Jackson Executed for Rape, Murder of Williamsburg
By Sam Thrift - Wydaily.com
Friday, August 19, 2011
Jerry Terrell Jackson was executed by lethal
injection Thursday night at the Greensville Correctional Center in
Jarratt. A Williamsburg-James City County Circuit Court jury convicted
Jackson in 2002 for the rape and murder of 88-year-old Ruth Phillips,
who was killed in her Williamsburg home in 2001. Jackson, who was raised
in James City County, was 20 at the time. He was also convicted of
burglary, robbery and petit larceny.
Maj. Steve Rubino of the James City County Police
Department said on Aug. 16, 2001, Jackson broke into Phillips’ apartment,
located in the Rolling Meadow Apartment Complex off Longhill Road, with
the intent to steal. Phillips was asleep in her bed when she woke up to
Jackson rifling through her purse. Jackson smothered Phillips with a
pillow while he raped her, then stole $60 and her car.
Phillips' son, concerned because his mother didn't
answer her phone and she was expected at church, discovered her body the
next day. Rubino said a fingerprint from papers in Phillips' purse
linked Jackson to the crime, along with DNA from hairs that were found
on and around her body.
Jackson's attorneys had been hoping for an
intervention that would stop the execution. They filed a petition for
clemency on July 29, requesting Gov. Bob McDonnell commute the sentence
of death to a sentence of life without the possibility of parole.
McDonnell declined to intervene last week. Thursday afternoon, the U.S.
Supreme Court rejected Jackson's appeal.
After Jackson's execution, Attorney General Ken
Cuccinelli issued a statement, which said in part, "The just sentence of
death has now been carried out. Our thoughts and prayers remain with the
family and friends of Ruth Phillips."
Rapist and killer of Williamsburg widow put to
By Dena Porter - HamptonRoads.com
August 19, 2011
JARRATT - A man who raped and suffocated an 88-year-old
widow has become Virginia's first inmate executed using a revised, three-drug
cocktail. Jerry Terrell Jackson, 30, was pronounced dead at 9:14 p.m.
Thursday at Greensville Correctional Center. He was sentenced to death
for the 2001 rape and murder of seamstress Ruth Phillips in her
Asked whether he had any final words, Jackson shook
his head and said "no" under his breath. As he waited for the drugs to
be administered, he tapped his foot as he lay strapped to a stainless
steel gurney. The execution team took about 15 minutes to insert two
intravenous lines, one into each arm. Within four minutes of the lines
being inserted, he was pronounced dead.
Richard Phillips, who found his mother dead on Aug.
26, 2001, said the execution was long overdue. Neither Phillips nor
other members of Phillips' family witnessed the execution. Ruth Phillips,
a widow for 30 years, followed her son to Virginia from New Hampshire in
the late 1990s. She worked as a seamstress making slip covers and
draperies until her death. Richard Phillips said he had wanted her to
move close to him so that she would be safe. Authorities say Jackson
broke into her apartment. When she awoke and found him rummaging through
her purse, she offered him anything if he would leave. Instead, he put a
pillow over her face and raped her. Jackson then fled in her car and
used the $60 he stole from her apartment to buy marijuana.
"I'm sorry Mrs. Phillips lost her life due to
something that I done," Jackson had said recently. "I'm sorry to Mr.
Phillips that he hurt so much. I'm sorry that he lost his mother."
Like other states, Virginia recently replaced sodium
thiopental with pentobarbital after a nationwide shortage of the
sedative, which is administered before two other drugs that stop the
inmate's breathing and heart. Attorneys in some states have contested
the use of pentobarbital, but federal courts have ruled that the change
is not significant enough to stop executions. Pentobarbital has been
used in two dozen executions this year, according to the Death Penalty
Jackson nearly got a reprieve last year when U.S.
District Judge Leonie Brinkema allowed a two-day evidentiary hearing in
which Jackson's brother and sister testified about the abuse he suffered
at the hands of his father and stepfather while growing up. Brinkema
ordered that Jackson at the time should receive a new sentencing hearing,
saying the testimony "painted a graphic picture of an unwarranted,
continuous, sadistic course of conduct that terrorized and dehumanized
Jackson throughout his childhood." But earlier this year, a federal
appeals court overturned that ruling on a technicality.
In a telephone interview with The Associated Press
last Friday, Jackson talked about the abuse, which began with a broken
arm when he was 19 months old and continued with sexual abuse and
beatings with a fist, belt and once a two-by-four for more than a decade.
Jackson acknowledged killing Phillips. Even though he said it's not an
excuse for what he did, Jackson said he doesn't think it would have
happened if he could have escaped the abuse as a child. "I don't think I
would have ended up this way," he said.
Va. man executed for raping, killing an
Associated Press - August 19, 2011
JARRATT, Va. — A man who raped and suffocated an 88-year-old
woman was executed, becoming Virginia’s first inmate to be given a
lethal injection using a revised three-drug cocktail. Jerry Terrell
Jackson, 30, was pronounced dead at 9:14 p.m. Thursday at Greensville
Correctional Center. Asked if he had any final words, Jackson shook his
head and said “no” under his breath. As he waited for the drugs to be
administered, he tapped his foot as he lay strapped to a stainless steel
gurney. The execution team took about 15 minutes to insert two
intravenous lines, one into each arm. Within four minutes of the lines
being inserted, he was pronounced dead.
Jackson was sentenced to death for the 2001 rape and
murder of seamstress Ruth Phillips in her Williamsburg apartment.
Like other states, Virginia recently replaced sodium
thiopental with pentobarbital after a nationwide shortage of the
sedative, which is administered before two other drugs that stop the
inmate’s breathing and heart. Attorneys in some states have contested
the use of pentobarbital, but federal courts have ruled the change is
not significant enough to stop executions. Pentobarbital has been used
in two dozen executions this year, according to the Death Penalty
Richard Phillips, who found his mother dead on Aug.
26, 2001, said the execution was long overdue. Neither Phillips nor
other members of the victim’s family witnessed the execution. Ruth
Phillips, a widow for 30 years, followed her son to Virginia from New
Hampshire in the late 1990s. She worked as a seamstress making slip
covers and draperies up until her death. Richard Phillips said he had
wanted her to move close to him so she would be safe. Authorities say
Jackson broke into her apartment. When she awoke and found him rummaging
through her purse, she offered him anything if he would leave. Instead,
he put a pillow over her face and raped her, according to authorities.
They said Jackson then fled in her car and used the $60 he stole from
her apartment to buy marijuana.
“I’m sorry Mrs. Phillips lost her life due to
something that I done,” Jackson had said recently. “I’m sorry to Mr.
Philips that he hurt so much. I’m sorry that he lost his mother.”
Jackson nearly got a reprieve last year when U.S.
District Judge Leonie Brinkema allowed a two-day evidentiary hearing in
which Jackson’s brother and sister testified about the abuse he suffered
at the hands of his father and stepfather while growing up. Brinkema
ordered that Jackson at the time should receive a new sentencing hearing,
saying the testimony “painted a graphic picture of an unwarranted,
continuous, sadistic course of conduct that terrorized and dehumanized
Jackson throughout his childhood.” But earlier this year, a federal
appeals court overturned that ruling on a technicality. Recently,
Jackson’s attorneys had argued jurors should get a chance to hear those
graphic details of childhood abuse.
That argument was not enough to sway Gov. Bob
McDonnell, who denied a request to commute Jackson’s sentence to life in
prison last week. The U.S. Supreme Court denied a request earlier in the
day Thursday to block the execution.
In a telephone interview with The Associated Press
last Friday, Jackson talked about the abuse, which began with a broken
arm when he was 19 months old and continued with sexual abuse and
beatings with a fist, belt and once a two-by-four for more than a decade.
Jackson acknowledged killing Phillips. Although he said it wasn’t an
excuse for what he did, Jackson said he didn’t think it would have
happened if he could have escaped the abuse as a child. “I don’t think I
would have ended up this way,” he said. “I don’t think I would be on
The Rev. Christine Payden-Travers, who has written to
and visited with Jackson for several years, called him a loyal and
caring friend to many people. She was with Jackson until he was taken
into the death chamber. She then witnessed the execution, holding her
Bible, sometimes shutting her eyes and appearing to mouth a prayer. She
had called up until the final hours for Jackson’s life to be spared.
Payden-Travers and Jackson’s attorney declined to comment after the
Jackson had followed news reports about the use of
pentobarbital, including a recent Georgia execution in which there was
some evidence the inmate suffered when the drug was used. He said he was
concerned about its use. Department of Corrections spokesman Larry
Traylor said the execution team had trained on the amended protocol
using the new drug, read to “carry out the order of execution in a
professional and constitutional manner.”
Jackson executed for 2001 slaying in
By Frank Green - TimesDispatch.com
August 19, 2011
JARRATT -- Jerry Terrell Jackson was executed by
injection Thursday night for the rape and murder of an 88-year-old
Williamsburg woman he suffocated with a pillow and robbed of $60.
Jackson, 30, was pronounced dead at 9:14 p.m., said officials at the
Greensville Correctional Center where Virginia executions are carried
out. Asked if he had any last words, Jackson shook his head, indicating
It was the first execution in Virginia using the
sedative pentobarbital as the first of three drugs administered in
lethal injections. Virginia and most states traditionally used another
drug that is no longer available. Larry Traylor, spokesman for the
Virginia Department of Corrections, said there were no complications.
Jackson was escorted into the execution chamber by
execution team members at 8:53 p.m. He was quickly ushered onto the
gurney and strapped in. At 8:55 p.m., curtains were closed, blocking the
view of witnesses while an IV line was inserted in each of his arms.
After the curtains reopened, Jackson declined to make a last statement
and the first of three chemicals started flowing. His chest moved as he
breathed, his right toe appeared to tap and he moved his head a bit, but
the movements quickly ceased. He was pronounced dead by a doctor who was
remotely monitoring his heartbeat.
Jackson was sentenced to death for the slaying of
Ruth Phillips in August 2001. Jackson broke into her apartment, where
she lived alone, assaulted her and fled with her automobile. Her
partially clothed body was discovered by her son, Richard Phillips, who
went to check on her when she failed to attend church and did not answer
Jackson's lawyers did not contest his guilt but
challenged his death sentence in unsuccessful appeals to the U.S.
Supreme Court and Gov. Bob McDonnell. They said Jackson's trial lawyers
failed to interview and present testimony from Jackson's brother and
sister about the physical, psychological and sexual abuse Jackson
suffered as a child. They argued that the testimony could have persuaded
at least one juror to vote for a sentence of life without parole instead
The Virginia Attorney General's Office, however,
countered that the jury heard a great deal of evidence about the abuse
suffered by Jackson and that testimony from his brother and sister would
only have been cumulative.
McDonnell turned down Jackson's request for clemency
last week, and the U.S. Supreme Court rejected his appeal Thursday
Traylor said Jackson spent his last day in part by
visiting with family members. No surviving family members of Ruth
Phillips witnessed the execution. Jackson's was the 109th execution
carried out in Virginia since the U.S. Supreme Court allowed the death
penalty to resume in 1976. His death leaves Virginia's death-row
population at 10.
Virginia executes man who raped, killed
By Matthew Ward - Reuters.com
Aug 18 2011
CHESAPEAKE, Va (Reuters) - A man convicted of raping
and killing an elderly Virginia woman was executed by lethal injection
on Thursday, the first inmate put to death in that state this year, the
attorney general's office said. Jerry Terrell Jackson, 30, was executed
at the Greensville Correctional Center, south of the state capital,
Richmond. "Tonight, the death sentence of Jerry Jackson was carried out
by the Commonwealth of Virginia for the brutal rape and murder of Ruth
Phillips," Virginia's Attorney General Ken Cuccinelli said in a
Jackson, on death row since 2003, entered the
Williamsburg apartment of 88-year-old Phillips on August 26, 2001. He
told police he did not know Phillips was home. But she was lying in bed
at the time and confronted Jackson. She told him to take what he wanted
and leave, but he held a pillow against her face until she stopped
screaming, raping her at the same time.
Jackson was pronounced dead at 9:14 p.m., Corrections
spokesman Larry Traylor said. Jackson was the first inmate to be put to
death in Virginia this year, and the first ever in that state to be
executed with a drug mixture that included pentobarbital, a sedative.
Jackson was the 32nd person executed in the United States this year.
After killing Phillips, Jackson left the apartment
through a back window with $60. He stole Phillips' car and used the
money to purchase marijuana. Phillips' body was found by her son after
she did not attend church or answer her telephone. A fingerprint on a
piece of paper inside a wallet next to Phillips' bed and DNA from hair
found on and around her body implicated Jackson, and a jury found him
guilty of capital murder.
Jackson met with family members, his spiritual
advisor and attorneys today, Traylor said, and the inmate requested a
last meal but asked for details to remain private. Jackson made no final
statement, he added.
Traylor said there were no complications with the
execution. Virginia, like other states, switched to using pentobarbital
instead of sodium thiopental in its lethal injection regime after the
sole U.S. supplier of sodium thiopental recently ceased production. The
Supreme Court earlier on Thursday denied an appeal to stay the execution.
Jackson v. Commonwealth, 267 Va. 178,
590 S.E.2d 520 (Va. 2004) (Direct Appeal).
Background: Defendant was convicted in a jury trial
in the Circuit Court, James City County, Samuel Taylor Powell, III, J.,
of murder, rape, burglary, robbery, and petit larceny, and sentenced to
death. Defendant appealed.
Holdings: The Supreme Court, Cynthia D. Kinser, J.,
held that: (1) defendant's confession to police was admissible; (2)
prospective juror, who stated that defendant would have to present some
evidence, was not required to be struck; (3) prospective juror, who
stated in response to confusing questions that he would automatically
impose the death penalty, was not required to be struck; (4) prospective
juror, who initially stated that she would not be able to consider all
mitigating factors in deciding to impose death, was not required to be
struck; (5) defendant was not prejudiced by alleged juror misconduct in
speaking about case to one another prior to close of evidence; (6) trial
court did not abuse discretion in allowing jury to read transcript of
video taped confession; (7) photographs of victim's face and vaginal
area were admissible; (8) evidence was sufficient to support jury's
finding of premeditation; and (9) death sentence was not excessive.
OPINION BY JUSTICE CYNTHIA D. KINSER.
A jury convicted Jerry Terrell Jackson of two counts
of capital murder for the premeditated killing of Ruth W. Phillips in
the commission of rape or attempted rape, and in the commission of
robbery or attempted robbery in violation of Code §§ 18.2–31(5) and
–31(4), respectively. The jury also convicted Jackson of statutory
burglary, in violation of Code § 18.2–90; robbery, in violation of Code
§ 18.2–58; rape, in violation of Code § 18.2–61; and petit larceny, in
violation of Code § 18.9–96. At the conclusion of the penalty phase of a
bifurcated trial, the jury fixed Jackson's punishment at death on each
of the capital murder convictions, finding “that there is probability
that he would commit criminal acts of violence that would constitute a
continuing serious threat to society.” The jury also fixed punishment of
two life sentences for the rape and the robbery convictions, a 20–year
sentence for the burglary conviction, and a 12–month sentence for the
petit larceny conviction. The circuit court sentenced Jackson in
accordance with the jury's verdict.FN1 FN1. The circuit court also
imposed fines in the total amount of $102,500 as fixed by the jury.
