VIRGINIA:

 In the Supreme Court of Virginia held at the Supreme Court 

Building in the City of Richmond, on Friday, the 2nd day of 

November, 2007. 

Larry Bill Elliott, Petitioner, 

 against Record No. 050573 

Warden of the Sussex I State Prison, Respondent. 

Upon a Petition for a Writ of Habeas Corpus 

 Upon consideration of the petition for a writ of habeas corpus 

filed April 5, 2005, the respondent's motion to dismiss, and the 

petitioner’s reply to the respondent’s motion to dismiss, the Court 

is of the opinion that the motion should be granted and the writ 

should not issue. 

Larry Bill Elliott was convicted in the Circuit Court of 

Prince William County of one count of capital murder of Dana 

Thrall, one count of first-degree murder of Robert Finch, and two 

counts of use of a firearm in the commission of a felony. Finding 

that the Commonwealth had proven the aggravating factor of 

“vileness” beyond a reasonable doubt, see Code § 19.2-264.2, the 

jury fixed Elliott’s sentence at death on the capital murder 

conviction and at one life sentence plus eight years’ imprisonment 

for the non-capital convictions. The trial court sentenced Elliott 

in accordance with the jury’s verdict. This Court affirmed 
2

Elliott’s convictions and sentence of death. Elliott v. 

Commonwealth, 267 Va. 396, 431, 593 S.E.2d 270, 292 (2004), cert.

denied, 543 U.S. 1081 (2005). 

Section (I) of the petition for a writ of habeas corpus does 

not contain any claims. 

Procedural Defaults

In claim (II), petitioner raises several allegations that the 

Commonwealth failed to meet its obligations under Brady v. 

Maryland, 373 U.S. 83 (1963) by withholding certain material and 

exculpatory evidence. 

In claim (II)(1), petitioner alleges the Commonwealth did not 

disclose statements “of the Thrall boy(s) likely containing 

exculpatory evidence about a black man leaving the house.” 

Petitioner relies on several affidavits containing hearsay 

information that at least one of the Thrall boys said he saw 

“either a black man or a man wearing black running from the rear of 

the townhouse.” Petitioner, however, has proffered no evidence 

properly before this Court to demonstrate that the Commonwealth had 

exculpatory evidence that was not disclosed. The record, including 

affidavits by the Commonwealth’s Attorneys involved in the case, 

demonstrates that neither the police nor these attorneys had any 

knowledge of any exculpatory statements made by the Thrall 

children. 

In claim (II)(6), petitioner alleges that the Commonwealth did 

not provide reports on all of Rebecca Gragg’s polygraph tests. 
3

Petitioner contends that Gragg, who was Finch’s ex-girlfriend, was 

subjected to a third polygraph examination and argues that any 

inconsistent statements Gragg made during administration of the 

third test could have been used to impeach her trial testimony. 

Petitioner has proffered no evidence properly before this Court to 

support his claim that a third polygraph test was administered. 

The record, including affidavits of the Commonwealth’s Attorney and 

the polygrapher, demonstrates that there were only two polygraph 

tests administered by the Commonwealth in connection with the 

investigation. 

The Court holds that the alleged Brady violations contained in 

claims (II)(1) and (II)(6) are factually without merit. Petitioner 

has proffered no evidence properly before the Court to support the 

allegations and, thus, has failed to establish that the 

Commonwealth withheld any exculpatory evidence in violation of 

Brady. 

In claim (II)(2), petitioner alleges that the Commonwealth did 

not produce photographs, provided by Robert Finch’s parents, 

depicting Finch after he allegedly had been severely beaten by 

friends of Rebecca Gragg. The record, including the trial 

transcript, demonstrates that petitioner was aware, at trial, of 

the alleged existence of these photographs and of the 

Commonwealth’s denial that the photographs existed. 

In claim (II)(3), petitioner alleges that the Commonwealth did 

not provide a recording of a conversation between Gragg and 
4

Detective Charles Hoffman during a “smoke break” from the police 

interrogation of Gragg on May 10, 2001. The record, including the 

trial transcripts and the issues raised on appeal, demonstrates 

that petitioner was aware of this conversation that took place on 

May 10 and questioned whether or not it was recorded. Although 

petitioner raised a similar claim on direct appeal, this Court 

determined the argument to be waived because petitioner had not 

raised the same argument at trial. 

In claims (II)(4) and (II)(5), petitioner alleges that the 

Commonwealth did not provide reports prepared by Detectives 

Masterson, Hoffman, and McClelland with regard to a request Gragg 

allegedly made for a copy of her written statement to police, which 

was allegedly prepared after a conversation Gragg had with officers 

during a “smoke break.” Petitioner contends also that Gragg 

believed her written statement had been prepared on a computer and 

that the Commonwealth did not provide an electronic version of 

Gragg’s statement. The record, including the trial transcripts, 

petitioner’s direct appeal brief, and this Court’s opinion on 

direct appeal, demonstrates that the issue of whether a written 

statement of the “smoke break” conversation existed was raised at 

trial and that the detectives involved denied that such a statement 

existed. This Court rejected petitioner’s argument on direct 

appeal because the argument was different than the one petitioner 

raised at trial. 
5

In claim (II)(7), petitioner alleges that the Commonwealth 

intentionally ignored evidence implicating others present at the 

crime scene. Petitioner argues that, although forensic testing 

confirmed that the blood and DNA found on the front and back doors 

of the house and on Finch’s jeans did not belong to petitioner, the 

Commonwealth did not attempt to learn the source of this DNA. 

In claim (II)(8), petitioner alleges that, taken together, his 

allegations of Brady violations show materiality because but for 

the violations, he could have impeached the testimony of Gragg and 

Hoffman. 

In claim (III)(A), petitioner claims that his rights under 

Napue v. Illinois, 360 U.S. 264 (1959) and Giglio v. United States, 

405 U.S. 150, 153 (1972) were violated when Officer Thomas Leo 

falsely testified that he collected blood from the back gate on 

January 2, 2001, instead of on a different date, and when the 

Commonwealth then presented false evidence by submitting the blood 

sample marked with the January 2 date. 

In claim (III)(B), petitioner claims his rights under Napue

and Giglio were violated when Detective Charles Hoffman testified 

falsely on three occasions. Petitioner alleges that Hoffman lied 

when he testified that he never received any photographs showing 

Finch had been assaulted and when he explained why he used the word 

“polygrapher” during his testimony. Petitioner further alleges 

that Hoffman appeared to commit perjury when his testimony about 
6

the existence of a tape recording of a conversation that occurred 

during a “smoke break” differed from Gragg’s testimony. 

In claim (III)(C), petitioner alleges that the Commonwealth 

improperly “sponsored” Gragg’s testimony despite questions 

concerning Gragg’s credibility before trial. Petitioner contends 

that the Commonwealth “vouched” for Gragg as a principal witness 

and solicited false testimony from her. 

In claim (III)(D), petitioner alleges that the cumulative 

impact of the Giglio and Napue right violations proves a reasonable 

likelihood that the Commonwealth knowingly presented false 

testimony, which affected the jury’s judgment. 

The Court holds that claims (II)(2), (II)(3), (II)(4), 

(II)(5), (II)(7), (II)(8), (III)(A), (III)(B), (III)(C) and 

(III)(D) are procedurally defaulted because these nonjurisdictional issues could have been raised at trial and on direct 

appeal and, thus, are not cognizable in a petition for a writ of 

habeas corpus. Slayton v. Parrigan, 215 Va. 27, 29, 205 S.E.2d 

680, 682 (1974), cert. denied, 419 U.S. 1108 (1975). 

Ineffective Assistance of Counsel Claims

In claim (IV)(A), petitioner alleges he was denied the 

effective assistance of counsel during the guilt phase of his trial 

because counsel failed to adequately investigate and prepare for 

trial. Petitioner asserts that counsel failed to obtain a complete 

transcript of the first trial, which ended in a mistrial, and 

failed to interview jurors from the first trial. 
7

The Court holds that claim (IV)(A) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984). 

The record, including the trial transcript of the second trial and 

William Moffitt’s affidavit, demonstrates that Moffitt, one of the 

attorneys who represented petitioner in his first trial, also 

represented petitioner in the second trial and obtained transcripts 

of portions of the first trial. Petitioner does not articulate how 

obtaining transcripts of the remainder of the first trial would 

have been helpful and does not specify how the lack of transcripts 

affected counsel’s performance. Petitioner does not proffer what 

questions counsel should have asked jurors from the first trial, 

how the jurors would have responded, or how such information would 

have aided counsel’s performance in the second trial. Counsel was 

not required to interview any jurors following the grant of a 

mistrial in the first trial. Lenz v. Warden, 267 Va. 318, 326, 593 

S.E.2d 292, 296-97 (2004). Thus, petitioner has failed to 

demonstrate that counsel’s performance was deficient or that there 

is a reasonable probability that, but for counsel’s alleged errors, 

the result of the proceeding would have been different. 

