Executed March 18, 2010 9:09 p.m. by Electric Chair in Virginia
11th murderer executed in U.S. in 2010
1199th murderer executed in U.S. since 1976
1st murderer executed in Virginia in 2010
106th murderer executed in Virginia since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
||||
(11) |
Paul Warner Powell W / M / 20 - 31 |
|
Stacie Reed W / F / 16 |
Citations:
Powell v. Commonwealth, 552 S.E.2d 344 (Va. 2001) (Direct Appeal-Reversed).
Powell v. Commonwealth, 590 S.E.2d 537 (Va. 2004) (Direct Appeal).
Powell v. Warden of Sussex I State Prison, 634 S.E.2d 289 (Va. 2006) (State Habeas).
Powell v. Kelly, 562 F.3d 656 (4th Cir. 2009) (Federal Habeas).
Final/Special Meal:
Not released to the public.
Final Words:
Declined.
Internet Sources:
"Powell executed for teen’s 1999 murder in Manassas," by Frank Green. (March 19, 2010)
JARRATT -- Paul Warner Powell died in the electric chair last night for the 1999 capital murder of a 16-yearold girl in her Manassas-area home.
Powell, 31, was sentenced to death for the Jan. 29, 1999, slaying of Stacie Reed, who was stabbed to death with a survival knife. After killing her, Powell then waited for her 14-year-old sister to return home from school, raped her, cut her throat, and left her for dead. Kristie Reed lived and testified against him.
Given a chance to make a last statement, Powell declined. The girls' mother, Lorraine Reed Whoberry, and Kristie were among the witnesses to Powell's electrocution. He was pronounced dead at 9:09 p.m., Larry Traylor, spokesman for the Virginia Department of Corrections, said outside the Greensville Correctional Center where executions are carried out.
A half-dozen members of Virginians for Alternatives to the Death Penalty held a candlelight vigil in a field near the prison. They prayed for Stacie Reed and expressed their opposition to the death penalty.
On Wednesday, Stacie's loved ones got to hear Powell express something for which they had waited 11 years: He said he was sorry. Whoberry, who now lives in Cincinnati and was in the Richmond area on her way to witness the execution, revealed yesterday that she had a conference call with Powell the previous day. "He was able to say he was sorry, and he made the point several times that [the crime] was senseless, it was pointless. . . . He couldn't really give us a reason why," she said. "I think it was heartfelt. It wasn't a big to-do thing. It was just a simplistic, 'I'm sorry,' and I accept that," Whoberry said.
Powell's lawyer Jonathan P. Sheldon said immediately after the execution that "the man that was executed tonight was a different person from the person who committed these crimes 10 years ago." Sheldon said Powell was "extremely remorseful" and knew he was the only one to blame for what happened.
Prince William County Commonwealth's Attorney Paul B. Ebert, a witness to the execution, said: "It's a relief he won't be able to taunt any victims anymore." Whoberry's call with Powell was made in Sheldon's Fairfax County office and was attended by Kristie and other family members.
Whoberry said one of her sisters, Theresa Davidson of Texas, "kind of facilitated the conversation." The call lasted, with some interruptions, for an hour to an hour and a half. "As the conversation went on, he was able to open up a little bit more. He wasn't belligerent, he didn't raise his voice. It was very civil," she said. "The questions that we asked, he answered to the best of his ability." "I did ask him at some point if he had forgiven himself, and he got emotional and he said, 'No.' "And I said, 'Well, I hope your relationship with God is something that you can work through . . . before tomorrow night,' and we let him know that we are praying for him and his mom, his family," Whoberry said.
Sheldon said last night that he and Whoberry hoped to work together to get legislation passed that would enable loved ones to visit with inmates on death row. He said that the conference call was "so productive for both sides. . . . It allowed him to take responsibility and to show remorse." However, he said, it being over the telephone took something away from it.
Whoberry said she has forgiven Powell, for her own sake, and that she had hoped to meet with him. Authorities denied permission for a meeting with Powell, who was abusive toward the family and law-enforcement officials in letters after his arrest.
Powell's first capital murder conviction was thrown out on appeal. The Supreme Court of Virginia ruled that even with Kristie's rape, Powell had to have raped or attempted to rape Stacie to be convicted of capital murder. Believing he no longer could face a death sentence, he wrote Ebert an abusive letter in which he admitted he attempted to rape Stacie and boasted about the crimes in horrific detail.
The letter provided grounds for Powell to be tried again for capital murder and sentenced to death. All of his appeals were rejected, and Gov. Bob McDonnell turned down his clemency request last week. Powell boasted about the crimes in his letter to Ebert.
"It was heart-wrenching to read that letter. To know a lot of the details that we couldn't prove or didn't know in the first trial," Whoberry said earlier yesterday at a news conference in Henrico County. "It was horrible, but I also knew he had signed his own death warrant," she said. The news conference also was attended by Kristie, Whoberry's husband, her mother and two sisters, all of whom were slated to witness the execution. "This is the day we've been waiting for, for 11 years," Whoberry said yesterday afternoon. "There really aren't any words to express how I feel right now. . . . I know that for myself, it's been a long road."
"Hopefully, when this is done and it is final, we can look back and find the positive things that came out of this that we strived so hard to make happen. My thoughts and prayers go out to his family." "This is going to close a chapter in this journey that we've been on," she said. "I can't imagine what he is feeling," she said around 4 p.m. "But, again, it was his decision to do what he did, not mine. I know that justice will be served according to whatever God has in mind for him."
Powell chose to die in the electric chair instead of by injection. Virginia death row inmates were given the choice starting in 1995. If an inmate refuses to choose, injection becomes the default method. Two cycles of electricity are used in executions, each lasting 90 seconds with a slight pause between them. Since the choice was made available, 76 inmates have died by injections and now six by electrocution.
Powell's execution was the 106th in Virginia since the U.S. Supreme Court allowed the death penalty to resume in 1976. His death leaves 12 men and one woman sentenced to death in the state.
Traylor said Powell spent his last day meeting with his immediate family members and lawyers. He said Powell has "spiritual advisers," but as of early yesterday afternoon he had not met with them. Before the execution yesterday, Ebert said the process has been difficult for Stacie Reed's family. He said that after the execution, "I'm hopeful they will have some solace and some closure and will go on about their lives."
"Man who bragged about crime executed," by Dena Potter. (Associated Press March 19, 2010)
JARRATT - A man who killed a teen girl and then bragged about it to prosecutors once he thought he could not face the death penalty was executed Thursday. Paul Warner Powell, 31, died by electrocution at 9:09 p.m. at Greensville Correctional Center in Jarratt. He chose electrocution rather than lethal injection.
Powell appeared emotionless as guards strapped him to the oak chair and attached metal clamps to his right calf and head. When asked if he had any last words, he remained silent and stared at the ceiling.
Powell was convicted in 2000 and sentenced to death for fatally stabbing 16-year-old Stacie Reed of Manassas. He also raped and attempted to kill her 14-year-old sister. The Virginia Supreme Court overturned that verdict, and Powell wrote a taunting letter to prosecutors detailing the crime. He was convicted again in 2003.
In his four-page, profanity-laced letter to Prince William County Commonwealth's Attorney Paul Ebert, Powell described how he went to Stacie's house because he was angry at her for having a black boyfriend. He wrote that he attempted to rape her and then stabbed her in the heart when she fought off his advances.
Afterward, Powell went downstairs, smoked a cigarette, drank some iced tea and waited for her younger sister, Kristie, to come home from school. He raped her, slit her throat, stabbed her and left her for dead. Kristie survived and testified against Powell. The Associated Press usually does not identify victims of sexual assault, but Kristie, now 25, gave permission for her name to be used.
Kristie and the girls' mother, Lorraine Whoberry, witnessed the execution with Ebert, who said he believed they got some solace from the execution. "Being able to witness him leave the earth was an emotional experience for them, but an experience that gave them a lot of relief," he said.
Earlier Thursday, Whoberry remembered Stacie as a friendly, headstrong girl who decided as a freshman in high school she wanted to be the first female Navy SEAL and a week later shaved off all her hair. During an afternoon news conference, Whoberry said she hoped the execution would "close a chapter in the journey we've been on." Kristie declined to make a statement.
Later, the family told the Richmond Times Dispatch that they talked with Powell by phone for more than an hour on Wednesday. "He was able to say he was sorry, and he made the point several times that (the crime) was senseless, it was pointless ... he couldn't really give us a reason why," Whoberry told the newspaper. "It was just a simplistic, 'I'm sorry,' and I accept that."
Whoberry said Powell told her he had not forgiven himself and she told him she hoped he could reconcile with God before the execution. "We let him know that we are praying for him and his mom, his family," she said. Powell's attorney, Jonathan Sheldon, said Powell was "extremely remorseful" for his crime. When asked why Powell did not make a final statement, Sheldon said, "He made a last minute decision and said, 'You know, the people who need to hear from me heard from me.'"
Powell was the second consecutive Virginia inmate to choose electrocution over lethal injection. Larry Bill Elliott was electrocuted in November. Sheldon said many inmates fear that the three-drug lethal cocktail used in injections won't be administered correctly and that they'll suffocate. "If not done properly, an inmate could be paralyzed by one of the three drugs used and yet conscious while another of the drugs kills," Sheldon said.
Of the 35 death penalty states, seven Southern states still offer electrocution. Powell was the 106th Virginia inmate executed since the U.S. Supreme Court reinstated capital punishment in 1976. Only Texas, with 451, has executed more inmates.
"Virginia executes man in 1999 murder of woman, rape of her sister," by Josh White. (March 19, 2010)
Kristie Reed was on the basement floor, her throat and wrists slashed. Her older sister, Stacie, was upstairs, dead from a stab wound to the heart. When police reached Kristie, who was then 14 years old, an officer leaned in and asked who had done this to her. Kristie mouthed two words: "Paul Powell."
On Thursday night, more than 11 years later, Paul Warner Powell, 31, was executed in Virginia's electric chair. He was declared dead at 9:09 p.m. The Jan. 29, 1999, murder of one sister and the rape and near-slaying of the other in Manassas were among the most notorious crimes in the region's recent history.
Besides the savage attacks, the case was known for Powell's boastful jailhouse letter to Prince William County's chief prosecutor, which provided the crucial evidence that resulted in Thursday's execution. But it was Kristie Reed's eyewitness account that led to Powell's arrest and admission just hours after the slaying. She is left with decade-old memories of her sister and a neck laced with what she calls "battle scars." Formerly against the death penalty, Kristie eagerly awaited Powell's execution.
"I need to know that he's gone, that we don't have to deal with this anymore," said Kristie Reed, now 25 and an advocate for rape victims. "I was totally against the death penalty before this happened, and I didn't know why people would want to do it. But those people haven't been through what we've been through. Now I'm totally for it. He definitely deserves to die. He needs to die for what he did to Stacie."
In the end, Powell was silent. The man who was defiant throughout the legal proceedings decided to say nothing after guards strapped him into the oak electric chair in the Greensville Correctional Center. He stared ahead when asked whether he wanted to say anything.
Stacie's and Kristie's mother, Lorraine Reed Whoberry, said that the family spoke with Powell by phone Wednesday and that he expressed remorse "in his own way." Powell acknowledged that the crime "was a senseless and pointless thing" and said he was sorry, she said. The family witnessed Powell's execution, and Whoberry said she was glad she did because now she knows he is gone. "Justice was served, and this chapter has closed," she said.
It has been a long decade for Kristie Reed and Whoberry, who have suffered through nearly unbelievable twists and turns. Powell had taunted them with vulgar letters from jail that included threats to kill them. And the legal case was emotional and difficult. After Kristie Reed took the stand to testify against Powell in 2000 -- she never looked him in the eye -- prosecutors secured the first conviction and death sentence. At the hearing in which the judge imposed the jury's sentence, the forewoman testified on Powell's behalf, saying that she loved him and had made the wrong decision.
In 2001, the Virginia Supreme Court threw out Powell's death sentence, ruling that the murder of one girl and the rape of another could not be considered the same crime -- a factor necessary for the death penalty. After the ruling, Powell wrote an insulting letter to prosecutors. But in it, he admitted that he had tried to rape Stacie Reed, too. That admission tied Stacie's attempted rape to her slaying and led prosecutors to re-indict him. He was convicted and sentenced to death a second time after another full trial in 2003.
Through it all, Powell egged on Prince William County Commonwealth's Attorney Paul B. Ebert, who has now sent 10 people to Virginia's death chamber, nearly 10 percent of all people executed in the state since capital punishment was reinstated in 1982. Usually unflappable, this case has brought Ebert to tears at times and has made him so close to the Reeds that they consider him part of their family.
"Post reporter recounts Paul Powell's execution," by Josh White. (March 19, 2010; 8:00 AM)
I was on the scene in Manassas on Jan. 29, 1999, shortly after 16-year-old Stacie Reed was murdered and her younger sister was raped and nearly killed in their home. It was the first major crime I covered for The Post. The crime itself was shocking: Two young girls brutally attacked in their own home by a man not
much younger than I was. It began an 11-year journey that included nearly unbelievable twists at almost every stage of the case against Paul Warner Powell, who was executed in Virginia on Thursday night. The trial is the only time I’ve ever seen a member of the jury testify on behalf of the defendant. It is the only case I’ve covered during which the defendant sent vulgar and intimidating letters to the family of his victims. And it is the only case I’ve ever heard of that involved a defendant beating his death sentence -- only to turn around and admit additional elements of the crime to a prosecutor, which then led to another death sentence. It was also one of those rare cases in which there was no question who the assailant was -- Kristie
Reed survived the attack and identified Powell -- and that he did, in fact, commit the crime. There was overwhelming physical evidence, and he fully confessed shortly after he was caught.
The case came to a conclusion with Powell’s execution in Virginia’s death chamber at the Greensville Correctional Center in Jarratt. He was 31 years old. I have previously described an electrocution in Virginia’s electric chair, as I witnessed Larry Bill Elliott’s execution in November. This one was quite similar. Powell was moved from death row at nearby Sussex I prison in southern Virginia a few days before the execution and put in one of three cells that directly adjoin the death chamber in Greensville’s “L Unit.” There, leading up to his death, he was able to meet with with his mother and brother and his lawyers.
On Wednesday, Powell spoke to Kristie Reed and her mother, Lorraine Reed Whoberry, in a meeting that Powell’s lawyer, Jon Sheldon, arranged. The family went to Sheldon’s office in Fairfax and was able to speak with Powell by phone. Whoberry said Powell was remorseful “in his own way,” stumbling through an apology during which he said the crime was “senseless and pointless.” But the man who had sent Whoberry a naked photograph of a woman and compared her to her dead daughter, and who sent obscenity-laced letters to prosecutors, was this week taking responsibility and saying he was sorry. Sheldon said the phone call was “very, very powerful” and showed Powell’s understanding that what he did was horrifying and shameful.
But the phone call produced no answer to why the attack happened. “There is no why,” Sheldon said. “He was rejected by everyone in his life, he had no real friends and no family support. There isn’t a satisfying answer and it’s extremely frustrating. Stacie rejected Paul, and for very good reason. He just couldn’t take another rejection.”
Powell spent Thursday preparing to die. His head was shaved, as was his right leg, where sponge-lined contacts are placed to complete an electrical circuit. Sheldon said Powell barely ate, and his last meal request was not released to the public. Media witnesses entered the death chamber at 8:40 p.m. We were led into a small room inside the chamber. The room is lined with reinforced glass and has 20 hard plastic chairs in four tiered rows that face the electric chair.
At 8:53 p.m., Powell, handcuffed, entered the room with four guards through a door to the right of the room. He wore the same light blue shirt and dark blue pants that all condemned inmates in Virginia wear. The right pants leg was cut off above the knee. He wore flip-flops. Powell looked gaunt and pale. He had a stern look and held his chin high. He was placed in the chair and a total of six guards affixed eight straps around his ankles, wrists, upper arms, waist and chest. A clamp was attached to his right leg below the knee, and a metal skullcap was placed on his head with a chin strap. Powell swallowed hard and his eyes darted around the room.
At 8:58 p.m., an official switched on a microphone in the room and Powell was asked if he had anything to say. He just stared straight ahead and said nothing. A minute later, a face mask was put in place, covering him from forehead to chin with just his nose exposed. A guard wiped his face and leg with a white towel. After a key was turned in the far right rear of the room, activating the system, a man concealed in an adjoining room hit the “execute” button on a machine that was described as being about the size of a top-loading clothes washer. It was precisely 9 p.m.
There was a thump as Powell’s body jerked back into the chair. His hands clenched into tight fists and veins swelled as his arms turned red. Smoke rose from his leg. Officials said 1800 volts at 7.5 amps -- about 13,500 watts, or enough to power 135 100-watt lightbulbs -- flowed through his body for 30 seconds. That was followed by 240 volts at 1 amp for 60 seconds. The cycle repeated. With the second major jolt, smoke and sparks emitted from Powell’s right leg. His knee appeared to swell and turn purple. His knuckles went white.
At 9:03, the electricity stopped. Everyone waited in silence for five minutes. At 9:08, a guard walked up to Powell and opened his shirt. A doctor emerged from a door on the left side of the room and placed a stethoscope on Powell’s chest in search of a heartbeat. There was none. He was pronounced dead at 9:09 p.m., and a curtain was drawn.
Whoberry and Reed watched the execution from behind one-way glass. They were joined by Commonwealth’s Attorney Paul B. Ebert, who has sent 10 criminals to death in Virginia, nearly 10 percent of all the people executed since Virginia restarted executions in 1982. Ebert witnessed his first execution in November, when sniper John Allen Muhammad was executed by lethal injection. Three more people Ebert has prosecuted are on Virginia’s death row, and another committed suicide before he was executed. Ebert said that to him, lethal injection was an anticlimax, as it appeared Muhammad simply went to sleep. Electrocution, Ebert said, appeared to have more finality to it. “It was a little more vivid,” Ebert said afterward. “It felt more meaningful and impressive. But it was still a much more gentle death than Stacie’s.”
Richard Leonard, who as a Prince William County police detective interrogated Powell and elicited his confession in 1999, also witnessed the execution and said that it put to rest an 11-year saga and one of the worst cases he’s seen in a career that spans more than three decades. “It involved kids. It was horrible,” Leonard said. “It was such a senseless, terrible thing that happened to a nice family. It changed all of their lives. … All of these cases are bad, but everyone has one case that haunts them for a long period of time. This is that case.”
"Paul Powell dies in electric chair," by Amanda Stewart. (March 18, 2010)
JARRATT, Va.—Paul Warner Powell, who killed a 16-year-old Yorkshire girl and bragged about it in a letter to prosecutors, was put to death in Virginia’s electric chair Thursday. Powell, 31, was pronounced dead at 9:09 p.m. at the Greensville Correctional Center in Jarratt. He did not make statement.
Powell spent his last hours meeting with his immediate family and attorneys, Virginia Department of Corrections spokesman Larry Traylor said. Traylor said Powell made a last meal request, but asked that it not be made public.
Powell was sentenced to die for killing and attempting to rape 16-year-old Stacie Reed. On Jan. 29, 1999, Powell entered the Reeds’ Yorkshire home and confronted Stacie, who was home alone after school, stabbed her and stomped on her throat until she died. Powell said he was angry that Stacie had a black boyfriend. Powell then waited in the house, drinking iced tea and smoking a cigarette, until 14-year-old Kristie came home from school. He tied her up, raped her and stabbed her and left her to die in the basement. Kristie survived and testified against Powell. Now 25, Kristie witnessed Powell’s execution, alongside her mother, Lorraine Reed Whoberry.
On Wednesday, a day before Powell was set to die, Whoberry said she and her family were ready for the execution to happen and to “close a chapter” in their lives. “We’re all kind of anxious, not knowing what to expect,“ Whoberry said. “I’m trying not to go with any expectations. I’m just hoping I can get through this and be strong for Kristie.“
Whoberry, who started the S.T.A.C.I.E. Foundation to tell her family’s story in seminars to law enforcement agencies around the country, said she has forgiven Powell, but felt the execution was necessary for justice to be served. Whoberry told the Richmond Times Dispatch that they talked with Powell by phone for more than an hour on Wednesday. “He was able to say he was sorry, and he made the point several times that (the crime) was senseless, it was pointless ... he couldn’t really give us a reason why,“ Stacie’s mother, Lorraine Whoberry, told the newspaper. “It was just a simplistic, ‘I’m sorry,‘ and I accept that.“
Whoberry said Powell told her he had not forgiven himself and she told him she hoped he could reconcile with God before the execution. “We let him know that we are praying for him and his mom, his family,“ she said. Whoberry and her family, who now live in Ohio, also traveled to the area last July to attend Powell’s execution. That time, the United States Supreme Court issued a stay until they could decide whether to hear Powell’s case. In January, the high court decided it would not intervene. Last week, Virginia Gov. Bob McDonnell also said he would not stay the execution. It was the first capital case to come before the new governor.
Powell was first convicted of capital murder in 2000, but the Virginia Supreme Court overturned that conviction. Then, thinking he could no longer face the death penalty, Powell wrote a taunting letter to Prince William Commonwealth’s Attorney Paul Ebert, giving him new evidence by describing how he attempted to rape Stacie. Ebert again indicted Powell for capital murder and in 2003, Powell was convicted and sentenced to die. Ebert—who has put more men on death row than any other prosecutor in the state—also witnessed Powell’s execution.
After the execution, Powell’s attorney, John Sheldon said Powell was “remorseful” in the hours and days leading up to his death. “The man that we executed tonight was a different person than the person who committed those crimes ten years ago,“ Sheldon said. “He was very remorseful and very aware that he brought this on himself.“
Ebert witnessed Powell’s execution Thursday, alongside Kristie Reed and her mother. “I can’t speak for the family, but my sense is this will give them solace and closure,“ Ebert said.“They can go on with their lives.“
Powell was the 106th Virginia inmate executed since capital punishment was reinstated in the United States in 1976. Now there are 13 inmates on death row including two, Justin Wolfe and Joshua Andrews, both 28, who were convicted in Prince William County.
In January 1999, Robert Culver and his fiancée, Lorraine Reed, lived together in a small brick home on McLean Street in Manassas, Virginia, with Reed's two daughters, Stacey Lynn Reed and Kristie Erin Reed. On January 29, 1999, Paul Warner Powell, then 20, went to visit the Reeds' home. Powell was carrying two knives and a 9 mm handgun. Stacey, then 16 years old, left home to go to work, and Powell remained there alone with Kristie, who was 14. That afternoon, Kristie called her mother by telephone and informed her that Powell refused to leave the home. Kristie's mother told Kristie to order Powell to leave. Kristie was concerned because Powell "kept walking back and forth down the hallway looking in the rooms."
On the afternoon of January 29, 1999, Kristie arrived home from school and was startled to find Powell in her house. She asked Powell "where Stacey was." He replied, "she was in her room." Kristie walked to Stacey's room, but Stacey was not there. Then, Kristie turned to enter her own room and saw Stacey's body lying on the floor. Powell, who had followed Kristie to the bedroom ordered Kristie to go downstairs to the basement. Kristie knew that Powell customarily armed himself with a knife. She had previously observed Powell with a butterfly knife and "another long knife that was in a brown pouch type thing."
Powell forced Kristie to accompany him to the basement, where he ordered her to remove her clothes. She took her clothes off because she "didn't want to die." Powell told Kristie to lay on the floor, and then he raped her. After Powell raped Kristie, he dressed himself, and he used shoelaces taken from Kristie's shoes to tie her feet together. He also used shoelaces to tie her arms behind her back. Someone knocked on the door to the house, and Powell went upstairs, leaving Kristie naked and bound on the basement floor. While Powell was upstairs, Kristie was able to free her hands, and she tried to "scoot" across the floor and hide beneath the basement steps. Powell returned to the basement, removed Kristie's eyeglasses, and strangled her until she was unconscious. Powell stabbed Kristie in the stomach, and the knife stopped within a centimeter of her aorta. He slashed her in her neck numerous times, and the repair of the knife wounds required 61 sutures. She had multiple stab wounds to her neck and abdomen. She also had wounds on her wrists.
