44528 Record No. 821721.
September 9, 1983
Present: All the Justices.
First degree murder conviction upheld on petition for writ of habeas corpus on ground of ineffective assistance of counsel; new Virginia standard for effective assistance of counsel stated and counsel found ineffective for failure to object to erroneous instruction; petitioner not prejudiced by erroneous instruction when evidence manifestly established requisite premeditation.
(1) Constitutional Law — Criminal Procedure Counsel — Right to — Requires Level of Skill of a Reasonably Competent Attorney.
(2) Constitutional Law — Criminal Procedure Due Process — Evidence — Burden of Proof — Prosecution Must Prove All Elements of Offense Beyond a Reasonable Doubt.
(3) Criminal Law — Murder, First Degree — Evidence — Premeditation is An Essential Element of Proof.
(4) Constitutional Law — Criminal Procedure — Due Process — Burden of Proof — Trial Court Erred in giving Jury Instruction 8 Allowing Conclusive Presumption or Shift in Burden of Persuasion to Defendant as to Requisite Intent.
(5) Constitutional Law — Criminal Procedure — Counsel — Right to — Counsel Ineffective in Failing to Object to Instruction Erroneous Under Sandstrom v. Montana, 442 U.S. 510 (1979), Decided Approximately Seven Months Prior to Trial.
(6) Criminal Procedure — Habeas Corpus — Collateral Attack on Conviction — Burden of Proof — Ineffective Assistance of Counsel — Defendant Must Prove (a) Ineffective Assistance of Counsel and (b) Actual Prejudice.
(7) Criminal Procedure — Habeas Corpus — Collateral Attack on Conviction — Burden of Proof — Heavier on Petitioner than for Direct Appeal — Reasons Stated.
(8) Criminal Procedure — Habeas Corpus — Collateral Attack on Conviction — Instruction — Test for Prejudice in Erroneous Instruction Stated.
(9) Criminal Procedure — Habeas Corpus — Collateral Attack on Conviction — Murder, First Degree — Evidence — Instructions — Instruction 8 not Prejudicial where Evidence Manifestly Established Requisite Intent of Defendant.
(10) Criminal Procedure — Habeas Corpus — Appeal — Collateral Attack on Conviction — Different Standard of Review Applies in Habeas Corpus than on Direct Appeal.
There was evidence at petitioner's trial that on 22 July 1979 he shot the female victim several times and killed her after an argument in a store where she worked. The victim had dated the petitioner and another man. A customer in the store at that time testified that he saw the victim and petitioner arguing, that the victim refused to leave the store with petitioner, and that petitioner told the victim that she could "stay here forever." The customer also stated that, before the second shot, petitioner said "die" as he stood over the victim and shot her again. Then the witness saw petitioner place the gun in his belt and leave the store. The Jury found petitioner guilty of first degree murder and sentenced him to life imprisonment. The Trial Court entered judgment on the verdict. Petitioner's trial counsel appealed the conviction on grounds that the Trial Court erred in refusing a "heat of passion" and manslaughter jury instruction and that the Commonwealth's Attorney's closing argument was inflammatory and prejudicial. The Supreme Court refused the appeal. Petitioner now seeks a writ of habeas corpus on the ground that his trial counsel was ineffective in failing to object to Instruction 8 which told the Jury that "every person is presumed to have intended the natural and probable consequences of his voluntary acts." A similar instruction had been held erroneous in Sandstrom v. Montana, 442 U.S. 510 (1979), decided approximately seven months before petitioner's trial.
1. The constitutional guarantee of assistance of counsel requires the level of skill which a reasonably competent attorney would exercise for similar services under the circumstances. McMann v. Richardson, 397 U.S. 759 (1970), followed.
2. Due process requires the prosecution to prove all elements of an offense beyond a reasonable doubt.
3. Premeditation is an essential element of first-degree murder, distinguishing it from second-degree murder.
4. The Trial Court erred in giving Instruction 8 because the Jury could reasonably have viewed the presumption either as conclusive or as shifting the burden of persuasion to defendant. Either view would have violated defendant's Fourteenth Amendment due process right requiring the prosecution to prove every element of the offense. Sandstrom v. Montana, 442 U.S. 510 (1979), discussed.
5. A reasonably competent attorney in a criminal case would have objected to a jury instruction which the Supreme Court of the United States had held unconstitutional seven months earlier. Thus, defendant's counsel was ineffective in failing to object to Instruction 8.
6. In a collateral attack upon a conviction by a writ of habeas corpus upon the ground of ineffective counsel defendant must prove (a) ineffective assistance of counsel, and (b) actual prejudice as a result.
7. A petitioner for a writ of habeas corpus has a substantially heavier burden on collateral attack than on direct appeal. This is because the writ entails significant costs, prolongs the proceeding, degrades the prominence of the original trial and makes difficult a retrial because of the passage of time.