Jackson appealed his non-capital convictions to the
Court of Appeals pursuant to Code § 17.1–406(A). We certified that
appeal (Record No. 031518) to this Court under the provisions of Code §
17.1–409 for consolidation with the defendant's appeal of his capital
murder convictions (Record No. 031517) and the sentence review mandated
by Code § 17.1–313. After considering Jackson's assignments of error and
conducting our sentence review, we find no error in the circuit court's
judgments and will affirm Jackson's convictions and the imposition of
the death penalty.
A. GUILT PHASE
Around 7 p.m., on Sunday, August 26, 2001, Richard
Phillips discovered the body of his 88–year–old mother, Ruth Phillips,
lying “twisted and exposed” on a bed in her bedroom. Phillips explained
that his mother's “leg was twisted around, and her pubic region was
exposed[; h]er breast was exposed[; and h]er nightgown was up around her
neck.” Mrs. Phillips lived alone in an apartment located in Williamsburg,
and her son had become concerned about her well-being that day because
she had not attended church and was not answering her telephone. After
finding his mother's body, Phillips went outside and used a cellular
telephone to call the “911” emergency number. While waiting for
emergency personnel to arrive, he noticed that the screen on a bathroom
window in the apartment had been removed.
A subsequent autopsy of Mrs. Phillips' body revealed
a contusion on her nose and some hemorrhaging of minute blood vessels in
her cheeks and eyes. There were also two lacerations to her vagina, one
on the exterior area and the other one on the interior area. The medical
examiner who performed the autopsy opined that the cause of death was
asphyxia. Death by asphyxia, according to the medical examiner, occurs
when the brain is without a supply of oxygen for four to six minutes
although unconsciousness may come about within 15 to 30 seconds. An
investigator with the James City County Police Department, Jeff Vellines,
went to Mrs. Phillips' apartment and collected several items of physical
evidence. He found a window screen, mirror case, and cosmetic items
outside the apartment near the master bathroom window. Inside, Vellines
discovered a black pocketbook lying on the floor next to Mrs. Phillips'
bed, and a brown wallet underneath the pocketbook. The wallet did not
contain any money. However, a white square piece of paper found in the
wallet contained one latent fingerprint of value for identification
purposes. That fingerprint was later compared with the fingerprints of
the defendant and found to be “one and the same.”
Another investigator at the crime scene recovered a
hair from Mrs. Phillips chest area and another hair on the bed below the
stomach area. During the autopsy of Mrs. Phillips' body, additional
hairs were collected from her left thigh area. Microscopic examination
of those hairs by a forensic scientist revealed that one of the hairs
recovered from Mrs. Phillips' thigh area and the other two hairs were
pubic hairs, but they were not consistent with samples of Mrs. Phillips'
pubic hair. These same three hairs along with samples of the defendant's
blood and hair were later subjected to mitochondrial DNA analysis.
According to the forensic scientist who performed the testing, Jackson
could not be excluded as the source of the hairs found on Mrs. Phillips'
body and bed. The “mtDNA sequence data” of each of those hairs matched
the “corresponding mtDNA sequence of the blood” taken from the defendant.
In December 2001, Vellines and Eric Peterson, also an
investigator with the James City County Police Department, interviewed
Jackson in the James City County Law Enforcement Center. After waiving
his Miranda rights, Jackson admitted entering Mrs. Phillips' apartment,
searching through and taking money out of her purse, and then exiting
through a back window. Jackson stated that he did not know that Mrs.
Phillips was at home, and that, when he turned on the light and was
going through her purse, Mrs. Phillips, who was lying in bed, confronted
him and stated, “What do you want? I'll give you whatever, just get
out.” In the defendant's words, “[I]t just scared me and I covered her
up [.]” Jackson acknowledged that he held a pillow over her face for two
or three minutes and tried to make her “pass out” so she could not
identify him. Jackson stated that, when Mrs. Phillips stopped screaming,
that was his “cue that she [had] passed out.” He also admitted that he
inserted his penis into her vagina while he was holding the pillow over
her face. Continuing, Jackson stated that he took Mrs. Phillips'
automobile when he left her apartment and drove it to another apartment
complex, where he abandoned the vehicle with the keys lying on top of it.
He also used $60 that he had taken from her purse to purchase marijuana.
Throughout the interview, Jackson denied that anyone else was with him
during this incident and insisted that he did not mean to kill Mrs.
At trial, Jackson testified to a different version of
the events that supposedly transpired at Mrs. Phillips' apartment.FN2
The defendant claimed that, on the day in question, he had been playing
basketball until around midnight at the apartment complex where Mrs.
Phillips lived. Jackson stated that, as he was leaving, he came in
contact with Alex Meekins and Jasper Meekins. Jackson decided to
participate in their plan to break into Mrs. Phillips' apartment.
According to Jackson, Alex entered the apartment through a window and
then let Jasper and the defendant in through the front door. While
Jackson was looking through Mrs. Phillips' purse, she woke up and asked
what was going on. Jackson testified that the following events then took
place in Mrs. Phillips' bedroom: FN2. Jackson also testified at a
hearing on a motion to suppress his confession. His testimony at that
hearing also differed from his statement to the police.
Jasper Meekins, he put the pillow over her face and
smothered her. While he was smothering her, I think she was struggling,
but I told him at the end when I heard some sound, she was gurgling, I
told him to stop. I pushed him off. As we were leaving, I pulled her
nightgown down. I put the blanket over her, and I picked the pillow up
initially and I didn't like what I saw, so I put the pillow back.
Jackson explained that he confessed to Peterson because he thought that
was what Peterson wanted to hear, and because he just wanted to “get out
of there as fast as [he] could.” Jackson also explained that he never
told the investigators about Jasper's and Alex's participation in the
crime because he was “scared for [his] family on the streets” and had
concerns about being a “snitch.” At trial, Jackson denied raping or
killing Mrs. Phillips. He also denied having any knowledge about who
raped Mrs. Phillips or about how his pubic hairs got on her body.FN3
FN3. A mitochondrial DNA analysis of blood taken from Alex Meekins
showed that his mtDNA sequence did not correspond to the mtDNA sequence
of the three hairs recovered from Mrs. Phillips' body.
B. SENTENCING PHASE
During the sentencing phase of the bifurcated trial,
the Commonwealth introduced into evidence 18 orders showing Jackson's
convictions or adjudications of delinquency for such offenses as grand
larceny, petit larceny, trespassing, drug possession, receiving stolen
property, contempt of court, identity fraud, statutory burglary, credit
card theft, and obtaining money under false pretenses. The jury also
heard evidence from two correctional officers about two incidents
involving the defendant while he was incarcerated. In the first incident,
Jackson refused to obey the orders of a correctional officer, and that
refusal led to a scuffle with several officers as they attempted to
remove Jackson's hand cuffs. The other incident involved an altercation
between the defendant and another inmate.
In mitigation of the offenses, Jackson presented
evidence about his adjustment and behavioral problems when he was a
youth. In 1993, he was diagnosed with an “adjustment disorder with
depressed mood and attention deficit, hyperactivity disorder.” Jackson
was evaluated again in 1996 because he was having behavioral problems at
home and was not doing well in school. Jackson expressed resentment
toward his stepfather and acted out his negative feelings by behaving
aggressively. However, testing indicated that Jackson had average
intellectual functioning. During his school years, Jackson took
medication for attention deficit hyperactivity disorder, but his mother
reported to Jackson's pediatrician that her son continued to have
behavioral problems at school, including fights. The defendant was
eventually placed in a special school for students who cannot be
controlled in a regular classroom setting. There was also evidence that
the defendant suffered physical abuse as a child. FN4 FN4. We will
summarize additional facts and proceedings as necessary to address
A. DISMISSAL OF INDICTMENTS
Jackson assigns error to the circuit court's refusal
to dismiss the capital murder indictments on the basis that Code §
19.2–264.4(B) is unconstitutional. The defendant raised this claim in a
pre-trial motion and supporting memorandum. The circuit court denied the
motion. Jackson now argues that Code § 19.2–264.4(B) contains “a relaxed
evidentiary standard that leads to inherently unreliable determinations
of aggravating factors and unreliable death sentences.” Citing the
decisions in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d
556 (2002), Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000), and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25
L.Ed.2d 368 (1970), Jackson also seems to suggest that, in Virginia, the
aggravating factors of future dangerousness and vileness are not decided
by a jury based on proof of those factors beyond a reasonable doubt.FN5
We find no merit in the defendant's arguments. FN5. Any argument about
the vileness aggravating factor is irrelevant because Jackson's sentence
of death was predicated on the jury's finding of future dangerousness.
First, before the sentence of death may be imposed,
the Commonwealth must prove at least one of the statutory aggravating
factors beyond a reasonable doubt. Code § 19.2–264.4(C). Pursuant to
Code § 19.2–264.3, a jury makes that determination, unless a jury trial
is waived. Code § 19.2–257. Thus, to the extent Jackson suggests
otherwise, he is incorrect.   Next, Code § 19.2–264.4(B) does not
contain a relaxed evidentiary standard or produce unreliable
determinations of aggravating factors. Evidence relevant to sentencing
in the penalty phase of a capital murder trial is admissible, “subject
to the rules of evidence governing admissibility.” Id. We have held that
this statute does not permit admission of irrelevant evidence. See
Powell v. Commonwealth, 267 Va. 107, 121, 590 S.E.2d 537, 546 (2004) (decided
this day); Remington v. Commonwealth, 262 Va. 333, 357, 551 S.E.2d 620,
634–35 (2001). Presentence reports from probation officers are
specifically not admissible. Id. And, in Virginia, hearsay evidence also
is not admissible during a penalty phase proceeding. Lovitt v. Warden,
266 Va. 216, 259, 585 S.E.2d 801, 826 (2003).
Finally, we note that, although the defendant argues
that the full procedural safeguards employed during the guilt phase of a
capital murder trial must also be provided in the penalty phase, he
never identifies what procedural safeguards were missing in his penalty
phase proceeding. He also fails to enunciate what unreliable information
was admitted into evidence during the penalty phase of his trial as a
result of the supposed relaxed evidentiary standard. In other words,
Jackson's complaints about the provisions of Code § 19.2–264.4(B) are
merely hypothetical in nature. Thus, we conclude that the circuit court
did not err in refusing to dismiss the indictments.
B. SUPPRESSION OF DEFENDANT'S STATEMENT
Jackson filed a pre-trial motion to suppress the
statement that he made to the police investigators. After hearing
evidence and argument of counsel, the circuit court denied the motion,
finding that Jackson's statement was voluntary and not the product of
any psychological or physical coercion.
The defendant assigns error to the court's decision
and argues that, “[b]ased on the totality of the circumstances, [his]
will was overcome, his capacity for self-determination was critically
impaired and his confession was not the product of a free and
unconstrained choice.” Jackson claims that the investigators who
questioned him engaged in trickery and deceit because of statements such
as, “I will work with you ... I will be with you, thick and thin, boy
... I will be in your corner” and “I'm here for you.” As further
evidence that his will was overborne, Jackson points to his repeated
denials of culpability during the first part of the interrogation, his
initial confession to a different crime, and his lack of knowledge that
the crime for which he was being interrogated carried a possible
sentence of death. In accordance with his testimony at the suppression
hearing, Jackson claims that he simply told the investigator what the
investigator wanted to hear so that he, the defendant, would be free to
We find no merit in Jackson's arguments. The circuit
court found, and we agree, that there was no evidence of any promises of
leniency, any force, any threats, any intimidation, any coercion, or any
deprivation of the defendant's physical or mental needs. Such
“subsidiary factual determinations are entitled to a presumption of
correctness.” Swann v. Commonwealth, 247 Va. 222, 231, 441 S.E.2d 195,
202 (1994). The court also noted that the defendant had a reported IQ
score of 100 and an educational level sufficient to read and write.
Furthermore, Jackson signed a waiver of his Miranda rights at the
beginning of the interview. And, he obviously understood the
implications of making statements to the police because he had been
charged with crimes on two previous occasions after confessing to those
A defendant's waiver of Miranda rights is valid if
made knowingly, voluntarily, and intelligently. Id.; Jenkins v.
Commonwealth, 244 Va. 445, 453, 423 S.E.2d 360, 366 (1992). “The test
for voluntariness is whether the statement is the ‘product of an
essentially free and unconstrained choice by its maker,’ or whether the
maker's will ‘has been overborne and his capacity for self-determination
critically impaired.’ ” Id. at 453–54, 423 S.E.2d at 366 (quoting
Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037
(1961)). When determining whether a defendant's statement was
voluntarily given, we examine the totality of the circumstances, which
include the defendant's background and experience as well as the conduct
of the police in obtaining the waiver of Miranda rights and confession.
Swann, 247 Va. at 231, 441 S.E.2d at 202; Correll v. Commonwealth, 232
Va. 454, 464, 352 S.E.2d 352, 357 (1987). Using these principles, we
conclude that the defendant's statement was made knowingly,
intelligently, and voluntarily. Thus, the circuit court did not err in
admitting Jackson's incriminating statement.
C. JURY SELECTION
The defendant assigns error to the circuit court's
failure to strike three prospective jurors for cause. An accused has a
constitutional right to be tried by an impartial jury. See U.S. Const.
amends. VI and XIV; Va. Const. art. I, § 8. By statute, a trial court is
required to excuse any prospective juror who cannot “stand indifferent
in the cause.” Code § 8.01–358. However, [b]ecause the trial judge has
the opportunity, which we lack, to observe and evaluate the apparent
sincerity, conscientiousness, intelligence, and demeanor of prospective
jurors first hand, the trial court's exercise of judicial discretion in
deciding challenges for cause will be not disturbed on appeal, unless
manifest error appears in the record. Pope v. Commonwealth, 234 Va. 114,
123–24, 360 S.E.2d 352, 358 (1987) (citing Calhoun v. Commonwealth, 226
Va. 256, 258–59, 307 S.E.2d 896, 898 (1983)); accord Bell v.
Commonwealth, 264 Va. 172, 191, 563 S.E.2d 695, 709 (2002); Green v.
Commonwealth, 262 Va. 105, 115–16, 546 S.E.2d 446, 451 (2001); Stewart
v. Commonwealth, 245 Va. 222, 234, 427 S.E.2d 394, 402 (1993). Thus, on
appellate review, we defer to the trial court's decision whether to
retain or exclude prospective jurors. Vinson v. Commonwealth, 258 Va.
459, 467, 522 S.E.2d 170, 176 (1999). Guided by these principles, we
will now review the voir dire of the three jurors that the defendant
claims should have been struck for cause. In doing so, we consider the
prospective juror's entire voir dire, not just isolated portions. Id.;
Mackall v. Commonwealth, 236 Va. 240, 252, 372 S.E.2d 759, 767 (1988).
(1) Juror Reinsberg - The defendant moved the circuit
court to excuse this prospective juror because, among other reasons, she
indicated at one point during her voir dire that she would probably
require the defense to put on evidence during the trial. However, her
overall responses to voir dire questions relevant to this particular
issue reveal that she could “stand indifferent to the cause” and would
not require the defendant to present evidence to establish his innocence:
[DEFENSE COUNSEL]: Do you have any feelings about the
case from what you have read in the Gazette or from what you may have
read in the Daily Press earlier? MS. REINSBERG: The seriousness of it. [DEFENSE
COUNSEL]: Other than the seriousness? MS. REINSBERG: The charges. [DEFENSE
COUNSEL]: Would you require the defense to put on evidence to change
your mind or influence your decision considering what you have read? MS.
