PRESENT: All the Justices 

ROBIN MCKENNEL LOVITT 

v. Record No. 012663 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 September 12, 2003 

WARDEN, SUSSEX I STATE PRISON 

UPON A PETITION FOR A WRIT OF HABEAS CORPUS 

 The petitioner, Robin M. Lovitt, was convicted by a jury of 

the capital murder of Clayton Dicks in the commission of 

robbery, in violation of Code § 18.2-31, and of robbery, in 

violation of Code § 18.2-58. The circuit court sentenced Lovitt 

in accordance with the jury verdict to death for capital murder 

and to life imprisonment for robbery. We affirmed the circuit 

court's judgment in Lovitt v. Commonwealth, 260 Va. 497, 520, 

537 S.E.2d 866, 881 (2000), cert. denied, 534 U.S. 815 (2001). 

 Under Code § 8.01-654, Lovitt filed a petition for a writ 

of habeas corpus against the warden of the Sussex I State Prison 

(the warden). Lovitt alleged, among other things, that the 

destruction of certain trial exhibits after his convictions were 

affirmed by this Court violated his right of due process by 

preventing adequate review of his habeas corpus petition. He 

also alleged that the prosecution suppressed exculpatory 

evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), 

and that he was denied effective assistance of counsel at trial. 

We entered an order directing that the Circuit Court of 

Arlington County (the circuit court) conduct an evidentiary 
hearing under Code § 8.01-654(C) concerning all issues raised in 

Lovitt's habeas corpus petition. The circuit court conducted an 

evidentiary hearing (habeas hearing) pursuant to our order and 

submitted a written report stating its findings of fact and 

recommended conclusions of law.1 See Code § 8.01-654(C)(3). 

I. FACTS 

 In Lovitt, we stated in detail the facts relating to the 

convictions and penalties imposed on Lovitt for the capital 

murder and robbery charges. 260 Va. at 502-08, 537 S.E.2d at 

870-73, 879. We will recite those facts from our previous 

opinion that are relevant to the present habeas corpus 

proceedings: 

[I]n the early morning hours of November 18, 1998, 

Clayton Dicks was stabbed six times in the chest and 

back while working during the overnight shift at 

Champion Billiards Hall (the pool hall) in Arlington 

County. 

 A few months before the killing, Lovitt worked as 

a cook at the pool hall on an evening shift that ended 

when Dicks arrived to begin the overnight shift. Amy 

Hudon, the manager at the pool hall, testified that 

about two months before Dicks was killed, she had 

trouble opening a cash register drawer near a pool 

table and asked Lovitt to help her open the drawer. 

Lovitt opened it by "wedging" a pair of scissors into 

the drawer's latch. About two months before the 

killing, Lovitt quit working at the pool hall. 

. . . . 

 1

 The Honorable F. Bruce Bach conducted the evidentiary 

hearing and submitted the required report to this Court. 

2
 [On November 18, 1998,] Dicks arrived at the pool 

hall between 1:30 and 2:00 a.m. The other employees 

present when Dicks arrived had left the pool hall by 

3:00 a.m., leaving Dicks as the sole employee on the 

premises. . . . 

 About 3:25 a.m., José N. Alvarado and Carlos 

Clavell entered the pool hall and saw two men arguing 

behind the bar. Alvarado testified that one man was 

shorter than the other, and that the shorter man 

repeatedly shoved the taller man, who was wearing an 

apron. Alvarado stated that he and Clavell watched as 

the shorter man stabbed the taller man six or seven 

times with a silver-colored weapon. Alvarado saw 

blood on the taller man's apron and watched as the 

taller man fell to the floor behind the bar. Clavell 

testified that he heard the taller man begging the 

shorter man to stop attacking him. Both Alvarado and 

Clavell saw the assailant repeatedly kick the man who 

had fallen to the floor. 

 Alvarado and Clavell immediately ran from the 

pool hall to a service station, where Alvarado 

telephoned the "911" emergency response number and 

reported what they had seen. Although Alvarado could 

not identify Lovitt as Dicks's assailant at the 

preliminary hearing held in this case, Alvarado 

testified at trial that he was about "80% certain" 

that Lovitt was the assailant. 

 When police and emergency medical personnel 

arrived at the pool hall in response to Alvarado's 

telephone call, they found Dicks lying on the floor 

behind the bar in a pool of blood. Dicks was alive 

but was unable to speak and was taken by helicopter to 

a nearby hospital. The multiple stab wounds prevented 

his heart from functioning, and he died while awaiting 

surgery. 

 Dicks had been stabbed six times, five times in 

the chest and once in the back. Four of these wounds 

were lethal. Dicks also suffered two areas of 

internal hemorrhage on both sides of his head, as well 

as external abrasions on both shoulders and on his 

left knee. 

3
 The police recovered from the pool hall a cash 

register that was lying on the floor near where Dicks 

was found. The register was broken into pieces, the 

cash drawer had been removed from the register and was 

missing, and a torn piece of a ten-dollar bill was 

found nearby. A pair of scissors with orange handles 

that was usually kept in a container on the bar was 

missing. A police canine unit found an orange-handled 

pair of scissors bearing blood lying open in the woods 

about 15 yards behind the pool hall. 

 Warren A. Grant, Lovitt's cousin, testified that 

Lovitt arrived at Grant's home in the early morning 

hours of November 18, 1998. Grant lived about a 

quarter of a mile from the pool hall in a residential 

area located on the "other side" of the woods. Grant 

stated that Lovitt knocked on his door sometime 

between 1:30 and 3:00 a.m. Lovitt . . . entered the 

house carrying what looked like a large, square, gray 

metal box. After Lovitt unsuccessfully tried to open 

the locked box, Grant eventually opened it by using a 

screwdriver to "pop" some of the screws securing the 

box. Lovitt removed money from the opened cash 

register drawer and divided the cash between himself 

and Grant. Lovitt left the cash register drawer with 

Grant and instructed him to "[g]et rid of [it]." A 

few days later, Grant began cutting the cash drawer 

into pieces with tin snips and put them in a bag. 

. . . . 

 On November 20, 1998, Arlington Detective Noel E. 

Hanrahan obtained pieces of the cash register drawer 

from Grant. Four days later, Lovitt was arrested and 

charged with the present offenses. . . . When Officer 

Stephen Ferrone collected Lovitt's clothing at the 

jail, Ferrone asked a detective whether he needed to 

seize Lovitt's jacket. Ferrone testified that, upon 

hearing this question, Lovitt stated, "I wasn't 

wearing it when it happened." 

 Julian J. Mason, Jr., a forensic scientist 

employed by the Virginia Division of Forensic Science, 

qualified as an expert witness on the subject of tool 

mark identification. He testified that the cash 

register drawer Grant surrendered to the police had 

been removed from the broken cash register found on 

4
the floor of the pool hall. Mason also stated that 

the pry marks on the cash register drawer were made by 

the scissors that were found in the woods behind the 

pool hall. 

. . . . 

 Carol Palmer, a forensic scientist employed by 

the Virginia Department of Forensic Science, qualified 

as an expert witness on DNA testing. Palmer extracted 

human DNA from two places on the scissors, on a blade 

near the tip and on a blade near the finger loops. 

She also extracted blood from three small circular 

areas on the left front side of Lovitt's jacket, but 

the DNA tests were inconclusive and Palmer was unable 

to determine whether the blood on the jacket was 

human. . . . 

 . . . The DNA extracted from the tip of the 

scissors displayed a DNA profile that matched the DNA 

profile of Dicks. The profile derived from this 

sample did not match the DNA profiles of either Lovitt 

or Grant, thus eliminating both as contributors of 

this DNA. Palmer stated that the chance of someone 

other than Dicks contributing the DNA sample on the 

tip of the scissors was 1 in more than 5.5 billion. 

 The DNA extracted from the mid-section of the 

scissors also matched the DNA profile of Dicks. 

However, Palmer stated that this DNA evidence, unlike 

the DNA evidence from the tip of the scissors, did not 

exclude either Lovitt or Grant and, thus, was 

inconclusive as to them. 

 After Lovitt's arrest, he was incarcerated in the 

Arlington County Jail in the same unit as Casel Lucas. 

Lovitt and Lucas developed a friendship during the two 

months that they lived together in this unit. Lovitt 

first told Lucas that after leaving the bathroom at 

the pool hall on the night of the murder, Lovitt saw a 

Hispanic man stabbing Dicks. Lovitt told Lucas that, 

at that time, Lovitt saw the cash register drawer, 

grabbed it, and ran from the pool hall. 

 According to Lucas, Lovitt later stated that he 

knew Dicks and was aware that no one else would be in 

the pool hall late at night. Lovitt further related 

5
that he waited in the bathroom until everyone left the 

pool hall before coming out of the bathroom to attempt 

to open the cash register drawer. Dicks confronted 

Lovitt as he unsuccessfully attempted to open the cash 

drawer. Lovitt told Lucas that he had to kill Dicks 

because Dicks had recognized him. According to 

Lovitt, Dicks asked him, "[W]hy [are] you doing this?" 

Lovitt admitted to Lucas that he stabbed Dicks several 

times and took the cash register drawer to his 

cousin's house where he and his cousin split the money 

before leaving to buy some drugs. Lovitt told Lucas 

that he discarded the murder weapon while en route to 

or from Grant's house, and that he changed his clothes 

at Grant's house because he had blood on his shirt and 

pants. 

. . . . 

 During the penalty phase of the trial, the 

Commonwealth presented evidence of Lovitt's criminal 

record. In October 1975, when Lovitt was 11 years 

old, he was charged with assault and placed in 

protective supervision. Also as a juvenile, in August 

1979, Lovitt was committed to the Beaumont Learning 

Center of the State Department of Corrections 

(Beaumont) based on adjudication of charges of 

breaking and entering and larceny. While at Beaumont, 

Lovitt was disciplined for fighting, assault, and 

possessing contraband items. After his release from 

Beaumont in 1980, Lovitt was convicted of grand 

larceny in 1981 and was sentenced to 12 months in 

jail. 

 Between 1983 and 1985, Lovitt was convicted of 

petit larceny, grand larceny, breaking and entering, 

and distribution of marijuana. In 1986, Lovitt was 

convicted of attempted robbery and was sentenced to a 

term of imprisonment of from one to three years. 

After being released on parole in August 1987, 

Lovitt's parole was revoked in August 1988 based, in 

part, on additional arrests and his failure to pass 

certain drug tests. Lovitt later was convicted of 

statutory burglary and grand larceny. While 

incarcerated on these convictions and the parole 

violation, Lovitt was disciplined for damaging 

property and for fighting. 

