Was his attorney ineffective? Man on death row for Newport News murder-for-hire gets new hearing

It was more than 11 years ago that David A. Runyon was convicted in the murder-for-hire of a young Naval officer in Newport News.

A Norfolk federal jury found that Runyon shot Cory Allen Voss five times outside an ATM in a killing orchestrated by Voss’ wife and her boyfriend, designed to look like a robbery gone bad.

Runyon was sentenced to die, and has been on death row in Indiana ever since.

But his current attorneys have now landed him a hearing on whether his trial lawyers should have better investigated evidence that Runyon was suffering from brain damage at the time of the killing, and then presented that to the jury.

If jurors knew about Runyon’s brain damage — possibly caused by child abuse and being later hit head-on by a drunk driver while serving in the Army — they might have spared his life, his lawyers contend.

On Dec. 23, a three-member federal appeals court panel ruled 2-1 that the case be sent back to the Norfolk federal court for a hearing on whether one of Runyon’s 2009 trial attorneys provided “ineffective assistance of counsel” in not more fully exploring the brain damage issue.

“We conclude that Runyon has made a (plausible) claim that his trial counsel’s performance was objectively unreasonable and that the material facts necessary to resolve this issue are fairly in dispute,” Appeals Court Judge Paul V. Niemeyer wrote in the majority opinion.

It’s still considered a long shot that Runyon’s death sentence will be reversed — and far from certain that he will even get a new sentencing hearing where that could happen.

But the newly ordered hearing — where both sides can put on evidence about what happened 11 years ago — begins a process that could ultimately get Runyon off death row.

A murder for hire

Voss, 30, a U.S. Navy Ensign, was a Midwest native, a well-liked father of two who was living in Newport News while stationed on a Norfolk-based frigate.

Late one night in April 2007, a man entered Voss’ pickup at a Langley Federal Credit Union in the Oyster Point section of the city, pumping five bullets into him at close range.

Police investigators determined that the murder plot was organized by Voss’ wife, Catherina “Cat” Voss, and her boyfriend, Michael Draven.

Prosecutors say Cat sent her husband to the deserted ATM off Jefferson Avenue, where Runyon — a former U.S. Army soldier — was lurking nearby. Her plan, they said, was to get Cory out of the way, be with Draven instead, and collect about $500,000 in insurance proceeds.

Cat Voss, 45, and Draven, 40, are each serving life in prison.

But Runyon, now 50, was sentenced to death in September 2009 — Hampton Roads’ first federal death penalty case in more than 11 years. He is one of 52 federal prisoners on death row, with no execution date set.

Runyon’s direct appeals were rejected, including ultimately by the U.S. Supreme Court. But his attorneys filed a petition in 2015 to set aside the verdict and sentences, citing a series of claims that he got an unfair trial, on everything from the brain damage to jury selection to the prosecution’s evidence sharing.

But the Norfolk judge who presided over the original trial, Senior U.S. District Judge Rebecca Beach Smith, rejected all of those the claims in 2017.

Runyon’s attorneys then went to the 4th Circuit Court of Appeals. In its Dec. 23 ruling, the three-judge panel upheld most of Smith’s 245-page ruling. But the panel reversed her on the “ineffective assistance of counsel” claim, saying Runyon deserves a hearing on that issue.

Investigating brain damage was crucial, attorneys say

One of the appellate judges, Roger L. Gregory of Richmond, said there’s “a well of evidence” that could have “cast serious doubt on Runyon’s mental health” at the time. But those facts weren’t highlighted at trial or “thoroughly followed up on” by his lawyer, Gregory wrote.

Runyon’s current lawyers say he was “thrown across a room” by his father at 3 years old and fell unconscious. They said he had head injuries from “a head on collision with a drunk driver” during his time in the Army, plus another car accident and Post Traumatic Stress Disorder from exploding grenades in training, among other issues.

They said he had employment problems and personality changes consistent with a brain injury.

One of Runyon’s trial lawyers, Stephen A. Hudgins, was appointed to the capital case as the “mitigation attorney” — the second chair to lead trial lawyer Lawrence H. Woodward Jr. — only a few months before trial.

At the time, Hudgins asked Judge Smith for a six-month delay in the trial so he could better investigate his client’s medical and mental health records. But she declined, ordering that the trial go forward as planned in June 2009.

Between Hudgins’ appointment to the case and the start of trial, Hudgins had numerous other cases — including a two-week federal trial. After the jury convicted Runyon, Hudgins asked Smith for a three-month delay before sentencing. But she gave the sides a month to prepare instead.

Still, Gregory wrote in the appeal panel ruling that Hudgins had preliminary reports in hand from a psychiatrist and a neuropsychologist that could have caused him to delve into the brain damage issue further.

“If the defense failed to complete the mitigation investigation in this case, that failure is inexcusable,” Gregory wrote. He said that’s particularly important in cases — such as Runyon’s — where prosecutors have overwhelming evidence of a defendant’s guilt.