In the first portion of claim (IV)(A)(1)(a), petitioner 

alleges he was denied the effective assistance of counsel during 

the guilt phase of his trial because counsel failed to identify, 

interview, or call Todd Prach to testify to petitioner’s location, 

activities, and appearance on the morning of the murders. 
8

Petitioner alleges that Prach would have testified that, between 

5:00 and 5:30 a.m. on the morning of the murders, he spoke with 

petitioner at Ft. Meade and observed no blood on or anything 

unusual about petitioner. Petitioner contends that Prach’s 

testimony would have refuted the Commonwealth’s suggested timeline 

for the morning of the murders because petitioner could not have 

committed the murders, cleaned himself and the crime scene, driven 

to the restaurant where he placed a call to Gragg, disposed of 

trash bags containing evidence, and then arrived at Fort Meade by 

5:30 a.m. 

The Court holds that the first portion of claim (IV)(A)(1)(a) 

fails to satisfy the “prejudice” prong of the two-part test 

enunciated in Strickland. The record, including the trial 

transcript, demonstrates that petitioner’s truck was seen in the 

neighborhood between 4:15 a.m. and 4:25 a.m. on the morning of the 

murders and petitioner repeatedly admitted that he was in the area 

of the murders at that time. No evidence was presented at trial 

concerning how much time petitioner spent cleaning the crime scene; 

however, petitioner was no longer in the house when police 

responded at 4:25 a.m. While petitioner contends that it would 

have been impossible for him to have cleaned himself up prior to 

seeing Prach, he fails to point to any evidence that the killer was 

bloody or where on the killer’s person the blood would have been. 

In addition, the evidence presented at trial did not specify the 

exact time petitioner disposed of the trash bags. Thus, petitioner 
9

has failed to demonstrate that there is a reasonable probability 

that, but for counsel’s alleged errors, the result of the 

proceeding would have been different. 

In the second portion of claim (IV)(A)(1)(a), petitioner 

asserts that counsel was ineffective for failing to adequately 

interview Kathy Elliott, petitioner’s wife, who now claims she 

would have testified that, at 6:00 a.m. on the morning of the 

murders, petitioner returned home from a weekend away and did not 

appear unusual in appearance or demeanor and that petitioner had a 

reputation for being non-violent. Petitioner contends his wife 

could also have testified that petitioner had no recent bleeding 

from the scabbed abrasions on the back of petitioner’s hand. 

The Court holds that the second portion of claim (IV)(A)(1)(a) 

satisfies neither the “performance” nor the “prejudice” prong of 

the two-part test enunciated in Strickland. The record, including 

Kathy Elliott’s affidavit, demonstrates that petitioner came home 

and immediately began doing a load of laundry and took a shower; 

raising an inference that petitioner was attempting to remove 

evidence linking him to the murders. Contrary to petitioner’s 

argument, Kathy Elliott’s affidavit does not reference the injury 

to petitioner’s hand. Furthermore, the evidence demonstrates that 

petitioner and Gragg had worked together to defraud Kathy Elliott 

of a large sum of money, and trial counsel cannot be faulted for 

failing to pursue a witness whom petitioner had defrauded. Thus, 

petitioner has failed to demonstrate that counsel’s performance was 
10

deficient or that there is a reasonable probability that, but for 

counsel’s alleged errors, the result of the proceeding would have 

been different. 

In the third portion of claim (IV)(A)(1)(a), petitioner 

alleges he was denied the effective assistance of counsel because 

counsel failed to adequately interview Kaitlynn Elliott, 

petitioner’s daughter. Petitioner alleges he drove Kaitlynn to 

school in his truck the morning of the murders and that Kaitlynn 

noticed nothing unusual about her father or the truck and did not 

see any bags in the truck. 

The Court holds that the third portion of claim (IV)(A)(1)(a) 

satisfies neither the “performance” nor the “prejudice” prong of 

the two-part test enunciated in Strickland. The record, including 

the trial transcripts, demonstrates that the only evidence 

concerning the trash bags came from Gragg, who testified that 

petitioner called her from a restaurant and told her he had stopped 

to dispose of trash bags. No evidence established that trash bags 

were actually ever in petitioner’s vehicle or specifically when 

petitioner disposed of the bags. Thus, petitioner has failed to 

demonstrate that counsel’s performance was deficient or that there 

is a reasonable probability that, but for counsel’s alleged errors, 

the result of the proceeding would have been different. 

In the first portion of claim (IV)(A)(1)(b), petitioner 

alleges he was denied the effective assistance of counsel during 

the guilt phase of his trial because counsel failed to identify, 
11

interview, or call key witnesses to testify about petitioner’s 

interest in silencers for weapons to use on target ranges. 

Petitioner contends that several witnesses would have testified 

that they had discussed the possibility of creating a target 

shooting range at Ft. Meade and that petitioner sought information 

concerning silenced weapons for use at the range. 

The Court holds that the first portion of claim (IV)(A)(1)(b) 

satisfies neither the “performance” nor the “prejudice” prong of 

the two-part test enunciated in Strickland. The record, including 

the trial transcript and petitioner’s e-mail to Randy Jackson, 

demonstrates that the information petitioner contends counsel 

should have elicited would have been cumulative. The jury was 

informed that petitioner sought information from Jackson on 

silencers purportedly as part of an investigation concerning the 

development of a shooting range in a building at Fort Meade. The 

jury was also aware that petitioner had then sent Gragg an e-mail 

concerning this inquiry and his plan to seek more information from 

different sources. Thus, petitioner has failed to demonstrate that 

counsel’s performance was deficient or that there is a reasonable 

probability that, but for counsel’s alleged errors, the result of 

the proceeding would have been different. 

In the second portion of claim (IV)(A)(1)(b), petitioner 

alleges he was denied the effective assistance of counsel during 

the guilt phase of his trial because counsel failed to identify, 

interview, or call Gail and Terry McGraw, who would have testified 
12

that Jackson, with whom petitioner had e-mailed about obtaining a 

silencer, had a romantic interest in Gail and was jealous of 

petitioner’s friendship with Gail. Petitioner contends that 

Jackson’s jealously would explain Jackson’s motive to exaggerate 

his testimony to harm petitioner. 

The Court holds that the second portion of claim (IV)(A)(1)(b) 

satisfies neither the “performance” nor the “prejudice” prong of 

the two-part test enunciated in Strickland. Petitioner fails to 

articulate how such testimony would not have constituted 

inadmissible hearsay. Furthermore, impeaching Jackson’s testimony 

in this manner would not have undermined the evidence of the e-mail 

containing petitioner’s inquiry into silencers immediately before 

the murders. Thus, petitioner has failed to demonstrate that 

counsel’s performance was deficient or that there is a reasonable 

probability that, but for counsel’s alleged errors, the result of 

the proceeding would have been different. 

In claim (IV)(A)(1)(c), petitioner alleges he was denied the 

effective assistance of counsel during the guilt phase of his trial 

because counsel failed to identify, interview, or call key 

witnesses to testify about petitioner’s habit of “compulsively 

cleaning” his vehicles. Petitioner asserts that Chris McSpadden 

and Robert Barrow would have testified that beer was spilled in 

petitioner’s truck at a football game a few days before the 

murders, explaining any recent cleaning of the truck and rebutting 
13

the Commonwealth’s speculation of why the truck was so clean after 

the murders. 

The Court holds that claim (IV)(A)(1)(c) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. Evidence of petitioner’s cleaning habits 

would also have bolstered the Commonwealth’s case by reinforcing 

the expert witness testimony that a thorough, recent cleaning of 

the truck could have removed any evidence existing in it after the 

crimes. The fact that petitioner may have cleaned his truck in the 

days immediately preceding the murders does not negate a conclusion 

that petitioner also cleaned his truck after the murders. Thus, 

petitioner has failed to demonstrate that counsel’s performance was 

deficient or that there is a reasonable probability that, but for 

counsel’s alleged errors, the result of the proceeding would have 

been different. 

In claim (IV)(A)(1)(d), petitioner alleges he was denied the 

effective assistance of counsel during the guilt phase of his trial 

because counsel failed to identify, interview, or call the victims’ 

family members. Petitioner asserts that Robert Finch’s parents and 

Dana Thrall’s father would have testified about their various 

theories that Rebecca Gragg was responsible for the murders or that 

the murders were connected to Robert Finch’s alleged illegal drug 

connections. These witnesses believed Gragg was responsible 

because she allegedly had previously arranged to have Robert Finch 
14

beaten in West Virginia and she was afraid Finch would gain 

permanent custody of her children. 

