and Lewis all were convicted of murder. All three were sentenced to die in Virginia. Why then has there been such a vast difference in response to their executions?
Lewis, 41, was condemned to death for plotting the 2002 killings of her husband Julian Lewis and his son, Charles "C.J." Lewis, to collect insurance money. She died by lethal injection at 9 EST tonight. The two men she conspired with to commit the killings were sentenced to life imprisonment.
Lewis' case has garnered attention in part because she did not pull the triggers that killed the two men and because her low IQ misses the mark by two points that would exempt her from death. Anyone with less than a 70 IQ cannot be executed; Lewis has an IQ of 72. But above all, Lewis's case has drawn attention because women on death row are a rarity.
Out of 3,261 people on death row in the United States, only 61 are women. Since 1976, the year the death penalty was reinstated in the U.S., there have been 1,226 executions. Lewis became only the 12th woman, and the first executed in Virginia this century.
It is not just that women commit fewer murders. Fewer receive the death penalty and even fewer are actually executed. According to the nonprofit Death Penalty Information Center, women account for 10 percent of murder arrests, but only one percent of executions.
Richard Dieter, of the Death Penalty Information Center, said that though women are more rarely given the death penalty, their gender can be a detriment in their cases. "When their crime seems to cross a certain line of expectation for women, they are treated more harshly," he said in a phone interview. He thinks that in order to justify a women's execution, prosecutors and judges must characterize the killer as "beyond belief and beyond the pale."
"You see these epitaphs, 'monster...' 'head of the serpent..." he said.
Virginia Gov. Bob McDonnell (R) declined to stay Lewis' execution. He said he did not take her gender into consideration.
What do you think? Do women get different treatment on death row? Why?
"Watching Teresa Lewis die," by Anita Kumar. (September 24, 2010; 12:11 PM ET)
Veteran Washington Post staff writer Maria Glod was a media witness to the execution of Teresa Lewis on Thursday night. Lewis was the first woman executed by Virginia in nearly 100 years. Here is her account of the event:
Three weeks ago I met convicted murderer Teresa Lewis in prison. Her husband and stepson died because of her, and she wept. She told me was scared that her daughter hated her, and that she longed to see her baby grandson grow up. We were separated by glass and her wrists were cuffed, but she tucked her fingers through the narrow slot in the window and reached out to grasp my hand.
On Thursday night, I watched her die.
I volunteered to be a media witness to Lewis's execution because I believe that, if our society chooses to execute murderers, we must face that choice and the details of how we carry out those killings. It is not for me to say whether the punishment was just, but it's my job to describe what I saw.
Still, in the days before, I dreaded going.
I don't pretend I knew Teresa Lewis. We only talked once for an hour or so. But it was enough time to know she understood she had done terrible things, but there were people she loved who loved her. It is unsettling and upsetting to plan a day around a death that will occur at a predetermined time, in a predetermined place before an audience.
Virginia carries out its executions at 9 p.m. to give the condemned most of their last day to see family. I entered the prison at 7 p.m. with three other media witnesses. We met up with eight citizen witnesses, volunteers who carry out a task the law requires. Guards searched us and officials gave a description of the history of executions in Virginia. Teresa's would be the 344th since October 1908, they told us.
We each signed a brown leather-bound witness book. I noticed that Teresa's lawyer, Jim Rocap, a man who fought to save her and I knew would be devastated by her death, had come in before us. Her spiritual adviser, a prison chaplain, was inside too.
About 8:40, we took a prison van to the death chamber, a sterile, drab, cinder-block area. We sat on plastic chairs in a tiered viewing room. Below us, separated by windows, was the gurney with white sheets and brown leather straps where Teresa Lewis would die.
To our right was a second viewing room. I could not see inside, but I knew that Kathy Clifton, a gracious and soft-spoken woman whose father and brother were murdered in a plot Teresa Lewis was a key part of, had planned to be there with her husband, mother-in-law and a close friend.
An execution brings all the pain and humanity of a tragic crime to one place and I felt that weight as I sat looking into the death chamber.
Clifton, who had lost her mother to illness and another brother in a car crash, had most of the rest of her tight-knit family wiped out the night Teresa Lewis let gunman in the house. I've never lost someone close to me at the hands of another and was very aware I couldn't comprehend the pain Clifton has endured. She told me she hoped the death sentence would bring her some peace and a way to move forward, and I hoped it would.
But Teresa Lewis's death also would also hurt people. She had a daughter, a son and a grandson. Rocap, Teresa's lifeline to the outside world for years, had come to know her as a gentle and simple person who was pulled into the crime by a conspirator. Prison chaplains and inmates told me that Teresa was a dear friend who mattered to them.
There were about a dozen officials or guards in the death chamber, all waiting to carry out a quick and efficient death. The entire time, someone held a red phone that went straight to Gov. Robert McDonell's office in case there was a last-minute reprieve. Another official had an off-white phone that went to the warden's office in case the U.S. Supreme Court intervened. I knew neither would happen.
We all sat in eerie silence, waiting.
At 8:50, Rocap and Chaplain Julie Perry walked in. They looked crushed and exhausted. Perry, who would stand the entire time, held what I supposed was a Bible. She clasped Rocap's hand.
The next five minutes were the hardest. We all watched minutes tick by on a clock over the door Teresa would enter. I looked back. Rocap's eyes were shut and he looked pained. I wondered what Kathy Clifton felt.
Teresa Lewis, wearing a light blue shirt, dark blue pants and flip flops, came through the door at 8:55, ushered by guards in blue uniforms who held her elbows. She looked toward us with a gaze that seemed dazed and anxious.
Within moments she was flat on the gurney. Several guards strapped her down. I never saw her face again.
At 8:58, officials drew a dark blue curtain across the window. Behind it, they attached the intravenous lines. We could not see or hear anything. Perry wept.
At 9:09 the curtain opened. Teresa's arms were now extended from her body with strips of white tape holding the tubes in. The warden asked Teresa if she had any final words. Her speech sounded garbled at first, but officials later told us she asked if Kathy Clifton was there.
Then she said clearly: "I just want Kathy to know that I love you and I'm very sorry."
The chemicals began flowing. In Virginia, the first is Thiopental Sodium, which renders the person unconscious. The second, Pancuronium Bromide stops breathing. The final chemical, Potassium Chloride, stops the heart.
Teresa Lewis's feet and toes twitched, then they stopped. I couldn't tell when she died.
"Teresa Lewis Appeared Fearful as She Entered Virginia's Death Chamber; Her Last Words Were an Apology to Daughter of the Man She Had Killed, by Ariane de Vougue and Michael S. James. (09/24/10)
Teresa Lewis spent her last days praying and singing hymns, but she appeared frightened and tense as she entered Virginia's death chamber.
Lewis, 41, died by injection at 9:13 p.m. Thursday at the Greensville Correctional Center in Jarratt, Va., according to The Associated Press.
Lewis' final words were a message for the daughter of the husband she had killed.
"I just want Kathy to know that I love her, and I'm very sorry," she said.
Her death brought an end to the debate over whether Lewis deserved to die, with supporters saying she was borderline mentally retarded, despite the prosecution's claim that she was the mastermind of her husband's and stepson's murders.
Her attorney, James Rocap III, said Lewis was peaceful before going to her death and had been praying and singing in the days leading up to her execution.
"We thought that we were supposed to be helping her, while she was actually helping us," Rocap said.
But when Lewis entered the death chamber to be strapped onto a guerney and injected with the lethal cocktail of drugs, her jaw was visibly clenched. She looked around tensely and appeared frightened, witnesses reported.
In the chamber with her were 14 corrections officers who assisted her onto the guerney and secured her to it with heavy leather straps.
Moments before her execution, Lewis asked if her husband's daughter -- her stepdaughter -- was near. She was. Kathy Clifton was in an adjacent witness room blocked from the inmate's view by a two-way mirror. Lewis then gave her final words of farewell to her.
As the drugs flowed into her body, her feet bobbed but she otherwise remained motionless. A guard tapped her lightly on the shoulder, reassuringly, as she slipped into death.
Lewis was sentenced to die for concocting a grisly plan to hire two hit men to kill her husband and stepson in October 2002. Lewis stood by while Julian Lewis and son Charles Lewis were shot at close range as they slept.
She had promised the killers a cut of a life insurance policy to carry out the murders. Both triggermen were sentenced to life in prison, and one committed suicide in 2006.
Despite the controversy surrounding her execution, the Supreme Court refused to hear her appeal earlier this week, and Virginia Gov. Bob McDonnell had denied her petitions for clemency.
On the website Save Teresa Lewis, run by supporters who tried to have her death sentence commuted, a message was posted in which Lewis thanked them for their work on her behalf. They also posted a farewell Lewis had recently written to fellow inmates.
"Man wants me to die, but I'm not worrying over this, I'm trusting Jesus," she wrote. She urged the prisoners to turn to Jesus promising, "He will forgive you of all your sins and He will bring you into His loving arms."
Those opposed to Lewis' death sentence said the fact that she was a woman should not allow her to be treated differently. What they found troublesome was that Lewis, with an IQ of 72, was borderline mentally retarded and received a more severe sentence than those who pulled the trigger.
"It would be grossly unfair if the one person among those involved who is probably the least danger to society, who is certainly no more guilty than those who carried out the murders and whose disabilities call out for mercy, is the only person scheduled to die for this crime," said Richard Dieter, the executive director of the Death Penalty Information Center.
"Why," he wrote in an op-ed article for The Washington Post, "did the triggermen get life without parole while Lewis received a sentence of death? Ostensibly, it is because she was the ringleader and thus more culpable. But what could make a killer more culpable than repeatedly shooting a sleeping victim?"
According to court papers, the trial judge who heard Lewis' case said that her sentence was made more difficult by the fact that she had pleaded guilty to her crimes and led the police to the triggermen. But he found she had engaged in the "cold blooded, pitiless slaying of two men, horrible and inhumane." And that she had done it for profit, searching her husband's wallet for money as he lay dying.
In March or April 2000, Teresa Wilson Bean Lewis met Julian Lewis at Dan River, Inc., where they were both employed. Julian was a recent widower, having lost his wife and the mother of his three adult children to an extended illness in January of that year. In June 2000, Lewis moved in with Julian. They married soon thereafter and Lewis quit working.
In December 2001, Julian’s son, Jason Clifton Lewis, was killed in an accident. Julian received life insurance proceeds in excess of $200,000, which he placed in an account with Prudential Securities that was only accessible by him. In February 2002, Julian purchased five acres of land and a mobile home where he and Lewis began to live. In August 2002, Julian's son CJ, an Army reservist, was required to report for active duty with the National Guard. Prior to leaving, CJ made estate arrangements, including executing a will and obtaining a life insurance policy in the amount of $250,000. He designated Julian as his primary beneficiary and Lewis as his secondary beneficiary.
It was also in the fall of 2002 that Lewis first met Matthew J. Shallenberger and Rodney L. Fuller, who would become her co-conspirators in a plot to murder her husband and stepson. Lewis met Shallenberger, who was 22 years old, and Fuller, who was 19 years old, at a Wal-Mart store. Before long, Lewis began a sexual relationship with Shallenberger, who was 11 years her junior. On at least one occasion, however, Lewis performed a "lingerie show" for both men, and had sexual intercourse with Fuller as well as Shallenberger. On another occasion, Lewis took her 16-year-old daughter with her to meet the men at a parking lot. Lewis introduced her daughter to Fuller and the two had sexual intercourse in one car while Lewis and Shallenberger had sexual intercourse in the other vehicle.
At some point, Lewis and Shallenberger began discussing a plan to kill Julian and share the money that Lewis would get upon his death. The first plan was put into motion on October 23, 2002. Lewis withdrew $1,200 from the bank and gave the money to the men to purchase the necessary guns and ammunition. Shallenberger gave the money to an acquaintance who purchased two shotguns for the conspirators. Lewis told Shallenberger and Fuller the route that Julian would travel from work to home that evening. The plan was for the men to stop and kill Julian on the roadway and make the murder look like a robbery. The presence of another vehicle close to Julian during the trip home, however, made execution of the first plan impossible.
Undeterred, the conspirators quickly hatched a second plan to kill Julian. They also added a plan to murder CJ when he returned home for his father’s funeral in order to share the proceeds from his life insurance policy as well. However, when Lewis learned that CJ would be visiting at the mobile home on the evening of October 29-30, 2002, the decision was made to murder Julian and CJ at the same time.
In the early morning hours of October 30, 2002, Shallenberger and Fuller, armed with the shotguns purchased with Lewis’ money, entered the mobile home through a rear door that Lewis had left unlocked for them. Upon entering, Shallenberger woke Lewis, who had fallen asleep next to Julian while waiting, and told her to get up. She went into the kitchen where she waited while Shallenberger shot Julian several times with the shotgun. She then reentered the bedroom, where Julian lay mortally wounded but still alive, retrieved Julian’s pants and wallet, and returned to the kitchen. Meanwhile, Fuller went to CJ’s bedroom and shot him several times with the second shotgun. When Fuller returned to the kitchen, he saw Lewis and Shallenberger removing the money from Julian’s wallet. Apparently there was some uncertainty as to whether CJ was dead, so Fuller took Shallenberger’s shotgun and returned to shoot CJ two more times. After retrieving some of the shotgun shells, Shallenberger and Fuller left the mobile home.
For approximately 45 minutes after the last shots were fired, Lewis remained in the mobile home with the victims. She made at least two telephone calls to other persons, but did not call authorities. At approximately 3:55 a.m., a 911 operator fielded a call from Lewis reporting that a single intruder had entered her home at approximately 3:15 or 3:30 a.m., and shot her husband and stepson. She told the 911 operator that the intruder entered the bedroom where she was sleeping with Julian and told her to get up. She claimed that Julian told her to go into the bathroom, where she hid while the intruder fired four or five times. Sheriff’s deputies arrived at the Lewis home at approximately 4:18 a.m. Lewis told the deputies that her husband’s body was on the floor in the master bedroom and that her stepson’s body was in the other bedroom. When the officers entered the master bedroom, however, they found Julian badly wounded, but still alive and talking. He "‘made slow moans’ and uttered, ‘Baby, baby, baby, baby.’" Julian told the officers his name and, when asked "if he knew who had shot him, . . . responded, ‘My wife knows who done this to me.’" While trying to assist the victims, one deputy observed Lewis talking on the telephone and heard Lewis "state, ‘I told CJ about leaving that back door unlocked.’" Julian died shortly thereafter, while still in the mobile home.
When informed that Julian and CJ were dead, Lewis did not appear to the officers to be upset. Investigator Barrett and Investigator Isom with the Pittsylvania County Sheriff’s Office interviewed Lewis during their investigation of the murders. During one interview, Lewis claimed that Julian had physically assaulted her a few days before the murders, but denied killing him, having him killed, or knowing who killed him. Lewis told the investigators that she and Julian had talked and prayed together before he went to bed that night, and that she told him she was going to the kitchen to pack his lunch for the next day. A lunch bag was found in the refrigerator with an attached note stating "’I love you. I hope you have a good day.’" She had also drawn a picture of a "smiley face" on the bag and inscribed "‘I miss you when you’re gone,’" in the smiley face.