6
 In September 1990, Lovitt again was released on 

parole. In early 1991, Lovitt was convicted of 

possession of cocaine, grand larceny, and burglary. 

While incarcerated on these charges, Lovitt was the 

subject of ten disciplinary actions for offenses 

including possession of contraband, disobeying direct 

orders, assault, possession of intoxicants, and 

manufacturing "shank handles." After being released 

on parole in October 1996, Lovitt was convicted in 

1997 of possession of marijuana, petit larceny, 

unlawful entry, assault and battery, and destruction 

of property. Lovitt was on parole at the time of the 

present offenses. 

 In October 1998, Arlington County Police Officer 

Jerome A. Lee detained Lovitt in an apartment parking 

lot in Arlington. Lovitt had parked his car behind 

the apartments, appeared to be very nervous, and 

consented to a search of his vehicle. Lee found a 

long kitchen knife on the floor of the passenger area 

and a soda can used to smoke crack cocaine in the rear 

floor area of the vehicle. 

 Lovitt presented testimony from his sister, 

[Lamanda] Jones, who testified that Lovitt was the 

oldest of 12 children and that he helped take care of 

his younger siblings, although not "gladly." Lovitt 

also presented testimony from four deputies employed 

by the Arlington County Sheriff's Office, who stated 

that Lovitt had not presented any disciplinary 

problems while being held in jail on the present 

charges. 

Id. at 502-08, 537 S.E.2d at 870-73. 

 In May 2001, about six months after we affirmed Lovitt's 

convictions, the circuit court entered an order authorizing 

destruction of the exhibits entered into evidence at Lovitt's 

trial. Pursuant to the destruction order, all exhibits received 

in evidence at trial, with the exception of one chart, were 

destroyed. On October 1, 2001, the United States Supreme Court 

7
denied Lovitt's petition for a writ of certiorari from this 

Court's judgment. See Lovitt v. Virginia, 534 U.S. 815 (2001). 

II. STANDARD OF REVIEW 

 When we consider a circuit court's findings of fact and 

recommended conclusions of law submitted pursuant to Code 

§ 8.01-654(C), we defer to the court's factual findings and are 

bound by them unless they are plainly wrong or without 

evidentiary support. Hedrick v. Warden, 264 Va. 486, 496, 570 

S.E.2d 840, 847 (2002). However, the circuit court's 

recommended conclusions of law involve mixed questions of law 

and fact and are subject to our de novo review. Id.

III. HABEAS HEARING 

 At the habeas hearing, Lovitt presented evidence regarding 

the destruction of the trial exhibits, the alleged Brady

violations, and his counsel's alleged failure to provide 

effective assistance at trial. 

A. DESTRUCTION OF EVIDENCE 

 Testimony at the habeas hearing revealed that in April 

2001, Robert C. McCarthy, Chief Deputy Clerk of the Circuit 

Court of Arlington County, drafted an order authorizing the 

destruction of the exhibits received in evidence at Lovitt's 

trial. McCarthy, who was responsible for evidence stored in the 

clerk's office, testified that he thought he was authorized to 

destroy the trial exhibits after receiving a mandate from this 

8
Court indicating that Lovitt's convictions were affirmed. 

McCarthy also stated that he decided to destroy the trial 

exhibits to create additional space in the clerk's office 

evidence room. 

 McCarthy drafted the evidence destruction order without 

consulting anyone in the Commonwealth's Attorney's office, the 

Attorney General's office, or the Arlington County Police 

Department. McCarthy also did not notify any of the circuit 

court judges, Lovitt's trial counsel, or his habeas counsel of 

the impending evidence destruction. 

 McCarthy drafted the order before May 2, 2001, the date 

that Code §§ 19.2-270.4:1 and –327.1 became effective. Code 

§ 19.2-270.4:1 provides, in relevant part: 

B. In the case of a person sentenced to death, the 

court that entered the judgment shall, in all cases, 

order any human biological evidence or representative 

samples to be transferred by the governmental entity 

having custody to the Division of Forensic Science. 

The Division of Forensic Science shall store, 

preserve, and retain such evidence until the judgment 

is executed. . . . 

. . . . 

E. An action under this section or the performance of 

any attorney representing the petitioner under this 

section shall not form the basis for relief in any 

habeas corpus or appellate proceeding. 

 With regard to such human biological evidence, Code § 19.2-

327.1 provides, in relevant part: 

9
A. Notwithstanding any other provision of law or rule 

of court, any person convicted of a felony may, by 

motion to the circuit court that entered the original 

conviction, apply for a new scientific investigation 

of any human biological evidence related to the case 

that resulted in the felony conviction . . . . 

. . . . 

G. An action under this section or the performance of 

any attorney representing the petitioner under this 

section shall not form the basis for relief in any 

habeas corpus proceeding or any other appeal. 

 McCarthy took the destruction order prepared in Lovitt's 

case, along with between 15 and 20 other such orders, to the 

chambers of Judge Paul F. Sheridan. McCarthy left the orders in 

Judge Sheridan's chambers for entry without providing him any 

information concerning the relevant cases. Judge Sheridan, who 

did not conduct Lovitt's trial, entered the destruction orders 

on May 21, 2001, authorizing the destruction of all exhibits 

entered into evidence at Lovitt's trial. These exhibits, with 

the exception of the one chart, were destroyed a few days later. 

 Two deputy court clerks, Clifford P. Kleback and Gwendolyn 

Gilmore, testified that they spoke with McCarthy before he 

submitted the destruction orders to Judge Sheridan. Both deputy 

clerks told McCarthy, who was their immediate supervisor, that 

he should not destroy the evidence in Lovitt's case because it 

was a "capital case" and Lovitt had not been executed. Kleback, 

who was the clerk assigned to the courtroom during Lovitt's 

trial, stated that he told McCarthy that the case involved DNA 

10
evidence, and that he repeatedly advised McCarthy not to destroy 

the evidence. 

 Both Kleback and Gilmore testified that McCarthy told them 

that the evidence could be destroyed because Lovitt's appeal had 

ended. Kleback and Gilmore deferred to McCarthy's decision and, 

at that time, did not report these conversations to either the 

clerk of the circuit court or to anyone in the prosecutor's 

office. 

 McCarthy testified that he did not recall speaking with 

Kleback and Gilmore before the evidence in Lovitt's case was 

destroyed. McCarthy also stated that he did not review Lovitt's 

case file to determine whether Lovitt's appellate remedies were 

exhausted but instead relied on this Court's mandate affirming 

Lovitt's convictions. According to McCarthy, when he drafted 

the destruction order, he may have known that Lovitt's case was 

a "capital murder case," but he was unaware that it was a "death 

penalty case." He further testified that at the time the 

destruction order was entered, he was not aware of any change in 

the law concerning the preservation of human biological 

evidence. 

 The circuit court found that there was no evidence that any 

official of the Commonwealth acted in bad faith or with the 

intent to destroy exculpatory evidence. The court stated in its 

findings that "McCarthy believed he had the authority to destroy 

11
the trial exhibits once he received the mandate" from this 

Court. The court also found that although Code § 19.2-270.4:1 

became effective 20 days before entry of the destruction order, 

McCarthy was unaware of the statute's provisions when the 

evidence was destroyed. 

B. BRADY CLAIMS 

1. DR. PIERRE-LOUIS 

 Dr. Marie-Lydie Y. Pierre-Louis was the medical examiner 

who performed the autopsy on Clayton Dicks. Among those present 

during the autopsy were Assistant Commonwealth's Attorney 

Margaret E. Lair-Eastman (Eastman), one of the prosecuting 

attorneys at Lovitt's trial, and Detective Stuart Chase of the 

Arlington County Police Department. 

 During the autopsy, Dr. Pierre-Louis was shown two pairs of 

scissors recovered from a container next to the cash register 

near the location where Dicks' body was found. Dr. Pierre-Louis 

was not shown the orange-handled pair of scissors found with 

blood on the blade tip (the bloody scissors), discovered in the 

woods behind the pool hall and admitted into evidence at 

Lovitt's trial. 

 The autopsy report prepared by Dr. Pierre-Louis indicated 

that each of Dicks' six stab wounds displayed a blunt and a 

sharp edge. The wounds ranged in depth between three and eight 

12
inches, and three of these wounds were between six and eight 

inches deep. 

 The autopsy report further indicated that one of the pairs 

of scissors examined by Dr. Pierre-Louis had a total length of 

eight-and-one-half inches with blades that were three-and-onehalf inches long and one-half inch wide at the base. The other 

pair of scissors she examined was six-and-one-half inches in 

length and had blades that were three inches long and one-half 

inch wide at the base. 

 At the autopsy, Dr. Pierre-Louis told Eastman and Detective 

Chase that neither of the two pairs of scissors that she 

examined could have been the murder weapon because the length 

and width of their blades were not consistent with the nature 

and dimensions of Dicks' stab wounds. Dr. Pierre-Louis also 

told Eastman and Chase that she would have to examine the bloody 

scissors before she could reach a conclusion whether those 

scissors were the source of Dicks' wounds. 

 Dr. Pierre-Louis' opinion concerning the two pairs of 

scissors she examined was not included in the autopsy report. 

Neither Eastman nor anyone else in the prosecutor's office 

informed Lovitt's trial counsel of Dr. Pierre-Louis' opinion. 

During Lovitt's trial, Dr. Pierre-Louis was not asked to give 

her opinion concerning the two pairs of scissors that she had 

13
examined, nor was she asked to opine whether the bloody scissors 

admitted into evidence were consistent with Dicks' stab wounds. 

 At the habeas hearing, Dr. Pierre-Louis testified that she 

is an "expert on the wounds on the body" and that part of her 

expertise includes determining "whether an object is consistent 

with a wound." Dr. Pierre-Louis stated that each of Dicks' stab 

wounds had both a blunt and a sharp edge, indicating that a 

"single-edged blade" was used to cause those wounds. 

 Dr. Pierre-Louis was shown a photograph of the bloody 

scissors found in the woods near the pool hall. Using a 

measurement scale depicted in the photograph, she determined 

that one blade was three-and-one-half inches long from its tip 

to the base where the two blades are joined, and that this blade 

was one-half inch wide at the base. She was unable to measure 

the other blade because of its position in the photograph. 

 Dr. Pierre-Louis testified that the bloody scissors shown 

in the photograph were inconsistent with Dicks' wounds. She 

stated that three of those wounds, which measured between six 

and eight inches in depth, were deeper than the length of the 

three-and-one-half inch blade. She also stated that while the 

other three wounds, which ranged between three and five inches 

in depth, were "more or less" consistent with the length of the 

blade, the wounds were twice as wide as the width of the blade. 