The Court holds that claim (IV)(A)(1)(d) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. The trial court and this Court held that 

evidence of third party involvement was not proven; therefore, 

testimony on alternative theories of who committed the murders 

would not have been admissible under Johnson v. Commonwealth, 259 

Va. 654, 681, 529 S.E.2d 769, 784, cert. denied, 531 U.S. 981 

(2000). Furthermore, evidence of Gragg’s alleged involvement in 

arranging the murders does not negate the evidence that petitioner 

actually committed the murders. Thus, petitioner has failed to 

demonstrate that counsel’s performance was deficient or that there 

is a reasonable probability that, but for counsel’s alleged errors, 

the result of the proceeding would have been different. 

In the first portion of claim (IV)(A)(1)(e), petitioner 

alleges he was denied the effective assistance of counsel during 

the guilt phase of his trial because counsel failed to call Larry 

Kent Smith to testify that Gragg’s relatives had previously beaten 

Finch and Finch had once told Smith that if Finch ever turned up 

dead, Gragg would have been responsible; Finch kept large amounts 

of money in the house; and Finch’s dog, a 150-pound Mastiff, would 

not let anyone it did not know through the back gate of Finch’s 

home. 
15

The Court holds that the first portion of claim (IV)(A)(1)(e) 

satisfies neither the “performance” nor the “prejudice” prong of 

the two-part test enunciated in Strickland. Smith’s testimony 

about Gragg’s relatives beating Finch and about Finch keeping money 

in his home would have constituted inadmissible hearsay. 

Furthermore, no testimony about the dog could impeach the fact that 

petitioner’s DNA was found on the inside of the back gate of the 

home. Officer Creamer testified that when he entered the backyard 

the dog was calm and friendly. Thus, petitioner has failed to 

demonstrate that counsel’s performance was deficient or that there 

is a reasonable probability that, but for counsel’s alleged errors, 

the result of the proceeding would have been different. 

In the second portion of claim (IV)(A)(1)(e), petitioner 

alleges he was denied the effective assistance of counsel during 

the guilt phase of his trial because counsel failed to call Dorothy 

Roberts, a secretary of the guardian ad litem appointed to 

represent the interests of the couple’s children during the custody 

dispute between Finch and Gragg. Petitioner contends Roberts would 

have rebutted testimony that the couple’s relationship was still 

intimate and would have contradicted Gragg’s testimony that she 

kept Finch informed about his children’s whereabouts. 

The Court holds that the second portion of claim (IV)(A)(1)(e) 

satisfies neither the “performance” nor the “prejudice” prong of 

the two-part test enunciated in Strickland. Any information 

provided by Roberts concerning the intimacy of Finch’s and Gragg’s 
16

relationship and whether Finch was informed about his children’s 

whereabouts would have constituted inadmissible hearsay. Thus, 

petitioner has failed to demonstrate that counsel’s performance was 

deficient or that there is a reasonable probability that, but for 

counsel’s alleged errors, the result of the proceeding would have 

been different. 

In the third portion of (IV)(A)(1)(e), petitioner alleges he 

was denied the effective assistance of counsel during the guilt 

phase of his trial because counsel failed to call fifteen witnesses 

to testify to petitioner’s reputation for being peaceable and nonviolent. 

The Court holds that the third portion of claim (IV)(A)(1)(e) 

satisfies neither the “performance” nor the “prejudice” prong of 

the two-part test enunciated in Strickland. While these witnesses 

may have been able to testify to petitioner’s reputation for being 

non-violent, these witnesses would have been subject to crossexamination as to their knowledge of petitioner’s relationship with 

Gragg and how petitioner and Gragg defrauded his wife of large 

amounts of money. Furthermore, in light of the sufficient evidence 

of petitioner’s guilt, petitioner cannot demonstrate that testimony 

as to petitioner’s reputation in those limited areas of his life 

would have had any significant impact on the jury’s decision. 

Thus, petitioner has failed to demonstrate that counsel’s 

performance was deficient or that there is a reasonable probability 
17

that, but for counsel’s alleged errors, the result of the 

proceeding would have been different. 

In claim (IV)(A)(2), petitioner alleges he was denied the 

effective assistance of counsel during the guilt phase of his trial 

because counsel failed to obtain key documents, identify key 

witnesses, and call crime scene reconstruction and blood spatter 

experts. Petitioner asserts that counsel failed to obtain 

petitioner’s and Gragg’s complete cell phone records with detailed 

cell tower information, which might have confirmed that petitioner 

made the 5:23 a.m. phone call to Gragg from his office parking lot, 

not at a restaurant. Petitioner also asserts that counsel should 

have obtained (1) Thrall’s and Finch’s financial records to 

discover whether they had a legitimate source of funds to purchase 

a $300,000 home, (2) medical records where Finch received treatment 

for his beating allegedly caused by Gragg’s friends, and (3) police 

reports about the beating. Petitioner contends that this 

information would have bolstered the theory that Finch was involved 

in illegal activities and that others had a motive to kill Finch. 

Petitioner also asserts that counsel should have called a crime 

scene/blood spatter expert to challenge the Commonwealth’s version 

of how the murders transpired. 

The Court holds that claim (IV)(A)(2) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. Petitioner does not provide a copy of 

the cell phone records provided to counsel or a copy of any 
18

unredacted records to establish what the records would have proven. 

As to evidence concerning a beating Finch received in West 

Virginia, the circuit court held that similarly suggestive evidence 

involving an altercation was inadmissible and that a theory of 

alternate killers was also inadmissible. Finally, petitioner 

provides no blood spatter analysis different from that presented at 

trial but merely speculates that a defense expert would have 

provided favorable evidence. Thus, petitioner has failed to 

demonstrate that counsel’s performance was deficient or that there 

is a reasonable probability that, but for counsel’s alleged errors, 

the result of the proceeding would have been different. 

In claim (IV)(B)(1) and a portion of claim (IV)(B)(10), 

petitioner alleges he was denied the effective assistance of 

counsel during the guilt phase of his trial because counsel failed 

to object when, during opening statement, the Commonwealth’s 

Attorney called petitioner a “liar” and a “thief” who was willing 

to steal from his own family and failed to move for a new trial at 

the end of the Commonwealth’s case, because the Commonwealth failed 

to prove what was asserted in the opening statement. Petitioner 

also contends counsel should have objected, during opening 

statement, when the Commonwealth’s Attorney (1) read e-mails 

allegedly written by petitioner which were not marked as exhibits, 

authenticated, or admitted, (2) made inflammatory statements that 

petitioner was “flawed,” and (3) showed the jury a photograph of 

the victims and their children. 
19

The Court holds that claim (IV)(B)(1) and this portion of 

claim (IV)(B)(10) satisfy neither the “performance” nor the 

“prejudice” prong of the two-part test enunciated in Strickland. 

The record, including the trial transcript, demonstrates that the 

Commonwealth’s opening statement constituted a fair depiction of 

the evidence to be presented and a fair inference of what the 

evidence would prove and, thus, was not objectionable. Evidence is 

not usually authenticated at the time of opening statements and the 

e-mails were later authenticated by Gragg and admitted as evidence. 

Photographs of the victims are admissible and may be used in 

opening statements. Bennett v. Commonwealth, 236 Va. 448, 471, 374 

S.E.2d 303, 317, (1988), cert. denied, 490 U.S. 1028 (1989). Thus, 

petitioner has failed to demonstrate that counsel’s performance was 

deficient or that there is a reasonable probability that, but for 

counsel’s alleged errors, the result of the proceeding would have 

been different. 

In the first portion of claim (IV)(B)(2) and a portion of 

claim (IV)(B)(10), petitioner alleges he was denied the effective 

assistance of counsel during the guilt phase of his trial because 

counsel promised the jury in opening statements that he would play 

an audiotape of petitioner denying his guilt and ultimately did not 

play the tape. 

The Court holds that the first portion of claim (IV)(B)(2) and 

this portion of claim (IV)(B)(10) satisfy neither the “performance” 

nor the “prejudice” prong of the two-part test enunciated in 
20

Strickland. The record, including the trial transcripts, 

demonstrates that counsel told the jury that there was a tape of 

Gragg’s conversation with petitioner and that the jury could hear 

that during that conversation Gragg never mentioned the bloody bags 

or the phone call in which she mistook petitioner for Finch. 

Counsel may have intended to play the tape in order to impeach 

Gragg’s testimony at trial. Nevertheless, upon cross-examining 

her, counsel obtained Gragg’s admission to these facts. The 

transcript of the tape provided by petitioner demonstrates that 

counsel’s subsequent decision not to play the tape was reasonable 

because the tape was merely cumulative and contained evidence that 

would have been detrimental to petitioner’s defense. Thus, 

petitioner has failed to demonstrate that counsel’s performance was 

deficient or that there is a reasonable probability that, but for 

counsel’s alleged errors, the result of the proceeding would have 

been different. 

