Prosecutor the focus of killer's bid for mercy

A man who shot a bank guard to death is slated to die Nov. 9; his lawyers allege misconduct

By Frank Green - Richmond Times Dispatch

October 30, 2006

The conduct of one of the top death-penalty prosecutors in Virginia is at the center of efforts to spare the life of killer John Yancey Schmitt, set to die by injection Nov. 9. Warren Von Schuch, Chesterfield County deputy commonwealth's attorney, has helped win death sentences against 13 people -- some of them the most heinous murderers in state history and most long since executed.

His conduct has at times been faulted by death-row lawyers and in recent years by some federal judges. Von Schuch says his success in winning death penalties has led to unfair attacks aimed at undermining his credibility.

Nevertheless, in July, a panel of the 4th U.S. Circuit Court of Appeals criticized Von Schuch for not disclosing evidence that might have weakened the credibility of one of his witnesses: "This prosecution team displayed a disconcerting lack of respect for its sole responsibility to ensure 'that justice shall be done,' as opposed to merely winning the case," the judges wrote. "Although we conclude that the prosecution's missteps in this case did not affect the outcome of the trial, we emphasize that . . . prosecutorial misconduct should not be taken lightly."

On Feb. 17, 1999, Schmitt, now 33, shot security officer Earl Shelton Dunning to death during a bank robbery in Chesterfield County. Dunning, 39, was slain six weeks after retiring from the Army and a month before he was to get married.

Schmitt's lawyers have focused on the prosecution's actions in their clemency petition to Gov. Timothy M. Kaine and in seeking a hearing from the U.S. Supreme Court. Their petition to Kaine contends that if Schmitt dies, "prosecutors will see the execution as a clear message that violating the constitutional rights of capital defendants risks only a slap on the wrist, while greatly enhancing the likelihood of the 'victory' of a death sentence."

Von Schuch, however, strongly denies any wrongdoing and said the attorney general's office told him several years ago that lawyers for death-row inmates were targeting him for criticism because of his success in courtrooms across the state. In addition to handling Chesterfield cases, Von Schuch at times assists prosecutors in other jurisdictions. He said that in the Schmitt case, "I was one of only three attorneys in the case and had a very limited role."

Dana J. Finberg, one of Schmitt's lawyers, said, "We're not part of any orchestrated campaign against Von Schuch. I'm not aware that there is one." He said the comments from the judges speak for themselves.

It is not the first time prosecution teams involving Von Schuch have been faulted for their tactics. In 2002, two different federal judges in Richmond tossed out murder convictions Von Schuch helped win because of prosecution errors. But Prince William County Commonwealth's Attorney Paul Ebert, who has won 14 death sentences, said Von Schuch is a professional.

Craig Cooley, one of Schmitt's two trial lawyers, has faced Von Schuch in 10 to 15 trials. He said that Von Schuch "is a very skilled trial attorney." He deferred all further comment to Schmitt's current lawyers.

At the center of controversy in the Schmitt case is a friend and former employer, Clifford Sauer, who surreptitiously recorded a March 12, 1999, phone conversation between the two men in which Schmitt shows no remorse. Schmitt was calling from jail having been charged with capital murder. Police needed to know where Schmitt obtained the murder weapon and supplied Sauer with the recording device. The tape was important evidence for the prosecution during the penalty phase of the trial. Sauer also testified against Schmitt.

Last year, U.S. District Judge Robert Payne, after a hearing on whether prosecutors improperly withheld evidence, wrote that Von Schuch "admittedly did not make known to [Schmitt] that Sauer had received a grant of immunity or had been offered mental-health counseling." Such evidence, Schmitt's current lawyers contend, could have been used to impeach Sauer's credibility.

Steven D. Benjamin, a Richmond attorney on the board of directors of the National Association of Criminal Defense Lawyers, said prosecutors are obliged to divulge information favorable to the defense, including material that could impeach the credibility of a prosecution witness. The U.S. Supreme Court has held that because the state has resources to conduct investigations that are not available to defendants, any facts investigators turn up that benefit defendants should be given to them as a matter of fairness.

Payne wrote that, "given the cavalier attitude about the prosecutor's . . . obligations that Von Schuch displayed in his testimony at the evidentiary hearing, there is strong reason to believe that the suppression of that [impeachment] evidence was intentional."

The Virginia attorney general's office, in a brief to the U.S. Supreme Court, said that none of the purported impeachment material "would have -- or could have impeached the tape itself." Ultimately, Payne decided that even if Schmitt's lawyers had the impeachment material, it would not have made a difference in the outcome. The judge, therefore, did not toss out the death sentence. Nevertheless, at the conclusion of his ruling last year, the judge wrote: "One would hope that this prosecutor, and all others, would learn from experiences such as this one."

J. Tucker Martin, spokesman for the attorney general's office, said, "While we do not agree that the Chesterfield County prosecutors acted improperly in the case, we agree with the court's decision that Schmitt's death sentence should not be overturned."

VADP.org

Inmate: John Schmitt
Inmate #: 284700
DOB: 7-15-73
Race: White
Venue: Chesterfield
Conviction: murder/robbery Date Received: 6-15-00

On August 15, 2000, John Yancey Schmitt was sentenced to death for the murder of a security guard in the commission of a bank robbery. Schmitt was 25 years old a the time of the crime. Schmitt murdered Shelton Earl Dunning, a security guard at NationsBank in Bon Air, on February 17, 1999.

Witnesses testified that Schmitt entered the bank wearing sunglasses, which attracted Dunning’s attention. Dunning followed Schmitt into the building where Schmitt stepped toward Dunning and shot him twice. Schmitt then brandished a gun and demanded money from the bank tellers. Schmitt fled the bank with more than $35,000. He was arrested three days later.

Schmitt’s principal defense to the charge of capital murder was that none of the witnesses, nor any of the 11 bank surveillance cameras, saw exactly what transpired before Schmitt shot Dunning. In addition to the death sentence, Schmitt received a 118 year prison sentence for charges related to the murder and robbery.

Schmitt has been on death row since June 15, 2000.

ProDeathPenalty.com

On February 17, 1999, Earl Shelton Dunning was shot and killed while working as a security guard at a bank in Chesterfield County. About a month before Dunning was killed, John Yancey Schmitt had robbed this same bank and, after that robbery, the bank had hired Dunning to work as a security guard.

Shortly after 1:00 p.m. on February 17, 1999, a man entered the bank wearing dark sunglasses and a bulky jacket. He kept his head lowered and appeared to scan the interior of the bank. The bank manager testified that she was "nervous" about this man because he was wearing sunglasses inside the bank on a "really cloudy day." Dunning was outside the bank and, after the man went inside, Dunning entered the bank and walked across the lobby to stand at the end of the "teller line" in which customers were waiting.

The man stood in the teller line behind several customers. The manager watched him leave his place in line and walk toward Dunning. When the man was within "a foot or so" of Dunning, she heard two gunshots and then heard someone scream, "Get down, get down!" The man next approached the manager's teller window and banged on the counter yelling, "Money, give me money," and "If I don't get money, I'm going to kill everybody." She opened her cash drawer and threw money into a black plastic bag that the robber was holding.

The robber continued to bang on the counter demanding "more money." He announced that he would give the tellers "ten seconds" to give him more money, and began counting backward from the number "ten." By the time he reached "nine," another teller was "throwing money in the bag." The manager also gave him money from a third teller's drawer. When she told the robber that she had no more money to give him, the robber left the bank.

The bank's security camera system recorded photographs of Schmitt approaching the end of the teller counter and standing at a teller window holding a bag and pointing a gun. None of the witnesses who testified at trial saw the actual shooting of Earl Dunning, and the shooting was not recorded by the bank's security camera system.

However, the manager and two tellers all identified a photograph of Schmitt recorded by the bank's security camera system as depicting the man who robbed the bank that day. After Schmitt left the bank, witnesses telephoned the "911" emergency response number and attended to Dunning, who was lying on the floor. By the time emergency medical personnel arrived, Dunning was dead.

The witnesses in the bank testified that they did not touch or see anyone else touch Dunning's gun or its holster. Dunning's gun was found in its holster, which was closed and snapped. An autopsy revealed that Dunning was killed as a result of a gunshot wound to his chest. The bullet entered the right side of Dunning's chest, causing significant injuries to the aorta, and exited from the right side of his back.

After the murder and robbery, Schmitt registered at a Williamsburg hotel the same day under the name "R. Napier." The hotel desk clerk testified that Schmitt asked for directions to the local shopping areas, and that when Schmitt later returned to the hotel, his hair was a different color. Schmitt paid cash for a three-day stay at the hotel.

Chesterfield County Police Department officers identified Schmitt after reviewing the photographs taken by the bank's security camera system. Two days after the murder and robbery, on February 19, 1999, police learned where Schmitt was staying in Williamsburg.

The James City County Tactical Team surrounded Schmitt's hotel room, and a crisis negotiator from the James City County Police Department attempted to persuade Schmitt to surrender. About 10:30 a.m. the following morning, Schmitt surrendered and was taken into police custody.

Police obtained a search warrant for Schmitt's hotel room, where a satchel, a handgun, a box of shotgun shells, a black leather jacket, and a variety of newly purchased clothing items were seized. Inside the satchel was $27,091 in cash, most of which still bore "bank bands" identifying the money as coming from the bank that had been robbed.

A firearms and tool mark examiner employed by the Virginia Division of Forensic Science who qualified as an expert witness on the subject of firearms testified that he examined the handgun found in Schmitt's hotel room and the cartridge casings and bullets found in the bank. He stated that based on his examination, the cartridge casings and bullets had been fired from this handgun.