14
 Dr. Pierre-Louis further testified that if the blade had 

been completely inserted into Dicks' body, she would have 

expected to discover a "notch" from the other blade or a 

contusion from the scissors' handle in the immediate vicinity of 

the stab wounds. However, she did not discover any evidence of 

such "marginal abrasions" near Dicks' wounds. Dr. Pierre-Louis 

completely discounted "tissue compression" as an explanation for 

the discrepancy between the scissors' blade length and Dicks' 

wounds because of the lack of "marginal abrasions" in the wound 

areas. She stated that the discovery of Dicks' blood on the 

scissors would not influence her opinion that those scissors are 

inconsistent with Dicks' wounds because she does not know how 

the blood was transferred to those scissors. 

 On cross-examination, Dr. Pierre-Louis testified that she 

never examined the bloody scissors depicted in the photograph 

and was unable to determine the thickness of the blades or 

whether their outside edges were sharp. Contrary to her 

testimony on direct examination, she conceded that it was 

possible that a single blade of the scissors depicted in the 

photograph could have caused the three stab wounds that measured 

between three and five inches deep. 

 Both Detective Chase and Deputy Commonwealth's Attorney 

Barbara Walker, one of the prosecuting attorneys at Lovitt's 

trial, testified that the bloody scissors were different in size 

15
from the two pairs of scissors presented to Dr. Pierre-Louis. 

Detective Chase also testified that he contacted Dr. PierreLouis after the autopsy and informed her that the police had 

recovered a certain pair of scissors that he concluded was the 

murder weapon, which he described to her. He stated that when 

he described the bloody scissors to Dr. Pierre-Louis, "she made 

some comment that, I guess I was wrong, or, I made a mistake." 

 Eastman testified that when she told Dr. Pierre-Louis after 

the autopsy that Dicks' blood had been identified on the bloody 

pair of scissors, Dr. Pierre-Louis shrugged and responded, "oh 

well." Eastman interpreted Dr. Pierre-Louis' response as a 

departure from her previous opinion and an abandonment of "any 

notion that scissors could not be the murder weapon." 

 Eastman testified that Lovitt's counsel had a copy of the 

autopsy report and had access to the physical evidence in the 

case, including the bloody scissors. She further testified that 

she did not consider Dr. Pierre-Louis' opinion concerning the 

two pairs of scissors to be exculpatory because neither pair was 

the murder weapon presented at trial. 

 Denman Rucker, one of Lovitt's trial attorneys, testified 

at the habeas hearing that the trial evidence concerning the 

bloody scissors "actually worked to [his] benefit" during trial, 

and allowed him to assert that an unknown assailant had 

perpetrated the crimes, which was the "strongest argument" 

16
available for Lovitt's defense. Rucker explained that this 

evidence also allowed him to avoid having the jury infer that 

Lovitt brought a deadly weapon with him to the pool hall. 

 The circuit court made a factual finding that after DNA 

test results confirmed the presence of Dicks' blood on the 

bloody scissors, "Dr. Pierre-Louis indicated to the 

Commonwealth's attorneys that she had been wrong in her 

conclusion regarding the scissors." The court also found that 

Lovitt's defense counsel had access to the bloody scissors, the 

autopsy report, and to Dr. Pierre-Louis prior to Lovitt's trial. 

 Based on additional testimony by Denman Rucker, the circuit 

court also found that Rucker had recognized the differences in 

the blade lengths of the scissors listed in the autopsy report 

and the depth of Dicks' wounds and, as a result, had consulted 

with an expert at the Northern Virginia Forensic Laboratory. 

Rucker further testified that the expert informed him that a 

pair of scissors with a blade measuring between three-and-onehalf and four-and-one-half inches in length could inflict a 

wound up to seven inches deep during a "frenzied" and "violent" 

attack based on a victim's breathing and the compression of body 

tissue. The court found that the expert informed Rucker that 

such scissors could have been the murder weapon. 

2. CASEL LUCAS 

a. LUCAS' PRIOR COOPERATION WITH AUTHORITIES 

17
 Before Lucas testified at trial, Eastman and Walker 

provided Lovitt's defense counsel with a report detailing Lucas' 

extensive criminal record. However, neither Eastman nor Walker 

disclosed to defense counsel that Lucas had provided information 

to various police departments in four previous criminal cases. 

The circuit court found that before the trial, the prosecutors 

in Lovitt's case were "unaware that Casel Lucas had provided 

information regarding any other case." 

 The evidence at the habeas hearing showed that in 1998, 

Lucas testified in Alexandria against Steven Evans, who had been 

charged with robbery. In exchange for his testimony, Lucas 

received a total recommended sentence of 20 years' imprisonment 

for various pending criminal charges, including robbery, 

abduction with the intent to defile, and attempted rape. 

 Walker testified that although Lucas told her about his 

cooperation with the police in the Evans case, she did not tell 

either Rucker or Janell Wolfe, Lovitt's co-counsel at trial, 

about Lucas' role in that prosecution. However, Walker stated 

that Lucas' sentence in the Evans case was included in his 

criminal record that the prosecution provided to defense counsel 

before Lucas testified. 

 When Wolfe interviewed Lucas prior to his testifying, Lucas 

told her of his involvement in the Evans case. However, Lucas 

did not inform Wolfe that he had cooperated with the police in 

18
any other cases. Wolfe testified that had she received such 

information, she and Rucker would have used it to impeach Lucas' 

credibility at trial. At Lovitt's trial, Rucker cross-examined 

Lucas concerning his cooperation with the police in the Evans 

case. 

 In 1996, Lucas provided information to the police 

concerning a "jailhouse confession" made by Edward Young, who 

had been charged with rape in Arlington County. Walker served 

as the prosecutor during the sentencing in the Young case and 

Wolfe served as Young's counsel. However, neither Walker nor 

Wolfe was aware of Lucas' involvement in the Young case because 

the case did not proceed to trial and the defendant's plea 

agreement did not mention Lucas. Lucas did not receive any 

benefit in exchange for the information that he provided in the 

Young case. 

 In 1997, Lucas provided information to detectives in the 

District of Columbia concerning the "Starbucks triple homicide" 

case. One of the detectives sent a letter to the judges of the 

Circuit Court of the City of Alexandria informing them of Lucas' 

cooperation in the Starbucks case. There was no evidence that 

Lucas received any benefit resulting from his cooperation with 

the police in that case. Further, prior to Lovitt's trial, the 

Arlington prosecutors did not have any information about 

Lovitt's cooperation in the Starbucks case. 

19
 In 1998, Lucas provided Alexandria authorities with a 

statement detailing a defendant's "jailhouse confession" in the 

"Eddie Lee case." Lucas did not receive any benefit as a result 

of his cooperation in that case, and the Arlington prosecutors 

were not aware of Lucas' involvement in the Lee case prior to 

Lovitt's trial. 

 In June 1999, before Lovitt's trial, Lucas sent a letter to 

Judge Paul F. Sheridan of the Arlington County Circuit Court 

requesting reconsideration of one of his sentences. In the 

letter, Lucas stated that he had cooperated with the police in 

previous matters but did not mention Lovitt's case. The letter 

was sent directly to Judge Sheridan's chambers and a copy of the 

letter apparently was not placed in Lucas' file until after 

Lovitt's trial. Lucas' request for reconsideration was denied. 

The prosecutors in Lovitt's case were not aware of Lucas' letter 

at the time of Lovitt's trial. 

b. LUCAS' PRIOR INCONSISTENT STATEMENTS 

 At the habeas hearing, the court considered an affidavit 

handwritten by Lovitt's habeas counsel and signed by Lucas in 

September 2001. The affidavit, which was prepared after 

Lovitt's trial, contained several statements that conflicted 

with Lucas' trial testimony. For example, in the affidavit, 

Lucas stated that he initially informed the prosecutors that 

Lovitt had stated he used a gun to shoot Dicks, that Lovitt had 

20
discarded the weapon in a drain, and that Warren Grant had 

driven Lovitt from the pool hall to Grant's house. These 

statements contradicted Lucas' trial testimony that Lovitt 

stated he used a knife or other object to stab Dicks, and that 

he discarded the weapon while walking from the pool hall to 

Grant's house. 

 In the affidavit, Lucas also stated that he received a 

reduced sentence for his cooperation in the Young case, and that 

he learned about the details of Dicks' murder from "Crime 

Stoppers" and the Washington Post. At habeas counsel's request, 

Lucas had "initialed" each paragraph of the affidavit. 

 Lucas testified that the inconsistent statements contained 

in the affidavit were not accurate and that his testimony during 

Lovitt's trial was truthful. Lucas stated that on the day he 

signed the affidavit, he was "confused" after answering "three 

hours' worth of questions" posed by Lovitt's habeas counsel. 

Lucas also stated that he did not feel "too good" that day 

because he had undergone a tooth extraction and was waiting to 

receive some medication. 

 Lucas further testified that he did not thoroughly read the 

affidavit, but merely "glimpsed through it" and "glanced over 

it," not paying attention to its content. He also testified 

that he was mistaken when he had stated that he received a 

sentence reduction in exchange for his cooperation in the Young 

21
case. Additionally, Lucas stated that Lovitt was his sole 

source of information concerning the testimony he gave at 

Lovitt's trial. 

 Eastman testified that Lucas' trial testimony was 

consistent with the statements he had made before Lovitt's 

trial. She stated that Lucas' description of Lovitt's initial 

story was consistent with a statement that Lovitt had given to 

the police shortly after his arrest. Included in Lovitt's 

initial story to Lucas were assertions that Lovitt was in the 

pool hall restroom during Dicks' murder, and that he took the 

cash register drawer after an allegedly unknown assailant had 

killed Dicks.2

 The circuit court found that Lucas had "disavowed" the 

affidavit written by Lovitt's habeas counsel that had set forth 

the inconsistent statements Lucas allegedly had made before 

trial. The court also found that Lucas did not make any 

statements before trial that were inconsistent with his trial 

testimony. 

C. INEFFECTIVE ASSISTANCE OF COUNSEL 

 2

 In that statement to the police, Lovitt claimed that when 

he discovered Dicks on the pool hall floor "gurgling blood" and 

"dying right there on the spot," he thought to himself, "I'm 

broke. Might as well take [the cash register drawer] with me," 

and then he grabbed the drawer and left the premises. Lovitt's 

statement to the police was not entered into evidence at 

Lovitt's trial. 

22
 Two of Lovitt's stepsisters and a cousin testified at the 

habeas hearing about Lovitt's family background. We will 

describe that testimony in detail in Part IV(C), infra, of our 

discussion which addresses the issue whether Lovitt received 

effective assistance of counsel at trial. In that discussion, 

we will also describe the various jail, substance abuse, 

juvenile, and other records introduced into evidence at the 

habeas hearing. 