Later that morning, Lewis called Mike Campbell, Julian’s supervisor at Dan River. She told Campbell that Julian had been murdered and asked for Julian’s paycheck. Campbell told Lewis that she could pick it up after 4:00 p.m. that day. The following day, Lewis contacted Campbell again, apologized for not picking up the check the day before, and again asked when she could get it. Campbell later testified that Julian brought his lunch to work in a blue and white cooler and did not use lunch bags. He also testified that when he went to pay his respects to Lewis in person a couple of days later, Lewis told him that Julian had bought her a red sports car before he was killed, but that she was going to trade it along with one of his vehicles for a larger car. She also told Campbell that she planned to sell Julian’s land and mobile home.
Also on the day of the murders, Lewis spoke with Lieutenant Michael Booker, CJ’s commanding officer. When Lt. Booker called Lewis to express his condolences, Lewis told him that she was "‘still in shock’" and that the police had been questioning her. She told Lt. Booker that "there is no way I would have killed my husband and stepson. They guessed that because I didn’t get shot that I might have done it. My husband told me to go into the bathroom, so I did." Lewis then informed Lt. Booker that she was the secondary beneficiary of CJ’s military life insurance policy and that she had been told that she would be contacted within 24 hours of his death with information regarding when she would get her money.
On November 4, 2002, Lewis contacted Lt. Booker and requested CJ’s personal effects and a photograph of CJ that she had given Lt. Booker for a memorial service. Lt. Booker told Lewis that he would return the photograph to her, but that the personal effects would be given to CJ’s sister Kathy Clifton, his immediate next of kin. Lt. Booker testified that Lewis became "very angry" and "insisted that [Lt. Booker] bring them to her as soon as possible." When Lt. Booker refused, Lewis again asked about the life insurance money and "reminded him that she was the secondary beneficiary." When Lt. Booker told Lewis that she would still be entitled to the life insurance, Lewis responded, "‘that’s fine, Kathy can have all of his effects as long as I get the money.’"
Julian’s daughter Kathy also testified about her dealings with Lewis immediately after the murders. Lewis told Kathy that she had waited 45 minutes after the murders to call 911, and that she called her ex-mother-in-law, Marie Bean, and her best friend, Debbie Yeatts, prior to doing so. Lewis also called Kathy on the night of the murders and told her that she had already gone over the necessary arrangements with the funeral home. Lewis told Kathy that all she needed were the names of some of Julian’s family members, and that Kathy need not even come to the funeral home the following day. When Kathy joined Lewis at the funeral home the next day anyway, she recalled Lewis saying that "she was the sole beneficiary of everything" and that "money was no object."
On the day of the funerals, Lewis called Kathy prior to the services and told her "that she had just left the hairdresser’s and had gotten her nails done, and that she had bought a beautiful suit to wear to the funeral." She also offered to sell Julian’s mobile home to Kathy. In addition to her attempts to obtain Julian’s paycheck, Lewis also made a quick attempt to withdraw $50,000 from Julian’s Prudential Securities’ account by presenting a forged check made payable to her at the bank. The bank employee refused to cash the check because the signature did not match Julian’s signature in the bank’s records.
Finally, and consistent with Lewis’s immediate attempts to obtain the cash payoff from the murders, the investigators learned that Lewis was aware prior to the murders that she would handsomely profit from the deaths of her husband and stepson. She had earlier told an acquaintance that she was "just ‘using Julian for money and that he would buy her things.’" Another acquaintance overheard her saying a couple of months before the murders that "if Julian died, ‘she would get the money, and if CJ was killed and Julian was dead, she would get that money, too.’"
On November 7, 2002, Lewis, presented with the rapidly accumulating evidence against her, confessed to Investigator Isom that she had offered Shallenberger money to kill Julian. Lewis told Isom that she met Shallenberger at Wal-Mart and let him into their home on the night of the murders. However, she falsely claimed that Shallenberger shot both Julian and CJ before taking the money and leaving the mobile home. She told Isom that Shallenberger had expected to receive half of the insurance proceeds, but that she had changed her mind and decided to keep all of the money. Lewis then accompanied Isom to Shallenberger’s residence, where she identified him as her co-conspirator.
The following day, Lewis asked to speak with Isom and admitted that she had not been totally truthful the day before. Lewis confessed Fuller’s involvement in the murders and advised Isom that her minor daughter had assisted during the planning process as well.
During the ensuing search of the mobile home where Shallenberger and Fuller resided, officers recovered two pairs of rubber household gloves containing primer residue caused by the firing of a firearm shell and two shotguns, one of which was determined to have fired the shotgun shells found in Julian’s bedroom.
According to the autopsies, Julian and CJ both died as a direct result of the multiple shotgun wounds. Julian was struck in "the upper left arm, shoulder, abdomen, pelvis, penis, thighs, legs, arms, and chest. The bullets destroyed or removed large areas of tissue in his upper arm, shoulder, and upper chest, and fractured several ribs." In addition, "plastic wadding from a shotgun shell was lodged in Julian’s left lung tissue." However, none of Julian’s injuries were immediately fatal, and Julian instead "died from extensive blood loss" approximately 45 minutes to an hour after the shootings. CJ was struck in the "back, abdomen, chest, neck, left upper arm and shoulder, elbow, left thigh, face, and forearm," but died almost immediately from his wounds.
Shortly after Lewis was charged for her participation in the murder-for-hire plot, the trial judge appointed attorneys David Furrow and Thomas Blaylock to represent her, both of whom had experience in capital murder cases. After investigating the case, counsel became extremely concerned about the heinous facts surrounding this intimate, murder-for-hire and -profit crime and their dim prospects for preventing a death penalty verdict by a Pittsylvania County jury. Given their knowledge of the assigned trial judge and of juries generally in the county, they became convinced that Lewis’ best chance of avoiding the death penalty would be to submit to sentencing by the trial judge, who had never imposed the death penalty on a capital defendant and who would be sentencing Fuller, a triggerman, to life imprisonment under an agreement he had made with the prosecution for his cooperation against Shallenberger and Lewis. Accordingly, counsel recommended that Lewis plead guilty and invoke her statutory right to be sentenced by the trial judge.
Prior to the guilty plea proceeding, a competency assessment of Lewis was performed by Barbara G. Haskins, M.D., a board-certified forensic psychiatrist, who also arranged for an IQ test to be performed by Dr. Bernice Marcopulos. According to the testing, Lewis had a Full Scale IQ of 72, with a Verbal IQ of 70, and a Performance IQ of 79. This placed her in the borderline range of intellectual functioning, but not at or below the level of mental retardation. Dr. Haskins reported that Lewis was competent to enter the pleas and able to understand and appreciate the possible penalties. At the guilty plea proceeding, the trial judge questioned Lewis and ensured that she understood that she was waiving her right to a jury and that she would be sentenced to either life imprisonment or death by the trial judge. Satisfied that Lewis was entering the plea voluntarily, knowingly, and intelligently, the trial judge accepted the plea and scheduled the sentencing proceeding.
At the sentencing proceeding, the Commonwealth relied primarily upon a written summary of evidence that would have been presented against Lewis had the case proceeded to a jury trial, and sought the death penalty based upon Virginia’s statutory aggravating factors of vileness (based upon both depravity of mind and aggravated battery to the victims) and future dangerousness. In mitigation, the defense presented evidence that Lewis had no previous history of violence and had only a single, non-violent conviction for prescription forgery for which she was on probation. Lewis’ probation officer testified that Lewis had been compliant with the terms of her probation and had never demonstrated any type of violence. The probation officer who prepared the presentence report also testified that Lewis seemed remorseful when he interviewed her. A long-time family friend and schoolmate of Lewis’, who was engaged to be married to Lewis’ sister, testified that he had never observed Lewis behaving in a violent manner. Finally, an official at the Roanoke City Jail provided a statement that there had been no incidents of violence involving Lewis, nor even minor infractions while she was incarcerated there awaiting trial.
Lewis’ father, brother and sister were in the courtroom during the sentencing, and the trial judge was advised that they would all testify that they loved and cared about Lewis and did not want her to receive the death penalty. At the conclusion of the sentencing proceeding, the trial judge rejected the future dangerousness aggravator, based upon the lack of any significant criminal history or violent behavior. However, he imposed sentences of death for the capital offenses based upon the vileness aggravator, finding that Lewis’ conduct involved both depravity of mind and aggravated battery. The judge called her "the head of this serpent." David Grimes, the prosecutor who saw the scene shortly after the crimes occurred said, "I can frankly say that Teresa Lewis is as evil a person as I've ever met. I would wager with some assurance that you wouldn't find anyone who knew her before this event occurred who thought she was mentally retarded or had a limited mentality -- that it would ever cross their minds."
UPDATE: Teresa Lewis was executed for the for-profit murders of her husband and stepson. Asked if she had last words, Lewis said, "I just want Kathy to know I love her. And I am very sorry." She was referring to her stepdaughter, Kathy Clifton, daughter of murder victim Julian Lewis and sister of victim C.J. Lewis. Kathy witnessed the execution.
Teresa Lewis was executed on September 23, 2010 at 9PM at the Greensville Correctional Center in Jarratt, Virginia.
On behalf of Teresa, we thank the thousands of supporters who signed the petition to commute her sentence to life in prison and who urged the Governor of Virginia to show mercy. She was deeply touched by the support of so many people.
Teresa wrote a message to her fellow inmates at Fluvanna about a month ago. It was read at a prison service. Here is an excerpt:
". . . Man wants me to die, but I’m not worrying over this, I’m trusting Jesus . . .
Please my precious friends in Christ if you don’t know our awesome Savior, and father, please let Him in your heart;
He will forgive you of all your sins and He will bring you into His loving arms
and He will bless you and guide you and show you so much,
He loves you more than you’ll ever know!
Trust Him! Believe in Him!"
Why Teresa Does Not Deserve The Death Penalty:
•The Triggermen Got Life
Clemency process
•Petition submitted on Aug. 25, 2010
Teresa's Videos
•Teresa sings - I Need A Miracle
Virginians for Alternatives to the Death Penalty
Name: Teresa Lewis
Teresa Wilson Bean Lewis (April 26, 1969 – September 23, 2010)[1] was an American murderer and the only woman on death row in Virginia prior to her execution.[6]
Lewis was sentenced to death for hiring two men to kill her husband, Julian Clifton Lewis, Jr., and her stepson, Charles J. Lewis, in their Pittsylvania County home on the night of October 30, 2002.[7] Her stepson had a $250,000 life insurance policy from his military service, with Julian Lewis as the primary beneficiary and Lewis as the secondary beneficiary.[8] The motive for the murder on the eve of the stepson's deployment, according to a later interview, was to collect the life insurance money. Her two accomplices, Matthew Jessee Shallenberger, then 21, and his former roommate and friend Rodney Lamont Fuller, then 19, were sentenced to life terms at their separate trials. Schallenberger committed suicide in prison in 2006.
A judge deemed Lewis the crime's mastermind and called her "the head of this serpent". Barbara G. Haskins, a court appointed, board-certified forensic psychiatrist, stated that "Cognitive testing showed a Full Scale IQ of 72. Verbal IQ was 70, and Performance IQ was 79." Dr. Haskins also stated that Teresa Lewis was and is able to make a plea agreement and enter pleas.[9] Lewis' lawyer stated that “She’s not mentally retarded, but she is very, very close to it." Lewis's daughter, Christie Lynn Bean, served five years because she knew about the plan but remained silent.[10] The case attracted debate over capital punishment for women involved with murder.[11]
Guilty plea and sentencing
Under Virginia law, multiple murders (within a 3 year period) are subject to the death penalty. Lewis pleaded guilty to capital murder and was sentenced to the death penalty. The two co-conspirators, who actually did the shooting, were sentenced to life in imprisonment. Under Virginia law, the condemned is granted an automatic review by the Virginia Supreme Court.[12] The Virginia Supreme Court rejected the argument that it was unfair to execute Lewis while the co-conspirators got life sentences, and it rejected Lewis' challenges to the Constitutionality of Virginia's death penalty law.[8] Her attorneys also raised issues with the US Supreme Court[13][14] to stay the execution, which were denied.
Execution
Lewis was executed on September 23, 2010, at 9 p.m. by lethal injection, at the Greensville Correctional Center in Jarratt.[15][16] This made her the 12th woman to be executed in the U.S. since the death penalty was reinstated in 1976[7][17] and the first woman in the state of Virginia executed since 1912 (the previous woman executed was Virginia Christian who died in the electric chair). Lewis was the first woman in Virginia to be executed by lethal injection.[18][19] Lewis was also the first woman to be executed in the U.S since Frances Newton in 2005,[20] and the second woman to be executed since the noted execution of serial killer Aileen Wuornos in 2002 in the state of Florida.[7] Fox News reported that 7,300 people had contacted Virginia governor Bob McDonnell to request that he commute Lewis' sentence to life imprisonment.[21] On September 17, 2010, McDonnell decided to not stop Lewis's upcoming execution,[22] stating: "Having carefully reviewed the petition for clemency, the judicial opinions in this case, and other relevant materials, I find no compelling reason to set aside the sentence that was imposed by the Circuit Court and affirmed by all reviewing courts".[22] An appeal was filed to the Supreme Court of the United States for a stay of execution and subsequently rejected on September 21, 2010.[20] Lewis's supporters also stated that "Lewis is deeply remorseful and has been a model prisoner, helping fellow female inmates cope with their circumstances."[23][24] Lewis herself had stated that "I just want the governor to know that I am so sorry, deeply from my heart. And if I could take it back, I would, in a minute ... I just wish I could take it back. And I'm sorry for all the people that I've hurt in the process."[24]
Public reaction
The prospect of Lewis's execution started a debate in both the U.S and other parts of the world concerning the death penalty in general, and the sentences for women in murder cases more specifically.[25][26] Lewis's thousands of supporters, including the thriller writer John Grisham, argued that her death sentence should be commuted to life imprisonment.[11] Lewis's low IQ was also a matter of discussion, with supporters citing this as a reason she should not have been sentenced to death.[26]
Iranian president Mahmoud Ahmadinejad commented about the case in comparison to media coverage about the stoning of condemned woman Sakineh Mohammadi Ashtiani.[27] He criticized Western media for having a double standard in launching a "heavy propaganda" campaign against the case of Ashtiani, who had been sentenced to be stoned to death for adultery, but failing to react with outrage over the imminent execution of Lewis in Virginia.[27][28] Amnesty International, which opposes the death penalty under all circumstances, also spoke out against the death penalty in the case of Lewis.[24]
Born: Teresa Wilson Bean Lewis
Lewis v. Commonwealth, 267 Va. 302, 593 S.E.2d 220 (Va. 2004) (Direct Appeal).
