PRESENT: All the Justices
JOHN CRIDLER-SMITH OPINION BY v. Record No. 230450 JUSTICE WESLEY G. RUSSELL, JR. JANUARY 16, 2025 HAROLD CLARKE, DIRECTOR OF THE DEPARTMENT OF CORRECTIONS
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY Stephen E. Sincavage, Judge
John Cridler-Smith appeals a judgment of the circuit court denying his petition for a writ
of habeas corpus. In his petition, Cridler-Smith asserts two claims for ineffective assistance of
counsel. Specifically, he challenges his pre-trial counsel’s advice to cooperate with law
enforcement absent adequate investigation into the matter and his trial counsel’s subsequent
failure to move to suppress the resulting incriminating statements he made. 1 For the reasons that
follow, we reverse the judgment of the circuit court and remand the matter for further
proceedings consistent with this opinion.
I. Background
The petition for a writ of habeas corpus underlying this appeal stems from Cridler-
Smith’s criminal conviction in 2017 for possession with the intent to distribute more than five
pounds of marijuana.
On April 23, 2015, a United States postal worker in Loudoun County observed a
suspicious, heavily-taped parcel that had been mailed from Arcadia, California. Cridler-Smith
1 Cridler-Smith was represented by different attorneys—one attorney during initial pretrial proceedings and a different attorney at the trial stage. Although his complaint argues each was ineffective during his respective period of representation, the identity of the attorney who Cridler-Smith alleges was ineffective is immaterial to our resolution of Cridler-Smith’s claims. Accordingly, for ease of reference, we refer to each simply as “counsel.” was a resident of Arcadia, California. At the time, California was known to be a “source state”
for marijuana trafficking. After a specially trained canine detected the possible scent of drugs,
law enforcement obtained a search warrant and found 6.44 pounds of what appeared to be
marijuana inside the parcel.
The following day, officers conducted a controlled delivery of the parcel to its intended
destination. The home was Cridler-Smith’s brother’s residence. An undercover postal inspector
delivered the parcel to the front of the residence. About 15 minutes later, Cridler-Smith
approached the residence in a black SUV, parked in front of the residence, and walked toward
the front door. Within minutes, a rapid response unit entered the residence and brought everyone
outside. Although no one testified to seeing Cridler-Smith handle the parcel or enter the
residence, he was seen by several officers outside after the rapid response unit cleared the
building, and the parcel had been brought inside the residence before the building was cleared.
Upon searching the residence, officers found a vacuum sealer, bags, packaging tape,
rolling papers, grinders with green plantlike material in them, a glass smoking device with
plantlike residue in it, the parcel delivered in the controlled delivery, and another similarly sized
and taped parcel addressed to the same individual as the controlled-delivery parcel. Both parcels
were sent for forensic analysis, which confirmed they contained over 144 ounces of marijuana in
heat-sealed bags. An expert testified that the state of the parcels and the amount of contraband
contained therein was not consistent with personal use, but rather, was indicative of distribution.
Cridler-Smith was arrested and jailed. Shortly thereafter, Cridler-Smith met with
counsel. At the outset of the representation, Cridler-Smith detailed that his primary objectives
were (1) to protect his brother and (2) to get out of jail as soon as possible. Given the nature of
the charges and Cridler-Smith’s background, including that he was from California, counsel
2 concluded that the circuit court “was likely to consider [Cridler-Smith’s] risk of flight
substantial[,]” and therefore, “[b]ond was not likely to be reasonably set in this case[.]” As a
result of this conclusion, counsel advised Cridler-Smith “that the best chances of achieving both
of his major interests quickly [was] through cooperation with law enforcement.” According to
counsel, he advised Cridler-Smith that cooperating with law enforcement always came with risk
and that agreeing to cooperate would not “guarantee[]” an “offer” from the Commonwealth to
resolve the case.
Cridler-Smith’s counsel discussed Cridler-Smith’s potential cooperation with the
Commonwealth. Counsel was told that the Commonwealth “would not agree to enter into a
written agreement other than an agreement to bond and discussion regarding protecting Mr.
Cridler-Smith’s brother, as well as a promise of his cooperation factoring into whatever offer is
extended in the future to resolve the charges against Mr. Cridler-Smith.” According to counsel,
the Commonwealth “indicated a written agreement would be negotiable after they assess[ed] the
value of . . . Cridler-Smith’s cooperation[,]” if any.
As a result of his choice to cooperate, Cridler-Smith was interviewed by law enforcement
on April 29, 2015. Detective Chris Staub conducted the interview at the jail. In the course of the
interview, Cridler-Smith admitted that he had shipped nine pounds of marijuana to his brother’s
house. The admission was significant because Detective Staub had not disclosed any
information about the recovered parcels or their contents to Cridler-Smith prior to this admission.
