Lenz v. Warden of the Sussex I State Prison

593 S.E.2d 292, 267 Va. 318, 2004 Va. LEXIS 46
CourtSupreme Court of Virginia
DecidedMarch 5, 2004
DocketRecord 012883
StatusPublished
Cited by44 cases

This text of 593 S.E.2d 292 (Lenz v. Warden of the Sussex I State Prison) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lenz v. Warden of the Sussex I State Prison, 593 S.E.2d 292, 267 Va. 318, 2004 Va. LEXIS 46 (Va. 2004).

Opinions

JUSTICE LACY

delivered the opinion of the Court.

In this case we granted a rehearing to the Warden to consider whether trial counsel were ineffective because they did not object to the verdict form given to the jury in the sentencing phase of petitioner’s capital murder trial. The Warden argues that the verdict form the jury considered was proper under this Court’s holding in Atkins v. Commonwealth, 257 Va. 160, 178, 510 S.E.2d 445, 456 (1999), and that trial counsel could not have been ineffective for failing to anticipate this Court’s subsequent decision in Powell v. Commonwealth, 261 Va. 512, 545, 552 S.E.2d 344, 363 (2001), requiring that the jury receive a verdict form that specifically states that a life sentence may be imposed even after finding one or both aggravating circumstances. The Warden is correct.

In Atkins the jury was not given a verdict form that allowed it to impose a life sentence if the Commonwealth proved neither of the aggravating factors beyond a reasonable doubt. 257 Va. at 178-79, 510 S.E.2d at 456-57. The defense had offered the statutory verdict form, Code § 19.2-264.4, that allowed this sentencing option, but the trial court refused that form. Id. at 171-72, 510 S.E.2d at 452. We held that the total absence of any jury verdict form allowing imposition of a life sentence if neither of the aggravating factors was proven was reversible error. Id. at 179, 510 S.E.2d at 457. We noted [324]*324that, had the trial judge selected the statutory verdict form Atkins’ counsel offered, the missing sentencing option would have been submitted to the jury. Id. at 178, 510 S.E.2d at 456. That issue is not present in this case, however, because the jury received the statutory verdict form absent in Atkins.1

The issue petitioner raises here is whether the verdict form must specifically provide the option of imposing a sentence of life when the Commonwealth has established one or both aggravating factors. We addressed that issue for the first time in Powell. 261 Va. at 542, 552 S.E.2d at 361. Powell was not decided until after petitioner’s capital murder trial concluded. Therefore, trial counsel could not have been ineffective for failing to anticipate this Court’s subsequent decision in Powell, Kornahrens v. Evatt, 66 F.3d 1350, 1360 (4th Cir. 1995), and petitioner is not entitled to a new sentencing hearing on that basis.

In light of this holding, we must address the claims in petitioner’s petition for writ of habeas corpus relating to the sentencing phase of his capital murder trial.2 These claims are allegations of improper jury contacts and communications in connection with his sentencing hearing, Claims I and II, and various allegations of ineffective assistance of counsel in the sentencing proceeding, Claim VII.

CLAIMS I AND II

In Claim I, petitioner asserted that the bailiff in his trial provided ex parte answers to jurors’ questions about the court’s sentencing instructions and, in Claim II, that Juror Anita J. Durrett was improperly seated and that one or more jurors consulted a Bible in the jury room during sentencing deliberations. We referred Claims I and II to the Circuit Court of Augusta County for an evidentiary hearing by order entered June 17, 2002.

Following the evidentiary hearing on August 9, 2002, the circuit court issued a letter opinion stating its findings of fact, conclusions [325]*325of law, and recommendations. The circuit court recommended rejecting both claims, finding that the petitioner did not carry his burden of proof to establish that the jury had asked the bailiff questions concerning their sentencing instructions, that there was no evidence that Juror Durrett was biased in favor of the death penalty, and that there was “no reasonable possibility that the jury verdict was influenced by an improper communication in the form of a quotation from the Bible.”

Petitioner filed a brief with this Court raising a number of objections to the findings and conclusions of the circuit court. The Commonwealth filed a brief responding to petitioner’s arguments and supporting the circuit court’s conclusions. Petitioner filed a reply brief.3

We begin by addressing two preliminary matters: the Commonwealth’s assertion that Claims I and II are procedurally barred by the rule in Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974), and petitioner’s complaint that the circuit court erred by limiting the evidentiary value of affidavits submitted in the case.

A. Procedural Bar

The Commonwealth asserts that Slayton precludes consideration of petitioner’s Claims I and II in this habeas corpus proceeding because petitioner did not raise those claims at trial and on direct appeal. We disagree.

Slayton holds that one may not use a habeas corpus proceeding as a substitute for appeal. 215 Va. at 29, 205 S.E.2d at 682. Slayton makes clear, however, that this procedural bar operates when the petitioner “has been afforded a fair and full opportunity to raise and have adjudicated” the constitutional issue at trial and on appeal. Id. If the petitioner did not have that “fair and full opportunity” during his criminal trial and direct appeal, the rule in Slayton does not apply. See DiPaola v. Riddle, 581 F.2d 1111, 1113-14 (4th Cir. 1978).

In this case, the Commonwealth asserts that the Slayton bar operates because the petitioner could have procured information from the jurors regarding communications with the bailiff and the presence and use of the Bible during sentence deliberations “sooner - immediately after trial, in fact.” Adopting the Commonwealth’s rationale for applying the Slayton bar in this case would in effect impose a [326]*326requirement on defense counsel to poll jurors and any other persons involved with the criminal trial immediately following the trial, often at the same time that counsel is involved in filing post-trial motions and preparing for appeal. Failure to conduct such a poll or investigation in every case would then subject counsel to an ineffective assistance of counsel claim in a habeas corpus proceeding. We decline to impose such a requirement. Absent any indication that counsel or petitioner knew or should have known of the complained of conduct at a time when the trial court could address the misconduct allegations, the procedural bar in Slayton does not apply.

In this case there is no evidence that trial counsel or petitioner had any information indicating that counsel should have interviewed the jury members or the bailiff, and the Commonwealth suggests none. Accordingly, we conclude that Slayton does not bar petitioner’s Claims I and II.

B. Affidavits

In its opinion letter, the circuit court stated that it based its findings on the testimony of the witnesses at the hearing and that it relied on the affidavits the petitioner and respondent filed only as they affected the credibility of the witnesses.

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Bluebook (online)
593 S.E.2d 292, 267 Va. 318, 2004 Va. LEXIS 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lenz-v-warden-of-the-sussex-i-state-prison-va-2004.