Background: Defendant was convicted in the Circuit Court, Pittsylvania County, Charles J. Strauss, J., of two counts of capital murder for hire, of which defendant was sentenced to death to for both counts, conspiracy to commit capital murder, robbery, and use of firearm to commit the murders and robbery.
Holdings: On automatic review of sentence of death, the Supreme Court, Hassell, C.J., held that:
(1) imposition of death sentence was not excessive and disproportionate when compared to similar cases, and
(2) evidence was sufficient to support finding that murder of victims involved depravity of mind, as required to find “vileness” aggravating factor. Affirmed.
HASSELL, Chief Justice.
As required by Code § 17.1-313, we review the sentences of death imposed upon Teresa Wilson Bean Lewis.
I.
On November 20, 2002, the defendant was indicted by a grand jury for the following offenses: capital murder for hire of Charles J. Lewis in violation of Code § 18.2-31(2); capital murder for hire of Julian Clifton Lewis, Jr., in violation of Code §§ 18.2-31(2); conspiracy to commit capital murder in violation of Code §§ 18.2-22 and -31; robbery of Julian Clifton Lewis, Jr., in violation of Code § 18.2-58; use of a firearm to commit the murder of Julian Clifton Lewis, Jr., in violation of Code § 18.2-53.1; use of a firearm to commit the murder of Charles J. Lewis in violation of Code § 18.2-53.1; and use of a firearm to commit the robbery of Julian Clifton Lewis, Jr., in violation of Code § 18.2-53.1.
The defendant pled guilty to these offenses. Before accepting the pleas, the circuit court questioned the defendant and made a determination that her guilty pleas were made voluntarily, intelligently, and knowingly. Additionally, the court considered a competency assessment of the defendant made by Barbara G. Haskins, M.D., a board-certified forensic psychiatrist. Dr. Haskins opined that the defendant had the capacity to enter pleas of guilty to charges of capital murder and had the ability to understand and appreciate the possible penalties that might result from her pleas.
Haskins stated the following in her competency assessment:
“Ms. Lewis is aware of her charges and the possible penalties she is facing (life without parole or death). She knows who her attorneys are and feels comfortable working with them. She is able to provide them with information, and to ask questions.
“Cognitive testing showed a Full Scale IQ of 72. Verbal IQ was 70, and Performance IQ was 79. This places the defendant in the borderline range of mental retardation (Borderline Intellectual Function).”
Haskins opined that Lewis, who had graduated from high school and had completed one year of college, was competent to stand trial, make a plea agreement and enter pleas.
The Commonwealth submitted, and the circuit court accepted, a written summary of the evidence that the Commonwealth would have presented had the case proceeded to a trial. The circuit court scheduled a separate hearing to consider evidence before fixing punishments. The circuit court also received the probation officer's report in the manner prescribed by law.
After considering the evidence adduced during the sentencing hearing and the written summary of the Commonwealth's evidence, the circuit court found that the defendant's conduct was outrageously or wantonly vile, horrible, or inhuman and sentenced her to death for both capital murder offenses. The court fixed her punishments for the remaining convictions as follows: 20 years imprisonment for each conspiracy charge; life imprisonment for the robbery charge; and 13 years imprisonment for the firearms charges.
The court conducted a post-sentencing hearing and clarified its decision regarding the imposition of the sentences of death. The court stated that the defendant's sentences of death were based upon the statutory vileness predicate because her acts reflected a depravity of mind. The court also concluded that the actual murderers had committed aggravated batteries upon each victim and those aggravated batteries were imputed to the defendant.
II.
Julian Clifton Lewis, Jr., had been employed for several years by Dan River, Inc. His first wife, who had been ill for a long time, died in January 2000. In March or April 2000, Julian Lewis met the defendant, who was also employed by Dan River. The defendant began to live with Julian Lewis at his home in Danville in June 2000. Subsequently, Julian Lewis married the defendant.
In December 2001, Julian Lewis' older son, Jason Clifton Lewis, died in a car accident. Julian Lewis was the beneficiary of his son's life insurance policy, and Julian Lewis received proceeds in excess of $200,000. He placed those proceeds in a draft account with Prudential Securities, Inc. The proceeds of the account were accessible only by use of drafts bearing the signature of Julian Lewis.
In February 2002, Julian Lewis purchased a five-acre parcel of land in Pittsylvania County. He also purchased a mobile home and placed it on the property, where he and the defendant resided.
In August 2002, Julian Lewis' younger son, Charles J. Lewis, an Army reservist, was required to report for active duty with the National Guard in Maryland. According to Lieutenant Michael Booker, Charles Lewis' commanding officer, Lewis made estate arrangements in the event he died while on active duty. Charles Lewis executed a will and identified his father as his primary beneficiary and his stepmother, the defendant, as the secondary beneficiary. Charles Lewis obtained a policy of life insurance in the amount of $250,000 payable in the event of his death. He designated his father as the primary beneficiary of the life insurance policy and the defendant as the secondary beneficiary.
In the autumn of 2002, Rodney L. Fuller and Matthew J. Shallenberger met the defendant at a retail store. Prior to this meeting, the defendant did not know these men. After a conversation, Shallenberger and the defendant exchanged telephone numbers and began to communicate frequently. Shallenberger and the defendant discussed the possibility that Shallenberger, with Fuller's help, would kill Julian Lewis, and they would share any insurance proceeds that the defendant might receive.
One day, the defendant and her 16-year-old daughter, Christie Bean, met Shallenberger and Fuller at a parking lot in Danville. Christie, who had never met Fuller previously, had sexual intercourse with him in one car while the defendant and Shallenberger engaged in sexual intercourse in another vehicle. On a later date, Fuller and Shallenberger went to the defendant's home where she performed a “lingerie show” for the men, and she had sexual intercourse with both men.
On October 23, 2002, the defendant met Shallenberger and Fuller at a shopping center in Danville. The defendant went to a bank and obtained $1,200 in cash that she gave to the men to use to purchase firearms and ammunition to kill Julian Lewis. Antwain D. Bennett, an acquaintance of Shallenberger, used the money to purchase three firearms. Two of the firearms were shotguns. Additionally, Bennett purchased ammunition for the weapons.
On that same date, the defendant told Shallenberger and Fuller the route that Julian Lewis traveled from his place of employment to his home. The men planned to kill Julian Lewis and “make the murder ... look like a robbery.” While the defendant remained at her home, the men were “to follow and stop Julian Lewis on the highway and kill him.” The plan, however, was unsuccessful.
Consequently, the defendant, Shallenberger, and Fuller decided to kill Julian Lewis at his home on October 30, 2002. They also decided to kill his son, Charles Lewis, when he returned to Virginia to attend his father's funeral and share the proceeds from Charles Lewis' policy of life insurance. However, when the conspirators learned that Charles Lewis would be with his father at the mobile home on October 30, 2002, they decided to kill him and his father simultaneously.
During the early morning of October 30, 2002, Shallenberger and Fuller drove a vehicle past the Lewis' home about three times. The men did not stop their vehicle because they observed that lights were on in the home. Eventually, Shallenberger and Fuller entered the residence through a rear door that the defendant had unlocked. Each man carried one of the shotguns that had been purchased with the $1,200 cash the defendant had given them. Shallenberger and Fuller awakened the defendant, who was in bed with her husband. Shallenberger told the defendant, “Teresa, get up.” The defendant got out of her bed and walked into the kitchen, and she heard gunshots. Shallenberger shot Julian Lewis several times. The defendant went to the bedroom where her husband lay bleeding, retrieved Julian Lewis' pants and wallet, and returned to the kitchen with Shallenberger.
Fuller entered a room that was occupied by Charles Lewis. Fuller shot Charles Lewis three times. Then Fuller went to the kitchen where he observed the defendant and Shallenberger “pulling money from a wallet.” Fuller told the defendant and Shallenberger that Charles Lewis “wouldn't die.” Fuller got Shallenberger's shotgun and returned to the bedroom occupied by Charles Lewis where Fuller shot him two more times. The men retrieved most of the shotgun shells, and they divided $300 in cash that had been taken from Julian Lewis' wallet.
After shooting the victims, Shallenberger told the defendant that he was sorry she “had to go through something like this; hugged her and kissed her; and the men left.” The defendant waited about 45 minutes after the “last shot was fired,” and she made a telephone call to her former mother-in-law, Marie Bean. Next, she made a telephone call to her best friend, Debbie Yeatts.
On Wednesday morning, October 30, 2002, approximately 3:55 a.m., the defendant placed a telephone call to emergency response personnel in Pittsylvania County. She reported that an intruder had entered her home and shot her husband and his adult son. She stated that both men were dead. She said that she had been in the bed with her husband when an intruder armed with a pistol entered her bedroom and said, “Get up.” Her husband told her to go into the bathroom, and her husband asked the intruder, “What's going on?” The defendant said that her husband was shot four or five times while she was in the bathroom. She reported that the shooting had occurred at 3:15 or 3:30 a.m.
Sheriff deputies Harris Silverman and Corey Webb arrived at the murder scene at approximately 4:18 a.m., 23 minutes after the defendant made the telephone call to the emergency response personnel. The deputies met the defendant at the front door of her home, and she stated that her husband's body was on the floor in one bedroom and that her stepson's body was in another bedroom. When Deputy Webb entered the master bedroom, he learned that Julian Lewis was alive. Julian Lewis “made slow moans” and uttered, “[B]aby, baby, baby, baby.” Deputy Webb asked the victim his name, and he responded, “Julian.” Deputy Webb asked Julian Lewis if he knew who had shot him, and the victim responded, “My wife knows who done this to me.”
While the deputies tried to assist the victims, Deputy Webb observed the defendant conversing on the telephone, and he heard her state, “I told C.J. [Charles Lewis] about leaving that back door unlocked.” Julian Lewis died in his residence. When Deputy Webb informed the defendant that her husband and stepson were dead, she did not appear upset.
Investigator J.T. Barrett of the Pittsylvania County Sheriff's Office arrived at the murder scene approximately 7:00 a.m. on October 30, 2002. Barrett interviewed the defendant twice. Investigator Keith N. Isom also interviewed the defendant. During one of the interviews, the defendant claimed that her husband had physically assaulted her a few days before his death, and she denied knowledge of her husband's killer. She said that she would not kill her husband or have him killed.
Investigator Barrett asked the defendant what she and her husband did before they went to bed on the night of the murders. She said that she talked with her husband, and that they prayed together. She told her husband that she was going to pack his lunch, and he went to sleep. She prepared a lunch and placed it in the refrigerator. She wrote a note on the lunch bag that stated, “I love you. I hope you have a good day.” A picture of a “smiley face” was drawn on the bag and inscribed in the “smiley face” was the message, “I miss you when you're gone.”
Mike Campbell, Lewis' supervisor, testified that Julian Lewis did not use bags to bring his lunch to work. Rather, Julian Lewis took his lunch to work in a blue and white cooler.
Investigator Isom interviewed the defendant again on November 7, 2002. During this interview, the defendant admitted that she had offered Matthew Shallenberger money if he would kill her husband. After the interview, the defendant again spoke with Investigator Isom. The defendant told Isom that she had met her husband's killer at a retail store and that he was from New York. The defendant stated that she had “let him in” her mobile home, and he shot both Julian Lewis and Charles Lewis, took some money, and left. She told the investigator that she had agreed to give Shallenberger half of the insurance proceeds that she expected to receive, but she changed her mind and decided to keep all the money. She informed the investigator of Shallenberger's address, and Isom and the defendant went to Shallenberger's residence where she identified him.
On November 8, 2002, the defendant, who was in the Danville City Jail, requested to speak with Investigator Isom. He interviewed her at the jail, and she told Isom that Rodney Fuller was also involved in the murders of her husband and stepson. The defendant also stated that her daughter had assisted with the murders. The defendant “acknowledged that after the shooting and after the men left the house [on the night of the murders], she had waited about thirty minutes to call 911.”
On the day of the murders, the defendant made a telephone call to Campbell and told him that her husband had been killed, and that she wanted his paycheck. Campbell informed the defendant that she could not retrieve the paycheck before 4:00 p.m. on that day. The next day, October 31, 2002, the defendant again called Campbell and asked for Julian Lewis' paycheck. Campbell responded that he could not give the paycheck to her.
Lieutenant Michael Booker, Charles Lewis' commanding officer, called the defendant to express his condolences early on the afternoon of October 30, 2002, the day of the murders. The defendant told him, “I'm still in shock. The police had me in Chatham today, all in my face. There is no way I would have killed my husband and stepson. They guessed that because I didn't get shot that I might have done it. My husband told me to go into the bathroom, so I did.” The defendant informed Booker that she was the secondary beneficiary on the life insurance policy of Charles Lewis, and that she wanted the insurance proceeds.
On November 4, 2002, the defendant called Booker by telephone and left a message for him because he was not available. When Booker spoke to her later that day, the defendant asked him about Charles Lewis' personal effects. Booker advised the defendant that she could not have them because she was not the beneficiary of Lewis' estate. The defendant asked Booker whether she was still entitled to the life insurance proceeds in the amount of $250,000. Booker told the defendant that she was, and she responded, “[W]ell, Kathy [Charles Lewis' sister] can have all his stuff as long as I get the money.”
Before the murders, the defendant told a woman, Debbie Anderson, that the defendant was just “using Julian for money and that he would buy her things.” Bobby Demont, who had known Julian Lewis and the defendant for several years, heard the defendant say “a couple months before the murders” that if Julian died, “she would get the money, and if [Charles Lewis] was killed and Julian was dead, she would get that money, too.”
The defendant told Kathy L. Clifton, Julian Lewis' daughter, that the defendant waited 45 minutes after the murders and then called her ex-mother-in-law, Marie Bean, and her best friend, Debbie Yeatts, before she “called 911 for help.” On the day of the victims' funerals, the defendant told Kathy Clifton that the defendant had purchased a beautiful suit to wear to the funeral. The defendant asked Clifton, “[Y]ou don't think I had anything to do with this, do you?” The defendant also offered to sell the mobile home and land to Clifton. After the murders, but before the funeral, the defendant made a number of statements in Clifton's presence to the effect that the defendant had ample money to pay for the funerals and that she would benefit financially because of the deaths of Julian Lewis and Charles Lewis.
After the murders, the defendant tried to withdraw $50,000 from Julian Lewis' account with Prudential Securities. The defendant appeared at a bank and presented a check, purportedly signed by Julian Lewis and made payable to her in the amount of $50,000. A bank employee refused to negotiate the check because the signature on the check did not match Julian Lewis' signature in the bank's records.
The deputy sheriffs searched a mobile home where Matthew Shallenberger and Rodney Fuller resided. Two shotguns were recovered from the residence and delivered to a forensic science laboratory for analysis. The shotgun shells recovered from the room where Julian Lewis was murdered were fired by one of the shotguns recovered from the mobile home where Shallenberger and Fuller lived. The deputies also found two pairs of rubber household gloves in a closet in Shallenberger's bedroom. Primer residue caused by the discharge of a firearm bullet or shell was present on the gloves.