Robert Culver arrived at the home at 4:15 p.m. on January 29, 1999. He could not locate Kristie or Stacey. He went to the girls' bedrooms and saw that Stacey's room was in disarray. He entered Kristie's room, turned on the lights, and found Stacey's body on the floor. He observed blood on her body and saw that she was not breathing. When Culver went to the basement in search of a telephone, he discovered Kristie lying naked and bound on the floor, bleeding from her neck and stomach. He saw that she had been stabbed in the stomach and her "throat was slit pretty severely, many times." Culver found a telephone, dialed 911, and spoke to emergency response personnel.
In a recent interview, Robert Culver said the worst part for him are the regrets of that day. He says he had a cold and that his boss told him he could leave early on that day. He almost took him up on the offer, but didn't want the girls to think he came home early because he didn't trust them to be alone. "Little things like that," he said. "I should have been home." Although Kristie was experiencing life-threatening injuries, she was able to tell police officers and paramedics that Paul Powell was her assailant.
Stacey's death was caused by a stab wound to her chest. The wound pattern indicated that the blade of the knife pierced her heart and was twisted upon withdrawal. The blade of Powell's knife was consistent with the stab wounds. There were numerous bruises on Stacey's head, neck, chest, abdomen, back, arms, and legs. She suffered stab wounds in her back and arm. She also had abrasions on her left hand and wrist that were characterized as defensive wounds. Stacey's body contained bruises on her lower neck that were consistent with someone stepping or stomping on her face and neck. Police officers arrested Powell on January 30, 1999 at the home of a friend. The police officers also located a blue sports bag that belonged to Powell. A nine-millimeter semiautomatic pistol with a full magazine containing 10 Winchester nine- millimeter cartridges was in the bag. The bag also contained a survival knife with a five and one-half inch blade inside a black sheath and a butterfly knife with a five inch blade. The survival knife sheath contained a dark reddish-brown stain. The DNA profile obtained from the stain on the sheath was consistent with the DNA profile of Stacey Reed and different from the DNA profile of Kristie Reed and Paul Powell. The probability of selecting an unrelated individual with a matching DNA profile is approximately one in 1.1 billion in the Caucasian population.
After his arrest, Powell consented to several interviews with police officers. During one interview, he stated that he had been at the Reeds' home on January 29, 1999 and that Stacey was dead because "she was stupid." Powell told the police officers that he and Stacey had an argument because she had a black boyfriend, and Powell "didn't agree with interracial dating." Powell claimed that during the argument, Stacey attacked him and scratched his face, and then he pushed her to the floor. He claimed that Stacey attacked him again, and that she "got stuck" on his knife. Powell also initially denied raping Kristie.
In a second statement to police officers, Powell admitted that he raped Kristie. The detective who interviewed Powell testified that Powell stated that he had to kill Kristie because "she was the only witness and he would have to go to jail." Powell was sentenced to death in August, 2000. In 2001, the Virginia Supreme Court overturned his death sentence, saying that prosecutors had failed to prove that Powell had raped Stacey which was part of the reason for defining the case as a capital murder. A murder that is committed in conjunction with another felony is one of the requirements for a death sentence and the appeals court felt that the rape of Stacey's sister Kristie was a separate act.
Under the erroneous assumption that this meant he could no longer face the death penalty, Powell wrote two letters to the Commonwealth's Attorney of Prince William County, Paul Ebert. Below is the content of a letter that Powell wrote, dated October 21, 2001. "Mr. Ebert, Since I have already been indicted on first degree murder and the Va. Supreme Court said that I can't be charged with capital murder again, I figured I would tell you the rest of what happened on Jan. 29, 1999, to show you how stupid all of y'all mother f*ckers are. Y'all should have known that there is more to the story than what I told by what I said. You had it in writing that I planned to kill the whole family. Since I planned to kill the whole family, why would I have fought with Stacie before killing her? She had no idea I was planning to kill everybody and talked and carried on like usual, so I could've stabbed her up at any time because she was unsuspecting. I had other plans for her before she died.
"You know I came back to the house after Bobby's lunch break was over and he had went back to work. When I got back, she was on the phone so I went inside and I laid down on the couch. When the cab came to bring me my pager, I ran out of the house and she jumped and got off the phone and came off the porch to see why I ran out of the house like I did. When the cab left we went in the house. I laid on the couch again and she went to her room and got her clothes and went downstairs to do her laundry. When she went downstairs, I got up and shut and locked the back door and went downstairs. We talked while she put her clothes in the wash. We continued talking when she had everything in the wash and I reached over and touched her ti+ and asked if she wanted to f*ck. She said no, because she had a boyfriend. I started arguing with her because she had never turned anybody down because of having a boyfriend. We started walking upstairs, arguing the whole time. When we got upstairs we went to her room and she turned the radio off. After she turned the radio off I pushed her onto her bed and grabbed her wrists and pinned her hands down by her head and sat on top of her.
"I told her that all I wanted to do was f*ck her and then I would leave and that we could do it the easy way or the hard way. She said she would f*ck me so I got up. After I got up, she got up and started fighting with me and clawed me face. We wrestled around a little and then I slammed her to the floor. When she hit the floor I sat on top of her and pinned her hands down again. She said she would f*ck me and I told her that if she tried fighting with me again, I would kill her. When I got up she stood up and kept asking me why I was doing this and all I kept saying is take your clothes off. Finally she undid her pants and pulled them down to her ankles. She was getting ready to take them the rest of the way off and the phone rang. When she heard the phone she pulled her pants back up and said she had to answer the phone. I pushed her back and said no. She said that she wouldn't say anything about me being there and I told her no and to take her clothes off. She tried to get out of the room again and I pushed her back and pulled out my knife. I guess she thought I was just trying to scare her and that I wouldn't really stab her because she tried to leave again. When she got to me and tried to squeeze between me and the door jam I stabbed her. When I stabbed her, she fell back against the door jam and just looked at me with a shocked look on her face. When I pulled the knife out she stumbled a couple steps and fell in her sister's room. I walked over and looked at her. I saw that she was still breathing so I stepped over her body and into the bedroom. Then I put my foot on her throat and stepped up so she couldn't breathe. Then I stepped down and started stomping on her throat. Then I stepped back onto her throat and moved up and down putting more pressure to make it harder to breathe. When I didn't see her breathing anymore, I left the room and got some iced tea and sat on the couch and smoked a cigarette.
"You know the rest of what happened after that point. I would like to thank you for saving my life. I know you're probably wondering how you saved my life, so I'll tell you. You saved my life by f*cking up. There were 2 main f*ck-ups you made that saved me. The first was the way you worded my capital murder indictment. The second was the comment you made in your closing argument when you said we won't know because he won't tell us. One more time, thank you!
"Now y'all know everything that happened in that house at 8023 McLean St. on Jan. 29, 1999. I guess I forgot to mention these events when I was being questioned. Ha Ha! Sike! I knew what y'all would be able to prove in court, so I told you what you already knew. Stacey was dead and no one else was in the house so I knew ya'll would never know everything she went through unless she came back to life. Since the Supreme Court said I can't be charged with capital murder again, I can tell you what I just told you because I no longer have to worry about the death penalty. And y'all are supposed to be so goddamn smart. I can't believe that y'all thought I told you everything. Well, it's too late now. Nothing you can do about it now so f*ck you you fat, c*cksucking, c*m guzzling, gutter slu+. I guess I'll see your bi+ch a$$ on Dec. 18 at trial because I'm not pleading to shi+.
"Tell the family to be ready to testify and relive it all again because if I have to suffer for the next 50 or 60 years or however long then they can suffer the torment of reliving what happened for a couple of days. I'm gone. F*ck you and anyone like you or that associates with people like you. I almost forgot, f*ck your god, too. Jesus knows how to suck a d*ck real good. Did you teach him? Well, die a slow, painful, miserable death. See ya punk. Do you just hate yourself for being so stupid and for f*ckin' up and saving me? Sincerely, Paul Powell."
In a statement to a police officer on November 2, 2001, Powell gave the following description of Stacey's murder: "She walked over to and uh I pushed her back. And then she walked over to me again I think and then I pulled my knife out and you know, and she looked at me you know. I guess she thought I wouldn't stab her or whatever. So she tried to leave and go to answer the phone. That's that. . . . . After she got stabbed, she just looked at me for a minute you know and then you know, she . . .she was surprised and them um, I pulled the knife out, you know she stumbled a few steps, fell down in Christy's doorway. I just walked over and looked at her. And I stepped over top of her and stepped on her throat and then stood on her throat and then stomped on her throat . . . then I stood on her throat until I didn't see her breathing no more. . . . .What I'm saying I was stepping on her. I'm saying I put all my weight on her. I'm saying that I put my foot there you know and then I lifted myself up to where I was standing on top of her. Started stomping on her throat. And then man, I just stood on her throat again until I didn't see her breathe no more." Before he raped Kristie, Powell knew that he intended to kill her. In response to a police officer's question: "Before you raped Kristie, you knew you were going to kill her; didn't you?", Powell responded: "I really didn't have a choice; did I?"
While incarcerated in jail awaiting his capital murder trial, Powell sent a letter to Lorraine Reed, the mother of Stacey and Kristie. Powell enclosed a photograph of a partially nude woman. Powell wrote: "Lorraine, I was wondering if you might be able to help me think of something. I found this picture in a magazine and it kinda looks like someone I know or used to know, but I can't think of the persons name. I think you know the person too, so I was wondering if you could tell me the name of the person this picture resembles so I can quit racking my brain trying to think of it? I would appreciate it. If you don't know the person I'm talking about, ask Kristie or Kelly Welch because I know they know who I'm thinking of. If you talk to the person I'm talking about, please give her my address and tell her to write me." The partially nude woman shown in the photograph resembled Lorraine Reed's daughter, Stacey.
Powell wrote a letter to a friend while he was incarcerated. He stated: "About when you asked me why I wouldn't do to you what I did to Stacie, I couldn't ever hurt you because you mean to much to me. See Stacie didn't mean anything to me. She was a ni**er lover and some of her wannabe skin head friends were supposed to kill me. That's part of the reason why she died. Almost everything that happened in that house was planned. The only thing that wasn't planned was trying to f*ck Kristie. What was supposed to happen was, Stacie was supposed to die, and did, Kristie was supposed to die and then I was going to wait for their mom and stepdad to get home and I was going to kill them and then I was going to take their moms truck and then I was gonna go to North Carolina and knock this dude off that stole all of my clothes and everything else I owned. I had been thinking about doing it for along time but I could never bring myself to do it. I don't know what happened to make me finally do it. I feel bad for doing it. Stacie was a good kid."
Powell wrote, in another letter: "Hey babe, what's happening? Not too much here. I writing you to see if you could get one of your guy friends to do me a favor. You know that Kristie is telling the cops things and that she is going to testify against me in court. I was wondering if you could get somebody to go to a pay phone and call Kristie and tell her she better tell the cops that she lied to them and tell her she better not testify against me or she's gonna die."
Powell sent the following letter to the Commonwealth's Attorney of Prince William County: "Fat Ebert, "What's up you fat head f*cker? I'm just writing to tell you, since you want to kill me so Goddamn bad for killing your ni**er loving whore, set up a court date closer than Oct. 25 so I can go ahead and get this bullshi+ over with and plead guilty so you can kill me and get it over with, unless you want to let me out so I can kill the rest of the ni**er lovers and all the ni**ers, Jews, Sp*cs and everybody else in this f*cked up country that's not white. That includes you because you are a ni**er loving Jewish f*cking fa**ot. I will see you in hell bi+ch. your buddy, Paul Powell - P.S. Watch your back!"
The jury viewed writings and drawings taken from Powell's jail cell that demonstrated his hatred of people who were not Caucasian. Additionally, the jury heard evidence that Powell told police officers that he was a racist and described his violent racial views. He stated, "everybody that ain't white shouldn't – he needs to die." Powell had told a police officer that he wanted to purchase a gun to "kill somebody. Kill a lot of somebodies . . . just for something to do." The jury was aware of Powell's criminal record, including three convictions for contributing to the delinquency of a minor, two larceny convictions, and three felony convictions for abduction, rape, and attempted capital murder of Kristie.
In supporting the jury's finding that Powell's conduct was "outrageously or wantonly vile, horrible or inhuman in that it involved . . . depravity of mind and. . . aggravated battery to the victim beyond the minimum necessary to accomplish the act of murder, the criminal appeals court in Virginia commented, "The day before Powell committed these gruesome crimes, he went to the victims' home and surveyed the interior of the house. He returned the next day and tried to rape Stacey, who struggled with him. He stabbed her in the heart, twisted the knife, and reinserted the knife in her heart. He stomped upon her throat and he placed the entire weight of his body on her throat until she died. Next, he drank a glass of iced tea, smoked a cigarette, and waited for Stacey's younger 14-year-old sister to return home. When Kristie arrived, Powell directed her to her sister's body, forced her downstairs into the basement, and raped her on the floor. He then tied her hands and feet while she was naked, choked her until she was unconscious, stabbed her in the stomach, and slashed her neck numerous times in an attempt to kill her." After the vicious attacks, Powell had snuck out the back door, leaving Kristie for dead. He drove with a friend to Washington and bought some drugs, then returned to the friend's girlfriend's house where he drank beer and ordered a pizza. They were still waiting for it to be delivered when police knocked on the door. Powell did not know his younger victim had survived and identified her attacker.
Virginians for Alternatives to the Death Penalty
Paul Warner Powell
Date of Birth: April 13, 1978
Sex: Male
Race: White
Entered the Row: September 15, 2000
District: Prince William County
Conviction: Capital murder
Virginia DOC Inmate Number: 285713
On May 5, 2000, a jury in the Circuit Court of Prince William County convicted Paul Warner Powell of capital murder, attempted capital murder, abduction, rape, and grand larceny. Powell was 20-years old when he committed the crimes.
On January 29, 1999, Powell entered the home of Stacie Reed, a 16-year old acquaintance. Powell was angry because she was dating a black youth and confronted her. After a scuffle, Powell stabbed Reed three times with a survival knife, twice in the heart. Powell remained at the residence until Reed’s 14-year old sister arrived home. Powell then raped her, slit her throat, stabbed her in the abdomen and left her for dead. Reed’s sister survived and later testified against Powell.
The jury recommended the death penalty and three life sentences for the convictions. Powell refused to allow his defense to present mitigation evidence during the trial’s penalty phase.
Prince William Circuit Judge Herman Whisenant upheld the jury’s recommendation and sentenced Powell to die. Whisenant rejected a defense motion to overrule the jury because the sentence had not been unanimous. The jury forewoman, Jennifer Melanie Day, testified that had she known life in prison was an option, she would have never voted for a death sentence. In 2001, the Virginia Supreme Court reversed Powell’s death sentence, saying that prosecutors had failed to prove that Powell had raped Reed, part of the reason for defining the murder as a capital case.
In October of 2001, Powell wrote letters to Prince William County Commonwealth Attorney Paul Ebert and the victim’s family detailing his crimes. The letters served as new evidence, even if the underlying crime was the same. Powell was retried in 2003 that Powell be sentenced to death. The sentence was upheld by the Virginia Supreme Court in January 2004.
Powell has been on death row since September 15, 2000.
Powell v. Commonwealth, 552 S.E.2d 344 (Va. 2001) (Direct Appeal-Reversed).
Defendant was convicted in the Circuit Court, Prince William County, Herman A. Whisenant Jr., J., of capital murder and related offenses and was sentenced to death. He appealed. The Supreme Court, Lawrence L. Koontz, Jr., J., held that: (1) it was reversible error to allow pretrial amendment of indictment to charge two new gradation crimes that were not considered by the grand jury; (2) error was harmless, at guilt phase, in prosecutor's commenting on defendant's failure to testify; (3) evidence was insufficient to support conviction; and (4) sentencing verdict form should have allowed the jury the option to impose a sentence of life imprisonment and a fine of up to $100,000. Affirmed in part, reversed in part, and remanded.
* * *
G. Sufficiency of the Evidence
Powell assigns error to the trial court's failure to strike the evidence as to the abduction of Kristie on the ground that the evidence was insufficient to support a jury finding that the restraint used exceeded that necessary to accomplish the crime of rape. We disagree.
A defendant may be convicted of abduction in addition to “another crime involving restraint of the victim, both growing out of a continuing course of conduct, ... only when the detention committed in the act of abduction is separate and apart from, and not merely incidental to, the restraint employed in the commission of the other crime.” Brown v. Commonwealth, 230 Va. 310, 314, 337 S.E.2d 711, 713-14 (1985). Here, there is sufficient evidence to support the finding of the jury that Powell used greater restraint than was necessary to commit rape.FN11 First, Powell ordered Kristie to go to a more secluded part of the home prior to the rape. See, e.g., Wilson v. Commonwealth, 249 Va. 95, 103, 452 S.E.2d 669, 675, cert. denied, 516 U.S. 841, 116 S.Ct. 127, 133 L.Ed.2d 76 (1995). Although Powell did not display a weapon to her at that time, it is clear under the circumstances that Kristie was in reasonable fear for her life having just discovered her sister's lifeless body and being aware that Powell was usually armed. Moreover, after the rape was complete, Powell bound Kristie and left her for some time before returning to attempt to kill her. This restraint clearly exceeded that necessary to accomplish the rape. See Hoke v. Commonwealth, 237 Va. 303, 311, 377 S.E.2d 595, 600, cert. denied, 491 U.S. 910, 109 S.Ct. 3201, 105 L.Ed.2d 709 (1989). Accordingly, we hold that the trial court did not err in failing to strike the evidence as to the charge of abduction.
Within the same assignment of error, Powell also asserts that the evidence was insufficient to support his conviction for the capital murder of Stacey “during the commission of or subsequent to” the rape of Kristie. There is simply no evidence upon which the jury could have found that Powell committed the rape of Kristie before or during the murder of Stacey. Indeed, it is undisputed that the rape occurred after the murder was completed. Accordingly, the evidence was insufficient to support Powell's conviction for capital murder as charged in the amended indictment. FN12. For the reasons previously stated in this opinion, Powell's conviction for that crime will be reversed, and he will not be subject to retrial for that offense. Accordingly, we need not address the error assigned to the trial court's failure to poll the jury with respect to whether the rape occurred before, during, or after the murder.
* * *
IV. CONCLUSION
Having already determined that Powell's conviction for capital murder will be reversed, we now further determine that there is no basis upon which Powell can be retried for capital murder on remand. The poll of the jury establishes that Powell was acquitted of the charge of capital murder in the commission of robbery or attempted robbery. It is equally clear that there is simply no evidence upon which the jury could have relied to find that Powell committed or attempted to commit any sexual assault against Stacey before or during her murder, or that the rape of Kristie did not occur after the murder of her sister. Accordingly, under the circumstances of this case, the evidence at best would have supported a conviction for first degree murder.
For these reasons, we will reverse Powell's conviction for capital murder, affirm his convictions for abduction, rape, attempted capital murder, and grand larceny, and remand the case for a new trial on a charge of no greater than first degree murder for the killing of Stacey Reed, if the Commonwealth be so advised.
Powell v. Commonwealth, 590 S.E.2d 537 (Va. 2004) (Direct Appeal).
Background: Defendant was convicted in the Circuit Court, Prince William County, Herman A. Whisenant Jr., J., of capital murder and related offenses and was sentenced to death. He appealed. The Supreme Court, 261 Va. 512, 552 S.E.2d 344, affirmed in part, reversed in part, and remanded. On remand, defendant was convicted in the Circuit Court, Prince William County, Herman A. Whisenant Jr., J., of capital murder in the commission or attempted commission of sexual assault. Defendant appealed. On consolidation of the automatic review of defendant's death sentence with his appeal,
Holdings: the Supreme Court, Lawrence L. Koontz, Jr., J., held that: (1) fact that Commonwealth's attorney had read defendant's correspondence, stating “how stupid all y'all are,” was insufficient to disqualify attorney from prosecuting defendant's second murder trial; (2) neither law of the case doctrine nor double jeopardy barred retrying defendant for capital murder; (3) probative value of evidence that defendant raped and attempted to murder victim's sister was not outweighed by its prejudicial effect; (4) evidence sufficiently corroborated defendant's letter confessing to having attempted to rape the murder victim; and (5) defendant's death sentence was not excessive nor disproportionate to similar cases. Affirmed.
OPINION BY Justice LAWRENCE L. KOONTZ, JR.
In this appeal, we review the capital murder conviction and sentence of death imposed upon Paul Warner Powell for the murder of Stacey Lynn Reed in the commission of, or subsequent to, attempted rape. Code § 18.2-31(5).
I. BACKGROUND
A. Powell's First Trial and Appeal
Powell was originally convicted of the capital murder of Stacey Lynn Reed in 2000 and sentenced to death. See Powell v. Commonwealth, 261 Va. 512, 530, 552 S.E.2d 344, 354 (2001). In the same trial, Powell was convicted of the abduction, rape, and attempted capital murder of Stacey's younger sister, Kristie Erin Reed, and was sentenced to three terms of life imprisonment and fines totaling $200,000 for those crimes. FN1 The abduction, rape, and attempted capital murder convictions, as well as a conviction for grand larceny, were affirmed in the prior appeal and are not at issue in this appeal. Powell had also been tried for robbery and attempted robbery, Code § 18.2-58, and three counts of use of a firearm, Code § 18.2-53.1. He was acquitted of those crimes.
Upon review of the capital murder conviction and the death sentence imposed upon Powell, this Court reversed the conviction on various grounds including a finding that the indictment charging Powell with capital murder in the commission of robbery and/or attempted robbery had been improperly amended to include a charge of capital murder “during the commission of or subsequent to rape and/or attempted rape and/or sodomy and/or attempted sodomy.” FN2 Id. at 532, 552 S.E.2d at 355-56. Upon review of the record, we further held that the wording of the indictment limited the Commonwealth to proving that the “gradation crime was a rape occurring before or during the killing,” id. at 538-39, 552 S.E.2d at 359, and there was “no evidence upon which the jury could have found that Powell committed the rape of Kristie before or during the murder of Stacey.” Id. at 541, 535 S.E.2d at 361.
FN2. Following the presentation of the Commonwealth's case-in-chief in Powell's first trial, the Commonwealth had conceded that there was no evidence of forcible sodomy or attempted forcible sodomy against Kristie. Powell, 261 Va. at 525, 552 S.E.2d at 351. Thus, that aspect of the amended indictment for capital murder from Powell's first trial is not relevant to any issue raised in this appeal.
We summarized the consequence of these holdings in the conclusion of the opinion, stating: there is simply no evidence upon which the jury could have relied to find that Powell committed or attempted to commit any sexual assault against Stacey before or during her murder, or that the rape of Kristie did not occur after the murder of her sister. Accordingly, under the circumstances of this case, the evidence at best would have supported a conviction for first degree murder. For these reasons, we will reverse Powell's conviction for capital murder ... and remand the case for a new trial on a charge of no greater than first degree murder for the killing of Stacey Reed, if the Commonwealth be so advised. Id. at 545-46, 552 S.E.2d at 363
The mandate from this Court to the trial court tracked the language of the opinion, and directed that “the case is remanded ... for a new trial on a charge of no greater than first degree murder for the killing of Stacey Reed, if the Commonwealth be so advised.”
B. Events and Proceedings Following Remand
Powell's Letter
On October 21, 2001, Powell wrote an obscenity-laced letter to the Commonwealth's Attorney who had prosecuted Powell in his first trial. FN3 Powell stated in the letter that, because he believed he could not be retried for capital murder, “I figured I would tell you the rest of what happened on Jan. 29, 1999, to show you how stupid all y'all ... are.” Admitting that he “planned to kill the whole family” on that day, Powell further stated that “I had other plans for [Stacey] before she died.” Powell described how he had attempted to initiate consensual sexual intercourse with Stacey, which he had previously admitted. Powell then revealed that when Stacey resisted his advances, he pushed her onto her bed and, while sitting on top of her, told Stacey “that we could do it the easy way or the hard way.”
FN3. Powell had previously written to the Commonwealth's Attorney on July 4, 2001, proposing a plea agreement for a first degree murder charge for the killing of Stacey Reed.
Powell then described how Stacey had “started fighting with me and clawed me [sic] face.” Powell stated that he “slammed her to the floor ... sat on top of her and pinned her hands down again.” Powell claimed that Stacey relented “and I told her if she tried fighting with me again I would kill her.”
