Lawlor v. Commonwealth

PRESENT: All the Justices
MARK ERIC LAWLOR
OPINION BY
v. Record No. 120481 JUSTICE WILLIAM C. MIMS
January 10, 2013
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jonathan C. Thacher, Judge
In this appeal, we review convictions for capital murder
and the imposition of two sentences of death. We consider
whether the circuit court erred when it (a) limited questioning
during voir dire, (b) excluded evidence during the penalty
phase of trial, and (c) instructed the jury. We review the
sufficiency of the evidence to prove the elements of the
offenses charged and the aggravating factors required for
imposition of a sentence of death. We also consider challenges
to the imposition of the death penalty on constitutional and
statutory grounds. Finally, as required by Code § 17.1-313(C),
we consider whether the sentences of death were imposed under
the influence of passion, prejudice or any other arbitrary
factor and whether the sentences of death are excessive or
disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
Mark Eric Lawlor was indicted on and convicted of one
count of capital murder in the commission of, or subsequent to,
rape or attempted rape, in violation of Code § 18.2-31(5), and
one count of capital murder in the commission of abduction with
the intent to defile, in violation of Code § 18.2-31(1).
The victim, Genevieve Orange, was found on the floor of
the living area of her studio apartment. She was naked from
the waist down, her bra and t-shirt had been pushed up over her
breasts, and semen was smeared on her abdomen and right thigh.
Her soiled and bloodied shorts and underpants had been flung to
the floor nearby. She had been struck 47 times with one or
more blunt objects.
A bent metal pot was found near Orange’s body. Its wooden
handle had broken off and was found in the kitchen sink, near a
bloody metal frying pan that had been battered out of its
original shape. Some of Orange’s wounds were consistent with
having been struck with the frying pan. 1 Subsequent medical
examination established that she had aspirated blood and
sustained defensive wounds, together indicating that she had
been alive and conscious during some part of the beating.
Lawlor resided in Orange’s apartment building. He also
worked there as a leasing consultant and had access to keys to
each apartment. On the eve of trial, Lawlor admitted
“participation” in the murder.
1
Other wounds may have been consistent with having been
struck by a hammer but no hammer was recovered.
2
A blood sample from Orange's body and a buccal swab from
Lawlor resulted in the compilation of a polymerase chain
reaction (“PCR”) DNA profile for each person, consisting of
type characteristics or alleles from 16 genetic regions on
their respective DNA strands. Police and medical personnel
also collected forensic evidence from Orange’s body. This
forensic material, the wooden pot handle, and the frying pan
were subjected to DNA analysis resulting in the compilation of
a PCR DNA profile for each sample. A comparison of the PCR DNA
profiles revealed that every allele at each of the 16 genetic
regions from the forensic material and the frying pan was
consistent with either Orange or Lawlor, with one exception:
DNA from a non-sperm sample recovered from Orange's abdomen
included a fractional amount of a single allele that was not
consistent with either person’s DNA profile. However, each of
the alleles at the 15 other genetic regions in the sample was
attributable to either Orange or Lawlor, as was each of the
alleles at all 16 genetic regions from the other forensic
material and the frying pan. The statistical probability that
an unrelated person other than Lawlor contributed the DNA
foreign to Orange was 1 in more than 6.5 billion.
After Lawlor's conviction during the guilt phase of trial,
the jury proceeded to the penalty phase. The Commonwealth
presented its evidence of aggravating factors as required by
3
Code § 19.2-264.4(C). Lawlor presented rebuttal evidence and
evidence of mitigating factors pursuant to Code § 19.2-
264.4(B). Over his objection, the court excluded some of his
evidence. At the conclusion of the evidence, the court
instructed the jury after rejecting some of Lawlor's proffered
instructions. The jury found both the vileness and future
dangerousness aggravating factors and returned a sentence of
death on each count. After denying Lawlor’s post-trial
motions, the court imposed the jury's sentences.
Lawlor timely filed 217 assignments of error pursuant to
Rule 5:22(c) and Code § 19.2-320. We consider his appeal and
review the sentences of death pursuant to Code § 17.1-313.
II. ANALYSIS
Of the 217 assignments of error Lawlor originally filed,
96 are neither listed nor argued in his opening brief and
therefore are abandoned under Rule 5:27(c) and (d). 2 Prieto v.