REINSBERG: Probably. THE COURT: Let me ask, what do you mean by that?
MS. REINSBERG: From what we have read, I don't know, I was thinking the
newspaper— THE COURT: Is accurate? MS. REINSBERG: Is accurate, so I
would—I would want to know, it was accurate or inaccurate. Sometimes
certain parts can be made up. That shouldn't be. [DEFENSE COUNSEL]: May
I go on? Considering that response, have you formed an opinion of some
sort as to the guilt or innocence of the Defendant if you are going to
require us to put on evidence? MS. REINSBERG: No. [DEFENSE COUNSEL]:
That's based on what you have seen or read? MS. REINSBERG: (Nods head.)
Just the one article. [DEFENSE COUNSEL]: Have you formed an opinion on
what you have heard, the facts of what you have read, have you formed an
opinion as to what punishment Mr. Jackson should receive as a result of
what you— MS. REINSBERG: No. [DEFENSE COUNSEL]: You said that you would
probably require us to put on some evidence. Tell us what you would be
looking for from the defense. MS. REINSBERG: Well, were there other
people involved, for one. * * * [COMMONWEALTH'S ATTORNEY]: Judge, just a
couple [of] follow-up questions if I may. Ms. Reinsberg, one of the
questions [defense counsel] asked you involved a response in which you
said you would want to hear if other people were involved. Understanding
that you read the newspaper, correct? MS. REINSBERG: Right. [COMMONWEALTH'S
ATTORNEY]: That was Saturday's Gazette? MS. REINSBERG: Right. [COMMONWEALTH'S
ATTORNEY]: Are you willing to put aside any opinions or thoughts you
have regarding that newspaper article and judge this case based on the
facts presented during the course of the trial? MS. REINSBERG:
Definitely. [COMMONWEALTH'S ATTORNEY]: And are you going to hold the
Commonwealth; that is, myself and Mr. McGinty, in our case to the proper
burden of we have to prove the case beyond a reasonable doubt? MS.
REINSBERG: Uh-huh. [COMMONWEALTH'S ATTORNEY]: And you understand that at
sentencing, if the jury has convicted the Defendant of capital murder,
that the burden is on us to prove certain things beyond a reasonable
doubt— MS. REINSBERG: Right. [COMMONWEALTH'S ATTORNEY]:—before you can
impose the death penalty? MS. REINSBERG: Right, I understand. [COMMONWEALTH'S
ATTORNEY]: Are you open-minded to both the death penalty and life in
prison? MS. REINSBERG: Definitely. [COMMONWEALTH'S ATTORNEY]: Do you
agree with the concept that the Defendant does not have to present any
evidence at trial? MS. REINSBERG: Right. [COMMONWEALTH'S ATTORNEY]: In
fact, the Defendant doesn't have to present any evidence at sentencing?
MS. REINSBERG: Right. [COMMONWEALTH'S ATTORNEY]: Are you willing to
follow that principle of law? MS. REINSBERG: Yes.
The voir dire of prospective juror Reinsburg
demonstrates that the circuit court correctly concluded that this juror
understood both the Commonwealth's burden of proof and the fact that the
defendant did not have to present any evidence. As we have previously
stated, “[t]he real test is whether jurors can disabuse their minds of
their natural curiosity and decide the case on the evidence submitted
and the law as propounded in the court's instructions.” Townes v.
Commonwealth, 234 Va. 307, 329, 362 S.E.2d 650, 662 (1987); accord Eaton
v. Commonwealth, 240 Va. 236, 247, 397 S.E.2d 385, 392 (1990).
Prospective juror Reinsberg satisfied this test. Thus, we find no
manifest error in the circuit court's decision refusing to strike this
juror for cause.
(2) Juror Baffer - Relying on the following series of
questions, Jackson claims that the circuit court erred in refusing to
strike prospective juror Baffer for cause:
[DEFENSE ATTORNEY]: Do you hold the belief that death
is the appropriate punishment for a person who commits a murder, rape
and/or robbery unless he can convince you otherwise? MR. BAFFER: Yes. [DEFENSE
ATTORNEY]: Why is that? MR. BAFFER: Because I believe in the State of
Virginia, the Penal Code in the—it's prescribed. * * * [DEFENSE ATTORNEY]:
You were asked an “automatic” question by the Commonwealth. Would you
automatically vote to impose the death penalty on a person you determine
beyond a reasonable doubt constituted a continuing serious threat to
society? MR. BAFFER: Yes. This isolated portion of juror Baffer's voir
dire is misleading because this prospective juror, when asked by the
Commonwealth whether he would automatically impose the death penalty if
the defendant were found guilty of capital murder, answered “No.” The
circuit court then engaged in the following exchange with prospective
juror Baffer: THE COURT: Mr. Baffer, let me ask you one question. [Defense
counsel] asked you a question. He said that if you found beyond a
reasonable doubt that a consideration of the Defendant's history and
background there is a probability that he would commit criminal acts of
violence that would constitute a continuing serious threat to society,
he asked you if you found that, would you always vote to impose the
death penalty, and you said yes. Is that your understanding of what the
law in Virginia is? MR. BAFFER: I'm not sure what the law of Virginia is
on that. You said automatically impose the death penalty? THE COURT: If
you found—you convicted the Defendant of capital murder and then you
made a second finding, go to the second phase where evidence is
presented regarding the possible sentence. You have two possible
sentences, life in prison or death, and the Court would instruct you
that before you could impose the death penalty, you must find beyond a
reasonable doubt that after consideration of the Defendant's history and
background, there is a probability that he would commit criminal acts of
violence that would constitute a continuing serious threat to society,
you made that finding, is it your understanding that you must then
impose the death penalty? MR. BAFFER: I don't know that I must impose. I
mean, get him out of society. Life without parole removes him from
society. THE COURT: That's correct. MR. BAFFER: If he would pose a
danger, that would be adequate that he doesn't come back into society.
THE COURT: What would be adequate, life without parole? MR. BAFFER: That
would be adequate too, life without parole. THE COURT: The question [defense
counsel] asked you is if you found that this future danger existed,
would you automatically vote to impose the death penalty? MR. BAFFER:
No, I would say no to that, if the alternative is he got life without
parole, that would be adequate. THE COURT: Well, that is your
alternative. You only have two choices. If the Defendant is found guilty
of capital murder, you have two choices: One is the death sentence; the
other is life in prison without parole. They are your only two options,
and if you were to find the Defendant guilty of capital murder, and if
you found the condition of future dangerousness existed, could you
consider both? MR. BAFFER: I could consider both. THE COURT: Would you
automatically impose the death penalty if you found future dangerousness
existed? MR. BAFFER: No, if he was removed from society.
As stated previously, we must consider this juror's
entire voir dire. See Vinson, 258 Va. at 467, 522 S.E.2d at 176. Upon
doing so, it is clear that, while prospective juror Baffer stated at one
point, in response to confusing questions by defense counsel, that he
would automatically impose the death penalty, he subsequently clarified
his position and stated that he would follow the court's instructions
and consider both sentencing alternatives. We have held that it is
improper to ask prospective jurors speculative questions regarding
whether they would automatically impose the death penalty in certain
hypothetical situations without reference to a juror's ability to
consider the evidence and follow the court's instructions. Schmitt v.
Commonwealth, 262 Va. 127, 141, 547 S.E.2d 186, 196 (2001). Thus, we
conclude that the circuit court ruled properly in seating this juror.
(3) Juror Berube -  Jackson moved to strike
prospective juror Berube on the basis that she answered “No” to one
question asking whether she would be able to consider all mitigating
factors in making her decision whether to impose a life sentence without
parole or the death penalty. However, the answer to this one isolated
question does not accurately portray this juror's positive assertions
during voir dire that she would follow the court's instructions and
consider all mitigating evidence when making her sentencing decision.
Furthermore, when overruling the defendant's motion to strike this juror,
the circuit court noted that juror Berube had given careful thought to
her answers and that she did not initially understand what mitigating
factors are. Thus, we conclude that the circuit court did not err in
finding that this juror would be fair and impartial.
D. JUROR MISCONDUCT
During a recess on the third day of trial, the jurors
asked whether they could discuss among themselves the evidence and
testimony that had already been presented. The parties and the circuit
court agreed that the jurors should not do so until after the close of
all the evidence and the jury's deliberations began. When the jury
returned to the courtroom after the recess, the court instructed the
jurors that they should deliberate and discuss the evidence only after
all the evidence had been introduced. The court further admonished the
jurors to keep an open mind and to refrain from deciding any issue until
the case was submitted to them for their deliberations.  The
defendant did not object to those instructions or ask for a mistrial at
that time. Thus, to the extent that Jackson now argues that the court
should have granted a mistrial as soon as it learned of the jury's
question, which suggested, in Jackson's view, that the jury had already
been discussing the case, such a claim was not preserved for appeal. See
Rule 5:25. Jackson filed a post-trial motion for a new trial and/or an
evidentiary hearing based on allegations that the jury had discussed his
guilt or innocence prior to the close of all the evidence. In support of
the motion, the defendant submitted an affidavit from alternate juror
Picataggi. In the affidavit, Picataggi stated that she had “witnessed
and heard discussion of this case, and its outcome, among the jurors
before the close of evidence and in direct violation of the instructions
of the court.”
At a hearing on Jackson's motion, defense counsel
advised the court that he had contacted all the jurors after the
conclusion of the trial because of his concerns about the jury's
question on the third day of trial. Counsel also told the court that
this alternate juror agreed to speak with him but that many of the
jurors would not do so or stated that such alleged discussions among the
jurors did not occur before the close of the evidence. Defense counsel
asked the court to summons all the jurors to an evidentiary hearing and
to question them individually about what, if any, discussions occurred
before the jury retired to deliberate. The court decided to summons only
alternate juror Picataggi to a hearing for the purpose of questioning
her about the allegations stated in her affidavit.
At that hearing, Picataggi explained, in response to
questions from the court, that she had heard three discussions, two in
the jury room and one at a local restaurant where the jury had gone for
lunch. She acknowledged that no third person, such as the restaurant
owner or a waitress, participated in any of those discussions, either by
comments to the jury or by comments from any of the jurors. Picataggi
could not recall whether any discussions ensued after the jurors asked
the court during a recess whether they could discuss the evidence they
had already heard. Picataggi also could not remember exact words used,
but she described a discussion in regard to the testimony of the
detective and [the defense counsel's] questioning him in regard to the
videotape and that was discussed among the jurors in that—well, they
didn't particularly like the way that he was questioning the detective,
but that ultimately he got to the truth or to the bottom of it.
However, she admitted that at no time did any juror
come to a conclusion about Jackson's guilt or innocence. During cross-examination
by the defendant, Picataggi indicated that the discussions concerned
things that had happened in the courtroom and matters that had been
presented there, and were not necessarily limited to comments about the
lawyers' styles of questioning.
After hearing Picataggi's testimony, the circuit
court denied the defendant's motion for further investigation and for a
new trial. The court concluded that the jurors' comments addressed the
cross-examination of investigator Peterson and defense counsel's
techniques of attacking that witness's credibility. The court found “no
probable misconduct and clearly no prejudice” to the defendant.
On appeal, Jackson argues that the evidence of jurors'
discussions “establishes a probability of prejudice and brings into
question the fairness of the trial.” The defendant also asserts that the
comment that “he got to the truth or to the bottom of it” went to the
issue of guilt or innocence. At a minimum, the circuit court, according
to Jackson, should have conducted an evidentiary hearing at which all
the jurors should have been questioned. We do not agree with the
In Virginia, we strictly adhere “ ‘to the general
rule that the testimony of jurors should not be received to impeach
their verdict, especially on the ground of their own misconduct.’ ”
Jenkins, 244 Va. at 460, 423 S.E.2d at 370 (quoting Caterpillar Tractor
Co. v. Hulvey, 233 Va. 77, 82, 353 S.E.2d 747, 750 (1987)). We have also
generally “ ‘limited findings of prejudicial juror misconduct to
activities of jurors that occur outside the jury room.’ ” Id. (quoting
Caterpillar Tractor Co., 233 Va. at 83, 353 S.E.2d at 751.) For example,
in Haddad v. Commonwealth, 229 Va. 325, 330–331, 329 S.E.2d 17, 20
(1985), evidence showing juror misconduct in the form of expressing an
opinion to third persons during trial proceedings was sufficient to
establish a probability of prejudice to the accused.
Applying this same probability of prejudice standard,
we find that Jackson failed to carry his burden to establish such
prejudice. See id. Upon reviewing Picataggi's affidavit, the circuit
court properly convened an evidentiary hearing to investigate further
her allegations of juror misconduct. See Kearns v. Hall, 197 Va. 736,
743, 91 S.E.2d 648, 653 (1956) (when allegations of jury misconduct are
sufficient to indicate the verdict was affected thereby, a trial court
has a duty to investigate and determine whether, as a matter of fact,
the jury did engage in misconduct). The evidence presented at that
hearing amply supported the court's conclusions that there was probably
no misconduct and clearly no prejudice to the defendant.
At best, Picataggi could only recall juror
discussions regarding defense counsel's techniques of cross-examination
and the comment “he ... got to the bottom of it.” She could not remember
any other specific comments by the jurors, or whether any juror
discussions about the evidence transpired after the court instructed
them not to do so in response to the jury's question. And, Picataggi
admitted that no juror expressed an opinion about Jackson's guilt or
innocence. That fact distinguishes this case from Haddad. Thus, we
conclude that neither a new trial nor any further investigation by the
circuit court was warranted. We said many years ago that “[i]f gossip of
[jurors] among themselves, or surmise, is to be the basis of new trials
there would be no end to litigation.” Margiotta v. Aycock, 162 Va. 557,
568, 174 S.E. 831, 835 (1934). That statement remains true today.
E. VIDEO–TAPED CONFESSION AND TRANSCRIPT
Jackson asserts that the circuit court erred in
allowing the jury to use a transcript of his video-taped confession
while the video was played during the trial, in overruling his motion
for a mistrial because of problems that occurred while watching the
video tape and using the transcript, and in allowing the jury to review
the video-taped confession during their deliberations. We find no merit
to any of these claims.
The circuit court directed that a transcript of the
video tape be prepared because portions of the video tape were inaudible
and the court concluded that it would be helpful for the jurors to have
the transcript while they were viewing the video tape. At trial, Jackson
claimed the transcript was not accurate and thus objected to the jury's
use of it. The circuit court disagreed and found that the transcript was
as accurate as it could be and that it was incomplete because some
portions of the video tape were inaudible. Before the jurors watched the
video tape, the court instructed them that the transcript was “merely a
guide ... [and was] not evidence.” The court further instructed that the
evidence was the tape itself and the audio portion of it, and that the
transcript would be retrieved after the video tape was played and could
not be taken into the jury room during deliberations. Finally, the court
told the jury that, although there would be places in the transcript
stating that the video tape was inaudible, it was, nevertheless, the
jury's “responsibility to listen to the tape and determine what, in fact,
[was] being said.” The court reminded the jurors of these instructions
when they finished viewing the video tape.
