VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court Building in the City of Richmond, on Friday, the 12th day of April, 2013.
Present: Kinser, C.J., Lemons, Goodwyn, Millette, and Powell, JJ., and Lacy and Koontz, S.JJ.
William Charles Morva, Petitioner,
against Record No. 102281
Warden of the Sussex I State Prison, Respondent.
Upon a Petition for a Writ of Habeas Corpus
Upon consideration of the petition for a writ of
habeas corpus filed December 3, 2010, and the respondent’s
motion to dismiss, the Court is of the opinion that the
motion should be granted and the writ should not issue.
Petitioner, William Charles Morva, was convicted in
the Circuit Court of Washington County of capital murder
while in custody, Code § 18.2-31(3), capital murder of a
law-enforcement officer, Code § 18.2-31(6), capital murder
of more than one person within a three-year period, Code
§ 18.2-31(8), assaulting a law-enforcement officer, Code §
18.2-57(C), escape, Code § 18.2-478, and two counts of use
of a firearm in the commission of murder, Code § 18.2-53.1.
After finding the aggravating factors of vileness and
future dangerousness, the jury fixed Morva’s sentence at death for each of the three capital murder convictions and
sixteen years’ imprisonment for the remaining convictions.
The trial court sentenced Morva in accordance with the
jury’s verdicts. This Court affirmed Morva’s convictions
and upheld his sentence of death in Morva v. Commonwealth,
278 Va. 329, 683 S.E.2d 553 (2009), cert. denied, ___ U.S.
___, 131 S.Ct. 97 (2010).
CLAIM (I)
In claim (I), Morva alleges that a juror concealed
information during voir dire that, if disclosed, would
likely have resulted in the juror’s exclusion from the jury
panel for cause. Morva contends juror Richard M. Bouck
failed to disclose that he had two relatives in law-
enforcement who were also close friends, that he knew the
relatives were within the scope of the voir dire question,
and that he intentionally chose not to reveal those
relationships.
Morva argues that had Bouck disclosed this
information, which Morva did not discover until after his
direct appeal was final, Bouck could have been stricken for
cause and, as a result of Bouck’s failure to disclose the
relationships, Morva’s Sixth Amendment right to an
impartial jury was violated. The Court holds that this
claim is without merit.
2 In support of this claim, Morva relies on the
affidavit of a law student who interviewed jurors on
Morva’s behalf, after Morva’s appeal became final. The law
student describes an interview with Bouck and relates a
number of hearsay statements purportedly made by Bouck.
The record, including Bouck’s affidavit, demonstrates that
Bouck and the interviewer discussed two men who worked in
law-enforcement, Bouck’s step-mother-in-law’s nephew and a
former co-worker’s brother. In his affidavit, Bouck
asserts that he “barely know[s] either of these men. They
are, at best, mere acquaintances. They are not relatives
or close friends.”
Morva fails to proffer any evidence, such as
affidavits from Bouck’s friends or family or from the
individuals Bouck identified as persons known to him to be
in law-enforcement, to support his allegation that Bouck
failed to answer honestly when asked by the trial court if
he had “any close friends or family members or associates
who are employed in law enforcement.” Thus, Morva has
failed to demonstrate that juror Bouck failed to answer
honestly a material question during voir dire and he has
consequently failed to show he was denied the right to an
impartial jury. See McDonough Power Equip., Inc. v.
Greenwood, 464 U.S. 548, 556 (1984).
3 CLAIM (II)(A)
In claim (II)(A), Morva asserts his due process rights
were violated because he was visibly restrained during
trial. Morva alleges he wore visible handcuffs upon
entering and exiting the courtroom while jurors were
present, wore leg restraints that were visible to jurors
beneath counsel table, and wore a stun belt under his
clothing that was sufficiently bulky to attract attention.
Morva also alleges that the remote control for the stun
belt held by an officer in proximity to Morva was visible
to the jury.