Cridler-Smith also told Detective Staub that he had instructed his brother not to open the
packages and that his brother was not involved with the marijuana or Cridler-Smith’s activities.
Additionally, according to Detective Staub, Cridler-Smith said that he was $21,000 in debt, that
3 he resided in California at that time, and that he sent the marijuana through the mail to Virginia
to “set up buyers for the upcoming season.”
As a result of the interview, the Commonwealth and Cridler-Smith entered into a consent
order that the parties have characterized as a cooperation bond. The consent order, which was
entered by the circuit court on April 30, 2015, “released [Cridler-Smith] on a $5,000 secured
bond” subject to certain conditions, including reporting requirements, Cridler-Smith remaining in
Virginia, and Cridler-Smith’s continued cooperation with law enforcement. As a result, Cridler-
Smith was released from jail approximately a week after his arrest.
Ultimately, the Commonwealth did not find the cooperation that Cridler-Smith provided
to be of sufficient value to warrant dismissing the case against him or resolving it by way of a
plea agreement. The matter proceeded to trial. At trial, the Commonwealth’s case relied heavily
if not almost entirely on Cridler-Smith’s confession during his interview with Detective Staub.
Defense counsel did not move to suppress or otherwise object to the use or introduction of
Cridler-Smith’s incriminating statements to Detective Staub. Cridler-Smith was found guilty of
possession with the intent to distribute more than five pounds of marijuana and sentenced to
twelve years’ incarceration.
Cridler-Smith sought to appeal his convictions, arguing that the “‘evidence was
insufficient to prove [he] exercised dominion and control’” over the marijuana found at his
brother’s residence. His direct appeals were unsuccessful.
Subsequently, Cridler-Smith, proceeding pro se, filed a petition for a writ of habeas
corpus in the Loudoun County Circuit Court asserting ineffective assistance of counsel. As
pertinent to this appeal, Cridler-Smith argued that, in the period immediately after his arrest,
counsel erroneously advised him to cooperate with law enforcement without first fulfilling his
4 duty to investigate the circumstances of the case. Regarding counsel’s performance at trial,
Cridler-Smith claimed that counsel erroneously failed to move to suppress his confession, which
Cridler-Smith contends was inadmissible pursuant to Rule 3A:8(c)(6) of the Rules of this Court.
In response, the Director of the Department of Corrections (the “Director”) filed a motion to
dismiss, arguing that “Cridler-Smith is not entitled to relief . . . because he has not met his
demanding burden under Strickland v. Washington, 466 U.S. 668 (1984).”
Proceeding without a hearing, the circuit court initially granted the Director’s motion to
dismiss in part and denied the motion in part. Regarding the ineffective assistance claims that
are the subject of this appeal, the circuit court first denied the claim regarding counsel’s initial
pretrial conduct. Specifically, the circuit court found that counsel’s advice regarding cooperation
“was tailored to [Cridler-Smith]’s stated objectives, to protect his brother and minimize jail time,
and included a warning that cooperation might not yield the result he wanted.”2 As a result, the
circuit court found that Cridler-Smith had not shown that counsel’s “advice to cooperate with
law enforcement or failure to negotiate an immunity agreement [was] unreasonable.”
Although it granted a majority of the Director’s motion to dismiss, the circuit court
initially did not dismiss Cridler-Smith’s claim that counsel was ineffective for failing to seek to
suppress his confession to Detective Staub. After discussing the potential scope of
Rule 3A:8(c)(6), the circuit court noted that “the record reflects that the parties were quasi-
negotiating a plea agreement at the time of [Cridler-Smith]’s statement[s]” to Detective Staub,
and that “[i]t is reasonable to characterize [Cridler-Smith]’s statements as made in connection
2 The circuit court further found that Cridler-Smith did receive a benefit as a result of his cooperation because “he was released on bond pending trial.” This finding lends credence to counsel’s belief that, absent cooperation, Cridler-Smith was unlikely to have received bond pending trial.
5 with an offer to plead guilty.” Although the circuit court stopped short of finding, as a matter of
fact, that Cridler-Smith’s statements fell within the scope of Rule 3A:8(c)(6), it recognized the
significance of such a conclusion, noting that “[t]here is a reasonable probability, that, without
the confession, the Commonwealth would not have proved its case, and [Cridler-Smith] would
not have been convicted. This constitutes prejudice under Strickland.” As a result, the circuit
court concluded that Cridler-Smith had stated a claim by sufficiently alleging “deficient
performance and prejudice for [counsel]’s failure to file a motion to suppress his confession
based on Supreme Court of Virginia Rule 3A:8(c)(6).” The circuit court, however, concluded
that, although Cridler-Smith had stated a claim, the claim could not be fully resolved because
“the record does not adequately resolve these issues[.]” Accordingly, the circuit court
determined that, on this particular claim, the matter would “proceed to a hearing.”