Commonwealth, 283 Va. 149, 159, 721 S.E.2d 484, 490-91, cert.
denied, ___ U.S. ___, 133 S. Ct. 244, 2012 U.S. Lexis 6641
(2012) (“Prieto II”); Andrews v. Commonwealth, 280 Va. 231,
2
The abandoned assignments of error are 1, 3, 5, 6, 9, 10,
11, 12, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25, 26, 28, 30, 32,
33, 36, 37, 43, 65, 66, 68, 69, 70, 71, 73, 92, 94, 99, 100,
101, 102, 104, 105, 106, 107, 108, 109, 110, 112, 118, 121,
122, 126, 127, 129, 130, 133, 138, 139, 140, 142, 143, 144,
150, 151, 152, 153, 154, 155, 157, 158, 159, 161, 163, 166,
169, 170, 171, 172, 173, 174, 175, 176, 178, 181, 182, 183,
184, 191, 192, 197, 201, 203, 205, 211, 212, 216, and 217.
4
252, 699 S.E.2d 237, 249, cert. denied, ___ U.S. ___, 131 S. Ct.
299 (2010). Lawlor aggregates the remaining 121 assignments of
error into 18 claims, which we will review chronologically
based upon when the core of the alleged error in each claim
occurred during the course of the proceedings.
A. PRETRIAL PROCEEDINGS
CLAIM 4: EXCLUSION OF QUESTIONS DURING VOIR DIRE
This claim consists of 38 assignments of error asserting
that the circuit court improperly limited Lawlor’s questioning
of 19 members of the jury venire during voir dire, and
therefore erred by seating the 12 jurors and 2 alternates. 3 Of
these, assignments of error 38, 40, 41, 42, 44, 45, 46, 47, 48,
49, 50, 51, 52, 53, 54, 55, 56, 57, and 58 each merely state
that the court erred generally in limiting Lawlor’s questioning
of specified members of the venire, providing no basis for the
asserted error. Similarly, assignment of error 31 asserts that
the court erred by limiting voir dire by excluding unspecified
“life qualification” questions and assignment of error 67
asserts the court erred by seating the 14 jurors and alternates
“without first ensuring their legal qualification to sit on a
3
One of these, assignment of error 79, asserts that the
court erred by denying Lawlor the follow-up question “And what
would it depend on, ma’am?” when the member of the venire
answered that her decision to impose the death penalty would
“depend on the evidence.” We find no argument for this
assignment of error in Lawlor’s brief and it therefore is
abandoned. Rule 5:27(d).
5
capital jury.” These 21 general assertions are amplified by 16
assignments of error setting forth the questions he was not
permitted to ask or information he sought to elicit and the
members of the venire to whom the questions were or would have
been propounded. The 21 general assignments of error are not
independently argued on brief so to the extent they are not
encompassed by our review of the 16 specific assignments of
error, we will not consider them. 4 Rule 5:27(d).
1. STANDARD OF REVIEW
“The purpose of standards of review is to focus reviewing
courts upon their proper role when passing on the conduct of
other decisionmakers.” Evans v. Eaton Corp. Long Term
Disability Plan, 514 F.3d 315, 320 (4th Cir. 2008). Therefore
it is incumbent upon the parties and the appellate court to
correctly identify and apply them.
Lawlor has incorrectly identified the standard of review
applicable to this issue. Citing Nelson v. Commonwealth, 281
Va. 212, 215, 707 S.E.2d 815, 816 (2011), he contends that
whether a defendant’s right to voir dire the jury was infringed
is a mixed question of law and fact reviewed de novo. However,
the sole issue in Nelson was sufficiency of the evidence to
4
The brief also contains no independent argument on
assignment of error 76 so to the extent it is not encompassed
by assignments of error 74 and 75, it too is abandoned. Rule
5:27(d).
6
establish a conviction for driving while intoxicated, in
violation of Code § 18.2-266. Id. Although Nelson was tried
by jury, id. at 214, 707 S.E.2d at 815, voir dire was not an
issue in the appeal.