The Court holds claim (II)(A) is barred because this
non-jurisdictional issue could have been raised at trial
and on direct appeal and, thus, is not cognizable in a
petition for a writ of habeas corpus. Slayton v. Parrigan,
215 Va. 27, 29, 205 S.E.2d 680, 682 (1974), cert. denied,
419 U.S. 1108 (1975).
CLAIM (II)(B)
In claim (II)(B), Morva asserts he was denied the
effective assistance of counsel because counsel failed to
object to any restraints Morva was made to wear during
trial, absent a judicial determination of necessity. In
addition, he asserts that counsel failed to ensure that the
restraints were invisible and failed to ensure that
4 security and court personnel were advised that the jurors
should not see or learn about the restraints.
Morva contends counsel should have taken remedial
steps, such as placing litigation bags or boxes in front of
counsel table, monitoring strict compliance with the rule
that restrained defendants not be moved into or out of the
courtroom when jurors are present, and providing Morva with
a blazer to hide the bulge from the stun belt. Morva
contends he was prejudiced because the visible restraints
undermined the presumption of innocence, and, at
sentencing, underscored the message presented by the
Commonwealth that he was a danger to society. He asserts
that this contributed to his decision not to take the stand
to present evidence of his “fear that he would die if he
remained in, or was returned to, the toxic Montgomery
County [J]ail.”
The Court holds claim (II)(B) satisfies neither the
“performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland v. Washington, 466 U.S. 668,
687 (1984). The record, including the manuscript record,
the affidavits of several jurors, and the affidavit of
Charles Partin, Master Deputy with the Montgomery County
Sheriff’s Office, who was responsible for coordinating
transportation and security for Morva in connection with
5 his trial, demonstrates that Morva’s right to a fair trial
was not undermined by courtroom security. The record
indicates that all visible restraints were removed from
Morva prior to the jurors entering the courtroom; Morva
wore a stun belt that was beneath his clothing and thus
designed to be invisible to jurors, and a leg-stiffening
restraint strapped to Morva’s leg was worn under his pants
and was not visible on the outside of his clothing.
Accordingly, Morva’s allegation that he wore restraints
visible to the jurors and was prejudiced because visible
restraints undermined the presumption of innocence, or at
sentencing indicated he was a danger to society, has no
merit.
Although some jurors executed affidavits after the
trial stating that during the trial they became aware that
Morva was wearing a stun belt, Morva proffers no evidence
to suggest Morva’s counsel was or should have been aware
any juror had learned that information during trial.
Because Morva was not visibly restrained in the presence of
the jury and because there is no evidence that counsel was
or should have been aware that jurors had learned Morva was
wearing a stun belt under his clothing, trial counsel’s
failure to object to the restraints or stun belt placed on
Morva was not deficient performance. Moreover, the
6 security measures were justified given Morva’s demonstrated
history, which showed a willingness to use violence to
effect and maintain an escape from custody, and were not
inherently prejudicial. See Porter v. Commonwealth, 276
Va. 203, 263, 661 S.E.2d 415, 446 (2008). Thus, Morva has
failed to demonstrate that counsel’s performance was
deficient or that there is a reasonable probability that,
but for counsel’s alleged errors, the result of the
proceeding would have been different.
CLAIM (III)
In a portion of claim (III), Morva asserts he was
denied the effective assistance of counsel because counsel
failed to point out that Jennifer Preston, who witnessed
Morva shoot Derrick McFarland, was not looking at McFarland
at the time of the shooting and could not have seen the
gestures McFarland made. Morva contends he interpreted
McFarland’s “movements” as an attempt to draw a weapon and
that Morva did not know until later that McFarland was
unarmed.
Morva also argues that counsel did not use Preston or
other witnesses to “point out the significance of the dark,
Special Weapons and Tactics [S.W.A.T.] team/paramilitary-
style uniform McFarland wore that night.” Counsel failed
to note that the dark color of the uniform and the multiple
7 pockets and bulges made it difficult to detect the absence
of a weapon, which would have rebutted the Commonwealth’s
assertion that Morva knew McFarland was unarmed.