In response, the Director filed a motion seeking to have the circuit court reconsider its
ruling that Cridler-Smith had stated a potentially viable habeas claim and that an evidentiary
hearing was necessary to resolve that claim. In effect, the Director argued that the record
established that Cridler-Smith’s confession to Detective Staub did not fall within the scope of
Rule 3A:8(c)(6) and that, even if it could be argued that it did, the argument was sufficiently
novel that counsel was not ineffective for failing to raise it. Cridler-Smith, still proceeding pro
se, filed a response to the Director’s motion to reconsider.
Without convening a hearing, the circuit court granted the Director’s motion to
reconsider and dismissed Cridler-Smith’s claims. In doing so, the circuit court neither expressly
revisited its prior conclusion that “[i]t [was] reasonable to characterize [Cridler-Smith]’s
statements as made in connection with an offer to plead guilty[,]” nor did it definitively
determine whether, as a factual matter, Cridler-Smith’s statements fell within the scope of Rule
6 3A:8(c)(6). Rather, it determined that it could identify objective reasons that a competent
attorney, even if in error, could have concluded that the statements to Detective Straub fell
outside the scope of Rule 3A:8(c)(6). Accordingly, the circuit court dismissed Cridler-Smith’s
habeas petition in its entirety, and Cridler-Smith appealed to this Court.
II. Analysis
A. Standard of review
When, “as in this case, the habeas court dismissed the petition based upon a review of the
pleadings without an evidentiary hearing, we review the decision to dismiss the petition de
novo.” Zemene v. Clarke, 289 Va. 303, 307 (2015). Although, in general, most “habeas claims
can be resolved solely on the recorded matters[,]”3 when a petitioner’s entitlement to relief turns
upon a disputed question of material fact, “a circuit court should receive additional evidence and
decide any genuine issues of material fact.” Smith v. Brown, 291 Va. 260, 264 (2016). If
resolution of such a disputed fact is necessary for us to conduct our review, remand to the circuit
court to resolve the factual dispute is appropriate. Id. at 268.
B. The Strickland standard
We review ineffective assistance of counsel claims under the familiar two-pronged test
set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).
To be entitled to habeas relief under Strickland, a petitioner must demonstrate both that counsel’s
performance was constitutionally deficient (the “performance prong”) and that the petitioner
3 In habeas proceedings, “recorded matters” are not limited to the record in the underlying trial. Code § 8.01-660 provides that “[i]n the discretion of the court or judge before whom the petitioner is brought, the affidavits of witnesses taken by either party, on reasonable notice to the other, may be read as evidence.” Accordingly, such affidavits may be considered without a habeas court being required to conduct an evidentiary hearing.
7 suffered constitutionally cognizable prejudice as a result (the “prejudice prong”). 466 U.S. at
687. If a petitioner fails to make either showing, he is not entitled to habeas relief. Id.
1. The performance prong
To satisfy Strickland’s performance prong, a petitioner must demonstrate “that counsel’s
performance was deficient[,]” that is, “counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed [a] defendant by the Sixth Amendment.” Id. This is a
heavy burden as courts reviewing ineffective assistance claims must “recognize that counsel is
strongly presumed to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” Id. at 690. Furthermore, the review is conducted
without the benefit of hindsight, but rather, on the situation faced by counsel at the time his
decisions were made. Id. at 689. Thus, the fact that hindsight may demonstrate that the strategy
pursued ultimately was unsuccessful or that some other course of action may have been preferred
does not dictate a conclusion that counsel’s performance was constitutionally ineffective. Id.
In applying this deferential standard, we consistently have recognized that it does not
permit us to second-guess reasonable strategic decisions made during the course of an attorney’s
representation. See, e.g., Prieto v. Warden of the Sussex I State Prison, 286 Va. 99, 108-09
(2013); Morva v. Warden of the Sussex I State Prison, 285 Va. 511, 516 (2013). We note,
however, that merely labeling a decision as “strategy” does not render it a reasonable strategic
choice immune from habeas review. A decision is not strategic simply because it was made;
rather a reasonable strategic decision is one that flows from the known facts and circumstances
and takes account of the likelihood of success weighed against other potential strategies and the
effect the choice has on the overall conduct of a case, i.e., whether adopting a particular strategy
forecloses other options that might be pursued.
8 Reviewing courts must recognize that “[n]o particular set of detailed rules for counsel’s
conduct can satisfactorily take account of the variety of circumstances faced by defense counsel
or the range of legitimate decisions regarding how best to represent a criminal defendant.”