“A court may, in its discretion, permit the jury to
refer to a transcript, the accuracy of which is established, as an aid
to understanding a recording.” Fisher v. Commonwealth, 236 Va. 403, 413,
374 S.E.2d 46, 52 (1988); accord Burns v. Commonwealth, 261 Va. 307,
330, 541 S.E.2d 872, 888 (2001). Although Jackson argues on appeal that
the transcript was inaccurate, he points only to the fact that some
words were missing because the video tape was inaudible at certain
points, that the transcript was incorrectly paginated, and that one page
was missing. However, those problems did not render the transcript
inaccurate. In light of the lengthy instructions that the circuit court
gave the jurors regarding the purpose of the transcript and their use of
it, we are persuaded that the court did not abuse its discretion in
allowing the jury to use the transcript of the defendant's video-taped
confession. See id. (trial court did not abuse its discretion by
allowing jury to use transcript that was not complete).
During the playing of the video tape, it was
discovered that the pages in one juror's transcript were partially out
of order. After that problem was corrected, the court directed the
Commonwealth to rewind the video tape approximately two minutes.
Subsequently, it was discovered that the jurors' transcripts were
missing one page. Playing of the video tape was momentarily stopped
while that problem was corrected. Because of these problems and
Jackson's assertion that the jurors rarely looked up from the transcript
and thus did not watch the video tape, he moved for a mistrial at the
conclusion of the playing of his video-taped confession. The circuit
court overruled the motion, finding that the jurors had paid close
attention to both the video tape and the transcript. The court also
noted that the amount of the video tape that was replayed was minimal
and that all the problems with the transcripts were quickly corrected.
The court did not err in overruling the motion for a mistrial.
Finally, Jackson claims that undue emphasis was
placed on his confession and investigator Peterson's testimony regarding
his interrogation of the defendant because the jury was allowed to take
the video tape into the jury room during deliberations. However, Code §
8.01–381 provides that “[e]xhibits may, by leave of court, be” carried
into the jury room. “Exhibits requested by the jury shall be sent to the
jury room or may otherwise be made available to the jury.” Id. Thus, any
exhibit introduced into evidence, including a defendant's written or
recorded statement, is available to jurors during their deliberations.
See Pugliese v. Commonwealth, 16 Va.App. 82, 90, 428 S.E.2d 16, 23
(1993). That jurors may put emphasis on certain evidence, perhaps a
particular exhibit or testimony of a certain witness, is simply part of
what they do when weighing and considering the evidence. Id. Thus, the
court did not abuse its discretion in allowing the jury to take the
video tape into the jury room during deliberations.
Jackson first challenges the circuit court's ruling
allowing the Commonwealth to use an “in-life” photograph of the victim.
Mrs. Phillips' son identified the photograph during his direct
examination, FN6 and the Commonwealth displayed the photograph during
its closing argument in the guilt phase of the trial for approximately
seven seconds. The court did not allow the jury to take the photograph
into the jury room. The defendant claims that the photograph had no
probative value and was used to arouse the sympathies of the jury. FN6.
The circuit court noted for the record that the “in-life” photograph of
Mrs. Phillips was displayed in the Commonwealth's case-in-chief for
approximately 15 to 20 seconds but that it was not passed to the jury.
We conclude that the circuit court did not abuse its
discretion in allowing the use of the “in-life” photograph of Mrs.
Phillips. See Bennett v. Commonwealth, 236 Va. 448, 471, 374 S.E.2d 303,
317 (1988) (no abuse of trial court's discretion to admit photograph
showing victim one month before she died). The photograph was displayed
only twice for brief periods of time. Additionally, the photograph was
not given to the jury or taken into the jury room during deliberations.
The defendant also claims that the circuit court erred in admitting into
evidence photographs of Mrs. Phillips taken during the autopsy. He
specifically challenges the admission of duplicate photographs of Mrs.
Phillips' face and an enlarged photograph of her vaginal area. The
defendant asserts that any probative value of these photographs was
outweighed by their prejudicial and inflammatory effect upon the jury.
Although Jackson does not identify the challenged
photographs by exhibit number, we assume that he is complaining about
two photographs of Mrs. Phillips' face, Commonwealth Exhibit Numbers 47
and 48; and the enlarged photograph of her vaginal area, Commonwealth
Exhibit Number 51. These are the photographs to which the defendant
objected at trial. The Commonwealth introduced each of these during the
medical examiner's testimony. Number 47 depicted the front of Mrs.
Phillips' face, and number 48 was a side view. Number 51 showed a
laceration in the rear portion of her vaginal area. Each photograph
depicted different injuries suffered by Mrs. Phillips.
We agree with the circuit court's conclusion that the
two facial photographs were “not shocking” or “gruesome” and that Number
51 was simply “part of the facts of this particular case.” Thus, the
court did not abuse its discretion in admitting these photographs. The
photographs were relevant to the issues of premeditation, intent, and
malice. See Gray v. Commonwealth, 233 Va. 313, 342, 356 S.E.2d 157, 173
(1987); Stockton v. Commonwealth, 227 Va. 124, 144, 314 S.E.2d 371, 384
(1984). And, contrary to the defendant's argument, any prejudicial
effect of the photographs did not outweigh their probative value.
G. USE OF PILLOW FOR DEMONSTRATIVE PURPOSES
During closing argument, the Commonwealth used a
pillow to demonstrate the length of time that Jackson held the pillow
over Mrs. Phillips' face. The Commonwealth asked the jury how such an
act could not be indicative of a specific intent to kill. The defendant
objected on the basis that the Commonwealth was not using the actual
pillow found at the crime scene and that the demonstration would incite
and inflame the jury. The circuit court overruled the objection but
directed the Commonwealth to tell the jury that the pillow was “not the
actual size and shape of the pillow used” to suffocate Mrs. Phillips and
that the Commonwealth was using a pillow only for demonstrative purposes.
“Admission of items of demonstrative evidence to
illustrate testimonial evidence is ... a matter within the sound
discretion of a trial court.” Mackall, 236 Va. at 254, 372 S.E.2d at
768. We conclude that the circuit court did not abuse its discretion. As
directed by the court, the Commonwealth instructed the jury that the
pillow was not the actual pillow found at the crime scene and that it
was being used for demonstrative purposes. Furthermore, the court also
told the jury that the pillow was not the one found on Mrs. Phillips'
bed. Finally, the Commonwealth's demonstration did not distort the
evidence concerning the manner of Mrs. Phillips' death.
H. AUTOPSY REPORT
Jackson asserts that the circuit court erred in
admitting the autopsy report into evidence and allowing that report to
be given to the jury. When the defendant objected to the introduction of
the report, the court indicated that it would redact any opinion
expressed by the medical examiner in the report. Although Jackson
asserts on brief that the report was admitted into evidence during the
medical examiner's testimony, that factual statement is not accurate.
The defendant cross-examined the medical examiner about his report, but
at no point during his testimony was the autopsy report admitted into
evidence. The report is not marked as an exhibit and is only stamped as
having been filed in both the General District Court and the Circuit
Court of the City of Williamsburg and County of James City.
Although Code § 19.2–188 provides that “[r]eports of
investigations made by the Chief Medical Examiner, his assistants or
medical examiners ... shall be received as evidence in any court or
other proceeding,” the autopsy report concerning Mrs. Phillips was not
admitted into evidence in this case. Thus, this claim has no merit.FN7
FN7. In Fitzgerald v. Commonwealth, 223 Va. 615, 630, 292 S.E.2d 798,
806–07 (1982), we held that the Commonwealth was not required to elect
between introducing an autopsy report or a medical examiner's t
I. SUFFICIENCY OF EVIDENCE
Jackson moved to strike the Commonwealth's evidence
as to guilt on the basis that the evidence was insufficient to prove
that he possessed the willful, premeditated, and deliberate intent to
kill Mrs. Phillips. The defendant asserts that his testimony showed that
the death of Mrs. Phillips was accidental and not premeditated. We do
When the sufficiency of the evidence is challenged on
appeal, we review the evidence in the light most favorable to the
prevailing party at trial, in this case the Commonwealth, and accord to
it all reasonable inferences fairly deducible therefrom. Commonwealth v.
Bower, 264 Va. 41, 43, 563 S.E.2d 736, 737 (2002); Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). We are
obliged to affirm the judgment of the circuit court unless that judgment
is plainly wrong or without evidence to support it. Code § 8.01–680;
Beavers v. Commonwealth, 245 Va. 268, 282, 427 S.E.2d 411, 421 (1993).
When proof of premeditation is the subject of a sufficiency challenge,
evidence showing that the premeditation was only slight or momentary is
sufficient to sustain the conviction. Id. This is so because
“[p]remeditation is an intent to kill that needs to exist only for a
moment.” Green v. Commonwealth, 266 Va. 81, 104, 580 S.E.2d 834, 847
(2003) (citing Peterson v. Commonwealth, 225 Va. 289, 295, 302 S.E.2d
520, 524 (1983)). The question of premeditation is generally a factual
Despite Jackson's self-serving testimony that he did
not smother Mrs. Phillips with a pillow and told Jasper Meekins to stop
doing so, the jury could have concluded, based on the defendant's
confession, that he placed a pillow over Mrs. Phillips face and held it
there for four to six minutes even though she would have become
unconscious within 15 to 30 seconds. That evidence is sufficient to show
that the defendant had a willful, premeditated, and deliberate intent to
kill Mrs. Phillips. See id. Thus, we will not reverse the jury's finding
J. TESTIMONY FROM VICTIM'S SON
Jackson claims that the circuit court abused its
discretion by allowing Mrs. Phillips' son to testify during the
sentencing phase of the trial because he remained in the courtroom after
he testified during the guilt phase in violation of the court's order
sequestering the witnesses. According to the defendant, the son's
presence in the courtroom throughout the trial unduly influenced the
jury. We do not agree.
Pursuant to the provisions of Code § 19.2–265.01, a
victim, which includes Mrs. Phillips' son, see Code § 19.2–11.01(B),
“may remain in the courtroom and shall not be excluded unless the court
determines, in its discretion, the presence of the victim would impair
the conduct of a fair trial.” We cannot say in this case that the court
abused its discretion by allowing Mrs. Phillips' son to remain in the
courtroom after he testified during the guilt phase of the trial. The
court correctly concluded that Mrs. Phillips' son did not learn anything
while he was present in the court that would have changed or affected
his victim impact testimony during the penalty phase. Thus, the
defendant was not prejudiced by the fact that Mrs. Phillips' son
testified during the penalty phase after having heard much of the
testimony during the guilt phase. See Bennett, 236 Va. at 465, 374 S.E.2d
at 314 (a trial court has discretion to decide whether a witness who
violates an order excluding witnesses from the courtroom can testify,
and prejudice to the defendant is one factor to consider when answering
K. ISSUES PREVIOUSLY DECIDED
In assigning error to the circuit court's denial of
the defendant's pretrial motion challenging the constitutionality of
Virginia's capital murder statutes, Jackson presents several reasons why
he contends that the death penalty on its face and as applied violates
the Sixth Amendment, the Eighth Amendment, and the Fourteenth Amendment
to the United States Constitution, as well as Article I, §§ 8, 9, and 11
of the Constitution of Virginia. We have previously rejected these
arguments and find no reason to depart from our precedent.
(1) The aggravating factor of future dangerousness is
unconstitutionally vague because it does not provide meaningful guidance
to the sentencing jury so as to avoid an arbitrary and capricious
infliction of the death penalty—rejected in Bell, 264 Va. at 203, 563
S.E.2d at 716; Lovitt v. Commonwealth, 260 Va. 497, 508, 537 S.E.2d 866,
874 (2000); Smith v. Commonwealth, 219 Va. 455, 476–78, 248 S.E.2d 135,
148–49 (1978). (2) Virginia's capital murder statutes do not require
instructions to the jury regarding the duty to consider mitigating
evidence, the meaning of mitigating evidence, the absence of any burden
of proof on a defendant with regard to the mitigation evidence presented,
and the liberty that each juror has to consider and give effect to
mitigating evidence—rejected in Buchanan v. Angelone, 522 U.S. 269,
275–76, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998); Lovitt, 260 Va. at 508,
537 S.E.2d at 874; Mickens v. Commonwealth, 252 Va. 315, 320, 478 S.E.2d
302, 305 (1996); Joseph v. Commonwealth, 249 Va. 78, 82–83, 452 S.E.2d
862, 865 (1995). (3) The use of unadjudicated conduct to prove the
aggravating factor of future dangerousness fails to comport with the
constitutional requirement of reliability for capital sentencing—rejected
in Bell, 264 Va. at 203, 563 S.E.2d at 716; Satcher v. Commonwealth, 244
Va. 220, 228, 421 S.E.2d 821, 826 (1992); Stockton v. Commonwealth, 241
Va. 192, 210, 402 S.E.2d 196, 206 (1991). (4) A sentence of death under
Code § 19.2–264.5 is unconstitutional because a trial court may consider
hearsay evidence contained in a post-sentence report—rejected in Lenz v.
Commonwealth, 261 Va. 451, 459, 544 S.E.2d 299, 303–04 (2001); Cherrix
v. Commonwealth, 257 Va. 292, 299–300, 513 S.E.2d 642, 647 (1999). (5) A
sentence of death under Code 19.2–264.5 is unconstitutional because a
trial court is not required to set aside a death penalty upon a showing
of good cause—rejected in Chandler v. Commonwealth, 249 Va. 270, 276,
455 S.E.2d 219, 223 (1995); Breard v. Commonwealth, 248 Va. 68, 76, 445
S.E.2d 670, 675–76 (1994). (6) Virginia's death penalty statutes do not
provide for meaningful appellate review, including the proportionality
review—rejected in Emmett v. Commonwealth, 264 Va. 364, 374–75, 569 S.E.2d
39, 46 (2002); Lenz, 261 Va. at 459, 544 S.E.2d at 304; Bailey v.
Commonwealth, 259 Va. 723, 740–42, 529 S.E.2d 570, 580–81 (2000);
Satcher, 244 Va. at 228, 421 S.E.2d at 826. (7) The expedited review of
death penalty cases is unconstitutional—rejected in Morrisette v.
Commonwealth, 264 Va. 386, 398, 569 S.E.2d 47, 55 (2002).
L. ISSUES WAIVED
At oral argument, the defendant indicated that he was
withdrawing assignment of error number 8, that the circuit court “erred
in denying defendant's motion to dismiss capital murder indictment for
failure to allege aggravating elements.” In response to questions from
the Court, he also acknowledged that he was no longer asking the Court
to reverse his conviction on the basis that the circuit court erred by
failing to grant a change in venue, as asserted in assignment of error
number 7. Specifically, defense counsel stated, “We could [seat] a jury....
So to say that venue alone is not what I am seeking in this case for an
error.” Thus, we will not consider these two assignments of error.
Next, we note that the defendant did not brief
assignment of error number 20, that the circuit court “erred in allowing
the prosecutor in his argument during the penalty phase to argue matters
beyond those introduced during that phase of the case.” In accordance
with our precedent, we will not consider this assigned error. See Wolfe
v. Commonwealth, 265 Va. 193, 207, 576 S.E.2d 471, 479 (2003); Kasi v.
Commonwealth, 256 Va. 407, 413, 508 S.E.2d 57, 60 (1998).