The firearms expert also tested the handgun and items of Dunning's clothing to establish the distance of the firearm from Dunning at the time of the shooting. Based on these tests, he concluded that the pattern of gunpowder residue found on Dunning's clothing indicated that when Dunning was shot, the distance between him and the firearm muzzle was between 12 and 36 inches.

During the penalty phase of the trial, the Commonwealth presented evidence of Schmitt's criminal record. Between 1992 and 1996, Schmitt was convicted twice of possession of marijuana with the intent to distribute, and also had convictions of receiving stolen property, possession of a firearm by a convicted felon, and possession of marijuana.

Schmitt was on probation for some of these offenses at the time of the capital murder and robbery. He had failed to keep the conditions of his probation requiring him to have regular drug tests and to meet with his probation officer and, as a result, a warrant had been issued for his arrest prior to both bank robberies.

In the earlier robbery of the bank on January 19, 1999, Schmitt and another man had stolen over $65,000. Schmitt was armed with a sawed-off shotgun in that robbery. The Commonwealth presented evidence that before the first robbery, police were called to investigate an argument between Schmitt and a girlfriend involving a shotgun, and that Schmitt had "sawed off" the barrel of the gun the night before the first bank robbery. The Commonwealth also presented evidence of a tape recording of a telephone conversation between Schmitt and a friend in which Schmitt described the present offenses.

In addition, the Commonwealth introduced evidence of the "drug dealer lifestyle" that Schmitt had been leading in the months before he committed the present offenses. The Commonwealth presented testimony from Dunning's family and friends concerning the impact of Dunning's murder on them.

Dunning's mother and brother testified that in January 1999, a month before his murder, Dunning had retired from the United States Army after over 20 years of service, and that he had received many commendations honoring his bravery and leadership while in military service.

The Commonwealth also presented testimony that Dunning had three children and that he had planned to marry in March 1999. Several bank employees testified that during the few weeks that Dunning worked at the bank, he had developed close relationships with his fellow employees that demonstrated extraordinary thoughtfulness and generosity.

Schmitt presented testimony from the crisis negotiator that Schmitt had expressed remorse over the killing during the negotiations culminating in his surrender. In addition, Schmitt presented testimony from a medical specialist dealing with adolescent addiction who testified generally concerning the effects of drug addiction and withdrawal. However, this specialist had never treated or evaluated Schmitt.

Schmitt also presented testimony from his juvenile probation officer, friends, and family members who described Schmitt as courteous and respectful when he was not under the influence of drugs.

Democracyinaction.org

John Schmitt, November 9, 2006, VA
Do Not Execute John Schmitt!

The state of Virginia is scheduled to execute John Yancey Schmitt Nov. 9 for the 1999 murder of Shelton Dunning, a security guard at the Bon Air branch of NationsBank in Chesterfield County. Schmitt, a white man, allegedly shot Dunning in the lobby of the bank and proceeded to rob the tellers at gunpoint; he fled the bank with approximately $27,000 in cash.

Two days later, investigators located Schmitt in a Williamsburg hotel; police officers, along with a crisis negotiator, convinced him to surrender shortly thereafter. Inside the hotel room, they found a satchel containing approximately $27,000, a handgun, and several articles of clothing described by witnesses at the scene of the crime.

At trial, Schmitt argued that no eyewitnesses or surveillance cameras captured the events leading up the shooting. He maintains that the gun went off amidst a struggle, and that the Dunning murder was purely unintentional. The jury disagreed, and sentenced him to death on Aug. 15, 2000. Now, six years later, the state of Virginia is preparing to execute him.

During the penalty phase of his trial, Schmitt presented testimony from several witnesses to demonstrate his character and remorse. Through a variety of witnesses, he drew distinctions between his normal behavior and his behavior while under the influence of drugs.

A medical specialist described the effects of drug addiction and withdrawal, linking his violent tendencies to struggles with substance abuse. His juvenile probation officer, as well his family members and friends, testified concerning his generally courteous and respectful demeanor, also noting severe changes when his drug addiction got the better of him.

To demonstrate his remorseful attitude toward the Dunning murder, Schmitt presented the testimony of Lieutenant Diane M. Clarcq of the James City County Police Department. Clarcq served as crisis negotiator in the apprehension of Schmitt, and their interactions leading to his surrender highlighted his feelings of remorse. Considering the mitigating factors, the state of Virginia should commute this sentence to life in prison without parole.

Schmitt has argued throughout his trial and appeals process that errors in the jury selection process landed him a jury overwhelmingly inclined to deliver a death sentence, regardless of mitigating evidence. During the pre-trial selection process, Chesterfield County prosecutors struck several prospective jurors because of their opposition to capital punishment. Although the U.S. Supreme Court has upheld this practice as constitutional, the state should recognize that it discriminates against a large group of citizens, and shapes juries anxious to hand down the ultimate penalty.

The state of Virginia should undoubtedly punish Schmitt for his involvement in this murder. However, his pending execution will neither bring back Shelton Dunning nor prevent crime from occurring in the future. Rather, it marks another senseless killing that only perpetuates the cycle of violence prevalent in society today.

Please write to Gov. Tim Kaine on behalf of John Schmitt!

Abolish Archives

VIRGINIA:

John Yancey Schmitt should be executed for shooting to death a guard while robbing a Bon Air bank, a Chesterfield County jury recommended yesterday. Schmitt, 26, hung his head and stared at the floor as he listened impassively to the jury's verdict.

Tears immediately started flowing down the faces of friends and relatives of the guard, Shelton Earl Dunning, a retired, 20-year Army veteran. "I'm overjoyed," said Bettye Atkins, Dunning's mother. "Now my son can rest in peace. His soul is finally at rest."

No members of Schmitt's family were in the courtroom when the jury announced its verdict. Schmitt's father, John E. Schmitt, arrived at the courthouse late and paled visibly after being told the jury recommended that his son be put to death. "I have mixed feelings about that," he said. "I think life in prison would have been sufficient, but then I'm a little biased."

During the weeklong trial, the elder Schmitt offered his apologies to Dunning's family and said yesterday that he continues to wish them well. "I'm very sorry it happened and I wish we could take it back, but I can't," he said.

Schmitt will be formally sentenced by Judge William R. Shelton on May 23. Shelton can uphold the jury's sentence of death or reduce it to life in prison. The jury of 7 white women, 1 black woman and 4 white men deliberated for almost 8 straight hours Friday. As the jurors left the courthouse Friday evening, the foreman warned the judge that "it's going to take quite a bit more time." But after reconvening at 9 a.m. yesterday, jurors deliberated for only about an hour before returning with their verdict.

They had earlier recommended that Schmitt serve 118 years in prison on 6 felony charges associated with the armed robbery of the Bon Air branch of NationsBank, now Bank of America, on Feb. 17, 1999, and related firearms violations. The capital-murder conviction required a separate deliberation for sentencing.

Dunning, 39, had been assigned to the bank branch after a robbery about a month earlier. Prosecutors alleged that Schmitt also was responsible for the earlier robbery and had walked away with more than $60,000. According to court testimony, Schmitt, armed with a .45-caliber pistol, returned to the bank on Feb. 17 to rob it again.

Witnesses testified they saw Schmitt, who was wearing wraparound sunglasses and a leather coat, enter the bank, stand in line for a teller and then step toward Dunning. Two shots were fired. One bullet hit Dunning in the chest and killed him. But no witness -- or any of the 11 surveillance cameras in the bank -- detected precisely what happened before the shots were fired.

After the shooting, Schmitt fled with $35,929. 3 days later, police recovered $27,091 and the murder weapon when they arrested Schmitt in a James City County motel room after a 4-hour standoff.

Dunning spent much of his military career as a paratrooper or in airborne-related assignments. He was assigned to Fort Lee in 1994 and retired from there about 6 weeks before his death.

"We think justice was served," Chesterfield Commonwealth's Attorney William W. Davenport said. "We are very pleased with the jury's verdict and the family of Shelton Dunning is pleased." Schmitt's defense lawyers, Christopher J. Collins and Craig S. Cooley, said they plan to file an appeal.

Orlando Dunning, Shelton Dunning's younger brother, beamed as he left the courthouse. "I am very happy, very excited," he said. "It's what I've been hoping for."

Dunning said that, while his family 1st thought they would be satisfied with a sentence of life in prison for Schmitt, they changed their minds and came to believe death was the more fitting punishment. "When I saw my brother get buried, I promised him I would see this all the way through and that John Yancey Schmitt would pay for his death," he said.

Dunning said he plans to return to Virginia from his home in Fair Haven, N.J., to watch Schmitt be executed. "He killed my brother in cold blood," he said. "He deserves to be put to death."

(source: Richmond Times-Dispatch)

Schmitt v. Commonwealth, 262 Va. 127, 547 S.E.2d 186 (Va. 2001) (Direct Appeal).

Defendant was convicted in the Circuit Court, Chesterfield County, William R. Shelton, J., of capital murder and related non-capital offenses, and was sentenced to death, and also to total of 118 years' imprisonment. Defendant appealed. The Supreme Court, Keenan, J., held that: (1) prospective jurors alleged to have been biased in favor of death penalty were not subject to challenge for cause; (2) defendant was properly prevented from asking prospective jurors to speculate as to whether they would automatically impose death sentence for certain types of killings or under certain hypothetical circumstances; (3) evidence of defendant's actions during bank robbery was sufficient to establish premeditation; (4) defendant's statements to crisis negotiator did not amount to statements against penal interest; (5) defendant's proposed missing witness instruction with respect to bank customers seen on security videotape was improper; (6) defendant was not entitled to supplemental jury instruction advising jury that life sentence would be imposed if jury could not unanimously agree on penalty; (7) evidence was sufficient to support finding of “future dangerousness” aggravating factor; and (8) sentence of death was not arbitrary, excessive, or disproportionate. Affirmed.