8. The test of prejudice in a collateral attack by a writ of habeas corpus is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Henderson v. Kibbe, 431 U.S. 145, 154 (1977).
9. Where the evidence presented at trial manifestly established the requisite intent for first-degree murder, defendant was not prejudiced by Instruction 8.
10. Although Instruction 8 might have provided grounds for reversal in a direct appeal, a different standard of review applies in a collateral attack by petition for habeas corpus. Connecticut v. Johnson, 460 U.S. 73 (1983), distinguished.
Appeal from an original petition for a Writ of Habeas Corpus.
Christopher M. Malone (Thompson McMullan, on briefs), for petitioner.
Thomas D. Bagwell, Assistant Attorney General (Gerald L. Baliles, Attorney General, on brief), for respondent.
Raymond Earl Stokes was convicted of first-degree murder in the Circuit Court of the City of Lynchburg and sentenced to life imprisonment. Invoking our original jurisdiction, Stokes has petitioned for a writ of habeas corpus. He alleges his trial counsel's ineffective assistance invalidates his conviction. Although Stokes contends his attorney was ineffective in failing to object to three jury instructions offered by the Commonwealth, we need consider only Instruction 8, which told the jury that "every person is presumed to have intended the natural and probable consequences of his voluntary acts." The questions presented, therefore, are: (1) whether trial counsel was ineffective in failing to object to Instruction 8, and if so, (2) whether Stokes was prejudiced.
On July 22, 1979, Gracie Elizabeth Scott Lee was fatally shot in a neighborhood grocery store in the City of Lynchburg. An autopsy revealed that she died as a result of two bullet wounds. A witness at trial testified that Lee had been dating two men, Raymond Stokes and Joe Granger. Several hours after the shooting, Stokes was arrested. He told the police officer he had not seen Lee recently, and he denied having a pistol in his possession on July 22.
Stokes was tried by a jury on January 17, 1980. Two witnesses to the shooting testified at trial. The store owner saw Stokes enter the store and begin talking to Lee. The owner spoke with Stokes, advising him not to "[start] any trouble." Shortly thereafter, while watching television in the rear of the store, the owner heard "a couple of shots" and observed Stokes "sticking the gun down in front of his trousers going out the door."
The second witness, a customer, testified he saw Stokes and Lee arguing. He heard Stokes tell Lee that she could "stay here forever," after she refused to leave the store with him. The customer then saw Stokes pull a pistol from his pants and shoot Lee twice. Before the second shot, the witness heard Stokes say "die" as he stood over Lee and fired the gun at her. Thereupon, Stokes placed the pistol in his belt and left.
The defendant did not testify. The only evidence the defense presented challenged the credibility of the customer-witness by proof of a prior felony conviction.
Stokes' counsel told the trial court that he did not object to its giving Instruction 8. During closing arguments, the Commonwealth's Attorney placed considerable emphasis on the premeditation aspect of the instruction. Defense counsel argued that the killing resulted from a spat arising out of a lovers' triangle involving Lee, Stokes, and Granger. The jury found Stokes guilty of first-degree murder and fixed his punishment at life imprisonment. The trial court sentenced him in accordance with the verdict.
Stokes' trial counsel petitioned for appeal arguing only that the court erred in refusing a defense instruction regarding "heat of passion" and manslaughter and that the Commonwealth's Attorney's closing argument was inflammatory and prejudicial. Finding no reversible error on the grounds assigned, we refused the appeal. 221 Va. cxlvii (1980).
Initially, we must decide the level of competence required for attorneys in criminal cases. In the past, we followed the "farce and mockery" standard. See, e.g., Russell v. Peyton, 207 Va. 469, 150 S.E.2d 530 (1966); Peyton v. Ellyson, 207 Va. 423, 150 S.E.2d 104 (1966); Hoffler v. Peyton, 207 Va. 302, 149 S.E.2d 893 (1966). This standard required a prisoner to prove by a preponderance of the evidence that his counsel's representation was so ineffective it reduced the trial to a farce and mockery.
More recently, the United States Supreme Court stated that the proper standard to be applied in determining effective assistance of counsel is whether counsel's conduct was "within the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. 759, 771 (1970). See also Tollett v. Henderson, 411 U.S. 258, 266 (1973). Until McMann, both Federal and State Courts applied the "farce and mockery" standard, but many jurisdictions now have adopted a "reasonable competence" standard.