Continuing, Powell stated that, at his direction, Stacey began to disrobe, but stopped when the telephone rang. Stacey put her clothes back on so that she could answer the telephone. Powell refused to allow Stacey to answer the telephone and ordered her to resume disrobing. When she refused, Powell “pushed her back and pulled out [his] knife.” When Stacey attempted to leave the bedroom, Powell stabbed her. Stacey fell back and Powell removed the knife. Stacey then stumbled to another bedroom and collapsed. Powell “saw that she was still breathing” and “started stomping on her throat” until he “didn't see her breathing anymore.”
The New Indictment Armed with this new evidence, the Commonwealth elected to nolle prosequi the indictment in the remanded case, under which it was limited to trying Powell for first degree murder under our mandate, and sought a new indictment against Powell for capital murder. On December 3, 2001, the grand jury returned an indictment charging Powell with the capital murder of “Stacey Lynn Reed during the commission of or subsequent to the attempted rape of Stacey Lynn Reed.”
C. Powell's Second Trial
Motions to Dismiss the Indictment
On April 24, 2002, Powell filed a motion to dismiss the December 3, 2001 indictment. Powell asserted that “[w]hen the Supreme Court of Virginia issues an opinion concerning a case, this opinion becomes the law of the case” and, thus, the directive of the opinion and mandate from this Court in his first appeal limited his retrial to a charge no greater than first degree murder, regardless whether that trial was conducted under the original indictment or a new indictment. The Commonwealth filed a response to this motion, asserting that the judgment of this Court in Powell's first appeal was not applicable to the December 3, 2001 indictment because Powell had “never [previously] been charged with the capital murder of Stacey Reed in the commission or attempted commission [of] sexual assault against [Stacey Reed] because, at the time of [Powell's first] trial, no such evidence existed.” Accordingly, the Commonwealth contended that the December 3, 2001 indictment was “a new charge, one that has never been litigated in trial nor considered by the Virginia Supreme Court.” Following a hearing on this and other pre-trial matters, the trial court overruled Powell's motion to dismiss the indictment in an order dated May 6, 2002.
On May 17, 2002, Powell filed a second motion to dismiss the December 3, 2001 indictment. The briefs filed in the trial court in support of and in opposition to this motion parallel the arguments made on appeal with respect to this issue and, accordingly, we will only summarize the essential points of those arguments here. The import of Powell's argument was that his prior trial and the reversal of his conviction by this Court acted as an “implied” or “judicial” acquittal of the attempted rape of Stacey, thus barring his retrial for her capital murder premised on that gradation offense. The Commonwealth responded that the issue whether Stacey had been the victim of a sexual assault was not before the jury in his first trial because the bill of particulars provided at Powell's request indicated that only Kristie was the victim of the sexual assault gradation offenses charged in the amended indictment.
Similarly, the Commonwealth contended that our comments concerning the insufficiency of the evidence to prove a sexual assault or attempted sexual assault against Stacey were not directed toward any finding of the jury, but to the contrary were indicative of the fact that the jury did not consider whether Stacey had been the victim of such an assault or attempt.
On June 5, 2002, the trial court held a hearing on Powell's second motion to dismiss the indictment. After hearing argument, the trial court stated that by identifying Kristie as the victim of the rape or attempted rape in the bill of particulars, the Commonwealth had clearly identified her as the victim of those gradation crimes in the amended indictment for capital murder. The trial court also agreed with the Commonwealth that this Court's reference to the lack of evidence to prove any sexual assault or attempted sexual assault against Stacey was merely a comment on the record, and not an assertion that this was a theory of the case presented by the Commonwealth in Powell's first trial. On July 3, 2002, the trial court entered an order overruling Powell's second motion to dismiss the indictment.
Other Pre-trial Motions
On April 25, 2002, Powell filed a motion to have Virginia's statutory scheme for charging a capital crime and imposing a death sentence declared unconstitutional on various grounds. On appeal, Powell reasserts only some of these arguments and does so only in summary fashion. Accordingly, we will not summarize those arguments in detail here, but will address them within the discussion of the relevant assignment of error, infra.
On April 26, 2002, Powell filed a motion seeking to have the Commonwealth's Attorney's office disqualified from prosecuting his case. Powell contended that the Commonwealth's Attorney had a conflict of interest because he was a key “chain of custody witness” with respect to his receipt of Powell's October 21, 2001 letter “confession” to the attempted rape of Stacey. Powell further contended that the offensive nature of that letter and his other conduct toward the Commonwealth's Attorney had created such a level of animosity that the Commonwealth's Attorney would not be able to objectively pursue justice, but would instead seek to satisfy a personal vendetta against Powell. Powell further contended that this taint of bias extended to every attorney in the Commonwealth's Attorney's office, and further asserted that these attorneys would be potential witnesses called to give testimony concerning the Commonwealth's Attorney's personal animus against Powell.FN4
FN4. Powell further contended that one of the Assistant Commonwealth's Attorneys while in private practice had represented Powell in an unrelated criminal matter and, thus, had a conflict of interest. Powell does not reassert this issue on appeal.
On May 1, 2002, the Commonwealth filed responses to Powell's motions to have Virginia's statutory scheme for charging a capital crime and imposing a death sentence declared unconstitutional and to disqualify the Commonwealth's Attorney's office. With respect to the former, the Commonwealth asserted that all the issues raised therein had previously been considered and rejected by this Court, and there was no cause for the trial court to revisit them. As to the latter, the Commonwealth asserted that there was no evidence of bias on the part of the Commonwealth's Attorney or other members of his office and denied that there was any such bias, that the manner of establishing the chain of custody of Powell's letter was not the defense's concern, and that the questions of an appearance of impropriety should be raised through a disciplinary complaint proceeding.
On May 6, 2002, in the same hearing in which the trial court heard argument of Powell's first motion to dismiss the indictment, the trial court also heard argument on Powell's motions to have Virginia's statutory scheme for charging a capital crime and imposing a death sentence declared unconstitutional and to disqualify the Commonwealth's Attorney's office from prosecuting the case. Following that hearing, the trial court entered an order overruling these motions without comment.
On December 11, 2002, Powell filed a motion to exclude any evidence concerning his abduction, rape, and attempted murder of Kristie Reed from his trial. Powell contended that because he was charged only with the capital murder of Stacey Reed predicated on an attempted rape of her, evidence of his subsequent attack on Kristie was irrelevant or that any probative value it might have would be overborne by its unduly prejudicial effect on the jury. The Commonwealth did not file a response to this motion, but during oral argument in a hearing held December 23, 2002, the Commonwealth asserted that evidence concerning the attack on Kristie was part of a continuing criminal enterprise and was relevant to show Powell's motive and intent in attempting the rape of Stacey.
Also on December 11, 2002, Powell, alleging that the United States Supreme Court's decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) had called into question prior judgments of this Court concerning the issue, filed a motion seeking to have Code § 19.2-264.4(B) declared unconstitutional because it permits a jury to consider evidence relating to the future dangerousness and vileness aggravating factors without full protection of due process to the defendant to confront witnesses. Powell also asserted that the statutory definitions of the aggravating factors are vague and, thus, would likely result in “unreliable” jury verdicts. The Commonwealth filed a brief in response to this motion, asserting that the issue of the constitutionality of Code § 19.2-264.4(B) is settled law.
On December 16, 2002, Powell filed a motion to suppress various statements he made to police during the initial investigation of the crimes. Powell alleged that after giving an initial statement following waiver of his Miranda rights, he advised police that he had nothing more to say. Thereafter, Powell contended, any statement he made to police without a readvisement and waiver of his Miranda rights should be suppressed. The Commonwealth responded that the suppression issue had been decided in Powell's first trial and, thus, the doctrine of res judicata barred consideration of the issue in his second trial. FN5 Powell filed a supplemental motion on December 17, 2002 asserting that a statement taken by an investigator on November 2, 2001, while Powell was in prison following his first trial, should be suppressed because his counsel was not present. The Commonwealth responded that Powell had been advised of and waived his Miranda rights prior to giving this statement and that he was not entitled to counsel under the Sixth Amendment at that time because he had not yet been indicted for the offense for which he was then on trial, and the formal proceedings on the prior indictments had concluded.
FN5. Powell did not contest the trial court's failure to suppress his statements in the appeal of his first conviction.
In summarizing its rulings on these motions during the December 23, 2002 hearing, the trial court stated that it found Powell had waived his Miranda rights with respect to the statement made after his first trial but prior to the bringing of the second indictment and, thus, the statement was not barred by either the Fifth or Sixth Amendments. The trial court also indicated that it would deny the motion to suppress the statements from the initial investigation of the crimes, incorporating by reference the finding made during the first trial with respect to those statements. The trial court further found that evidence of Powell's attack on Kristie was admissible as being part of a common scheme and to show consciousness of guilt. The trial court entered an omnibus order denying all these motions as well as the motion challenging the constitutionality of Code § 19.2-264.4(B).
Jury Voir Dire
Powell's second trial commenced on January 13, 2003. The trial court conducted voir dire of the venire in panels of five potential jurors. In questioning the first panel, the trial court inquired whether “any of you have acquired any information about the alleged offense, or of the accused from the news media, or other sources in this particular matter?” The five panel members indicated that they had not. The Commonwealth further inquired whether “[i]f during the course of trial you should hear something which would jog your memory about the publicity, would you be able to set that aside and render your verdict based solely on what you hear in the courtroom?” The five panel members each indicated that they could do so.
During his voir dire of the first panel, Powell's counsel attempted to ask the following question:
You're going to hear in this case that the Defendant has already been tried and convicted of capital murder at one point, and he's serving life sentences for other crimes. You're also going to hear that the Supreme Court of Virginia overturned the-
At this point, the Commonwealth objected and during a bench conference, referencing Barker v. Commonwealth, 230 Va. 370, 375, 337 S.E.2d 729, 733 (1985), asserted that, as the panel had already indicated that they had not heard of the case previously, Powell's counsel's question concerning the prior trial and appeal “may, in fact, taint” the members of the panel and disqualify them from serving on the jury. Powell's counsel responded that because the evidence would disclose the fact of his prior convictions and the reversal of his capital murder conviction and death sentence on appeal, the prohibition of Barker did not apply. He further contended that because a jury's knowledge of a prior conviction was potentially prejudicial to the defendant, it was a “tactical decision that we've made ... and we wish this evidence to come forward.” Thus, he contended that it was proper to explore the potential jurors' bias that would result from hearing that evidence.
The trial court ruled, even though it agreed that this was a “unique case” because the evidence would establish the fact of the prior conviction and appellate reversal, “the Barker case is still good law.” Accordingly, the trial court concluded that “we have to start off with a jury that does not have” knowledge of the prior trial, conviction, and appeal. Accordingly, the trial court ruled that Powell could not question the jurors about their potential bias based upon such evidence being likely to be presented during the trial.
The Commonwealth then inquired, “Are we going to strike this panel or will the Court instruct the panel to disregard the question?” When the trial court indicated that it would instruct the panel to disregard the question, Powell's counsel objected that he was “not sure that instructing them is sufficient ... if they've already been told-.” The trial court cut off the objection, stating that the members of the panel had already indicated they were unaware of the case and that “all I can do is tell them to disregard the question.”
Guilt-Determination Phase Apart from the new evidence of Powell's October 21, 2001 letter to the Commonwealth's Attorney in which Powell confessed to the attempted rape of Stacey, the evidence presented during the guilt-determination phase of Powell's second trial was not markedly different from that received during the first trial. Because we have thoroughly recounted that evidence in reviewing his first trial, see Powell, 261 Va. at 518-520, 552 S.E.2d at 347-348, and Powell does not challenge the sufficiency of the evidence except with respect to proof of the attempted rape of Stacey, we need not reiterate the full extent of the evidence, but will suffice with a summary of the essential details.
Powell, who was twenty years old at the time of the crimes, had been acquainted with Stacey and her family for approximately two-and-a-half years. Powell, a self-avowed racist and white supremacist, objected to Stacey dating Sean Wilkerson, a black classmate of Stacey's. Id. at 518, 552 S.E.2d at 347.
Stacey arrived home just before noon on January 29, 1999 to find Powell waiting for her. When Powell learned that Robert Culver, a friend of the girls' mother, would be home shortly for lunch, Powell left, but returned at about 12:45 p.m., after Culver had left. When Powell returned, he was armed with a survival knife, a butterfly knife, a box cutter, and a 9-millimeter pistol. Id.
During the initial investigation, Powell claimed that he and Stacey had argued about her relationship with Wilkerson and in an ensuing struggle, Powell drew the survival knife from his belt and Stacey “got stuck.” Id. Although Powell denied stabbing Stacey deliberately or otherwise injuring her, an autopsy revealed that she had suffered multiple blunt force injuries to her head, neck, and upper body not consistent with her merely having fallen during a struggle, but consistent with a deliberate stomping. The autopsy also showed that the wound to Stacey's chest was consistent with the knife having been twisted and partially withdrawn and reinserted. Id. at 520, 552 S.E.2d at 348.
Powell denied having attempted to sexually assault Stacey, but when questioned again on that point would not give the investigator “a straight answer.” Powell later told police that he “probably” raped Kristie because he “didn't get any with Stacey.”
Leaving Stacey for dead, Powell smoked a cigarette and drank a glass of iced tea in the living room of the home, waiting for Kristie to return home from school. When she arrived, Powell met her at the door. Shortly thereafter, Kristie discovered her sister's body. Powell then forced her to go to the basement of the home where he brutally raped her and attempted to kill her by strangulation and by cutting her wrists and throat. Id. at 519, 552 S.E.2d at 347.
At the conclusion of the Commonwealth's case-in-chief, Powell moved to strike the evidence on the ground that the Commonwealth had not presented sufficient evidence to corroborate Powell's confession in the October 21, 2001 letter that he had attempted to rape Stacey. The Commonwealth pointed to the physical circumstances, such as the disheveled condition of Stacey's bedroom, Stacey's defensive wounds, and the fact that when her body was discovered her pants' zipper was slightly undone, as corroborating Powell's confession. The trial court denied the motion to strike. Thereafter, Powell elected not to offer any evidence.
The jury was instructed, heard closing arguments, and retired to consider its verdict. After two hours of deliberation, the jury found Powell guilty of capital murder. Powell requested a poll of the jury, which confirmed that the verdict was unanimous.
Penalty Determination Phase During the penalty determination phase, the Commonwealth presented evidence of Powell's criminal record, including three convictions for contributing to the delinquency of a minor, two larceny convictions, and his convictions for the abduction, rape, and attempted capital murder of Kristie. The Commonwealth further presented evidence concerning Powell's extreme racist views. Additional evidence showed that Powell had tortured cats when he was younger and that he told an investigator that he wanted to purchase a gun to “ [k]ill somebody. Kill a lot of somebodies.... Just for something to do.” Powell also told the investigator that he admired Charles Manson and Adolf Hitler, saying that “[t]hey were cool.” The Commonwealth also presented evidence that Powell wrote an abusive letter to Stacey's mother in which he included a pornographic picture of a woman who resembled Stacey.
Powell presented evidence from his parents and younger brother, a social worker, a psychologist, and a probation officer. This evidence dealt primarily with Powell's upbringing and transfer of custody from his mother to the Department of Youth and Family Services following his juvenile offenses. The psychologist described Powell's home environment as “toxic.” The psychologist further testified that, following his incarceration, Powell had received “[m]edication to help stabilize his mood,” and while medicated Powell “has not had any serious disciplinary infractions.” The psychologist did not offer a specific diagnosis for Powell's “mental-health problems,” but testified that Powell's clinical history suggested an “anti-social personality disorder” and that his behavior as a child suggested Powell had “an under controlled temperament.” The psychologist further testified that the medication Powell had received in the past was “used for manic depressive illness which is now called bi-polar disorder and for certain forms of serious depression.”
After ninety minutes of deliberation, the jury returned a unanimous verdict sentencing Powell to death. The jury indicated that the sentence was predicated on both the future dangerousness and vileness aggravating factors.
Sentencing On May 8, 2003, the trial court held a sentencing hearing and received a pre-sentence report and victim impact evidence from Stacey's mother. Powell's counsel argued that imposition of the death sentence was not appropriate, asserting that so long as Powell were confined and properly medicated, he did not present a continuing danger to society and that a life sentence without possibility of parole was adequate punishment. The Commonwealth responded that Powell had shown no remorse following his conviction in the first trial. The trial court then confirmed the jury's sentence of death. We consolidated the automatic review of Powell's death sentence with his appeal of the capital murder conviction and expedited the appeal on our docket. Code § 17.1-313(F).
II. DISCUSSION
Powell raises twelve assignments of error, the first two of which merely restate the elements of the statutory review of any death sentence mandated by Code § 17.1-313(C). We will review Powell's arguments in the order in which the trial court considered the issues below.
A. Failure to Dismiss the Capital Murder Indictment In his sixth and seventh assignments of error, Powell contends that the trial court erred in denying his motions to dismiss the capital murder indictment against him. This was the principal issue addressed by the parties during oral argument before this Court. The various positions under which Powell asserts that he was not subject to trial under the capital murder indictment can be generally summarized as follows:
(1) The opinion and mandate of this Court from Powell's first trial limited his retrial for the killing of Stacey Reed to a charge no greater than first degree murder on any indictment.
(2) Even if retrial on a charge of capital murder was not barred under a new indictment, Powell had been acquitted, either actually or by implication, of the attempted rape of Stacey Reed in his first trial and, thus, the law of the case doctrine barred his being tried for capital murder based upon the attempted rape of Stacey as the gradation offense.
(3) Principles of double jeopardy bar his retrial for a violation of Code § 18.2-31(5) because the indictment in his first trial did not specify the victim of the gradation offense.
Effect of Prior Opinion and Mandate
We recognize the principle of the “mandate rule,” stated by the Court of Appeals of Virginia in a different context, that:
A trial judge is bound by a decision and mandate from [an appellate court], unless [the court] acted outside [its] jurisdiction. A trial court has no discretion to disregard [a] lawful mandate. When a case is remanded to a trial court from an appellate court, the refusal of the trial court to follow the appellate court mandate constitutes reversible error.
Rowe v. Rowe, 33 Va.App. 250, 257-258, 532 S.E.2d 908, 912 (2000); see also Frank Shop, Inc. v. Crown Central Petroleum Corp., 264 Va. 1, 6, 564 S.E.2d 134, 137 (2002) (holding that “a trial court cannot permit what this Court ... [has] said is unlawful” in a mandate reversing the trial court's prior judgment and remanding the case).
Relying on this principle, Powell contends that the trial court was without authority to retry him on a new indictment charging him with the capital murder of Stacey Reed. Powell's reliance, however, is misplaced.
It is self-evident that while the opinion of an appellate court, under the doctrine of stare decisis, applies to all future cases in the trial courts, the mandate, which is the directive of the appellate court certifying a judgment in a particular case to the court from which it was appealed, speaks only to that case. Moreover, the mandate is controlling only “as to matters within its compass.” Sprague v. Ticonic National Bank, 307 U.S. 161, 168, 59 S.Ct. 777, 83 L.Ed. 1184 (1939). Thus, while the directive of this Court's mandate binds the circuit court, that court is not thereby prohibited from acting on matters not constrained by the language of the mandate, construed in light of the appellate court's opinion. The mandate rule “is merely a ‘specific application of the law of the case doctrine,’ [and] in the absence of exceptional circumstances, it compels compliance on remand with the dictates of a superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court.” United States v. Bell, 5 F.3d 64, 66 (4th Cir.1993) (quoting United States v. Bell, 988 F.2d 247, 251 (1st Cir.1993)).
Undoubtedly, had the trial court permitted the Commonwealth to retry Powell for capital murder on the original amended indictment invalidated by our decision in reviewing his first conviction, this would have been violative of our mandate and reversible error. Similarly, had the Commonwealth dismissed that indictment and sought a new indictment charging Powell with the capital murder of Stacey Reed prior to the rape of Kristie Reed, it would have been error for the trial court to permit that indictment to stand.
However, nothing in our opinion or mandate from Powell's first appeal required the Commonwealth to retry Powell on the original indictment, abridged to cure the defects found by this Court to charge only first-degree murder. To the contrary, the directive of the mandate expressly stated that Powell was to be retried on that indictment based on the record that was before this Court at that time, only “if the Commonwealth be so advised.”
Nor did our opinion or mandate expressly preclude the possibility of trying Powell on a new indictment charging capital murder premised on a different gradation offense after dismissal of the former, defective indictment. Powell's October 21, 2001 letter to the Commonwealth's Attorney in which he revealed that he had attempted to rape Stacey before he killed her is an exceptional circumstance that merits a narrow application of the mandate rule.
We recognize that, generally, serial prosecutions are not permitted where the Commonwealth deliberately refrains from bringing criminal charges arising out of the same act or transaction while prosecuting others in order to gain the advantage of having multiple trials. See, e.g., Ashe v. Swenson, 397 U.S. 436, 444, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Such was not the case here, however, given the unexpected and possibly unique circumstance of evidence of an uncharged offense that was not previously known or available coming to light after the conclusion of the first trial in the form of the defendant's voluntary confession.
Accordingly, we hold that the trial court correctly ruled that the opinion and mandate of this Court from Powell's prior appeal did not bar the Commonwealth from dismissing the indictment against him and bringing a new indictment charging him with capital murder premised upon a gradation offense not previously charged by the Commonwealth and based upon evidence that was not previously known or available to the Commonwealth at the time of his first trial.
Acquittal under the “Law of the Case”
Powell contends that although he was not charged in a separate indictment with the attempted rape of Stacey in his first trial, the Commonwealth nonetheless presented evidence tending to show that he attempted to rape Stacey to bolster its claim that her murder was related to a sexual assault. To support this claim, Powell relies upon statements made by the Commonwealth's Attorney during his first trial that the evidence would show that Powell “wanted something more from [Stacey] and she wasn't going to give it to him and for that she lost her life.” Powell further notes that during his first trial the Commonwealth had argued against his motion to strike the evidence on capital murder by stating, in part, that “we have evidence ... [that Powell] was having sex or attempting to have sex with [Stacey].”
Powell contends that as neither the amended indictment for capital murder nor the instructions given to the jury specified the victim of the sexual assault gradation crimes, the Commonwealth intended for the jury in his first trial to consider the possibility that Powell attempted to rape Stacey. Powell notes that because the jury in his first trial sent a question to the trial court “seeking clarification whether the rape of Kristie could satisfy the gradation crime requirement for the capital murder of Stacey,” Powell, 261 Va. at 526, 552 S.E.2d at 352, this indicated that the jury had considered and rejected the theory that he had attempted to rape Stacey. Relying on Green v. United States, 355 U.S. 184, 189-90, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), Powell asserts that because the jury in his first trial rejected that theory of the crime, it impliedly acquitted him of the gradation offense and, thus, he contends that the law of the case prohibits the Commonwealth from retrying that issue under a new indictment.FN6 Powell further points to statements in the opinion from his first appeal concerning the insufficiency of the evidence to prove an attempted sexual assault of Stacey as confirming that he was charged with capital murder based on that gradation offense.
FN6. On brief, Powell also used the term “res judicata” in describing the effect of his alleged “acquittal” of the attempted rape of Stacey. During oral argument of this appeal, he conceded that he was relying only on the “law of the case” doctrine in asserting the preclusive effect of his prior trial and appeal.
The Commonwealth contends that by identifying Kristie as the victim of the rape or attempted rape in responding to Powell's motion for a bill of particulars, it had clearly indicated that Powell was not charged or on trial for the capital murder of Stacey in the commission of the attempted rape of Stacey. Therefore, the Commonwealth asserts that Powell was never placed in jeopardy for the commission of that crime and, thus, cannot have been “acquitted” of that crime or of its gradation offense.
Powell contends that “the bill of particulars is irrelevant to the issue of whether the [Supreme] Court previously decided that Powell was charged with capital murder in the commission of the attempted rape of Stacey Reed in his first trial.” Powell bases this contention on the statements in the opinion reversing his first conviction for capital murder that “[t]he record as a whole is devoid of any evidence that Powell attempted to rape ... Stacey,” Powell, 261 Va. at 534, 552 S.E.2d at 357, and that “there is simply no evidence upon which the jury could have relied to find that Powell committed or attempted to commit any sexual assault against Stacey,” id. at 545, 552 S.E.2d at 363. Powell contends that by these statements we indicated that the question whether he had raped or attempted to rape Stacey had been at issue in his first trial. We disagree.