Assistant Chief Medical Examiner Susan E. Venuti performed autopsies on the bodies of Julian Lewis and Charles Lewis. She determined that each man died as a direct result of multiple shotgun wounds. Julian Lewis suffered shotgun wounds to the upper left arm, shoulder, abdomen, pelvis, penis, thighs, legs, arms, and chest. The bullets destroyed or removed large areas of tissue in his upper arm, shoulder, and upper chest. The bullets also fractured several ribs. Plastic wadding from a shotgun shell was lodged in his left lung tissue. Julian Lewis eventually died from extensive blood loss.
Charles Lewis received a total of eight wounds from an undetermined number of discharges of a shotgun. He suffered wounds to his back, abdomen, chest, neck, left upper arm and shoulder, elbow, left thigh, face, and forearm.
III. A.
The defendant argues that “because Virginia has never executed a female who (i) lacks a violent criminal history, (ii) accepted responsibility for her offenses, (iii) merely contracted for the murders giving rise to the offenses, and (iv) observed co-defendants receive life sentences despite their roles as actual triggermen, the circuit court erred by sentencing [her] to death in that such sentence[s][are] excessive and disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” We disagree with the defendant.
Initially, we observe that we do not and cannot consider the defendant's gender in determining whether the sentences of death are excessive and disproportionate when considering both the crime and the defendant. All criminal statutes in this Commonwealth must be applied without regard to gender. Therefore, we decline the defendant's invitation to apply Virginia's capital murder statutes in a discriminatory fashion based upon gender.
B.
The defendant argues that her sentences are excessive and disproportionate when compared to similar cases. She states that she “did not physically engage in conduct giving rise to the deaths;” rather, she was convicted of capital murder because she was the employer of the men who committed the actual murders. Continuing, she contends there is no reported case in which this Court approved the death penalty for a “mere hirer” due to the vileness predicate alone.
Code § 17.1-313(C)(2) requires that this Court consider and determine “[w]hether the sentence[s] of death [are] excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” The test of proportionality that we apply is whether “juries in this jurisdiction generally approve the supreme penalty for comparable or similar crimes.” Wolfe v. Commonwealth, 265 Va. 193, 226, 576 S.E.2d 471, 490, cert. denied, 540 U.S. 1019, 124 S.Ct. 566, 157 L.Ed.2d 434 (2003) (quoting Hedrick v. Commonwealth, 257 Va. 328, 342, 513 S.E.2d 634, 642, cert. denied, 528 U.S. 952, 120 S.Ct. 376, 145 L.Ed.2d 294 (1999)); Murphy v. Commonwealth, 246 Va. 136, 145, 431 S.E.2d 48, 54, cert. denied, 510 U.S. 928, 114 S.Ct. 336, 126 L.Ed.2d 281 (1993).
In conducting this review, this Court considers the records of all capital murder cases reviewed by this Court, including cases in which the defendant received a life sentence. In conducting the proportionality review, it is not the function of this Court to understand why the trier of fact imposed the sentence of life instead of the sentence of death. Rather, “[t]he purpose of our comparative review is to reach a reasoned judgment regarding what cases justify the imposition of the death penalty. We cannot insure complete symmetry among all death penalty cases, but our review does enable us to identify and invalidate a death sentence that is ‘excessive or disproportionate to the penalty imposed in similar cases.’ ” Orbe v. Commonwealth, 258 Va. 390, 405, 519 S.E.2d 808, 817 (1999), cert. denied, 529 U.S. 1113, 120 S.Ct. 1970, 146 L.Ed.2d 800 (2000). Simply stated, this Court's proportionality review enables this Court to identify and invalidate the aberrant sentence of death. And, we emphasize that in making the determination whether a sentence of death is aberrant, this Court must consider the penalty imposed in similar cases, considering both the crime and the defendant.
We have examined the records of all capital murder cases reviewed by this Court when, as here, the death penalty was based upon murder for hire. Wolfe, 265 Va. 193, 576 S.E.2d 471; Williams v. Commonwealth, 252 Va. 3, 472 S.E.2d 50, cert. denied, 519 U.S. 998, 117 S.Ct. 493, 136 L.Ed.2d 386 (1996); Murphy, 246 Va. 136, 431 S.E.2d 48; Fisher v. Commonwealth, 236 Va. 403, 374 S.E.2d 46 (1988), cert. denied, 490 U.S. 1028, 109 S.Ct. 1766, 104 L.Ed.2d 201 (1989); Stockton v. Commonwealth, 227 Va. 124, 314 S.E.2d 371, cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984); Clark v. Commonwealth, 220 Va. 201, 257 S.E.2d 784 (1979), cert. denied, 444 U.S. 1049, 100 S.Ct. 741, 62 L.Ed.2d 736 (1980). Even though the facts in all capital murder cases differ, we are confident that given the special heinousness associated with the murder for hire in this particular case, emphasizing that the defendant was the mastermind of the plan to kill her husband and stepson solely for greed and monetary gain, the sentences of death are 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 the defendant.
The defendant also argues that her punishment is excessive or disproportionate because her accomplices, Shallenberger and Fuller, did not receive a sentence of death. However, as we have repeatedly stated, “[u]pon our prior determinations of excessiveness and disproportionality, we have rejected efforts by defendants to compare their sentences with those received by confederates.” Murphy, 246 Va. at 145, 431 S.E.2d at 53; Thomas v. Commonwealth, 244 Va. 1, 26, 419 S.E.2d 606, 620, cert. denied, 506 U.S. 958, 113 S.Ct. 421, 121 L.Ed.2d 343 (1992); King v. Commonwealth, 243 Va. 353, 371, 416 S.E.2d 669, 679, cert. denied, 506 U.S. 957, 113 S.Ct. 417, 121 L.Ed.2d 340 (1992); Evans v. Commonwealth, 222 Va. 766, 780, 284 S.E.2d 816, 823 (1981), cert. denied, 455 U.S. 1038, 102 S.Ct. 1741, 72 L.Ed.2d 155 (1982), aff'd on remand, 228 Va. 468, 323 S.E.2d 114 (1984), cert. denied, 471 U.S. 1025, 105 S.Ct. 2037, 85 L.Ed.2d 319 (1985). Accordingly, we reject the defendant's effort to make a similar comparison here.
C.
The defendant argues that the circuit court “erroneously imputed the vileness of [the] co-defendants to [her] to determine if [her] conduct satisfied the aggravated battery sub-element [sic] to the vileness predicate.” Continuing, the defendant also argues that the circuit court erred by concluding that her acts reflected a depravity of mind.
Code § 19.2-264.2 states:
“In assessing the penalty of any person convicted of an offense for which the death penalty may be imposed, a sentence of death shall not be imposed unless the court or jury shall (1) after consideration of the past criminal record of convictions of the defendant, find that there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing serious threat to society or that his conduct in committing the offense for which he stands charged was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim; and (2) recommend that the penalty of death be imposed.”
We have stated that “depravity of mind” as used in Code § 19.2-264.2, is “a degree of moral turpitude and psychical debasement surpassing that inherent in the definition of ordinary legal malice and premeditation.” Stewart v. Commonwealth, 245 Va. 222, 245, 427 S.E.2d 394, 409, cert. denied, 510 U.S. 848, 114 S.Ct. 143, 126 L.Ed.2d 105 (1993); Thomas, 244 Va. at 25, 419 S.E.2d at 619-20. We observed in Beck v. Commonwealth, 253 Va. 373, 387, 484 S.E.2d 898, 907, cert. denied, 522 U.S. 1018, 118 S.Ct. 608, 139 L.Ed.2d 495 (1997) that
“[a] finding of ‘vileness' must be based on conduct which is ‘outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim.’ Code § 19.2-264.2. Proof of any one of these three components will support a finding of vileness. Id.; Mueller v. Commonwealth, 244 Va. 386, 411, 422 S.E.2d 380, 395 (1992), cert. denied, 507 U.S. 1043, 113 S.Ct. 1880, 123 L.Ed.2d 498 ... (1993).”
Additionally, in Hedrick v. Commonwealth, 257 Va. at 339-40, 513 S.E.2d at 640, we stated that
“a mere inspection of the statutory language in [Code § 19.2-264.2] demonstrates clearly that the term ‘vileness' includes three separate and distinct factors, with the proof of any one factor being sufficient to support a finding of vileness and hence a sentence of death. Bunch v. Commonwealth, 225 Va. 423, 442, 304 S.E.2d 271, 282 [1983] .... We have also stated that ‘Code §§ 19.2-264.2 and-264.4(C) define vileness as conduct that involves torture, depravity of mind, or aggravated battery to the victim; the use of the disjunctive word ‘or,’ rather than the conjunctive ‘and,’ signifies the availability of alternative choices.' ”
Applying these principles, we need not, and do not, decide whether the circuit court erred in imputing the aggravated battery committed by Fuller and Shallenberger to the defendant. The circuit court held that the defendant's acts were vile because they demonstrated depravity of mind and, without question, the evidence of record is overwhelming that the defendant's conduct showed a depravity of mind.
As we have already stated in Part II of this opinion, the defendant was the mastermind of these gruesome crimes, which would not have occurred but for her actions. The evidence shows that she married her husband because she was interested in his money. She planned to kill him and her stepson so that she could acquire her husband's assets and proceeds from her stepson's life insurance policy. She made a prior unsuccessful attempt along with Shallenberger and Fuller to kill her husband, and, when that plan failed, she initiated another plan which resulted in the deaths of her husband and her stepson while they lay asleep in their home. She involved her 16-year-old daughter in the plan to kill the victims, and she encouraged her daughter to have sexual relations with one of the murderers. The defendant also paid for the shotguns and ammunition used to kill her husband and stepson.
After Shallenberger and Fuller had shot the victims several times with shotguns, the defendant went to her husband's bedroom and took his pants and wallet. She removed cash from her husband's wallet and gave it to the murderers while her husband lay bleeding to death from the wounds that he had suffered. Even then, however, the defendant waited at least 45 minutes, while her husband was still alive suffering and bleeding from the bullet wounds, before she reported the crimes by calling emergency response technicians by telephone. Once the deputy sheriffs arrived at the residence, at least one hour after her husband and stepson had been shot, defendant's husband remained alive, suffering and bleeding to death. After her husband's death, the defendant showed no emotion or remorse, and she initially denied any involvement in this murder. Moreover, on the night of the murders, prior to the killings, the defendant prayed with her husband and arranged for her daughter to speak to her husband so that he would not think that something was awry.
Additionally, we observe that the defendant was the wife of one victim and the stepmother of the other victim. As we have already stated, but for the conduct of this defendant, who was the mastermind of these heinous acts, the killings would not have occurred. We hold that the evidence sufficiently establishes the defendant's depravity of mind that supports a finding of vileness.
D.
The defendant also claims that the circuit court erroneously sentenced her to death in that “such decision was imposed under the influence of passion, prejudice and other arbitrary factors.” Continuing, the defendant states that her cohorts, “despite being actual triggermen, did not receive death sentences.” Defendant maintains “her sentences of death were influenced by passion, prejudice or other arbitrary factors because (i) evidence indicated that her two co-defendants were more directly culpable in the slayings, (ii) the same Judge sentenced all three defendants, and (iii) vileness was the only predicate relevant to the death sentence inquiry (and vileness of the crime, of course, applies to all defendants here in that it is the same crime).” We disagree.
We have reviewed the evidence of record, and we find no evidence that would permit us to conclude that the sentences of death were imposed under the influence of passion, prejudice, and other arbitrary factors.
E.
We do not consider defendant's assertions that the circuit court erroneously denied her motion to declare Virginia's death penalty statute unconstitutional. The defendant's sole argument on brief is “[t]he Virginia death penalty statute is unconstitutional for reasons contained in Teresa's Memoranda contained in the Appendix.” The defendant's constitutional arguments were waived by the entry of her guilty pleas. Murphy, 246 Va. at 141, 431 S.E.2d at 51; Savino v. Commonwealth, 239 Va. 534, 539, 391 S.E.2d 276, 278, cert. denied, 498 U.S. 882, 111 S.Ct. 229, 112 L.Ed.2d 184 (1990); Stout v. Commonwealth, 237 Va. 126, 131-32, 376 S.E.2d 288, 291, cert. denied, 492 U.S. 925, 109 S.Ct. 3263, 106 L.Ed.2d 609 (1989).
The defendant argues that the circuit court “erroneously sentenced [her] to death because indictments for which death was imposed omitted essential aggravating elements.” We do not consider defendant's assertion. Defendant failed to assert this argument in the circuit court and, therefore, she may not assert the argument on appeal. Rule 5:25.
IV.
We have considered all the defendant's remaining arguments, and they are without merit. Having reviewed the sentences of death, finding no reversible error in the record, and perceiving no reason to commute the death sentences, we will affirm the judgment of the circuit court. Affirmed.
Lewis v. Wheeler, 609 F.3d 291 (4th Cir. 2010) (Habeas).
Background: Following affirmance of her state-court conviction for capital murder for hire, petitioner sought federal habeas relief. The United States District Court for the Western District of Virginia, Glen E. Conrad, J., 2009 WL 588957, entered order denying petition, and petitioner appealed.
Holdings: The Court of Appeals, Traxler, Chief Judge, held that:
(1) petitioner was not entitled to federal habeas relief on her claim of ineffective assistance of counsel, and
(2) petitioner's claim that Virginia's capital sentencing scheme violated her constitutional rights was procedurally barred. Affirmed.
TRAXLER, Chief Judge:
Teresa Wilson Lewis (“Lewis”) pleaded guilty in the Circuit Court of Pittsylvania County, Virginia to two counts of capital murder for hire, and related charges of conspiracy to commit capital murder, robbery, and use of a firearm, arising out of the murders of her husband, Julian Clifton Lewis, Jr. (“Julian”), and stepson, Charles J. Lewis (“C.J.”). She was sentenced to death for each conviction of capital murder for hire, life imprisonment for the robbery conviction, and a total of 33 years' imprisonment for the remaining convictions.
After unsuccessfully challenging her death sentences on direct appeal and in state habeas proceedings, Lewis filed a petition for a writ of habeas corpus in federal district court. See 28 U.S.C.A. § 2254 (West 2006). The district court denied relief but granted a certificate of appealability on four claims. See 28 U.S.C.A. § 2253(c)(1) (West 2006). We granted a certificate of appealability on two additional claims. See id. For the reasons set forth below, we now affirm.
I.
The detailed facts surrounding the murders of Julian and C.J. are set forth in the opinions of the Virginia Supreme Court, which we summarize below. See Lewis v. Warden, 274 Va. 93, 645 S.E.2d 492, 495-99 (2007); Lewis v. Commonwealth, 267 Va. 302, 593 S.E.2d 220, 222-25 (2004).