Strickland, 466 U.S. at 688-89. Thus, what might be an unreasonable choice in one case, may be
a reasonable one in another. For example, a high-risk strategy with a low probability of success
might be reasonable in circumstances where, because of the facts, counsel’s options are limited
to choosing between less-than-ideal strategies.
Habeas courts must be mindful that criminal defense is not practiced out of a cookbook.
Reasonable counsel can, and often do, disagree about what would be the best way to defend a
particular case, and the existence of such disagreements does not suggest that choosing an
alternative strategy is constitutionally unreasonable. As the Court in Strickland itself recognized,
“[t]here are countless ways to provide effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular client in the same way.” Id. at 689.
Thus, in evaluating an ineffective assistance claim, the question before a habeas court is not
whether some, many, or even most reasonable criminal defense counsel would have employed a
particular strategy or made a particular choice, but rather, whether a reasonable defense attorney
under the specific facts and circumstances could have employed the strategy or made the choice
at issue.
In making that determination, a reviewing court does not consider what actually
motivated counsel to undertake a particular strategy as counsel’s subjective reasons and thoughts
are irrelevant to the inquiry. “Strickland . . . calls for an inquiry into the objective
reasonableness of counsel’s performance, not counsel’s subjective state of mind.” Harrington v.
Richter, 562 U.S. 86, 110 (2011). Thus, to satisfy the performance prong of Strickland, a
9 petitioner must establish that an objective review of the challenged choice or strategy leads to the
conclusion that no reasonable attorney could have made the choice or employed the strategy
under the facts and circumstances of the particular case.
2. The prejudice prong
To satisfy Strickland’s prejudice prong, “[i]t is not enough for the defendant to show that
the errors had some conceivable effect on the outcome of the proceeding.” 466 U.S. at 693.
Rather, to be entitled to relief, a petitioner “must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Id. at 694. Under this standard, a petitioner must demonstrate more than a mere possibility that
the outcome would have been different, but need not prove that the result definitely would have
been different. Rather, “[a] reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. In deciding whether a petitioner has carried this burden, “a
court hearing an ineffectiveness claim must consider the totality of the evidence before the judge
or jury” and how the asserted errors likely would have affected the consideration of that
admixture of evidence, both what was considered (or should have been considered) and how a
reasonable factfinder would have weighed the totality of the evidence without the errors. Id. at
695-96.
C. Counsel’s initial advice regarding cooperation did not constitute deficient performance under Strickland
In his first assignment of error, Cridler-Smith asserts that his counsel was ineffective in
advising him to cooperate with law enforcement even though doing so advanced Cridler-Smith’s
stated objectives. Specifically, he contends that counsel did not sufficiently investigate the case
before rendering the advice and that “[w]ithout an independent investigation apart from [Cridler-
Smith’s] stated objectives,” the advice “was deficient.” We disagree.
10 Although criminal defense counsel is granted significant latitude in determining the
strategies to be employed in attempting to achieve a client’s objectives, certain matters are for
the client to decide. Florida v. Nixon, 543 U.S. 175, 187 (2004). In general, it is for a client to
determine the objectives his lawyer should pursue. See Rule 1.2(a) of the Rules of Professional
Conduct (providing that, subject to certain exceptions not relevant here, “[a] lawyer shall abide
by a client’s decisions concerning the objectives of representation . . . and shall consult with the
client as to the means by which they are to be pursued”). So long as the client’s objectives are
lawful and legitimate, counsel should attempt to devise a strategy to achieve those objectives.
It is undisputed that, at the outset of the representation, Cridler-Smith instructed counsel
that his primary objectives were protecting his brother and seeking his immediate release from
jail. Both are lawful and legitimate objectives, and we have little difficulty imagining scenarios
where these would be a defendant’s objectives, especially if, as Cridler-Smith claimed, his
brother was an innocent bystander to Cridler-Smith’s drug distribution scheme.4 Thus, it was
certainly appropriate for, if not incumbent upon, counsel to craft a strategy that sought to
advance Cridler-Smith’s objectives.
Knowing these objectives and having learned Cridler-Smith’s version of events from
Cridler-Smith himself, counsel crafted a strategy to advance these objectives. Cridler-Smith’s
admitted involvement in a significant, multistate drug distribution scheme and his potential as a
flight risk given that he was a California resident caused counsel reasonably to conclude that he
was not a candidate for pretrial release absent cooperation with the Commonwealth. Although
we conclude that such a conclusion was reasonable when counsel initially made it, subsequent
4 Ultimately, the analysis does not change even if the brother was involved in the scheme. Regardless of the brother’s involvement, Cridler-Smith’s desire to protect his brother was a reasonable objective to be pursued.
11 events further demonstrate that it was correct. Cridler-Smith was released pretrial with the
circuit court finding that Cridler-Smith “did in fact receive[] a bond based on that cooperation.”