 Rucker and Wolfe testified at the habeas hearing that they 

were concerned that if the jury was told about the criminal 

records and substance abuse of Lovitt's siblings and stepfather, 

the jury could conclude that Lovitt's family background 

increased his future danger to society. Wolfe also stated that 

she asked Lamanda Jones to testify on Lovitt's behalf and spoke 

with her for between "45 minutes or an hour" before presenting 

her as a witness in the penalty phase proceeding. Wolfe 

explained that Jones testified regarding "exactly what we wanted 

her to get on the stand and say," and that Jones' testimony 

"humanized" Lovitt by showing the jury that he had a family. 

 With regard to the guilt phase of the trial, the circuit 

court found that defense counsel made a tactical decision not to 

pursue additional DNA testing of the bloody scissors and 

Lovitt's jacket, which allowed counsel to argue that an unknown 

assailant killed Dicks. The court concluded that Rucker's 

23
investigation into the discrepancy between the length of the 

scissors and the depth of Dicks' stab wounds yielded information 

from an expert that scissors of the specified dimensions could 

have caused such wounds. The court also found that Wolfe 

interviewed Lucas and obtained his criminal record prior to his 

testifying at Lovitt's trial. 

 With regard to the penalty phase of the trial, the circuit 

court found that trial counsel adopted a strategy for the 

penalty phase that focused on efforts to "humanize" Lovitt and 

to show that he would not be dangerous in the penitentiary by 

emphasizing his good behavior while he was incarcerated awaiting 

trial. The court also found that in preparation for trial, 

Rucker and Wolfe obtained "all of Lovitt's jail records from the 

Arlington County Detention Facility, all of his juvenile 

records, his records from the Beaumont juvenile facility, his 

medical records, and his pre-sentence report." 

 The court further found that both Rucker and Wolfe were 

aware of the criminal history of Lovitt's family members from 

having represented some of his siblings in prior criminal 

proceedings, and from their "general reputation in the 

community" of having a "predilection for criminal activity." 

The court found that trial counsel made a strategic decision not 

to introduce evidence of Lovitt's family background, and that 

the social services records of Lovitt's siblings would not have 

24
assisted defense counsel in preparing for the penalty phase of 

the trial. In addition, the court found that Lovitt had not 

given trial counsel any indication that he had been a victim of 

sexual or physical abuse by his stepfather. 

IV. DISCUSSION 

A. DESTRUCTION OF EVIDENCE 

 Lovitt argues that McCarthy, an agent of the Commonwealth, 

procured the destruction of the trial exhibits in bad faith, and 

that the destruction of this evidence violated his right of due 

process by preventing meaningful review of his habeas corpus 

petition. Lovitt also observes that under Code §§ 19.2-270.4 

and –270.4:1, trial evidence may not be destroyed until after 

all appellate remedies have been exhausted, and that DNA 

evidence in a death penalty case may not be destroyed until the 

final judgment is executed. He asserts that the death penalty 

is "not a reliably appropriate punishment" under circumstances 

when material evidence has been destroyed and that, therefore, 

his sentence should be vacated. We disagree with Lovitt's 

arguments. 

 We first address Lovitt's due process claim. He asserts 

that he is entitled to habeas corpus relief because he has been 

deprived of an opportunity to seek new scientific testing of the 

DNA found on the bloody scissors and his jacket. Lovitt asserts 

that this testing is necessary for him to seek a writ of actual 

25
innocence under Code §§ 19.2-327.2 through –327.6.3 However, he 

fails to present authority to support his claim that habeas 

corpus relief is the proper remedy for his inability to obtain 

this further testing. He further acknowledges that the United 

States Supreme Court has not addressed the question whether due 

process rights may be asserted against the post-trial 

destruction of evidence. 

 In the absence of such authority, Lovitt relies on Arizona 

v. Youngblood, 488 U.S. 51 (1988), and California v. Trombetta, 

467 U.S. 479 (1984), in which the Supreme Court considered due 

process claims involving the pre-trial destruction of evidence. 

In Youngblood, the Supreme Court drew a distinction between the 

government's failure to disclose material exculpatory evidence 

and the failure to preserve potentially exculpatory evidence. 

The Court explained that: 

The Due Process Clause of the Fourteenth Amendment, as 

interpreted in Brady, makes the good or bad faith of 

the State irrelevant when the State fails to disclose 

to the defendant material exculpatory evidence. But 

we think the Due Process Clause requires a different 

result when we deal with the failure of the State to 

preserve evidentiary material of which no more can be 

said than that it could have been subjected to tests, 

the results of which might have exonerated the 

defendant. . . . We think that requiring a defendant 

 3

 Lovitt also asserts that further DNA testing of these 

items is required in order to establish that he was denied the 

effective assistance of counsel at trial. However, based on our 

resolution of this aspect of his ineffective assistance claim, 

infra, we need not address the destruction of these items as 

they relate to the ineffective assistance claim. 

26
to show bad faith on the part of the police both 

limits the extent of the police's obligation to 

preserve evidence to reasonable bounds and confines it 

to that class of cases where the interests of justice 

most clearly require it, i.e., those cases in which 

the police themselves by their conduct indicate that 

the evidence could form a basis for exonerating the 

defendant. We therefore hold that unless a criminal 

defendant can show bad faith on the part of the 

police, failure to preserve potentially useful 

evidence does not constitute a denial of due process 

of law. 

488 U.S. at 57-58; see also Trombetta, 467 U.S. at 489; Thomas 

v. Commonwealth, 244 Va. 1, 18, 419 S.E.2d 606, 615-16 (1992). 

 This constitutional standard of materiality, decided in the 

context of a state's pre-trial destruction of evidence, reflects 

the importance courts attach to the integrity of the trial 

process and to the ability of an accused to defend against 

criminal charges brought against him. See Trombetta, 467 U.S. 

at 485. Therefore, during the course of a criminal trial, the 

Due Process Clause of the Fourteenth Amendment requires that the 

government satisfy such prevailing concepts of fundamental 

fairness. See id.

 In a habeas corpus proceeding, however, the truth-seeking 

function of the trial process yields to a focus on the legality 

of a petitioner's detention and whether the petitioner presently 

is detained in violation of any constitutional rights. See

Virginia Parole Bd. v. Wilkins, 255 Va. 419, 420-21, 498 S.E.2d 

695, 696 (1998); McClenny v. Murray, 246 Va. 132, 134-35, 431 

27
S.E.2d 330, 331 (1993); Smyth v. Holland, 199 Va. 92, 96-97, 97 

S.E.2d 745, 748-49 (1957). This different focus raises the 

issue whether a due process right may be asserted in a habeas 

corpus proceeding to challenge the post-trial destruction of 

evidence when a petitioner's trial and direct appeal have 

concluded. 

 We need not resolve this issue in the present case, 

however, because Lovitt fails to establish that he qualifies for 

relief under the Youngblood standard that he asks us to apply. 

Therefore, for purposes of this petition only, we will assume, 

without deciding, that a habeas petitioner may assert a due 

process claim regarding the post-trial destruction of evidence, 

and that the Youngblood standard governing pre-trial destruction 

of evidence also applies to a due process claim involving 

evidence destroyed post-trial. 

 As provided above, under the Youngblood standard, a state's 

failure to preserve potentially useful evidence does not 

constitute a denial of due process unless a defendant can show 

bad faith on the part of the state. Youngblood, 488 U.S. at 58; 

United States v. Newsome, 322 F.3d 328, 334 (4th Cir. 2003); 

Basden v. Lee, 290 F.3d 602, 615 (4th Cir. 2002), cert. denied, 

537 U.S. 980 (2002); Thomas, 244 Va. at 18, 419 S.E.2d at 615. 

The presence or absence of bad faith by the state depends on 

whether agents of the state had knowledge of the exculpatory 

28
value of the evidence when it was lost or destroyed. 

Youngblood, 488 U.S. at 56 n.*; Holdren v. Legursky, 16 F.3d 57, 

60 (4th Cir. 1994). Thus, the possibility that evidence could 

have exculpated a defendant depending on future testing results 

is not enough to satisfy the constitutional standard of 

materiality. See Youngblood, 488 U.S. at 56 n.*. 

 In the present case, the circuit court concluded that 

"[t]here [was] no evidence that any official of the Commonwealth 

acted in bad faith." The court also found that "[t]here [was] 

no evidence to conclude that there was an intent by anyone in 

the Clerk's office to destroy exculpatory evidence." The court 

further found that while Robert McCarthy's judgment was 

erroneous, he "wanted to remove the box of exhibits from the 

evidence room to make additional space," and he "believed he had 

the authority to destroy the trial exhibits once he received the 

mandate indicating that Lovitt's appeal to the Virginia Supreme 

Court had been denied." 

 The circuit court's determination that there was an absence 

of bad faith was a finding of fact, not of law, because that 

finding rested on the knowledge of the Commonwealth's agents 

concerning the exculpatory value of the evidence at the time it 

was destroyed. See id.; Holdren, 16 F.3d at 60; Thomas, 244 Va. 

at 18, 419 S.E.2d at 615-16. Such factual findings made by the 

circuit court are entitled to deference and are binding in this 

29
proceeding unless they are plainly wrong or without evidence to 

support them. Hedrick, 264 Va. at 496, 570 S.E.2d at 847. 

 The circuit court's findings concerning the absence of bad 

faith are supported by the evidence and are not plainly wrong. 

McCarthy's actions, and the failure of Kleback and Gilmore to 

report his intentions to another supervisor, do not establish 

that an agent of the Commonwealth had knowledge of any 

exculpatory value of the trial exhibits at the time they were 

destroyed. See Youngblood, 488 U.S. at 56 n.*; Holdren, 16 F.3d 

at 60. The mere fact that the exhibits included DNA evidence, 

and that Kleback may have related this information to McCarthy, 

does not establish that McCarthy was aware that an analysis of 

some of the DNA evidence had produced inconclusive results, or 

that such evidence may have been subject to further testing. 

Moreover, even if McCarthy had been aware of these 

considerations, such awareness would not have met the 

constitutional standard of materiality under Youngblood, because 

Lovitt can assert no more than the mere possibility that further 

testing could have exculpated him. See Youngblood, 488 U.S. at 

56 n.*. 

 In addition, the circuit court found that at the time the 

evidence was destroyed, McCarthy was unaware that Code § 19.2-

270.4:1, enacted 20 days before the destruction order was 

entered, mandated the storage of human biological evidence 

30
received in the case of a person sentenced to death. McCarthy's 

testimony adequately supports this finding. 

 The circuit court made an additional factual finding that 

no employees of either the Commonwealth's Attorney or the 

Attorney General knew about the destruction of evidence until 

after the destruction occurred. This finding is supported by 

the testimony of Margaret Eastman, Barbara Walker, and McCarthy. 