KEENAN, Justice.

In these appeals, we review the capital murder conviction and death sentence imposed on John Yancey Schmitt, along with his several non-capital convictions.

I. PROCEEDINGS

Schmitt was indicted for capital murder based on the willful, deliberate, and premeditated killing of Earl Shelton Dunning during the commission of a robbery, in violation of Code § 18.2-31(4). Schmitt also was indicted for armed entry of a bank with the intent to commit larceny, in violation of Code § 18.2-93; two counts of robbery, in violation of Code § 18.2-58; and three counts of use of a firearm, in violation of Code § 18.2-53.1.

In the first stage of a bifurcated trial conducted under Code § 19.2-264.3, a jury convicted Schmitt of all the offenses charged. In the penalty phase of the trial, the jury fixed his punishment for capital murder at death based on a finding of “future dangerousness,” and for the other offenses at imprisonment for a total of 118 years.

The trial court sentenced Schmitt in accordance with the jury verdict. We consolidated the automatic review of Schmitt's death sentence with his appeal of the capital murder conviction. Code § 17.1-313(F). We also certified Schmitt's appeal of his convictions for the non-capital offenses from the Court of Appeals and consolidated that appeal with his capital murder appeal. Code § 17.1-409.

II. GUILT PHASE EVIDENCE

We will state the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party in the trial court. Burns v. Commonwealth, 261 Va. 307, 313, 541 S.E.2d 872, 877 (2001); Lovitt v. Commonwealth, 260 Va. 497, 502, 537 S.E.2d 866, 870 (2000). On February 17, 1999, Earl Shelton Dunning was shot and killed while working as a security guard at the Bon Air branch of NationsBank (the bank) on Buford Road in Chesterfield County. About a month before Dunning was killed, Schmitt had robbed this same bank and, after that robbery, the bank had hired Dunning to work as a security guard.

Shortly after 1:00 p.m. on February 17, 1999, a man entered the bank wearing dark sunglasses and a bulky jacket. He kept his head lowered and appeared to scan the interior of the bank. Bank manager Sara Parker-Orr testified that she was “nervous” about this man because he was wearing sunglasses inside the bank on a “really cloudy day.”

Dunning was outside the bank and, after the man went inside, Dunning entered the bank and walked across the lobby to stand at the end of the “teller line” in which customers were waiting. The man stood in the teller line behind several customers. Parker-Orr watched him leave his place in line and walk toward Dunning. When the man was within “a foot or so” of Dunning, Parker-Orr heard two gunshots and then heard someone scream, “[G]et down, get down.”

The man next approached Parker-Orr's teller window and banged on the counter yelling, “Money, give me money,” and “[I]f I don't get money, I'm going to kill everybody.” Parker-Orr opened her cash drawer and threw money into a black plastic bag that the robber was holding.

The robber continued to bang on the counter demanding “more money.” He announced that he would give the tellers “ten seconds” to give him more money, and began counting backward from the number “ten.” By the time he reached “nine,” teller Marlene Austin was “throwing money in the bag.” Parker-Orr also gave him money from a third teller's drawer. When she told the robber that she had no more money to give him, the robber left the bank.

The bank's security camera system recorded photographs of Schmitt approaching the end of the teller counter and standing at a teller window holding a bag and pointing a gun. None of the witnesses who testified at trial saw the actual shooting of Dunning, and the shooting was not recorded by the bank's security camera system.

However, Parker-Orr, Austin, and Kelli Konstaitis, another teller, all identified a photograph of Schmitt recorded by the bank's security camera system as depicting the man who robbed the bank that day. After Schmitt left the bank, witnesses telephoned the “911” emergency response number and attended to Dunning, who was lying on the floor. By the time emergency medical personnel arrived, Dunning was dead. The witnesses in the bank testified that they did not touch or see anyone else touch Dunning's gun or its holster. Dunning's gun was found in its holster, which was closed and snapped.

An autopsy revealed that Dunning was killed as a result of a gunshot wound to his chest. The bullet entered the right side of Dunning's chest, causing significant injuries to the aorta, and exited from the right side of his back.

After the murder and robbery, Schmitt registered at a Williamsburg hotel the same day under the name “R. Napier.” The hotel desk clerk testified that Schmitt asked for directions to the local shopping areas, and that when Schmitt later returned to the hotel, his hair was a different color. Schmitt paid cash for a three-day stay at the hotel. Captain Karl S. Leonard of the Chesterfield County Police Department identified Schmitt after reviewing the photographs taken by the bank's security camera system.

Two days after the murder and robbery, on February 19, 1999, Leonard learned where Schmitt was staying in Williamsburg. The James City County Tactical Team surrounded Schmitt's hotel room, and a crisis negotiator, Lieutenant Diane M. Clarcq of the James City County Police Department, attempted to persuade Schmitt to surrender. About 10:30 a.m. the following morning, Schmitt surrendered and was taken into police custody.

Leonard obtained a search warrant for Schmitt's hotel room, where a satchel, a handgun, a box of shotgun shells, a black leather jacket, and a variety of newly purchased clothing items were seized. Inside the satchel was $27,091 in cash, most of which still bore “bank bands” identifying the money as coming from the Bon Air branch of NationsBank.

John H. Willmer, a firearms and tool mark examiner employed by the Virginia Division of Forensic Science, qualified as an expert witness on the subject of firearms. Willmer testified that he examined the handgun found in Schmitt's hotel room and the cartridge casings and bullets found in the bank. He stated that based on his examination, the cartridge casings and bullets had been fired from this handgun.

Willmer also tested the handgun and items of Dunning's clothing to establish the distance of the firearm from Dunning at the time of the shooting. Based on these tests, Willmer concluded that the pattern of gunpowder residue found on Dunning's clothing indicated that when Dunning was shot, the distance between him and the firearm muzzle was between 12 and 36 inches.

III. PENALTY PHASE EVIDENCE

During the penalty phase of the trial, the Commonwealth presented evidence of Schmitt's criminal record. Between 1992 and 1996, Schmitt was convicted twice of possession of marijuana with the intent to distribute, and also had convictions of receiving stolen property, possession of a firearm by a convicted felon, and possession of marijuana.

Schmitt was on probation for some of these offenses at the time of the capital murder and robbery. He had failed to keep the conditions of his probation requiring him to have regular drug tests and to meet with his probation officer and, as a result, a capias had been issued for his arrest prior to both bank robberies.

In the earlier robbery of the bank on January 19, 1999, Schmitt and another man had stolen over $65,000. Schmitt was armed with a sawed-off shotgun in that robbery. The Commonwealth presented evidence that before the first robbery, police were called to investigate an argument between Schmitt and a girlfriend involving a shotgun, and that Schmitt had “sawed off” the barrel of the gun the night before the first bank robbery.

The Commonwealth also presented evidence of a tape recording of a telephone conversation between Schmitt and a friend in which Schmitt described the present offenses. In addition, the Commonwealth introduced evidence of the “drug dealer lifestyle” that Schmitt had been leading in the months before he committed the present offenses.

The Commonwealth presented testimony from Dunning's family and friends concerning the impact of Dunning's murder on them. Dunning's mother and brother testified that in January 1999, a month before his murder, Dunning had retired from the United States Army after over 20 years of service, and that he had received many commendations honoring his bravery and leadership while in military service.

The Commonwealth also presented testimony that Dunning had three children and that he had planned to marry in March 1999. Several bank employees testified that during the few weeks that Dunning worked at the bank, he had developed close relationships with his fellow employees that demonstrated extraordinary thoughtfulness and generosity.

Schmitt presented testimony from the crisis negotiator, Lieutenant Clarcq, that Schmitt had expressed remorse over the killing during the negotiations culminating in his surrender. In addition, Schmitt presented testimony from a medical specialist dealing with adolescent addiction who testified generally concerning the effects of drug addiction and withdrawal. However, this specialist had never treated or evaluated Schmitt. Schmitt also presented testimony from his juvenile probation officer, friends, and family members who described Schmitt as courteous and respectful when he was not under the influence of drugs.

* * *

VII. GUILT PHASE ISSUES

Schmitt argues that the trial court erred in denying his motions to strike the capital murder charge and that the evidence was insufficient as a matter of law to support his conviction on that charge. Schmitt contends that certain physical evidence supports a reasonable hypothesis that the shooting occurred during a struggle and was unintentional, thereby negating the element of premeditation.

Schmitt relies on the evidence of powder residue on Dunning's jacket, the location of the bullet hole in the jacket, as well as the evidence of blood on Schmitt's left hand and the location of the bullet casings “to the left of where the defendant would have been.” We disagree with Schmitt's arguments.

The issue of premeditation is a question to be resolved by the finder of fact. Bailey v. Commonwealth, 259 Va. 723, 749, 529 S.E.2d 570, 585, cert. denied, 531 U.S. 995, 121 S.Ct. 488, 148 L.Ed.2d 460 (2000); Weeks, 248 Va. at 477, 450 S.E.2d at 390; Clozza v. Commonwealth, 228 Va. 124, 134, 321 S.E.2d 273, 279 (1984), cert. denied, 469 U.S. 1230, 105 S.Ct. 1233, 84 L.Ed.2d 370 (1985). The intent to kill need not exist for any specific period of time before the actual killing. Id. To establish the element of premeditation, the Commonwealth need only show that the intent to kill existed for a moment before the fatal act was committed. Id.