In the second portion of claim (IV)(B)(2) and a portion of 

claim (IV)(B)(10), petitioner alleges he was denied the effective 

assistance of counsel during the guilt phase of his trial because 

counsel portrayed Gragg as a possible murder suspect rather than as 

someone who enlisted others to commit the murders. Petitioner 

suggests that this error allowed the Commonwealth to rebut such a 

theory by showing that Gragg was out of town at the time of the 

murders. 
21

The Court holds that the second portion of claim (IV)(B)(2) 

and this portion of claim (IV)(B)(10) satisfy neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. The record, including the trial 

transcript, demonstrates that counsel suggested only that Gragg had 

a motive for the killings, but did not imply that Gragg actually 

committed the murders. Thus, petitioner has failed to demonstrate 

that counsel’s performance was deficient or that there is a 

reasonable probability that, but for counsel’s alleged errors, the 

result of the proceeding would have been different. 

In the third portion of claim (IV)(B)(2) and a portion of 

claim (IV)(B)(10), petitioner alleges he was denied the effective 

assistance of counsel during the guilt phase because counsel failed 

to address the issue concerning petitioner’s blood on the back 

gate, the only physical evidence placing petitioner near the scene, 

thereby conceding a crucial point in the Commonwealth’s case. 

Petitioner suggests that counsel could have argued that there was 

no way to determine when the blood got on the gate or how 

petitioner would have been able to go through the gate and past an 

aggressive dog. 

The Court holds that the third portion of claim (IV)(B)(2) and 

this portion of claim (IV)(B)(10) do not satisfy the “prejudice” 

prong of the two-part test enunciated in Strickland. The record, 

including the trial transcript, demonstrates that there was no 

evidence that petitioner had been inside that back gate at any 
22

other time and no innocent explanation existed for why petitioner’s 

blood was found on the inside of the locked gate. Petitioner has 

proffered no explanation for the presence of his blood on the gate. 

Furthermore, Officer Creamer testified at trial that when he 

entered the backyard from the house, the dog in the backyard was 

calm and friendly. Thus, petitioner has failed to demonstrate that 

counsel’s performance was deficient or that there is a reasonable 

probability that, but for counsel’s alleged errors, the result of 

the proceeding would have been different. 

In claim (IV)(B)(3)(a) and a portion of (IV)(B)(10), 

petitioner alleges he was denied the effective assistance of 

counsel during the guilt phase of his trial because counsel failed 

to object to evidence offered by the Commonwealth that petitioner 

had committed other criminal or immoral acts. Petitioner asserts 

that the Commonwealth introduced evidence of (1) petitioner’s 

alleged theft of money from his wife, (2) petitioner’s alleged rape 

of Gragg when she was sedated prior to surgery, (3) petitioner’s 

alleged illegal attempt to obtain a silencer, and (4) petitioner’s 

alleged attempt to flee from police and evade arrest. 

The Court holds that claim (IV)(B)(3)(a) and this portion of 

claim (IV)(B)(10) satisfy neither the “performance” nor the 

“prejudice” prong of the two-part test enunciated in Strickland. 

The record, including the trial transcripts, demonstrates that the 

Commonwealth’s theory of the case was that petitioner was enamored 

of Gragg and was motivated to kill Finch in order to please Gragg, 
23

who was going through a child custody dispute with Finch. This 

evidence was relevant and admissible to prove petitioner’s motive 

to kill Finch, the acts he took in furtherance of his plan to kill 

Finch, and as evidence of his guilt. Thus, petitioner has failed 

to demonstrate that counsel’s performance was deficient or that 

there is a reasonable probability that, but for counsel’s alleged 

errors, the result of the proceeding would have been different. 

In claim (IV)(B)(3)(b) and a portion of claim (IV)(B)(10), 

petitioner alleges he was denied the effective assistance of 

counsel during the guilt phase of his trial because counsel failed 

to object to the introduction of evidence of petitioner’s blood on 

the back gate. Petitioner asserts that the chain of custody 

pertaining to this evidence was not established and thus the 

evidence should have been inadmissible. 

The Court holds that claim (IV)(B)(3)(b) and this portion of 

claim (IV)(B)(10) satisfy neither the “performance” nor the 

“prejudice” prong of the two-part test enunciated in Strickland. 

The record, including the trial transcripts, demonstrates that 

Officer Leo collected the bloodstain and submitted it to the 

Department of Forensic Science; therefore, no meritorious objection 

was available to challenge the chain of custody of the DNA 

evidence. Thus, petitioner has failed to demonstrate that 

counsel’s performance was deficient or that there is a reasonable 

probability that, but for counsel’s alleged errors, the result of 

the proceeding would have been different. 
24

In claim (IV)(B)(3)(c) and a portion of claim (IV)(B)(10), 

petitioner alleges he was denied the effective assistance of 

counsel during the guilt phase of his trial because counsel failed 

to object to autopsy photographs and a crime scene videotape on the 

basis that the prejudicial impact outweighed any probative value 

and because the videotape was cumulative. 

The Court holds that claim (IV)(B)(3)(c) and this portion of 

claim (IV)(B)(10) satisfy neither the “performance” nor the 

“prejudice” prong of the two-part test enunciated in Strickland. 

This Court has established the admissibility, at trial, of autopsy 

photographs and crime scene videotapes. See, e.g., Gray v. 

Commonwealth, 233 Va. 313, 342, 356 S.E.2d 157, 173, cert. denied, 

484 U.S. 873 (1987); Joseph v. Commonwealth, 249 Va. 78, 85, 452 

S.E.2d 862, 867, cert. denied, 516 U.S. 876 (1995). Therefore, 

counsel reasonably did not make groundless objections to the 

photographs or videotape. Thus, petitioner has failed to 

demonstrate that counsel’s performance was deficient or that there 

is a reasonable probability that, but for counsel’s alleged errors, 

the result of the proceeding would have been different. 

In claim (IV)(B)(4)(a) and a portion of claim (IV)(B)(10), 

petitioner alleges he was denied the effective assistance of 

counsel during the guilt phase of his trial because counsel failed 

to object to prejudicial hearsay testimony. Petitioner contends 

counsel should have objected to (1) Raymond Whalen’s hearsay 

testimony concerning Gragg’s trip to Florida; (2) Officer Daniel’s 
25

hearsay testimony about what a witness told him she saw on the 

night of the murders; (3) Laura Didion’s hearsay testimony that 

Gragg was upset because Finch abused Gragg’s children and that 

Gragg said she and Finch had an ongoing sexual relationship; (4) 

Suzanne Knowlinger’s hearsay testimony that Gragg told her she had 

car trouble on her trip home from Florida; and (5) Jennifer Finch’s 

hearsay testimony that Gragg told her that Finch and the Gragg 

children had been abused by Clayton Finch, Finch’s father. 

Petitioner asserts this testimony improperly focused the jury on 

irrelevant evidence. 

The Court holds that claim (IV)(B)(4)(a) and this portion of 

claim (IV)(B)(10) satisfy neither the “performance” nor the 

“prejudice” prong of the two-part test enunciated in Strickland. 

The record, including the trial transcripts, demonstrates that (1) 

counsel successfully objected to the portion of Whalen’s testimony 

which would have constituted hearsay; (2) Officer Daniel’s 

testimony was not objectionable because it was used to explain why 

the officer was in the neighborhood investigating petitioner’s 

truck; (3) Didion’s testimony about Finch’s abuse of his children 

did not contain hearsay testimony, and Didion’s testimony about 

Gragg and Finch’s relationship was not objectionable because it was 

not admitted for its truth but was used to show that petitioner 

believed Gragg and Finch were still sexually involved with each 

other; (4) Knowlinger’s testimony contained no hearsay; and (5) 

Jennifer Finch’s testimony was not objectionable because it was not 
26

offered to prove that her father had abused Finch and Gragg’s 

children, but as further evidence in support of petitioner’s motive 

to gain favor with Gragg by killing Finch. Thus, petitioner has 

failed to demonstrate that counsel’s performance was deficient or 

that there is a reasonable probability that, but for counsel’s 

alleged errors, the result of the proceeding would have been 

different. 

In footnote 44, petitioner alleges that he was denied the 

effective assistance of counsel because counsel failed to object to 

the admission of several exhibits as hearsay. Petitioner does not 

articulate a reason as to why any of the exhibits are inadmissible 

hearsay, what arguments counsel should have made, or that any 

objections would have been successful. The Court holds that the 

allegations made in footnote 44 are conclusional and, therefore, 

will not support the issuance of a writ of habeas corpus. Penn v. 

Smyth, 188 Va. 367, 370-71, 49 S.E.2d 600, 601 (1948). 