The question, simply put, is whether the jury in Powell's first trial considered whether Powell attempted to rape Stacey Reed and concluded that he did not. Our guide in resolving that question is Ashe, supra, wherein the United States Supreme Court held that an issue will be precluded from being retried in a subsequent criminal prosecution by the law of the case doctrine if, in light of the entire record, the previous jury necessarily decided that issue against the prosecution. But if “a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration,” the prior judgment will not be taken as deciding that particular issue. Ashe, 397 U.S. at 444, 90 S.Ct. 1189. “The inquiry ‘must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.’ ” Id. (quoting Sealfon v. United States, 332 U.S. 575, 579, 68 S.Ct. 237, 92 L.Ed. 180 (1948)).
Powell's view of the record of his first trial, and of this Court's observation that the evidence therein was insufficient for the jury to have found that he attempted to rape Stacey, as showing that the previous jury necessarily decided that issue against the prosecution fails to take into account the effect of the bill of particulars. “It is true the bill of particulars is not for the purpose of charging the offense. The indictment must do that.” Livingston v. Commonwealth, 184 Va. 830, 837, 36 S.E.2d 561, 565 (1946). “However, the bill of particulars and the indictment must be read together. The function of the bill of particulars is to supply additional information concerning an accusation.” Id. A bill of particulars not only informs the accused of the charges against him with sufficient precision to enable him to prepare his defense and avoid surprise, it also enables him to plead his acquittal or conviction in bar of any further prosecution for the same offense. See Wade v. Commonwealth, 9 Va.App. 359, 363, 388 S.E.2d 277, 279 (1990); see also United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir.1988).
The bill of particulars in Powell's first trial clearly limited the prosecution of the capital murder of Stacey under Code § 18.2-31(5) to proof of the rape or attempted rape of Kristie. Nevertheless, Powell asserts that the various statements of the Commonwealth during his first trial with respect to Powell's effort to initiate consensual intercourse with Stacey, and his frustration at being rebuffed by her, suggested a motive for his subsequent attack on her sister and attempted to influence the jury into believing that Stacey was also the victim of an attempted sexual assault. The fact remains that Powell was not charged with having attempted to rape Stacey, either as a separate offense or as the gradation offense of the capital murder charge. Thus, it is not possible to conclude that the jury necessarily decided that issue against the prosecution.
Powell is also mistaken in his interpretation of our statements regarding his first trial that the record contained insufficient evidence for the jury to have found that Powell attempted to rape Stacey. A careful reading of our opinion shows that these statements were not intended to convey that this issue was before the jury. To the contrary, these statements were observations made to clarify that the amended indictment must have been intended to charge Powell with the capital murder of Stacey premised upon the gradation offense of the rape of Kristie, but was insufficient to do so because of a drafting error. FN7
FN7. We also held that the amendment of the indictment, even if properly drafted, would not have been permitted because the grand jury “was never called upon to consider [the rape of Kristie] as the gradation crime for the capital murder of Stacey.” Powell, 261 Va. at 534, 552 S.E.2d at 357.
Powell also contends that even if the jury had not impliedly acquitted him of the capital murder of Stacey premised on the gradation offense of her rape or attempted rape, the effect of this Court's decision in the appeal of his first conviction nonetheless was to expressly acquit him of that crime because we found the evidence in that trial insufficient to support a finding of rape or attempted rape of Stacey. Relying on Burks v. United States, 437 U.S. 1, 5-6, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), Powell asserts that, because we held that the evidence at his first trial at best would have supported a conviction for first degree murder, the trial court was bound by that determination in any subsequent retrial. Powell contends that Burks stands for the proposition that the determination of an appellate court that the trial court erred in permitting the jury to consider a charge not supported by the evidence acts as an acquittal on that charge and that a retrial for the same offense is barred by the prohibition against double jeopardy.
Our conclusion that, lacking evidence of a sexual assault on Stacey or the attempt to commit one, Powell could be retried only for first degree murder was based upon “the circumstances of this case.” Powell, 261 Va. at 545-46, 552 S.E.2d at 363. Nothing in that statement implies that Powell had been acquitted of capital murder premised on any possible gradation offense, nor, as we have already demonstrated, did it preclude the Commonwealth from seeking to indict Powell for the capital murder of Stacey with the attempted rape of Stacey as the gradation offense under the exceptional circumstances occasioned by Powell's voluntary confession.
Accordingly, we hold that the trial court did not err in denying Powell's motions to dismiss the indictment for capital murder on the ground that the Commonwealth was prohibited from proving Powell attempted to rape Stacey by the law of the case of his former trial and appeal.
Double Jeopardy Powell also contends that the trial court should have dismissed the indictment against him because his prosecution under that indictment violated the guarantee of the Fifth Amendment of the Constitution of the United States against being twice placed in jeopardy for the same offense. Specifically, he asserts that having been indicted once for a violation of Code § 18.2-31(5) for the murder of Stacey Reed, his constitutional guarantee of protection against being placed in double jeopardy prohibited the Commonwealth from indicting him a second time for that murder under the same subsection of the capital murder statute.
During oral argument of this appeal, Powell acknowledged that the Commonwealth may indict and convict an accused for multiple counts of capital murder of a single victim under different subsections of Code § 18.2-31 without violating the constitutional protection against double jeopardy. See Bailey v. Commonwealth, 259 Va. 723, 747, 529 S.E.2d 570, 584, cert. denied, 531 U.S. 995, 121 S.Ct. 488, 148 L.Ed.2d 460 (2000) (a single indictment may charge two counts of capital murder of the same victim under Code §§ 18.2-31(7) and 18.2-31(12)). Moreover, we have held that where a particular subsection of Code § 18.2-31 lists multiple gradation offenses, the Commonwealth may indict the accused for separate offenses of capital murder of a single victim premised on each specific gradation offense. Payne v. Commonwealth, 257 Va. 216, 228, 509 S.E.2d 293, 301 (1999) (indictments properly charged separate violations of Code § 18.2-31(5) premised on rape and object sexual penetration of the same victim). In Payne, we said that “it is clear, as well as logical, that the General Assembly intended for each statutory offense [in Code § 18.2-31] to be punished separately ‘as a Class 1 felony.’ ” Id.
By statutory definition, capital murder is limited to the “willful, deliberate, and premeditated killing of any person” under specific circumstances or in the commission or attempted commission of certain crimes enumerated in Code § 18.2-31. We have frequently referred to these crimes as gradation offenses because, when committed as part of the same transaction as a murder, they elevate what would otherwise constitute murder of the first degree pursuant to Code § 18.2-32 to capital murder. Pertinent to the present case, Code § 18.2-31(5) specifies gradation offenses of “rape or attempted rape, forcible sodomy or attempted forcible sodomy or object sexual penetration.” In Payne, we concluded that the rape and object sexual penetration of the same victim are separate and distinct gradation offenses and, therefore, support two capital murder convictions consistent with double jeopardy protections. Id. While Payne is instructive insofar as it establishes that separate and distinct gradation offenses are enumerated in Code § 18.2-31(5), it does not resolve Powell's case.
Powell's contention that he was charged with the same crime rather than with two separate crimes under the amended indictment and the 2001 indictment is principally premised upon the fact that the former failed to identify the victim of the rape or attempted rape. Because the amended indictment in his first trial, while identifying Stacey as the victim of the murder, did not specify a victim of the gradation offenses of rape or attempted rape, Powell contends that proof of the identity of the victim was not an element of those offenses. Thus, he argues that he was placed in jeopardy regardless of whether Stacey or Kristie were proven to be the victim of the gradation offenses of rape or attempted rape, and the subsequent indictment that expressly identified Stacey as the victim of attempted rape violated his constitutional guarantee against double jeopardy.
We agree with Powell that when an indictment does not specify the identity of the victim of a gradation offense to the crime of capital murder, the identity of the victim of the gradation offense is not an element of the crime. Powell, however, has again overlooked the significance of the bill of particulars provided by the Commonwealth in his first trial. As we have already explained, the Commonwealth expressly identified Kristie as the victim of the gradation offenses for the capital murder of Stacey under Code § 18.2-31(5). The bill of particulars was filed well in advance of the trial and before jeopardy had attached. See Commonwealth v. Washington, 263 Va. 298, 307, 559 S.E.2d 636, 641 (2002) (“The right not to be subjected to double jeopardy attaches in a criminal case when the jury is impaneled and sworn”).
During oral argument of this appeal, Powell contended that the bill of particulars only limits the Commonwealth's ability to argue a specific theory of the crime, does not amend the indictment, and jeopardy attaches as to the indictment as worded regardless of whether a bill of particulars has been filed. We disagree.
As noted above, while “[i]t is true the bill of particulars is not for the purpose of charging the offense ... the bill of particulars and the indictment must be read together.” Livingston, 184 Va. at 837, 36 S.E.2d at 565. Thus, we hold that where, prior to the attachment of jeopardy, the Commonwealth limits the prosecution of a capital murder, undifferentiated in the indictment by the identity of the victim of the gradation offense, by naming a specific victim of the gradation offense in a bill of particulars, jeopardy will attach only to the capital murder charge as made specific by the bill of particulars.
For these reasons, we further hold that the trial court did not err in refusing to dismiss the indictment for capital murder as violative of Powell's double jeopardy protection.
B. Constitutionality of Virginia's Capital Murder Statutes
In his third and eleventh assignments of error, Powell attacks the trial court's order overruling his motions to have the Virginia capital murder statutes declared unconstitutional. With respect to the motion filed April 25, 2002 and overruled by the trial court on May 6, 2002, Powell has restated, in summary fashion, five of his arguments advanced in the trial court, without citation to authority.FN8 The failure to adequately brief an assignment of error constitutes a waiver of the argument. See, e.g., Burns v. Commonwealth, 261 Va. 307, 318, 541 S.E.2d 872, 880, cert. denied, 534 U.S. 1043, 122 S.Ct. 621, 151 L.Ed.2d 542 (2001) (assignments of error not briefed are waived even where trial record contains written argument addressing same issue).
FN8. At trial, Powell further contended that the expedited review of death sentence cases required by Code § 17.1-313 violated a defendant's constitutional right to equal protection. Powell contended that by eliminating an intermediate review by the Court of Appeals, a defendant is denied the opportunity to perfect the issues and arguments he wishes to make on appeal. He further contended that expediting death sentence appeals on our docket “disadvantaged death-sentence defendants by providing them with substantially less time than other criminal defendants to protect their legal rights.” Powell does not reassert these issues on appeal.
Moreover, the arguments raised by Powell have been previously considered and rejected by this Court. The arguments raised by Powell and recent decisions rejecting those arguments are:
That the statutes fail to provide meaningful guidance with respect to the vileness and future dangerousness aggravating factors and that the jury is not provided adequate guidance with respect to the application of aggravating and mitigating factors. Rejected in Morrisette v. Commonwealth, 264 Va. 386, 397, 569 S.E.2d 47, 55 (2002), cert. denied, 540 U.S. 1077, 124 S.Ct. 928, 157 L.Ed.2d 750 (2003).
That permitting evidence of unadjudicated criminal conduct to be used to establish the defendant's future dangerousness fails to meet the “heightened reliability requirement” of the 8th and 14th Amendments. Rejected in Bell v. Commonwealth, 264 Va. 172, 203, 563 S.E.2d 695, 716 (2002), cert. denied, 537 U.S. 1123, 123 S.Ct. 860, 154 L.Ed.2d 805 (2003).
That the trial court is improperly vested with discretion whether to set aside the death sentence for good cause shown and is permitted to consider hearsay evidence in the pre-sentence report. Rejected in Lenz v. Commonwealth, 261 Va. 451, 459, 544 S.E.2d 299, 303-04, cert. denied, 534 U.S. 1003, 122 S.Ct. 481, 151 L.Ed.2d 395 (2001).
That the mandatory proportionality review procedures employed by this Court fail to meet constitutional standards. Rejected in Lovitt v. Commonwealth, 260 Va. 497, 509, 537 S.E.2d 866, 874 (2000), cert. denied, 534 U.S. 815, 122 S.Ct. 41, 151 L.Ed.2d 14 (2001); Bailey, 259 Va. at 740-42, 529 S.E.2d at 580-81, cert. denied, 531 U.S. 995, 121 S.Ct. 488, 148 L.Ed.2d 460 (2000).
With respect to the December 11, 2002 motion, overruled by the trial court on December 23, 2002, Powell asserts, as he did in the trial court, that the United States Supreme Court's decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), requires that “many of the procedural safeguards that heretofore have only been required during the guilt/innocence phase of trial must now be extended to the sentencing phase.” Powell reasons that because Ring held that it was impermissible in a jury trial to allow the trial judge to determine whether there were aggravating factors sufficient to warrant the imposition of the death penalty, id. at 609, 122 S.Ct. 2428, the aggravating factors required to be found by Code § 19.2-264.4(B) before a sentence of death may be imposed are “to be treated as elements of the offense of a death-eligible capital murder.” Powell contends that the standards of proof and rules of evidence applicable to the determination of guilt must also be applied to the determination of sentence, and that, contrary to decisions of this Court made prior to Ring, this precludes the Commonwealth from presenting under a “relaxed evidentiary standard” evidence of unadjudicated criminal conduct or hearsay evidence when the declarant is not available for cross-examination as required by the confrontation clause.
The Commonwealth responds that Ring does not alter the analysis of the constitutionality of the procedures applied during the penalty determination phase of a capital murder trial in Virginia. Rather, the Commonwealth contends that the procedures for the admission of relevant evidence during the penalty determination phase under Code § 19.2-264.4(B) continue to be fully in accord with the Sixth Amendment due process concerns underpinning the decision in Ring. We agree with the Commonwealth.
First, we note that Powell's expansive reading of Ring is unwarranted for the obvious reason that the statutory scheme at issue in that case, which permitted the judge in a capital murder jury trial to assume the role of the jury in determining whether aggravating factors permitting the imposition of the death penalty were present, is markedly different from that of Virginia's death penalty sentencing statute. See Ring, 536 U.S. at 588. Moreover, nothing in the United States Supreme Court's opinion in Ring suggests that the Court intended to revisit broader issues of due process protections afforded in the penalty determination phase of all capital murder trials.
We further reject Powell's contention that there is a “relaxed evidentiary standard” applicable to the penalty determination phase of a capital murder trial in Virginia. To the contrary, Code § 19.2-264.4(B) expressly provides, and we have consistently held, that the Commonwealth must prove the existence of one or both aggravating factors beyond a reasonable doubt. See, e.g., Clark v. Commonwealth, 220 Va. 201, 212, 257 S.E.2d 784, 791 (1979), cert. denied, 444 U.S. 1049, 100 S.Ct. 741, 62 L.Ed.2d 736 (1980). Powell's contention that the introduction of evidence of unadjudicated criminal acts is not admissible because Ring somehow refines the need for “heightened reliability” in capital sentencing is, as the Commonwealth notes, nothing more than a reassertion of the same argument raised in his prior motion and consistently rejected by this Court. Jackson v. Commonwealth, 267 Va. 178, 188, 590 S.E.2d 520, 526 (2004) (today decided). Powell's assertion that Code § 19.2-264.4(B) permits the introduction of hearsay evidence not otherwise subject to an exception is simply wrong.FN9 See, e.g., Lovitt v. Warden, 266 Va. 216, 259, 585 S.E.2d 801, 826 (2003); Jackson, 267 Va. at 188, 590 S.E.2d at 526. For these reasons, we hold that the trial court did not err in overruling Powell's motion to have the Virginia capital murder statutes declared unconstitutional.
FN9. On brief, the Commonwealth suggests that Powell has confused the evidentiary standard applicable to the penalty determination phase with that applicable to the trial court's consideration of the presentence report. Powell did not respond to this assertion in his reply brief and does not otherwise assert that Ring has any implication to the post-verdict sentencing procedure. Accordingly, we express no opinion on that issue.
C. Failure to Disqualify the Commonwealth's Attorney In his tenth assignment of error, Powell contends that the trial court erred in failing to grant his motion to disqualify the Commonwealth's Attorney and his office from prosecuting Powell on the new indictment. Powell asserts the “grossly offensive personal attacks” on the Commonwealth's Attorney in Powell's October 21, 2001 letter, created a direct conflict of interest because the Commonwealth's Attorney “had a personal stake in the outcome of this case.” This is so, Powell contends, because the personal attacks in his letter “undoubtedly led [the Commonwealth's Attorney] to have feelings of animosity towards Powell.” The Commonwealth responds that the Commonwealth's Attorney represented to the trial court that he could impartially prosecute the case and that it was a matter within the trial court's discretion to determine whether to disqualify him. We agree with the Commonwealth.
The due process rights of a criminal defendant under both the Virginia and United States Constitutions are violated when a Commonwealth's Attorney who has a conflict of interest relevant to the defendant's case prosecutes the defendant. See Cantrell v. Commonwealth, 229 Va. 387, 394, 329 S.E.2d 22, 26-27 (1985); Ganger v. Peyton, 379 F.2d 709, 714 (4th Cir.1967). However, the question whether there is a conflict of interest is dependent upon the circumstances of the individual case, and the burden is on the party seeking disqualification of the prosecutor to present evidence establishing the existence of disqualifying bias or prejudice. The determination whether the evidence supports a finding of a conflict of interest is a matter committed to the sound discretion of the trial court. See Lux v. Commonwealth, 24 Va.App. 561, 569, 484 S.E.2d 145, 149 (1997).
The issue may arise where the prosecutor has had an attorney-client relationship with the parties involved whereby he obtained privileged information that may be adverse to the defendant's interest in regard to the pending criminal charges. See, e.g., Commonwealth v. Kilgore, 15 Va.App. 684, 694, 426 S.E.2d 837, 842 (1993). A second situation is where the prosecutor has some direct personal interest arising from a financial interest, kinship, or close friendship such that his objectivity and impartiality are called into question. See, e.g., Cantrell, 229 Va. at 391-94, 329 S.E.2d at 24-27. Neither of these circumstances applies to the present case.
Beyond these categories of clear and direct conflicts of interest and ethical bars to a particular attorney prosecuting a particular defendant, there is the broader consideration of whether, on the facts of a particular case, the adversarial nature of the judicial process has resulted in such enmity toward the defendant on the part of the prosecutor that it will overbear his professional judgment in seeking fairly and impartially to see justice done. See Lux, 24 Va.App. at 569, 484 S.E.2d at 149. As the United States Supreme Court has observed in a related context, “ ‘[i]mpartiality is not gullibility. Disinterestedness does not mean child-like innocence.’ ” Liteky v. United States, 510 U.S. 540, 551, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (quoting In re J.P. Linahan, Inc., 138 F.2d 650, 654 (2nd Cir.1943)). We are of opinion that the same can be said of the prosecutor's role.
The adversarial nature of criminal prosecutions unsurprisingly tends to engender some level of friction between the prosecutor and the defendant in difficult cases, especially where, as here, the defendant seems intent on showing his contempt and disrespect for the prosecutor. However, merely demonstrating a history of one-sided acrimony between the defendant and the prosecutor is insufficient to establish a conflict of interest or prosecutorial misconduct with respect to an otherwise proper prosecution. See, e.g., Phelps v. Hamilton, 59 F.3d 1058, 1067 (10th Cir.1995). If such were not the case, a defendant would have an incentive to deliberately incite such enmity. The evidence must reflect that the prosecutor is acting not within the dictates of the law, but has strayed outside those parameters in furtherance of a personal animus against the defendant.
Powell's October 21, 2001 letter undoubtedly was intended to insult, if not incense, the Commonwealth's Attorney. But, the trial court was within its discretion to accept the Commonwealth's Attorney's assurance that it had not had an effect on his professional judgment in seeking fairly and impartially to see justice done. Moreover, nothing in the Commonwealth's Attorney's conduct of the trial evinces any lack of such professional judgment on his part. Accordingly, we hold that the trial court did not abuse its discretion in overruling Powell's motion to disqualify the Commonwealth's Attorney.
D. Failure to Exclude Testimony of Kristie Reed
In his ninth assignment of error, Powell contends that the trial court erred in permitting the Commonwealth to call Kristie as a witness and to give testimony concerning Powell's rape and attempted murder of her during the guilt determination phase of his trial.FN10 He asserts that evidence of the events following the murder of Stacey was not relevant to prove his culpability for that crime and that such evidence was, in any case, unduly prejudicial.FN11
FN10. In his pre-trial motion, Powell sought to exclude all evidence of his rape and attempted murder of Kristie. On appeal, he has limited his argument to the exclusion of her testimony and the exhibits introduced in its course.
FN11. Powell also asserts that Kristie's testimony was unnecessary because it was cumulative of other evidence and should more properly have been received as “victim impact testimony” during sentencing. These arguments were not made at trial and, thus, are barred from consideration in this appeal. Rule 5:25.
The Commonwealth responds that evidence of the rape and attempted murder of Kristie, including her testimony and its supporting exhibits, was admissible because those acts were interrelated parts of a common criminal plan and, thus, were relevant to prove Powell's identity, motive, and intent as the perpetrator of all the crimes committed in the course of carrying out that plan. In addition, the Commonwealth contends that evidence of the subsequent attack on Kristie was probative of Powell's state of mind during the entire criminal enterprise and, thus, admissible to show premeditation in the killing of Stacey to rebut Powell's claim that the killing was accidental. We agree with the Commonwealth.
Generally, evidence of other offenses is inadmissible in a criminal prosecution, but it is a well-established exception that such evidence is admissible to show a common criminal scheme when the various acts are naturally explained as the constituent parts of the defendant's general plan. See Satcher v. Commonwealth, 244 Va. 220, 230, 421 S.E.2d 821, 828 (1992), cert. denied, 507 U.S. 933, 113 S.Ct. 1319, 122 L.Ed.2d 705 (1993); Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970); McWhorter v. Commonwealth, 191 Va. 857, 870-71, 63 S.E.2d 20, 26 (1951). In Kirkpatrick we explained that: [e]vidence of other offenses is admitted if it shows the conduct and feeling of the accused toward his victim ... or if it tends to prove any relevant element of the offense charged. Such evidence is permissible in cases where the motive, intent or knowledge of the accused is involved, or where the evidence is connected with ... the offense for which the accused is on trial.
211 Va. at 272, 176 S.E.2d at 805; see also Satcher, 244 Va. at 230, 421 S.E.2d at 828.
There can be no question that it was the Commonwealth's theory in this trial, and taking the evidence in the light favorable to the Commonwealth it is an unassailable fact, that Powell went to the Reed home with the intention of raping and killing both Stacey and Kristie. As such, the evidence of Powell's rape and attempted murder of Kristie was directly probative of his motive and intent in the attempted rape and murder of Stacey. Moreover, Kristie's eyewitness testimony placing Powell in the home when she arrived and identifying him as her assailant was critical to establishing Powell's identity as the perpetrator of the crimes that preceded the criminal acts committed against her.
Powell's contention that the graphic and emotional testimony of the victim of a brutal rape and attempted murder should have been excluded because its probative value was outweighed by the prejudice it would cause in the minds of the jury is equally without merit. All evidence tending to prove guilt is prejudicial to an accused, but the mere fact that such evidence is powerful because it accurately depicts the gravity and atrociousness of the crime or the callous nature of the defendant does not thereby render it inadmissible. Moreover, direct evidence, such as eyewitness testimony, is rarely subject to exclusion on the ground that it would be unduly prejudicial. In any case, determination of the issue is committed to the sound discretion of the trial court. Spencer v. Commonwealth, 240 Va. 78, 90, 393 S.E.2d 609, 617, cert. denied, 498 U.S. 908, 111 S.Ct. 281, 112 L.Ed.2d 235, (1990). Accordingly, we hold that the trial court did not err in failing to grant Powell's pre-trial motion to exclude the testimony of Kristie Reed from the guilt determination phase of the trial.
E. Failure to Suppress Powell's Statements to Police
In his twelfth assignment of error, Powell contends that “[t]he trial court erred in not suppressing Powell's statements to police.” Although he uses the plural term “statements” in the assignment of error and makes references to the ability of an accused to revoke a prior waiver of his right to remain silent, Powell does not expressly restate the contention made in the trial court that statements made during the initial investigation prior to his first trial should have been suppressed because at the conclusion of his first interview he stated that he had nothing more to say. Because Powell has not expressly raised this issue on brief or during oral argument, it has been waived and we will not address it. Burns, 261 Va. at 318, 541 S.E.2d at 880.
