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Murder appeal nixed

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By Christopher Brooke, Reporter

HILLSVILLE — Yet another legal option has been denied for a former Hillsville woman seeking to overturn her 2006 conviction for second-degree murder of a prominent Carroll County farmer.

Elva Rosemary “Chick” Nixon has exhausted another of her options with the court system on her conviction in the Jan. 5, 2004, ambush that led to the death of 75-year-old Donald Brady from four gunshot wounds.

A jury sentenced Nixon to 33 years in prison as punishment for the death, as well as robbery and use of a firearm.

The Virginia Supreme Court last September declined to hear Nixon's appeal, so she submitted a petition for a writ of habeas corpus to the Carroll Circuit Court. A writ of habeas corpus can be sought by people who object to their imprisonment as unlawful.

Nixon claims that her "unlawful detention" arises from ineffective assistance from her three retained defense attorneys.

According to Nixon's petition, her attorneys failed:

• “to make a specific and timely and/or proper objection that the jury had acted improperly" after the jurors, on four occasions in deliberations, submitted four questions about "facts not in evidence."

• “to move the judge to [ask questions of] the jurors on the use of the cell phones and whether any juror had used the cell phone to contact individuals not on the jury regarding any matter in deliberation

• “to move the judge to collect the cell phones and failed to take any other steps and/or make any motions to protect the integrity of the guilt phase deliberations and/or determine whether the integrity had been violated by use of cell phones during deliberations.”

In a final order issued last Friday, Judge Brett Geisler found that Nixon "is not entitled to the relief sought."

The judge used the case law provided by Strickland v. Washington as the guide in this petition for habeas corpus.

"Under Stickland, a petitioner has the burden to show both that his attorney's performance was deficient and that he was prejudice as a result," Geisler notes in the order.

The arguments in the petition failed to show how Nixon's attorneys were either deficient or prejudiced, the judge ruled.

The ruling notes the specific questions that the jury members asked the court during deliberations: if they could have a copy of the closing arguments of the prosecution and defense; if they could know the distances between the place the suspect car was found and the hospital where Nixon was taken for treatment for a gunshot wound to the face in Radford, as opposed to the hospital in Galax; if they could get a map of Carroll County; and if someone could explain the meaning of a jury instruction.

The court responded in writing to these questions that the jury had to base the verdict on the evidence as presented and the jury instructions.

There was "nothing egregious" about these questions, and the court told the jurors they could not consider matters not in evidence.

"Jurors, however, who are not trained in the law, cannot be expected to know if their questions are legally proper," Geisler wrote. "The court further finds that only questions 2 and 3 concern any matters not in evidence."

Nixon did not identify what actions her attorneys should have taken in response to these questions, the ruling notes. Nor did she suggest how the outcome of the trial could have been different, had her attorneys taken any action.

On the cell phone question, the order noted that during the penalty phase of the trial, a defense attorney "asked the court to collect the cell phones in order to obtain records of calls made during deliberations."

The trial judge found no allegation of misconduct and denied the request, saying that jurors are presumed to follow instructions.

"In post-trial pleadings on the matter, the parties seemed to agree that the foreman of the jury needed to telephone someone to bring him a change of clothing," Geisler wrote. "They agreed that the juror appeared in court inappropriately dressed and had apparently needed to call someone to bring him appropriate clothing."

At the June 21, 2006, hearing, the judge decided there was no basis that any cell phone call in question led to any communication about Nixon's trial.

"The court stated at that hearing, 'Although there might have been a conversation for one of the jurors to bring some clothes, there's no reasonable basis to believe that the jury had any discussions with any outside persons regarding anything to do with this trial,'" Geisler wrote in the order.

Nixon has not established how questioning the jurors or collecting the telephones at an earlier time would have changed the outcome of the trial.

"The court further finds that the petitioner, even now, has not proffered or suggested that there was any extraneous contact by any member of the jury about a matter pending before them, but only speculates that a juror may have engaged in misconduct or been exposed to outside influences," the ruling states. "A presumption of prejudice arises only upon a showing of both an extraneous contact with a juror and that the contact was about a matter pending before the jury."

Neither did Nixon show that there might have been a different result had the cell phone question been considered by an appeals court or the Virginia Supreme Court.

"The court finds that the petitioner has not shown that it would have been an abuse of discretion for this court to decline to [question] jurors, or collected their cellular telephones, under the facts and circumstances of this case, had the request been made during trial," the final order states.

So, the court dismissed and denied Nixon's petition for a writ of habeas corpus.

The decision on the writ of habeas corpus can be appealed to the Virginia Supreme Court.