III. STATUTORY REVIEW
A. PASSION AND PREJUDICE
Pursuant to the provisions of Code § 17.1–313(C), we
are required to determine whether the defendant's sentence of death was
imposed under the influence of passion, prejudice, or other arbitrary
factors. On this issue, Jackson claims that the jury's verdict fixing
his punishment at death was the result of passion and prejudice because
the circuit court failed to grant a change of venue and because the
court did not strike prospective jurors Reinsberg, Baffer, and Berube
for cause. As already noted, we rejected the substantive issue regarding
those three jurors and did not address the change of venue question
because the defendant withdrew it as a substantive basis for a reversal
of his conviction. We nonetheless have examined both of these issues to
ascertain whether they created an atmosphere of passion and prejudice
that influenced the jury's sentencing decision. We conclude that they
did not do so.FN8 We also find no other indication that the sentence of
death was imposed under the influence of passion, prejudice, or other
arbitrary factors. FN8. We note that a jury was seated with relative
ease in this case. See Thomas v. Commonwealth, 263 Va. 216, 231, 559 S.E.2d
652, 660 (2002) ( “The ease with which an impartial jury can be selected
is a critical element in determining whether the prejudice in the
community stemming from pretrial publicity is so wide-spread that the
defendant cannot get a fair trial in that venue.”)
B. PROPORTIONALITY REVIEW
We are also required to determine whether the
sentence of death in this case is “excessive or disproportionate to the
penalty imposed in similar cases, considering both the crime and the
defendant.” Code § 17.1–313(C)(2). To comply with this statutory
directive, we compare this case with “similar cases” by focusing on
instances where the victim was murdered during the commission of robbery
or rape and the death penalty was imposed based upon the future
dangerousness aggravating factor. The purpose of our proportionality
review is to identify and invalidate the aberrant death sentence. See
Orbe v. Commonwealth, 258 Va. 390, 405, 519 S.E.2d 808, 817 (1999).
Our review in this case leads to the conclusion that
the defendant's sentence of death is not excessive or disproportionate
to sentences generally imposed in this Commonwealth for capital murders
comparable to Jackson's murder of Mrs. Phillips. Although we consider
all capital murder cases presented to this Court for review, see Burns,
261 Va. at 345, 541 S.E.2d at 896–97; Whitley v. Commonwealth, 223 Va.
66, 81–82, 286 S.E.2d 162, 171 (1982), we cite the following cases as
examples: Roach v. Commonwealth, 251 Va. 324, 468 S.E.2d 98 (1996);
Beavers, 245 Va. 268, 427 S.E.2d 411; Yeatts v. Commonwealth, 242 Va.
121, 410 S.E.2d 254 (1991); O'Dell v. Commonwealth, 234 Va. 672, 364 S.E.2d
491 (1988). With regard to the proportionality analysis, the imposition
of the death penalty in Beavers is particularly persuasive because of
the striking similarity between the facts in that case and those
presented here. Both cases involved elderly women who were raped by
their assailant and smothered with a pillow.
For the reasons stated, we find no error in the
judgments of the circuit court or in the imposition of the death penalty.
We also see no reason to commute the sentence of death in this case.
Therefore, we will affirm the judgments of the circuit court.
Jackson v. Kelly, ____F.3d ____, WL
1534571(4th Cir. 2011) (Habeas).
Background: State prisoner filed habeas petition
after his convictions for murder, burglary, robbery, rape, and petit
larceny were affirmed on appeal, 267 Va. 178, 590 S.E.2d 520, and his
state habeas petition was denied, 271 Va. 434, 627 S.E.2d 776. The
United States District Court for the Eastern District of Virginia,
Leonie M. Brinkema, J., 699 F.Supp.2d 838, granted petition in part.
Holdings: The Court of Appeals, Duncan, Circuit Judge,
held that: (1) prisoner's submission of oversized habeas brief to
Supreme Court of Virginia, along with motion to permit extra pages,
constituted “properly filed application”; (2) prisoner would have been
entitled to equitable tolling if his submission did not constitute
“properly filed application”; (3) district court's reliance on evidence
that it had obtained from its own hearing violated Antiterrorism and
Effective Death Penalty Act (AEDPA); (4) Supreme Court of Virginia did
not unreasonably determine that counsel's alleged ineffective assistance
did not have substantial likelihood of affecting outcome of penalty-phase
proceedings; (5) Supreme Court of Virginia was not clearly unreasonable
in determining that prisoner had not “demonstrate[d] how additional
evidence of his good character, such as his love for his grandmother and
his desire that his parents reunite, would have affected the jury's
determination”; (6) prisoner had not been prejudiced by alleged
ineffective assistance of counsel in penalty-phase proceedings of death
penalty case in not presenting expert testimony linking childhood abuse
to adult behavior; (7) counsel did not provide ineffective assistance by
not objecting to lack of specific mitigation instruction; and (8)
deference had to be accorded to supported factual finding by Supreme
Court of Virginia. Reversed.
DUNCAN, Circuit Judge:
In the fall of 2002, a jury found petitioner Jerry
Jackson guilty of breaking into 88–year–old Ruth Phillips's home, raping
her, and smothering her to death with a pillow from her bed. Jackson was
sentenced to death. Jackson's direct and collateral appeals were denied
by the Supreme Court of Virginia. Jackson sought federal habeas relief,
which the district court granted as to his penalty-phase claims
following an evidentiary hearing. The government appealed, urging that
the district court abused its discretion by holding the evidentiary
hearing and that relief was erroneously granted on Jackson's claims that
counsel's development and presentation of mitigation evidence, as well
as his failure to object to alleged instructional error, were
constitutionally deficient. Jackson has cross-appealed, asserting
additional claims arising out of alleged instructional error.
We assess the merits of Jackson's petition under the
deferential standards spelled out in Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and the Anti–Terrorism and
Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254 (“AEDPA”). Our
review is informed by the Supreme Court's recent guidance in Cullen v.
Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011). For
the reasons described below, we conclude that, based on the record
available to the state court that adjudicated Jackson's claims on the
merits, the writ was improvidently granted.
On Sunday, August 26, 2001, 88–year–old Ruth Phillips
did not show up to church. Jackson v. Commonwealth, 267 Va. 178, 590 S.E.2d
520, 524 (2004) ( “ Jackson I ”). Concerned by her absence, Mrs.
Phillips's son tried reaching her by telephone. Id. When there was no
answer, he went to her Williamsburg, Virginia, apartment to check on her.
Id. After letting himself in, he found his mother's body “lying ‘twisted
and exposed’ on a bed in her bedroom.” Id. As he later described it, her
“leg was twisted around, and her pubic region was exposed[; h]er breast
was exposed[; and h]er nightgown was up around her neck.” Id. (alterations
in original). Mrs. Phillips's autopsy showed that she had died of
asphyxia, which “occurs when the brain is without a supply of oxygen for
four to six minutes.” Id. The autopsy also found a bruise on her nose
and lacerations on the exterior and interior of her vagina. Id. A crime
scene investigator recovered a hair from Mrs. Phillips's chest and
another from the bed underneath her stomach; more hairs were found in
the vicinity of her left thigh. Id. Forensic analysis revealed that
several of the hairs were pubic hair that was inconsistent with samples
taken from Mrs. Phillips. Id. These hairs were later found “to be
consistent with [Jackson's] mtDNA to the exclusion of 99.998% of the
population with a 95% degree of confidence.” Jackson v. Warden of the
Sussex I State Prison, 271 Va. 434, 627 S.E.2d 776, 783 (2006) ( “
Jackson II ”).
In December 2001, investigators conducted a
videotaped interview with Jackson. Jackson I, 590 S.E.2d at 524. After
waiving his Miranda rights, he “admitted entering Mrs. Phillips'
apartment, searching through and taking money out of her purse.” Id.
Jackson claimed he did not know Mrs. Phillips was home when he flipped
on the light and began to sift through her purse. Id. As a result, he
was “scared” when Mrs. Phillips, who had been lying in bed, exclaimed:
“What do you want? I'll give you whatever, just get out.” Id. Jackson
acknowledged that when he realized Mrs. Phillips had seen him, “he held
a pillow over her face for two or three minutes and tried to make her
‘pass out’ so she could not identify him” and further “admitted that he
inserted his penis into her vagina while he was holding the pillow over
her face.” Id. at 524–25. Jackson added that after exiting through a
back window, he drove away in Mrs. Phillips's car, which he ultimately
abandoned. Id. at 524–25. He also reported that he used the sixty
dollars he stole from Mrs. Phillips's purse to buy marijuana. Id. at
525. Jackson repeatedly insisted that he had not intended to kill Mrs.
A Virginia grand jury indicted Jackson in March 2002
and charged him, inter alia, with two counts of capital murder for the
premeditated killing of Phillips in the commission of rape or attempted
rape and in the commission of robbery or attempted robbery. Id. at 523.
Jackson's trial was bifurcated into a guilt and a penalty phase. During
the guilt phase, Jackson retreated from his earlier statement to law
enforcement, testifying that he had confessed to investigators because
he believed “that was what [they] wanted to hear” and that an accomplice
had in fact smothered Phillips. Id. at 525. Jackson further “denied
having any knowledge about who raped Mrs. Phillips or about how his
pubic hairs got on her body.” Id. The jury found Jackson guilty of both
capital counts and of various other state crimes. Id. at 523. Following
penalty-phase proceedings—which we discuss in greater detail below—the
jury found a “probability that [Jackson] would commit criminal acts of
violence that would constitute a continuing threat to society” and
recommended a death sentence on both capital counts. J.A. 983–85. In
April 2003 the state circuit court accepted the jury's recommendation
and imposed a death sentence. Jackson appealed his convictions. The
Supreme Court of Virginia affirmed in January 2004. See Jackson I, 590
S.E.2d at 520. The United States Supreme Court declined review. Jackson
v. Virginia, 543 U.S. 891, 125 S.Ct. 168, 160 L.Ed.2d 155 (2004).
On December 3, 2004, Jackson “filed an oversized
habeas petition with the [Supreme Court of Virginia] along with a motion
for leave to exceed the court's 50–page limit.” J.A. 2384. The Supreme
Court of Virginia denied the motion for extra pages and directed Jackson
to file a “corrected petition.” Id. at 1140. Jackson filed an amended
petition on January 4, 2005, alleging fourteen distinct claims of
The Supreme Court of Virginia rejected each of
Jackson's habeas arguments and denied his petition on its merits on
March 24, 2006. See Jackson II, 627 S.E.2d at 780. We briefly review the
state court's analysis of Jackson's claims at issue in this appeal: (1)
that defense counsel FN1 provided constitutionally deficient
representation by failing to interview Jackson's siblings and by failing
to present evidence of Jackson's positive traits; FN2 and (2) that the
participation of two jurors who indicated they would not consider
certain mitigating factors unless instructed to do so—coupled with the
absence of a specific mitigation instruction—constituted constitutional
error on the part of the prosecutor, defense counsel, and the trial
The Supreme Court of Virginia rejected Jackson's
argument that counsel's failure to interview his brother and sister,
Damien and Chandal Jackson, constituted ineffective assistance of
counsel. The court reasoned that Jackson's claim did not satisfy the
“prejudice” prong of the Supreme Court's two-part Strickland test for
constitutionally deficient representation. Jackson II, 627 S.E.2d at 786
(citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). It did not address
whether his claim satisfied the first prong of the test, i.e., whether
“counsel's representation fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052; see also
McHone v. Polk, 392 F.3d 691, 704 (4th Cir.2004) (noting that when a
defendant “fails to demonstrate sufficient prejudice from certain acts
or omissions” a court “need not decide whether counsel's performance in
those respects was, in fact, deficient under Strickland ”).
The court anchored its determination in two related
findings. First, it concluded that counsel had presented ample
mitigation evidence in the form of seventeen mitigation witnesses. The
court noted that the jury had heard “the testimony of physicians,
psychologists, social workers, and a pastor who had treated, evaluated,
and/or counseled [Jackson] and his family, to substantiate that [he] was
the victim of child abuse.” FN3 Jackson II, 627 S.E.2d at 786. The court
also cited counsel's elicitation of testimony from “the police officer
who investigated the charges of child abuse against petitioner's
stepfather and from several of petitioner's neighbors, friends, and
family members, including his mother, father, and stepfather.” Id. at
786–87. In light of this mitigating evidence of Jackson's traumatic
childhood, the court deemed the testimony that would have been offered
by Jackson's siblings “largely cumulative,” FN4 reasoning that it
amounted to mere “anecdotal evidence of specific instances of the abuse
from the perspective of [the] siblings.” Id. at 787.
As a second, related basis for its holding, the court
found that talking to Jackson's siblings would not have altered
counsel's trial strategy. The court cited counsel's “strategic decision
not to call ... Damien [ ] to testify because Damien's successful
transition from the abusive environment into a military career would
have diminished the mitigating effect of [Jackson's] abusive upbringing.”
Id. Observing that counsel was aware of Jackson's abusive background
when he opted not to have Damien testify, the court found no suggestion
in the record that counsel's strategy “would have been altered by
knowing the specific details of the abuse.” Id. As a result, the court
held that Jackson had “failed to demonstrate ... a reasonable
probability that, but for counsel's alleged errors, the result of the
proceeding would have been different.” Id. (citing Strickland, 466 U.S.
at 687, 694, 104 S.Ct. 2052).
The state court also rejected Jackson's claim that
counsel “had failed to adequately investigate and present available
mitigation evidence concerning [Jackson's] good character,” holding that
it satisfied neither prong of the Strickland analysis. Id. With regard
to counsel's performance, the court found that the record of the penalty-phase
proceedings “demonstrate[d] that the jury heard evidence of petitioner's
good qualities, including evidence that petitioner was well-mannered and
cooperative, followed directions, was motivated and ambitious, and had
positive relationships outside of his immediate family environment.” Id.
As for the second prong, the court noted that Jackson had not shown that
“additional evidence of his good character, such as his love for his
grandmother and his desire that his parents reunite, would have affected
the jury's determination,” and, as a result, could not demonstrate
The Supreme Court of Virginia further held that
Jackson's claims arising out of alleged instructional error lacked merit.
It first rejected Jackson's argument that two jurors were not qualified
for service because they “indicated that they would not consider age and
background as mitigation evidence unless the trial court instructed them
to do so” and were not specifically given such an instruction.FN5 Id.
The court found the claim procedurally defaulted, as Jackson had not
raised it at trial or on direct appeal. Id. Jackson's related argument
that the government's failure to request an instruction that emphasized
age and background as mitigation evidence amounted to prosecutorial
misconduct was also deemed defaulted. Id. at 788.
The Supreme Court of Virginia denied on its merits
Jackson's non-defaulted argument that his counsel's failure to request
an age-and-background instruction constituted ineffective assistance of
counsel. Id. at 787. In doing so, the court explicitly rejected
Jackson's underlying assertion that both jurors' qualification had been
“conditioned” upon the delivery of a particular instruction. Id. at 787.
To the contrary, the court explained, “[b]oth jurors were qualified upon
the trial court's determination that they would be fair and impartial.”