Powell does assert that the trial court erred in not suppressing the statement concerning Powell's October 21, 2001 letter that he made on November 2, 2001 while in prison to an investigator. Powell contends that because he was still represented by counsel from his first trial, the investigator should not have questioned him without his counsel being present.
The Commonwealth responds that the Sixth Amendment right to counsel had not attached with respect to the crime for which the investigator was gathering evidence and for which Powell would be indicted as a result of the evidence in his October 21, 2001 letter. Moreover, as Powell executed a waiver of his Fifth Amendment rights immediately prior to giving the November 2, 2001 statement, the Commonwealth contends that the statement was properly admitted. We agree with the Commonwealth.
The Sixth Amendment right to counsel “arises from the fact that the suspect has been formally charged with a particular crime and thus is facing a state apparatus that has been geared up to prosecute him.” Arizona v. Roberson, 486 U.S. 675, 685, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988); see also Alston v. Commonwealth, 264 Va. 433, 437, 570 S.E.2d 801, 803 (2002). We have already determined that the crime for which Powell was tried and convicted in the present case was a separate offense from those for which he had been previously convicted. Powell had not been formally charged with that offense when he was interviewed on November 2, 2001 and, thus, he was not entitled to have his counsel from his prior trial present during that interview. Eaton v. Commonwealth, 240 Va. 236, 252, 397 S.E.2d 385, 394 (1990), cert. denied, 502 U.S. 824, 112 S.Ct. 88, 116 L.Ed.2d 60 (1991). As Powell does not dispute that he freely and knowingly waived his Fifth Amendment right to counsel at the time of the interview, we hold that the trial court did not err in failing to suppress Powell's statement.
F. Limiting Voir Dire and Failure to Strike Jury Panel
In his fourth assignment of error, Powell contends that the trial court erred in not permitting him to question prospective jurors about whether knowledge of Powell's prior conviction for capital murder and its subsequent reversal on appeal would influence their opinion as to his guilt. Powell concedes that a prospective juror with knowledge of a defendant's prior conviction is subject to disqualification on that ground. Barker, 230 Va. at 375, 337 S.E.2d at 733. But see Patton v. Yount, 467 U.S. 1025, 1035, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984) (refusing to grant a new trial where several jurors had pretrial knowledge of the defendant's prior conviction for the same crime). Powell contends, however, that in his case the jury would ultimately learn of his prior conviction during the trial and, thus, asserts that he should have been able to question jurors on the effect this evidence would have on them.
The purpose of voir dire is “to ascertain whether [a prospective juror] is related to either party, or has any interest in the cause, or has expressed or formed any opinion, or is sensible of any bias or prejudice therein.” Code § 8.01-358. To that end, prospective jurors may be asked any question relevant to determine whether they may be subject to being removed from the venire for cause.
The test of relevancy is whether the questions relate to any of the four criteria set forth in the statute. If an answer to the question would necessarily disclose, or clearly lead to the disclosure of the statutory factors of relationship, interest, opinion, or prejudice, it must be permitted.
LeVasseur v. Commonwealth, 225 Va. 564, 581, 304 S.E.2d 644, 653 (1983), cert. denied, 464 U.S. 1063, 104 S.Ct. 744, 79 L.Ed.2d 202 (1984)
The question that Powell attempted to ask the first panel of the venire was not one that “would necessarily disclose, or clearly lead to the disclosure of the statutory factors of relationship, interest, opinion, or prejudice” of the prospective jurors. The panel had already indicted that they had no prior knowledge of the case and had not formed an opinion as to Powell's guilt or innocence. Powell's question would not have revealed any preexisting opinion or bias with respect to his case, but would instead have served to test the jurors' potential response to the evidence that he expected the Commonwealth to present.
Whether to permit a party to ask a question that goes beyond what is permissible under Code § 8.01-358 is a matter entirely within the trial court's discretion. Id. We hold that the trial court did not err in refusing to permit Powell to test the potential response of the jurors to the evidence that would be adduced at trial concerning his prior conviction.
In his eighth assignment of error, Powell contends that, having denied him the opportunity to question the potential jurors on this point, the trial court should have disqualified for cause the five members of the first panel because his attempt to question them provided them with knowledge that he had been previously convicted for the capital murder of Stacey Reed. Thus, he contends that these jurors were subject to automatic exclusion under Barker.
Even if we were to agree that Powell's curtailed question provided the five prospective jurors with sufficient information to raise the concern for potential prejudice that the jurors' full knowledge of the defendant's prior conviction raised in Barker, that circumstance arose here through Powell's own conduct during the voir dire. The record demonstrates that Powell's counsel was fully aware that advising the prospective jurors that Powell had been previously convicted of capital murder carried with it the potential for creating bias against his client, but apparently deemed this risk acceptable in order to seek the strategic advantage of being able to test the jurors' potential response to the evidence concerning that conviction during the trial. Counsel further recognized the risk that the trial court would not permit him to pursue that line of questioning, and, as we have just determined, was within its discretion to do so.
Under the “invited error” doctrine Powell may not benefit from his counsel's voluntary, strategic choice to place Powell at a potential disadvantage in the hope, unproductive though it was, of gaining some advantage. See, e.g., Moore v. Hinkle, 259 Va. 479, 491, 527 S.E.2d 419, 426 (2000); Saunders v. Commonwealth, 211 Va. 399, 400, 177 S.E.2d 637, 638 (1970); Clark v. Commonwealth, 202 Va. 787, 791, 120 S.E.2d 270, 273 (1961). “No litigant, even a defendant in a criminal case, will be permitted to approbate and reprobate-to invite error ... and then to take advantage of the situation created by his own wrong.” Fisher v. Commonwealth, 236 Va. 403, 417, 374 S.E.2d 46, 54 (1988), cert. denied, 490 U.S. 1028, 109 S.Ct. 1766, 104 L.Ed.2d 201 (1989). Accordingly, we hold that the trial court did not err in refusing to strike the members of the first voir dire panel for cause under the particular circumstances created by Powell in this case.
G. Failure to Strike the Evidence
In his fifth assignment of error, Powell contends that the trial court erred in failing to strike the evidence as to capital murder on the ground that the Commonwealth had not adequately corroborated his confession in the October 21, 2001 letter of having attempted to rape Stacey. Thus, Powell contends that the evidence at best would have supported a conviction for first degree murder. We disagree.
Although the Commonwealth may not establish an essential element of a crime by the uncorroborated confession of the accused alone, “ ‘only slight corroborative evidence’ ” is necessary to show the veracity of the confession. Williams v. Commonwealth, 234 Va. 168, 175, 360 S.E.2d 361, 366 (1987) (quoting Clozza v. Commonwealth, 228 Va. 124, 133, 321 S.E.2d 273, 279 (1984), cert. denied, 469 U.S. 1230, 105 S.Ct. 1233, 84 L.Ed.2d 370 (1985)), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 681 (1988). What is more, if “[t]his corroborating evidence is consistent with a reasonable inference” that the accused committed the crime to which he has confessed, the Commonwealth need not establish through direct evidence those elements of the crime that are proven by the confession. See Jackson v. Commonwealth, 255 Va. 625, 646, 499 S.E.2d 538, 551 (1998), cert. denied, 525 U.S. 1067, 119 S.Ct. 796, 142 L.Ed.2d 658 (1999).
Contrary to Powell's contention that there is not even “slight” corroborative evidence to support the reliability of his confession, the forensic evidence and direct testimony are consistent with and substantiate Powell's version of “the rest of what happened” in every relevant respect. Powell's going to the home armed when he knew Stacey would be there alone, Stacey's defensive wounds, the evidence that her pants' zipper was slightly undone, the subsequent rape of Kristie, and Powell's later concession that he raped Kristie because he “didn't get any with Stacey” all corroborate his confession to the attempted rape of Stacey in the October 21, 2001 letter. Accordingly, we hold that the trial court did not err in overruling Powell's motion to strike the evidence as to capital murder premised on the attempted rape of Stacey.
H. Mandatory Sentence Review In his first and second assignments of error, Powell contends that the jury imposed the sentence of death under the influence of passion, prejudice, or some other arbitrary factor and that the sentence of death is disproportionate to the penalty imposed in other cases considering both the crime and the defendant. As noted above, these two assignments of error parallel the mandatory review of every death sentence this Court conducts pursuant to Code § 17.1-313(C). Accordingly, we will combine the mandatory review of Powell's death sentence with our discussion of the issues raised by Powell in his assignments of error.
Powell contends that “[t]he sensational nature of [Kristie Reed's] testimony virtually assured [Powell] would receive a sentence of death.” This is so, he asserts, because “the graphic and irrelevant evidence about the attack on Kristie” would have enraged the jury and rendered it unable to reach an impartial verdict.
We have already determined that evidence of the rape and attempted murder of Kristie was relevant and admissible during the guilt determination phase of the trial. Similarly, Powell's rape and attempted murder of Kristie was relevant for the jury's consideration of his future dangerousness during the penalty determination phase of the trial. Accordingly, Powell's assertion that the jury was influenced by “irrelevant” evidence is without merit. However, while graphic evidence of a violent crime is admissible in the guilt determination phase of a capital murder trial, we will also consider the potential impact such evidence may have had on the jury's decision to impose the death sentence during the penalty determination phase.
The brutal rape and attempted murder of a thirteen-year-old child are undoubtedly among the most abhorrent crimes that can be placed in evidence before a jury contemplating whether to impose a sentence of death upon a defendant. Nonetheless, the mere fact that the jury is presented with such evidence does not raise a presumption that the jury will be unable to set aside its natural emotions and fairly consider all the evidence. See Bailey, 259 Va. at 751, 529 S.E.2d at 586 (evidence of infanticide and uxoricide, though abhorrent crimes, did not preclude jury from making a rational sentencing determination in a capital murder trial).
Powell further contends that the trial court erred in submitting to the jury a verdict form that permitted it to impose a sentence of life imprisonment and a fine but which did not expressly parallel the trial court's sentencing instructions by stating that this form was to be used if the jury found that neither aggravating factor had been proven beyond a reasonable doubt. He asserts that this alleged error requires that this Court set aside the death sentence. Powell concedes that he did not raise this issue at trial, but nonetheless contends that it is proper for this Court to consider his argument as part of the mandatory review of his sentence, apparently contending that an erroneous verdict form would constitute an “arbitrary factor” that would influence the jury's sentencing decision.
Our review of the record in this case does not disclose that the jury failed to give fair consideration to all the evidence both in favor and in mitigation of the death sentence. Moreover, the jury was properly instructed upon the sentences available and the basis for imposing them and the record supports the jury's determination to impose a sentence of death upon a finding that both aggravating factors were proven beyond a reasonable doubt. We find nothing to suggest that the jury, or the trial court in reviewing the verdict, imposed the death sentence under the influence of passion, prejudice, or other arbitrary factors. Accordingly, we hold that the sentence of death was not imposed under passion, prejudice, or any arbitrary factor.
In a separate section of his brief, ostensibly related to the assignment of error paralleling the passion, prejudice and arbitrary factor aspect of our mandatory review, Powell asserts that the alleged error in the wording of the life sentence verdict form should result in the reversal of his death sentence and a remand for a new sentencing proceeding. While we consider the entire record of a capital murder trial to determine whether the sentence of death should be set aside because of improper influence on the jury, we have previously rejected the contention that the “arbitrary factor” language of Code § 17.1-313(C)(1) permits a defendant to raise as a separate issue on appeal an issue barred by the failure to make a proper objection in the trial court by contending that the error influenced the jury's sentencing decision. See Quintana v. Commonwealth, 224 Va. 127, 148 n. 6, 152 n. 7, 295 S.E.2d 643, 653 n. 6, 656 n. 7 (1982) (rejecting assertion in dissenting opinion that mandatory review permitted challenge to form of jury verdict to be raised for the first time on appeal). Accordingly, while Powell is not precluded from arguing that the alleged error in the life sentence verdict form improperly influenced the jury's sentencing decision as a basis for commuting the death sentence, we will not consider his separate argument under the same assignment of error as a basis for reversing that sentence and ordering a new sentencing proceeding.FN12
FN12. Powell also contends that the “ends of justice” exception of Rule 5:25 would permit us to consider the alleged error in the life sentence verdict form as a basis for reversing his death sentence and ordering a new sentencing proceeding. However, as Powell cannot argue for reversal of his death sentence under the assignment of error paralleling the mandatory review of that sentence and failed to make this issue the subject of a separate assignment of error, the issue is not properly before us. Rule 5:17. Accordingly, we will not address this issue as a basis for reversing the sentence of death and remanding for a new sentencing proceeding.
Powell contends that the death sentenced imposed upon him is excessive or disproportionate when compared to similar cases considering both the crime and the defendant. Powell's sole contention is that his history of mental health problems and his failure to receive adequate treatment when in state custody as a juvenile militates against the appropriateness of the death penalty in his case. We disagree.
Code § 19.2-264.4(B) lists as a mitigating factor the fact that “the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was significantly impaired.” The psychologist called by Powell did not offer a specific diagnosis of Powell's mental health problems, merely classifying them generally as suggesting an anti-social personality disorder and “a mood disorder, primarily depressive in nature ... characterized by irritability, short temper and so forth.” The psychologist did not testify that Powell lacked the ability to appreciate the criminality of his conduct or that his condition significantly impaired his ability to conform his conduct to the requirements of the law.
The jury heard this testimony concerning Powell's mental health problems, and we must assume that the jury followed the trial court's instruction to consider evidence presented in mitigation. The jury clearly concluded that Powell's history of mental health problems did not mitigate his offense. See Swann v. Commonwealth, 247 Va. 222, 238-39, 441 S.E.2d 195, 206-07, cert. denied, 513 U.S. 889, 115 S.Ct. 234, 130 L.Ed.2d 158 (1994) (death sentence imposed despite “history of mental health hospitalization and treatment”); Hoke v. Commonwealth, 237 Va. 303, 313, 377 S.E.2d 595, 601, cert. denied, 491 U.S. 910, 109 S.Ct. 3201, 105 L.Ed.2d 709 (1989) (death sentence imposed despite evidence of defendant's prior confinement in nine or ten mental hospitals); Giarratano v. Commonwealth, 220 Va. 1064, 1076-79, 266 S.E.2d 94, 101-103 (1980) (death sentence imposed despite mitigating evidence of defendant's “schizoid personality disturbance” and “extreme mental and emotional disturbance”).
Apart from Powell's contention that his history of mental health problems should preclude the imposition of a death sentence in his case, we are required by Code § 17.1-313(C)(2) to conduct a comparative review of the death sentence imposed in this case with other capital murder cases, including those where a life sentence was imposed. “The purpose of our comparative review is to reach a reasoned judgment regarding what cases justify the imposition of the death penalty.” 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). In conducting this statutorily mandated review in this case, we have focused on cases in which the victim was murdered during the commission of rape or attempted rape, and in which the sentence of death was imposed based on findings of both future dangerousness and vileness. See, e.g., Patterson v. Commonwealth, 262 Va. 301, 551 S.E.2d 332 (2001); Swisher v. Commonwealth, 256 Va. 471, 506 S.E.2d 763 (1998), cert. denied, 528 U.S. 812, 120 S.Ct. 46, 145 L.Ed.2d 41 (1999); Pruett v. Commonwealth, 232 Va. 266, 351 S.E.2d 1 (1986), cert. denied, 482 U.S. 931, 107 S.Ct. 3220, 96 L.Ed.2d 706 (1987); Coleman v. Commonwealth, 226 Va. 31, 307 S.E.2d 864 (1983), cert. denied, 465 U.S. 1109, 104 S.Ct. 1617, 80 L.Ed.2d 145 (1984); Mason v. Commonwealth, 219 Va. 1091, 254 S.E.2d 116, cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979); Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979). We have also considered cases in which defendants received life sentences, rather than the death penalty, for capital murder during the commission of rape or attempted rape. See, e.g., Horne v. Commonwealth, 230 Va. 512, 339 S.E.2d 186 (1986); Keil v. Commonwealth, 222 Va. 99, 278 S.E.2d 826 (1981). Considering all the factors revealed by the record, both those favoring imposition of the death sentence and those in mitigation against it, we hold that the sentence is neither excessive nor disproportionate to the penalties imposed by other sentencing bodies in the Commonwealth for comparable crimes.
III. CONCLUSION
Having found no error below and perceiving no other reason to commute or set aside the sentence of death, we will affirm the judgment of the trial court.
Affirmed.
Powell v. Warden of Sussex I State Prison, 634 S.E.2d 289 (Va. 2006) (State Habeas).
Background: Following affirmance of his conviction of capital murder and sentence of death, 267 Va. 107, 590 S.E.2d 537, defendant filed petition for writ of habeas corpus. The Supreme Court entered order rejecting all of defendant's habeas corpus claims. Defendant filed a petition for rehearing.
Holding: On grant of petition for rehearing, the Supreme Court, Leroy R. Hassell, Sr., J., held that trial counsel's failure to object during penalty phase to admission of a form that contained an incorrect entry that defendant had a prior conviction for capital murder did not prejudice defendant, and thus did not constitute ineffective assistance. Petition dismissed.
OPINION BY Chief Justice LEROY R. HASSELL, SR.
I.
In this habeas corpus proceeding, we consider whether petitioner, who was convicted of capital murder for the killing of Stacey Lynn Reed during the commission of or subsequent to an attempted rape in violation of Code § 18.2-31(5), suffered prejudice within the meaning of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) because his trial counsel failed to object to the admission in evidence of a form that contained an inaccuracy regarding petitioner's criminal history.
II.
In September 2000, Paul Warner Powell was sentenced to death for the capital murder of Stacey Lynn Reed. On direct appeal, this Court reversed the conviction and remanded the case to the circuit court for a new trial on a charge no greater than first-degree murder for the killing of Stacey Reed, if the Commonwealth be so advised. Powell v. Commonwealth, 261 Va. 512, 552 S.E.2d 344 (2001).
After the proceeding was remanded, Powell wrote a letter to the Commonwealth's Attorney who had prosecuted Powell during the first trial. Powell described, in detail, the murder and attempted rape of Stacey Reed, and he provided facts that were previously unknown to the Commonwealth. The Commonwealth then nolle prossed the indictment in the remanded case. A grand jury for Prince William County subsequently indicted Powell for the capital murder of Stacey Reed during the commission of or subsequent to an attempted rape. Powell was tried by a jury that convicted him of capital murder and fixed his punishment at death. The circuit court entered a judgment confirming the jury's verdict and we affirmed that judgment. Powell v. Commonwealth, 267 Va. 107, 590 S.E.2d 537 (2004).
Subsequently, Powell filed a petition for habeas corpus in this Court alleging numerous claims, including ineffective assistance of counsel. During the sentencing hearing, the Commonwealth introduced in evidence, without objection, Exhibit 51 that is attached to this opinion. Exhibit 51, captioned Powell's “Virginia Criminal Record,” consists of five pages and was generated by the Federal Bureau of Investigation, National Crime Information Center. Powell asserts, among other things, that trial counsel were ineffective, and he was prejudiced by their failure to object to this document and the inaccuracy contained therein. We entered an order rejecting all Powell's habeas corpus claims. Powell v. Warden of the Sussex I State Prison, Record No. 042716, 2005 WL 2980756 (Nov. 8, 2005).
Powell filed a petition for rehearing and requested that this Court reconsider its order dismissing his habeas claims, including his claim that he was denied effective assistance of counsel because of counsel's failure to object to an erroneous entry on page three of Exhibit 51. This Court granted Powell a rehearing limited to that one claim, and we placed this matter on our argument docket.
III. The following facts were presented to the jury that found Powell guilty of capital murder and fixed his punishment at death. In January 1999, Robert Culver and his fiancée, Lorraine Reed, lived together in Manassas, Virginia, with Reed's two daughters, Stacey Lynn Reed and Kristie Erin Reed. On January 28, 1999, Powell went to the Reeds' home. Stacey, then 16 years old, left home to go to work, and Powell remained there alone with Kristie, who was 14.
That afternoon, Kristie called her mother by telephone and informed her that Powell refused to leave the home. Kristie's mother told Kristie to order Powell to leave. Kristie was concerned because Powell “kept walking back and forth down the hallway looking in the rooms.”
On the afternoon of January 29, 1999, Kristie arrived home from school and was startled to find Powell in her house. She asked Powell “where Stacey was.” He replied, “she was in her room.” Kristie walked to Stacey's room, but Stacey was not there. Then, Kristie turned to enter her own room and saw Stacey's body lying on the floor.
Powell, who had followed Kristie to the bedroom, ordered Kristie to go downstairs to the basement. Kristie knew that Powell customarily armed himself with a knife. She had previously observed Powell with a butterfly knife and “another long knife that was in a brown pouch type thing.”
Powell forced Kristie to accompany him to the basement, where he ordered her to remove her clothes. She took her clothes off because she “didn't want to die.” Powell told Kristie to lay on the floor, and then he raped her.
After Powell raped Kristie, he dressed himself, and he used shoelaces taken from Kristie's shoes to tie her feet together. He also used shoelaces to tie her arms behind her back. Someone knocked on the door to the house, and Powell went upstairs, leaving Kristie naked and bound on the basement floor.
While Powell was upstairs, Kristie was able to free her hands, and she tried to “scoot” across the floor and hide beneath the basement steps. Powell returned to the basement, removed Kristie's eyeglasses, and strangled her until she was unconscious. Powell stabbed Kristie in the stomach, and the knife stopped within a centimeter of her aorta. He slashed her in her neck numerous times, and the repair of the knife wounds required 61 sutures. She had multiple stab wounds to her neck and abdomen. She also had wounds on her wrists.
Robert Culver arrived at the home at 4:15 p.m. on January 29, 1999. He could not locate Kristie or Stacey. He went to the girls' bedrooms and saw that Stacey's room was in disarray. He entered Kristie's room, turned on the lights, and found Stacey's body on the floor. He observed blood on her body and saw that she was not breathing.
When Culver went to the basement in search of a telephone, he discovered Kristie lying naked and bound on the floor, bleeding from her neck and stomach. He saw that she had been stabbed in the stomach and her “throat was slit pretty severely, many times.” Culver found a telephone, dialed 911, and spoke to emergency response personnel. Although Kristie was experiencing life-threatening injuries, she was able to tell police officers and paramedics that Paul Powell was her assailant.
Stacey's death was caused by a stab wound to her chest. The wound pattern indicated that the blade of the knife pierced her heart and was twisted upon withdrawal. The blade of Powell's knife was consistent with the stab wounds.
There were numerous bruises on Stacey's head, neck, chest, abdomen, back, arms, and legs. She suffered stab wounds in her back and arm. She also had abrasions on her left hand and wrist that were characterized as defensive wounds. Stacey's body contained bruises on her lower neck that were consistent with someone stepping or stomping on her face and neck.
Police officers arrested Powell on January 30, 1999 at the home of a friend. The police officers also located a blue sports bag that belonged to Powell. A nine-millimeter semiautomatic pistol with a full magazine containing 10 Winchester nine-millimeter cartridges was in the bag. The bag also contained a survival knife with a five and one-half inch blade inside a black sheath and a butterfly knife with a five-inch blade. The survival knife sheath contained a dark reddish-brown stain. The DNA profile obtained from the stain on the sheath was consistent with the DNA profile of Stacey Reed and different from the DNA profile of Kristie Reed and Paul Powell. The probability of selecting an unrelated individual with a matching DNA profile at the Powerplex loci as contained on the sheath is approximately one in 1.1 billion in the Caucasian population.
After his arrest, Powell consented to several interviews with police officers. During one interview, he stated that he had been at the Reeds' home on January 29, 1999 and that Stacey was dead because “she was stupid.” Powell told the police officers that he and Stacey had an argument because she had a black boyfriend, and Powell “didn't agree with interracial dating.” Powell claimed that during the argument, Stacey attacked him and scratched his face, and then he pushed her to the floor. He claimed that Stacey attacked him again, and that she “got stuck” on his knife. Powell also initially denied raping Kristie.
In a second statement to police officers, Powell admitted that he raped Kristie. The detective who interviewed Powell testified that Powell stated that he had to kill Kristie because “she was the only witness and he would have to go to jail.”
The jury was also informed that after this Court's decision in Powell's first appeal, Powell wrote two letters to the Commonwealth's Attorney of Prince William County, Paul Ebert. Below is the content of a letter that Powell wrote, dated October 21, 2001.