In prior cases, we have stated that a ruling on a motion
to exclude a juror for cause is reviewed as a mixed question of
law and fact. LeVasseur v. Commonwealth, 225 Va. 564, 584, 304
S.E.2d 644, 654-55 (1983), cert. denied, 464 U.S. 1063 (1984);
Briley v. Commonwealth, 222 Va. 180, 185, 279 S.E.2d 151, 154
(1981). But see Townsend v. Commonwealth, 270 Va. 325, 329,
619 S.E.2d 71, 73 (2005) (applying abuse of discretion
standard); Powell v. Commonwealth, 261 Va. 512, 536, 552 S.E.2d
344, 358 (2001) (“Powell I”) (same); Burns v. Commonwealth, 261
Va. 307, 329-30, 541 S.E.2d 872, 887, cert. denied, 534 U.S.
1043 (2001) (trial court’s decision “will not be reversed on
appeal absent a ‘showing of manifest error or abuse of
discretion.’” (quoting Mackall v. Commonwealth, 236 Va. 240,
252, 372 S.E.2d 759, 767 (1988)); Yeatts v. Commonwealth, 242
Va. 121, 134, 410 S.E.2d 254, 262 (1991), cert. denied, 503
U.S. 946 (1992) (trial court’s decision “will not be disturbed
on appeal unless the refusal amounts to manifest error.”).
However, the conduct of voir dire, not exclusion for cause, is
the issue raised here.
7
It is well-established that the manner of conducting voir
dire, including the exclusion of questions to the venire, is
committed to the trial court’s discretion and we review its
rulings only for abuse of that discretion. Thomas v.
Commonwealth, 279 Va. 131, 162, 688 S.E.2d 220, 237, cert.
denied, ___ U.S. ___, 131 S. Ct. 143 (2010); Juniper v.
Commonwealth, 271 Va. 362, 390, 626 S.E.2d 383, 402, cert.
denied, 549 U.S. 960 (2006); Orbe v. Commonwealth, 258 Va. 390,
403, 519 S.E.2d 808, 815 (1999), cert. denied, 529 U.S. 1113(2000) (“Orbe I”).
In contrast to the de novo standard of review, “the abuse
of discretion standard requires a reviewing court to show
enough deference to a primary decisionmaker’s judgment that the
court does not reverse merely because it would have come to a
different result in the first instance.” Evans, 514 F.3d at
322. Accordingly, “when a decision is discretionary . . . .
‘the court has a range of choice, and . . . its decision will
not be disturbed as long as it stays within that range and is
not influenced by any mistake of law.’ ” Landrum v. Chippenham
& Johnston-Willis Hosps., Inc., 282 Va. 346, 352, 717 S.E.2d
134, 137 (2011) (quoting Kern v. TXO Production Corp., 738 F.2d
968, 970 (8th Cir. 1984)); see also Evans, 514 F.3d at 322
(“[T]he [abuse of discretion] standard draws a line – or
rather, demarcates a region – between the unsupportable and the
8
merely mistaken, between the legal error, disorder of reason,
severe lapse of judgment, and procedural failure that a
reviewing court may always correct, and the simple disagreement
that, on this standard, it may not.”).
We recently focused this standard of review by identifying
the “three principal ways” by which a court abuses its
discretion: “when a relevant factor that should have been given
significant weight is not considered; when an irrelevant or
improper factor is considered and given significant weight; and
when all proper factors, and no improper ones, are considered,
but the court, in weighing those factors, commits a clear error
of judgment.” Landrum, 282 Va. at 352, 717 S.E.2d at 137
(quoting Kern, 738 F.2d at 970). Naturally, the law often
circumscribes the range of choice available to a court in the
exercise of its discretion. In such cases, “[t]he abuse-of-
discretion standard includes review to determine that the
discretion was not guided by erroneous legal conclusions,” id.