The Court holds that this portion of claim (III)
satisfies neither the “performance” nor the “prejudice”
prong of the two-part test enunciated in Strickland. The
record, including the trial transcript, demonstrates
Preston testified that the events she witnessed, including
the shooting, took mere seconds. She testified that she
observed McFarland standing very still with his hands
outstretched in a supplicating gesture, and Morva standing
very still and pointing a gun at McFarland. She stated she
clearly saw the expression on each man’s face, and then she
saw Morva shoot McFarland. There is no evidence in the
record, and Morva proffers none, that Preston was not
looking at McFarland when Morva pulled the trigger.
The witnesses testified that McFarland’s uniform
consisted of a dark shirt with a patch and matching
trousers. Morva does not proffer any evidence, nor is
there any in the record, to support his claim that
McFarland’s uniform was paramilitary or likely mistaken for
that of armed law-enforcement personnel. Furthermore,
Morva fails to provide evidence of any gestures made by
8 McFarland that would indicate he was reaching for a firearm
before he was shot.
Even if McFarland was armed and was wearing a
paramilitary type uniform, Morva shot McFarland as he stood
in front of Morva with his hands in a supplicating gesture.
Counsel was not ineffective for failing to raise a
frivolous argument that Morva was justified in shooting
McFarland. Thus, Morva has failed to demonstrate that
counsel’s performance was deficient or that there is a
reasonable probability that, but for counsel’s alleged
errors, the result of the proceeding would have been
different.
In another portion of claim (III), Morva contends he
was denied the effective assistance of counsel because
counsel failed to obtain a corrective jury instruction when
Preston testified improperly that McFarland looked at her
with “warning eyes to tell me there was danger.” Although
counsel objected that the statement was speculative, and
the court agreed, counsel did not ask for a curative
instruction. Morva contends the jury was instructed that
they may not arbitrarily disregard believable testimony,
and as there was nothing innately unbelievable about
Preston’s testimony, the jury was compelled to consider it.
Morva contends further that the error was compounded
9 because Preston was also allowed to testify that McFarland
“looked scared,” and “like he was trying to appease
[Morva],” who was “scowling” and “looking angry.”
record, including the trial transcript, demonstrates that
counsel objected to Preston’s speculation as to what
information she perceived McFarland was attempting to
impart to her, which objection was sustained. Thus, such
testimony was not admitted into evidence.
Preston was permitted to describe what she observed,
and she demonstrated for the jury how McFarland was
standing. Preston also testified that she was in the
hallway with McFarland and Morva, that Morva was standing
two feet from McFarland pointing a “big gun” at McFarland’s
face while McFarland stood very still with his hands
outstretched, and that Morva then shot McFarland. Under
these circumstances, Morva cannot demonstrate that
counsel’s failure to ask for a curative instruction
concerning Preston’s perceptions of the information the
victim was attempting to convey with his facial expression
was deficient performance. The testimony was excluded from
evidence and to ask for a curative instruction may have
10 emphasized the testimony. See Manetta v. Commonwealth, 231
Va. 123, 127 n.2, 340 S.E.2d 828, 830 n.2 (1986). Such
tactical decisions are an area of trial strategy left to
the discretion of counsel and should not be second-guessed
in habeas corpus. See Strickland, 466 U.S. at 689-90.
Thus, Morva has failed to demonstrate that counsel’s
performance was deficient or that there is a reasonable
probability that, but for counsel’s alleged errors, the
result of the proceeding would have been different.