The record also shows that Judge Paul F. Sheridan, who entered 

the evidence destruction order, had not presided over Lovitt's 

trial. Therefore, we hold that the record lacks any evidence 

that an agent of the Commonwealth acted in bad faith with regard 

to the destruction of the trial exhibits. 

 We turn now to consider Lovitt's claim that he is entitled 

to habeas corpus relief because the destruction of the trial 

exhibits violated Code §§ 19.2-270.4 and –270.4:1. Code § 19.2-

270.4(A) provides, in relevant part: 

Except as provided in § 19.2-270.4:1 and unless 

objection with sufficient cause is made, the trial 

court in any criminal case may order the donation or 

destruction of any or all exhibits received in 

evidence during the course of the trial (i) at any 

time after the expiration of the time for filing an 

appeal from the final judgment of the court if no 

appeal is taken or (ii) if an appeal is taken, at any 

time after exhaustion of all appellate remedies. 

 In the case of a person sentenced to death, Code § 19.2-

270.4:1(B) requires the Commonwealth to store, preserve, and 

retain any human biological evidence, or representative samples 

31
thereof, until the judgment is executed. This statute also 

provides that any noncompliance with the terms of the statute 

"shall not form the basis for relief in any habeas corpus or 

appellate proceeding." Code § 19.2-270.4:1(E). 

 In enacting Code §§ 19.2-270.4 and –270.4:1, the General 

Assembly provided for both the retention of trial evidence, 

including evidence containing DNA, and the ultimate disposal of 

such evidence when all appellate remedies have been exhausted 

and judgment has been executed. Such procedures protect the 

efficacy of the appellate process, as well as the need to 

preserve evidence for use in the event of a retrial or other 

proceeding allowed by law. However, in stating the procedural 

requirements relating to the retention of human biological 

evidence in Code § 19.2-270.4:1, the General Assembly also 

recognized that noncompliance with those procedures may occur 

and provided statutory language plainly excluding any such 

noncompliance as a basis for appellate or habeas corpus relief. 

 Based on this unambiguous statutory proscription, we find 

no merit in Lovitt's contention that the Commonwealth's failure 

to comply with either statute's provisions relating to human 

biological evidence presented at his trial entitles him to 

habeas corpus relief. Thus, we hold that Lovitt has failed to 

advance any valid basis for habeas corpus relief arising from 

the destruction of the trial exhibits in his case. 

32
B. BRADY CLAIMS 

 Lovitt argues that the Commonwealth failed to disclose 

certain exculpatory evidence before trial. He contends that Dr. 

Pierre-Louis' comments at the autopsy concerning the scissors 

she examined were exculpatory, and that the Commonwealth's 

failure to disclose this information prejudiced him because 

these comments directly contradicted the Commonwealth's theory 

that Dicks was murdered with a pair of scissors. Lovitt also 

argues that the Commonwealth was required to disclose evidence 

of Lucas' allegedly inconsistent prior statements and his 

cooperation with different law enforcement authorities, and 

asserts that such information could have been used to attack 

Lucas' credibility at trial.4

 In response, the warden argues that Dr. Pierre-Louis' 

comments were not exculpatory because she did not examine the 

bloody scissors that were admitted at trial and those scissors 

were different in size from the two pairs of scissors she 

actually examined. The warden also asserts that Casel Lucas did 

not make any prior inconsistent statements that should have been 

disclosed by the Commonwealth, and that the Commonwealth was not 

 4

 We do not consider Lovitt's additional contention that the 

Commonwealth engaged in misconduct by arguing to the jury that 

the bloody scissors were the murder weapon when the Commonwealth 

knew of Dr. Pierre-Louis' comments concerning the other scissors 

examined during the autopsy. Lovitt failed to make this 

allegation in his habeas petition. See Code § 8.01-654(B)(2). 

33
required to disclose Lucas' cooperation in other criminal cases 

of which the Commonwealth was unaware at the time of Lovitt's 

trial. 

 We review these claims under settled constitutional 

principles concerning the disclosure of exculpatory evidence. 

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held 

that a due process violation occurs when the prosecution 

suppresses evidence favorable to an accused that is material 

either to guilt or to punishment, irrespective whether the 

prosecution acted in good faith or bad faith. Id. at 87; see

also Strickler v. Greene, 527 U.S. 263, 280 (1999); Kyles v. 

Whitley, 514 U.S. 419, 432 (1995); Soering v. Deeds, 255 Va. 

457, 464, 499 S.E.2d 514, 517 (1998); Bowman v. Commonwealth, 

248 Va. 130, 133, 445 S.E.2d 110, 111 (1994). 

 Exculpatory evidence is material if there is a reasonable 

probability that the proceeding would have resulted in a 

different outcome had the evidence been disclosed to the 

defense. Strickler, 527 U.S. at 280; Kyles, 514 U.S. at 433; 

United States v. Bagley, 473 U.S. 667, 682 (1985); Cherrix v. 

Commonwealth, 257 Va. 292, 302, 513 S.E.2d 642, 649, cert. 

denied, 528 U.S. 873 (1999); Soering, 255 Va. at 464, 499 S.E.2d 

at 517; Bowman, 248 Va. at 133, 445 S.E.2d at 112. A 

"reasonable probability" is one that is sufficient to undermine 

confidence in the outcome of the proceeding. Kyles, 514 U.S. at 

34
434; Bagley, 473 U.S. at 682; Soering, 255 Va. at 464, 499 

S.E.2d at 517; Bowman, 248 Va. at 133, 445 S.E.2d at 112. At 

the heart of this inquiry is a determination whether the 

evidence favorable to the defendant could reasonably be 

considered as placing the entire case in such a different light 

that confidence in the verdict is undermined. Strickler, 527 

U.S. at 290; Kyles, 514 U.S. at 435. 

 The Brady disclosure requirements extend to information 

that can be used to impeach a witness' credibility. Strickler, 

527 U.S. at 282 n.21; Bagley, 473 U.S. at 676; Bramblett v. 

Commonwealth, 257 Va. 263, 276, 513 S.E.2d 400, 409, cert. 

denied, 528 U.S. 952 (1999); Goins v. Commonwealth, 251 Va. 442, 

456, 470 S.E.2d 114, 124, cert. denied, 519 U.S. 887 (1996). A 

prosecutor's suppression of impeachment evidence creates a due 

process violation only if the suppression deprives the defendant 

of a fair trial under the Brady standard of materiality. 

Bagley, 473 U.S. at 678; see McDowell v. Dixon, 858 F.2d 945, 

949 (4th Cir. 1988). 

 This due process analysis requires consideration on an 

item-by-item basis whether the evidence at issue was 

exculpatory. Kyles, 514 U.S. at 436 n.10; United States v. 

Ellis, 121 F.3d 908, 916 (4th Cir. 1997). However, the 

determination whether undisclosed exculpatory evidence was 

material must be made by considering its cumulative effect. 

35
Kyles, 514 U.S. at 436 n.10; Monroe v. Angelone, 323 F.3d 286, 

302 (4th Cir. 2003); Ellis, 121 F.3d at 916. 

 We first consider Dr. Pierre-Louis' comments made at the 

autopsy that the two pairs of scissors she was shown were not 

consistent with Dicks' wounds. As stated above, both Detective 

Chase and Barbara Walker testified that these scissors were not 

the same size as the bloody scissors, which were the scissors 

introduced at trial. In addition, after the bloody scissors 

were subjected to DNA testing, which showed that Dicks' blood 

was on the tip of the scissors, Dr. Pierre-Louis told Detective 

Chase that she had been wrong in her earlier conclusion 

regarding the pairs of scissors she examined. 

 We conclude that Dr. Pierre-Louis' opinion concerning the 

scissors presented at the autopsy was not exculpatory evidence 

because that opinion related to scissors that were not 

introduced into evidence, were not the alleged murder weapon, 

and were not shown to be the same size as the alleged murder 

weapon. Her initial opinion also was not exculpatory in light 

of the circuit court's factual finding, supported by the 

testimony of Detective Chase, that Dr. Pierre-Louis changed her 

opinion before trial. Therefore, we hold that the prosecution 

was not required to provide the defense information concerning 

Dr. Pierre-Louis' initial opinion stated at the autopsy. 

36
 Because Dr. Pierre-Louis' statement was not exculpatory, we 

are not required to consider the issue of the materiality of 

that evidence. Nevertheless, we observe that the Commonwealth's 

failure to disclose this information could not have prejudiced 

Lovitt's defense because Dr. Pierre-Louis conceded at the 

evidentiary hearing in the present case that two of Dicks' fatal 

wounds, designated on the autopsy report as wounds #2 and #3, 

could have been caused by the bloody scissors. This 

acknowledgement that the bloody scissors could have been the 

source of two of Dicks' fatal wounds completely negates Lovitt's 

claim that there is a reasonable probability that his trial 

would have resulted in a different outcome if Dr. Pierre-Louis' 

initial opinion had been provided to the defense. 

 In addition, as the circuit court found, the evidence in 

the present case showed that trial counsel Denman Rucker 

investigated before trial whether the scissors like those 

presented at the autopsy could have caused Dicks' wounds. Upon 

consultation with a forensic expert, Rucker was told that 

scissors of that approximate size could have caused Dicks' 

wounds. Thus, Lovitt cannot show he was prejudiced by the 

Commonwealth's failure to inform him of Dr. Pierre-Louis' 

initial opinion, because he was aware of the issues involving 

scissors of that approximate size and investigated those issues 

as part of his defense in Lovitt's trial. 

37
 We next consider the issue whether the Commonwealth failed 

to disclose material exculpatory evidence concerning Casel Lucas 

that could have been used to impeach his credibility at trial. 

Although the circuit court received evidence that Lucas had 

provided information to the police on several occasions, the 

evidence showed that on only one such occasion, the Evans 

prosecution in Alexandria, did Lucas receive any benefit from 

his cooperation with the police. 

 When a person has provided information to governmental 

agents about the commission of a crime for which he received a 

benefit in the disposition of criminal charges against him, this 

fact may be used to impeach his credibility when he testifies as 

a witness for the prosecution. See Giglio v. United States, 405 

U.S. 150, 154-55 (1972); Cargle v. Mullin, 317 F.3d 1196, 1215-

16 (10th Cir. 2003); United States v. Lee, 867 F.2d 206, 207-08 

(4th Cir. 1989). However, when a person does not receive a 

benefit from providing such information, and later testifies as 

a prosecution witness, the mere fact of his prior cooperation 

with the governmental agents does not constitute impeachment 

evidence subject to disclosure as exculpatory evidence. See

Collier v. Davis, 301 F.3d 843, 849 (7th Cir. 2002), cert. 

denied, ___ U.S. ___, 123 S.Ct. 1290 (2003); Knox v. Johnson, 

224 F.3d 470, 482 (5th Cir. 2000), cert. denied, 532 U.S. 975 

(2001). 