In claim (IV)(B)(4)(b) and a portion of claim (IV)(B)(10), 

petitioner alleges he was denied the effective assistance of 

counsel during the guilt phase of his trial because counsel failed 

to object to extrinsic testimony on collateral issues including 

testimony about Clayton Finch’s alleged sexual abuse of Jennifer 

Finch, a neighbor’s testimony concerning the manner in which Dana 

Thrall dealt with her children, information about a fire in Gragg’s 

home, and testimony concerning Gragg’s separation from her husband. 
27

The Court holds that claim (IV)(B)(4)(b) and this portion of 

claim (IV)(B)(10) satisfy neither the “performance” nor the 

“prejudice” prong of the two-part test enunciated in Strickland. 

The record, including the trial transcript, demonstrates that the 

evidence about which petitioner complains was relevant to establish 

petitioner’s relationship with Gragg and his motive for the 

killings on Gragg’s behalf. Petitioner fails to allege how 

objections to this evidence would have affected the outcome of his 

trial. Thus, petitioner has failed to demonstrate that counsel’s 

performance was deficient or that there is a reasonable probability 

that, but for counsel’s alleged errors, the result of the 

proceeding would have been different. 

In claim (IV)(B)(5) and a portion of claim (IV)(B)(10), 

petitioner alleges he was denied the effective assistance of 

counsel during the guilt phase of his trial because counsel failed 

to elicit testimony that was admitted in the first trial. 

Petitioner asserts that counsel failed to ask questions challenging 

the competence of the crime scene investigation that were asked in 

petitioner’s first trial. 

The Court holds that claim (IV)(B)(5) and this portion of 

claim (IV)(B)(10) satisfy neither the “performance” nor the 

“prejudice” prong of the two-part test enunciated in Strickland. 

Petitioner fails to allege anything more than that the evidence 

came out slightly different in the second trial. Petitioner does 

not articulate the testimony counsel would have elicited or how 
28

this testimony would have affected the jury’s decision. Thus, 

petitioner has failed to demonstrate that counsel’s performance was 

deficient or that there is a reasonable probability that, but for 

counsel’s alleged errors, the result of the proceeding would have 

been different. 

In claim (IV)(B)(6) and a portion of claim (IV)(B)(10), 

petitioner alleges he was denied the effective assistance of 

counsel during the guilt phase of his trial because counsel failed 

to properly move to strike the evidence by stating no grounds for 

the motion when many compelling grounds existed and failed to move 

for a mistrial on those same grounds. 

The Court holds that claim (IV)(B)(6) and this portion of 

claim (IV)(B)(10) satisfy neither the “performance” nor the 

“prejudice” prong of the two-part test enunciated in Strickland. 

The record, including the trial transcript and the exhibits, 

demonstrates that the evidence was sufficient to overcome a motion 

to strike and to support petitioner’s convictions. Elliott, 267 

Va. at 425 n.8, 593 S.E.2d at 288 n.8. Petitioner fails to allege 

how a more specific motion to strike would have affected his case 

and fails to allege any viable basis upon which counsel should have 

sought a mistrial. Thus, petitioner has failed to demonstrate that 

counsel’s performance was deficient or that there is a reasonable 

probability that, but for counsel’s alleged errors, the result of 

the proceeding would have been different. 
29

In claim (IV)(B)(7) and a portion of claim (IV)(B)(10), 

petitioner alleges he was denied the effective assistance of 

counsel during the guilt phase of his trial because counsel failed 

to put on a defense, calling only one witness to the stand and 

asking only four questions of that witness. In support of claims 

(IV)(B)(7) and this portion of claim (IV)(B)(10), petitioner refers 

to his prior arguments concerning counsel’s performance but makes 

no additional proffers as to the witnesses counsel should have 

called or what information counsel should have elicited. The Court 

holds that these claims constitute an allegation that the 

cumulative effect of counsel’s ineffective assistance in the 

presentation of a defense prejudiced petitioner and holds that this 

claim has no merit. “Having rejected each of petitioner’s 

individual claims, there is no support for the proposition that 

such actions when considered collectively have deprived petitioner 

of his constitutional right to effective assistance of counsel.” 

Lenz, 267 Va. at 340, 593 S.E.2d at 305. 

In claim (IV)(B)(8) and a portion of claim (IV)(B)(10), 

petitioner alleges he was denied the effective assistance of 

counsel during the guilt phase of his trial because counsel failed 

to object to the Commonwealth’s improper statements in its closing 

arguments and failed to move for a mistrial. Petitioner asserts 

that the Commonwealth maligned petitioner’s character by mentioning 

uncharged crimes of theft, use of a silencer, and flight to avoid 

prosecution. Petitioner also asserts that the Commonwealth 
30

impermissibly vouched for the truthfulness of three of its 

witnesses. 

The Court holds that claim (IV)(B)(8) and this portion of 

claim (IV)(B)(10) satisfy neither the “performance” nor the 

“prejudice” prong of the two-part test enunciated in Strickland. 

The record, including the trial transcripts, demonstrates that the 

prosecutor’s closing argument was properly based upon the evidence 

admitted at trial. Thus, petitioner has failed to demonstrate that 

counsel’s performance was deficient or that there is a reasonable 

probability that, but for counsel’s alleged errors, the result of 

the proceeding would have been different. 

In claim (IV)(B)(9) and a portion of claim (IV)(B)(10), 

petitioner alleges he was denied the effective assistance of 

counsel during the guilt phase of his trial because counsel failed 

to object to the jury’s viewing, during deliberations, of the 

videotape of the crime scene and failed to ask for any cautionary 

instructions regarding the videotape. Petitioner contends that 

the probative value of the videotape was outweighed by its 

prejudicial impact. 

The Court holds that claim (IV)(B)(9) and this portion of 

claim (IV)(B)(10) satisfy neither the “performance” nor the 

“prejudice” prong of the two-part test enunciated in Strickland. 

Any objection concerning the prejudicial impact of the videotape 

should have been made prior to its admission into evidence. Having 

been properly admitted into evidence, the videotape was available 
31

for the jury to view during deliberations. Petitioner fails to 

articulate what type of objection counsel could have successfully 

made or what type of cautionary instruction counsel should have 

sought. Thus, petitioner has failed to demonstrate that counsel’s 

performance was deficient or that there is a reasonable probability 

that, but for counsel’s alleged errors, the result of the 

proceeding would have been different. 

In claim (V)(A), petitioner alleges he was denied the 

effective assistance of counsel during the penalty phase because 

counsel failed to reassert motions raised in the first trial 

concerning the penalty phase, thus denying petitioner an 

opportunity to appeal these issues. 

The record demonstrates that, after the mistrial, counsel 

informed the prosecutor that the motions previously argued and 

ruled upon by the trial court would not be re-litigated during the 

second trial, because the court’s rulings were unlikely to change. 

Nothing in the record demonstrates that the court adopted its 

previous rulings and this Court, on direct appeal, held that the 

issues raised in the motions filed prior to the mistrial were not 

preserved for appellate review. Elliott, 267 Va. at 427-28, 593 

S.E.2d at 289-90. 

The Court holds that claim (V)(A) fails to satisfy the 

“prejudice” prong of the two-part test enunciated in Strickland. 

Although petitioner identifies these motions in a footnote, he does 

not address the merits of the individual motions and does not 
32

articulate the basis upon which an appellate challenge to any of 

the circuit court’s previous rulings would have had merit or have 

been successful. Thus, petitioner cannot demonstrate that there is 

a reasonable probability that, but for counsel’s alleged errors, 

the result of the proceeding would have been different. 

In claim (V)(B)(1), petitioner alleges he was denied the 

effective assistance of counsel during the penalty phase because 

counsel failed to object to improper and prejudicial victim impact 

testimony. Petitioner asserts that Cyndia Johnson, Thrall’s 

mother, improperly testified to watching her fatally wounded 

daughter shed tears. Petitioner also asserts that Cameron and 

Rebecca Thrall, Thrall’s brother and sister-in-law, improperly 

testified about the effect of the murders on Dana Thrall’s children 

and that counsel should have objected to the hearsay evidence of 

what the children were thinking and to the hearsay evidence of the 

children’s posttraumatic stress disorder. 

The Court holds that claim (V)(B)(1) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. Code § 19.2-264.4(A1) specifically 

allows victim impact testimony; therefore, Cyndia Johnson’s 

testimony concerning what she observed during Dana’s last minutes 

of life was admissible evidence. Furthermore, the testimony 

concerning the children’s thoughts and their diagnoses was not 

offered to prove the truth of the matter asserted, i.e., that 

petitioner was going to harm the children or that the children 
33

actually suffered particular disorders, but instead was offered to 

demonstrate how the murders affected the children. Counsel is not 

ineffective for failing to raise an unreasonable objection. Thus, 

petitioner has failed to demonstrate that counsel’s performance was 

deficient or that there is a reasonable probability that, but for 

counsel’s alleged errors, the result of the proceeding would have 

been different. 