This strongly suggests that counsel was correct that, absent cooperation, Cridler-Smith was
unlikely to receive bond pending trial. Accordingly, the strategy was not only a reasonable one
in light of the stated objective, it was necessary to achieve it.
Similarly, the advice that cooperating with law enforcement was Cridler-Smith’s best
option if he wanted to try to help his brother clearly was reasonable. Given that large quantities
of drugs had been sent to the brother’s house on multiple occasions and law enforcement’s
search of the house had led to the discovery of equipment often associated with drug distribution
activities, Cridler-Smith’s brother was all but certain to be considered a suspect by law
enforcement. It was reasonable for counsel to conclude that law enforcement would not even
consider, let alone accept, claims that the brother was not involved from someone who also did
not admit to being involved in the scheme. After all, only someone aware of and involved in the
scheme would have the knowledge necessary to credibly maintain that the brother was not
involved. Given the information about his involvement that Cridler-Smith provided counsel and
Cridler-Smith’s stated objective to help his brother, a recommendation that Cridler-Smith
cooperate was a reasonable strategy decision.
In his assignment of error, Cridler-Smith largely recognizes that counsel’s strategy
regarding cooperation was consistent with his stated objectives; however, he contends it still
constituted deficient performance because the advice was given without undertaking additional
investigation. We disagree.
As a general matter, a criminal defense attorney, like any other attorney, has a duty to
investigate his client’s case and formulate his recommendations based on that investigation. It
12 does not follow, however, that competent counsel must investigate every possible theory that one
can imagine before rendering competent advice. “[S]trategic choices made after less than
complete investigation are reasonable . . . to the extent that reasonable professional judgments
support the limitations on investigation.” Strickland, 466 U.S. at 690-91. Thus, “counsel has a
duty to make reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary.” Id. at 691 (emphasis added). Evaluating whether a decision to
forgo pursuing additional investigation was reasonable requires consideration of the totality of
the circumstances with a heavy emphasis on what a criminal defendant has communicated
directly to counsel. As the Court explained in Strickland:
The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable.
Id.
Here, a review of the circumstances demonstrates that counsel’s decision to render advice
without additional investigation was reasonable. From the initial interview of Cridler-Smith,
counsel was aware of his involvement in the drug distribution scheme and that, given the
circumstances, Cridler-Smith was not a candidate for pretrial release absent offering his
cooperation. Further investigation would not have altered these basic facts and would not have
provided any additional information that would have assisted in achieving Cridler-Smith’s
13 objectives: immediate release and assisting his brother’s cause. 5 In fact, to the extent that further
investigation delayed or eliminated the opportunity to offer cooperation, pursuing additional
investigation very well may have hindered counsel’s efforts to achieve Cridler-Smith’s
objectives. Accordingly, the decision not to conduct further investigation before rendering the
advice regarding cooperation was reasonable.
Given the foregoing, Cridler-Smith has failed to demonstrate that counsel’s initial advice
regarding cooperation constituted deficient performance under Strickland. Accordingly, he has
failed to meet his burden to establish ineffective assistance of counsel regarding this claim. 6
D. Counsel’s failure to seek suppression of Cridler-Smith’s statements to Detective Staub may have constituted ineffective assistance
Cridler-Smith next contends that trial counsel’s failure to move, pursuant to Rule
3A:8(c)(6), to suppress his confession to Detective Staub constituted ineffective assistance of
counsel under Strickland. 7 We find that Cridler-Smith’s allegations in this regard set forth a
plausible claim of ineffective assistance; however, deciding the claim requires resolution of a
5 We note that at no point has Cridler-Smith even speculated as to what facts additional investigation might have uncovered that would have assisted counsel in attempting to achieve Cridler-Smith’s stated objectives by some other means. 6 Because we conclude that Cridler-Smith did not carry his burden on Strickland’s performance prong, we do not address the prejudice prong as it relates to this claim. Strickland, 466 U.S. at 697. 7 It is a prosecutor and not a law enforcement officer who makes the decision as to whether the Commonwealth will enter into discussions that ultimately might result in a plea agreement. Accordingly, in the ordinary course, Rule 3A:8(c)(6) will be inapplicable to discussions between law enforcement officers and defendants. Here, however, Detective Staub’s jailhouse interview of Cridler-Smith was the direct result of discussions between Cridler-Smith’s counsel and the prosecutor and was for the explicit purpose of determining what information and level of cooperation Cridler-Smith was willing to provide the Commonwealth. As a result of the prosecutor’s involvement, Rule 3A:8(c)(6) potentially was applicable to Detective Staub’s interview.
14 disputed question of material fact that the circuit court did not resolve definitively on this record.
Accordingly, for the reasons that follow, we reverse the judgment of the circuit court and remand
the matter for further proceedings consistent with this opinion.