The evidence showed that Schmitt entered the bank armed with a loaded and concealed weapon. After Dunning came inside the bank and stood near the end of the teller line, Schmitt left his place in that line and walked directly to the location where Dunning was standing. Without saying anything, Schmitt fired two shots, one of which hit Dunning in the chest. After the shooting, Schmitt shouted, “get down,” and threatened to “kill everybody” if he did not get some money. We conclude that this evidence was sufficient to establish the element of premeditation.

Viewed in the light most favorable to the Commonwealth, the evidence supported a conclusion that Schmitt intended to kill Dunning from the moment that Schmitt left his place in the teller line and began to approach Dunning. At this point, he possessed a concealed, loaded weapon, which he used to shoot Dunning at close range within seconds of departing from his place in the teller line.

Schmitt's contrary argument relies largely on speculation, rather than on reasonable inferences that can be drawn from the evidence. Moreover, the jury was entitled to reject his view of the evidence and conclude that he acted with premeditation when he fired the shot that killed Dunning. Therefore, we conclude that the evidence was sufficient to support the jury's determination of guilt on the capital murder charge.

Schmitt argues that the trial court erred in refusing to permit the crisis negotiator, Lieutenant Clarcq, to testify regarding statements Schmitt made to Clarcq about the robbery and shooting. These statements included Schmitt's admission that he robbed the bank and a statement that he did not intend to kill Dunning but shot him during a struggle. Schmitt contends that these statements were admissible as a declaration against his penal interest. We disagree.

Schmitt's statements to Clarcq do not qualify as declarations against his penal interest. This exception to the hearsay rule allows out-of-court statements that tend to incriminate a declarant to be received in evidence upon a showing that the declaration is reliable and that the declarant is presently unavailable. Ellison v. Commonwealth, 219 Va. 404, 408, 247 S.E.2d 685, 688 (1978).

Underlying this exception is the presumption that individuals have a strong interest in protecting themselves and thus do not often make statements that expose themselves to criminal liability unless those statements are true. See Newberry v. Commonwealth, 191 Va. 445, 461, 61 S.E.2d 318, 326 (1950); Hines v. Commonwealth, 136 Va. 728, 743-44, 117 S.E. 843, 847 (1923). When the declarant has made an incriminating statement that is contrary to his self-interest, this “element of self-interest” functions as “a reasonably safe substitute for the oath and cross-examination as a guarantee of truth.” Newberry, 191 Va. at 461, 61 S.E.2d at 326 (citing Hines, 136 Va. at 744, 117 S.E. at 847).

Here, however, the chief portion of the statement that Schmitt sought to have admitted was a self-serving denial of his criminal intent on the capital murder charge.FN2 Schmitt's statement that he shot Dunning during a struggle is not contrary to Schmitt's self-interest but instead promotes the goal of protecting himself from criminal liability for capital murder. For this reason, as a threshold matter, the statement is not a declaration against penal interest.FN3 Accordingly, we conclude that the trial court did not err in refusing Schmitt's request to admit evidence of these statements made to Lieutenant Clarcq.

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IX. SENTENCE REVIEW Passion and Prejudice

Under Code § 17.1-313(C), we review the death sentence imposed on Schmitt to determine whether it (1) was imposed under the influence of passion, prejudice, or any other arbitrary factor; or (2) is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Schmitt argues that the sentence was based on passion, prejudice, and arbitrariness because the Commonwealth improperly was permitted to argue that Schmitt's crime satisfied the “vileness” aggravating factor in the absence of a sound legal basis for making that argument.

Schmitt also asserts that no evidence was presented of any prior violent conduct on his part that resulted in harm to any person, or of him having caused “the slightest difficulty” during his previous incarcerations.

In addition, Schmitt contends that the jurors' passions were improperly inflamed by evidence of his tape-recorded conversation with Clifford Sauer and by the testimony of Dunning's family. Schmitt also argues that the prosecutor engaged in an intentional effort during closing argument to raise the jurors' passions by making improper comments to encourage them to vote for the death penalty. We find no merit in Schmitt's arguments.

First, the jury's rejection of the “vileness” aggravator demonstrates that the death sentence was not affected by the prosecutor's argument regarding “vileness.” In addition, the jury fixed sentences of 35 years each on the two charges of robbery when it could have sentenced Schmitt to life imprisonment for each charge.

These sentencing decisions show that the argument and evidence concerning the “vileness” aggravator did not inflame the passions of the jury. Second, since the “victim impact” testimony and Schmitt's own tape-recorded conversation were properly received as evidence in the penalty phase of the trial, the jury was entitled to consider this evidence in making its sentencing determination. Likewise, Schmitt's criminal record and his conduct during prior periods of incarceration were also evidence properly presented to the jury, which was permitted to accord that evidence whatever weight it deemed proper.

We also conclude that the record fails to demonstrate that the prosecutor's comments during closing argument resulted in a death sentence that was imposed under the influence of passion, prejudice, or any other arbitrary factor. Moreover, based on our independent review of the record, we find no evidence that any such impermissible factor was present or influenced the jury's sentence.

Excessiveness and Proportionality

Schmitt argues that his sentence is excessive and disproportionate to the penalty imposed in similar cases. He asserts that only one capital murder defendant in Virginia, the defendant in Roach, received the death penalty for a murder that resulted from a single gunshot wound in the absence of torture or other aggravating factor. Schmitt thus contends that juries have not generally imposed the death penalty for crimes similar to Schmitt's, but instead generally impose life imprisonment for such offenses.

In conducting our proportionality review, we do not isolate our consideration to any particular prior case, but must determine whether “other sentencing bodies in this jurisdiction generally impose the supreme penalty for comparable or similar crimes, considering both the crime and the defendant.” Lovitt, 260 Va. at 518, 537 S.E.2d at 880; Johnson v. Commonwealth, 259 Va. 654, 683, 529 S.E.2d 769, 786, cert. denied, 531 U.S. 981, 121 S.Ct. 432, 148 L.Ed.2d 439 (2000) (quoting Jenkins, 244 Va. at 461, 423 S.E.2d at 371). Thus, we reject Schmitt's invitation to focus solely on the method in which the murder was accomplished in this case, because to do so would ignore our statutory mandate to conduct our review with full consideration of both the crime and the defendant. See Code § 17.1-313(C)(2).

We have compared the record in the present case with the records of other capital murder cases, including those in which a sentence of life imprisonment was imposed. We also have examined the records of all capital cases reviewed by this Court pursuant to Code § 17.1-313(E). Since the jury imposed the death sentence based on the “future dangerousness” predicate, we give particular consideration to other capital murder cases in which the death penalty was obtained under that predicate.

We observe that juries in this Commonwealth, with some exceptions, generally have imposed the death sentence for convictions of capital murder based on a finding of “future dangerousness” in which the underlying qualifying crime was robbery. See, e.g., Lovitt, 260 Va. 497, 537 S.E.2d 866; Orbe v. Commonwealth, 258 Va. 390, 519 S.E.2d 808 (1999), cert. denied, 529 U.S. 1113, 120 S.Ct. 1970, 146 L.Ed.2d 800 (2000); Roach, 251 Va. 324, 468 S.E.2d 98; Chandler v. Commonwealth, 249 Va. 270, 455 S.E.2d 219, cert. denied, 516 U.S. 889, 116 S.Ct. 233, 133 L.Ed.2d 162 (1995); Joseph v. Commonwealth, 249 Va. 78, 452 S.E.2d 862, cert. denied, 516 U.S. 876, 116 S.Ct. 204, 133 L.Ed.2d 137 (1995); Swann, 247 Va. 222, 441 S.E.2d 195; Chichester v. Commonwealth, 248 Va. 311, 448 S.E.2d 638 (1994), cert. denied, 513 U.S. 1166, 115 S.Ct. 1134, 130 L.Ed.2d 1095 (1995); Dubois v. Commonwealth, 246 Va. 260, 435 S.E.2d 636 (1993), cert. denied, 511 U.S. 1012, 114 S.Ct. 1389, 128 L.Ed.2d 63 (1994); Yeatts, 242 Va. 121, 410 S.E.2d 254; Savino v. Commonwealth, 239 Va. 534, 391 S.E.2d 276, cert. denied, 498 U.S. 882, 111 S.Ct. 229, 112 L.Ed.2d 184 (1990); Mackall v. Commonwealth, 236 Va. 240, 372 S.E.2d 759 (1988), cert. denied, 492 U.S. 925, 109 S.Ct. 3261, 106 L.Ed.2d 607 (1989); Townes v. Commonwealth, 234 Va. 307, 362 S.E.2d 650 (1987), cert. denied, 485 U.S. 971, 108 S.Ct. 1249, 99 L.Ed.2d 447 (1988). Based on this review, we hold that Schmitt's death sentence is neither excessive nor disproportionate to penalties imposed by other sentencing bodies in the Commonwealth for comparable crimes, considering both the crime and the defendant.

X. CONCLUSION

We find no reversible error in the judgments of the trial court. Having reviewed Schmitt's death sentence pursuant to Code § 17.1-313, we decline to commute the sentence of death. Accordingly, we will affirm the trial court's judgments.

Schmitt v. True, 387 F.Supp.2d 622 (E.D. Va. 2005) (Habeas).

Background: Following affirmance of his conviction for capital murder and the ensuing death sentence, 547 S.E.2d 186, state prisoner filed a petition for a writ of habeas corpus. Petitioner also filed motion to amend his petition to include a Brady claim.

Holdings: The District Court, Payne, J., held that:
(1) consideration or benefit to the informant is not an essential component of informant's status as an agent of the state for purposes of a Massiah claim;
(2) informant acted as agent of the Commonwealth for purposes of Massiah claim;
(3) counsel's decision to forego a motion to suppress petitioner's tape recorded description of the shooting was a reasonable tactical decision; and
(4) prosecutor's suppression of information of obvious value in impeaching informant's guilt phase testimony did not violate Brady. Petition dismissed in part; leave to amend denied.