In claim (V)(B)(2), petitioner alleges he was denied the 

effective assistance of counsel during the penalty phase because 

counsel failed to object to the Commonwealth’s Attorney’s emphasis, 

during closing arguments, on the testimony concerning the 

children’s counseling and nightmares. Petitioner also asserts that 

counsel should have objected to the argument that the victim’s 

families would “get some solace” from the death sentence because 

Thrall’s father and Finch’s parents oppose petitioner being 

executed. 

The Court holds that claim (V)(B)(2) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. The Commonwealth’s Attorney’s argument 

constituted a fair comment based upon the evidence, including the 

testimony of some members of Thrall’s family. Whether members of 

Finch’s family wanted petitioner sentenced to death would be 

irrelevant as petitioner was only subject to the death penalty for 

his killing of Thrall. Counsel is not ineffective for failing to 

raise an unreasonable objection. Thus, petitioner has failed to 
34

demonstrate that counsel’s performance was deficient or that there 

is a reasonable probability that, but for counsel’s alleged errors, 

the result of the proceeding would have been different. 

In claim (V)(B)(3), petitioner alleges he was denied the 

effective assistance of counsel during the penalty phase because 

counsel failed to object to eleven statements made by the 

Commonwealth’s Attorney that petitioner would be a future danger. 

Petitioner asserts that the issue of “future dangerousness” was not 

proven at the first trial; and that the trial court ruled it could 

not be reasserted in the second case due to double jeopardy 

concerns. 

The Court holds that claim (V)(B)(3) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. The record, including the trial 

transcripts, demonstrates that counsel successfully moved to 

preclude the Commonwealth from seeking the death penalty based upon 

future dangerousness. Later, when the Commonwealth argued that 

imposing the death sentence would preclude petitioner from harming 

anybody else, counsel objected on the grounds that future 

dangerousness was not an issue. The trial court, however, ruled 

that, despite its earlier ruling, the Commonwealth was entitled to 

make a general argument that imposition of the death sentence would 

prevent further harm. Petitioner has not articulated alternate 

grounds upon which he contends counsel should have objected and, 

having obtained an adverse ruling from the court, counsel is not 
35

required to reassert objections that are meritless. Thus, 

petitioner has failed to demonstrate that counsel’s performance was 

deficient or that there is a reasonable probability that, but for 

counsel’s alleged errors, the result of the proceeding would have 

been different. 

In claim (V)(B)(4), petitioner alleges he was denied the 

effective assistance of counsel during the penalty phase because 

counsel failed to object during closing argument to the 

Commonwealth’s mention of petitioner’s having sex with Gragg while 

she was unconscious. The Court holds that claim (V)(B)(4) 

satisfies neither the “performance” nor the “prejudice” prong of 

the two-part test enunciated in Strickland. The record, including 

the trial transcript, demonstrates that the prosecutor’s argument 

was a proper comment based upon the evidence. As addressed 

previously, petitioner’s statement to Gragg concerning a sexual 

encounter he allegedly had with her while she was sedated was 

admissible to prove his motive to kill Finch and as a 

“circumstance[] surrounding the offense.” See Code § 19.2-264.4. 

Thus, petitioner has failed to demonstrate that counsel’s 

performance was deficient or that there is a reasonable probability 

that, but for counsel’s alleged errors, the result of the 

proceeding would have been different. 

In claim (V)(C), petitioner alleges he was denied the 

effective assistance of counsel during the penalty phase because 

counsel failed to adequately develop and present mitigation 
36

evidence. Petitioner asserts that he provided counsel with twentyseven mitigation witnesses and that counsel erred in not calling 

these people as witnesses because they would have either testified 

about his good reputation or would have testified in favor of 

sparing petitioner’s life. 

The Court holds that claim (V)(C) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. The record, including the sentencing 

transcripts, demonstrates that the evidence petitioner contends 

counsel should have presented would have merely been cumulative of 

that presented at trial. Counsel called several witnesses during 

the penalty phase to testify to petitioner’s qualities of being 

“easygoing, reliable, kind, gentle, generous, and decent.” 

Additionally, the Commonwealth relied on this “reputation” evidence 

to argue that petitioner was an individual who solved problems, 

rather than getting angry, and that his act of killing Finch and 

Thrall was simply a selfish, calculated act designed to solve 

Gragg’s problem and gain her affection. Thus, petitioner has 

failed to demonstrate that counsel’s performance was deficient or 

that there is a reasonable probability that, but for counsel’s 

alleged errors, the result of the proceeding would have been 

different. 

In claim (V)(D), petitioner alleges that the cumulative effect 

of counsel’s ineffective assistance during the penalty phase 

prejudiced petitioner. The Court holds this claim has no merit. 
37

“Having rejected each of petitioner’s individual claims, there is 

no support for the proposition that such actions when considered 

collectively have deprived petitioner of his constitutional right 

to effective assistance of counsel.” Lenz, 267 Va. at 340, 593 

S.E.2d at 305. 

In claim (V)(E), petitioner alleges he was denied the 

effective assistance of counsel during the penalty phase because 

counsel failed to seek a continuance or other relief based on the 

pre-sentence report, which reflects Clayton Finch’s belief that 

Detective Hoffman had “sabotaged” the defense. 

The Court holds that claim (V)(E) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. The pre-sentence report does not include 

the basis for Clayton Finch’s belief and petitioner provides 

nothing to substantiate an allegation that Detective Hoffman 

“sabotaged” petitioner’s defense. Thus, petitioner has failed to 

demonstrate that counsel’s performance was deficient or that there 

is a reasonable probability that, but for counsel’s alleged errors, 

the result of the proceeding would have been different. 

In claim (VI)(A), petitioner alleges he was denied the 

effective assistance of counsel because during the guilt phase 

counsel withdrew his proffered “mere presence” instruction when the 

trial court required the instruction to be given with a “principal 

in the second-degree” instruction, and because counsel failed to 

request a “triggerman” instruction. 
38

The Court holds that claim (VI)(A) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. Counsel reasonably made a tactical 

decision to avoid liability as a principal in the second-degree and 

to proceed under the theory, based on petitioner’s statements, that 

petitioner committed no criminal act. Counsel’s representation 

does not fall “below an objective standard of reasonableness” when 

counsel relies upon information supplied by his client. Curo v. 

Becker, 254 Va. 486, 493, 493 S.E.2d 368, 371 (1997)(citing 

Strickland, 466 U.S. at 688, 691). Thus, petitioner has failed to 

demonstrate that counsel’s performance was deficient or that there 

is a reasonable probability that, but for counsel’s alleged errors, 

the result of the proceeding would have been different. 

In claim (VI)(B)(1) and portions of (VI)(B)(2), petitioner 

alleges he was denied the effective assistance of counsel during 

the guilt phase because counsel failed to object to jury 

instructions and verdict forms. Petitioner asserts that 

instruction number 4 and the capital murder verdict form were 

erroneous because they told the jury that if it did not find that 

the murders were part of the same transaction, it must find 

petitioner was guilty of first-degree murder rather than seconddegree murder. Petitioner further asserts the instruction and form 

should have included the element of malice. 

The Court holds that claim (VI)(B)(1) and these portions of 

claim (VI)(B)(2) satisfy neither the “performance” nor the 
39

“prejudice” prong of the two-part test enunciated in Strickland. 

Instruction number 4 did not misstate the law of murder in 

Virginia. This Court has previously held that where a jury is 

instructed to determine “whether the killing was willful, 

deliberate, and premeditated, ... a separate instruction on malice 

[is] unnecessary.” Mackall v. Commonwealth, 236 Va. 240, 254, 372 

S.E.2d 759, 768 (1988), cert. denied, 492 U.S. 925 (1989). As the 

jury found petitioner guilty of the capital murder of Dana Thrall, 

petitioner cannot demonstrate that an instruction providing the 

jury the option of finding second-degree murder, if it did not find 

capital murder, would have affected the jury’s decision. Thus, 

petitioner has failed to demonstrate that counsel’s performance was 

deficient or that there is a reasonable probability that, but for 

counsel’s alleged errors, the result of the proceeding would have 

been different. 

In other portions of claim (VI)(B)(2) and in claims (VI)(B)(3) 

and (VI)(B)(4), petitioner alleges he was denied the effective 

assistance of counsel during the guilt phase because counsel failed 

to object to language contained in the verdict forms. Petitioner 

contends that by adding the language “as charged in the indictment” 

to the verdict forms, and because the trial court failed to 

instruct the jury as to the meaning of words such as “murder” and 

“felony,” the trial court rendered the forms confusing. 