A.
In March or April 2000, Lewis met Julian at Dan River, Inc., where they were both employed. Julian was a recent widower, having lost his wife and the mother of his three adult children to an extended illness in January of that year. In June 2000, Lewis moved in with Julian. They married soon thereafter and Lewis quit working.
In December 2001, Julian's son, Jason Clifton Lewis, was killed in an accident. Julian received life insurance proceeds in excess of $200,000, which he placed in an account with Prudential Securities that was only accessible by him. In February 2002, Julian purchased five acres of land and a mobile home where he and Lewis began to live.
In August 2002, C.J., an Army reservist, was required to report for active duty with the National Guard. Prior to leaving, C.J. made estate arrangements, including executing a will and obtaining a life insurance policy in the amount of $250,000. He designated Julian as his primary beneficiary and Lewis as his secondary beneficiary.
It was also in the fall of 2002 that Lewis first met Matthew J. Shallenberger (“Shallenberger”) and Rodney L. Fuller (“Fuller”), who would become her co-conspirators in a plot to murder her husband and stepson. Lewis met Shallenberger, who was 22 years old, and Fuller, who was 19 years old, at a Wal-Mart store. Before long, Lewis began a sexual relationship with Shallenberger, who was 11 years her junior. On at least one occasion, however, Lewis performed a “lingerie show” for both men, and had sexual intercourse with Fuller as well as Shallenberger. On another occasion, Lewis took her 16-year-old daughter with her to meet the men at a parking lot. Lewis introduced her daughter to Fuller and the two had sexual intercourse in one car while Lewis and Shallenberger had sexual intercourse in the other vehicle.
At some point, Lewis and Shallenberger began discussing a plan to kill Julian and share the money that Lewis would get upon his death. The first plan was put into motion on October 23, 2002. Lewis withdrew $1,200 from the bank and gave the money to the men to purchase the necessary guns and ammunition. Shallenberger gave the money to an acquaintance who purchased two shotguns for the conspirators. Lewis told Shallenberger and Fuller the route that Julian would travel from work to home that evening. The plan was for the men to stop and kill Julian on the roadway and make the murder look like a robbery. The presence of another vehicle close to Julian during the trip home, however, made execution of the first plan impossible.
Undeterred, the conspirators quickly hatched a second plan to kill Julian. They also added a plan to murder C.J. when he returned home for his father's funeral in order to share the proceeds from his life insurance policy as well. However, when Lewis learned that C.J. would be visiting at the mobile home on the evening of October 29-30, 2002, the decision was made to murder Julian and C.J. at the same time.
In the early morning hours of October 30, 2002, Shallenberger and Fuller, armed with the shotguns purchased with Lewis' money, entered the mobile home through a rear door that Lewis had left unlocked for them. Upon entering, Shallenberger woke Lewis, who had fallen asleep next to Julian while waiting, and told her to get up. She went into the kitchen where she waited while Shallenberger shot Julian several times with the shotgun. She then reentered the bedroom, where Julian lay mortally wounded but still alive, retrieved Julian's pants and wallet, and returned to the kitchen. Meanwhile, Fuller went to C.J.'s bedroom and shot him several times with the second shotgun. When Fuller returned to the kitchen, he saw Lewis and Shallenberger removing the money from Julian's wallet. Apparently there was some uncertainty as to whether C.J. was dead, so Fuller took Shallenberger's shotgun and returned to shoot C.J. two more times. After retrieving some of the shotgun shells, Shallenberger and Fuller left the mobile home.
For approximately 45 minutes after the last shots were fired, Lewis remained in the mobile home with the victims. She made at least two telephone calls to other persons, but did not call authorities. At approximately 3:55 a.m., a 911 operator fielded a call from Lewis reporting that a single intruder had entered her home at approximately 3:15 or 3:30 a.m., and shot her husband and stepson. She told the 911 operator that the intruder entered the bedroom where she was sleeping with Julian and told her to get up. She claimed that Julian told her to go into the bathroom, where she hid while the intruder fired four or five times.
Sheriff's deputies arrived at the Lewis home at approximately 4:18 a.m. Lewis told the deputies that her husband's body was on the floor in the master bedroom and that her stepson's body was in the other bedroom. When the officers entered the master bedroom, however, they found Julian badly wounded, but still alive and talking. He “ ‘made slow moans' and uttered, ‘Baby, baby, baby, baby.’ ” Lewis, 593 S.E.2d at 223 (alteration omitted). Julian told the officers his name and, when asked “if he knew who had shot him, ... responded, ‘My wife knows who done this to me.’ ” Id. at 224. While trying to assist the victims, one deputy observed Lewis talking on the telephone and heard Lewis “state, ‘I told C.J. about leaving that back door unlocked.’ ” Id. (alteration omitted). Julian died shortly thereafter, while still in the mobile home. When informed that Julian and C.J. were dead, Lewis did not appear to the officers to be upset.
Investigator Barrett and Investigator Isom with the Pittsylvania County Sheriff's Office interviewed Lewis during their investigation of the murders. During one interview, Lewis claimed that Julian had physically assaulted her a few days before the murders, but denied killing him, having him killed, or knowing who killed him. Lewis told the investigators that she and Julian had talked and prayed together before he went to bed that night, and that she told him she was going to the kitchen to pack his lunch for the next day. A lunch bag was found in the refrigerator with an attached note stating “ ‘I love you. I hope you have a good day.’ ” Id. She had also drawn a picture of a “smiley face” on the bag and inscribed “ ‘I miss you when you're gone,’ ” in the smiley face. Id.
Later that morning, Lewis called Mike Campbell, Julian's supervisor at Dan River. She told Campbell that Julian had been murdered and asked for Julian's paycheck. Campbell told Lewis that she could pick it up after 4:00 p.m. that day. The following day, Lewis contacted Campbell again, apologized for not picking up the check the day before, and again asked when she could get it. Campbell later testified that Julian brought his lunch to work in a blue and white cooler and did not use lunch bags. He also testified that when he went to pay his respects to Lewis in person a couple of days later, Lewis told him that Julian had bought her a red sports car before he was killed, but that she was going to trade it along with one of his vehicles for a larger car. She also told Campbell that she planned to sell Julian's land and mobile home.
Also on the day of the murders, Lewis spoke with Lieutenant Michael Booker, C.J.'s commanding officer. When Lt. Booker called Lewis to express his condolences, Lewis told him that she was “ ‘still in shock’ ” and that the police had been questioning her. Id. She told Lt. Booker that “[t]here is no way I would have killed my husband and stepson. They guessed that because I didn't get shot that I might have done it. My husband told me to go into the bathroom, so I did.” Id. Lewis then informed Lt. Booker that she was the secondary beneficiary of C.J.'s military life insurance policy and that she had been told that she would be contacted within 24 hours of his death with information regarding when she would get her money.
On November 4, 2002, Lewis contacted Lt. Booker and requested C.J.'s personal effects and a photograph of C.J. that she had given Lt. Booker for a memorial service. Lt. Booker told Lewis that he would return the photograph to her, but that the personal effects would be given to C.J.'s sister Kathy Clifton, his immediate next of kin. Lt. Booker testified that Lewis became “very angry” and “insisted that [Lt. Booker] bring them to her as soon as possible.” J.A. 99. When Lt. Booker refused, Lewis again asked about the life insurance money and “remind[ed him] that she was the secondary beneficiary.” J.A. 99. When Lt. Booker told Lewis that she would still be entitled to the life insurance, Lewis responded, “ ‘that's fine, Kathy can have all of his effects as long as I get the money.’ ” J.A. 100.
Julian's daughter Kathy also testified about her dealings with Lewis immediately after the murders. Lewis told Kathy that she had waited 45 minutes after the murders to call 911, and that she called her ex-mother-in-law, Marie Bean, and her best friend, Debbie Yeatts, prior to doing so. Lewis also called Kathy on the night of the murders and told her that she had already gone over the necessary arrangements with the funeral home. Lewis told Kathy that all she needed were the names of some of Julian's family members, and that Kathy need not even come to the funeral home the following day. When Kathy joined Lewis at the funeral home the next day anyway, she recalled Lewis saying that “she was the sole beneficiary of everything” and that “money was no object.” J.A. 141. On the day of the funerals, Lewis called Kathy prior to the services and told her “that she had just left the hairdresser's and had gotten her nails done, [and] that she had bought a beautiful suit to wear to the funeral.” J.A. 141-42. She also offered to sell Julian's mobile home to Kathy.
In addition to her attempts to obtain Julian's paycheck, Lewis also made a quick attempt to withdraw $50,000 from Julian's Prudential Securities' account by presenting a forged check made payable to her at the bank. The bank employee refused to cash the check because the signature did not match Julian's signature in the bank's records.
Finally, and consistent with Lewis's immediate attempts to obtain the cash payoff from the murders, the investigators learned that Lewis was aware prior to the murders that she would handsomely profit from the deaths of her husband and stepson. She had earlier told an acquaintance that she was “just ‘using Julian for money and that he would buy her things.’ ” Lewis, 593 S.E.2d at 225. Another acquaintance overheard her saying a couple of months before the murders that “if Julian died, ‘she would get the money, and if [C.J.] was killed and Julian was dead, she would get that money, too.’ ” Id.
On November 7, 2002, Lewis, presented with the rapidly accumulating evidence against her, confessed to Investigator Isom that she had offered Shallenberger money to kill Julian. Lewis told Isom that she met Shallenberger at Wal-Mart and let him into their home on the night of the murders. However, she falsely claimed that Shallenberger shot both Julian and C.J. before taking the money and leaving the mobile home. She told Isom that Shallenberger had expected to receive half of the insurance proceeds, but that she had changed her mind and decided to keep all of the money. Lewis then accompanied Isom to Shallenberger's residence, where she identified him as her co-conspirator. The following day, Lewis asked to speak with Isom and admitted that she had not been totally truthful the day before. Lewis confessed Fuller's involvement in the murders and advised Isom that her minor daughter had assisted during the planning process as well. During the ensuing search of the mobile home where Shallenberger and Fuller resided, officers recovered two pairs of rubber household gloves containing primer residue caused by the firing of a firearm shell and two shotguns, one of which was determined to have fired the shotgun shells found in Julian's bedroom.
According to the autopsies, Julian and C.J. both died as a direct result of the multiple shotgun wounds. Julian was struck in “the upper left arm, shoulder, abdomen, pelvis, penis, thighs, legs, arms, and chest. The bullets destroyed or removed large areas of tissue in his upper arm, shoulder, and upper chest, [and] fractured several ribs.” Id. In addition, “[p]lastic wadding from a shotgun shell was lodged in [Julian's] left lung tissue.” Id. However, none of Julian's injuries were immediately fatal, and Julian instead “died from extensive blood loss” approximately 45 minutes to an hour after the shootings. Id. C.J. was struck in the “back, abdomen, chest, neck, left upper arm and shoulder, elbow, left thigh, face, and forearm,” but died almost immediately from his wounds. Id.
B.
Shortly after Lewis was charged for her participation in the murder-for-hire plot, the trial judge appointed attorneys David Furrow and Thomas Blaylock to represent her, both of whom had experience in capital murder cases. After investigating the case, counsel became extremely concerned about the heinous facts surrounding this intimate, murder-for-hire and -profit crime and their dim prospects for preventing a death penalty verdict by a Pittsylvania County jury. Given their knowledge of the assigned trial judge and of juries generally in the county, they became convinced that Lewis' best chance of avoiding the death penalty would be to submit to sentencing by the trial judge, who had never imposed the death penalty on a capital defendant and who would be sentencing Fuller, a triggerman, to life imprisonment under an agreement he had made with the prosecution for his cooperation against Shallenberger and Lewis.
Under Virginia law, if a defendant pleads guilty to capital murder, the trial judge conducts the sentencing proceeding without a jury. See Va.Code § 19.2-257. If the defendant pleads not guilty, the trial court may determine the case only with the consent of the defendant and concurrence of the Commonwealth. See id. Accordingly, counsel recommended that Lewis plead guilty and invoke her statutory right to be sentenced by the trial judge.
Prior to the guilty plea proceeding, a competency assessment of Lewis was performed by Barbara G. Haskins, M.D., a board-certified forensic psychiatrist, who also arranged for an IQ test to be performed by Dr. Bernice Marcopulos. According to the testing, Lewis had a Full Scale IQ of 72, with a Verbal IQ of 70, and a Performance IQ of 79. This placed her in the borderline range of intellectual functioning, but not at or below the level of mental retardation. Dr. Haskins reported that Lewis was competent to enter the pleas and able to understand and appreciate the possible penalties. At the guilty plea proceeding, the trial judge questioned Lewis and ensured that she understood that she was waiving her right to a jury and that she would be sentenced to either life imprisonment or death by the trial judge. Satisfied that Lewis was entering the plea voluntarily, knowingly, and intelligently, the trial judge accepted the plea and scheduled the sentencing proceeding.
At the sentencing proceeding, the Commonwealth relied primarily upon a written summary of evidence that would have been presented against Lewis had the case proceeded to a jury trial, and sought the death penalty based upon Virginia's statutory aggravating factors of vileness (based upon both depravity of mind and aggravated battery to the victims) and future dangerousness.FN1 In mitigation, the defense presented evidence that Lewis had no previous history of violence and had only a single, non-violent conviction for prescription forgery for which she was on probation. Lewis' probation officer testified that Lewis had been compliant with the terms of her probation and had never demonstrated any type of violence. The probation officer who prepared the presentence report also testified that Lewis seemed remorseful when he interviewed her. A long-time family friend and schoolmate of Lewis', who was engaged to be married to Lewis' sister, testified that he had never observed Lewis behaving in a violent manner. Finally, an official at the Roanoke City Jail provided a statement that there had been no incidents of violence involving Lewis, nor even minor infractions while she was incarcerated there awaiting trial. Lewis' father, brother and sister were in the courtroom during the sentencing, and the trial judge was advised that they would all testify that they loved and cared about Lewis and did not want her to receive the death penalty.
FN1. See Va.Code Ann. § 19.2-264.2 (providing that “[i]n assessing the penalty of any person convicted of an offense for which the death penalty may be imposed, a sentence of death shall not be imposed unless the court or jury shall (1) after consideration of the past criminal record of convictions of the defendant, find that there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing serious threat to society or that his conduct in committing the offense for which he stands charged was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim; and (2) recommend that the penalty of death be imposed”); see also Va.Code Ann. § 19.2-264.4.
At the conclusion of the sentencing proceeding, the trial judge rejected the future dangerousness aggravator, based upon the lack of any significant criminal history or violent behavior. However, he imposed sentences of death for the capital offenses based upon the vileness aggravator, finding that Lewis' conduct involved both depravity of mind and aggravated battery. See Lewis, 593 S.E.2d at 227 (noting that “[a] finding of vileness must be based on conduct which is outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim. Proof of any one of these three components will support a finding of vileness.” (internal quotation marks and citation omitted)).