“Mr. Ebert,
“Since I have already been indicted on first degree murder and the Va. Supreme Court said that I can't be charged with capital murder again, I figured I would tell you the rest of what happened on Jan. 29, 1999, to show you how stupid all of y'all mother fuckers are.
“Y'all should have known that there is more to the story than what I told by what I said. You had it in writing that I planned to kill the whole family. Since I planned to kill the whole family, why would I have fought with Stacie before killing her? She had no idea I was planning to kill everybody and talked and carried on like usual, so I could've stabbed her up at any time because she was unsuspecting.
“I had other plans for her before she died. You know I came back to the house after Bobby's lunch break was over and he had went back to work. When I got back, she was on the phone so I went inside and I laid down on the couch. When the cab came to bring me my pager, I ran out of the house and she jumped and got off the phone and came off the porch to see why I ran out of the house like I did.
“When the cab left we went in the house. I laid on the couch again and she went to her room and got her clothes and went downstairs to do her laundry. When she went downstairs, I got up and shut and locked the back door and went downstairs. We talked while she put her clothes in the wash. We continued talking when she had everything in the wash and I reached over and touched her tit and asked if she wanted to fuck. She said no, because she had a boyfriend.
“I started arguing with her because she had never turned anybody down because of having a boyfriend.
“We started walking upstairs, arguing the whole time. When we got upstairs we went to her room and she turned the radio off. After she turned the radio off I pushed her onto her bed and grabbed her wrists and pinned her hands down by her head and sat on top of her. I told her that all I wanted to do was fuck her and then I would leave and that we could do it the easy way or the hard way.
“She said she would fuck me so I got up. After I got up, she got up and started fighting with me and clawed me face. We wrestled around a little and then I slammed her to the floor. When she hit the floor I sat on top of her and pinned her hands down again. She said she would fuck me and I told her that if she tried fighting with me again, I would kill her.
“When I got up she stood up and kept asking me why I was doing this and all I kept saying is take your clothes off. Finally she undid her pants and pulled them down to her ankles. She was getting ready to take them the rest of the way off and the phone rang. When she heard the phone she pulled her pants back up and said she had to answer the phone. I pushed her back and said no. She said that she wouldn't say anything about me being there and I told her no and to take her clothes off.
“She tried to get out of the room again and I pushed her back and pulled out my knife. I guess she thought I was just trying to scare her and that I wouldn't really stab her because she tried to leave again.
“When she got to me and tried to squeeze between me and the door jam I stabbed her. When I stabbed her, she fell back against the door jam and just looked at me with a shocked look on her face.
“When I pulled the knife out she stumbled a couple steps and fell in her sister's room. I walked over and looked at her. I saw that she was still breathing so I stepped over her body and into the bedroom. Then I put my foot on her throat and stepped up so she couldn't breath. Then I stepped down and started stomping on her throat. Then I stepped back onto her throat and moved up and down putting more pressure to make it harder to breathe.
“When I didn't see her breathing anymore, I left the room and got some iced tea and sat on the couch and smoked a cigarette. You know the rest of what happened after that point.
“I would like to thank you for saving my life. I know you're probably wondering how you saved my life, so I'll tell you.
“You saved my life by fucking up. There were 2 main fuck-ups you made that saved me. The first was the way you worded my capital murder indictment. The second was the comment you made in your closing argument when you said we won't know because he won't tell us.
“One more time, thank you! Now y'all know everything that happened in that house at 8023 McLean St. on Jan. 29, 1999.
“I guess I forgot to mention these events when I was being questioned. Ha Ha! Sike!
“I knew what y'all would be able to prove in court, so I told you what you already knew. Stacey was dead and no one else was in the house so I knew ya'll would never know everything she went through unless she came back to life.
“Since the Supreme Court said I can't be charged with capital murder again, I can tell you what I just told you because I no longer have to worry about the death penalty. And y'all are supposed to be so goddamn smart. I can't believe that y'all thought I told you everything.
“Well, it's too late now. Nothing you can do about it now so fuck you you fat, cocksucking, cum guzzling, gutter slut. I guess I'll see your bitch ass on Dec. 18 at trial because I'm not pleading to shit. Tell the family to be ready to testify and relive it all again because if I have to suffer for the next 50 or 60 years or however long then they can suffer the torment of reliving what happened for a couple of days.
“I'm gone. Fuck you and anyone like you or that associates with people like you. I almost forgot, fuck your god, too. Jesus knows how to suck a dick real good. Did you teach him?
“Well, die a slow, painful, miserable death. See ya punk.
“Do you just hate yourself for being so stupid and for fuckin' up and saving me?
“Sincerely,
“Paul Powell.”
In a statement to a police officer on November 2, 2001, Powell gave the following description of Stacey's murder:
“She walked over to and uh I pushed her back. And then she walked over to me again I think and then I pulled my knife out and you know, and she looked at me you know. I guess she thought I wouldn't stab her or whatever. So she tried to leave and go to answer the phone. That's that.
.... “[After she got stabbed,] [s] he just looked at me for a minute you know and then you know, she ... she was surprised and them um, I pulled the knife out, you know she stumbled a few steps, fell down in Christy's doorway. I just walked over and looked at her. And I stepped over top of her and stepped on her throat and then stood on her throat and then stomped on her throat ... then I stood on her throat until I didn't see her breathing no more..... “What I'm saying I was stepping on her. I'm saying I put all my weight on her. I'm saying that I put my foot there you know and then I lifted myself up to where I was standing on top of her. Started stomping on her throat. And then man, I just stood on her throat again until I didn't see her breathe no more.”Before he raped Kristie, Powell knew that he intended to kill her. In response to a police officer's question: “Before you raped [Kristie], you knew you were going to kill her; didn't you?”, Powell responded: “I really didn't have a choice; did I?”
While incarcerated in jail awaiting his capital murder trial, Powell sent a letter to Lorraine Reed, the mother of Stacey and Kristie. Powell enclosed a photograph of a partially nude woman. Powell wrote:
“Lorraine,
“I was wondering if you might be able to help me think of something. I found this picture in a magazine and it kinda looks like someone I know or used to know, but I can't think of the persons name. I think you know the person too, so I was wondering if you could tell me the name of the person this picture resembles so I can quit racking my brain trying to think of it? I would appreciate it. If you don't know the person I'm talking about, ask Kristie or Kelly Welch because I know they know who I'm thinking of. If you talk to the person I'm talking about, please give her my address and tell her to write me.”
The partially nude woman shown in the photograph resembled Lorraine Reed's daughter, Stacey.
Powell wrote a letter to a friend while he was incarcerated. He stated:
“About when you asked me why I wouldn't do to you what I did to Stacie, I couldn't ever hurt you because you mean to much to me. See Stacie didn't mean anything to me. She was a nigger lover and some of her wannabe skin head friends were supposed to kill me. That's part of the reason why she died. Almost everything that happened in that house was planned. The only thing that wasn't planned was trying to fuck Kristie. What was supposed to happen was, Stacie was supposed to die, and did, Kristie was supposed to die and then I was going to wait for their mom and stepdad to get home and I was going to kill them and then I was going to take their moms truck and then I was gonna go to North Carolina and knock this dude off that stole all of my clothes and everything else I owned. I had been thinking about doing it for along time but I could never bring myself to do it. I don't know what happened to make me finally do it. I feel bad for doing it. Stacie was a good kid.”
Powell wrote, in another letter:
“Hey babe, what's happening? Not too much here. I writing you to see if you could get one of your guy friends to do me a favor. You know that Kristie is telling the cops things and that she is going to testify against me in court. I was wondering if you could get somebody to go to a pay phone and call Kristie and tell her she better tell the cops that she lied to them and tell her she better not testify against me or she's gonna die.”
Powell sent the following letter to the Commonwealth's Attorney of Prince William County:
“Fat Ebert,
“What's up you fat head fucker? I'm just writing to tell you, since you want to kill me so Goddamn bad for killing your nigger loving whore, set up a court date closer than Oct. 25 so I can go ahead and get this bullshit over with and plead guilty so you can kill me and get it over with, unless you want to let me out so I can kill the rest of the nigger lovers and all the niggers, Jews, Spics and everybody else in this fucked up country that's not white. That includes you because you are a nigger loving Jewish fucking faggot. I will see you in hell bitch.
“your buddy,
“Paul Powell
“P.S. Watch your back!”
The jury viewed writings and drawings taken from Powell's jail cell that demonstrated his hatred of people who were not Caucasian. Additionally, the jury heard evidence that Powell told police officers that he was a racist and described his violent racial views. He stated, “[e]verybody that ain't white shouldn't-he needs to die.” Powell had told a police officer that he wanted to purchase a gun to “[k]ill somebody. Kill a lot of somebodies ... [j]ust for something to do.” The jury was aware of Powell's criminal record, including three convictions for contributing to the delinquency of a minor, two larceny convictions, and three felony convictions for abduction, rape, and attempted capital murder of Kristie.
IV.
Powell argues that his trial counsel were ineffective and that he was prejudiced because they failed to object to the admission of the NCIC form that contained an incorrect entry that Powell had a prior conviction for capital murder.
The United States Supreme Court, in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), articulated the relevant principles that we must apply in the resolution of Powell's claim. In Strickland, the Supreme Court stated:
“A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.”
Id. at 687, 104 S.Ct. 2052. Accord Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Lockhart v. Fretwell, 506 U.S. 364, 369-70, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993); Lenz v. Washington, 444 F.3d 295, 302-03 (4th Cir.2006); Hedrick v. True, 443 F.3d 342, 349 (4th Cir.2006); Vinson v. True, 436 F.3d 412, 418 (4th Cir.2005).
Explaining the two-part test enunciated in Strickland, the Supreme Court noted:
“An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364-365 [101 S.Ct. 665, 66 L.Ed.2d 564] (1981). The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.”
Strickland, 466 U.S. at 691-92, 104 S.Ct. 2052.
As the Supreme Court has instructed, Powell is required to establish that trial counsel's alleged error, in this instance, the failure to object to the admission of evidence, resulted in prejudice to him. The Supreme Court stated in Strickland:
“[A]ctual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice.... Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense.”
Id. at 693, 104 S.Ct. 2052.
The Supreme Court has also held that “a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Id. at 697, 104 S.Ct. 2052.
The United States Supreme Court has identified three “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); Bell v. Cone, 535 U.S. 685, 695-96, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (“[In Cronic,] we identified three situations implicating the right to counsel that involved circumstances ‘so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.’ [ Cronic, 466 U.S. at 658, 104 S.Ct. 2039]”). The United States Supreme Court held that a defect is presumptively prejudicial if (1) there has been a “complete denial of counsel” at “a critical stage” of the proceedings, Cronic, 466 U.S. at 659, 662, 104 S.Ct. 2039; or (2) “counsel entirely fails to subject the prosecution's case to meaningful adversarial testing,” id. at 659, 104 S.Ct. 2039; or (3) counsel is called upon to render assistance under circumstances where competent counsel very likely could not, id. at 659-62, 104 S.Ct. 2039. Bell, 535 U.S. at 695-96, 122 S.Ct. 1843. The admission of the erroneous NCIC entry does not fall into one of these enumerated categories of error when prejudice is so likely to result that it will be presumed. Accordingly, this Court must apply the Strickland test to determine whether the error was prejudicial.
The Supreme Court's decision in Strickland applies to cases in which a habeas petitioner has been sentenced to death and in Strickland, the Supreme Court discussed the standard that this Court must apply to determine whether Powell suffered prejudice:
“The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
.... “When a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer-including an appellate court, to the extent it independently reweighs the evidence-would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.“In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.”
Id. at 694-96, 104 S.Ct. 2052.The Supreme Court stated in Kimmelman v. Morrison, 477 U.S. 365, 382, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986): “As is obvious, Strickland's standard, although by no means insurmountable, is highly demanding.” Accord Fitzgerald v. Thompson, 943 F.2d 463, 468 (4th Cir.1991).
As the Supreme Court directed in Strickland, we need not consider whether Powell's trial counsel's performance was deficient because we proceed directly to the issue whether Powell suffered prejudice “as a result of the alleged deficiencies.” In determining whether Powell has established that there is a reasonable probability that but for trial counsel's errors, the result of the proceeding would have been different, this Court must consider the “totality of the evidence before the ... jury.” Strickland, 466 U.S. at 695, 104 S.Ct. 2052.
Powell complains about trial counsel's failure to object to an entry on the bottom of page three of the NCIC form. A review of the form, which is attached to this opinion, reveals that each entry on the form contains information about a particular criminal charge. Each entry contains the name and date of the offense charged with the statutory reference, an arrest date, the jurisdiction where the offense was charged, the resulting conviction if any, a date of disposition, and various codes.
Powell contends that he was prejudiced by trial counsel's failure to object to the entry on the bottom of page three of the form that incorrectly stated that Powell was convicted of capital murder. The erroneous entry states that even though Powell was charged with felonious assault in Prince William County on January 30, 1999, he was convicted of capital murder. This entry, which refers to Powell's attack on Kristie Reed, erroneously contains the phrase “capital murder” when it should have contained the phrase “attempted capital murder.”
When introducing the NCIC report, the Commonwealth's Attorney accurately recited Powell's criminal record:
“Your honor, as an initial matter, the Commonwealth would move for the introduction of the Certified Copy of the Defendant's prior criminal record consisting of two convictions in 1997 for contributing to the delinquency of a minor. One conviction in 1999 for that same crime. A petty larceny in 1998 and a grand larceny in 2001 along with the three felony convictions that is; rape, abduction with intent to defile and attempted capital murder involving Kristie.”
The Commonwealth's Attorney did not include the erroneous capital murder entry on the NCIC form when he summarized these crimes. Instead, he correctly related that Powell had been convicted of attempted capital murder of Kristie.
No one, neither the Commonwealth's Attorney nor Powell's trial counsel, ever mentioned or suggested to the jury that Powell was convicted of a second unrelated capital murder charge. In fact, various statements made by Powell's trial counsel and the Commonwealth's Attorney informed the jury that Powell had never been convicted of an unrelated capital murder charge. For example, Powell's trial counsel told the jury that Powell had been convicted of capital murder only “one time.” None of the attorneys referenced the incorrect capital murder conviction on the NCIC report in their arguments to the jury.
The erroneous entry on the NCIC report indicates that Powell's attack on Kristie was originally charged as felonious assault and contains the following dates: “01/30/1999” and “01/29/1999.” The jury that sentenced Powell to death knew, however, that “01/30/1999” was the date of Powell's arrest and “01/29/1999” was the date Powell committed the crimes against Stacey and Kristie Reed. The erroneous entry refers to “Prince William Co.” and the jury knew that Prince William County was the location of Powell's crimes against Stacey and Kristie. Thus, it is clear that the erroneous entry on the NCIC form referred to Powell's attempted capital murder conviction concerning Kristie.
Upon our review of the totality of the evidence that the jury considered, “[t]aking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings,” Strickland, 466 U.S. at 696, 104 S.Ct. 2052, we conclude that Powell has failed to demonstrate a reasonable probability that the result of the capital murder trial would have been different and hence he has not suffered prejudice as required by the highly demanding standard that the Supreme Court established in Strickland.FN* Contrary to the Supreme Court's instructions in Strickland, the dissent focuses solely upon the improperly admitted evidence and does not consider the totality of the evidence before the jury. The dissent argues that we have usurped the jury's “very broad discretion” and engaged in “speculation” by considering the weight of the Commonwealth's evidence against Powell. However, in order to perform the review mandated by Strickland, we must weigh the evidence to determine whether there is a reasonable probability that the error affected the outcome of the proceedings. Wiggins, 539 U.S. at 534, 123 S.Ct. 2527; Yarbrough v. Warden, 269 Va. 184, 197-202, 609 S.E.2d 30, 38-40 (2005); Lovitt v. Warden, 266 Va. 216, 250-57, 585 S.E.2d 801, 821-26 (2003). Code § 19.2-264.2 prescribes the conditions that must be satisfied before a jury can impose the sentence of death in Virginia:
“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.”
The jury that imposed the sentence of death upon Powell concluded:
“We, the jury, on the issue joined, having found the defendant, PAUL WARNER POWEL [sic], guilty of capital murder in that he did willfully, deliberately, and premeditatively kill and murder one Stacey Lynn Reed, and, having found unanimously and beyond a reasonable doubt after consideration of his history and background that there is a probability that he would commit criminal acts of violence that would constitute a continuing serious threat to society and having found unanimously and beyond a reasonable doubt that his conduct in committing the offense was outrageously or wantonly vile, horrible or inhuman in that it involved ... [d]epravity of mind ... [a]ggravated battery to the victim beyond the minimum necessary to accomplish the act of murder [a]nd having considered all the evidence in mitigation of the offense, unanimously fixed his punishment at death.”
The day before Powell committed these gruesome crimes, he went to the victims' home and surveyed the interior of the house. He returned the next day and tried to rape Stacey, who struggled with him. He stabbed her in the heart, twisted the knife, and reinserted the knife in her heart. He stomped upon her throat and he placed the entire weight of his body on her throat until she died. Next, he drank a glass of iced tea, smoked a cigarette, and waited for Stacey's younger 14-year-old sister to return home. When Kristie arrived, Powell directed her to her sister's body, forced her downstairs into the basement, and raped her on the floor. He then tied her hands and feet while she was naked, choked her until she was unconscious, stabbed her in the stomach, and slashed her neck numerous times in an attempt to kill her.
We conclude that the jury's finding that Powell's conduct was “outrageously or wantonly vile, horrible or inhuman in that it involved ... [d]epravity of mind [and] ... [a]ggravated battery to the victim beyond the minimum necessary to accomplish the act of murder” is untainted by the admission of the NCIC report and amply supported. The jury's consideration of Powell's past criminal offenses is related to the issue of future dangerousness but has nothing to do with vileness of the act which serves as the basis of the capital offense. The instruction given to the jury on this issue and the verdict form confirm that the jury was instructed to consider the defendant's criminal history only with regard to future dangerousness. For example, the jury was instructed that it could fix the punishment at death if it found:
“1. That, after consideration of his history and background, there is a probability that he would commit criminal acts of violence that would constitute a continuing serious threat to society; or
“2. That his conduct in committing the offense was outrageously or wantonly vile, horrible or inhuman, in that it involved torture, depravity of mind or aggravated battery to the victim beyond the minimum necessary to accomplish the act of murder.”
Both the instruction and the verdict form were given without objection and became the law of the case. Spencer v. Commonwealth, 240 Va. 78, 89, 393 S.E.2d 609, 616 (1990). Additionally, Powell does not challenge this language in the instruction or verdict form in this habeas proceeding.
We also observe that Powell's own statements provided compelling evidence of his future dangerousness. Powell's letters and confessions to police demonstrate that he planned to kill the victims' entire family and that he continued to taunt the victims' family even while he was incarcerated awaiting his capital murder trial by sending the victims' mother a photograph of a partially-nude woman who resembled the deceased victim. Powell also sought to intimidate Kristie by having another individual contact her by telephone and tell her that she would be killed if she testified against Powell. He also bragged about his desire to kill people who are non-Caucasian.
As the Supreme Court instructed in Strickland, “a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” 466 U.S. at 696, 104 S.Ct. 2052. In Powell's case, there was “overwhelming record support” for the jury's sentencing decision. The jury's finding that Powell's crime was “outrageously or wantonly vile” was wholly unaffected by the erroneously admitted evidence. Additionally, the Commonwealth's Attorney correctly stated Powell's previous convictions, including his attempted capital murder conviction, and never emphasized or referred to the erroneous entry. “Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings,” we hold that Powell has not “met the burden of showing that the decision reached would reasonably likely have been different absent the errors.” Id.
Upon our review of the totality of the evidence that Powell constitutes a continuing serious threat to society and that his acts were vile in that he committed an aggravated battery to the victim beyond the minimum necessary to accomplish the act of murder, and that he demonstrated depravity of mind, we conclude that Powell failed to satisfy the high standard of prejudice established by the Supreme Court's holding in Strickland. Accordingly, we will dismiss the petition for habeas corpus.
Dismissed. Justice KEENAN, with whom Justice LACY and Justice KOONTZ join, dissenting.
Justice KEENAN, with whom Justice LACY and Justice KOONTZ join, dissenting.I respectfully dissent and would hold that Powell is entitled to a new sentencing hearing. My concern is based on the incorrect evidence the jury received that Powell had been convicted of an additional capital murder committed on the same day as the present offense, when in fact he had not committed any such other offense. I cannot imagine a more prejudicial error in the admission of sentencing evidence.
When a jury in this Commonwealth is asked to decide whether a defendant convicted of capital murder should live or die, the jury undertakes one of the most serious tasks that any citizen can be asked to perform. An essential component of this decision is the jury's consideration of the defendant's criminal record.
Under Code § 19.2-264.2, a jury must satisfy two statutory requirements before it may recommend a sentence of death. Ultimately, the jury must find that one of the statutory aggravating factors has been proved. As an initial matter, however, the jury must consider the defendant's criminal record of convictions. Code § 19.2-264.2 requires that the jury analyze the statutory aggravating factors only “after consideration of the past criminal record of convictions of the defendant.” Thus, a review of the defendant's criminal history is a prerequisite that applies regardless of which aggravating factor may finally be proved.
Here, the sentencing proceedings conducted by the circuit court failed to comply with the first requirement of Code § 19.2-264.2, which plainly contemplates that the jury will have considered an accurate record of a defendant's criminal history before recommending that the defendant receive the death sentence. Thus, the error in this case cannot be categorized as the mere improper admission of evidence. Because of this failure in the sentencing process, the jury was unable to perform a mandatory duty assigned by statute.
In my opinion, the majority's holding further suffers from extensive speculation and a failure to address the broad discretion afforded a jury in making a death penalty determination. Even when a jury has determined that the Commonwealth has proved both statutory aggravating factors beyond a reasonable doubt, the jury still can recommend that the defendant serve a sentence of life imprisonment. See Code §§ 19.2-264.2, -264.4; Smith v. Commonwealth, 219 Va. 455, 472, 248 S.E.2d 135, 145 (1978); see also Tuggle v. Thompson, 57 F.3d 1356, 1371 (4th Cir.), vacated on other grounds by Tuggle v. Netherland, 516 U.S. 10, 116 S.Ct. 283, 133 L.Ed.2d 251 (1995); Briley v. Bass, 750 F.2d 1238, 1241 (4th Cir.1984). The jury may impose a sentence of life imprisonment for any reason based on any mitigating circumstance, and is not required to weigh the evidence in mitigation against the evidence in aggravation of the crime. See Swann v. Commonwealth, 247 Va. 222, 236-37, 441 S.E.2d 195, 205 (1994); see also Tuggle, 57 F.3d at 1362. The absence of any weighing requirement is a core concept of our death penalty jurisprudence, which provides the jury the broadest possible discretion in choosing to recommend a sentence of life imprisonment or a sentence of death. Thus, the two main arguments on which the majority relies, namely, the weight of the Commonwealth's evidence against Powell, and the jury's determination that the Commonwealth proved both statutory aggravating factors, are not dispositive of the issue before us.
A jury's exercise of this very broad sentencing discretion is particularly difficult to assess under the Strickland test because the jury can sentence a defendant to life imprisonment even in the face of overwhelming evidence in aggravation of a crime. Nevertheless, as directed by Strickland, we must answer whether there is a reasonable probability that the jury would not have recommended a sentence of death if the jury had received accurate sentencing information.
The Supreme Court provided guidance in Strickland when it defined the term “reasonable probability.” The Court stated: “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052; see Lovitt v. Warden, 266 Va. 216, 250, 585 S.E.2d 801, 821 (2003); Hedrick v. Warden, 264 Va. 486, 497, 570 S.E.2d 840, 847 (2002). The Court has further elaborated that the reasonable probability standard is a standard lower than “more likely than not.” See Holland v. Jackson, 542 U.S. 649, 654, 124 S.Ct. 2736, 159 L.Ed.2d 683 (2004); Woodford v. Visciotti, 537 U.S. 19, 22, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002).
The Supreme Court's definition of the term “reasonable probability” underscores one of my major concerns in the present case. In my view, a court cannot have confidence in the outcome of a death penalty determination when the court's Strickland analysis relies on speculation. Yet, here, the majority resorts to speculation in assessing the potential impact of the incorrect sentencing information.