38
 Applying these principles, the Commonwealth was required to 

provide Lovitt's trial counsel with information concerning 

Lucas' cooperation with the police in the Evans case. Thus, 

when we consider below the effect of undisclosed exculpatory 

evidence to determine its materiality, see Kyles, 514 U.S. at 

436 n.10, we must include in our analysis the Commonwealth's 

failure to disclose this information about Lucas. However, 

because the record shows that Lucas did not receive a benefit 

for his cooperation in any of the other cases placed in issue by 

Lovitt, that cooperation did not constitute impeachment evidence 

subject to disclosure by the Commonwealth. 

 Lovitt also argues that Lucas made inconsistent statements 

to the police about Lovitt's case that were subject to 

disclosure by the Commonwealth under the Brady rule as 

impeachment evidence. In support of this allegation, Lovitt 

relies on the affidavit prepared by habeas counsel and signed by 

Lucas describing inconsistent statements made by Lucas to the 

police prior to Lovitt's trial. Among those statements were 

comments relating to the type of murder weapon, the means by 

which Lovitt left the scene of Dicks' killing, and the source of 

Lucas' information concerning the murder. 

 The circuit court found that Lucas did not make the 

inconsistent statements to the police detailed in the affidavit. 

This factual finding is supported by Lucas' testimony that he 

39
did not read the entire affidavit prepared by habeas counsel 

before signing it, and that he did not agree with its contents. 

The circuit court's factual finding also is supported by 

Margaret Eastman's testimony that Lucas' statements before trial 

were consistent with those Lovitt gave to the police when he was 

arrested. Because the circuit court's finding is supported by 

the evidence, we conclude that Lovitt has not demonstrated that 

the Commonwealth failed to provide exculpatory evidence 

regarding statements Lucas made prior to trial. 

 We conclude our Brady inquiry by examining the effect of 

the one item of exculpatory evidence that the Commonwealth 

failed to disclose to Lovitt's trial counsel, namely, the fact 

that Lucas had received a benefit for his cooperation with the 

police in the Evans case. We conclude that the failure to 

disclose this evidence did not place Lovitt's trial in a posture 

that would undermine confidence in the verdict. See Strickler, 

527 U.S. at 290; Kyles, 514 U.S. at 435. Wolfe learned this 

information before trial when she interviewed Lucas, and Rucker 

cross-examined Lucas at trial about the benefit Lucas received 

in the Evans case from his cooperation with the police. The 

jury also was informed that Lucas had been convicted of 13 

felonies and was able to include this information in its 

assessment of Lucas' credibility. Thus, we hold that Lovitt's 

Brady claim is without merit. 

40
C. INEFFECTIVE ASSISTANCE OF COUNSEL 

 Lovitt argues that his trial counsel provided ineffective 

assistance during both the guilt phase and the penalty phase of 

the trial. With regard to the guilt phase, he challenges 

several decisions of his trial counsel, including their failure 

to have additional DNA tests performed on the bloody scissors 

and the jacket that he wore when he was arrested. Among 

Lovitt's other contentions are that counsel failed to conduct a 

reasonable investigation of the alleged murder weapon, failed to 

conduct a thorough investigation of Casel Lucas, and failed to 

request a jury instruction on the credibility of "jailhouse 

informants." 

 Lovitt also argues that his trial counsel rendered 

ineffective assistance at the penalty phase because they failed 

to conduct an adequate investigation into his background and 

family history. He asserts that trial counsel were required to 

perform such an investigation to ensure that counsel had made an 

informed decision regarding whether to present extensive 

mitigation evidence to the jury. Lovitt maintains that he was 

prejudiced by trial counsel's failure to conduct an adequate 

investigation because evidence of his family background could 

41
have reasonably convinced the jury to fix a sentence of life 

imprisonment.5

 In response, the warden argues that Lovitt's trial counsel 

provided effective assistance during both the guilt phase and 

the penalty phase of the trial. With regard to the guilt phase, 

the warden contends that trial counsel's decisions were based on 

a careful strategy to emphasize the circumstantial nature of the 

evidence and the fact that the DNA evidence did not point to any 

single person as the perpetrator of the crime. With regard to 

the penalty phase, the warden asserts that trial counsel were 

adequately familiar with Lovitt's record and family background, 

and that Lovitt has failed to demonstrate prejudice because 

evidence of his personal history would have supported a 

conclusion that he was a future danger to society. 

 We consider Lovitt's claims under established principles of 

review. A defendant's right to counsel under the Sixth 

Amendment includes the right to effective assistance of counsel. 

Strickland v. Washington, 466 U.S. 668, 685-86 (1984); see Roe 

v. Flores-Ortega, 528 U.S. 470, 476 (2000); United States v. 

Cronic, 466 U.S. 648, 654 (1984); Sheikh v. Buckingham Corr. 

 5

Lovitt also argues on brief that his trial counsel were 

ineffective at the penalty phase for failing to object to the 

jury verdict form. However, we do not consider this argument 

because Lovitt did not make this allegation in his petition for 

a writ of habeas corpus. See Sheikh v. Buckingham Corr. Ctr., 

264 Va. 558, 565 n.1, 570 S.E.2d 785, 789 n.1 (2002). 

42
Ctr., 264 Va. 558, 564, 570 S.E.2d 785, 788 (2002). Under this 

guarantee, a defendant is entitled to counsel who is reasonably 

competent and who gives advice that is within the range of 

competence required of attorneys in criminal cases. Strickland, 

466 U.S. at 687; see Wiggins v. Smith, 539 U.S. ___, ___, 123 

S.Ct. 2527, 2535 (2003); Kimmelman v. Morrison, 477 U.S. 365, 

384 (1986); Green v. Young, 264 Va. 604, 609, 571 S.E.2d 135, 

138 (2002); Sheikh, 264 Va. at 564, 570 S.E.2d at 788. The 

issue whether counsel provided a defendant effective assistance 

at trial presents a mixed question of law and fact. Strickland, 

466 U.S. at 698; see Sheikh, 264 Va. at 564, 570 S.E.2d at 788. 

 To prevail on a claim of ineffective assistance of counsel, 

a petitioner must ordinarily satisfy both parts of the two-part 

test set forth in Strickland. Strickland, 466 U.S. at 687; see

Wiggins, 539 U.S. at ___, 123 S.Ct. at 2535; Williams v. Taylor, 

529 U.S. 362, 390 (2000). The petitioner first must show that 

"counsel's representation fell below an objective standard of 

reasonableness." Strickland, 466 U.S. at 687-88; see also

Wiggins, 539 U.S. at ___, 123 S.Ct. at 2535; Bell v. Cone, 535 

U.S. 685, 695 (2002); Williams, 529 U.S. at 390-91; Friedline v. 

Commonwealth, 265 Va. 273, 277, 576 S.E.2d 491, 493 (2003). In 

making this determination, the court considering the habeas 

corpus petition "must indulge a strong presumption that 

counsel's conduct falls within the wide range of reasonable 

43
professional assistance." Strickland, 466 U.S. at 689; see also

Kimmelman, 477 U.S. at 381; Darden v. Wainwright, 477 U.S. 168, 

185-86 (1986); Sheikh, 264 Va. at 564, 570 S.E.2d at 788. 

 To show that counsel's conduct fell outside the range of 

reasonable professional assistance, a defendant must overcome 

the presumption that under the particular circumstances 

presented, the challenged actions may be considered sound trial 

strategy. Strickland, 466 U.S. at 689; see Bell, 535 U.S. at 

698; Darden, 477 U.S. at 186. However, "'strategic choices made 

after less than complete investigation are reasonable' only to 

the extent that 'reasonable professional judgments support the 

limitations on investigation.'" Wiggins, 539 U.S. at ___, 123 

S.Ct. at 2541 (quoting Strickland, 466 U.S. at 690-91); see also

Burger v. Kemp, 483 U.S. 776, 794 (1987). 

 With respect to the investigation and presentation of 

mitigation evidence, the Supreme Court observed in Wiggins that 

"Strickland does not require counsel to investigate every 

conceivable line of mitigating evidence no matter how unlikely 

the effort would be to assist the defendant at sentencing. Nor 

does Strickland require defense counsel to present mitigating 

evidence at sentencing in every case." Wiggins, 539 U.S. at 

___, 123 S.Ct. at 2541. 

 Rather, in deciding whether trial counsel exercised 

reasonable professional judgment with regard to the 

44
investigation and presentation of mitigation evidence, a 

reviewing court must focus on whether the investigation 

resulting in counsel's decision not to introduce certain 

mitigation evidence was itself reasonable. Wiggins, 539 U.S. at 

___, 123 S.Ct. at 2536; Strickland, 466 U.S. at 690-91. When 

making this assessment, "a court must consider not only the 

quantum of evidence already known to counsel, but also whether 

the known evidence would lead a reasonable attorney to 

investigate further." Wiggins, 539 U.S. at ___, 123 S.Ct. at 

2538. 

 If counsel's performance is found to have been deficient 

under the first part of the Strickland test, to obtain relief 

the petitioner must also show that "there is a reasonable 

probability that, but for counsel's unprofessional errors, the 

result of the proceeding would have been different. A 

reasonable probability is a probability sufficient to undermine 

confidence in the outcome." Strickland, 466 U.S. at 694; see

also Wiggins, 539 U.S. at ___, 123 S.Ct. at 2542; Williams, 529 

U.S. at 390-91; Hedrick v. Warden, 264 Va. 486, 496-97, 570 

S.E.2d 840, 847 (2002). 

 A reviewing court, however, is not required to determine 

whether "counsel's performance was deficient before examining 

the prejudice suffered by the defendant as a result of the 

alleged deficiencies. . . . If it is easier to dispose of an 

45
ineffectiveness claim on the ground of lack of sufficient 

prejudice, which we expect will often be so, that course should 

be followed." Strickland, 466 U.S. at 697; see also Strickler 

v. Murray, 249 Va. 120, 128, 452 S.E.2d 648, 652 (1995). 

 The reviewing court must make its prejudice determination 

by considering the totality of evidence before the trier of 

fact. Strickland, 466 U.S. at 695; see Kimmelman, 477 U.S. at 

381. Further, when a prejudice determination concerns the 

failure to pursue the presentation of mitigation evidence, the 

reviewing court must evaluate the totality of the available 

mitigation evidence, both that adduced at trial and that 

presented at the habeas hearing which should have been presented 

at trial. Wiggins, 539 U.S. at ___, 123 S.Ct. at 2543; 

Williams, 529 U.S. at 397-98. 