All Federal Circuits, except the Second, apply the "reasonable competence" standard or some variation thereof. See Dyer v. Crisp, 613 F.2d 275, 278 (10th Cir.) (en banc), cert. denied, 445 U.S. 945 (1980) ("that defense counsel exercise the skill, judgment and diligence of a reasonably competent defense attorney"); Cooper v. Fitzharris, 586 F.2d 1325, 1328 (9th Cir. 1978), cert. denied, 440 U.S. 974 (1979) ("reasonably competent and effective representation"); Reynolds v. Mabry, 574 F.2d 978, 979 (8th Cir. 1978) ("that degree of performance which conforms to the care and skill of a reasonably competent lawyer rendering similar services under the existing circumstances"); United States v. Bosch, 584 F.2d 1113, 1121 (1st Cir. 1978), Akridge v. Hopper, 545 F.2d 457, 459 (5th Cir.), cert. denied, 431 U.S. 941 (1977) (apply the McMann standard); Marzullo v. Maryland, 561 F.2d 540, 543 (4th Cir. 1977), cert. denied, 435 U.S. 1011 (1978) ("the range of competence demanded of attorneys in criminal cases"); United States v. Toney, 527 F.2d 716, 720 (6th Cir. 1975), cert. denied, 429 U.S. 838 (1976) ("Whether counsel is reasonably likely to render and does render reasonably effective assistance."); United States Ex Rel. Williams v. Twomey, 510 F.2d 634, 641 (7th Cir.), cert. denied, 423 U.S. 876 (1975) ("legal assistance which meets a minimum standard of professional representation."); United States v. DeCoster, 487 F.2d 1197, 1202 (D.C. Cir. 1973) ("reasonably competent assistance of an attorney acting as his diligent conscientious advocate"); Moore v. United States, 432 F.2d 730, 736 (3rd Cir. 1970) ("exercise of the customary skill and knowledge which normally prevails at the time and place"). But see Rickenbacker v. Warden, 550 F.2d 62, 65 (2nd Cir. 1976), cert. denied, 434 U.S. 826 (1977) (reaffirming the "farce and mockery" standard).
Many states also have adopted in principle the McMann standard of "reasonable competence." See, e.g., Aldridge v. State, 425 So.2d 1132, 1136 (Fla. 1982) (defendant must show "that a 'specific omission or overt act was a substantial and serious deficiency measurably below that of competent trial counsel' ") (quoting Knight v. State, 394 So.2d 997, 1001 (Fla. 1981)); Spangler v. State, 162 Ga. App. 624, 626, 292 S.E.2d 461,463 (1982) ("reasonably likely to render and rendering reasonably effective assistance"); State v. Tucker, 97 Idaho 4, 8, 539 P.2d 556, 560 (1975) (" 'reasonably competent assistance of an attorney acting as his diligent conscientious advocate '") (quoting United States v. DeCoster, 487 F.2d 1197, 1202 (D.C. Cir. 1973)); State v. Williams, 207 N.W.2d 98, 104 (Iowa 1973) ("effective assistance of counsel"); State v. Zeitvogel, 649 S.W.2d 945, 947 (Mo. Ct. App. 1983) ("care and skill a reasonably competent lawyer exercises to render a similar service under the circumstances"); Villarreal v. State, 643 S.W.2d 790, 793 (Tex.Crim. App. 1982), modified on other grounds, 645 S.W.2d 654 (Tex.Crim. App. 1983) (" 'reasonably likely to render and rendering reasonably effective assistance' ") (quoting MacKenna v. Ellis, 280 F.2d 592, 598, modified on other grounds, 289 F.2d 928 (5th Cir.), cert. denied, 368 U.S. 877 (1961)); State v. Gilmore, 76 Wn.2d 293, 456 P.2d 344 (1969) (reasonably effective assistance of counsel); Carrico v. Griffith, 272 S.E.2d 235, 237 (W. Va. 1980) (" 'the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law' ") (quoting State v. Thomas, 157 W. Va. 640, 665, 203 S.E.2d 445, 461 (1974)). But see State v. Blackwood, 60 N.C. App. 150, 298 S.E.2d 196 (1982), Bass v. State, 417 So.2d 582 (Ala. Crim. App.), cert. denied, 417 So.2d 588 (Ala. 1982) (upholding "farce and mockery" standard).
For a considerable period of time, we have been applying the reasonable competence standard, but until now, we have not had an opportunity to adopt it formally as the rule in this jurisdiction. We now hold, therefore, that the constitutional guarantee of the assistance of counsel includes the right to the care and skill which a reasonably competent attorney would exercise for similar services under the circumstances.
[2-3] To satisfy the due process requirements of the Federal Constitution, the prosecution must bear the burden of proving all elements of the offense beyond a reasonable doubt. In Re Winship, 397 U.S. 358, 363 (1970). An essential element of first-degree murder is proof that the homicide resulted from the accused's willful, deliberate, and premeditated acts. This element of specific intent distinguishes first-degree from second-degree murder. Epperly v. Commonwealth, 224 Va. 214, 231, 294 S.E.2d 882, 892 (1982); Smith v. Commonwealth, 220 Va. 696, 700-01, 261 S.E.2d 550, 554 (1980); Baker v. Commonwealth, 218 Va. 193, 195, 237 S.E.2d 88, 89 (1977); Williams v. Commonwealth, 128 Va. 698, 710, 104 S.E. 853, 859 (1920).