In another portion of claim (III), Morva maintains he
counsel failed to adequately cross-examine Officer Brian
Roe. Morva contends that Roe’s testimony regarding Eric
Sutphin’s gun holster being snapped shut contradicted other
witnesses who reported, but did not testify, that upon
seeing Sutphin’s body later, the weapon was in its holster,
but the holster was unsnapped. Morva contends this
information supports his account that he believed Sutphin
was drawing a weapon, that he warned Sutphin not to draw
his weapon, and that Morva only fired after the warning was
given.
prong of the two-part test enunciated in Strickland. No
11 witnesses testified that Deputy Sutphin’s holster was
unsnapped and Officer Roe could not have been cross-
examined on the hearsay reports of others. Morva fails to
establish that more comprehensive cross-examination would
have resulted in Officer Roe changing his unequivocal,
uncontradicted testimony. Thus, Morva has failed to
demonstrate that counsel’s performance was deficient or
that there is a reasonable probability that, but for
counsel’s alleged errors, the result of the proceeding
would have been different.
CLAIM (IV)
In claim (IV), Morva argues he was denied the
adequately investigate and develop evidence relating to the
conditions at Montgomery County Jail. Morva contends that
conditions at the jail included extreme overcrowding, non-
existent medical care, an ever-present threat of violent
attack, and lack of privacy when going to the bathroom.
Morva contends that this evidence would have helped jurors
understand how Morva’s “horrendous experience at the jail
influenced his actions.” Morva further contends that
failure to provide this information “undermines confidence
in [the] jurors’ decision at the trial’s guilt and penalty
phases.”
12 The Court holds that claim (IV) satisfies neither the
test enunciated in Strickland. The record, including
Morva’s exhibits, demonstrates that Morva was not exposed
to any unique conditions of confinement and Morva was not
denied medical treatment. Morva’s conditions of
confinement would not have provided a viable defense to the
murders he committed, and would not have mitigated the
murders. Counsel is not ineffective for failing to raise
frivolous arguments. Thus, Morva has failed to demonstrate
that counsel’s performance was deficient or that there is a
CLAIM (V)
In claim (V), Morva alleges he was denied the
present evidence and argument of Morva’s belief that “the
specific combination of his longstanding and significant
medical problems and lack of immediate treatment options
while incarcerated presented an imminent, life-threatening
situation, and that he would die soon if he remained in the
jail.” Morva contends that his escape from the jail and
subsequent killing of the two victims to avoid being
13 returned to the jail “were motivated by his belief that his
actions were acts of self-defense and necessary responses
to the immediate threat posed by his particular experience
of the circumstances at the jail.” Thus, according to
Morva, even if the jury found his “fear to be unreasonable,
the evidence was sufficient to present argument and
instruction . . . with regard to a potential lesser-
included offense and in mitigation of the death sentence.”
The Court holds that claim (V) satisfies neither the
test enunciated in Strickland. There is no support in law
for the proposition that one attempting to escape legal
incarceration because of what he perceives as a threat of
harm is thereby privileged to kill any individual, no
matter how innocent or lacking in culpability, who presents
a bar to that escape. Moreover, the record, including the
trial transcript and Morva’s exhibits, demonstrates no
person could reasonably have apprehended imminent death or
serious bodily harm from McFarland or Sutphin.
Morva’s alleged fear that his return to Montgomery
County Jail might result in his death within a few months
from some unnamed danger did not create a valid claim of
self-defense, nor was it reasonably probable that the jury
would have perceived his alleged fear as mitigating
14 evidence for his murder of two innocent people. Also, the
record does not support Morva's allegation that he was
persistently denied necessary medical attention. In fact,
he had been taken to the hospital for medical treatment at
the time he attacked two of the victims and escaped.
Counsel is not ineffective for failing to pursue a
frivolous position or argument. Thus, Morva has failed to
CLAIM (VI)(A)
In claim (VI)(A), Morva asserts he received multiple
punishments in violation of the double jeopardy clause.
Morva contends his case is indistinguishable from Clagett
v. Commonwealth, 252 Va. 79, 472 S.E.2d 263 (1996), in that
Morva’s capital conviction and death sentence for killing
both McFarland and Sutphin within three years was
derivative of the underlying capital murders of McFarland
and Sutphin. Morva contends “the legislature must be
deemed to have authorized a defendant’s conviction and
death sentence for multiple-homicide offenses only when he
is not also convicted and sentenced to death for the
predicate murders.”