Id. As a result, the court reasoned, the failure to request an
instruction could not have been prejudicial. Id. The state court cited
additional reasons why Jackson's claim satisfied neither prong of the
Strickland analysis. It observed that a request by defense counsel for a
particularized instruction “would have been properly refused” under
Virginia law. Id. at 788 (citing George v. Commonwealth, 242 Va. 264,
411 S.E.2d 12, 23 (1991); LeVasseur v. Commonwealth, 225 Va. 564, 304
S.E.2d 644, 661 (1983)). Consequently, the court reasoned, counsel's
omission was not unreasonable. Id. The court further noted that “the
jury was instructed to consider petitioner's history, background, and
mitigating factors,” in the context of its assessment of “whether
petitioner posed a future danger to society.” Id. (emphasis added).
Having rejected these arguments, along with Jackson's
other habeas claims, the Supreme Court of Virginia denied his petition
for relief. The United States Supreme Court again denied certiorari in
January 2007. Jackson v. Kelly, 549 U.S. 1122, 127 S.Ct. 943, 166 L.Ed.2d
The federal district court for the Eastern District
of Virginia granted Jackson a stay of execution in September 2006, and
appointed habeas counsel in early December of that year. On December 11,
2006, Jackson moved for an extension of the deadline for his federal
habeas petition, to a date “not later than April 17, 2007.” J.A. 1310.
Jackson asserted that April 17 was when the statutory one-year
limitation period—which had been tolled by his filing of his state
habeas petition on December 3, 2004—would expire. See 28 U.S.C. §
The court granted an extension to March 16, 2007,
explaining that it did not count the tolling period from December 3,
2004, but instead from January 4, 2005—the date that Jackson filed his
amended petition. The court noted that the Supreme Court of Virginia's
habeas decision had identified January 4 as the date Jackson's petition
was filed. On December 18, 2006, Jackson filed a “Notice,” asserting
once again that the tolling period should be counted from December 3,
2004. Jackson provided his “Notice” to the government, but the
government did not respond. Three days later, on December 21, 2006, the
government filed a motion for reconsideration of the extension to March
16, urging that no extension was warranted. The government made no
mention of Jackson's “Notice” nor did it otherwise address the tolling
period. The court denied the government's motion for reconsideration on
January 19, 2007, reaffirming that Jackson had until March 16 to file
On March 8, 2007, Jackson filed a second motion to
extend the deadline to April 17. Again, the government opted not to
respond. The district court granted the motion the next day, concluding
that Jackson's calculation, which treated December 3, 2004, as the date
his state habeas petition was filed, reflected “a correct statement of
the law.” J.A. 1356. On April 17, 2007, Jackson filed his petition for
federal habeas relief.
Jackson's petition included a request for an
evidentiary hearing, which the court granted on February 28, 2008. The
court's initial order did not specify why the request had been granted
but stated generally that Jackson's mitigation claim “ha[d] not been
adequately developed in the record.” Id. at 1516. In response to a
government motion to reconsider the evidentiary hearing, the court
clarified that the proceeding was warranted because Jackson's filings
“alleged sufficient facts that, if fully established, would entitle him
to relief on two of the 17 claims raised in his federal habeas petition.”
Id. at 1527–28.
The court held the evidentiary hearing on April 30
and May 1, 2008. Nine witnesses testified, including Jackson's siblings
and the two attorneys who had represented Jackson at trial. On August
14, 2008, the court denied Jackson relief as to the guilt phase of his
trial. Some eighteen months later, on March 29, 2010, the court granted
Jackson relief as to the penalty phase, finding that counsel rendered
ineffective assistance by failing to investigate and argue key
mitigation evidence and by failing to challenge the lack of a jury
instruction on age and background. See Jackson v. Kelly, 699 F.Supp.2d
838 (E.D.Va.2010) (“ Jackson III ”). The court recognized “the extremely
deferential standards for collateral review of a state court judgment”
but concluded that the Supreme Court of Virginia had erred by denying
relief. Id. at 843. We review the court's lengthy analysis, which is the
subject of both the government's appeal and Jackson's cross-appeal. In
light of Cullen's admonition that our review is limited “to the record
that was before the state court that adjudicated the claim on the merits,”
131 S.Ct. at 1398, we avoid discussion of the evidence taken in the
federal evidentiary hearing.
The district court first assessed Jackson's claims
that his counsel had provided ineffective assistance at the penalty
phase by failing to (1) interview Jackson's siblings, (2) present
scientific evidence linking childhood abuse to adult behavior, or (3)
present evidence of Jackson's positive traits. The court began with
counsel's failure to interview Jackson's brother and sister. As the
Supreme Court of Virginia had not addressed whether counsel's omission
satisfied the ineffectiveness prong of the Strickland analysis, the
district court assessed that portion of his claim de novo. Id. at 844 (citing
Porter v. McCollum, ––– U.S. ––––, 130 S.Ct. 447, 452, 175 L.Ed.2d 398
(2009)). The court discussed counsel's efforts to develop mitigation
evidence related to Jackson's abusive upbringing. The court noted that
counsel had pursued that goal by “assembl[ing] a collection of Jackson's
medical, social, and educational records, which contained references to
numerous instances of abuse.” Id. It further observed that counsel had
interviewed Jackson, as well as his mother, father, stepfather,
godmother, uncle, cousin, and pastor. Id. at 847–48 & n. 13. While
recognizing the steps that counsel had taken, the court held that
additional research had been warranted. The court rested its conclusion
on the contents of the records counsel had assembled, which it discussed
in some detail.FN6 Id. at 846–47. In doing so, it identified numerous
reports documenting severe abuse and neglect, as well as allegations of
sexual abuse. Id. at 846–47.
The court emphasized, moreover, that the records'
troubling contents reflected only “incomplete, limited snapshots of
Jackson's childhood, documenting only four or five instances of abuse
and providing mental health assessments from a few isolated time periods.”
Id. at 846. Faced with these glimpses into Jackson's background, the
court reasoned, “a reasonable attorney would have realized that a
thorough investigation into Jackson's home life was essential.” Id. at
847. In this regard, the court noted, Jackson's parents were unreliable
sources of information, as Jackson's father and stepfather had been
implicated in incidents of abuse, and his mother had at least tacitly “endorse[d]”
it. Id. at 848.
Against this backdrop, the court held that counsel's
decision not to speak to Jackson's siblings “was a critical and glaring
omission.” Id. at 849. The court observed that both siblings were older
than Jackson and had lived in the same household as Jackson for
significant stretches of his childhood. Id. at 849. As a result, the
court found, both “were the only credible witnesses” regarding the
incidents of abuse documented in the record. Id. In the court's view,
“Damien or Chandal could have offered detail to the reported abuse,
described the nature of Jackson's relationship with his father and
stepfather, or indicated whether there were other unreported problems.”
The court rejected the notion that counsel's
investigation reflected a “strategic choice” to avoid “the jury drawing
unfavorable comparisons between Jackson and his siblings” for two
reasons. Id. First, it found that “counsel did not rely on this
‘strategy’ at trial,” citing instances on direct examination in which
counsel “opened the door” to cross-examination about Damien, as well as
counsel's own comparison of Jackson to his brother in closing argument.
Id. at 849–50. Second, the court concluded that counsel could not have
made a reasonable strategic choice without first speaking to Jackson's
siblings to assess what testimony they could offer. Id. at 850. The
court next reviewed counsel's failure to present expert testimony to
link Jackson's abusive childhood to his adult behavior. Id. at 851. The
court observed that determining whether this omission constituted
ineffective assistance was “difficult,” as counsel's failure to
“discover and present the crucial evidence of Jackson's abusive
childhood” precluded his establishing “the basis for introducing
scientific evidence linking the effects of such a childhood abuse to
adult behavior.” Id. Despite this obstacle, the court found, without
further explanation, that “counsel's ... failure to connect the dots
between childhood abuse and adult behavior must be viewed as yet another
instance of deficient performance under Strickland.” Id. at 851–52. The
court then turned to Jackson's claim that counsel had failed to
investigate and adduce evidence of his positive traits. The court
rejected the Supreme Court of Virginia's factual conclusion that such
evidence had been presented. Id. at 852. It explained that much of the
evidence cited by the state court “consisted of hearsay statements
recited by a psychologist who had never treated Jackson personally, but
read from reports describing Jackson's demeanor during a counseling
session when he was approximately twelve years old.” Id. It also found
that the state court had treated “isolated statements” by a prison guard
and Jackson's mother as positive character evidence. Id. (citing the
guard's statement that he had not had problems with Jackson until a
particular incident and Jackson's mother's testimony that she had been
“able to communicate better and talk more” with Jackson while he was in
The district court deemed the Supreme Court of
Virginia's factual finding “an unreasonable determination of the facts
in light of the evidence,” id. (quoting 28 U.S.C. § 2254(d)(2)),
reasoning that “[t]hese bland, hearsay comments offered no real insight
into Jackson's character or personality,” id. The court further found
that Jackson had shown by “ ‘clear and convincing evidence,’ that no
evidence of his positive traits was ever presented to the jury.” Id. (quoting
28 U.S.C. § 2254(e)(1)). The court also rejected the possibility that
the paucity of positive character evidence presented reflected the
absence of such evidence or a strategy to avoid evidence “inconsistent
with the defense's mitigation theme.” Id. at 852–53.
Having concluded that counsel's performance was
constitutionally deficient in the three respects described above, the
court turned to the prejudice prong of the Strickland analysis. Id. at
854. To assess the impact of counsel's behavior on Jackson's sentence,
the court reviewed the evidence presented at the penalty phase of his
trial. See id. at 855. The court first described the government's
presentation, which it found consisted of testimony from Mrs. Phillips's
son, two prison officers, and “a victim of a burglary Jackson committed
the evening before Phillips was murdered.” Id. The court observed that
the government had introduced evidence of Jackson's “extensive” criminal
history,FN7 but noted that his record “consisted mostly of property
crimes and contempt violations.” Id. at 855. The court did not reference
the evidence of Jackson's rape and murder that the government had
presented to the jury in the penalty phase. See id.
The court then briefly reviewed the testimony of the
seventeen witnesses defense counsel had called during the penalty phase.
Id. at 855–57. These witnesses included: (1) an emergency room doctor
who had examined Jackson when he was eleven; (2) a clinical psychologist
whose associate had evaluated Jackson when he was eleven; (3) a records
custodian from the Newport News Health Department; (4) a child
psychologist who had evaluated Jackson when he was fourteen; (5) a
pediatrician who had examined Jackson when he was fourteen; (6) a
records custodian from the New Horizon Family Counseling Center; (7) a
clinical psychologist who had interviewed Jackson when he was fifteen;
(8) a police officer who investigated an assault and battery on Jackson
by his stepfather when Jackson was eleven; and (9) a social services
official who had investigated multiple allegations of child abuse
against Jackson. Id. at 855–57.
The district court also noted mitigating testimony
from three individuals who had interacted with Jackson and his family
when he was a child: (10) the family's pastor; (11) Jackson's neighbor
and godmother; and (12) Jackson's cousin and godsister. Id. at 857. The
court cited additional testimony from four members of Jackson's family:
(13) Jackson's uncle; (14) Jackson's biological father; (15) Jackson's
stepfather; and (16) Jackson's mother. Id. at 857–58. Jackson himself
was the seventeenth and final mitigation witness. Id. at 858. The court
measured the testimony of these seventeen mitigation witnesses against
the testimony elicited at the evidentiary hearing. See id. at 858–61. In
light of its assessment of that material, the court flatly rejected the
Supreme Court of Virginia's determination that the failure to interview
Jackson's siblings did not satisfy Strickland's prejudice prong. See id.
at 862. It noted that the Supreme Court of Virginia did not hold an
evidentiary hearing and found that the state court erred by deferring to
“trial counsel's premature, uninformed ‘strategic’ choice.” FN8 Id.
The court also rejected the Supreme Court of
Virginia's determination “that the new evidence of abuse proffered by
Jackson was cumulative.” Id. The court emphasized that an assessment of
prejudice arising out of counsel's performance during a capital case's
penalty phase “is not a rote cataloging exercise” to “ensure[ ] that
counsel presented some testimony on each potential area of mitigation.”
Id. at 863. Given its determination that the Supreme Court of Virginia's
inquiry had amounted to such an exercise, the court found that the state
court had unreasonably applied federal law by failing to consider “the
‘entire evidentiary picture’ presented to the jury.” Id. (quoting
Strickland, 466 U.S. at 696, 104 S.Ct. 2052).
In the district court's view, counsel's presentation
amounted to “a parade of ineffective record witnesses,” “contradictory
testimony from character witnesses who reported little or no abuse,” and
“unchallenged testimony” from Jackson's abusers that his problems “were
his own fault.” Id. The court concluded that this evidentiary showing
prejudiced Jackson, id. at 863–64, and that prejudice “was compounded”
by the absence of testimony linking childhood trauma to psychological
development, id. at 864. The court deemed it unnecessary to decide
whether Jackson had shown independent prejudice arising out of the
failure to present evidence of his positive traits, as that omission was
prejudicial when viewed “in combination with” the failure to interview
Jackson's siblings. Id. As a result, the court found habeas relief
warranted on all three of Jackson's claims related to counsel's
development and presentation of mitigation evidence.
The court then addressed Jackson's assertion that
counsel's failure to challenge the lack of a particularized mitigation
instruction amounted to constitutionally deficient representation.FN9 Id.
at 864. The court recounted the colloquies of two jurors at voir dire,
which it concluded showed that “[t]rial counsel and the trial court knew
... that [these] jurors felt that neither age nor troubled background
were mitigating factors.” Id. at 865. The court found that, under these
circumstances, the failure to specifically instruct the jury to consider
age and background in mitigation “tr [od] on the guarantees of the
Eighth Amendment.” Id. In support of its conclusion, it cited the
Supreme Court's admonition that although “[t]he sentencer ... may
determine the weight to be given relevant mitigating evidence,” it “may
not give it no weight by excluding such evidence from ... consideration.”
Id. (quoting Eddings v. Oklahoma, 455 U.S. 104, 114–15, 102 S.Ct. 869,
71 L.Ed.2d 1 (1982)).
The court recognized that “failure to instruct a jury
as to specific mitigating factors is generally not constitutional
error.” Id. at 866 (citing Buchanan v. Angelone, 522 U.S. 269, 278, 118
S.Ct. 757, 139 L.Ed.2d 702 (1998)). Nevertheless, it found that the
“entire context in which the instructions were given,” id. (quoting
Buchanan, 522 U.S. at 278, 118 S.Ct. 757), suggested “a defect of
constitutional proportion,” id. The court cited three factors as
creating a “context” in which a particularized instruction was mandated:
the two jurors' responses during voir dire, the fact that Jackson was
twenty years old when he raped and murdered Mrs. Phillips, and the
evidence of Jackson's abusive background presented during mitigation. Id.