In imposing the sentences of death, the trial judge acknowledged that the case was made more difficult by the fact that Lewis had led the police to Shallenberger and Fuller and pleaded guilty to her crimes, as well as by the fact that Fuller would receive a life sentence for his part in the plot. However, the trial judge found that Lewis, as wife and stepmother to the victims, had engaged in the “cold blooded, pityless slaying of two men, horrible and inhumane” for profit, which “fits the definition of the outrageous or wantonly vile, horrible, act.” J.A. 213. Of particular significance, the trial judge noted the “cold” lack of emotion displayed by Lewis, J.A. 211, and the fact that there was “no other motivation for these killings except greed” with “no thought on her part of what she was doing other than these two murders and what she would receive once they were deceased,” J.A. 212. The trial judge also found it significant that Lewis had “lured [the] men and her juvenile daughter into [her] web of deceit and sex and greed and murder, and within an incredibly short period of time from meeting [the men], she had recruited them, been involved in planning and completing these murders, and within one week before the actual murders had one failed attempt on Julian's life.” J.A. 212. Finally, he paid particular note to the fact that, “while her husband lay dying ... in the bedroom, [Lewis] was out apparently writing a love note to him to put in the refrigerator, splitting up the money from the deceased's wallet with the co-defendants in the kitchen and waiting for Julian to die.” J.A. 213. Based upon the evidence, the trial judge was “convinced that [Lewis] waited until she thought [Julian] was dead before she called the police” and “that she allowed him to suffer ... without any feelings at all, with absolute[ ] coldness.” J.A. 217.FN2
FN2. Later, in connection with Shallenberger's death penalty sentencing phase, the trial judge stated that Lewis was “the most culpable” of the three conspirators, J.A. 313, and referred to her as “the head of th [e] serpent.” J.A. 310. The trial judge agreed with the Commonwealth that all three conspirators deserved the death penalty, but felt unable “in good conscience” to sentence Shallenberger to death when “the Commonwealth ha[d] chosen to offer one of the shooters life.” J.A. 314.
On appeal, the Virginia Supreme Court affirmed the death sentences, agreeing that “without question,” the evidence of Lewis' conduct overwhelmingly supported the trial judge's finding of the vileness aggravator based upon depravity of mind. Lewis, 593 S.E.2d at 227; id. (explaining that “depravity of mind,” for purposes of the vileness aggravator, is defined as “a degree of moral turpitude and psychical debasement surpassing that inherent in the definition of ordinary legal malice and premeditation.”) (internal quotation marks omitted). Specifically, the court found that,
the defendant was the mastermind of these gruesome crimes, which would not have occurred but for her actions. The evidence shows that she married her husband because she was interested in his money. She planned to kill him and her stepson so that she could acquire her husband's assets and proceeds from her stepson's life insurance policy. She made a prior unsuccessful attempt along with Shallenberger and Fuller to kill her husband, and, when that plan failed, she initiated another plan which resulted in the deaths of her husband and her stepson while they lay asleep in their home. She involved her 16-year-old daughter in the plan to kill the victims, and she encouraged her daughter to have sexual relations with one of the murderers. The defendant also paid for the shotguns and ammunition used to kill her husband and stepson.
After Shallenberger and Fuller had shot the victims several times with shotguns, the defendant went to her husband's bedroom and took his pants and wallet. She removed cash from her husband's wallet and gave it to the murderers while her husband lay bleeding to death from the wounds that he had suffered. Even then, however, the defendant waited at least 45 minutes, while her husband was still alive, suffering and bleeding from the bullet wounds, before she reported the crimes.... Once the deputy sheriffs arrived at the residence, at least one hour after her husband and stepson had been shot, defendant's husband remained alive, suffering and bleeding to death. After her husband's death, the defendant showed no emotion or remorse, and she initially denied any involvement in this murder. Moreover, on the night of the murders, prior to the killings, the defendant prayed with her husband and arranged for her daughter to speak to her husband so that he would not think that something was awry.
Id. at 228.FN3 Lewis' petition for rehearing was subsequently denied, and the United States Supreme Court denied certiorari. See Lewis v. Virginia, 543 U.S. 904, 125 S.Ct. 201, 160 L.Ed.2d 177 (2004).
FN3. Having concluded that the depravity-of-mind aggravator was overwhelmingly supported by the evidence of record, the Virginia Supreme Court found it unnecessary to address Lewis' challenge to the trial judge's decision to impute the aggravated batteries to Lewis. See Lewis v. Commonwealth, 267 Va. 302, 593 S.E.2d 220, 227 (2004).
C.
In subsequent state habeas proceedings, Lewis alleged that her counsel, while successful in refuting the future dangerousness aggravator, had been constitutionally ineffective in failing to adequately investigate and present mitigating evidence to also refute the depravity-of-mind aggravator and to otherwise mitigate her crimes. Lewis also asserted, for the first time, constitutional challenges to Va.Code Ann. § 19.2-257, and the validity of her guilty plea. Lewis claimed that she had a constitutional right under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), to plead guilty and have the aggravating factors determined by a jury instead of a judge, rendering the statute and her guilty plea constitutionally invalid. Lewis also claimed that counsel was constitutionally ineffective in failing to advise her of this right and preserve it before the trial judge. The Virginia Supreme Court rejected Lewis' ineffective-assistance-of-counsel claims on the merits, and found Lewis' challenges to the statute and guilty plea to be procedurally barred because she had failed to raise them at trial or on direct appeal.
Pursuant to 28 U.S.C.A. § 2254, Lewis then filed a petition for a writ of habeas corpus in the district court, raising the same claims. The district court dismissed Lewis' petition and denied Lewis' motion to alter or amend the judgment.
II.
We review the district court's denial of federal habeas relief on the basis of a state court record de novo. See Tucker v. Ozmint, 350 F.3d 433, 438 (4th Cir.2003). However, when a habeas petitioner's constitutional claim has been “adjudicated on the merits in State court proceedings,” we may not grant relief unless the state court's adjudication “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 “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.A. § 2254(d).
“A legal principle is ‘clearly established’ within the meaning of this provision only when it is embodied in a holding of th[e] [Supreme] Court.” Thaler v. Haynes, --- U.S. ----, 130 S.Ct. 1171, 1173, --- L.Ed.2d ---- (2010) (per curiam); see also Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (“Th[e] statutory phrase refers to the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision.”). A state court's decision is contrary to clearly established federal law “if the state court arrives at a conclusion opposite to that reached by th[e] [Supreme] Court on a question of law” or “confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite” to the Supreme Court's. Williams, 529 U.S. at 405, 120 S.Ct. 1495. A state court unreasonably applies federal law when it “identifies the correct governing legal rule from th[e] Court's cases but unreasonably applies it to the facts of the particular ... case.” Id. at 407, 120 S.Ct. 1495. A state court also unreasonably applies federal law when it “unreasonably extends a legal principle from [the Court's] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. Factual determinations made by the state court “shall be presumed to be correct,” and “[t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C.A. § 2254(e)(1).
III.
We begin with Lewis' claims that counsel was ineffective in failing to investigate and present additional evidence during the sentencing phase which she contends would have (1) rebutted the Commonwealth's theory that she was the mastermind of the murder conspiracy and that she acted with a depraved mind in planning and executing the murder plot, and (2) otherwise mitigated her crimes by humanizing her, outweighing the aggravating evidence and making her a candidate for mercy.
Such claims of ineffective assistance of counsel are reviewed under the standards of Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and its progeny. Lewis must demonstrate “that counsel's performance was deficient” and that “the deficient performance prejudiced the defense.” Id. at 687, 104 S.Ct. 2052. To demonstrate inadequate or deficient performance, Lewis “must show that counsel's representation fell below an objective standard of reasonableness” measured by “prevailing professional norms.” Id. at 688, 104 S.Ct. 2052. To demonstrate prejudice, Lewis “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, 104 S.Ct. 2052. In death penalty challenges, this showing requires a habeas petitioner to establish a reasonable probability that the sentencer, if confronted with the additional mitigating evidence, would have returned a different sentence. See Wiggins v. Smith, 539 U.S. 510, 536, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); see also Powell v. Kelly, 562 F.3d 656, 668 (4th Cir.2009) (“Under Strickland, [the petitioner] must show that ‘there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.’ ” (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052)); Emmett v. Kelly, 474 F.3d 154, 160 (4th Cir.2007) (same).
A.
The additional evidence relied upon by Lewis in support of her claims was presented at an evidentiary hearing conducted by the original trial judge at the direction of the Virginia Supreme Court, and is extensively discussed both in the Virginia Supreme Court's decision dismissing the state habeas petition, see Lewis, 645 S.E.2d at 499-502, and the district court's decision below, see Lewis v. Wheeler, 2009 WL 588957 (W.D.Va. Mar.6, 2009). By way of summary, Lewis obtained and presented additional evidence and opinions from Dr. Haskins and Dr. Marcopulos, as well as new opinions and testimony from Dr. Philip R. Costanzo, Ph.D., a psychologist, Dr. Elinor McCance-Katz, an addiction psychiatrist, and Dr. Louis Eliacin, Lewis' treating gynecologist. Lewis also hired and presented evidence from Ms. Deborah Gray, a social worker and substance abuse counselor who performed a mitigation investigation, and testimony from various family members and acquaintances. Lewis contends that the additional evidence would have established that she suffered, at the time of the murders, from borderline intellectual functioning, a dependent personality disorder that caused her to latch onto men and be easily led by them, and prescription drug addiction or abuse. The combined effect of these disabilities, she asserts, would have explained her “cold” affect and demeanor and demonstrated her inability to mastermind or otherwise plan the heinous murders.
In response to this additional evidence, the Commonwealth submitted an expert evaluation of Lewis performed by Dr. Leigh D. Hagan, a forensic and clinical psychologist. According to Dr. Hagan, there was insufficient evidence to support the claim that Lewis suffered from an addiction to prescription medications, or that her use of such medications caused an extreme mental or emotional disturbance. In addition, Lewis failed to meet the criteria for a diagnosis of dependent personality disorder. According to Dr. Hagan, Lewis had the capacity to plan and carry out the murder plot.
Lewis' counsel testified at the state habeas hearing regarding their representation and strategy for defending her. They acknowledged that they were aware of Lewis' low IQ, alleged difficulties with prescription drugs, and possible dependent personality traits. However, they believed that further investigation and development was unnecessary and potentially harmful. The low IQ evidence would be placed before the trial judge in the competency report and, in their view, the prescription drug and dependent personality issues were unsupported by the facts and double-edged in character. In addition to opening Lewis up to a potentially damaging evaluation by an expert for the Commonwealth, they believed that the latter two “excuses” would have supported the future-dangerousness aggravator and substantially undercut their strategy to portray her as a previously non-violent defendant who had accepted responsibility for her role in the offense and assisted the authorities in arresting her coconspirators.
After considering the additional evidence, the trial judge found that counsel had employed a reasonable strategy during the sentencing phase and that Lewis had failed to demonstrate either deficient performance or actual prejudice. FN4 The Virginia Supreme Court also rejected the claims, but did so solely on the basis of Lewis' failure to demonstrate prejudice. The court concluded that Lewis' alleged problems did “not explain or even mitigate the carefully calculated conduct that [she had] exhibited in carrying out the [ ] crimes.” Lewis, 645 S.E.2d at 506. Because there was no reasonable probability that, had the evidence been presented in the original sentencing proceeding, the trial judge would have imposed a sentence of life imprisonment instead of death, Lewis was not entitled to relief. See id.
FN4. Specifically, the trial judge found that counsel had “made reasonable and proper choices based on the information supplied by the defendant, statements of witnesses, her own experts, and the real evidence against [Lewis].” J.A. 2270-71. The judge also found that counsel had made “reasonable decisions not to present or investigate further certain evidence that while it may have gone to the defense of depravity of mind was a double edged sword that would also have supported the aggravator of future dangerousness.” J.A. 2271. The trial judge further found that “[t]he evidence in th[e] case belied [Lewis]'s attempts to present herself as mentally deficient and dependent such that she was incapable of planning and carrying to execution the two murders,” and that “[n]one of the experts testifying overcame the evidence in th[e] case that [Lewis] planned, directed and saw to finality these two murders, and her attempts, and her attempts only, to profit from the[m].” J.A. 2271. The trial judge found that counsel's strategy to focus the mitigation evidence on the future dangerousness aggravator was a reasonable one and that the “decision to avoid presenting or investigating further the double edged evidence under the depravity of mind vileness factor was also objectively reasonable.” J.A. 2272.
B.
Lewis first contends that § 2254(d)'s deferential standards of review do not apply to her claim that counsel was ineffective in failing to present the additional evidence to rebut the depravity-of-mind aggravator and, consequently, that we must review this claim de novo. See Cone v. Bell, ---U.S. ----, 129 S.Ct. 1769, 1784, 173 L.Ed.2d 701 (2009) (providing that a claim that has not been adjudicated on the merits by the state court will be reviewed by the federal court de novo ); Monroe v. Angelone, 323 F.3d 286, 297 (4th Cir.2003) (same). She contends that the state habeas court was required to consider whether there was a reasonable probability that the trial judge would have rejected the depravity-of-mind aggravator prior to considering whether there was a reasonable probability that the trial judge would have found that the totality of the mitigating evidence outweighed that aggravator. We disagree.
First, although Lewis states her claims as two separate ones, the evidentiary basis for the two claims is the same. Moreover, both claims necessarily involve considering the aggravating circumstances surrounding the crime in light of the evidence presented in the habeas hearing to rebut (or, in the alternative, mitigate) those aggravating circumstances. Lewis contends that counsel's failure to present the additional evidence of her disabilities amounted to deficient performance. She contends that she was prejudiced because there is a reasonable probability that, had the evidence been presented, she would have received a sentence of life imprisonment either because (1) the judge would have rejected the vileness predicate based upon depravity of mind, or (2) the judge would have found that the totality of the mitigating evidence sufficiently outweighed the aggravating circumstances of the murders. In short, Lewis asserts identical claims of deficient performance and prejudice, but alternative arguments for why the outcome of her sentencing proceeding might have been different. Under these circumstances, we see nothing improper or unreasonable in the Virginia Supreme Court's joint consideration of the claims.
Second, the Virginia Supreme Court clearly appreciated the separately stated claim challenging counsel's failure to present the evidence to rebut the depravity-of-mind aggravator, explicitly noting that:
In the present case, Lewis alleges that trial counsel provided ineffective assistance because they failed to present available mitigation evidence during the penalty phase of her trial. Lewis contends that counsel should have presented [this] evidence to rebut the Commonwealth's theory that Lewis was the “mastermind” of the murder conspiracy. According to Lewis, her low mental functioning, prescription drug addiction, and dependent personality disorder rendered her incapable of acting with a “depraved mind” because these problems impacted her ability to function and exercise judgment, resist demands, and display emotions.