15 The Court holds that claim (VI)(A) is barred because
this non-jurisdictional issue could have been raised at
trial and on direct appeal and, thus, is not cognizable in
a petition for a writ of habeas corpus. Slayton, 215 Va.
at 29, 205 S.E.2d at 682.
CLAIM (VI)(B)
In claim (VI)(B), Morva asserts he was denied the
object to, and thus failed to protect Morva from, multiple
convictions and multiple punishments in violation of the
double jeopardy clause. Morva contends that had counsel
objected, the third death sentence would not have been
imposed or would have been vacated.
The Court holds that claim (VI)(B) satisfies neither
the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. In Payne v. Commonwealth,
257 Va. 216, 227-29, 509 S.E.2d 293, 300-01 (1999), this
Court addressed whether a defendant could be subjected to
multiple punishments where the convictions are for the
violation of distinct statutory provisions for which
separate statutory punishments are authorized. The Court
held that such punishments do not violate double jeopardy.
Id.
16 Morva was sentenced to death for three separate
capital offenses: capital murder while in custody, Code §
18.2-31(3), capital murder of a law-enforcement officer,
Code § 18.2-31(6), and capital murder of more than one
person within a three-year period, Code § 18.2-31(8). The
elements of capital murder while in custody are: (1) the
willful, deliberate, and premeditated killing; (2) of
another; (3) by a prisoner of a state or local correctional
facility, or while in the custody of an employee of such
facility. The elements of capital murder of a law-
enforcement officer are: (1) the willful, deliberate, and
premeditated killing; (2) of a law-enforcement officer; (3)
for the purpose of interfering with the performance of his
official duties. The elements of capital murder of more
than one person within a three-year period are: (1) the
willful, deliberate, and premeditated killing; (2) of more
than one person; (3) within a three-year period. The
elements of each of these capital offenses are different
and each carries its own separate penalty.
There was no double jeopardy violation under the
circumstances of this case, and counsel is not ineffective
for failing to raise a frivolous argument. Thus, Morva has
17 but for counsel’s alleged errors, the result of the
CLAIM (VII)
In claim (VII), Morva contends he was denied the
effective assistance of counsel because counsel
unreasonably failed to investigate and present powerful
mitigation evidence that Morva had saved a man’s life and
helped the Commonwealth prosecute the man’s assailant.
Morva alleges that he once put his own life at risk to help
the victim of an assault, Kevin Grizzard, and that Morva’s
later testimony against one of the assailants led to that
person’s conviction. Morva also alleges that, as a result
of his own actions, he suffered bullying and harassment,
including while he was confined in the Montgomery County
Jail. Morva contends that both he and Grizzard would have
testified to the events in question, if they were called at
an evidentiary hearing, and that there is a reasonable
probability that the omitted testimony would have provided
jurors with a better understanding of Morva’s background
and character, and would have moved at least one juror to
select life without parole as the appropriate sentence.
The Court holds that claim (VII) satisfies neither the
test enunciated in Strickland. Morva fails to proffer an
18 affidavit from Grizzard to verify that he would have
testified as Morva contends, and the affidavits Morva has
provided contain hearsay statements concerning the attack
and Morva’s involvement. Furthermore, the information
provided by Morva establishes that Grizzard had been
recruited by Morva to participate in a number of burglaries
in 2005, and that Morva had become increasingly anti-social
leading up to the murders, had expressed his disdain for
law-enforcement, and felt justified in his criminal
behavior. Counsel is not ineffective for failing to
present evidence that has the potential of being “double-
edged.” Lewis v. Warden, 274 Va. 93, 116, 645 S.E.2d 492,
505 (2007). Such tactical decisions are an area of trial
strategy left to the discretion of counsel and should not
be second-guessed in habeas corpus. See Strickland, 466
U.S. at 689-90. Thus, Morva has failed to demonstrate that
CLAIM (VIII)
In claim (VIII), Morva asserts he was denied the
conduct an adequate investigation into Morva’s childhood
19 and family background, and failed to meaningfully present
the limited evidence they uncovered about Morva’s home
life. Morva contends counsel “cut short” the investigation
into Morva’s family, which Morva contends would otherwise
have revealed “influential genetic and environmental
factors at play.” Morva contends counsel should have
pursued information regarding Morva’s father’s ties to
Hungary because Morva’s father fled Hungary during the
revolution and was a Catholic of Jewish heritage who had
suffered through the Holocaust. Morva argues this
information was necessary for jurors to accurately
understand Morva’s background.