* * *

PAYNE, District Judge.
Pursuant to 28 U.S.C. § 2254, John Yancey Schmitt, a Virginia state prisoner who has been sentenced to death, filed a petition for a writ of habeas corpus challenging his conviction in the Circuit Court for the County of Chesterfield for capital murder and the ensuing death sentence. In a Memorandum Opinion (Docket No. 80) issued on January 21, 2005, all of Schmitt's claims for habeas relief were rejected except for the following claims:

XIV. Trial counsel was ineffective when he failed to object in a timely manner to the admission of the tape recording of a jailhouse telephone call between Schmitt and Clifford Sauer.

XV. Defense counsel was ineffective when he failed to move for a mistrial based on prosecutorial misconduct at the proper time.

XVI. Defense counsel's performance was prejudicial.

XX. The admission of the taped jailhouse phone call between Schmitt and Sauer, acting as a government agent, during the penalty phase violated Schmitt's Fifth and Sixth Amendment rights.

XXI. Prosecutorial misconduct during the penalty summation deprived Schmitt of due process and a fair trial and the trial court erred when denying curative instructions and a mistrial. Nor has the Court ruled on Schmitt's March 3, 2004 motion to amend his petition to include the following Claim:

XXIV. The prosecutor withheld impeachment materials in violation of Brady v. Maryland, and Schmitt's rights to due process of law under the Fifth and Fourteenth Amendments. In one way or another and to varying degrees, the resolution of Claims XIV and XX affect the resolution of Claims XV, XVI, XXI as well as the proffered amendment. After discovery, an evidentiary hearing was held on Claims XIV and XX. For the reasons stated below, Schmitt is not entitled to relief on Claims XIV and XX and the motion to amend to add Claim XXIV is denied.FN1 FN1. Claims XV, XVI, and XXI are dismissed by a separate Memorandum Opinion and Order also entered this day.

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II. FINDINGS OF FACT FOR CLAIMS XIV AND XX

1. On January 19, 1999, Schmitt and an associate, while armed with a shotgun, robbed the NationsBank in BonAir, Virginia (hereinafter “the Bank”).

2. Clifford Sauer, a roofer, previously had employed Schmitt and they had become social friends as well. EH at 14-15. After the January 19, 1999 bank robbery, Schmitt contacted Sauer for his assistance in purchasing a car. EH at 18-19. Sauer brokered the deal for the car and received a fee from Schmitt for his assistance. EH at 51-52. At the time of the transaction, Sauer did not know that Schmitt had robbed a bank. EH 51-52.

3. However, later Sauer became suspicious of Schmitt's spending habits. JA at 1344. After some prodding, Schmitt told Sauer that he had robbed a bank. JA at 1344. Schmitt tried to purchase a gun from Sauer. JA at 1345. Sauer refused. JA at 1346. Schmitt asked Sauer if he wanted to drive for another bank robbery. JA at 1345. Sauer declined. JA at 1345. Schmitt told Sauer that if, “you breathe one word of this to anyone ··· I'm going to have to kill you or my friends will have to kill you.” Resp. Ex. 4 at 28.

4. On January 30, 1999, Schmitt was arrested for obstruction of justice. JA at 1234. Schmitt told the police that his name was James Comer. JA at 1234. A few hours later, Sauer received a telephone call from an employee of the Henrico County Jail. JA at 1347. The employee asked Sauer whether he knew James Comer. JA at 1347. Sauer responded in the affirmative. JA at 1347. The next voice Sauer heard was that of Schmitt, who told Sauer to contact Kenny Lockner, collect some money, and take it to the Henrico County Jail to bail out James Comer. JA at 1347. After the bail was provided, Schmitt was released from custody. Sauer did not realize that he was actually posting bail for Schmitt instead of Comer until he saw Schmitt walk out of the jail after the bail had been paid.

5. On Friday, February 5, 1999, several officers, including Detective William George, arrived at Sauer's residence in the City of Richmond. While George and another officer went to the front door, other officers surrounded the house. EH at 99, 134. George told Sauer that they were looking for Schmitt in connection with a bank robbery. EH at 18, 100. Sauer gave the officers permission to search his home and readily answered their questions. EH at 17, 48-49. The search lasted only about fifteen minutes. EH at 101, 129. Before leaving, George left Sauer with his card and requested permission to interview Sauer at a later date. EH at 101-102. At the time of the search, Sauer was neither threatened nor coerced. Nevertheless, Sauer was apprehensive about the repercussions of having brokered the sale of the car which Schmitt had purchased from money from the first bank robbery. EH at 18-20.

6. Sauer did not act with any criminally culpable intent in his prior dealings with Schmitt. EH Sauer Testimony. Neither the Chesterfield Police nor the Chesterfield Commonwealth's Attorney's office ever contemplated charging Sauer with a crime for his prior dealings with Schmitt.

7. On February 7, 1999, George and Detective Easton conducted an hour long interview with Sauer in Sauer's home. EH at 103. A large portion of the interview was taped and transcribed. EH at 103; Resp. Ex. 3. From the outset of the meeting, Sauer determined to cooperate fully and voluntarily. Resp. Ex. 3 at 9. Sauer's cooperation was not attributable to any threats or intimidation by the police. George and Easton expressly assured Sauer that he was not a target of the police investigation. EH at 103, Resp. Ex. 3 at 9. Sauer volunteered information regarding: Schmitt's purchase of the car; Schmitt's efforts to recruit Sauer as a driver; Schmitt's attempt to purchase Sauer's gun; Schmitt's plans to kill Joanna Murphy, one of Schmitt's friends; and individuals who might lead the police to Schmitt. Resp. Ex. 3. at 9-21.

8. Between February 7 and February 17, 1999, George and Sauer were in almost daily contact by telephone. EH at 25, 108.

9. After the January robbery, the Bank hired a security guard, Shelton Dunning. On February 17, 1999, Schmitt walked into the Bank armed with a concealed 45 caliber pistol. Thereafter, Dunning came inside the Bank and stood near the end of the teller line, Schmitt left his place in that line and walked directly to the location where Dunning was standing. Without saying anything, Schmitt fired two shots, one of which hit Dunning in the chest. After the shooting, Schmitt shouted, “get down,” and threatened to “kill everybody” if he did not get some money. Schmitt took the money from the tellers and fled the bank. Dunning died shortly after the shooting. The bank surveillance cameras recorded Schmitt robbing the bank, but did not capture the actual shooting. JA Vol. II and III.

10. Shortly after the murder, Sauer paged George. EH at 141. Sauer told George that he had seen the news of the murder and that he believed that Schmitt was the perpetrator. EH at 141. George went to Sauer's house to seek Sauer's assistance in locating Schmitt. Sauer provided the police with information that led to Schmitt's girlfriend and eventually led to locating Schmitt in Williamsburg on February 20, 1999. EH at 39.

11. On February 20, 1999, the police surrounded Schmitt in his hotel room in Williamsburg. Diane Clarcq, a crisis negotiator with the Williamsburg police, attempted to persuade Schmitt to surrender peaceably. During the course of their discussions, Schmitt told Clarcq that he had struggled with the security guard and had not intended to kill him. Schmitt eventually surrendered peaceably. JA at 1405-15.

12. Shortly after the arrest, Craig Cooley and Chris Collins were appointed to represent Schmitt on the February 19, 1999 bank robbery and capital murder of Dunning. Both Cooley and Collins are experienced, highly regarded, and very capable capital defense counsel.

13. After Schmitt's arrest, Sauer continued to call George on a regular basis. EH at 140-43. The topics of conversations ranged from the preparation of the Schmitt case for trial to Sauer's personal life. From these conversations, Sauer formed the opinion that the police knew most of the relevant facts pertaining to the robberies except where Schmitt had obtained the handgun used in the murder of Mr. Dunning. EH at 152.

14. Sometime shortly before March 12, 1999, Sauer called George. During that conversation, George asked Sauer whether he had heard from Schmitt. EH at 28-29. Sauer told George that Schmitt had been calling him from jail. EH at 28-30. George asked Sauer to tape any future telephone calls from Schmitt. Sauer agreed to do as George requested. EH at 29, 41, 68.

15. Immediately after the telephone call with Sauer, George talked with Chief Deputy Commonwealth Attorney, Warren Von Schuch. EH at 110. Von Schuch told George that Sauer could record the calls and instructed George that Sauer could not ask questions. EH at 111, 256. Von Schuch instructed George to provide Sauer with a tape recorder for Sauer's phone. EH at 256.

16. Later that day, George delivered the recording device to Sauer and explained how to use it. EH at 29. Sauer was eager to assist George in obtaining information from Schmitt. EH at 111-12, 151. George told Sauer that the prosecution was interested in obtaining incriminating information from Schmitt about the robbery. EH at 30, 35, 40; Pet.'s Ex. 3 ¶ 8. Sauer asked George what questions the police wanted answered. EH at 151. George responded that the only question left unanswered was the origin of the handgun used in the second robbery. EH at 150-51. Thereafter, George told Sauer that we cannot tell you to ask questions and to basically let Schmitt do the talking. EH at 30, 112. Sauer replied that, “I know what to ask. I watch Court TV.” EH at 112. George knew that Sauer intended to take affirmative steps to secure incriminating information from Schmitt. In fact, there was no other reason for George to have asked Sauer to record conversations with Schmitt or to have supplied a tape recorder to Sauer.