The ruling says that psychiatrist Dr. James Merikangas told Hudgins before sentencing that Runyon had delusions and “impaired executive functioning suggestive of frontal lobe brain impairment,” and promised “to follow up once he received the brain scans.”

But though Hudgins received Runyon’s brain scans back from a radiologist, he never turned them over to Merikangas to review, the decision says. (Though the radiologist had deemed the scans “normal,” Runyon’s lawyers say a psyschiatrist looks at different aspects of the images).

Another expert that Hudgins was working with, neuropsychologist Allan Mirsky, examined Runyon four days before trial, saying there’s “strong evidence he’s suffering from a neurological disorder,” with evidence of a brainstem injury, likely from the blast injuries and the car accidents.

But Hudgins didn’t call either Merikangas or Mirsky to testify at Runyon’s sentencing.

When Merikangas examined the scans in 2015 — six years after the trial — he said Runyon was “a brain damaged individual ... with symptoms of a psychotic thought process.”

When informed of Merikangas’ new comments, Hudgins told Runyon’s current lawyers that that was “the type of information I would have been looking for at the penalty phase.”

Also in 2015, Mirsky reevaluated Runyon, saying his new tests “indicate the presence of significant damage to the right side of the brain, as well as a psychotic disorder.”

When Woodward gave the closing argument in 2009 asking jurors to spare Runyon’s life, he told them he didn’t have a “glib answer” or “a pat response” as to “what caused Mr. Runyon to get involved in this and to be where we are today.”

Woodward instead focused on the fact that two other participants in the plot — Voss’ wife and Draven — were getting life sentences, while only Runyon was facing death. Woodward also spoke of the impact of an execution on Runyon’s family members.

But Runyon’s current attorneys — Dana Hanson Chavis and Susanne Bales of Tennessee and Michele Brace of Charlottesville — say Runyon’s brain damage could have provided jurors with a good line of defense, too.

“The jury never knew of Runyon’s brain damage and mental illness, classic and powerful evidence in favor of a life sentence,” they wrote in their appeal.

Gregory, of the appeals court panel, wrote that in death penalty cases, “mitigation” efforts — giving jurors reasons for sparing a defendant’s life — often revolves around a defendant’s mental health.

“Mental health mitigation evidence is the heartland of death penalty representation,” he wrote. He quoted American Bar Association guidelines saying it should be “routine” for lawyers to focus on that “core” defense.

“Somehow, Runyon’s (trial) counsel appear to have missed the message,” Gregory wrote.

Hudgins, now the chief judge at York-Poquoson General District Court, could not be reached for comment for this story, and Woodward declined to comment.

One judge praises attorney’s efforts

But another judge on the appeals court panel, J. Harvie Wilkinson of Charlottesville, dissented, strongly praising Hudgins’ trial performance.

“Runyon’s lawyer performed admirably throughout, and to expect that he could have produced a different result in a case featuring such a cold and calculated murder for hire is wholly unrealistic,” Wilkinson wrote. Looking at cases after the fact, he said, can “provide a temptation to pin the blame on who else? — his lawyer.”

Wilkinson asserted that Hudgins “conducted a thorough investigation and made strategic decisions that were eminently reasonable.”

The lawyer called nearly two dozen witnesses to the stand at the sentencing — including Runyon’s family members, several prison guards and a mental health expert who testified to Runyon’s “lack of future dangerousness.”

At the time, Wilkinson wrote, federal prosecutors were seeking the death penalty partially on the basis that Runyon “had used his military training to commit a murder for hire.”

“Thus, it makes sense that counsel Hudgins devoted a substantial part of his strategy to arguing Runyon would not pose a threat of violence in prison,” Wilkinson wrote. “Presenting evidence that Runyon was suffering from brain damage and mental health problems could have undermined counsel Hudgins’ argument.”

“It could have underscored Runyon’s problems with impulsiveness and anger management,” rather than the “gentle individual” that Hudgins “was attempting to portray.”

Moreover, Wilkinson wrote, highlighting Runyon’s brain damage could have weakened Runyon’s main argument at trial that he didn’t commit the crime.

Runyon’s current lawyers contend that the brain damage evidence didn’t run counter to the innocence claim — and that leaving it out doesn’t appear to have been a deliberate strategy by Hudgins.

But Wilkinson wasn’t convinced. There “is always an argument that was not made,” Wilkinson wrote, and “a possible winning strategy that was not pursued.”

“I doubt the majority’s alternative strategy would have worked out better,” he wrote, given that the “jury was looking at an intelligent young man who used military and police training to assassinate a Navy officer in a complex and coolly executed plot.”

The panel’s decision to order a new hearing, Wilkinson wrote, “is unfair” to Cory Voss and his children, to the jury and to Judge Smith, “who has done such a conscientious job with this case.”

“And it is just as wrong,” Wilkinson wrote, to “diminish ... the professional efforts of an attorney who plainly gave the defense his highly commendable best.”

A date for the evidentiary hearing has not yet been set.

Peter Dujardin, 757-247-4749, pdujardin@dailypress.com