1. Rule 3A:8(c)(6)
Rule 3A:8(c)(6) addresses specific circumstances in which statements made by criminal
defendants may not be used in a subsequent trial. In pertinent part, it provides that
[e]xcept as otherwise provided by law, evidence of a plea of guilty later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged, or any other crime, or of statements made in connection with and relevant to any of the foregoing pleas or offers, is not admissible in the case- in-chief in any civil or criminal proceeding against the person who made the plea or offer.
(Emphases added). Thus, contrary to the general rule that anything that an arrestee or defendant
says to law enforcement can and will be held against him in a court of law, Rule 3A:8(c)(6)
prohibits the Commonwealth from introducing certain inculpatory statements at trial.
Specifically, as relevant here, the Rule bars the Commonwealth from introducing evidence of
statements made by Cridler-Smith to law enforcement if those statements were “made in
connection with and relevant to” an “offer to plead guilty or nolo contendere[.]”
Cridler-Smith claims the Rule precludes the use of the statements he made to Detective
Staub because, in effect, all statements a defendant makes to law enforcement when seeking
what the parties have characterized as a “cooperation agreement” are statements related to a
larger effort by which a defendant necessarily is offering to plead guilty. The Commonwealth
counters by noting that we previously have acknowledged that there are differences between so-
called cooperation agreements and plea agreements, see Hood v. Commonwealth, 269 Va. 176,
181 (2005), and that the discussions here were so preliminary “that the statements were instead
15 an offer to cooperate in the hopes of achieving clemency for himself and his brother, and did not
fall within the protections of Rule 3A:8.” In essence, the Commonwealth argues that unless and
until actual plea agreement terms are being discussed, Rule 3A:8(c)(6) does not apply.
Although, as the circuit court noted, there is a dearth of Virginia authority interpreting the
scope of Rule 3A:8(c)(6), we find that the plain language of the Rule supports neither of the
absolute interpretations offered by the parties. Contrary to Cridler-Smith’s interpretation, we can
conceive of circumstances where a defendant may wish to make and actually does make
statements to law enforcement that are not “made in connection with and relevant to” “an offer to
plead guilty[.]” Similarly, however, there are circumstances in which a defendant’s statements
may be fairly characterized as being “made in connection with and relevant to” “an offer to plead
guilty” even though the Commonwealth has yet to expressly make a firm plea offer or even a
promise to make one in the future.
The Rule is more nuanced than either of the proffered interpretations would suggest and
determining whether a particular statement or statements fall within its scope ultimately turns
upon questions of fact. Absent an express agreement by the parties at the outset of any
conversation that the conversation either falls within or without the scope of the Rule, a court
will be called upon to determine whether or not a particular conversation is covered or not.
Answering the question will require a court to consider the totality of the circumstances,
including the statements themselves and the context in which they were made.
Given the text of the Rule, a court attempting to make such a determination must begin
with an objective review of the actions, thoughts, and intentions of the defendant at the time the
statement or statements were made. After all, the explicit text of the Rule prohibits admission of
statements “against the person who made the plea or offer.” Rule 3A:8(c)(6) (emphasis added).
16 By tying the prohibition on admission to the person who “made the . . . offer” to plead guilty, the
text makes clear that the pertinent offer comes not from the Commonwealth, but from the
defendant. Accordingly, the analysis must begin with whether, explicitly or implicitly, the
defendant’s statements were “made in connection with and relevant to” an offer by the defendant
to plead guilty or nolo contendere.8 Id.
Although the actions, thoughts, and intentions of the defendant begin the analysis, it does
not end there. The Rule does not grant a defendant the ability to force unwilling representatives
of the Commonwealth to listen to his statements with no hope of utilizing that information at
trial. For example, if the Commonwealth has no interest in plea negotiations or offers and makes
that position clear, a defendant would make any statements at his peril.
Ultimately, in cases without explicit statements of the parties’ intentions, a court will be
forced to determine from the circumstances the nature of the conversations. Because the answer
will turn on consideration of the totality of the specific circumstances, we cannot provide an
exhaustive list of facts that should be considered. In most cases, the statements made (whether
an outright confession or just some potentially helpful information), potential motives of a
defendant or the Commonwealth, the parties’ history and practice, as well as how the
conversation fits within the potential resolution of the case or other related cases will color the
analysis. In the end, it presents questions that must be resolved by a factfinder.
8 Although the analysis begins with a review of the actions, thoughts, and intentions of the defendant, it does not follow that conversations regarding potential pleas that are initiated by the Commonwealth fall outside of the Rule. If, in a conversation initiated by the Commonwealth, the defendant’s actions, thoughts, and intentions establish that a defendant’s statements were “made in connection with and relevant to” “an offer to plead guilty,” Rule 3A:8(c)(6), such statements are subject to the Rule.