17. George and Sauer provided different versions of Sauer's enlistment. The Court credits, to the extent recited above, Sauer's account of those events and does not believe George's divergent version of the same events.

18. On March 12, 1999, Schmitt called Sauer from jail. During their conversation, Sauer elicited from Schmitt information about the gun, the robbery, and the killing of Mr. Dunning. See e.g., JA 1371-72, 1374-86.

19. George retrieved the tape from Sauer and turned it over to Von Schuch.

20. On March 25, 1999, Sauer testified about his dealings with Schmitt before the multijurisdictional grand jury for the City of Richmond, County of Chesterfield, County of Henrico, and County of Hanover. Pet.'s Ex. 4. Sauer received use immunity for his testimony. Von Schuch was present at the grand jury proceeding and was aware that Sauer had received immunity. EH at 288. Schmitt was indicted for capital murder by a Chesterfield County grand jury, not by the mulit-jurisdictional grand jury.

21. At the end of July 1999, the Circuit Court for the County of Chesterfield granted the defense counsel's motion for discovery and directed the Commonwealth to turn over to the defense any material under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Pet.'s Ex. 18, 21; EH at 175, 270.

22. On August 13, 1999, Von Schuch disclosed to defense counsel Schmitt's statements to Lieutenant Clarcq, which included copies of Clarcq's notes. EH 177.

23. Schmitt's trial originally was scheduled to start on October 22, 1999. On September 30, 1999, the Circuit Court granted Schmitt's motion and continued the trial until February 11, 2000. JA 309-18.

24. Throughout the fall of 1999, Sauer continued to contact George to discuss his personal difficulties and his anxiety about testifying at the Schmitt trial. EH at 72-73, 81-82, 142-43. As a result of these conversations, George became concerned that Sauer might harm himself and might become an unstable witness. EH at 144.

25. For those reasons, George contacted the Chesterfield County Community Services Board (“CSB”) to obtain mental health services for Sauer. EH at 115. George initiated this action out of his concern for Sauer and because he wished to preserve Sauer as an effective witness for Schmitt's trial. EH at 116, 160. Because Sauer was not a resident of Chesterfield County, George had to “jump through some hoops” to secure CSB services for Sauer. EH at 116. The CSB agreed to provide free services to Sauer as a favor to the police department. EH at 223-24.

26. On November 12, 1999, George accompanied Sauer to the initial interview at CSB with Dr. Sproul. EH at 214. Sauer told Dr. Sproul that he was stressed about his relationship with his girlfriend and was afraid of being called as a witness at Schmitt's trial. EH at 231-33. Nevertheless, Sauer was ambivalent about receiving any mental health treatment, cancelled his subsequent appointment, and never received any services from CSB. EH at 211, 219-20, 235.

27. At a discovery conference in late November 1999, Von Schuch informed defense counsel that the prosecution had a tape and a surprise witness. EH at 271-73, 357-59. Von Schuch told defense counsel he would provide them more information “after the holidays.” EH at 358. Von Schuch testified that he delayed turning the tape over because Sauer had expressed concern that he would be in danger from Schmitt's friends if they learned that he had agreed to be a witness for the police. EH at 274, 295.

28. Around Christmas of 1999, perhaps as late as January 1, 2000, Von Schuch provided defense counsel with a transcript of the March 12, 1999 Schmitt/Sauer tape-recorded conversation. EH. at 275.

29. The Schmitt/Sauer tape provided evidence that would have been beneficial to Schmitt during the guilt phase. Although, in that conversation, Schmitt admits to robbing the bank and shooting Dunning, Schmitt's account of those events indicates that he lacked premeditation and thus was probative of the issue of his guilt of capital murder. Specifically, Schmitt insisted that his gun discharged accidentally during the course of a struggle with Dunning. JA at 1374-86.

30. However, as to the sentencing phase of a capital murder trial, large portions of the tape provide a very negative picture of Schmitt who used profanity throughout the tape and bragged about why he was not worried about the pending capital murder charge. Schmitt expressed concern for his personal relationships and living conditions, and he also appeared to be oblivious to the harm that he had wrought upon the victims of his crimes. Indeed, when reciting his version of how the shooting occurred, Schmitt chuckles under his breath when he explains how Mr. Dunning's “eyes got real big” when Schmitt pointed the gun at him. JA at 1379. The chuckle does not appear in the transcript, but can be heard on the audio tape.

31. The Commonwealth possessed overwhelming physical and testimonial evidence that Schmitt entered the bank armed with a gun, that he shot Dunning, and that he robbed the tellers at gunpoint. Defense counsel determined that the only defense available to Schmitt was the version of events supplied by Schmitt: that the shooting was not premeditated and that the gun had discharged accidentally during the course of a struggle. EH at 201, 367-68. In addition to the Sauer/Schmitt tape, Schmitt's statements to Clarcq and the forensic evidence tended to supported that defense.

32. Cooley and Collins wanted the Schmitt/Sauer tape introduced during the guilt phase of the trial to support the accidental discharge defense. EH at 190; 364. However, Cooley and Collins were aware that Virginia law on hearsay ordinarily excluded a defendant's own out-of-court statements. EH at 178-79, 357. Cooley and Collins also recognized that, because Schmitt's statements on the tape were largely inculpatory, the Commonwealth would be able to introduce them as admissions against Schmitt's penal interest. EH at 364. Thus, counsel perceived that their best chance for having the tape admitted during the guilt phase was to have the Commonwealth introduce the tape.

33. Before trial, defense counsel could not discover at which phase the prosecution would attempt to introduce the Schmitt/Sauer tape. EH at 291, 329. In anticipation that the Commonwealth would decline to introduce the Schmitt/Sauer tape during the guilt phase, Cooley prepared an argument grounded in Virginia case law to persuade the trial court to introduce the tape at the guilt phase of the trial. EH at 196.

34. If they were not able to introduce the tape during the guilt phase, Cooley and Collins did not wish the tape to be admitted during the sentencing phase. Before trial, Cooley and Collins believed that Sauer's conduct in taping his conversation with Schmitt at the behest of the police violated Schmitt's Sixth Amendment right to counsel. EH at 185-86, 201, 366, 371. Cooley and Collins had sufficient information to make a pretrial motion to suppress the Sauer tape on Sixth Amendment grounds. EH at 201, 359-66; JA at 1030-31. Both Cooley and Collins knew that, under Va.Code § 19.2-266.2, motions to suppress on constitutional grounds had to be filed before trial. EH at 186, 386.

35. Collins recognized that, under Virginia procedure, it was conceptually possible to move before trial for a ruling on the defense argument that the tape was admissible during the guilt phase as an admission against Schmitt's penal interest and that, if the motion failed, it was possible simultaneously to pursue a pretrial motion to suppress the motion at the sentencing phase. EH at 383. Counsel declined to pursue any pretrial motion to suppress because of his overriding concern was to have the tape introduced into evidence during the guilt phase and he did not wish to take any action that would discourage the prosecution from introducing the tape during that phase. EH at 364-66, 370, 383. If counsel had possessed the additional information regarding Sauer's contacts with the police that was revealed during the federal habeas proceedings, it would not have changed Collins's decision not to pursue a pretrial motion to suppress. EH at 382.

36. In declining to file a pretrial motion, counsel weighed the aggregate harm and benefit of the tape. See FF 29-31. In this regard, Collins and Cooley did not view the Schmitt/Sauer tape as entirely negative with respect to sentencing. EH at 191, 365, 373. First, counsel believed that, even during sentencing, the tape could foment residual doubt on the issue of premeditation that could be helpful in avoiding a death sentence. EH at 384. Second, the tape could humanize Schmitt in the eyes of the jury because it showed Schmitt demonstrating concern for protecting people he had involved in his crimes. EH at 384. This admittedly weak evidence was considered helpful because there was virtually no other significant mitigating evidence available to the defense. EH at 384.

37. The prosecution team initially planned to include Schmitt's statements to Sauer as part of the Commonwealth's guilt phase case. EH at 276, 291, 297. Upon further reflection of the benefits of the tape to the defense during the guilt phase, the prosecution decided to wait until the sentencing phase to introduce the tape. EH at 297.

38. When the prosecution failed to introduce the tape during the guilt phase, counsel attempted to introduce the tape as part of the Schmitt's guilt phase defense. JA at 1031. The trial court sustained the prosecution's objection that the statement was inadmissible hearsay. JA at 1035.

39. In order to impose the death penalty in Virginia, the jury must “find that there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing serious threat to society” (the future dangerousness aggravator) or that the defendant's “conduct in committing the offense for which he stands charged was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim” (the vileness aggravator). Va.Code Ann. § 19.2-264.2. At sentencing, the Commonwealth contended that both the vileness predicate and the future dangerousness predicate were present.

40. When the prosecution sought to introduce the Schmitt/Sauer tape during the sentencing phase, counsel objected that the tape constituted a violation of Schmitt's Fifth and Sixth Amendment rights because, “Sauer is clearly acting at the behest of ··· and as an agent of the police.” JA at 1338. The prosecution responded that the motion was untimely and also argued that Schmitt's constitutional rights had not been violated. JA at 1338-39. The trial court overruled Schmitt's motion without explaining the basis for its ruling. JA at 1341. The tape was played to the jury and Sauer testified on behalf of the prosecution.

41. On February 18, 2000, the jury rejected the prosecutor's assertion of the “vileness” aggravating factor, found the presence of the future dangerousness aggravator, and sentenced Schmitt to death.

42. Around midnight on February 20, 2000, the Richmond police called George for assistance with Sauer who was upset about some housing that was proposed for his neighborhood and he was hinting that he would hurt himself. EH at 122-23. George took Sauer to the Chesterfield Police Department where Jennifer Erisman conducted an emergency evaluation and determined that Sauer was not a danger to himself or others. EH 126-27. Sauer was released.