The majority opines that the jury ultimately would have been able to determine that the additional capital murder conviction shown on the NCIC report was an erroneous entry. Although the majority, as skilled members of the legal profession, can easily identify this inaccuracy, the majority simply speculates that the jurors had sufficient knowledge of the law to reach the same conclusion. Based on the evidence presented, the jurors could easily have viewed the NCIC report as proof that Powell committed a separate capital offense in Prince William County on the same day, brutally murdering an additional victim.
The majority also suggests that because the prosecutor did not reference the incorrect sentencing information when he summarized the contents of the NCIC report at the time of its admission into evidence, his oral summary of Powell's crimes would likely have resolved any confusion created by the erroneous written exhibit. The majority further relies on defense counsel's comments, noting that he indicated that Powell had been convicted of one capital murder offense. The majority's reasoning, however, is flawed because it requires an assumption that the jury disregarded the instructions of the circuit court. In every jury trial in this Commonwealth, the court instructs the jury that the statements of counsel are not evidence in the case and may not be considered as such. Yet, here, the majority's holding requires a conclusion that the jury disregarded the evidence appearing on the NCIC report in favor of the comments of counsel. Thus, the majority's rationale extends beyond simple speculation and also requires an improper conclusion that the jury rejected duly admitted evidence in favor of counsels' remarks.
Because a Strickland analysis cannot rest on such speculation and improper assumptions, I am required to conclude that the jury viewed the NCIC report as uncontested evidence that Powell had committed another capital murder. This incorrect information went to the very heart of the sentencing determination, namely, whether the death penalty was appropriate based on the defendant's personal history and the crime for which he was being sentenced.
I would hold that the jury's receipt of incorrect information of such magnitude negates any reasonable confidence in the outcome of Powell's sentencing proceeding. My concerns, however, reach far beyond the present case.
In my opinion, such a serious mistake in a capital murder case may well cause the public to question whether our courts adequately ensure the fair application of our death penalty statutes. When a jury has determined that a defendant should die for the commission of a heinous murder, the public should be able to have confidence that this determination was made without fundamental errors having occurred in the sentencing process. A central premise in support of the death penalty is that society exacts this penalty only in rare instances, and only after the penalty has been determined with full and fair adherence to constitutional, statutory, and evidentiary safeguards. Because those safeguards failed in this case when a very able prosecutor made an unintentional error, I would grant a writ of habeas corpus limited to the award of a new sentencing proceeding.
Powell v. Kelly, 562 F.3d 656 (4th Cir. 2009) (Federal Habeas).
Background: Following affirmance of conviction for capital murder and sentence of death, 267 Va. 107, 590 S.E.2d 537, petition for writ of habeas corpus was filed. The United States District Court for the Eastern District of Virginia, Thomas Selby Ellis, III, Senior District Judge, 531 F.Supp.2d 695, dismissed the petition. Petitioner appealed.
Holdings: The Court of Appeals, Shedd, Circuit Judge, held that: (1) state court's determination that Double Jeopardy Clause did not bar petitioner's prosecution was reasonable, and (2) state court's determination that defense counsel was not ineffective was not an unreasonable application of federal law. Affirmed. Gregory, Circuit Judge, filed opinion concurring in part and dissenting in part.
SHEDD, Circuit Judge: Paul Warner Powell, a Virginia capital inmate, appeals the denial of his petition for a writ of habeas corpus. We granted a certificate of appealability (“COA”) on three issues: (1) whether the imposition of a death sentence is precluded by the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution; (2) whether trial counsel rendered ineffective assistance by failing to object to the admission of an inaccurate National Crime Information Center report; and (3) whether trial counsel rendered ineffective assistance by failing to develop and present available mitigating evidence. For the following reasons, we affirm.
I. A.
We begin with a summary of the facts pertaining to the underlying crimes, as articulated by the Supreme Court of Virginia in Powell's first direct appeal:
“Powell was acquainted with Stacey Lynn Reed (“Stacey”) for two and a half years prior to the commission of the crimes in question. Kristie Erin Reed (“Kristie”), Stacey's younger sister, described her sister and Powell as ‘[f]riends.’ Powell, who was 20 years old at the time of the murder, had wanted to date Stacey, who was 16 years old, but recognized that she was underage and he ‘could go to jail for that.’ ”
“Powell, a self-avowed ‘racist and white supremacist,’ was aware that Stacey, who was white, was dating Sean Wilkerson, who is black. Wilkerson had recently moved to another locality, but he and Stacey remained in contact. Stacey was a member of her high school's Junior Reserve Officer's Training Corps and planned to attend a military ball with Wilkerson.
“Just before noon on January 29, 1999, Stacey arrived home from school early, having completed her examinations that were being given that day. Powell was waiting for her at her home when she arrived. When Powell learned that Robert Culver, a friend of the girls' mother, would be home shortly for lunch, Powell left and returned at about 12:45 p.m., after Culver had left. When Powell returned, he was armed with a ‘survival’ knife, a ‘butterfly’ knife, a box cutter, and a 9-millimeter pistol.
“Stacey was talking to Wilkerson on the telephone. After Stacey ended the telephone conversation, Powell confronted her about her relationship with Wilkerson. He demanded that Stacey end her relationship with Wilkerson. According to Powell, he and Stacey argued, and the argument grew into a struggle. Powell drew the survival knife from his belt and Stacey ‘got stuck.’ Powell denied stabbing Stacey deliberately. The struggle continued briefly until Stacey collapsed on the floor in her sister's bedroom.
“Although Powell did not know whether Stacey was still alive, he made no effort to determine her condition or call for medical assistance. Powell ‘wandered around the house, got some iced tea, had a cigarette.’ Kristie arrived home from school shortly after 3 p.m. and was met at the door of the home by Powell. Powell told her that Stacey was in her room, but moments later Kristie discovered her sister's body in Kristie's bedroom. She dropped her schoolbooks and began to cry.
“Powell ordered Kristie to go to the basement. Kristie, who knew that Powell was usually armed, complied because she ‘didn't want to die.’ In the basement, Powell ordered Kristie to remove her clothes and to lie on the floor. Powell then raped Kristie, and she ‘begg[ed] him not to kill her.’ Powell later admitted that he knew that Kristie, who was 14 years old at the time of the rape, had been a virgin.”
“While Powell and Kristie were in the basement, Mark Lewis, a friend of Kristie, came to the house and knocked on the door. When Powell heard the knock, he tied Kristie's legs together and tied her hands behind her back with shoelaces he cut from her athletic shoes. Powell then dressed and went upstairs.
“While Powell was upstairs, Kristie managed to loosen the bonds on her hands and attempted to ‘scoot across the floor to hide’ under the basement steps. Hearing Powell coming back to the basement, she returned to the position on the floor where he had left her. Powell then strangled Kristie with a shoelace and she lost consciousness. While she was unconscious, Powell stabbed Kristie in the abdomen and slit her wrists and throat.”
“Powell returned upstairs, searching for ‘anything worth taking.’ He fixed another glass of iced tea, which he took with him when he left the home a short time later. Powell went to a friend's house and then drove with the friend to the District of Columbia to buy crack cocaine.
“Kristie regained consciousness sometime after Powell had left her home. About 4:10 p.m., she heard Culver return home, and she called out his name. Culver discovered Kristie in the basement, called the 911 emergency response telephone number, and began rendering first aid to her. He later discovered Stacey's body upstairs. Shortly thereafter, paramedics arrived. In response to a question from one of them, Kristie identified Powell as her attacker. Powell was arrested later that day at the home of his friend's girlfriend, where he and the friend had gone after buying drugs.
“Kristie was transported by helicopter to Inova Fairfax Hospital where she received treatment for her injuries. It was ultimately determined that the wounds to her throat and abdomen each came within one centimeter of severing a major artery which likely would have caused her death.
“An autopsy revealed that Stacey had died from a knife wound to the heart. The medical examiner testified that there was a single entrance wound and two exit wounds indicating that the knife had been withdrawn, at least partially, and then reinserted into the heart. One wound path pierced the left ventricle and the other went through both the left and right ventricles, exiting the heart at the back of the right ventricle.
“Stacey's body also exhibited a number of bruises on the head, chest, abdomen, back, arms, and legs, abrasions on the face, a stab wound to the back, and a cut and scrapes on the left forearm. The autopsy further revealed that Stacey had been struck on the head with sufficient force to cause bleeding inside her scalp and in the membranes surrounding her brain prior to death. These injuries were not consistent with Stacey merely having fallen during a struggle.
“The DNA profile obtained from the blood found on Powell's survival knife was consistent with the DNA profile of Stacey's blood. The DNA profile obtained from sperm fractions from swabs taken from Kristie's vagina and perianal area was the same profile as that obtained from Powell's drawn blood sample.
“While in jail, Powell wrote letters to friends in which he admitted having committed the murder, rape, and attempted murder because of Stacey's relationship with a black man. He further claimed that he had planned to kill Stacey's family and steal the family's truck. Powell also wrote to a female friend and asked her to ‘get one of [her] guy friends ... to go to a pay phone and call Kristie and tell her [that] she better tell the cops she lied to them and tell her [that] she better not testify against me or she's gonna die.’
“Powell told another inmate that he had become angry with Stacey when she refused to have sex with him after talking to Wilkerson. Powell told the inmate that he stabbed Stacey twice and that when he attempted to cut Kristie's throat, his knife was too dull, ‘[s]o he started stepping on her throat trying to stomp her throat.’ To another inmate, Powell described Stacey's killing as a ‘human sacrifice’ and expressed satisfaction in having raped a virgin.” Powell v. Commonwealth, 261 Va. 512, 552 S.E.2d 344, 347-348 (2001) (“ Powell I ”).
B. In the original indictment, Powell was charged with a single count of capital murder in which the gradation crime was the commission, or attempted commission, of robbery.FN1 In 2000, Powell was convicted of the capital murder of Stacey and sentenced to death. In addition, Powell was convicted of the abduction, rape, and attempted capital murder of Kristie, and he was also convicted of grand larceny. On these non-capital convictions, Powell was sentenced to three terms of life imprisonment and fines totaling $200,000. Powell was acquitted of robbery, attempted robbery, and three firearm charges.
FN1. Virginia's capital murder statute includes fifteen gradation offenses, which when accompanied with the “willful, deliberate, and premeditated killing” of a person, make the defendant eligible for the death penalty. See Va.Code § 18.2-31.
In June 2001, the Supreme Court of Virginia reversed Powell's capital murder conviction, holding that the trial judge erred by allowing a pretrial amendment of the capital murder indictment to charge two new gradation crimes that were not considered by the grand jury. See Powell I, 552 S.E.2d at 355-56. The additional gradation crimes were the commission, or attempted commission, of rape and the commission, or attempted commission, of sodomy. The court held that including these additional counts of capital murder expanded the nature and character of the charges against Powell in a manner not allowed by Va.Code § 19.2-231. Id. at 357.FN2
FN2. Va.Code § 19.2-231 allows the government to amend an indictment to correct a defect in the form of the indictment or a variance between the allegations and the evidence offered in proof thereof, so long as the amendment does not change the nature or character of the offense charged.
Based on the circumstances then existing, the state supreme court also concluded that there was no basis to try Powell for capital murder on remand. Id. at 363. In making this determination, the court noted that Powell had been acquitted of robbery or attempted robbery, thereby eliminating these offenses from being gradation offenses for the capital murder charge. Further, the court held that “the evidence was insufficient to support [Powell's] conviction for the capital murder of Stacey ‘during the commission of or subsequent to’ the rape of Kristie” because the evidence clearly showed the rape of Kristie occurred after the murder of Stacey. Id. at 361. Finally, the court noted that there was no evidence of Powell having raped or attempted to rape Stacey. Id. at 363.
C. While awaiting retrial and believing that he could no longer be tried for capital murder, Powell wrote the Commonwealth's Attorney and disclosed new evidence regarding the circumstances surrounding Stacey's death. In Powell's second direct appeal, the Supreme Court of Virginia summarized the events as follows: FN3
FN3. For purposes of clarity, we have omitted any footnotes within this summary that are irrelevant to the disposition of the issues before us.
“On October 21, 2001, Powell wrote an obscenity-laced letter to the Commonwealth's Attorney who had prosecuted Powell in his first trial. Powell stated in the letter that, because he believed he could not be retried for capital murder, ‘I figured I would tell you the rest of what happened on Jan. 29, 1999, to show you how stupid all y'all ... are.’ Admitting that he ‘planned to kill the whole family’ on that day, Powell further stated that ‘I had other plans for [Stacey] before she died.’ Powell described how he had attempted to initiate consensual sexual intercourse with Stacey, which he had previously admitted. Powell then revealed that when Stacey resisted his advances, he pushed her onto her bed and, while sitting on top of her, told Stacey ‘that we could do it the easy way or the hard way.’
“Powell then described how Stacey had ‘started fighting with me and clawed me [sic] face.’ Powell stated that he ‘slammed her to the floor ... sat on top of her and pinned her hands down again.’ Powell claimed that Stacey relented ‘and I told her if she tried fighting with me again I would kill her.’
“Continuing, Powell stated that, at his direction, Stacey began to disrobe, but stopped when the telephone rang. Stacey put her clothes back on so that she could answer the telephone. Powell refused to allow Stacey to answer the telephone and ordered her to resume disrobing. When she refused, Powell ‘pushed her back and pulled out [his] knife.’ When Stacey attempted to leave the bedroom, Powell stabbed her. Stacey fell back and Powell removed the knife. Stacey then stumbled to another bedroom and collapsed. Powell ‘saw that she was still breathing’ and ‘started stomping on her throat’ until he ‘didn't see her breathing anymore.’
“Armed with this new evidence, the Commonwealth elected to nolle prosequi the indictment in the remanded case, under which it was limited to trying Powell for first degree murder under our mandate, and sought a new indictment against Powell for capital murder. On December 3, 2001, the grand jury returned an indictment charging Powell with the capital murder of ‘Stacey Lynn Reed during the commission of or subsequent to the attempted rape of Stacey Lynn Reed.’
“On April 24, 2002, Powell filed a motion to dismiss the December 3, 2001 indictment. Powell asserted that'[w]hen the Supreme Court of Virginia issues an opinion concerning a case, this opinion becomes the law of the case' and, thus, the directive of the opinion and mandate from this Court in his first appeal limited his retrial to a charge no greater than first degree murder, regardless whether that trial was conducted under the original indictment or a new indictment. The Commonwealth filed a response to this motion, asserting that the judgment of this Court in Powell's first appeal was not applicable to the December 3, 2001 indictment because Powell had ‘never [previously] been charged with the capital murder of Stacey Reed in the commission or attempted commission [of] sexual assault against [Stacey Reed] because, at the time of [Powell's first] trial, no such evidence existed.’ Accordingly, the Commonwealth contended that the December 3, 2001 indictment was ‘a new charge, one that has never been litigated in trial nor considered by the Virginia Supreme Court. Following a hearing on this and other pre-trial matters, the trial court overruled Powell's motion to dismiss the indictment in an order dated May 6, 2002.
“On May 17, 2002, Powell filed a second motion to dismiss the December 3, 2001 indictment.... The import of Powell's argument was that his prior trial and the reversal of his conviction by [the Supreme Court of Virginia] acted as an ‘implied’ or ‘judicial’ acquittal of the attempted rape of Stacey, thus barring his retrial for her capital murder premised on that gradation offense. The Commonwealth responded that the issue whether Stacey had been the victim of a sexual assault was not before the jury in his first trial because the bill of particulars provided at Powell's request indicated that only Kristie was the victim of the sexual assault gradation offenses charged in the amended indictment. Similarly, the Commonwealth contended that our comments concerning the insufficiency of the evidence to prove a sexual assault or attempted sexual assault against Stacey were not directed toward any finding of the jury, but to the contrary were indicative of the fact that the jury did not consider whether Stacey had been the victim of such an assault or attempt.
“On June 5, 2002, the trial court held a hearing on Powell's second motion to dismiss the indictment. After hearing argument, the trial court stated that by identifying Kristie as the victim of the rape or attempted rape in the bill of particulars, the Commonwealth had clearly identified her as the victim of those gradation crimes in the amended indictment for capital murder. The trial court also agreed with the Commonwealth that this Court's reference to the lack of evidence to prove any sexual assault or attempted sexual assault against Stacey was merely a comment on the record, and not an assertion that this was a theory of the case presented by the Commonwealth in Powell's first trial. On July 3, 2002, the trial court entered an order overruling Powell's second motion to dismiss the indictment.” Powell v. Commonwealth, 267 Va. 107, 590 S.E.2d 537, 544-545 (2004) (“ Powell II ”).
D. In January 2003, Powell was convicted of the capital murder of Stacey during the commission of rape or attempted rape of Stacey and sentenced to death. Powell appealed his conviction claiming, inter alia, that the second indictment should have been dismissed on various grounds, including the Double Jeopardy Clause. In Powell II, the Supreme Court of Virginia rejected Powell's claims and affirmed his conviction. Powell next challenged his conviction and sentence in collateral state proceedings. See Powell v. Warden of Sussex I State Prison, No. 042716, 2005 WL 2980756 (Va.2005) (“ Powell III ”). Powell raised numerous claims that the state supreme court found were procedurally defaulted, including an allegation that the Commonwealth violated his right against double jeopardy by trying him twice for the same offense. Among the new claims Powell asserted was an objection to the admission of a National Crime Information Center report (“NCIC report”) containing inaccurate information about Powell's criminal history during sentencing and a claim that his trial counsel provided him ineffective assistance by failing to investigate and present compelling mitigating evidence. The Supreme Court of Virginia denied relief on all grounds. Subsequently, the state supreme court granted rehearing on the question of whether counsel was ineffective in the sentencing phase for failing to object to the NCIC report. See Powell v. Warden of Sussex I State Prison, 272 Va. 217, 634 S.E.2d 289 (2006) (“ Powell IV ”). Ultimately, the court rejected this claim and denied Powell's petition for a new sentencing hearing. Id.
Thereafter, Powell filed a petition for a writ of habeas corpus in federal district court. See 28 U.S.C.A. § 2254. Powell asserted nine claims for relief. See Powell v. Kelly, 531 F.Supp.2d 695, 705 (E.D.Va.2008) (“ Powell V ”). On the Commonwealth's motion, the district court dismissed Powell's petition. As noted, we granted a COA on three issues: (1) whether the imposition of a death sentence is precluded by the Double Jeopardy Clause; (2) whether trial counsel was constitutionally ineffective in failing to object to the admission of an inaccurate NCIC report; and (3) whether trial counsel was constitutionally ineffective in failing to develop and present available mitigating evidence. We address each in turn.
II.
A.
We review the district court's dismissal of Powell's petition de novo. See Tucker v. Ozmint, 350 F.3d 433, 438 (4th Cir.2003). However, under 28 U.S.C. § 2254, “the scope of our review is highly constrained.” Jackson v. Johnson, 523 F.3d 273, 276 (4th Cir.2008). We may only grant Powell relief if the state court's adjudication of his claims (1) “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,” 28 U.S.C. § 2254(d)(1); or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d)(2).
The “contrary to” and “unreasonable application” clauses of § 2254(d) have independent meanings. Tucker, 350 F.3d at 438. A state court's decision is “contrary to” clearly established federal law under § 2254(d)(1) when it “applies a rule that contradicts the governing law set forth” by the United States Supreme Court, or “confronts a set of facts that are materially indistinguishable from a decision of ... [the Supreme] Court and nevertheless arrives at a result different from ... [that] precedent,” Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
A state court's decision involves an “unreasonable application” of clearly established federal law under § 2254(d)(1) “if the state court identifies the correct governing legal rule from ... [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case.” Williams, 529 U.S. at 407, 120 S.Ct. 1495. This standard is quite deferential: “The state court's application of clearly established federal law must be ‘objectively unreasonable,’ and ‘a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.’ ” Robinson v. Polk, 438 F.3d 350, 355 (4th Cir.2006) (quoting Williams, 529 U.S. at 411, 120 S.Ct. 1495). Moreover, when “assessing the reasonableness of the state court's application of federal law, the federal courts are to review the result that the state court reached, not whether [its decision] [was] well reasoned.” Wilson v. Ozmint, 352 F.3d 847, 855 (4th Cir.2003) (quotation marks omitted).
Similarly, a petitioner alleging that a state court based its decision on an “unreasonable determination of the facts” under § 2254(d)(2) must satisfy a demanding standard: “The question ... is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007). Finally, § 2254(e)(1) provides that a state court's factual decisions “shall be presumed to be correct” and that the petitioner bears the burden of “rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C § 2254(e)(1).FN4
FN4. Moreover, in cases proceeding under either § 2254(d)(1) or § 2254(d)(2), we can only grant the petitioner relief if the error had “a substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quotation marks omitted).
B. We begin with Powell's double jeopardy claim. Powell asserts two arguments in this regard. First, he contends that the gradation offenses charged at both trials were the same-that is, he was tried for capital murder during the rape or attempted rape of Stacey in both trials. Alternatively, if we decide the same offense was not charged in both trials, Powell nevertheless argues that the crime charged in the second trial had actually been litigated in the first trial, even if not formally charged. Conversely, the Commonwealth argues that the capital murder charges were different in each trial-that is, Powell was charged with the capital murder of Stacey during the rape or attempted rape of Kristie in the first trial and charged with the capital murder of Stacey during the rape or attempted rape of Stacey in the second trial.
The Double Jeopardy Clause prohibits any person from being put in jeopardy twice for the same offence. See U.S. Const. amend. V. The Supreme Court held in Sanabria v. United States, 437 U.S. 54, 64, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978) (citing Ball v. United States, 163 U.S. 662, 670, 16 S.Ct. 1192, 41 L.Ed. 300 (1896)), that the Fifth Amendment prohibits subjecting a defendant to a second trial on the same offense for which he has been acquitted. In Sanabria, the Court stated that when a defendant is charged with several violations of the same criminal statute, the appropriate double jeopardy inquiry is whether the legislature intended the charged violations to be separate “allowable unit [s] of prosecution.” Id. at 70, 98 S.Ct. 2170. Stated differently for purposes of this case, the issue is whether the Virginia legislature intended that a defendant could be charged with multiple counts of capital murder where there is one murder victim accompanied by multiple gradation offenses.
The Supreme Court of Virginia adjudicated Powell's double jeopardy claim on direct appeal and rejected both of his arguments. Powell II, 267 Va. 107, 590 S.E.2d 537. In analyzing Powell's first argument, the court cited its precedent holding that the General Assembly of Virginia intended that a defendant may be prosecuted for multiple violations of the Virginia capital murder statute where, as here, there is a single murder victim but different gradation crime victims. Id. at 553 (citing Payne v. Commonwealth, 257 Va. 216, 509 S.E.2d 293 (1999)). The state court found that the capital murder charge in the second trial alleging the murder of Stacey and attempted rape of Stacey was a distinct and separate crime from the offense charged in the first trial-namely, the capital murder of Stacey during the commission of, or subsequent to, Powell's rape of Kristie.
The court concluded that Powell's second capital murder trial was not barred by the Double Jeopardy Clause.
As to Powell's first argument, we hold that the Virginia Supreme Court's decision was consistent with Supreme Court precedent and was not an unreasonable application of federal law. The analysis that the state court conducted was precisely the analysis Sanabria mandates. Therefore, the decision was not contrary to clearly established federal law. Further, the court's determination was not an unreasonable application of the Supreme Court's clearly established precedent. Sanabria requires a court to determine whether the legislature intended to allow multiple charges under the statute. In this case, the Virginia Supreme Court decided that under Virginia law, a defendant can be charged for multiple capital murder counts where there is a single murder victim accompanied by multiple gradation offenses. Id. Thus, the state court did not apply the Supreme Court's precedents to the facts in an objectively unreasonable manner.
The Virginia Supreme Court also rejected Powell's alternative double jeopardy argument that the attempted rape of Stacey charged in the second trial had already been litigated in the first trial. The court relied on settled state law that Stacey's attempted rape was not at issue in the first trial because the Commonwealth's bill of particulars limited the first trial solely to the capital murder of Stacey subsequent to, or in the commission of, the rape of Kristie. See Powell II, 590 S.E.2d at 554 (holding that “by naming a specific victim of the gradation offense in a bill of particulars, jeopardy will attach only to the capital murder charge as made specific by the bill of particulars”).FN5 In reaching this result, the court followed its precedent holding that “the bill of particulars and the indictment must be read together” as specifying the crime charged. See Livingston v. Commonwealth, 184 Va. 830, 36 S.E.2d 561, 565 (1946). The court recognized that the original indictment in the first trial did not identify the name of the victim of the gradation offense. However, upon Powell's request, the Commonwealth specified in a bill of particulars that the charged offense only involved Kristie as the victim of the gradation offense. Thus, the court concluded that Powell was only tried in the first trial for the capital murder of Stacey during the commission of, or subsequent to, the rape of Kristie. See Powell II, 267 Va. 107, 590 S.E.2d 537. Based on established state law principles, the court ruled that Powell's second trial was not a double jeopardy violation because the indictment in the second trial charged a crime not charged in the first trial.