17 In this case, the factfinder did not make a factual finding for us to review. Rather, it
effectively held, in separate orders, that the factual issue of whether Cridler-Smith’s statements
to Detective Staub were “made in connection with and relevant to” “an offer to plead guilty,”
Rule 3A:8(c)(6), was a close one. Specifically, the circuit court, in its initial ruling, found “that
the record reflects that the parties were quasi-negotiating a plea agreement at the time of
[Cridler-Smith]’s statement[s]” to Detective Staub, and that “[i]t is reasonable to characterize
[Cridler-Smith]’s statements as made in connection with an offer to plead guilty.” However,
without repudiating this finding, the circuit court subsequently also found that the record
contained objective reasons why a competent attorney could have concluded that Cridler-Smith’s
statements to Detective Staub fell outside the scope of Rule 3A:8(c)(6). Thus, the circuit court
did not make a definitive factual determination as to whether Cridler-Smith’s statements were
“made in connection with and relevant to” “an offer to plead guilty,” Rule 3A:8(c)(6), and thus,
we have no factual determination on this issue to review on appeal.
For the reasons stated below, resolution of the factual question is essential to determining
whether Cridler-Smith is entitled to relief. Accordingly, we remand the matter to the circuit
court with instructions to take any evidence necessary so that it may provide an answer to this
central question.
2. The performance prong
We begin our objective review of counsel’s performance by recognizing that “[a]n
attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to
perform basic research on that point is a quintessential example of unreasonable performance
under Strickland.” Schmuhl v. Clarke, 302 Va. 481, 497 (2023) (quoting Hinton v. Alabama, 571
U.S. 263, 274 (2014)). Thus, at a minimum, a reasonable counsel would have been aware of
18 Rule 3A:8(c)(6). Furthermore, given the circuit court’s observation that, on this record, it was
reasonable to conclude that “the parties were quasi-negotiating a plea agreement at the time of
[Cridler-Smith]’s statement[s]” to Detective Staub, and that Cridler-Smith’s “statements [could
be characterized] as made in connection with an offer to plead guilty[,]” reasonable counsel
would have been aware of at least the possible application of the Rule to this situation.
Accordingly, a reasonable counsel would have been aware that invocation of the Rule had the
potential to bar Cridler-Smith’s confession to Detective Staub from being used at trial.
The Director argues that, even accepting the foregoing, Cridler-Smith has not established
deficient performance. Specifically, the Director asserts that bringing a pretrial motion “is a
tactical decision involving trial strategy and is afforded great deference upon habeas review[,]”
that “counsel could have reasonably decided that a motion to suppress would have failed . . . and
[that] counsel [was] not ineffective for failing to make a futile motion[,]” that “[t]he Sixth
Amendment does not require counsel to raise every possible argument, much less an argument
novel to his jurisdiction[,]” and that counsel “is not constitutionally obligated to raise every
possible claim or legal argument at trial and a failure to do so does not render counsel’s
performance deficient.”
We agree with the Director in the abstract. It is and remains true that, in general,
deciding which pretrial motions to bring is a matter for counsel to decide and such decisions are
entitled to deference. It is and remains true that, in general, counsel is not ineffective for failing
to make a futile motion or deciding not to advance every possible argument. We do not,
however, evaluate counsel’s performance in the abstract, but rather, do so while considering the
specific facts and circumstances of the particular case. From such a view, the decision not to
contest the admission of the confession in this case was objectively unreasonable.
19 We start with the recognition that “[a] confession is like no other evidence” and can
represent “‘the most probative and damaging evidence that can be admitted’” in a criminal trial.
Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (quoting Bruton v. United States, 391 U.S. 123,
139 (1968) (White, J., dissenting)). Accordingly, when a reasonable counsel has a potentially
viable challenge to a confession being heard by the factfinder, he will seek to bar its admission
absent compelling reasons not to do so.
Although we do not attempt to list every potential reason that might justify counsel not
moving to suppress a confession, we say with confidence that none of them are present here.
Challenging the introduction of the confession under Rule 3A:8(c)(6), whether by pretrial motion
or by simply objecting at trial, essentially was costless. 9 The time, effort, and expense in doing
so was minimal at most. Furthermore, and critically, seeking to bar the admission of the
confession would not, in any way, have hindered any other strategy that the defense could have
9 Although Cridler-Smith has challenged counsel’s failure to move to suppress the confession by way of pretrial motion, we note that there is no requirement in Rule 3A:8(c)(6) that any objection to admission of covered statements be made by written, pretrial motion. This is in contrast to objections to the admission of statements allegedly obtained in violation of certain constitutional provisions, which require the filing of a written, pretrial motion. See Code § 19.2-266.2. Accordingly, the cost of seeking to bar the admission of Cridler-Smith’s statements might have been limited to nothing more than the time to research the issue, the uttering of the word “objection” at trial, and then arguing the grounds for the objection.