 We first consider Lovitt's arguments pertaining to trial 

counsel's strategy and actions during the guilt phase of his 

trial. We find no merit in his contention that trial counsel 

were ineffective based on an alleged failure to conduct a 

reasonable investigation of the murder weapon. The circuit 

court found that trial counsel investigated whether the bloody 

scissors could have caused Dicks' wounds. The court's finding 

is supported by Rucker's testimony that he consulted a forensic 

expert at the Northern Virginia Forensic Laboratory, who opined 

that scissors of that approximate size could have caused the 

46
wounds due to tissue compression at the time the wounds were 

inflicted. Based on this evidence, we conclude that counsel's 

investigation of the murder weapon was objectively reasonable. 

See Strickland, 466 U.S. at 687-88; see also Wiggins, 539 U.S. 

at ___, 123 S.Ct. at 2535; Williams, 529 U.S. at 390-91. 

 Lovitt argues, nevertheless, that counsel were ineffective 

for failing to cross-examine the Commonwealth's witnesses 

concerning the "inconsistencies" between the stab wounds and the 

bloody scissors. We disagree because the record establishes 

that Rucker's investigation revealed that the wounds were not 

inconsistent with scissors of that approximate size. Therefore, 

Rucker had an objectively reasonable basis for failing to pursue 

this subject on cross-examination of the Commonwealth's 

witnesses. See Strickland, 466 U.S. at 687-88; see also

Wiggins, 539 U.S. at ___, 123 S.Ct. at 2535; Williams, 529 U.S. 

at 390-91. 

 We also hold that trial counsel did not render ineffective 

assistance by failing to object to certain DNA evidence and by 

failing to request further testing of the bloody scissors and 

Lovitt's jacket. Rucker testified that trial counsel 

purposefully adopted a strategy not to question the inconclusive 

DNA test results from the tests performed on these items. 

According to Rucker, this strategy permitted counsel to argue to 

the jury that the DNA tests failed to identify Lovitt as the 

47
perpetrator of the crime, and that the Commonwealth had failed 

to bear its burden of proof on this issue. This strategy was 

objectively reasonable because it underscored the alleged 

deficiency in the Commonwealth's proof while avoiding the 

possibility that further testing of the scissors and jacket 

would yield results further implicating Lovitt in the murder. 

See Strickland, 466 U.S. at 687-88; see also Wiggins, 539 U.S. 

at ___, 123 S.Ct. at 2535; Williams, 529 U.S. at 390-91. 

 Lovitt next argues that trial counsel were ineffective for 

failing to request a continuance to investigate Lucas' 

background after counsel learned that Lucas would be testifying 

on behalf of the Commonwealth. We find no merit in this 

contention because Wolfe interviewed Lucas before he testified 

and obtained information concerning his multiple felony 

convictions and his participation in the Evans prosecution for 

which he obtained the benefit of a plea bargain. Given this 

extensive impeachment evidence obtained by Wolfe in her 

interview of Lucas, we conclude that trial counsel's 

investigation of Lucas constituted an objectively reasonable 

exercise of professional judgment, and that a continuance was 

not needed for further investigation. See Strickland, 466 U.S. 

at 687-88; see also Wiggins, 539 U.S. at ___, 123 S.Ct. at 2535; 

Williams, 529 U.S. at 390-91. 

48
 Lovitt also argues that trial counsel were ineffective for 

failing to request a jury instruction regarding the "credibility 

of jailhouse informants." Citing a decision from another 

jurisdiction, Lovitt contends that he was entitled to an 

instruction stating that the testimony of an "informer" must be 

weighed with greater care than the testimony of an "ordinary" 

witness. See Dodd v. State, 993 P.2d 778, 784 (Okla. Crim. App. 

2000). Lovitt's contention is without merit because the law of 

this Commonwealth does not require a fact finder to give 

different consideration to the testimony of a government 

informant than to the testimony of other witnesses. In 

addition, we observe that the jury at Lovitt's trial was 

properly instructed regarding its duty to determine the 

credibility of the witnesses. Therefore, we conclude that 

Lovitt has failed to prove that his counsel rendered ineffective 

assistance during the guilt phase of the trial. 

 We turn now to consider Lovitt's argument that trial 

counsel were ineffective in the penalty phase of the trial and 

that he suffered resulting prejudice. His contentions primarily 

address trial counsel's alleged failure to investigate his 

family background, which he asserts contained evidence of drug 

and sexual abuse, and counsel's failure to present more 

extensive evidence of his personal history to the jury. 

49
 Guided by Strickland, we directly consider the issue 

whether Lovitt suffered prejudice sufficient to undermine 

confidence in the outcome of his sentencing as a result of his 

counsel's failure to investigate and present certain mitigation 

evidence. See Strickland, 466 U.S. at 694; see also Wiggins, 

539 U.S. at ___, 123 S.Ct. at 2542; Williams, 529 U.S. at 391. 

We focus our analysis on the Wiggins decision in which the 

Supreme Court, applying Strickland, recently invalidated a 

habeas petitioner's death sentence based on trial counsel's 

failure to investigate and present certain mitigation evidence 

to the jury at the petitioner's sentencing proceeding. Wiggins, 

539 U.S. at ___, 123 S.Ct. at 2541-44. 

 In Wiggins, the petitioner was convicted of capital murder 

in a bifurcated proceeding. Id. at ___, 123 S.Ct. at 2532. 

During the penalty phase, trial counsel elected to present no 

mitigation evidence, instead seeking to prove that the evidence 

was insufficient to establish that the defendant was the actual 

perpetrator of the murder rather than a lesser participant in 

the crime. Id. at ___, 123 S.Ct. at 2532-33. Under Maryland 

law, this determination is made at the penalty phase of a 

capital murder trial, and a jury may impose the death penalty 

only if it determines that the defendant was the actual 

perpetrator of the offense. See Md. Code Ann., Crim. Law § 2-

202 (2002). 

50
 Prior to adopting this approach, trial counsel had the 

defendant evaluated by a psychologist, who concluded that the 

defendant "had an IQ of 79, had difficulty coping with demanding 

situations, and exhibited features of a personality disorder." 

Wiggins, 539 U.S. ___, 123 S.Ct. at 2536. However, the 

psychologist's report did not describe or address the 

defendant's extensive personal history. Id. at ___, 123 S.Ct. 

at 2536. Trial counsel also reviewed court and social services 

records, which referred to the defendant's "misery as a youth" 

and to the fact that he had spent most of his childhood in 

foster care. Id. at ___, 123 S.Ct. at 2536. 

 At the habeas hearing in Wiggins, the petitioner presented 

evidence from a psychologist that petitioner "experienced severe 

privation and abuse in the first six years of his life while in 

the custody of his alcoholic, absentee mother." Id. at ___, 123 

S.Ct. at 2542. Evidence from the psychologist further indicated 

that the petitioner "suffered physical torment, sexual 

molestation, and repeated rape during his subsequent years in 

foster care." Id. at ___, 123 S.Ct. at 2542. In addition, the 

evidence showed that the petitioner was homeless for a period of 

time and had "diminished mental capacities." Id. at ___, 123 

S.Ct. at 2542. 

 The Supreme Court held that trial counsel's decision to 

limit their investigation of mitigation evidence was 

51
unreasonable, because the evidence counsel had seen in the 

social services records would have led a reasonably competent 

attorney to conduct a further investigation. Id. at ___, 123 

S.Ct. at 2541-42. The Court concluded that the petitioner was 

prejudiced by counsel's unprofessional errors of judgment 

because the mitigating evidence that counsel failed to discover 

and present was "powerful." Id. at ___, 123 S.Ct. at 2542. In 

reaching this conclusion, the Court also observed that the 

petitioner's social history contained "little of the double edge 

we have found to justify limited investigations in other cases." 

Id. at ___, 123 S.Ct. at 2542. 

 Unlike the record in Wiggins, the record from Lovitt's 

trial shows that counsel presented some recent personal history 

as mitigation evidence at the penalty phase of the trial. That 

evidence, provided by four sheriff's deputies working at the 

Arlington jail, showed that Lovitt had made a very good 

adjustment to his incarceration and had participated in Bible 

study, in Alcoholics Anonymous meetings, and in voluntary work 

programs. 

 In addition, trial counsel presented some family history 

evidence through the testimony of Lamanda Jones, Lovitt's 

stepsister, who testified about the help that Lovitt had 

provided to his younger siblings in various aspects of their 

upbringing. She stated that Lovitt helped take care of the 

52
other children because his stepfather was an alcoholic and 

"wasn't allowed around us most of the time." According to 

Jones, Lovitt regularly fed the younger children and helped them 

get ready for school. Jones also testified that, as an adult, 

Lovitt visited her children every weekend and that she trusted 

him to be with them. 

 At the habeas hearing, the evidence of Lovitt's family and 

social history consisted of testimony from family members and 

various records from the courts, social services, and juvenile 

corrections. Lovitt did not present testimony from a 

psychologist or a psychiatrist concerning his family history and 

any effect that such history may have had on his development. 

 The testimony of Lovitt's family members at the habeas 

hearing consisted of mostly general statements concerning abuse 

directed toward Lovitt by his stepfather. Sherry Taylor, 

Lovitt's cousin, testified that Lovitt's stepfather was "very 

abusive" toward Lovitt and the other children. However, Taylor 

did not describe any abuse specifically directed at Lovitt, 

other than the fact that the stepfather "curs[ed] [Lovitt] out 

. . . all the time." 

 Taylor also testified regarding Lovitt's good qualities, 

stating that he was very protective of his siblings, helpful, 

and "good with kids." She further stated that all the children 

in the family loved him. 

53
 Lamanda Jones testified that Lovitt's stepfather abused 

alcohol and drugs, and that she had observed him "beat" Lovitt 

with a telephone cord on a frequent basis. Jones also stated 

that Lovitt's stepfather "molested" all the children, and that 

such abuse was a "regular occurrence." However, Jones did not 

relate any particular type or instance of sexual abuse directed 

at Lovitt, and her only specific testimony regarding sexual 

abuse concerned some of the other children. 

 Addressing Lovitt's good qualities, Jones stated that 

Lovitt tried to protect his younger siblings from their father's 

abuse. She also indicated that Lovitt was a "father figure" to 

her during her childhood, and stated that he was "like [a] 

father" to her own children. 

 Tonjala Carter, another stepsister, testified that Lovitt's 

stepfather abused alcohol and drugs and was very violent toward 

Lovitt. However, her testimony concerning such violence was 

limited to a general description that the stepfather was "always 

hitting on him, always cursing at him," and was very "mean." 