FN5. A defendant does not have a right to a bill of particulars in Virginia. See Quesinberry v. Commonwealth, 241 Va. 364, 402 S.E.2d 218, 223 (1991) (holding whether the Commonwealth is required to file a bill of particulars lies within the discretion of the trial court). Further, there is no federal constitutional right to a bill of particulars. See United States v. Bales, 813 F.2d 1289 (4th Cir.1987) (internal citations omitted). The purpose of a bill of particulars is “to state sufficient facts regarding the crime to inform an accused in advance of the offense for which he is to be tried.” Quesinberry, 402 S.E.2d at 223 (citing Hevener v. Commonwealth, 189 Va. 802, 54 S.E.2d 893, 899 (1949)). Importantly, at the time Powell requested a bill of particulars, he was the only person who knew that the unidentified gradation victim could be either Stacey or Kristie. Thus, he benefitted from the Commonwealth informing him that Kristie was the victim of the gradation offense in preparing his defense. Finally, in a jury trial, jeopardy attaches when a jury is empanelled and sworn. Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975) (citing Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963)). It is clear that at the time the jury was sworn in Powell's first trial, Powell was only in jeopardy, so far as is relevant here, for the murder of Stacey during the rape of Kristie as specified by the bill of particulars.
Powell argues that this holding was an unreasonable determination of the facts in light of the evidence presented at trial. He claims, among other arguments, that the bill of particulars did not limit the charge because the jury heard argument from the prosecutor that Powell “wanted something more” from Stacey, the jury heard testimony from witnesses suggesting that Stacey refused to have sex with Powell, and the jury was not told about the limitation of the bill of particulars.
Powell's argument falls short of showing an unreasonable determination of the facts in light of the evidence presented. First, under settled Virginia precedent, the court determined that, as a matter of state law, Powell was not charged with the attempted rape of Stacey in the first trial. Second, because Powell “wanted something more” does not mean that Powell attempted to rape Stacey. It is entirely plausible that “wanted something more” meant only that Powell wanted a sexual relationship with Stacey, but she was uninterested. This is not a basis for a charge of attempted rape. Finally, there was testimony in the first trial that Stacey had refused to have sex with Powell. Again, rejecting sexual advances, without more, is not evidence of an attempted rape. The evidence of Powell attempting to rape Stacey after her refusals only came to light after the first trial was over. If the Commonwealth had been prosecuting Powell for this gradation offense, it would not have restricted the bill of particulars to identifying only Kristie as the victim of the gradation offense. Clearly, the state court's determination that the charge that Powell had attempted to rape Stacey was not litigated in the first trial was not an unreasonable determination of the facts in light of the evidence presented. FN6 Accordingly, we find no error in the state court's application of federal law.FN7
FN6. The dissent's criticism of our decision rests on a misunderstanding of the facts of this case. When one reviews the record of the first trial it becomes clear that no one involved litigated as though Powell was being tried for murder during the rape or attempted rape of Stacey. The Commonwealth certainly did not offer evidence on that purported charge during that trial. Moreover, the bill of particulars unambiguously identified Kristie only as the victim of the rape or attempted rape, and Powell's trial counsel clearly recognized this fact as evidenced by their comments to the court and to the jury. See, e.g., Record, Vol. 2, at 1068 (“The rape involved Kristi[e], not Stac[ey]”); Record, Vol. 2, at 1052 (“Stac[ey] is the victim or alleged victim on the capital murder, the robbery, and the attempted robbery. And ... Kristi[e] the victim or alleged victim on rape ...”); Record, Vol. 2, at 995 (“and on the rape allegation, obviously, Kristi[e] Reed”); Record, Vol. 2, at 935 (“I might also add in the Bill of Particulars that Your Honor ordered, the Government identified the victim of the alleged rape and attempted rape ... as being Kristie, not Stac[ey], but Kristie”).
The trial judge likewise recognized this fact. For example, the trial judge instructed the jury that “[s]exual intercourse means an actual penetration, no matter how slight, of the Defendant's penis into the sexual organ of Kristi[e] Reed.” Record, Vol. 2, at 1024-25. Although the dissent contends that the trial judge's response to the jury question suggests that he was confused as to the identity of the rape victim, the proceedings that followed the receipt of the question demonstrate that the judge was not confused on that point. It is clear that the trial judge was not concerned with who the victim of the rape was; instead, he was concerned with the timing of the rape of Kristie and whether the murder of Stacey could be found to have occurred “subsequent to” or “during the commission of” the rape of Kristie. See J.A. 53-55, 62. FN7. Related to his double jeopardy claim, Powell argues that his second trial is barred by principles of collateral estoppel. See Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Although the state argues this claim is procedurally defaulted, we find that it lacks merit in any event. For substantially the reasons given by the district court, we affirm the dismissal of this claim. See Powell V, 531 F.Supp.2d at 724-25.
C. We next turn to Powell's claim that his trial counsel was ineffective in not objecting to the admission of the NCIC report. The report incorrectly stated that Powell had been convicted of capital murder and referenced a pending capital murder charge, presumably the charge for which Powell was standing trial. Finally, the report contained correct entries that Powell asserts were inadmissible at trial, such as charges that were nolle prossed or for which Powell was found not guilty.
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court articulated the relevant standard for a claim of ineffective assistance of counsel:
A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components.
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Id. at 687, 104 S.Ct. 2052.
The Supreme Court of Virginia found, in its first opinion denying Powell's state habeas petition, that there was a single capital murder conviction entry listed on the NCIC report. Powell III, 2005 WL 2980756, at 14. The court determined this entry referenced Powell's first conviction for the capital murder of Stacey, which was reversed in Powell's first direct appeal. Id. Powell petitioned the court for rehearing on this issue and the court granted his motion. See Powell IV, 272 Va. 217, 634 S.E.2d 289. On rehearing, the court found that there was an additional incorrect capital murder conviction entry in the NCIC report that referred to Powell's conviction for the attempted capital murder of Kristie. After acknowledging these errors, the court found that there was no valid claim for ineffective assistance of counsel under Strickland because Powell could not demonstrate prejudice. Id. at 299, 272 Va. 217.
Powell contends that the state court's interpretation of the inaccuracies in the report is itself error because the court's determinations of what the state capital convictions actually meant was based on speculation. However, Powell's arguments fails. We must presume the correctness of a state court's factual determination unless the habeas petitioner rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Powell has offered no clear and convincing evidence to rebut the presumption of correctness that we afford the state court's factual findings.
Next, Powell contends that the state court unreasonably applied Strickland because he has shown that his trial counsel was ineffective in failing to object to the NCIC report. We disagree. Under Strickland, Powell 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.” Strickland, 466 U.S. at 695, 104 S.Ct. 2052. Stated differently, Powell can show prejudice and is entitled to relief only if he can show that had the NCIC report not been admitted, “there is a reasonable probability that at least one juror would have struck a different balance.” Wiggins v. Smith, 539 U.S. 510, 537, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Absent this showing, Powell is not entitled to relief.
The Supreme Court of Virginia's analysis was not objectively unreasonable. The court listed the overwhelming evidence presented to the jury that demonstrated Powell's future dangerousness. This evidence included, inter alia: 1) the heinous details of the crimes; 2) the letter Powell wrote to the prosecutor following the first trial divulging of the circumstances of Stacey's attempted rape and death; 3) a taunting letter Powell wrote to Stacey's mother; FN8 4) another letter Powell wrote to the Commonwealth's Attorney stating that he wanted to get out of prison to “kill ... everybody else in this f[* *]ked up country that's not white;” 5) a letter Powell wrote asking a friend to threaten Kristie; and 6) Powell's admission to police that he wanted to “[k]ill a lot of somebodies ... [j]ust for something to do.” See Powell IV, 634 S.E.2d at 290-94. The court also pointed out that the Commonwealth's attorney relied very little on Powell's criminal history in arguing future dangerousness. See Id. at 297, 272 Va. 217. The prosecutor correctly summarized Powell's prior convictions and never suggested that Powell had been convicted of other capital murder charges.
FN8. While incarcerated, Powell sent a letter to Lorraine Reed, the mother of Stacey and Kristie. Powell enclosed a photograph of a woman who resembled Stacey and who was naked from the waist up. Among other things, Powell asked Lorraine for her help in identifying who the woman in the picture resembled, directed Lorraine to ask Kristie for help if she could not determine who it resembled, and asked Lorraine to give his address to the person about whom he was referring.
The state court balanced the aggravating evidence against the limited use of the NCIC report and noted that “a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” Id. at 298, 272 Va. 217 citing Strickland, 466 U.S. at 696, 104 S.Ct. 2052. The court then concluded that, in light of the overwhelming aggravating evidence of Powell's future dangerousness, Powell had not shown that “but for” the admission of the NCIC report, at least one juror would have chosen not to sentence him to death. Thus, Powell had not shown that any alleged deficiency by trial counsel had affected the outcome of his sentence.
Powell's ineffective assistance of counsel claim fails. The state court properly applied Strickland to the facts of this case. First, it is reasonable to believe the jury understood Powell had not previously been convicted of the capital murder of two other victims in addition to Stacey. The jury knew Powell's previous conviction of the capital murder of Stacey had been successfully appealed and vacated based on the contents of Powell's letter to the Commonwealth's attorney. Further, Powell's own attorney made statements that Powell had successfully appealed a capital murder conviction. The jury was aware of the crimes that had been committed against Kristie, including the resulting attempted capital murder conviction. See id. Thus, it is reasonable that the jury, upon seeing the two entries for capital murder, would understand that the NCIC report's entries were inaccurate and actually referred to the attempted capital murder of Kristie and the vacated conviction for the capital murder of Stacey.
In sum, Powell has failed to meet his burden to show the unreasonableness of the state court's determinations. We conclude that the state court's determination that Powell had not shown prejudice is not an unreasonable application of Supreme Court precedent or based on an unreasonable determination of the facts in light of the evidence presented at trial. Therefore, we affirm the dismissal of this claim.FN9
FN9. Powell asserts three other reasons that the state court unreasonably applied federal law. First, Powell argues the state court failed to consider the totality of the evidence in performing its prejudice analysis. Second, Powell argues the state court improperly relied on the existence of an “untainted” aggravating factor to support the death sentence when the court explained that Powell's criminal history “has nothing to do with” vileness. We have reviewed the record in this regard and find no basis for relief.
Finally, Powell argues that the state court unreasonably applied Strickland by using an improperly elevated standard of prejudice. The state court described Strickland's standard as “highly demanding.” Powell IV, 634 S.E.2d at 296 quoting Kimmelman v. Morrison, 477 U.S. 365, 382, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Powell's argument in this regard is not persuasive. In reviewing the state court's opinion, it is clear that it did not require a more demanding showing under Strickland; rather, the court was simply commenting that the standard was high and Powell had not met it.
D.
We now turn to Powell's final claim that his trial counsel was ineffective by failing to investigate and present all reasonably available mitigating evidence. Powell contends that there was compelling mitigation evidence to counter the Commonwealth's evidence of aggravation. Powell maintains that counsel failed to counter the Commonwealth's arguments that, inter alia, he: held racist beliefs and tortured animals; was inherently violent; had no remorse; and was of above average intelligence. Generally, Powell contends that counsel was ineffective in failing to offer the following evidence: that Powell made racist statements for their shock value on listeners, rather than as expressions of true beliefs; that he was actually kind to animals; that he had never been inherently violent; that numerous persons witnessed him showing serious remorse for his crime; and that he is not of above average intelligence.
It is well-established that an individual claiming ineffective assistance of counsel must show, first, that counsel's performance was deficient, in that it “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Once counsel conducts a reasonable investigation of law and facts in a particular case, his strategic decisions are “virtually unchallengeable.” Id. at 690, 104 S.Ct. 2052. Tactical or reasonable professional judgments are not deficient but a failure to investigate a material matter due to inattention may be deficient. When the claim is that counsel failed to present a sufficient mitigating case during sentencing, the inquiry “is not whether counsel should have presented a mitigation case” but “whether the investigation supporting counsel's decision not to introduce mitigating evidence ... was itself reasonable.” See Wiggins, 539 U.S. at 523, 123 S.Ct. 2527 (internal citations omitted).
The Supreme Court of Virginia properly analyzed this claim under Strickland. Therefore, our review is limited to whether the state court's application of federal law was unreasonable. The Supreme Court of Virginia examined each claim and properly made a determination under Strickland of whether Powell had shown deficiency of counsel's performance and prejudice. We have examined each of Powell's contentions and find that the state court's determinations were not an unreasonable application of Strickland. Therefore, we affirm the dismissal of this claim.
III.
Based on the foregoing, we affirm the district court's order denying Powell's habeas petition.
AFFIRMED GREGORY, Circuit Judge, concurring in part and dissenting in part:I concur with the reasoning of the majority's opinion on Powell's ineffective assistance of counsel claims. However, I find nothing reasonable about the Supreme Court of Virginia's finding in Powell II that the bill of particulars nullified the Commonwealth's conduct at Powell's first trial. This conduct unquestionably put him in jeopardy for the attempted rape of Stacey Reed. Even taking into account the nearly insurmountable burden placed on Powell by virtue of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), I am left with the firm conclusion that the Supreme Court of Virginia's post-hoc rationalization in Powell II is an unreasonable determination of the facts in light of the evidence presented, and thus Powell's conviction for capital murder must be reversed.
The Fifth Amendment to the United States Constitution provides that no “person be subject for the same offense to be twice put in jeopardy of life or limb.” There can be no doubt that Powell was actually put in jeopardy for the gradation offense of the attempted rape of Stacey during the first trial, and thus his second capital murder trial violated the Double Jeopardy Clause. Although the bill of particulars purportedly identified Kristie Reed as the victim of the gradation offense, the Commonwealth nevertheless argued throughout the first trial that Powell attempted to rape Stacey prior to her murder. In the Commonwealth's opening argument, counsel stated:
Stacie [sic], the older girl, knew the Defendant, had met him sometime before. They had a friendship, a social acquaintance. You'll hear evidence that he wanted more from her than that. You'll hear evidence that she was cool towards him.
....
... And on the afternoon of the 29th, there was nobody home with Stacie [sic] when he came over and they argued about this boy that she was dating. And he wanted something from her and she wasn't going to give it to him and for that she lost her life.
(J.A. 24-25 (emphasis added).) During the trial, the Commonwealth put on circumstantial evidence suggesting that Powell had attempted to rape Stacey, and even argued as much to the trial court. In response to Powell's motion to strike the indictment for insufficiency of the evidence, counsel argued that
[W]e have evidence here, again, from Mr. Neff that according to him [Powell] was having sex or attempting to have sex with Stacie [sic] when the phone rang. When she got up and answered the phone, then she wanted nothing to do with him, and at that point in time he got mad and said-the testimony was, he said, “It was that nigger, wasn't it?” He pulled out his knife and stabbed her.
Again, evidence, in that regard of his intent to rape and have sex and wanting sex.
(J.A. 43 (emphasis added).) Furthermore, the Commonwealth elicited testimony from Officer Daigneau, who testified that a physical evidence recovery kit had been obtained from Stacey and such kits are “routinely done in cases of sexual assault.” (J.A. 29; see also J.A. 29-31.)
Tellingly, at no time during the trial did the Commonwealth ever specifically identify Kristie as the victim of the gradation offense.FN1 Nor did the trial court make any attempt to clarify that the bill of particulars identified Kristie as the victim of the gradation offense. In its instructions to the jury, the trial court stated that
FN1. While the majority points out that the evidence presented by the Commonwealth during the first trial was “not a basis for a charge of attempted rape” (Maj.Op. 667), that analysis conflates the issue of whether an individual was put in jeopardy for an offense with the issue of whether the prosecution put on sufficient evidence to convict an individual for that offense. The Commonwealth did not fail to prosecute Powell for the attempted rape of Stacey, it just failed to do so successfully, and the majority misses that point in its analysis. [t]he Commonwealth must prove beyond a reasonable doubt each of the following elements of that crime:1. That the defendant killed Stacie [sic] Reed; and
2. That the killing was willful, deliberate and premeditated; and
3. That the killing occurred during the commission of robbery and/or attempted robbery and/or during the commission of, or subsequent to rape.
(J.A. 59 (emphasis added).) With regard to first-degree murder, the trial court gave similarly broad instructions:If you find from the evidence that the Commonwealth has failed to prove that the killing was deliberate and premeditated, but the killing was willfully committed during the commission of robbery or attempted robbery and/or rape or attempted rape, you shall find the defendant guilty of first degree murder.
(J.A. 60 (emphasis added).) Given the lack of specificity in the jury instructions, it is not surprising that during deliberations the jury asked: “Can a guilty verdict for the rape of Kristie be used to satisfy jury instruction number 4, element 3?” FN2FN2. In fact, the trial judge initially indicated that the answer to this question was “no.” (J.A. 53.) Such an answer would only make sense if the judge thought that the attempted rape of Stacey would satisfy the requirement of the gradation offense and that the jury could convict Powell of that offense. (J.A. 62.) The fact that the jury needed to ask this question demonstrates that the jury was unaware that the bill of particulars identified Kristie as the sole victim of the gradation offense, and it further implies that the jury was considering the rape or attempted rape of both Stacey and Kristie in reaching its verdict.
On appeal, the Supreme Court of Virginia itself recognized that Powell had been put in jeopardy for the rape or attempted rape of Stacey, and indeed based its decision in part on that finding. See Powell I, 552 S.E.2d at 363. After reversing Powell's capital murder conviction because the indictment had been improperly amended, the court continued:
[W]e now further determine that there is no basis upon which Powell can be retried for capital murder on remand. The poll of the jury establishes that Powell was acquitted of the charge of capital murder in the commission of robbery or attempted robbery. It is equally clear that there is simply no evidence upon which the jury could have relied to find that Powell committed or attempted to commit any sexual assault against Stacey before or during her murder, or that the rape of Kristie did not occur after the murder of her sister....
For these reasons, we will reverse Powell's conviction for capital murder, affirm his convictions for abduction, rape, attempted capital murder, and grand larceny, and remand the case for a new trial on a charge of no greater than first degree murder for the killing of Stacey Reed, if the Commonwealth be so advised.
Id. (emphasis added). It is perplexing that the Supreme Court of Virginia would have made such a finding if, in fact, the rape or attempted rape of Stacey had not been litigated in the first trial.
In affirming Powell's capital murder conviction in Powell II, however, the Supreme Court of Virginia reversed course. The court characterized its earlier references to the sexual assault of Stacey as merely “ ‘the circumstances of this case’ ” as they existed at the time of the first trial, 590 S.E.2d at 552 (quoting Powell I, 552 S.E.2d at 363). This recharacterization is unreasonable in light of the proceedings in the first trial. At every turn, the Commonwealth, the trial court, the jury, and even the Supreme Court of Virginia acted as though Powell were on trial for the murder of Stacey in the commission of any rape or attempted rape, and not specifically on trial for the murder of Stacey in the commission of the rape of Kristie.
Like the Supreme Court of Virginia, the majority claims that “no one involved litigated as though Powell was being tried for murder during the rape or attempted rape of Stacey.” (Maj. Op. 667 n. 6.) Yet, the majority provides no explanation for why the Commonwealth elicited testimony that police officers performed a physical evidence recovery kit on Stacey or made intimations that Powell attempted to sexually assault Stacey. ( See J.A. 29, 24-25.) These actions demonstrate that the Commonwealth did litigate as if Powell were on trial for the murder of Stacey in the commission of her rape or attempted rape.
In further support of its finding that Powell had not already been put in jeopardy for the rape or attempted rape of Stacey, the Supreme Court of Virginia found that the bill of particulars served to narrow the offense of jeopardy to include only the rape of Kristie:
[W]here, prior to the attachment of jeopardy, the Commonwealth limits the prosecution of a capital murder, undifferentiated in the indictment by the identity of the victim of the gradation offense, by naming a specific victim of the gradation offense in a bill of particulars, jeopardy will attach only to the capital murder charge as made specific by the bill of particulars.
Powell II, 590 S.E.2d at 554. The majority now relies on this holding in finding that the Supreme Court of Virginia committed no reversible error in its application of federal law. ( See Maj. Op. 665-67.)
Even assuming that this holding is not unreasonable as a matter of law, it overlooks the fact that the Commonwealth did not actually limit its prosecution for capital murder to the rape of Kristie. Moreover, neither the prosecution nor the trial court ever specified to the jury that the bill of particulars identified Kristie as the victim of the gradation offense. Had the trial court excluded evidence suggesting that Powell had attempted to rape Stacey or clarified that the attempted rape of Stacey could not satisfy the requirements of the gradation offense, the Commonwealth would have a stronger argument that the bill of particulars had a limiting effect-but that is not the case here. Instead, the bill of particulars operated as a double-edged sword for Powell: on one hand, the Commonwealth ignored its import in putting on circumstantial evidence suggesting that Powell had sexually assaulted Stacey before her murder, while on the other hand the Commonwealth was able to use the bill of particulars as a safety valve to later retry Powell for capital murder when new evidence came to light.
Notwithstanding the above analysis, the majority concludes that the rape or attempted rape of Stacey was somehow not litigated because Powell's trial counsel “clearly recognized” the limiting effect of the bill of particulars, “as evidenced by their comments to the court and to the jury.” (Maj. Op. 667 n. 6.) Again, the majority misses the point. I agree that Powell's trial counsel understood that the bill of particulars should limit the prosecution of the gradation offense. Indeed, Powell's trial counsel submitted proposed jury instructions specifying that Kristie was the victim of the gradation offense. (R. vol. 21 at 1213.) The problem is that despite counsel's exhortations, the trial court did not use the proposed jury instructions or otherwise clarify this point to the jury.
Finally, the majority contends that the trial judge impliedly recognized the effect of the bill of particulars when he instructed the jury that “[s]exual intercourse means an actual penetration, no matter how slight, of the Defendant's penis into the sexual organ of Kristi[e] Reed.” (R. vol. 20 at 1024-25.) But the majority takes this instruction out of context. Along with capital murder, Powell was charged with the rape of Kristie. It was in instructing the jury on this latter charge that the trial judge used the phrase “sexual intercourse.” FN3 (R. vol. 20 at 1020.) Thus, when the trial judge clarified the definition of sexual intercourse, it was for the purposes of the rape charge, which specified Kristie as the victim, and not the capital murder charge, which did not specify Kristie as the victim.
FN3. The trial judge gave the following instructions on the rape charge: “The Commonwealth must prove beyond a reasonable doubt each of the following elements of th[e] crime [of rape]: One, that the Defendant had sexual intercourse with Kristi[e] Reed; and two, that it was against her will and without her consent; and three, that it was by force, threat, or intimidation.” (R. vol. 20 at 1020.) By contrast, the trial judge gave the following instructions on the capital murder charge: “The Commonwealth must prove beyond a reasonable doubt each of the following elements of th [e] crime [of capital murder]: ... 3. That the killing occurred during the commission of robbery and/or attempted robbery and/or during the commission of, or subsequent to rape.” (J.A. 59.) Undoubtedly, the crimes committed by Paul Powell were atrocious. Given the explicit details revealed by Powell in his letter to the Commonwealth's attorney, one understands the strong inclination to prosecute Powell for those heinous acts. Yet, it is in these very cases that we must be most vigilant in protecting our long-standing constitutional guarantees. The Double Jeopardy Clause makes no distinction between the innocent and the guilty, nor any exception based on the severity of the offense or the personal attributes of the accused. In finding that the attempted rape of Stacey had not been litigated in the first trial, the Supreme Court of Virginia made an unreasonable determination of the facts in light of the conduct of all parties involved in that trial. This determination had the unconstitutional effect of permitting the Commonwealth to try Powell a second time in violation of his Fifth Amendment rights. Given this outcome, Powell's second capital murder conviction should not stand, and I must dissent.