Lewis, 645 S.E.2d at 504 (emphasis added). Thus, while the court generally referred to the additional evidence as “mitigation evidence,” it clearly considered Lewis' claims that this evidence would have both rebutted the depravity-of-mind aggravator and otherwise served to mitigate her crimes.
Finally, the Virginia Supreme Court, after weighing the evidence in aggravation against the totality of the mitigating evidence, held that “[a]ny psychological, cognitive, and physical difficulties Lewis may have had could not explain or even mitigate the carefully calculated conduct that Lewis exhibited in carrying out these crimes.” Id. at 506. We think the only fair reading of the opinion is that the court considered both claims but concluded that Lewis was not entitled to habeas relief because she had both (1) failed to demonstrate that the alleged deficiencies rebutted, or “explain[ed] ... the carefully calculated conduct” upon which the depravity-of-mind aggravator rested and (2) failed to demonstrate that these identical alleged deficiencies would have “even mitigate[d]” that conduct in the balance. Id.
Accordingly, we hold that the Virginia Supreme Court properly considered the claims and adjudicated them on the merits, and that our review of its decision is therefore subject to the deferential standards of review set forth in § 2254(d).
C.
Turning to the merits of Lewis' ineffective-assistance-of-counsel claims, we cannot say that the state court's adjudication was an unreasonable one given the evidence presented.
The crux of Lewis' claims is that the additional evidence would have demonstrated that she was incapable of serving as the mastermind of the murder conspiracy, explained her cold affect and demeanor, and otherwise mitigated her involvement in the murders. The Virginia Supreme Court, after obtaining the findings and recommendations of the trial judge, evaluated all of the evidence presented both in the original and state habeas hearings and concluded that Lewis had failed to demonstrate that there was a reasonable probability that the outcome of her sentence would have been different had the additional evidence been presented. Id. at 506. According to the court:
The evidence in aggravation of Lewis' crimes included her extensive planning of the crimes in which Lewis recruited the killers, paid them $1,200 to purchase weapons, arranged sexual activities for them involving both Lewis and her 16 year old daughter, and assisted the killers' entry into the marital home at night.
Lewis committed the crimes because of greed, intending to profit from the murders by receiving the proceeds from C.J.'s life insurance policy and additional assets held by Julian. Other evidence in aggravation of the murders was Lewis' diversionary conduct with her husband on the night of the murders, including her act of praying with him before they retired for the night.
The brutal nature of the murders, in which Lewis' husband and stepson were shot several times, was further evidence in aggravation of the crimes. Also, after Shallenberger shot Julian, Lewis went into the bedroom while he was alive and lay bleeding and removed Julian's wallet in order to provide additional money to the killers.
Other powerful evidence in aggravation of the murders was the fact that Lewis waited at least 45 minutes, while her husband was alive and suffering from the multiple bullet wounds, before she contacted emergency response personnel by telephone. When the emergency response personnel arrived and attempted to assist the victims, one of whom was still alive, Lewis engaged in a telephone conversation with a friend discussing C.J.'s alleged failure to lock the back door of the home.
Id. at 504-05. The evidence developed by Lewis to rebut and/or mitigate these aggravating circumstances, on the other hand, was determined to be comparatively weak:
With regard to the issue of Lewis' mental functioning, the evidence was disputed concerning her cognitive ability to plan the murders. Although Dr. Costanzo and Dr. McCance-Katz opined that it was highly unlikely that persons with Lewis' level of mental functioning could plan the murders, Dr. Hagan testified that Lewis had the mental capacity to plan the murders with Shallenberger and to help execute the ultimate plan they devised. Also, Dr. McCance-Katz acknowledged that Lewis' behavior around the time of the murders was purposeful and “goal-directed.”
The mitigation evidence on the issue of whether Lewis suffered from a dependent personality disorder also was in dispute. Dr. Costanzo and Dr. Haskins concluded that Lewis suffered from a dependent personality disorder. Dr. Costanzo explained that as a result of this disorder, Lewis experienced many problems, including trouble making ordinary decisions without the advice of others, a difficulty initiating activities on her own, and a need for other people to assume responsibility for most major aspects of her life.
Dr. Hagan, however, gave contrary testimony that Lewis did not suffer from such a personality disorder but exhibited conduct that showed “a passive aggressive or an aggressive dependency.” According to Dr. Hagan, these characteristics involved the use of other people to achieve one's objectives.
With regard to Lewis' drug use, Dr. McCance-Katz testified that Lewis had a severe addiction to drugs and that the amount of narcotic medications she was taking during the time of the murders would have impaired her cognition and inhibited the “affect” or expression that she displayed to others. However, Dr. McCance-Katz admitted that Lewis' ability to carry out the murder plans was not affected by her use of prescription drugs.
Dr. Eliacin and Deborah Grey also concluded that Lewis was addicted to prescription drugs. In addition, Dr. Haskins testified that Lewis had a dependence on narcotics.
In contrast, Dr. Hagan testified that “there is not sufficient eyewitness, third party report, nor evidence of record to support the conclusion that she was actually addicted.” Further, Lewis had not complained of any problems associated with drug withdrawal when incarcerated about one week after the murders.
This evidence concerning Lewis' prescription drug abuse is evidence of a type that the Court in Wiggins termed “double edge[d].” See Wiggins, 539 U.S. at 535, 123 S.Ct. 2527, 156 L.Ed.2d 471. While Lewis presented evidence at the habeas hearing that her abuse of narcotics and other prescription drugs could have affected her judgment and have caused her to appear “uncaring” at the time of the offenses, the evidence also showed that, initially, Lewis voluntarily consumed excessive prescription drugs. Therefore, this evidence could be viewed both in aggravation and mitigation of the offense.
Lewis, 645 S.E.2d at 505-06. In sum, the court determined that the evidence of the “various problems Lewis faced as a result of her personality deficits, drug dependence, and level of intellectual functioning” failed to demonstrate prejudice because the totality of the evidence “showed that notwithstanding the various difficulties Lewis experienced over the course of her life, she killed her two relatives solely for monetary gain in a deliberately planned and executed scheme. Any psychological, cognitive, and physical difficulties Lewis may have had could not explain or even mitigate the carefully calculated conduct that Lewis exhibited in carrying out these crimes.” Id. at 506.
Given our own review of the evidence, we cannot say that this determination was an unreasonable one. First, the factual evidence surrounding these murders demonstrates that it was Lewis who was uniquely positioned to plan or, as the Virginia Supreme Court held on direct appeal, “mastermind ... these gruesome crimes, which would not have occurred but for her actions.” Lewis, 593 S.E.2d at 228. Lewis was Julian's wife and C.J.'s stepmother. As beneficiary of Julian's estate, and C.J.'s life insurance if Julian were dead, she alone stood to profit handsomely from their joint murder. There was also evidence that Lewis was well aware of this potential as, prior to the murders, she bragged to others that she was marrying Julian for his money and that she would benefit financially if Julian and C.J. were dead.
In contrast to her intimate involvement with the victims, Shallenberger and Fuller had never met Julian or C.J. and, without Lewis, had no way of knowing their expected movements or whereabouts. The men were also substantially younger than the more experienced and knowledgeable Lewis who, as found by the state court, lured the men into helping her achieve her financial payoff through sexual favors and money. She even went so far as to involve her 16-year-old daughter (whom the men also did not previously know) in the planning process and, on at least one occasion, she took her daughter with her to meet the men where they engaged in simultaneous, sexual relations in side-by-side vehicles.
The specific actions taken in preparation for the murders also demonstrate Lewis's ability to plan and carry out the murderous plot. After meeting the men and enlisting their help to kill Julian, Lewis withdrew $1,200 cash from her bank, which she gave to Shallenberger to purchase the murder weapons and, during the planning process, she initiated approximately 160 of the 170 documented telephone calls between her and Shallenberger. Also, only Lewis could have provided the men with the necessary information regarding her husband's employment, expected movements, and route home for the first, unsuccessful attempt to murder him on the roadway. Only Lewis could have advised the men that she would also benefit as the secondary beneficiary of C.J.'s life insurance, prompting the added plan to murder him when he came home for his father's funeral. Only Lewis could have advised the men that, as luck would have it, C.J. would be coming home from active duty for a visit and could more easily be murdered alongside his father. And, only Lewis could have provided the men with the expected whereabouts of the intended victims when they entered the mobile home to kill them.
The actions taken by Lewis at the time of the murders, and immediately thereafter, also eliminate any reasonable likelihood that Lewis was incapable of carrying out the murder plan while away from any asserted influence or control of the triggermen, or that her low IQ and prescription drug use rendered her incapable of making the necessary plans and decisions. On the night of the murders, unaided by her coconspirators, Lewis engaged in a number of activities designed to ensure that everything appeared normal to her husband and stepson, made sure the coast was clear for the triggermen, and took steps to cover her involvement. She prayed with her husband, lay down with him, and then got up to make the necessary preparations. At some point she prepared the lunch bag for him with the attached love note and “smiley face,” presumably to deflect attention from her as a suspect, and, according to her, spent time with her stepson as well. Before returning to her bed with Julian, she unlocked the back door for the shooters and also confined the dog, a pit bull, in the middle bedroom where it could not interfere with them or their plans.
After the murders had been committed, and the triggermen had left, Lewis continued to exhibit this ability to operate alone in carrying out the plot. She waited from 30 to 45 minutes before calling 911, presumably hoping that Julian would finally die, making telephone calls to others in the interim. When the police finally arrived, she calmly related a false story of an unknown intruder and, while on the telephone, made a comment within earshot of the officers blaming C.J. for leaving the door unlocked. Her ability to further the intended goal of financial profit, without oversight or direction from her co-conspirators, was also immediately demonstrated. While her victims were still in the mobile home, Lewis set about to obtain Julian's most recent paycheck from his employer. Later that afternoon, she spoke with Lt. Booker and advised him that she was the sole beneficiary of C.J.'s life insurance policy. In the days that followed, Lewis contacted Lt. Booker a second time about the proceeds of the life insurance policy, telling him that Kathy could have C.J.'s personal effects so long as she got the money. She also sought to withdraw $50,000 from Julian's Prudential Securities account with a forged check that she falsely claimed he had written to her before his death. It was also later discovered that Lewis and a friend had visited an attorney shortly after the murders to ensure that Kathy would not inherit from her father and brother. Lewis also made plans to liquidate and spend her inheritance. She offered to sell Kathy her father's land and mobile home and started making plans to trade Julian's vehicle, along with the red sports car he had purchased for her before he was murdered, for a larger car. Finally, Lewis demonstrated no difficulty in making the funeral arrangements for her victims. By the morning after the murders, she had already spoken to the funeral home about the arrangements, and attempted to subtly exclude Kathy from the process. She also purchased a new suit for the occasion, and had her hair and nails done as well.
In the face of this overwhelming evidence of Lewis' actual capacity to act alone and make decisions to further the murderous plot, Lewis presented comparatively weak evidence that this alleged dependent personality disorder combined with her low IQ and prescription drug abuse to render her incapable of acting in that capacity and explain the “cold” affect and demeanor she exhibited during and after the murders. While Lewis had a low IQ, her education records indicated that she successfully attended school for some time and was an average student. There was no evidence of Shallenberger's comparative intelligence, and Fuller's IQ was much lower than Lewis' IQ. There was also little evidence to support Lewis' claim that a drug dependency played any significant part in the crime. By her own admission, she was not under the influence of any drugs at the time of the murders, and there was no evidence that she experienced withdrawal or other adverse effects after she was arrested and incarcerated.
In sum, having fully considered the evidence in support of the vileness aggravator, and the totality of the mitigating evidence presented at the sentencing hearing and on state habeas to refute and mitigate that aggravator, the Virginia Supreme Court properly analyzed this claim under Strickland and its progeny, and held that there was no reasonable probability that the sentencer, had he been confronted with the additional evidence, would have rejected the vileness aggravator or, barring that, otherwise found that there was sufficient evidence in mitigation to warrant rejection of the penalty of death. Having independently considered Lewis' contentions, we cannot say that the state court's adjudication of Lewis' claims is contrary to or an unreasonable application of the applicable precedents. Accordingly, Lewis is not entitled to habeas relief on this basis and we affirm the dismissal of these claims.
IV.
We turn now to Lewis' remaining claims, all of which are rooted in her constitutional challenge to Va.Code Ann. § 19.2-257, and to the validity of her guilty plea, based upon the principles set forth in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).
A.
Under Virginia's capital sentencing scheme, when a defendant is charged with a death-eligible offense, the trial court conducts a bifurcated proceeding. “[T]he court shall first submit to the jury the issue of guilt or innocence of the defendant of the offense charged in the indictment....” Va.Code Ann. § 19.2-264.3(A). If the defendant is found guilty of a death-eligible offense, “then a separate proceeding before the same jury shall be held as soon as is practicable on the issue of the penalty, which shall be fixed as is provided in § 19.2-264.4.” Va.Code Ann. § 19.2-264.3(C). When a defendant pleads guilty and waives his or her right to a jury determination of guilt, however, Va.Code Ann. § 19.2-257 provides that the trial judge will conduct the sentencing proceeding alone, determine whether an aggravating factor or factors exist, and make the determination of whether death is the appropriate sentence.FN5
FN5. See Va.Code Ann. § 19.2-257 (“Upon a plea of guilty in a felony case, tendered in person by the accused after being advised by counsel, the court shall hear and determine the case without the intervention of a jury; or if the accused plead not guilty, with his consent after being advised by counsel and the concurrence of the attorney for the Commonwealth and of the court entered of record, the court shall hear and determine the case without the intervention of a jury. In such cases the court shall have and exercise all the powers, privileges and duties given to juries by any statute relating to crimes and punishments.”).
Lewis contends that she had a constitutional right under Apprendi/Ring to plead guilty and have a jury determine the existence of the aggravating factors necessary to impose the sentence of death, and that Va.Code Ann. § 19.2-257 deprived her of this right. Lewis also challenges the validity of her guilty plea, contending that, because the trial judge's plea colloquy failed to advise her of this purported right, her guilty plea and accompanying waiver of a jury trial were not made knowingly and intelligently.
Because Lewis failed to challenge the constitutionality of the statute or the validity of her guilty plea before the state trial judge or on direct appeal, however, the state habeas court held that the claims were procedurally barred under Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680, 682 (1974) (holding that claims that could have been raised at trial or on direct appeal may not be raised on state collateral review). It has long been held that federal habeas courts are precluded from reviewing a claim that “a state court has declined to consider [on] its merits on the basis of an independent and adequate state procedural rule,” Bacon v. Lee, 225 F.3d 470, 476 (4th Cir.2000); see Coleman v. Thompson, 501 U.S. 722, 731-32, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), and that the Slayton procedural bar qualifies as such an adequate and independent state law ground, see Vinson v. True, 436 F.3d 412, 417 (4th Cir.2006). Thus, “[a]bsent a fundamental miscarriage of justice, which [Lewis] does not assert, [we] may not review [the] claims unless [Lewis] can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law.” Id. (internal quotation marks omitted); see also Coleman, 501 U.S. at 750, 111 S.Ct. 2546.