The Court holds that these portions of claim (VI)(B)(2) and 

claims (VI)(B)(3) and (VI)(B)(4) satisfy neither the “performance” 
40

nor the “prejudice” prong of the two-part test enunciated in 

Strickland. The record, including the jury instructions and the 

verdict forms, demonstrates that the jury was adequately instructed 

and the verdict forms were not confusing. Additionally, petitioner 

has not provided this Court with the definitions he contends 

counsel should have sought. Thus, petitioner has failed to 

demonstrate that counsel’s performance was deficient or that there 

is a reasonable probability that, but for counsel’s alleged errors, 

the result of the proceeding would have been different. 

In claim (VI)(C)(1), petitioner alleges he was denied the 

effective assistance of counsel because counsel failed to request, 

at the penalty phase, an instruction, which had been given during 

the first trial’s penalty phase, explaining how to evaluate victim 

impact testimony. Petitioner contends that counsel’s failure to 

seek this instruction led the jurors to believe that the 

Commonwealth had met its burden of proving an aggravating 

circumstance merely by putting on victim impact testimony. 

The Court holds that claim (VI)(C)(1) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. The record, including the trial 

transcript, demonstrates that the jury was properly instructed 

that, before imposing a sentence of death, the jury must find that 

the Commonwealth proved beyond a reasonable doubt the aggravating 

circumstance that petitioner’s “conduct in committing the offense 

was outrageously or wantonly vile, horrible, or inhuman in that it 
41

involved torture, depravity of mind, or aggravated battery to the 

victim beyond the minimum necessary to accomplish the act of 

murder.” There is no indication that the jury failed to follow the 

court’s instructions and nothing to rebut the presumption that the 

jury did follow the instructions. See Emmett v. Commonwealth, 264 

Va. 364, 371, 569 S.E.2d 39, 44 (2002) (holding that a jury is 

presumed to follow the instructions of the court). Thus, 

petitioner has failed to demonstrate that counsel’s performance was 

deficient or that there is a reasonable probability that, but for 

counsel’s alleged errors, the result of the proceeding would have 

been different. 

In claim (VI)(C)(2), petitioner alleges he was denied the 

effective assistance of counsel because counsel failed to object, 

at the penalty phase, to defects in the signed capital murder 

verdict form, which referred to (1) “capital murder” with no 

definition, (2) “the offense,” which petitioner contends is a vague 

and confusing term, and (3) “torture” and “depravity of the mind” 

for which, petitioner contends, there was no evidence. 

The Court holds that claim (VI)(C)(2) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. The record, including the trial 

transcripts and jury verdict forms, demonstrates that the jury was 

adequately instructed and the forms were not confusing. 

Furthermore, the jury instructions and verdict forms properly 

placed before the jury the task of determining whether the 
42

Commonwealth had met its burden to prove that the murder of Dana 

Thrall involved torture, depravity of the mind, or aggravated 

battery to the victim beyond the minimum necessary to accomplish 

the act of murder. The evidence presented at trial established 

beyond a reasonable doubt that Dana Thrall’s murder involved 

aggravated battery beyond the minimum necessary to accomplish the 

act of murder. Thus, petitioner has failed to demonstrate that 

counsel’s performance was deficient or that there is a reasonable 

probability that, but for counsel’s alleged errors, the result of 

the proceeding would have been different. 

In claim (VI)(C)(3), petitioner alleges he was denied the 

effective assistance of counsel because counsel failed to provide 

the court, at the penalty phase, proper verdict forms for capital 

sentencing. Petitioner asserts the forms used erroneously required 

jurors to find unanimously that the Commonwealth failed to prove an 

aggravating factor in order to sentence petitioner to life. In 

claim (VI)(C)(4), petitioner alleges he was denied the effective 

assistance of counsel because counsel failed to request an 

instruction, at the penalty phase, on unanimity on “vileness” and 

counsel failed to object to instruction 1 on the basis that it 

improperly permitted the jury to find “vileness” without requiring 

specification of, and unanimous agreement about, that statutory 

element. 

The Court holds that claims (VI)(C)(3) and (VI)(C)(4) satisfy 

neither the “performance” nor the “prejudice” prong of the two-part 
43

test enunciated in Strickland. Counsel is not unreasonable for 

failing to object to jury instructions and verdict forms that follow 

the statute and have previously been approved by this Court. Thus, 

petitioner has failed to demonstrate that counsel’s performance was 

deficient or that there is a reasonable probability that, but for 

counsel’s alleged errors, the result of the proceeding would have 

been different. 

In claim (VI)(C)(5), petitioner alleges he was denied the 

effective assistance of counsel because counsel failed to object, 

at the penalty phase, to inclusion of the term “torture” in the 

instructions or verdict form or, in the alternative, because 

counsel did not ask that “torture” be defined. 

The Court holds that claim (VI)(C)(5) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. Counsel is not unreasonable for failing 

to object to jury instructions and verdict forms that follow the 

statute and have previously been approved by this Court. 

Furthermore, petitioner does not articulate the grounds upon which 

counsel could have reasonably objected to the use of the word 

“torture” in the instructions and on the verdict form. Thus, 

petitioner has failed to demonstrate that counsel’s performance was 

deficient or that there is a reasonable probability that, but for 

counsel’s alleged errors, the result of the proceeding would have 

been different. 
44

In claim (VI)(C)(6), petitioner alleges he was denied the 

effective assistance of counsel because counsel failed to object, 

at the penalty phase, to the inclusion of the “depravity of mind” 

element in the vileness instruction when no evidence of ”depravity 

of mind” existed. 

The Court holds that claim (VI)(C)(6) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. Counsel is not unreasonable for failing 

to object to jury instructions that follow the statute and have 

previously been approved by this Court. Thus, petitioner has 

failed to demonstrate that counsel’s performance was deficient or 

that there is a reasonable probability that, but for counsel’s 

alleged errors, the result of the proceeding would have been 

different. 

In claim (VI)(C)(7), petitioner alleges he was denied the 

effective assistance of counsel because counsel failed to propose 

and request that the instructions include a definition of the 

element of “aggravated battery beyond the minimum necessary to 

accomplish the act of murder.” Petitioner contends that failure to 

request such a definition invited the jury to speculate as to the 

definition of aggravated battery or to assume that the mere act of 

murder would be sufficient to satisfy this element. 

The Court holds that claim (VI)(C)(7) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. The record, including Instruction No. 1, 
45

demonstrates that the plain language of the instruction “aggravated 

battery to the victim beyond the minimum necessary to accomplish 

the act of murder” provided the definition petitioner contends 

counsel should have requested. Furthermore, the instruction as 

given required the jury to find more than “the mere act of murder” 

to satisfy this element. Thus, petitioner has failed to 

demonstrate that counsel’s performance was deficient or that there 

is a reasonable probability that, but for counsel’s alleged errors, 

the result of the proceeding would have been different. 

In claim (VI)(C)(8), petitioner alleges he was denied the 

effective assistance of counsel because counsel failed to object 

that Instruction No. 6 contradicted Instruction No. 5. Petitioner 

contends that the instructions are identical except that one 

instructs that the punishment is three years and the other 

instructs that the punishment is five years. 

The Court holds that claim (VI)(C)(8) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. The record, including the jury 

instructions, demonstrates that the instructions numbered five and 

six concerned the punishments the jury was to impose for 

petitioner’s two convictions for use of a firearm in the commission 

of a murder, which were statutorily fixed at three years and at five 

years, respectively. Counsel is not unreasonable for failing to 

object to jury instructions that follow the statute. Furthermore, 

as the jury had no discretion concerning these sentences, petitioner 
46

cannot demonstrate how any alleged confusion impacted the sentence 

he received. Thus, petitioner has failed to demonstrate that 

counsel’s performance was deficient or that there is a reasonable 

probability that, but for counsel’s alleged errors, the result of 

the proceeding would have been different. 

In claim (VI)(C)(9), petitioner alleges counsel failed to 

propose instructions for the penalty phase on the following five 

legal principles: “defendant is presumed innocent,” “he does not 

have to testify,” “he does not have to produce any evidence,” “the 

burden is on the Prosecution,” and the burden is “beyond a 

reasonable doubt.” Petitioner contends that the failure to 

instruct the jury on these principles at the penalty phase was 

confusing because they had been instructed on them during the guilt 

phase. 

The Court holds that claim (VI)(C)(9) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. The record, including the trial 

transcript, demonstrates that the jury was properly instructed at 

the penalty phase as to the Commonwealth’s burden to prove the 

aggravating factors beyond a reasonable doubt. Upon the jury’s 

determination that petitioner was guilty of the offenses for which 

it would be sentencing him, petitioner was no longer presumed 

innocent and an instruction otherwise would have been erroneous. 

Petitioner presented evidence in mitigation and, thus, an 

instruction that petitioner was not required to present evidence 
47

would have been confusing. Finally, the jury was instructed during 

the guilt phase that petitioner was not required to testify. 