20 employed. 10 Not even the Director has suggested any potential downside to counsel seeking to
bar admission of the confession, and we can think of none. 11
Given the foregoing, the Director is left to argue that counsel was not required to move to
bar admission of the confession because doing so would have been futile. As noted above,
absent additional factfinding below, we are unable to definitively conclude whether a motion to
bar the confession pursuant to Rule 3A:8(c)(6) would have been successful or not. Yet, we can
conclude that no reasonable counsel could have been sufficiently confident that his attempt to bar
introduction of the confession would be unsuccessful to excuse a failure to even attempt to do so.
Over the years, the Commonwealth, on behalf of the Director and various wardens, has
consistently argued that a defense attorney is not constitutionally unreasonable for pursuing
arguments that have a low chance of success when the facts and circumstances are such that
those arguments are the only ones available to a defendant. We consistently have agreed with
these arguments. The flip side of that coin is that, when counsel has a potentially winning
argument that can be made with no downside cost to the defendant or any aspect of the overall
defense strategy, reasonable counsel will make it even if they believe it is likely to fail. When,
as in this case, counsel effectively has only one card to play, he is constitutionally unreasonable
when he fails to play it. Cridler-Smith has established that counsel’s failure to seek to bar the
10 The strategy employed by counsel at trial in this case was to put the Commonwealth to its burden of proof. Counsel cross-examined witnesses called by the Commonwealth, timely moved to strike the Commonwealth’s evidence, and made appropriate arguments to the jury. Cridler-Smith and counsel elected not to put on evidence. Given this, it is clear that moving to bar admission of the confession would not have, in any way, adversely affected the strategy counsel actually pursued. 11 To her considerable credit, counsel for the Director conceded at oral argument in this Court that counsel objecting to the admission of Cridler-Smith’s confession at trial would have been “costless” and that there was no “strategic benefit” to Cridler-Smith gained by counsel failing to do so.
21 admission of his confession was constitutionally unreasonable, and thus, he has satisfied the
performance prong of the Strickland test.
In reaching this conclusion, we do not depart, in any way, from our earlier cases
regarding the deference owed by habeas courts to the decisions of trial counsel generally. Trial
counsel retain the ability to make reasonable strategic choices regarding what motions to make
and when to make them as well as the decision as to which strategies to pursue to advance a
defendant’s legitimate objectives. Reviewing courts should not engage in speculation as to
whether a different course charted by counsel may have reached a better result so long as the
actions that were taken were reasonable at the time they were taken. Counsel is not required to
pursue arguments that are, on their face, destined to lose. Only in unusual cases will counsel be
faced with a potentially winning argument that can be developed with the expenditure of little to
no resources and advanced without in any way compromising any other strategic choices a
counsel may have made. This is that unusual case, and it is the confluence of these unusual
circumstances that permit us to conclude that counsel’s decision not to seek to bar the admission
of Cridler-Smith’s confession failed to meet the level of attorney performance guaranteed by the
Sixth Amendment.
3. The prejudice prong
A habeas petitioner seeking to establish that he meets the prejudice prong of Strickland
is faced with a “heavy burden[.]” Strickler v. Murray, 249 Va. 120, 128 (1995). When, as here,
a petitioner claims that the ineffectiveness of counsel led to the admission of evidence that
should have been excluded, he must demonstrate “that there is a reasonable probability that the
verdict would have been different absent the excludable evidence in order to demonstrate actual
prejudice.” Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).
22 In this case, the question of prejudice turns entirely on whether Cridler-Smith’s
statements to Detective Staub fall within the scope of Rule 3A:8(c)(6). There is little question
that, absent introduction of the confession, the evidence at trial would have been insufficient to
warrant a conviction. In fact, at oral argument in this Court, the Director conceded that, if
Cridler-Smith’s statements fall within the scope of Rule 3A:8(c)(6), prejudice has been
established.
As noted above, whether the statements fall within the scope of Rule 3A:8(c)(6) requires
the resolution of a factual question that is not resolved on this record. Thus, we cannot
definitively answer the question of whether Cridler-Smith has established Strickland prejudice.
Accordingly, we must remand the case to resolve that outstanding factual question—whether or
not Cridler-Smith’s statements to Detective Staub were “made in connection with and relevant
to” “an offer to plead guilty,” Rule 3A:8(c)(6)—and thus, resolve the question of whether
Cridler-Smith is entitled to relief.
III. CONCLUSION
For the foregoing reasons, we reverse the judgment of the circuit court and remand the
matter for further proceedings consistent with this opinion.
Reversed and remanded.