The Court holds that claim (VIII) satisfies neither
Morva’s exhibits, demonstrates that counsel conducted an
exhaustive investigation and spoke with the witnesses upon
whose affidavits Morva now relies. These affidavits
contain vast amounts of negative information that shows
Morva as self-absorbed, manipulative, aggressive, and
uncaring. As such, testimony from these witnesses would
have been “double-edged.” Lewis, 274 Va. at 116, 645
S.E.2d at 505. Furthermore, Morva has not demonstrated
what impact, if any, his parents’ upbringings had on his
20 actions. The information about his parents that Morva now
provides does not concern Morva’s personal background or
history, or the circumstances of the offense, and does not
mitigate Morva’s actions. Thus, Morva has failed to
CLAIM (IX)(A)
In claim (IX)(A), Morva asserts he did not receive
constitutionally guaranteed assistance of experts in the
preparation of his defense because the experts who
evaluated Morva did not serve as advocates for him, but
instead improperly maintained objectivity. In order to
fulfill the constitutional guarantee of expert assistance,
Morva asserts that the experts should have identified,
developed and presented evidence to cast Morva’s history,
character, background, and mental condition in the light
most favorable to him.
The Court holds claim (IX)(A) is barred because this
petition for a writ of habeas corpus. Slayton, 215 Va. at
29, 205 S.E.2d at 682.
21 CLAIM (IX)(B)
In claim (IX)(B), Morva contends he was denied the
object after being put on notice that the appointed experts
would not act in Morva’s best interest or advocate on his
behalf. As a result, the experts did not fulfill their
roles as advocates and Morva was denied his constitutional
right to expert assistance.
The Court holds that claim (IX)(B) satisfies neither
test enunciated in Strickland. Morva proffers no authority
for his contention that the experts appointed to assist
Morva should be biased in Morva’s favor. Morva was
entitled to, and received, “access to [] competent” mental
health experts to “conduct an appropriate examination and
assist in evaluation, preparation, and presentation of”
Morva’s defense, as required by Ake v. Oklahoma, 470 U.S.
68, 84 (1985). Thus, Morva has failed to demonstrate that
22 CLAIM (X)
In claim (X), Morva asserts he was denied the
conduct an adequate enough investigation to enable the
mental health experts to make an informed and accurate
diagnosis. Morva contends counsel should have obtained
information from Morva’s family and friends about the
symptoms of his descent into mental illness. He also
claims that counsel should have obtained medical records
from Morva’s immediate family, and that without such
information, mental health experts under-diagnosed the
severity of Morva’s mental illness.
The Court holds that claim (X) satisfies neither the
test enunciated in Strickland. Morva proffers no competent
evidence to substantiate his claim that he suffered from a
“true mental illness,” or that providing additional
information to the mental health experts who examined Morva
in preparation for trial and sentencing would have changed
the experts’ conclusions. Thus, Morva has failed to
23 CLAIM (XI)
In a portion of claim (XI), Morva asserts he was
failed to provide appointed mental health experts with even
the minimal information counsel had obtained that would
have enabled the experts to make an informed and accurate
diagnosis. Morva contends counsel should have given the
mental health experts the names of several individuals with
whom Morva spent time in the years before the murders. He
contends that had counsel done so, the experts would have
interviewed these individuals and would likely have
determined Morva suffered from a “true mental illness” such
as delusional or schizophrenic disorder.