43. When Sauer received a reckless driving ticket in 2003, he went to Von Schuch for help. EH at 279. Von Schuch arranged for Sauer to keep his license provided that Sauer pay a hefty fine. EH at 279.

* * *

(i) Failure to Pursue Criminal Charges

Schmitt argues that there was an implicit agreement between Sauer and the Commonwealth that, in exchange for Sauer's continued cooperation, Sauer would not be charged as an accessory after the fact to the January 19 bank robbery. To convict a defendant as an accessory after the fact in Virginia, the Commonwealth must prove that: (1) the felony is completed; (2) the defendant knew that the felon committed the crime; (3) the defendant must “receive, relieve, comfort or assist” the felon. Manley v. Commonwealth, 222 Va. 642, 283 S.E.2d 207, 208 (1981).

Under Virginia law, “merely suffering the principal to escape” or failing to report a known felon to the authorities are omissions which are not sufficient to make a party an accessory after the fact. Wren v. Commonwealth, 67 Va. 952 (1875). Rather, “the true test of whether one is an accessory after the fact is to consider whether what he did was done by way of personal help to his principal, with the view to enabling his principal to elude punishment, the kind of help being unimportant.”

* * *

IV. PROPOSED CLAIM XXIV: THE PROSECUTOR'S PURPORTED SUPPRESSION OF IMPEACHMENT EVIDENCE PERTAINING TO CLIFFORD SAUER

Under Fed.R.Civ.P. 15(a), leave to amend shall be freely given absent bad faith, undue prejudice to the opposing party, or futility. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). The parties have fully briefed the issue whether the proposed amendment raises a genuine issue of material fact and have presented all relevant evidence in support of their positions. Because, as discussed below, the Warden would be entitled to judgment as a matter of law with respect to proposed Claim XXIV, the motion to amend will be denied as futile. See Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir.2001).

Schmitt alleges that the Commonwealth violated its obligation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), when it failed to disclose the impeachment evidence that: (1) Sauer had been working with the police before Schmitt was captured; (2) Sauer had been granted immunity before the multi-district grand jury; and (3) Sauer was mentally unstable and had received a free mental health evaluation. The Warden's initial response is that the proposed Claim XXIV is defaulted and lacks merit.

* * *

In sum, the prosecution's case at sentencing would look almost the same even if one discounts the testimony offered by Sauer on matters as to which he could have been impeached by the evidence that Von Schuch withheld. Having considered the record as a whole, the Court cannot find a reasonable probability that the verdict would have been different if the withheld impeachment evidence had been available to Schmitt.

In other words, the “favorable evidence could [not] reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict [here, the sentence of death].” Kyles, 514 U.S. at 435, 115 S.Ct. 1555. For that reason, the proffered amendment of the petition to add Claim XXIV would be futile. Hence, the motion for leave to file the amendment will be denied.

Although a proper respect for the jurisprudence that controls federal habeas corpus review necessitates this result, the Court would be remiss not to express on the record the great concern created by the prosecutor's conduct here. Specifically, the prosecutor suppressed information of obvious impeachment value. That indicates a disregard of the proper prosecutorial role, as circumscribed by Brady, or the federal constitution as outlined clearly by Brady and its progeny, or both. Moreover, when the prosecutor testified at the evidentiary hearing, his demonstrated attitude toward the dictates of Brady were evident. Indeed, he seemed to regard the whole concept of Brady as a game.

In this instance, the prosecutor's suppression of impeachment evidence turned out not to be material. But, that was fortuitous. And, it is not the office of the prosecutor to gamble with the materiality factor when he becomes aware of impeachment evidence. On this occasion, the consequence of the prosecutor's conduct was protraction of this litigation, the expenditure of funds for counsel to explore the issue, and the consumption of limited judicial resources to resolve the issues needlessly created by the conduct at issue. Those consequences were utterly unnecessary.

One would hope that this prosecutor, and all others, would learn from experiences such as this one. But, the most effective assurance that Brady will be fulfilled in state prosecutions lies in the full enforcement of its command by the state courts which have the power to order compliance with Brady and to discipline those who do not take its commands seriously.

V. CONCLUSION

For the foregoing reasons, Claims XIV and XX will be dismissed, and the motion for leave to amend the petition to add proffered Claim XXIV will be denied. The Clerk is directed to send a copy of the Memorandum Opinion to counsel of record. It is so ORDERED.

Schmitt v. Kelly, 2006 WL 1954888 (4th Cir. 2006) (Habeas).

Background: Following affirmance on appeal of defendant's state conviction for capital murder and imposition of the death penalty, defendant filed petition for habeas corpus relief. The United States District Court for the Eastern District of Virginia, Robert E. Payne, J., denied petition, and appeal was taken.

Holdings: The Court of Appeals held that: (1) exclusion of evidence relating to general prison security and prison life during the sentencing phase of defendant's capital murder trial in rebuttal to the state's future dangerousness argument did not violate defendant's right to present rebuttal evidence; (2) defendant was not prejudiced by trial court's suppression of evidence during sentencing phase of capital murder trial; (3) defense counsel's alleged failure to move for mistrial following each of prosecution's allegedly improper arguments did not prejudice defendant; (4) defendant procedurally defaulted on claim that his Sixth Amendment right to counsel was violated; and (5) defense counsel's failure to move to suppress the tape recording of conversation between defendant and witness was a reasonable tactical decision. Affirmed.

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PER CURIAM: Petitioner-appellant John Yancey Schmitt appeals the district court's denial of his habeas petition filed under 28 U.S.C.A. § 2254 (West Supp.2005). The district court granted a certificate of appealability to Schmitt on the following six claims: (1) whether the Virginia Supreme Court's holding that the exclusion of evidence relating to general prison security and prison life at state prisons was reasonable under Supreme Court precedent; (2) whether impeachment evidence suppressed by the prosecution violated Brady; FN1 (3) whether Schmitt's trial counsel were ineffective for failing to preserve his prosecutorial misconduct claim by moving for a mistrial at the appropriate time; (4) whether prosecutorial misconduct rendered Schmitt's trial unfair; (5) whether Schmitt's Massiah claim FN2 was procedurally defaulted; and (6) whether Schmitt's trial counsel were ineffective for failing to file a pretrial motion to suppress a tape that thereby waived Schmitt's Massiah claim. Finding no error in the district court's adjudication of Schmitt's claims, we affirm.

I. Procedural History A. Proceedings in the Trial Court

On January 19, 1999, Schmitt robbed a Nationsbank in Chesterfield County, Virginia, taking more than $65,000. At the time of the robbery, Schmitt was on probation for a prior conviction for unlawful possession of a firearm by a convicted felon. With part of the money from the robbery, Schmitt purchased a car. Cliff Sauer, Schmitt's former employer and friend, helped broker the car deal. After the closing of the car deal, Sauer, aware that Schmitt had not been gainfully employed in quite sometime, asked Schmitt about where he had obtained the funds for the new car. Eventually, Schmitt told Sauer that he had robbed a bank. Sauer did not contact the police with this information.

On January 30, 1999, Schmitt and his girlfriend were staying at a local hotel in Henrico County, Virginia and the hotel received noise complaints regarding Schmitt's room. When the police came to investigate, Schmitt became belligerent and refused to comply with the police officer's instructions. Schmitt was arrested for obstruction of justice. During the booking process, Schmitt told the police he was James Cromer.FN3 Pretending to be James Cromer, Schmitt called Sauer from the Henrico County jail and asked Sauer to bail him out of jail. Sauer, believing he was assisting Cromer, complied with the request and bailed Schmitt out of jail.

On February 17, 1999, Schmitt entered the same Nationsbank in Chesterfield County, Virginia and robbed it again. This time, however, Schmitt shot and killed the bank's security guard. The robbery was captured on the bank's security cameras, but the shooting occurred outside the view of the cameras. Schmitt fled the bank and checked into a hotel under a false name. The Chesterfield County Police Department tracked Schmitt to the hotel, and Lieutenant Clarcq negotiated his surrender. During the negotiations, Schmitt told Lt. Clarcq that he had not intended to shoot the security guard, and he expressed concern for his family and the family of the victim.

After the second robbery and the murder, but before Schmitt was apprehended, the Chesterfield County police contacted Sauer. Sauer cooperated with the police and disclosed his knowledge of the first bank robbery and the car deal. Sauer provided the police with the information that led to Schmitt's arrest. After Schmitt's arrest, the police again sought assistance from Sauer, asking him to tape record any telephone conversations he would have with Schmitt. Complying with this request, Sauer recorded a conversation that would become a key piece of the prosecution's penalty phase evidence.

During this recorded conversation, Schmitt made several incriminating and exculpatory statements regarding the robbery and murder. Schmitt expressed concern over his friends that had been implicated in the robbery, including the young lady who drove him to the hotel. Schmitt also expressed confidence in beating the murder charge because he claimed he did not intend to shoot or kill the security guard. Schmitt explained that there was a fight and that the security guard grabbed his gun.

Schmitt described in detail how he grabbed the security guard's hand and how he had scratches on himself to prove the struggle. Schmitt believed that he committed manslaughter because he lacked the intent to kill. Schmitt also laughingly described to Sauer how the security guard's “eyes got real big” when he pointed the gun at him. Changing topics, Schmitt then described the amenities of the prison. He said the prison was “nice” and noted that it had cable television, ping-pong, microwaves, single cells, and reasonable prices at the canteen.