B.
Lewis asserts-both as independent grounds for relief and to demonstrate the requisite cause which would allow us to review her substantive claims on the merits-that her counsel was constitutionally ineffective in (1) failing to inform her that she had a right to plead guilty and obtain a jury determination of aggravating factors and (2) failing to preserve the challenge to the statute before the trial judge.
In order to prevail on her claim, Lewis must demonstrate that a reasonably competent attorney would have believed that the Apprendi/Ring cases established that a defendant who pleads guilty to a capital offense and waives his or her right to a jury trial nevertheless retains a right to a jury determination of aggravating factors. Lewis must also demonstrate that counsel's failure to raise the issue with her and the trial judge prejudiced her because, had they done so, there is a reasonable probability that the outcome of her sentencing proceeding would have been different. We hold that she has failed to meet this burden.
1.
First, neither Apprendi nor Ring holds that a defendant who pleads guilty to capital murder and waives a jury trial under the state's capital sentencing scheme retains a constitutional right to have a jury determine aggravating factors.
In Apprendi, the defendant pleaded guilty to two firearm offenses carrying maximum sentences of ten years each, preserving his right to challenge the constitutionality of any enhancement under a separate, hate-crime statute. See Apprendi, 530 U.S. at 469-70, 120 S.Ct. 2348. At sentencing, the trial judge increased the sentence for one firearm count to twelve years based upon the hate-crime law and defendant appealed. See id. at 468, 471, 120 S.Ct. 2348. The Supreme Court reversed the enhanced sentence, holding that the sentencing facts necessary to increase the defendant's maximum punishment served as elements of the enhanced or separate offense and, therefore, were required to be found by a jury. See id. at 490, 120 S.Ct. 2348 (holding that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt”). Apprendi was not a capital case, however, and the Supreme Court specifically noted that its decision did not invalidate capital sentencing schemes which allow judges to determine the existence of aggravating factors necessary to impose a sentence of death following a jury's conviction of a defendant for a capital crime. See id. at 496-97, 120 S.Ct. 2348 (noting that the Court had “previously considered and rejected the argument that the principles guiding [its] decision ... render invalid state capital sentencing schemes requiring judges, after a jury verdict holding a defendant guilty of a capital crime, to find specific aggravating factors before imposing a sentence of death.”) (citing Walton v. Arizona, 497 U.S. 639, 647-49, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990)). Thus, as the district court noted below, “if anything, Apprendi would have led a reasonable defense attorney to believe that capital defendants were not entitled to a jury determination of the aggravating factors, regardless of whether they pled guilty to capital murder or proceeded to a jury trial.” J.A. 2697.
In Ring, the defendant was convicted of a capital crime by a jury and sentenced to death by the trial judge pursuant to the Arizona capital sentencing scheme previously upheld in Walton. See Ring, 536 U.S. at 588-89, 122 S.Ct. 2428. The Court reversed, however, overruling its decision in Walton and holding that “[b]ecause Arizona's enumerated aggravating factors operate as ‘the functional equivalent of an element of a greater offense,’ ” the defendant also has a right to have them submitted to the jury for its determination. Ring, 536 U.S. at 609, 122 S.Ct. 2428. Ring, therefore, established that a defendant who has exercised his right to a jury trial on a capital offense is also entitled to a jury determination of the aggravating factors necessary to impose the sentence of death.
Lewis contends that any reasonable attorney or jurist would have concluded after Ring that a defendant who pleads guilty to a capital offense-and waives his right to a jury pursuant to a state statute that mandates that a judge conduct the sentencing proceeding when such a guilty plea is entered-retains this constitutional right to have a jury determine the existence of aggravating factors. However, neither Apprendi nor Ring stand for that proposition. In both cases, the challenged sentencing procedures denied defendants the option of having a jury determine a sentence enhancement, or aggravating factor, regardless of whether the defendant pleaded guilty or not guilty to the charged offense. In Apprendi, the defendant pleaded guilty but expressly preserved his right to challenge any hate-crime enhancement. And in Ring, the defendant was convicted of capital murder by a jury. Thus, in neither case did the defendant waive his right to a jury determination of facts upon which the enhancement or aggravating factor rested.
In short, the Ring decision did not clearly establish or even necessarily forecast that a capital defendant who pleads guilty and waives his right to a jury trial can insist upon a jury trial on aggravating factors. As noted by the district court, the claim that “a defendant who pleads guilty to a capital offense is nonetheless entitled to a jury determination of the aggravating factors would have been an extension of” that precedent. J.A. 2698 (emphasis added). Consequently, we cannot say that counsel's failure to question the constitutionality of the Virginia statute and discuss the issue with Lewis amounted to objectively unreasonable performance. See Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) (“We have long recognized ... that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim.”); Honeycutt v. Mahoney, 698 F.2d 213, 217 (4th Cir.1983) (noting that counsel was not ineffective for failing to perceive an extension of precedent).FN6
FN6. The Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), was not issued until after Lewis pleaded guilty and her sentences were affirmed on appeal. See id. at 303, 124 S.Ct. 2531 (holding that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant” (emphasis omitted)). Thus, we express no opinion as to what effect, if any, Blakely has upon the question of whether a capital defendant has a constitutional right to plead guilty and demand a jury trial on aggravating factors or under what circumstances that right, if it exists, will be deemed waived. See Blakely, 542 U.S. at 310, 124 S.Ct. 2531 (noting that “[i]f appropriate waivers are procured, States may continue to offer judicial factfinding as a matter of course to all defendants who plead guilty” and that “[e]ven a defendant who stands trial may consent to judicial factfinding as to sentence enhancements”).
2.
Second, even if we were to conclude that reasonable counsel would have recognized a potential Apprendi/Ring challenge to the Virginia statute, Lewis cannot meet her burden of demonstrating deficient performance by counsel which prejudiced her because pressing the issue in this case would have been in direct conflict with the defense strategy to have Lewis plead guilty in order to obtain sentencing before the judge instead of a jury.
As noted previously, Lewis was provided appointed counsel with extensive criminal experience, including experience in handling capital cases. FN7 In light of the overwhelming evidence of guilt and Lewis' confession, counsel first attempted to obtain an agreement that the Commonwealth would not seek the death penalty in return for Lewis' guilty plea. The prosecutor, however, viewed Lewis as “the worst of the three [conspirators] and ... was ... adamant about seeking the death penalty against her.” J.A. 2177.
FN7. Attorney Blaylock had twenty-three years of experience and had handled at least fifteen capital murder cases. Attorney Furrow had twenty-six years of experience and had worked with Blaylock on as many as ten capital murder cases.
As the investigation continued, and the case developed, counsel became increasingly concerned about the gruesome nature of the crimes, which was graphically reflected in the crime scene photographs, and the chilling nature of the evidence of Lewis' actions before and after the murders to plan and profit from them. Based upon their knowledge of typical juries in the area, and available information regarding the assigned trial judge, counsel believed that a death sentence by a jury was a virtual certainty and that Lewis stood a better chance of being sentenced to life imprisonment by the trial judge. Of particular note, counsel was aware of no cases in which the trial judge had imposed a death sentence and, as a result of a cooperation deal between the prosecution and Fuller, knew that the trial judge would sentence Fuller to life imprisonment for his role as an actual triggerman in the murders.FN8
FN8. In addition to relying upon their own experience, counsel sought guidance and opinions from at least one national death penalty expert, as well as local criminal defense attorneys who regularly practiced before the trial judge.
In a ten-page letter to Lewis, Attorney Furrow summarized the expected testimony and evidence that would be presented at trial, along with counsel's concerns. Attorney Furrow pointed out to Lewis the “particularly gruesome” photographs of the bodies of Julian and C.J. as “among the worst I have seen” due to “[t]he use of small caliber ammunition.” J.A. 1033. He also advised Lewis that they fully expected the prosecutor to engage in the dramatic tactic of “rack[ing] the [pump] shot gun” while showing the photographs, a particularly effective technique which counsel had personally witnessed in another case. J.A. 1033. Counsel also discussed the murder-for-hire and profit facts and the expected testimony by Lewis' minor daughter that Lewis “sat in the car next [to her] while she was having sex with an adult black male,” which counsel believed would “have a horrible impact on the jury both among white[s] and blacks, men and women.” J.A. 1033.
In light of their opinion that death was a virtually certain penalty if Lewis were sentenced by a jury, counsel advised Lewis that her “best chance to receive a sentence of life in prison without the possibility of parole [was] to plead guilty and take [her] chances with the Judge.” J.A. 1036. In doing so, counsel explained that pleading guilty and being sentenced by the trial judge had several advantages, including: (1) removal of the “drama” from the case, such as having the jury hear “the racking of the shotgun” which would “not have the same impact on the Judge as it would on a jury”; (2) the fact that Fuller would have already received a life sentence and counsel's belief that the judge's “sense of fairness” would render him “more likely to hand out similar sentences”; (3) the fact that there had only been “two cases in Virginia in which the hirer in a murder for hire case ha[d] received the death penalty”; (4) the fact that “[a] woman ha[d] never received the death penalty”; and (5) the fact that Lewis “ha[d] no history of violent crimes.” J.A. 1036.
Counsel also met with Lewis to discuss their concerns and opinions. According to counsel, Lewis appeared to understand their advice, was in agreement with it, and made the decision to plead guilty. Lewis voluntarily signed the letter, stating that she “wish[ed] to plead guilty and be sentenced by the Judge.” J.A. 1037. In connection with this guilty plea, the competency assessment performed by Dr. Haskins revealed that Lewis “was able to recount her basic defense strategy ... and ... explain the reasons behind the strategy,” understood “the role of a jury in a capital case, and of a judge,” and knew “the pros and cons of a jury [versus] a bench trial.” J.A. 1194, 1195.
With the benefit of hindsight, Lewis now contends that her counsel was ineffective in failing to preserve and advise her of a potential challenge to the constitutionality of the Virginia statute based upon Apprendi/Ring. However, it is well established that when considering claims that counsel's performance has been constitutionally ineffective in a state proceeding, our scrutiny must be “highly deferential.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052.
It is all too tempting for a defendant to second guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.
Id. (internal citation omitted). To prevail, Lewis must “overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. (internal quotation marks omitted). And, we “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id.
Here, Lewis has failed to demonstrate that counsel's strategy to have her plead guilty and take advantage of her statutory right to have a judge sentence her was unsound. And Lewis' current claim-that she would have insisted on pleading guilty and have a jury determine her sentence-is wholly inconsistent with this reasonable and agreed-upon strategy at the time. In sum, Lewis' current claim “suffer[s] from the classic hindsight that we are cautioned not to apply to upset state court judgments.” Emmett, 474 F.3d at 171.FN9 Accordingly, even if we were to determine that counsel should have been aware of a potential Apprendi/Ring challenge to the state statute, counsel's failure to raise the issue with Lewis and preserve the challenge before the trial judge in the circumstances of this case did not amount to objectively unreasonable performance.
FN9. We also note that, in contrast to the many ineffective assistance of counsel claims that require state and federal habeas courts to consider after-the-fact explanations by defense counsel regarding their investigations and strategy decisions, Lewis' counsel's strategy was quite clearly laid out in a comprehensive letter to the defendant and signed by her. This was followed by the trial judge clearly advising Lewis that she was waiving her right to a jury and that she would be sentenced by him instead.
For the same reasons, Lewis has failed to demonstrate that she was prejudiced by counsel's failure to raise the potential Apprendi/Ring challenge to the statute. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052. In order to demonstrate such prejudice, Lewis must show that there is a reasonable probability that she would have pleaded guilty and demanded a jury sentencing. Lewis does summarily now contend that she would have done so, asserting that this would have allowed her to demonstrate to the jury that she was remorseful and had accepted responsibility for her crimes. However, this assertion wholly ignores the agreed-upon strategy at the time, which was not simply to plead guilty in order to bolster the evidence of Lewis' cooperation and confession, but rather to achieve the goal of removing the sentencing decision from the hands of the jury and placing it with a judge the defense reasonably believed would be more inclined to sentence her in parity with her coconspirators. There were but two means to employ this strategy. The prosecutor had to consent to trial by jury on guilt and sentencing before the judge, which would not have served any of Lewis' goals, or Lewis had to plead guilty in order to take advantage of the very statute she now seeks to challenge. Accordingly, Lewis has failed to demonstrate a reasonable probability that, had counsel recognized a potential challenge to the constitutionality of the statute and advised her of that potential challenge, she would have abandoned the agreed-upon strategy and opted instead to plead guilty and insist upon a sentencing proceeding before a jury.FN10
FN10. To the extent Lewis presses her claim that she has demonstrated prejudice from counsel's failure to preserve the Apprendi/Ring challenge to the state statute because there is a reasonable probability that the death sentence she received from the trial judge would have been reversed by a federal court, we are unpersuaded. Lewis' attempt to demonstrate prejudice in this way is more accurately described as a claim that her counsel's performance was deficient because they failed to advance an argument before the trial judge that they did not wish to prevail upon, solely for the purpose of setting up an appealable ground should their actual strategy fail. Although the Constitution guarantees criminal defendants a competent attorney, and one that employs reasonable strategies for success, it does not require defense counsel to engage in such judicial game-play, and the speculation required to guess what might have occurred had counsel made the attempt falls far short of the standard necessary for federal habeas courts to upset valid state court judgments.
C.
Having fully considered the record in this case, we agree that Lewis has failed to demonstrate that counsel's failure to preserve and advise her of a possible Apprendi/Ring challenge to the constitutionality of Va.Code Ann. § 19.2-257 rises to the level of constitutionally deficient representation and has also failed to demonstrate that she was prejudiced as a result of counsel's alleged deficiencies. Accordingly, we affirm dismissal of her ineffective-assistance-of-counsel claims on the merits, as well as the dismissal of her procedurally defaulted challenges to the statute and her guilty plea.
V.
For the foregoing reasons, we affirm the district court's denial of habeas relief. AFFIRMED
•Defendants in Similar Cases Got Life
•Teresa's Disabilities
•Petition denied on Sept. 17, 2010
•Request to reconsider submitted on Sept. 20, 2010
•Reconsideration denied on Sept. 20, 2010
•Rev. Lynn Litchfield
•Teresa's Son Billy Jr.
•Teresa's Stepmother Brenda
•Dr. Costanzo
DOB: 04-26-69
Race: W
Venue: Pittsylvania County
Inmate Number: 321094
Date Entered: 06-4-03
April 26, 1969(1969-04-26)
Pittsylvania County, Virginia, U.S.
Died September 23, 2010 (aged 41)[1]
Greensville Correctional Center, Jarratt, Virginia, U.S.
Executed on September 23, 2010
Spouse Julian C. Lewis Jr. (murdered)
Children Charles Lewis, stepson (murdered)
Christie Lynn Bean, daughter