The court rejected the Supreme Court of Virginia's
conclusion that Jackson's claim of instructional error did not satisfy
the first prong of the Strickland analysis. The court noted that the
state court's finding that counsel's performance was reasonable relied
on its conclusion that the trial court would have “properly refused” any
request for a particularized instruction. Id. at 867 n. 31 (quoting
Jackson II, 627 S.E.2d at 787). The court found this assessment so
unsupported by the record as to not merit AEDPA deference. Id. at 867 (citing
Uttecht v. Brown, 551 U.S. 1, 20, 127 S.Ct. 2218, 167 L.Ed.2d 1014
(2007)). The court cited the trial court's statement that jurors would
consider age “when they're told it's a factor” as indisputable evidence
that the trial court appreciated “the need for a clarifying instruction,”
and would have provided one if asked to do so. Id. The court similarly
rejected the Supreme Court of Virginia's determination that the future
dangerousness instruction's charge to jurors to consider Jackson's
history and background precluded a finding of prejudice on Strickland's
second prong, finding the court's reasoning “contrary to” Supreme Court
caselaw. Id. at 867–68. (citing Penry v. Lynaugh, 492 U.S. 302, 323–24,
109 S.Ct. 2934, 106 L.Ed.2d 256 (1989)).
Having rejected the Supreme Court of Virginia's
Strickland analysis, the court conducted its own assessment of whether
counsel's failure to request a “proper instruction” constituted
ineffective assistance of counsel. See id. at 866. On the first prong,
the court held that counsel's behavior was objectively unreasonable, as
counsel had conceded that his failure to challenge the instructions was
not a strategic choice and counsel “was unquestionably aware” of at
least one juror's need for a specific instruction. Id. at 866–67. With
regard to the second prong, the court cited the “clear constitutional
mandate that the jury consider age and troubled background” in
mitigation, as well as “the specific voir dire in this case” as showing
“a strong likelihood” that the trial court would have provided a
specific mitigation instruction “had counsel only asked for it.” Id. at
867. On the basis of these findings, the court found habeas relief
warranted on this claim as well. Id.
In light of its determination that penalty-phase
relief was appropriate on several of Jackson's claims, the district
court vacated his death sentence. Id. at 870. In April of 2010 the
government filed notice of appeal. Jackson filed notice of cross-appeal
on May 3, 2010. On August 6, 2010, the district court denied Jackson a
certificate of appealability, holding that he had not shown that
Virginia courts' resolution of those claims “was debatable or wrong.”
J.A. 2510. We granted Jackson a certificate of appealability for his
cross-appeal claims on November 4, 2010.
Before turning to the substantive claims on appeal
and cross-appeal, we address two procedural arguments made by the
government: (1) that Jackson's federal habeas petition was barred by the
statute of limitations and (2) that the district court abused its
discretion by holding an evidentiary hearing. FN10 We conclude that
Jackson's federal habeas petition was not time barred, but that the
district court erred by relying on evidence it obtained from its own
hearing when assessing Jackson's mitigation-related Strickland claims,
which had been adjudicated on their merits by the Supreme Court of
The government argues that Jackson's federal habeas
petition was time-barred, urging that the district court's grant of an
extension to April 17, 2007 erroneously extended Jackson's filing
deadline beyond the one-year statutory deadline. See 28 U.S.C. §
2244(d)(1). The government concedes that the statute of limitations is
tolled during the period in “which a properly filed application for
State post-conviction or other collateral review ... is pending.” Id. §
2244(d)(2). However, it urges that Jackson's oversized brief, which he
submitted on December 3, 2004, did not constitute a “properly filed
application.” Counting from January 4, 2005, the date that Jackson's
corrected petition was filed, the government argues that the statute of
limitations expired on March 16, 2007. We disagree.
Jackson's submission of an oversized habeas brief and
a motion to permit the extra pages to the Supreme Court of Virginia
constituted “delivery and acceptance ... in compliance with the
applicable laws and rules governing filings.” Artuz v. Bennett, 531 U.S.
4, 8, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000). Jackson's initial petition
was neither rejected nor dismissed by the Supreme Court of Virginia.
Jackson was instead directed to file a “corrected petition” in a timely
manner. J.A. 1140. The Supreme Court of Virginia's emphasis on
“correction” indicates to us that the requested alteration constituted
an amendment to Jackson's initial filing.
In any event, it is apparent from the record that
Jackson relied on the federal district court's grant of an extension to
April 17, 2007 when timing the submission of his federal habeas brief.
Significantly, the government raised no objection to Jackson's statute-of-limitations
calculations prior to that deadline, nor did it otherwise suggest that
Jackson's federal habeas petition should be time-barred. Even if the
government were correct that Jackson's oversized petition was not
“properly filed,” under these circumstances, Jackson would undoubtedly
be entitled to equitable tolling. See Green v. Johnson, 515 F.3d 290,
304 (4th Cir.2008) (noting that equitable tolling is appropriate when
“due to circumstances external to the party's own conduct—it would be
unconscionable to enforce the limitation period against the party and
gross injustice would result”).
The government also urges that the district court
erred by holding an evidentiary hearing. We consider that argument in
light of the Supreme Court's recent delineation of such hearings'
limited role in federal habeas proceedings.
In Cullen v. Pinholster, the Supreme Court clarified
that AEDPA limits federal habeas review “to the record that was before
the state court that adjudicated the claim on the merits.” 131 S.Ct. at
1398. In other words, when a habeas petitioner's claim has been
adjudicated on the merits in state court, a federal court is precluded
from supplementing the record with facts adduced for the first time at a
federal evidentiary hearing. See id. at 1399 (“It would be strange to
ask federal courts to analyze whether a state court's adjudication
resulted in a decision that unreasonably applied federal law to facts
not before the state court.”). The district court did not have the
benefit of Cullen's guidance when it determined that a hearing was
warranted because Jackson had “alleged sufficient facts that, if fully
established, would entitle him to relief on two of the 17 claims raised
in his federal habeas petition.” J.A. 1527–28. It is now clear, however,
that the court's reliance on material developed at the federal
evidentiary hearing was at odds with AEDPA's placement of “primary
responsibility [for habeas review] with the state courts,” and
illustrated the difficulties inherent in “allow[ing] a petitioner to
overcome an adverse state-court decision with new evidence introduced in
a federal habeas court and reviewed by that court in the first instance
effectively de novo.” Cullen, 131 S.Ct. at 1399. Mindful that “evidence
introduced in federal court has no bearing on § 2254(d)(1) review,” id.
at 1400, we proceed to assess Jackson's petition on the basis of the
facts contained in the state-court record.
We turn to the standards by which we evaluate the
merits of the issues before us on appeal and cross-appeal. Our review is
bounded by the familiar contours of AEDPA deference, which, as recently
reinforced by the Supreme Court's unanimous decision in Harrington v.
Richter, ––– U.S. ––––, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011), helps to
ensure “confidence in the writ and the law it vindicates.” Id. at 780.
We may grant habeas relief on claims adjudicated on their merits in
state court only if that adjudication resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States or resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding. Appleby v. Warden, 595 F.3d
532, 535 (4th Cir.2010) (internal quotations omitted) (citing 28 U.S.C.
A state court's holding is “contrary to” clearly
established federal law “if the state court arrives at a conclusion
opposite to that reached by th[e Supreme] Court on a question of law” or
“confronts facts that are materially indistinguishable from a relevant
Supreme Court precedent and arrives at” an opposite result. Lewis v.
Wheeler, 609 F.3d 291, 300 (4th Cir.2010) (quoting Williams v. Taylor,
529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). By contrast,
a “state court unreasonably applies federal law when it ‘identifies the
correct governing legal rule from th[e] Court's cases but unreasonably
applies it to the facts of the particular ... case,’ ” or “unreasonably
extends a legal principle from [the Court's] precedent to a new context
where it should not apply or unreasonably refuses to extend that
principle to a new context where it should apply.” Id. at 300–01 (quoting
Williams, 529 U.S. at 407, 120 S.Ct. 1495) (alterations in original). In
short, to obtain federal habeas relief, “a state prisoner must show that
the state court's ruling on the claim being presented in federal court
was so lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington, 131 S.Ct. at 786–87; see also Schriro v.
Landrigan, 550 U.S. 465, 474, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) (noting
that on AEDPA review, the pertinent question “is not whether a federal
court believes the state court's determination was incorrect but whether
that determination was unreasonable—a substantially higher threshold”).
To demonstrate ineffective assistance of counsel,
Jackson must show “that counsel's performance was deficient, and that
the deficiency prejudiced the defense.” Wiggins v. Smith, 539 U.S. 510,
521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (citing Strickland, 466 U.S.
at 687, 104 S.Ct. 2052). This two-part analysis presents a “high bar” to
petitioners, and we must assess their efforts to surmount it with
“scrupulous care, lest intrusive post-trial inquiry threaten the
integrity of the very adversary process the right to counsel is meant to
serve.” Harrington, 131 S.Ct. at 788 (internal quotations omitted).
Even if Jackson could satisfy the “difficult standard”
of Strickland's first prong, James v. Harrison, 389 F.3d 450, 457 (4th
Cir.2004), he would still be required to show prejudice. In a capital
case, “the prejudice inquiry centers on ‘whether there is a reasonable
probability that, absent [counsel's] errors, the sentencer ... would
have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.’ ” Williams v. Ozmint, 494 F.3d
478, 484 (4th Cir.2007) (quoting Strickland, 466 U.S. at 695, 104 S.Ct.
2052) (alterations in Ozmint ). Such a showing “requires a substantial,
not just conceivable, likelihood of a different result.” Cullen, 131
S.Ct. at 1403 (internal quotations omitted). When making this
determination we review the “totality of the evidence before the ...
jury.” Ozmint, 494 F.3d at 484.
Against the backdrop of these highly deferential
standards we proceed to the issues before us. We begin with the
government's challenge to the grant of federal habeas relief on
Jackson's mitigation-related claims. We then turn to the government's
appeal of the district court's grant of relief on Jackson's claims of
instructional error and to Jackson's related claims on cross-appeal. For
the reasons described below, we conclude the writ was improvidently
Like the Supreme Court of Virginia, we bypass whether
defense counsel's performance was deficient and proceed directly to the
prejudice prong of the Strickland analysis. See Strickland, 466 U.S. at
688, 104 S.Ct. 2052; see also McHone, 392 F.3d at 704. We conclude that
the state court's finding that Jackson had not shown prejudice arising
from any alleged mitigation-related deficiencies was not “clearly
unreasonable” and that the district court erred by holding otherwise.
We first address Jackson's claim that counsel's
failure to interview his siblings had a substantial likelihood of
affecting the outcome of penalty-phase proceedings. Given the array of
evidence of childhood abuse presented to the jury, nothing in the state-court
record shows that the Supreme Court of Virginia unreasonably determined
that the failure to develop and present testimony from Jackson's
siblings did not constitute Strickland prejudice.
As described above, counsel called seventeen
mitigation witnesses, including nine professionals, many of whom had
treated or worked with Jackson when he was a child, five family members,
Jackson's godmother, the family's pastor, and Jackson himself. These
mitigation witnesses' testimony shed considerable light on Jackson's
traumatic childhood. For instance, in response to probing inquiries from
counsel, the social worker who had researched multiple instances of
Jackson's childhood abuse read an account of her investigation
suggesting that Jackson and his brother had been “outright raped.” J.A.
899. The jury also heard record evidence that Jackson's stepfather
harangued him in the midst of counseling sessions, stating that “he
hate[d] him and that [Jackson wa]s evil.” Id. at 825. These are just two
of many, striking examples of physical and emotional abuse presented to
the jury at the penalty phase.FN11
Even the district court's selective summary FN12 of
the proceedings at trial illustrates the severity of the accounts of
abuse presented to the jury in mitigation. See Jackson III, 699 F.Supp.2d.
at 855–58. Testimony from Jackson's trial recounted by the district
court included descriptions of Jackson suffering a broken arm when he
was less than two years old (an injury which neither of his parents
could explain); being sexually assaulted; receiving medical treatment on
multiple occasions for severe bruising; finding himself locked out of
his apartment by his biological father at a young age; being struck with
a belt; enduring a beating in the eye and chest with a large stick; and,
on at least one occasion, having to strip naked and perform exercises
before being beaten. See Jackson III, 699 F.Supp.2d. at 855–58. The
district court also cited testimony that Jackson's father “had a
reputation for alcohol consumption” and that his stepfather had been
criminally prosecuted for child abuse, which resulted in a suspended
sentence, a protective order, and mandatory counseling. Id.
Against the backdrop of this mitigation evidence, the
Supreme Court of Virginia supportably found that the testimony described
in Jackson's siblings' affidavits would have been “largely cumulative”
of material already before the jury, as they amounted to “anecdotal
evidence of specific instances of the abuse from the perspective of [Jackson's]
siblings.” Jackson II, 627 S.E.2d at 787. As a result, the state court
reasoned, the failure to develop and present Jackson's siblings as
witnesses was not substantially likely to have affected the outcome of
penalty-phase proceedings. Given the breadth and depth of evidence of
childhood abuse provided to the jury, we cannot say that determination
was clearly unreasonable. See Harrington, 131 S.Ct. at 791.
We also see no basis on which to conclude that
counsel's alleged failure to present positive character evidence
prejudiced Jackson. The district court's contrary finding reflected a
lack of deference to the Supreme Court of Virginia's threshold factual
conclusion “that the jury heard evidence of [Jackson's] good qualities.”
Jackson II, 627 S.E.2d at 787. The district court's dismissal of the
statements on which the Supreme Court of Virginia relied as “bland,
hearsay comments,” which “offered no real insight into Jackson's
character or personality,” Jackson III, 699 F.Supp.2d at 852,
constituted an assessment of the potency of the positive mitigation
evidence rather than the existence of such evidence. Put otherwise, the
bare insistence that the positive statements cited by the Supreme Court
of Virginia did not constitute “genuine” evidence was far from a
refutation by clear and convincing evidence of the Supreme Court of
Virginia's factual conclusion. See 28 U.S.C. § 2254(e)(1). Although it
invoked AEDPA's language, the district court did not give that standard
sufficient “operation or function in its reasoning.” Harrington, 131
S.Ct. at 787.
More fundamentally, the district court's “reweigh[ing
of] the evidence in aggravation against the totality of available
mitigating evidence,” was conspicuously one-sided. Wiggins, 539 U.S. at
534, 123 S.Ct. 2527; see also Emmett v. Kelly, 474 F.3d 154, 170 (4th
Cir.2007). Specifically, the district court failed to mention
considerable evidence regarding the horrific circumstances of Jackson's
rape and murder of Mrs. Phillips. This omission was particularly
striking in light of the government's careful emphasis on the disturbing
details of Jackson's crimes at closing.
The troubling circumstances highlighted by the
government included the fact that Jackson intruded upon the “sanctity of
[Mrs. Phillips's] home,” despite the fact that her car was parked
outside; that he had entered through a window that she had left “open
just a little bit so she did not have to use [her] air conditioner, so
she could save some money,” J.A. 960; that he ignored her plea to take
what he wanted and leave; that after raping and murdering her, he
absconded with her car; that he left his victim with her dress pulled up
and her body grotesquely twisted; and that he used the money he took
from her purse to buy drugs.
The government also pointedly emphasized Jackson's
own testimony during the guilt phase, noting that his retreat from his
earlier videotaped statement “absolutely showed no remorse.” Id. at 961.
The government further observed that Jackson “had the audacity” to claim
that Mrs. Phillips had not been raped and to attempt to shift blame to
his alleged accomplices. Id. at 961–62. This body of aggravating
evidence only reinforces our determination that the Supreme Court of
Virginia was not clearly unreasonable in determining that Jackson had
failed “to demonstrate how additional evidence of his good character,
such as his love for his grandmother and his desire that his parents
reunite, would have affected the jury's determination.” Jackson II, 627
S.E.2d at 787.  Finally, we turn to Jackson's assertion that counsel
failed to present expert testimony linking childhood abuse to adult
behavior. The Supreme Court of Virginia did not address this claim, see
supra n. 2, and the district court declined to make an independent
finding of prejudice arising from the absence of psychological testimony,
see Jackson III, 699 F.Supp.2d at 864. In light of the balance of
aggravating and mitigating evidence discussed above, we are unconvinced
that such expert testimony would have yielded “a ‘substantial’ ...
likelihood of a different result.” Cullen, 131 S.Ct. at 1403 (quoting
Harrington, 131 S.Ct. at 791). In sum, we find that even if counsel's
development and presentation of mitigation evidence was deficient, any
deficiencies did not amount to prejudice under Strickland's second prong.