The Commonwealth of Virginia indicted Schmitt for capital murder, armed entry of a bank with intent to commit larceny, two counts of robbery, and three counts of use of a firearm in violation of Virginia Code § 18.2-53.1 (2004). Faced with a defendant who wished to proceed to trial in spite of the mountain of evidence against him, Schmitt's trial co-counsel, Mr. Cooley and Mr. Collins, turned their attention to trial strategy. Schmitt's attorneys weighed the possibility of moving to suppress the telephone call between Sauer and Schmitt.

They ultimately concluded, however, that if the prosecution entered the tape into evidence during the guilt phase of the trial, which they believed was a strong possibility, they could use the tape to Schmitt's advantage by arguing that the shooting was unintentional. This was a critical decision because Virginia law requires that all defense motions seeking to suppress evidence on the basis of violations of the U.S. Constitution, whether the evidence is for use at trial or sentencing, be filed no later than seven days before trial. See Va.Code Ann. § 19.2-266.2 (Supp.2005) (stating “Defense motions or objections seeking ··· suppression of evidence on the grounds such evidence was obtained in violation of the provisions of the Fourth, Fifth, or Sixth Amendments to the Constitution of the United States or Article I, Section 8, 10, or 11 of the Constitution of Virginia proscribing illegal searches and seizures and protecting rights against self-incrimination ··· shall be raised by motion or objection, in writing, before trial. The motions or objections shall be filed and notice given to opposing counsel not later than seven days before trial···· The court may, however, for good cause shown and in the interest of justice, permit the motions or objections to be raised at a later time.”).

At trial, the prosecution presented the surveillance video and eye witnesses who identified Schmitt as the bank robber. The prosecution also presented forensic evidence indicating that the security guard had been shot from a distance of 12 to 36 inches and that the security guard's gun never left its holster during the robbery. A search of the hotel room in which Schmitt was arrested revealed a handgun, shotgun shells, newly purchased clothing and $27,091 in cash bearing “bank bands” identifying the money as from Nationsbank. The prosecution chose not to introduce the Sauer/Schmitt tape in the guilt phase and the state trial court ruled against Schmitt's attempt to proffer the tape, finding that the tape could not be admitted as a “declaration against interest” because Schmitt was an available witness. The jury convicted Schmitt on all counts.

At the sentencing phase, the prosecution produced evidence of Schmitt's prior convictions, his drug-dealer lifestyle, the bank robberies, the Sauer/Schmitt tape, the hotel arrest, and testimony from the victim's family. The prosecution sought the death penalty based on Schmitt's future dangerousness and the vileness of the murder. The prosecution used Sauer to introduce the Sauer/Schmitt tape.

Schmitt objected to the introduction of Sauer's testimony and the Sauer/Schmitt tape, arguing that it violated his Fifth and Sixth Amendment rights according to Massiah because Sauer was acting as an agent of the Commonwealth at the time of the conversation and when Sauer elicited incriminating statements from Schmitt. The prosecution argued that Schmitt had waived any argument relating to such constitutional rights by failing to file a pre-trial motion to suppress the tape and other evidence. The state trial court reviewed the tape and then overruled Schmitt's objection.

Sauer also testified that Schmitt asked him to drive for him during the second robbery and offered to buy Sauer's gun, but Sauer rejected both offers. The prosecution also argued to the jury that Schmitt had tricked the prison system and the probation system by giving a false name and failing to comply with the terms of his probation.

Schmitt presented evidence from Lt. Clarcq, the police negotiator, describing the remorse Schmitt expressed from the shooting and a medical specialist who testified about the effects of drug addiction. Schmitt also attempted to have the Chief of Operations of the Virginia Department of Corrections, Gary Bass, testify to the protections at maximum security prisons and the general prison conditions in Virginia. The trial court, however, allowed Mr. Bass to testify only that a life sentence means life without parole. Friends and family also testified on Schmitt's behalf. Finding the future dangerousness aggravator present, the jury recommended the death sentence for Schmitt and 118 years' imprisonment on the remaining charges.

B. The Virginia Supreme Court's Decision on Direct Appeal

Schmitt timely filed a direct appeal of his conviction and sentence in the Virginia Supreme Court. Schmitt alleged numerous errors in the jury selection, guilt, and sentencing phases. Relevant to our inquiry, Schmitt alleged that the trial court erred by admitting into evidence the recorded telephone conversation between Sauer and Schmitt because it violated Schmitt's Sixth Amendment right to counsel established under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

The Commonwealth responded that this claim was procedurally defaulted pursuant to Virginia Code § 19.2-266.2 because Schmitt raised it after the trial began. The Virginia Supreme Court agreed that the claim was procedurally defaulted. Next, Schmitt argued that the trial court erred in “refusing to admit evidence concerning prison life and the security features of a ‘maximum security’ prison in the Commonwealth to rebut the Commonwealth's contention of Schmitt's future dangerousness.” (J.A. at 390.)

The Virginia Supreme Court rejected this argument on the merits, reasoning that “Schmitt's proffered evidence was not admissible to rebut any particular evidence concerning prison security or prison conditions offered by the Commonwealth.” (J.A. at 390.) The Virginia Supreme Court further noted that evidence of maximum security prison features did not constitute mitigation evidence because “the relevant inquiry” in assessing a defendant's future dangerousness rests on whether the defendant “would” commit future acts while in prison, as opposed to whether the defendant “could” commit such acts. (J.A. at 390.)

Finally, Schmitt alleged that he was entitled to a mistrial based on improper and inflammatory arguments made by the prosecution during its closing argument. The Virginia Supreme Court noted that the trial court provided appropriate curative instructions each time that Schmitt's counsel objected to the prosecution's statements during closing argument. It further concluded that Schmitt's counsel did not preserve the mistrial motion with respect to some of the prosecution's comments because that motion was made after the jury left the courtroom. Thus, the request for a mistrial based on those portions of the prosecution's closing argument was procedurally defaulted. Ultimately, the Virginia Supreme Court affirmed Schmitt's conviction and sentence.

C. The Virginia Supreme Court's Decision on Habeas Review

On state habeas review, Schmitt reasserted his previous claims and added ineffective assistance of counsel claims. The Virginia Supreme Court held that because Schmitt raised these claims on direct appeal they were barred from habeas review. The Virginia Supreme Court then turned its attention to the ineffective assistance of counsel claims. Schmitt alleged that his counsel were ineffective for failing to move to suppress the Sauer/Schmitt tape on Massiah grounds.

The Virginia Supreme Court found that the claim satisfied neither the prejudice nor performance prong of the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) test, because Sauer was not acting as an agent of the state and therefore no basis existed for the suppression motion. Schmitt also alleged ineffective assistance of counsel based on his counsel's failure to move for a mistrial after the prosecution's closing arguments. Again, the Virginia Supreme Court found the claims to be unpersuasive because Schmitt failed to demonstrate how he could have prevailed on the mistrial motion in light of counsel's objections and the trial court's curative instructions.

D. The District Court's Decision on Federal Habeas Review

Having exhausted his state-court remedies, Schmitt filed a 28 U.S.C.A. § 2254 petition in the Eastern District of Virginia alleging twenty-four grounds for relief, including the six before us. The district court denied relief on Schmitt's claim that the exclusion of general prison security evidence violated his due process rights, reasoning that the Supreme Court has never held that a defendant is entitled to present “all evidence that may touch on [the defendant's] future sentence,” such as the security features of prisons in which Schmitt may or may not be stationed.

The district court conducted extensive evidentiary hearings as to the remaining five claims before us. First, the district court found Schmitt's Massiah claim relating to the taping of the Sauer/Schmitt telephone call to be unreviewable because the Virginia Supreme Court deemed it was procedurally defaulted. Second, the district court concluded that ineffective assistance of counsel did not excuse the procedural default because the decision not to move to suppress the tape was the product of a well-reasoned defense strategy. FN4

Third, the district court addressed Schmitt's Brady claim, in which Schmitt alleged that the Commonwealth suppressed impeachment evidence relating to Sauer because the Commonwealth failed to disclose that Sauer received use immunity for his grand jury testimony, that Sauer was working for the police prior to Schmitt's capture, that Sauer was mentally unstable, and that the Commonwealth had provided Sauer with a free mental health evaluation.

The district court concluded that the suppressed facts constituted impeachment evidence, but that the suppressed evidence was not material. Fourth, the district court denied relief on Schmitt's claims that the prosecution's improper closing arguments entitled Schmitt to a mistrial because the claim was procedurally defaulted. And finally, the district court concluded that no ineffective assistance of counsel excused the procedural default of the mistrial motion.

The district court granted a certificate of appealability on these six claims, and we have jurisdiction to review the district court's denial of the writ of habeas corpus pursuant to 28 U.S.C.A. § 2253 (West Supp.2005) (providing appellate courts with jurisdiction to review final orders from habeas proceedings if a certificate of appealability has issued).

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Although we conclude that the prosecution's missteps in this case did not affect the outcome of the trial, we emphasize that the intentional suppression of impeachment material and other prosecutorial misconduct should not be taken lightly. The Supreme Court has long emphasized the special role that prosecutors play in our judicial system. See Banks, 540 U.S. at 696, 124 S.Ct. 1256 (compiling cases). And we could not agree more with the district court's conclusion that this prosecution team displayed a disconcerting lack of respect for its sole responsibility to ensure “that justice shall be done,” as opposed to merely winning the case. Kyles, 514 U.S. at 439, 115 S.Ct. 1555 (internal quotation marks omitted). We strongly encourage the state prosecution team to revisit and review its obligations under Virginia state law and constitutional law, especially in light of the fact that the misconduct was not confined to a single incident.

For the foregoing reasons, the judgment of the district court is AFFIRMED.