 Carter also related that Lovitt had good qualities as a 

brother and an uncle. She stated that he often tried to protect 

the younger siblings from their father and was a "father figure" 

to them in several of the aspects of their daily life. Carter 

also testified that Lovitt was "[v]ery good" with his nieces and 

nephews. 

54
 The various records introduced at the habeas hearing were 

equivocal in some respects and could have been viewed by a jury 

as either evidence in aggravation or in mitigation of the 

offense. For example, Lovitt's substance abuse and medical 

records showed that Lovitt had an antisocial personality 

disorder and "polysubstance" dependence. The records stated 

that Lovitt began drinking alcohol, supplied by his stepfather, 

at the age of five, and began using marijuana at the age of 

eight. 

 These records also showed that Lovitt abused many different 

types of drugs as an adult, including heroin, amphetamines, 

"acid," and phencyclidine. The records described Lovitt as 

having a "serious problem with his anger" and having 

"[d]ifficulty in respecting others." Also, in some of these 

records, Lovitt described his family as "growing up close" and 

stated that he "had everything he needed." 

 In his juvenile court records, Lovitt's childhood home was 

described by a caseworker as being "very clean and nicely 

furnished," and his mother and stepfather were described as 

"strong individuals" who provided Lovitt with "a stable home 

life." Lovitt's childhood home was further described by a 

caseworker "as being well-maintained and adequate for the 

family's needs." In addition, a clinical assessment contained 

in the juvenile records stated that Lovitt did not relate any 

55
problems with his family and "reported no difficulties in the 

relationship with his stepfather." However, other juvenile 

records showed that Lovitt described his stepfather as a "heavy 

drinker [who] would sometimes become abusive toward his wife and 

children." 

 The juvenile records also contained references to Lovitt's 

lack of remorse for his behavior, lack of empathy for others, 

lack of respect for the law, and propensity to blame others for 

trouble that he instigated. These records also described Lovitt 

as being "physically aggressive" and "manipulative," and as 

having assaulted other juveniles at the Beaumont Correctional 

Center. 

 In determining prejudice, we "reweigh the evidence in 

aggravation against the totality of available mitigating 

evidence." Wiggins, 539 U.S. at ___, 123 S.Ct. at 2542; see

also Williams, 529 U.S. at 397-98. The evidence in aggravation 

included the brutal nature of the attack on Dicks, and the fact 

that Lovitt murdered Dicks solely to eliminate any witness to 

the robbery. Lovitt's prior record contained numerous felonies 

including attempted robbery, several burglaries and larcenies, 

and drug violations. While incarcerated for some of these 

crimes, Lovitt was charged with many disciplinary violations, 

which included assault, manufacturing "shank handles," and 

56
possession of cocaine. He was on parole at the time he murdered 

Dicks. 

 The mitigation evidence concerning Lovitt's home life as a 

child is mixed, with some evidence from his juvenile records 

suggesting that the situation might not have been as difficult 

as the testimony at the habeas hearing indicated. In addition, 

there is no evidence describing the nature or extent of sexual 

abuse allegedly inflicted on Lovitt by his stepfather. Without 

such evidence, this Court would have to resort to speculation to 

consider any sexual abuse that Lovitt may have suffered. 

 The evidence regarding Lovitt's stepfather's other actions 

toward him is somewhat general in nature. Nevertheless, the 

evidence in mitigation at the habeas hearing contained 

information about Lovitt's stepfather having provided Lovitt 

alcohol at an early age and having hit him repeatedly with a 

telephone cord and cursing him. 

 The evidence in mitigation also included descriptions of 

Lovitt helping to take care of his siblings to compensate for 

Lovitt's alcoholic stepfather's failure to assume this role. 

However, the jury was informed of this fact, although in less 

detail, when Lamanda Jones testified at the penalty phase 

proceeding. There also was evidence in mitigation, which was 

not presented by trial counsel, that Lovitt helped protect his 

younger siblings from abuse by their father. 

57
 The evidence concerning Lovitt's extensive drug abuse and 

antisocial personality disorder is evidence of a type that the 

Court in Wiggins termed "double edge." See Wiggins, 539 U.S. at 

___, 123 S.Ct. at 2542. As such, this evidence could be viewed 

both in aggravation and in mitigation of the offense. See

Burger, 483 U.S. at 793-94; Darden, 477 U.S. at 186-87. 

Lovitt's juvenile and other records also are evidence reflecting 

a "double edge," and show that he began a cycle of crime and 

aggressive behavior at an early age and continued this pattern 

throughout his adult life, despite the many occasions he was 

offered assistance to resolve his problems. 

 We also observe that there is no evidence in the record 

from a psychologist or a psychiatrist providing an evaluation of 

Lovitt's mental health. Thus, there is no evidence directly 

addressing the effect Lovitt's family life may have had on his 

development. The absence of such evidence represents a failure 

of proof regarding Lovitt's contention that he was prejudiced by 

trial counsel's failure to present extensive evidence of his 

family and social history at the penalty phase proceeding. 

 In addition, there is no evidence in the record that Lovitt 

has a diminished mental capacity. This aspect of the case 

represents a major distinction from the evidence presented in 

Wiggins, which showed that the petitioner exhibited "borderline 

retardation." Wiggins, 539 U.S. at ___, 123 S.Ct. at 2533. 

58
 The evidence in Wiggins also showed that the petitioner had 

no prior convictions. Id. at ___, 123 S.Ct. at 2543. By 

contrast, as indicated above, Lovitt's prior record depicts a 

person who, in essence, was a "career criminal" unaffected by 

the many attempts to offer him rehabilitative services. 

 Upon reviewing the evidence in aggravation and in 

mitigation of the offense presented at the penalty phase of the 

trial and at the habeas hearing, we conclude that Lovitt has 

failed to demonstrate that his defense was prejudiced by trial 

counsel's failure to investigate and present the available 

mitigation evidence. Based on all the evidence before us, we 

hold that the record fails to show that, but for his trial 

counsel's stated failures, there is a reasonable probability 

that the result of the proceedings would have been different. 

See Strickland, 466 U.S. at 694; see also Wiggins, 539 U.S. at 

___, 123 S.Ct. at 2542; Williams, 529 U.S. at 391. In short, 

the record before us does not undermine confidence in the 

outcome of the proceedings. See Strickland, 466 U.S. at 694; 

see also Wiggins, 539 U.S. at ___, 123 S.Ct. at 2542; Williams, 

529 U.S. at 391. 

 Our conclusion in this regard is not altered by the Supreme 

Court's decision in Williams. There, the Court concluded that a 

defendant had suffered prejudice resulting from his counsel's 

failure to present substantial available mitigation evidence at 

59
the penalty phase of his capital murder trial. Williams, 529 

U.S. at 396. 

 The available mitigation evidence that was not presented in 

Williams showed that the petitioner had suffered extreme abuse 

and neglect in his early childhood years. Id. at 395. The 

evidence indicated that the petitioner's parents both had been 

imprisoned for criminally neglecting the petitioner, "that 

Williams had been severely and repeatedly beaten by his father, 

[and] that he had been committed to the custody of the social 

services bureau for two years during his parents' incarceration 

(including one stint in an abusive foster home)." Id. In 

addition, the evidence available, but not presented, in Williams

indicated that the petitioner was "'borderline mentally 

retarded' and did not advance beyond sixth grade in school." 

Id. at 396. 

 In contrast, the record before us does not contain 

extensive evidence of abuse that Lovitt suffered as a child. 

Nor does the evidence suggest that he has a diminished mental 

capacity. In fact, Lovitt obtained a high school equivalency 

diploma, commonly known as a G.E.D. degree, as an adult. Thus, 

the evidence before us does not raise the same concerns that the 

Supreme Court in Williams held "might well have influenced the 

jury's appraisal of [the petitioner's] moral culpability." Id.

at 398. 

60
 Finally, we observe that in reaching its conclusion in 

Williams that the petitioner suffered prejudice as a result of 

his counsel's errors, the Supreme Court also observed that trial 

counsel did not introduce evidence from certain witnesses who 

were not related to the petitioner and were available to 

testify. Id. at 396. The Court observed that a certified 

public accountant, who had visited Williams frequently as part 

of a prison ministry program, had been available to testify that 

Williams appeared to thrive in the structured environment of 

prison and had earned a carpentry degree while incarcerated. 

Id. The Court also stated that certain prison officials would 

have testified that, in their opinion, Williams was not likely 

to act in a dangerous or violent manner while incarcerated. Id.

 At Lovitt's trial, however, the jury did hear testimony 

regarding his good adjustment to prison life while awaiting 

trial. As we have already noted, four correctional officers 

testified to this effect at the penalty phase proceeding. Thus, 

for all the above reasons, we conclude that the nature and 

amount of mitigation evidence that was proved to be available, 

but not presented, in Lovitt's case is materially different from 

the available mitigation evidence not presented in Williams. 

 We also find no merit in Lovitt's claim that the judge at 

the habeas hearing improperly excluded certain affidavits by 

several of Lovitt's family members that Lovitt attempted to 

61
introduce into evidence. Assuming, without deciding, that such 

affidavits are admissible subject to the trial court's 

discretion in an evidentiary hearing held under Code § 8.01-

654(C), we conclude that the circuit court did not abuse its 

discretion in refusing to admit them into evidence. The facts 

alleged in those affidavits were cumulative of the testimony of 

Taylor, Jones, and Carter. 

 Lovitt also is incorrect in his assertion that the 

affidavits at issue would have been admissible in the penalty 

phase proceeding and, thus, should have been admitted into 

evidence on that basis at the habeas hearing. Unlike some other 

jurisdictions, Virginia does not permit the admission of such 

hearsay evidence during penalty phase proceedings. See Code 

§ 19.2-264.4(B).

 We do not consider in this habeas corpus proceeding 

Lovitt's claim that he is actually innocent. This issue was 

resolved by the jury in his trial on the capital murder and 

robbery charges. As stated above, we affirmed the judgment of 

the circuit court, and the United States Supreme Court denied 

Lovitt's petition for a writ of certiorari challenging those 

convictions. We also observe that an assertion of actual 

innocence is outside the scope of habeas corpus review, which 

concerns only the legality of the petitioner's detention. See

Wilkins, 255 Va. at 420-21, 498 S.E.2d at 696; McClenny, 246 Va. 

62
at 134-35, 431 S.E.2d at 331; Smyth, 199 Va. at 96-97, 97 S.E.2d 

at 748. 

 Finally, we have reviewed Lovitt's remaining allegations 

and conclude that they have no merit. 

 For these reasons, we will dismiss the petition for a writ 

of habeas corpus. 

Petition dismissed.

63