The Court holds that this portion of claim (XI)
prong of the two-part test enunciated in Strickland. Morva
proffers no competent evidence to substantiate his claim
that he suffered from a “true mental illness,” or that
providing additional information to the mental health
experts who examined Morva in preparation for trial and
sentencing would have changed the experts' conclusions.
24 probability that, but for counsel’s alleged errors, the
In another portion of claim (XI), Morva asserts he was
failed to reconcile the expert testimony with that of lay
witnesses. Morva contends these conflicts led the jury to
conclude that all of Morva’s penalty phase evidence was
unreliable.
fails to state how counsel could possibly have reconciled
the testimony of all the various witnesses, who had each
known and spent time with Morva at different periods of his
life, and who each had different experiences with and
perceptions of him. Thus, Morva has failed to demonstrate
CLAIM (XII)
In claim (XII), Morva asserts he was denied the
object to damaging evidence that lacked a proper
25 evidentiary foundation and was therefore irrelevant to the
jurors’ sentencing decisions. Specifically, Morva contends
counsel should have objected when the Commonwealth elicited
testimony from Morva’s mental health experts regarding
narcissism and predatory aggression because neither expert
found a basis for diagnosing Morva as having narcissistic
personality disorder or predatory aggression.
The Court holds that claim (XII) satisfies neither the
test enunciated in Strickland. Morva’s experts found that
Morva “met diagnostic criteria for narcissistic personality
disorder” or had “narcissistic personality features.”
Thus, there was sufficient foundation for the Commonwealth
to question Morva’s experts regarding narcissistic traits.
Moreover, the Commonwealth presented evidence that showed
Morva’s actions were aggressive, premeditated, and goal
oriented and that Morva did not regret his actions, thus
establishing a foundation for the questions regarding
predatory aggression. Counsel was not ineffective for
failing to raise a frivolous argument by objecting to such
evidence. Thus, Morva has failed to demonstrate that
26 errors, the result of the proceeding would have been
CLAIM (XIII)
In claim (XIII), Morva contends he was denied the
impeach Gregory Nelson by causing him to admit part of his
in-court testimony was inconsistent with interview
statements he made to police officers. Nelson testified
during the penalty phase of the trial that he and Morva
participated in various crimes and that Morva had
threatened Nelson and others.
Counsel attempted to impeach Nelson by showing that in
his interviews with police, Nelson did not say that Morva
had threatened him. When Nelson denied this, counsel
attempted to use the interview statements to refresh
Nelson’s recollection, but the Commonwealth’s objection was
sustained because Nelson had not signed the statements.
Morva contends that although counsel reserved the right to
recall the police officers and Nelson, counsel failed to do
so as a result of inadvertence instead of strategy. Morva
contends impeaching Nelson through the police officer's
testimony would have minimized the effect of evidence
regarding Morva's future dangerousness.
27 The Court holds that claim (XIII) satisfies neither
test enunciated in Strickland. Morva does not provide the
police report, or affidavits from the police officers or
from Nelson to demonstrate the testimony they would have
provided had counsel recalled them. In addition, Morva
proffers no evidence to support his claim that counsel’s
“failure was the result of inadvertence.” Thus, Morva has
Upon consideration whereof, Morva’s motions for leave
to supplement the record, to amend the petition for a writ
of habeas corpus, for discovery and production of
documents, for appointment of experts, and for an
evidentiary hearing are denied. Morva’s motion for en banc
consideration is denied as moot.
Upon consideration of the respondent’s motion to
strike portions of Morva’s appendix and Morva’s reply, the
motion to strike is denied. The exhibits contained in the
appendices are considered pursuant to the appropriate
evidentiary rules.
28 Accordingly, the petition is dismissed and the
respondent shall recover from Morva the costs expended in
his defense herein.
This order shall be published in the Virginia Reports.
Respondent’s costs:
Attorney’s fee $50.00
A Copy,
Teste:
Patricia L. Harrington, Clerk