Petitioner fails to provide a legal basis for re-instructing the 

jury on this issue. Thus, petitioner has failed to demonstrate 

that counsel’s performance was deficient or that there is a 

reasonable probability that, but for counsel’s alleged errors, the 

result of the proceeding would have been different. 

In claim (VI)(D), petitioner states that the Court should 

grant an evidentiary hearing on whether the jury had requested an 

instruction on reasonable doubt. Petitioner contends that he was 

unaware of a note from the jury requesting such an instruction 

until the direct appeal proceeding. On appeal, we declined to 

address the issue because it was based on pure speculation and held 

that petitioner’s requested relief in the form of an evidentiary 

hearing could not be afforded on direct appeal. Elliott, 267 Va. 

at 414-15 & n.4, 593 S.E.2d at 282 & n.4. Petitioner asks that his 

convictions and sentences be reversed for failure to answer the 

jury question or in the alternative “a new trial or hearing [be 

granted] to establish that the request was made and not 

communicated to the Defense.” 

The Court holds that claim (VI)(D) is not cognizable in a 

habeas corpus proceeding. Petitioner raises no allegations that 

this issue is the result of ineffective assistance of counsel or 

misconduct and provides no evidence that “the jury actually 

intended to send the purported jury question at issue to the trial 
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court for a response.” Id. at 414-15, 593 S.E.2d at 282. "The 

function of a writ of habeas corpus is to inquire into 

jurisdictional defects amounting to want of legal authority for the 

detention of a person on whose behalf it is asked. The court in 

which a writ is sought examines only the power and authority of the 

court to act, not the correctness of its conclusions, and the 

petition for a writ may not be used as a substitute for appeal or 

writ of error." Brooks v. Peyton, 210 Va. 318, 321, 171 S.E.2d 

243, 246 (1969). 

In claim (VII)(A), petitioner alleges he was denied the 

effective assistance of counsel on appeal because counsel failed to 

assign error to the trial court’s ruling which allowed the 

Commonwealth to make an argument on future dangerousness and on the 

Commonwealth’s improper argument regarding victim impact testimony. 

The Court holds that claim (VII)(A) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. The selection of issues to address on 

appeal is left to the discretion of appellate counsel and counsel 

need not address every possible issue on appeal. Jones v. Barnes, 

463 U.S. 745, 751-52 (1983). The record, including the trial 

transcript, demonstrates that the jury was properly instructed that 

it could impose the death penalty only if it were to find that the 

Commonwealth had proven the vileness aggravating factor beyond a 

reasonable doubt. A jury is presumed to follow its instructions 

and petitioner has provided no basis upon which his appellate 
49

counsel could have argued that either the trial court’s ruling was 

incorrect or that the jury did not follow the court’s instructions. 

Furthermore, petitioner concedes that no argument or objection was 

made concerning the victim impact evidence and, therefore, this 

argument was not preserved for appeal. Rule 5:25. Petitioner also 

does not articulate the substantive legal argument he contends 

counsel should have made on these issues or how such argument would 

have had merit. Thus, petitioner has failed to demonstrate that 

counsel’s performance was deficient or that there is a reasonable 

probability that, but for counsel’s alleged errors, the result of 

the proceeding would have been different. 

In claim (VII)(B), petitioner alleges he was denied the 

effective assistance of counsel on appeal because counsel requested 

the wrong relief when counsel requested an evidentiary hearing 

instead of asking the Court to reverse his conviction on the basis 

of an alleged unanswered jury question found in the record. 

The Court holds that claim (VII)(B) fails to satisfy the 

“prejudice” prong of the two-part test enunciated in Strickland. 

The record, including this Court’s opinion, demonstrates that this 

Court could not consider petitioner’s arguments on this issue 

because the record was incomplete and, therefore, any consideration 

would have required this Court to engage in improper speculation. 

Elliott, 267 Va. at 414-15, 593 S.E.2d at 282. Thus, petitioner 

has failed to demonstrate that there is a reasonable probability 

that, but for counsel’s failure to seek reversal rather than an 
50

evidentiary hearing, the result of the proceeding would have been 

different. 

In claim (VII)(C), petitioner alleges he was denied the 

effective assistance of counsel on appeal because counsel failed to 

present argument for and, thereby, waived assignments of error 8, 

9, 10, 13, and 14. Assignments of error 8, 9 and 10 each concerned 

the alleged “smoke break” statement Gragg made to police, which 

Gragg claimed was memorialized and signed by her. Assignments of 

error 13 and 14 concerned the sufficiency of the evidence to 

support petitioner’s convictions. 

The Court holds that claim (VII)(C) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. The record, including the trial 

transcript and the appellate brief, demonstrates that assignments 

of error 8, 9, 10, 13 and 14 were without merit. This Court 

determined on direct appeal that there was ample evidence to 

support petitioner’s convictions. Furthermore, the arguments 

raised in assignments of error 8, 9 and 10 were not preserved at 

trial and would have been barred by Rule 5:25, as counsel had been 

given the opportunity to impeach Gragg’s testimony concerning the 

alleged statement and counsel had asked for no other relief. The 

selection of issues to address on appeal is left to the discretion 

of appellate counsel, and counsel need not address every possible 

issue on appeal. Barnes, 463 U.S. at 751-52. Counsel is certainly 

not deficient for choosing to focus his arguments on issues that 
51

had been properly preserved at trial. Thus, petitioner has failed 

to demonstrate that counsel’s performance was deficient or that 

there is a reasonable probability that, but for counsel’s alleged 

errors, the result of the proceeding would have been different. 

In claim (VII)(D), petitioner alleges he was denied the 

effective assistance of counsel on appeal because counsel failed to 

cite authority requiring the adoption of a narrowing instruction 

regarding the vileness factors. 

The Court holds that claim (VII)(D) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. This Court does not require a trial 

court to define the statutory terms or for a jury to receive 

instructions beyond the statutory factors. See Bunch v. 

Commonwealth, 225 Va. 423, 442, 304 S.E.2d 271, 282, cert. denied, 

464 U.S. 977 (1983). Furthermore, the holding in Apprendi v. New 

Jersey, 530 U.S. 466 (2000) does not require jury instructions on 

the definitions of the composite parts of Virginia’s vileness 

aggravator. Thus, petitioner has failed to demonstrate that 

counsel’s performance was deficient or that there is a reasonable 

probability that, but for counsel’s alleged errors, the result of 

the proceeding would have been different. 

In claim (VII)(E), petitioner alleges he was denied the 

effective assistance of counsel on direct appeal because counsel 

failed to argue that, based on errors made during the trial, the 

perjured testimony, prosecutorial misconduct, and the fact that the 
52

evidence against petitioner was minimal, circumstantial, and 

conflicting, the jury’s verdict was not the product of a reasoned 

and dispassionate deliberation. 

The Court holds that claim (VII)(E) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. On direct appeal, this Court reviewed 

the record and considered, as required by Code § 17.1-313(C)(1), 

whether the jury imposed petitioner’s death sentence under the 

influence of passion, prejudice, or any other arbitrary factor and 

determined that the sentence was appropriate. Petitioner does not 

articulate how an affirmative argument by counsel would have 

affected this Court’s mandatory review, nor does petitioner 

articulate the specific arguments he contends counsel should have 

made. Thus, petitioner has failed to demonstrate that counsel’s 

performance was deficient or that there is a reasonable probability 

that, but for counsel’s alleged errors, the result of the 

proceeding would have been different. 

In claim (VIII), petitioner claims that the cumulative effect 

of all the preceding claims demonstrates that the Court should 

grant petitioner relief. The Court holds that claim (VIII) has no 

merit. “Having rejected each of petitioner’s individual claims, 

there is no support for the proposition that such actions when 

considered collectively have deprived petitioner of his 

constitutional right to effective assistance of counsel.” Lenz, 

267 Va. at 340, 593 S.E.2d at 305. 
53

Upon consideration whereof, petitioner’s motions for leave to 

issue subpoenas duces tecum; for leave to depose petit jurors; for 

leave to propound interrogatories; for an order releasing physical 

evidence for examination and authorization to retain a DNA expert, 

a crime scene reconstruction expert, a blood spatter expert, and a 

fingerprint expert; for leave to conduct depositions of witnesses; 

for leave to amend his habeas corpus petition with a recently 

discovered due process claim and to conduct discovery; and for oral 

argument are denied. Upon further consideration whereof, the 

respondent’s motion to strike petitioner’s exhibits containing 

hearsay testimony is denied and the exhibits are considered 

pursuant to the appropriate evidentiary rules; petitioner’s motion 

to strike a letter and an exhibit filed in support of the warden’s 

motion is denied. 

Accordingly, the petition is dismissed. 

This order shall be published in the Virginia Reports. 

A Copy, 

 Teste: 

 Patricia L. Harrington, Clerk