In Sandstrom v. Montana, 442 U.S. 510 (1979), the defendant was charged with the crime of "deliberate homicide," id. at 512, under Montana law. Sandstrom claimed he lacked the requisite intent to kill "purposely or knowingly," id., an element of deliberate homicide, because, at the time of the homicide, he was suffering from a personality disorder aggravated by alcohol consumption. Over his objection, the trial court instructed the jury that "[t]he law presumes that a person intends the ordinary consequences of his voluntary acts." Id. at 513. The Supreme Court ruled that a reasonable jury could have viewed the presumption either as conclusive or as shifting the burden of persuasion to the defendant. Because either interpretation would have deprived Sandstrom of his Fourteenth Amendment due process right, requiring the prosecution to prove every element of the crime, the Court held the instruction was unconstitutional. Id. at 524.
Relying upon Sandstrom, Stokes asserts his trial counsel's failure to object to Instruction 8 constituted ineffective assistance of counsel. Instruction 8 reads:
The Court instructs the jury that every person is presumed to have intended the natural and probable consequences of his voluntary acts. And it is not necessary that the intent to kill or do serious bodily harm should exist for any particular length of time prior to the killing, to constitute a willful, deliberate and premeditated killing. It is only necessary that such intent should come into existence at the time of the killing or at any previous time.
Since the first sentence is virtually identical with the Sandstrom instruction, we hold that the court erred by giving Instruction 8.
Next, we consider whether trial counsel was ineffective in failing to object to Instruction 8. Obviously, not every error made by an attorney during a trial constitutes ineffective assistance. "Effective" assistance is not synonymous with "successful" assistance, Ellyson, 207 Va. at 426-27, 150 S.E.2d at 107. Moreover, an attorney's trial tactics, while altogether appropriate at the time, may appear erroneous in retrospect.
However, in the present case, trial counsel failed to object to an instruction which the Supreme Court of the United States condemned seven months earlier. We are of opinion that a reasonably competent attorney in a criminal case would have known of a Supreme Court decision relating to such a fundamental right of an accused and would have objected to the instruction. Therefore, applying the reasonable competence standard, we hold that trial counsel was ineffective in failing to object to the instruction.
Finding counsel ineffective does not necessarily mean a writ should be granted. In a collateral attack, a prisoner not only has the burden of proving ineffective assistance of counsel, but also must prove actual prejudice as a result. Slayton v. Weinberger, 213 Va. 690, 692, 194 S.E.2d 703, 705 (1973).
It is well established that a petitioner has a substantially heavier burden on collateral attack than on direct appeal. United States v. Frady, 456 U.S. 152, 166 (1982); Engle v. Isaac, 456 U.S. 107, 129 (1982); Henderson v. Kibbe, 431 U.S. 145, 154 (1977). The rationale behind the heavier burden is that a writ entails significant costs. Engle, 456 U.S. at 126. It "extends the ordeal of trial for both society and the accused," and its liberal use "degrades the prominence of the trial itself." Id. at 126-27. In addition, with the passage of time, a retrial may become more difficult if not impossible, defeating society's right to punish the guilty. Id. at 127.
In Henderson, the Court held that the issue in a collateral proceeding is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." 431 U.S. at 154. The Court reaffirmed this test in Frady, stressing the importance of evaluating the error "in the total context of the events at trial." 456 U.S. at 169.
Applying these principles in the present case, we find that Stokes has failed to prove any actual prejudice resulting from the erroneous instruction. The evidence that Stokes willfully, deliberately, and with premeditation shot and killed Lee is overwhelming. Before he fired the first shot, he told her to "stay here forever." After shooting her once, he stood over Lee's wounded body, saying "die" and then fired the second shot. Evaluating this evidence "in the total context of the events at trial," 456 U.S. at 169, we find the requisite intent for a first-degree murder conviction manifestly established, and we cannot say the erroneous instruction "by itself so infected the entire trial that the resulting conviction violates due process." Henderson, 431 U.S. at 154.
In reaching this conclusion, we are not unmindful of the recent case of Connecticut v. Johnson, 460 U.S. 73 (1983), in which the Supreme Court in a plurality opinion rejected a harmless error argument concerning a Sandstrom instruction. The Court held that, with few exceptions, a Sandstrom instruction is grounds for reversal of the conviction. Johnson, however, involved a direct appeal, and as we have previously observed, an altogether different standard of review applies in a collateral attack.
We hold, therefore, that since Stokes was not prejudiced by the instruction, the writ of habeas corpus will be denied.