The remaining claims on which the district court
granted relief, as well as Jackson's claims on cross-appeal, all involve
alleged instructional error, arising out of the trial court's failure to
specifically instruct the jury on particular mitigating factors. We
begin with the claim on which habeas relief was granted, i.e., that
counsel's failure to object to the lack of a specific mitigation
instruction constituted constitutionally deficient representation. As
this argument was adjudicated on a complete factual record in state
court, we review it through the “doubly” deferential lens of AEDPA and
Strickland, Cullen, 131 S.Ct. at 1403; Harrington, 131 S.Ct. at 788, and
conclude that it lacks merit.
We briefly recount the disputed jurors' colloquies at
voir dire. Juror Dana Metheny initially responded “No” when asked by
defense counsel whether she would “be able to consider the age of Mr.
Jackson in making a decision on whether to impose life without the
possibility of parole, or death.” J.A. 639. She repeated her answer
after counsel clarified that the question was whether she would consider
“age or any other evidence that we may put before you if we so elect ...
in mitigation that you may consider; family, doctors, past, the way he
grew up.” Id. at 639–40. However, she repeatedly responded “Yes” when
asked if she would consider such issues if instructed to do so by the
court. E.g., id. (“If the Court tells you to consider issues in
mitigation, such as age, such as background, such as family, such as
psychological or psychiatric issues, would you consider those issues in
mitigation before you voted for death?” “Yes.”).
Juror Wendy Berube expressed similar reluctance to
consider age as mitigating evidence. When asked whether she would
consider factors in mitigation, she responded “Yes. I mean, I would
consider everything,” adding “I don't think that age matters, if that is
what you're asking.” Id. at 665–66 (emphasis added). When queried “If
the Court instructs you age matters, would you then consider it?” she
responded “Yes.” Id. at 666. She gave the same response when asked if
she would “follow the Court's instructions?” Id. In deeming both jurors
qualified to serve, the trial court stated: “They don't know whether [age
is] a factor for them to consider or not ... [B]ut when they're told
that it's a factor they must consider or they should consider, not what
weight they'd give to it, they all agree that they'll consider it.” Id.
at 671.  The district court's grant of habeas relief was anchored in
its reading of the jurors' colloquies and the trial court's statement as
a clear indication that neither juror was qualified to serve unless they
were “specifically instructed” to consider various types of mitigation
evidence. Jackson III, 699 F.Supp.2d at 866. However, the Supreme Court
of Virginia supportably found that the “contention that qualification of
these jurors was ‘conditioned’ upon the giving of a specific instruction
is not supported in fact or in law.” Jackson II, 627 S.E.2d at 788.
Neither the district court's analysis nor Jackson's argument on appeal
shows that the state court's conclusion was clearly unreasonable. As a
result, AEDPA mandates that we defer to the state court's
Both jurors plainly expressed their willingness to
consider any and all mitigation evidence if instructed to do so by the
judge. The trial court provided just such an instruction, admonishing
the jury that “in determining the appropriate punishment you shall
consider any mitigation evidence presented of circumstances which do not
justify or excuse the offense but which in fairness or mercy may
extenuate or reduce the degree of moral culpability and punishment.” J.A.
617 (emphasis added).
Significantly, both age and background had been
expressly presented to the jury by defense counsel as mitigating factors.
We have already described counsel's argument that Jackson's traumatic
childhood should be weighed in mitigation. Counsel also specifically
emphasized Jackson's relative youth at the time he committed the rape
and murder. See, e.g., Id. at 972 (“[Y]ou have a videotape back there [of
Jackson's confession] ... [W]atch that 19–year–old kid talk.”); id. at
973 (“Life for a 20–year–old man without the possibility of parole. Ever.
That's what we ask.”). More fundamentally, there is simply no factual or
legal basis for the district court's apparent assumption that either
juror was “conditionally” qualified and that a specific mitigation
instruction was therefore constitutionally mandated. Tellingly, in his
brief and at oral argument, Jackson could not cite a single case in
which such conditional qualification had been recognized. Nor were we
able to find one. As the Supreme Court of Virginia found, “[b]oth jurors
were qualified upon the trial court's determination that they would be
fair and impartial.” Jackson II, 627 S.E.2d at 788; see also Bell v.
Cone, 543 U.S. 447, 456, 125 S.Ct. 847, 160 L.Ed.2d 881 (2005) (noting
“the presumption that state courts know and follow the law” (internal
quotation omitted)). Nothing more was required.
By the same token, the district court's reliance on
cases in which factfinders declined to give any consideration to
mitigating evidence was misplaced. As explained above, there is no
evidence here that either of the jurors refused to consider such
evidence following the trial court's instruction. Cf. Morgan v.
Illinois, 504 U.S. 719, 736, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992) (discussing
jurors who “obviously deem mitigating evidence to be irrelevant to their
decision to impose the death penalty”); Eddings v. Oklahoma, 455 U.S.
104, 113, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (noting trial judge's
erroneous conclusion that “ as a matter of law he was unable even to
consider the [mitigating] evidence” of defendant's family history). Both
jurors stated that they would listen to an instruction to consider
mitigating evidence; they were ultimately admonished to do just that.
Absent any indication that the Supreme Court of Virginia's analysis was
clearly unreasonable, counsel's failure to object to the lack of a
specific mitigating instruction cannot support a claim for habeas relief.
For the same reasons, Jackson's claims on
cross-appeal lack merit. Jackson argues that (1) Juror Berube should not
have been seated in the first place because she would not consider age
as a mitigating factor, (2) both disputed jurors were rendered unfit for
service when no specific instruction was given and the trial court erred
by not removing them on its own motion, and (3) defense counsel's
failure to move to strike the jurors when a specific mitigating
instruction was not provided was unreasonable. However, as the Supreme
Court of Virginia supportably found, the jurors' service was not “conditional.”
Any concerns the jurors expressed were adequately addressed by the
general mitigation instruction.
For the foregoing reasons we reverse the district
court's grant of habeas relief in this case. REVERSED
FN1. Jackson was represented at trial by two
attorneys, Patrick Kelley and Andrew A. Protogyrou. Jackson v. Kelly,
699 F.Supp.2d 838, 843 n. 6 (E.D.Va.2010) (“ Jackson III ”). All
references to defense counsel with respect to the penalty phase of
Jackson's trial are to Protogyrou, who was responsible for that portion
of the trial.
FN2. As part of his claim that counsel's development
and presentation of mitigation evidence was constitutionally deficient,
Jackson's state-court habeas petition also asserted that counsel failed
to present expert evidence about the impact of childhood abuse on
development. The Supreme Court of Virginia did not explicitly address
this point, which Jackson again raised in his federal habeas petition.
FN3. The court discussed this testimony in detail,
noting that it included information that petitioner's stepfather
received a suspended jail sentence for physically abusing petitioner;
hospital and doctor's office records indicating petitioner had been
physically disciplined with a belt resulting in lasting bruises; records
that petitioner had suffered various fractures of unknown origin to his
extremities; that petitioner often appeared bruised; that reports of
abuse were made to the James City County Department of Social Services
and that twice the abuse was determined to be “founded;” that petitioner
was allowed to drink beer as a young child; that petitioner and his
stepfather had a bad relationship and that, even during counseling,
petitioner's stepfather constantly berated petitioner by calling
petitioner “evil;” that petitioner's “problems were compounded by the
weakness of [his] parental subsystem” and lack of “material resources”
which required petitioner to be left unsupervised; that petitioner's
family did not follow through with counseling or recommendations; and
that on at least one occasion, petitioner had been sexually abused.
Jackson II, 627 S.E.2d at 786.
FN4. Jackson's habeas petition included an eight-page
affidavit from Damien Jackson and a five-page affidavit from Chandal
Jackson, which detailed the testimony they would have offered at trial.
FN5. We provide additional detail on the jurors'
statements below in the context of our discussion of Jackson's claims of
alleged instructional error.
FN6. The court summarized the records that it
concluded “should have prompted further investigation” as follows (all
citations are to the joint appendix that was before the district court):
[A] report generated after a particularly severe beating by Tim Knight [Jackson's
stepfather], when Jackson was twelve years old, notes, “There is a
previous history of abuse by [redacted] and this incident appears to be
much more severe. In addition, neither of the victims reported the
abuse; Jerry's injuries were discovered by accident and he was reluctant
to cooperate with the investigation.” Id. at 539. The “planned,
calculated” nature of that incident also leads to the conclusion that
more abuse was occurring: “Both boys indicated that [redacted] made them
strip naked and exercise so that they would be too tired to run from him
during their punishment; [redacted] then beat both of them with his belt
while they were naked.” Id. at 625, 538. Another report of the same
incident states: “This is the 3rd incident of known physical abuse of
Jerry by Mr. Knight and the 1st resulted in maiming charges,” Id. at 625
(emphasis in original), and estimating “the likelihood of reoccurance
[sic] [is] high. The children did not report the abuse, & Jerry was
afraid to cooperate w/ DSS. They appeared to accept their parents'
decision that they deserved the beatings.” Id. Another report contains a
passing reference to a beating with a two-by-four. Id. at 617. A report
made when Jackson was nine years old states, “Worker asked if similar
incidents had occurred & he stated that about two weeks earlier he had
gotten his [redacted].” Id. at 670. A social worker later wrote of
Jackson, then age thirteen, “I get the impression that Jerry has been
physically beaten by all the adults in his life, starting with his
natural father.” Id. at 533. Another record notes that Jackson's mother
and stepfather “seem[ed] to be confused about how to handle Jerry, since
the Court has mandated that Tim cannot use physical punishment.” Id. at
The records also contain indications of serious
neglect at an early age, which should have been explored further. See,
e.g., id. at 652 (A police report from 1988, when Jackson was seven
years old, states “neighbors called the police when they found 2
children huddled in the stairwell—not the first time.... [redacted]
locked them out of the apt.”); id. at 2729 (referring to Jackson's “weak
parental subsystem”); id. at 2677–79 (referring to “lack of parental
attention”); id. at 2769 (referring to Jackson feeling “loss and
The records in counsel's possession also contained
leads to other types of mitigation evidence. One report, for instance,
contains a reference to Jackson “drinking alcohol” at age twelve, id. at
619, another to an allegation of sexual abuse by a relative, id., and
another to an unexplored allegation that Jackson, at age seven, had been
“outright raped” by a visitor at his grandmother's house. Id. at
2799–2800. These pieces of information, together with Jackson's report
to his attorney (reflected in counsel's notes) that someone forced
Jackson and his brother to masturbate in front of them, Tr. at 237
(“Made him + brother masturbate in front of him.”), that he was
“molested for years”, id. at 236, and that his brother was raped by an
uncle while Jackson hid in the closet fearing he would be raped next, id.
at 357, indicate the likely existence of a wealth of mitigating evidence
completely unexplored by trial counsel. Those records also document that
Damien would have direct knowledge of the abuse because he was
referenced in the reports as well. Jackson III, 699 F.Supp.2d at 846–47
(alterations in original and footnote omitted). The court also cited
“passing references to diagnosable depression.” Id. at 847. FN7. The
government introduced “18 orders showing Jackson's convictions or
adjudications of delinquency for such offenses as grand larceny, petit
larceny, trespassing, drug possession, receiving stolen property,
contempt of court, identity fraud, statutory burglary, credit card theft,
and obtaining money under false pretenses.” Jackson, 590 S.E.2d at 525.
FN8. The court reasoned in particular that the state
court had mistakenly viewed as dispositive its determination that
speaking with Jackson's siblings would not have altered counsel's
strategy. Id. (citing Jackson II, 627 S.E.2d at 786–87). The court
observed that, under the Supreme Court's standard articulated in Wiggins
v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), the
pertinent “question is not whether, subjectively, Jackson's own counsel
would have introduced the evidence,” but instead “whether, objectively,
‘a competent attorney, aware of this evidence, would have introduced it.’
” Id. (emphasis added) (quoting Wiggins, 539 U.S. at 535, 123 S.Ct.
2527). As a result, it deemed the state court's analysis “contrary to,
and an unreasonable application of, Wiggins.” Id.
FN9. We do not summarize the district court's
analysis of Jackson's second claim of instructional error, which
challenged counsel's failure to ask the district court to clarify for
the jury that mitigation factors need not be unanimously found. Jackson
has abandoned this argument, in light of the Supreme Court's decision
that relief on this issue is foreclosed on collateral review. See
Appellee's Br. at 69 (citing Smith v. Spisak, –––U.S. ––––, 130 S.Ct.
676, 684, 175 L.Ed.2d 595 (2010)).
FN10. Because we hold that the writ was improvidently
granted, we bypass the government's argument that some of the claims on
which the district court granted relief were procedurally defaulted.
FN11. The district court noted that this disturbing
language appeared in the written records assembled by counsel; indeed,
it cited these two statements as data reviewed by counsel that should
have prompted further investigation. Jackson III, 699 F.Supp.2d at 847.
However, the court failed to mention that these same accounts were read
to the jury. In summarizing the witnesses' presentations of these
reports, the court blandly alluded to the former incident as an alleged
sexual assault and to the latter as “verbal[ ] abus[e].” Id. at 856–57.
FN12. The district court's minimization of the
potency of mitigation evidence at trial is notably illustrated by its
assertion that the trial court “warned” defense counsel about the
dryness of his evidence. See Jackson III, 699 F.Supp.2d at 845. The
pertinent statement was not a “warning.” It was instead offered as a
rationale for continuing with mitigation witnesses after counsel noted
that Jackson had not taken his medication, which Jackson explained
“help[ed him] to stay awake.” J.A. 887. The trial court noted that he
had seen Jackson “looking down and looking around,” but reasoned that
such behavior was understandable given the nature of the witnesses'
testimony. J.A. 888.
FN13. The district court erred when it declined to
afford such deference to the state court's fact finding. Jackson III,
699 F.Supp.2d at 853. The Supreme Court of Virginia found that any
request for a specific instruction “would have been properly refused.”
Jackson II, 627 S.E.2d at 788. In support of its holding the state court
cited Virginia precedents illustrating the appropriateness of general
instructions. See id.; see also Gray v. Commonwealth, 233 Va. 313, 356
S.E.2d 157, 178 (1987) ( “[F]ailure to list mitigating factors inures to
the benefit of a defendant.”); LeVasseur v. Commonwealth, 225 Va. 564,
304 S.E.2d 644, 661 (1983) (“We have repeatedly held that an instruction
is improper which singles out one portion of the evidence for special
This body of caselaw may be why the trial court did
not present an itemized instruction on its own initiative. In any event,
Virginia precedent on this point, as well as the trial court's decision
to proceed with a general instruction, provided sufficient support for
the state court's determination so as to warrant AEDPA deference.
Jerry Terrell Jackson
Jerry Terrell Jackson
Ruth W. Phillips, 88