at 357, 717 S.E.2d at 139 (Millette, J., concurring) (quoting
Porter v. Commonwealth, 276 Va. 203, 261, 661 S.E.2d 415, 445
(2008), cert. denied, 556 U.S. 1189 (2009)), because a court
also abuses its discretion if it inaccurately ascertains its
outermost limits. Such an error may occur when the court
believes it lacks authority it possesses, see id. at 358, 661
S.E.2d at 140 (discussing court’s mistaken belief it lacked
9
authority to supervise courtroom security), when it believes
the law requires something it does not, LaCava v. Commonwealth,
283 Va. 465, 472, 722 S.E.2d 838, 841 (2012) (court abused its
discretion in denying a motion to extend the deadline for
filing a transcript based on a flawed interpretation of Rule
5A:8(a)), or when it fails to fulfill a condition precedent
that the law requires, Turner v. Commonwealth, 284 Va. 198,
208, 726 S.E.2d 325, 331 (2012) (court abused its discretion in
ruling a witness unavailable for lack of memory when it failed
to inquire into the authenticity of his claim as required by
precedent). But whether a court possesses or lacks authority,
and whether it has correctly identified and fulfilled the legal
prerequisites to a discretionary act, are themselves
significant factors in its consideration. Therefore, while our
abuse of discretion standard of review necessarily must include
a review of any legal conclusions made concomitant with a lower
court’s exercise of discretion, that does not mean abuse of
discretion review is partially de novo. See Koon v. United
States, 518 U.S. 81, 100 (1996). 5
5
Lawlor similarly implies a de novo review under the abuse
of discretion standard elsewhere in his brief when quoting our
statement in Porter and subsequent cases that a court “by
definition abuses its discretion when it makes an error of
law.” 276 Va. at 260, 661 S.E.2d at 445. For the foregoing
reasons, this statement was not intended to be a back door
through which an appellant may convert abuse of discretion
review into de novo review.
10
In the case of voir dire, a trial court’s discretion in
excluding questions asked of the venire is limited by statute
and the United States Constitution. Code § 8.01-358
establishes a “right to ask [a member of the venire] directly
any relevant question to ascertain whether he is related to
either party, or has any interest in the cause, or has
expressed or formed any opinion, or is sensible of any bias or
prejudice therein.” To exclude all such questions would be
contrary to the statute, thereby constituting an abuse of
discretion. See Powell v. Commonwealth, 267 Va. 107, 143, 590
S.E.2d 537, 559, cert. denied, 543 U.S. 892 (2004) (“Powell
II”); LeVasseur, 225 Va. at 581, 304 S.E.2d at 653.
In a capital case, this inquiry of a prospective juror
encompasses questions of whether his “views [on the death
penalty] would ‘prevent or substantially impair the performance
of his duties as a juror in accordance with his instructions
and his oath.’” Morgan v. Illinois, 504 U.S. 719, 728 (1992)
(quoting Wainwright v. Witt, 469 U.S. 412, 424 (1985)); see
also Mackall, 236 Va. at 251, 372 S.E.2d at 766 (“[E]ither
party may require prospective jurors to state clearly that
whatever view they have of the death penalty will not prevent
or substantially impair their performance as jurors in
conformity with their oath and the court's instructions.”).
But within those perimeters, “[a] party has no right . . . to
11
propound any question he wishes, or to extend voir dire
questioning ad infinitum. The court must afford a party a full
and fair opportunity to ascertain whether prospective jurors
‘stand indifferent in the cause,’ but the trial judge retains
the discretion to determine when the parties have had
sufficient opportunity to do so.” LeVasseur, 225 Va. at 581,
304 S.E.2d at 653; accord Thomas, 279 Va. at 162-63, 688 S.E.2d
at 237; Juniper, 271 Va. at 396, 626 S.E.2d at 405. We
therefore review the challenged jurors’ entire voir dire, not
merely individual statements taken in isolation. Powell I, 261
Va. at 536, 552 S.E.2d at 358; Burns, 261 Va. at 329, 541
S.E.2d at 887.
2. VIEWS ON CAPITAL PUNISHMENT
In assignments of error 77, 78, and 88, Lawlor asserts
that the court erred by preventing him from asking specific
members of the venire “[D]o you have strong feelings in favor
of the death penalty?” or “[W]hat are your views about the
death penalty?” Lawlor asserts that the Supreme Court of the
United States identified such questions as constitutionally
protected in Morgan. That assertion is not accurate. Rather,
in Morgan the Supreme Court merely reiterated its earlier
holding in Witt, 469 U.S. at 424, and Adams v. Texas, 448 U.S.
38, 45 (1980), that a potential juror may be questioned to
determine whether his views “would prevent or substantially
12
impair the performance of his duties as a juror in accordance
with his instructions and his oath.” 504 U.S. at 728 (internal
quotation marks omitted). Thus there is no statutory or
constitutional right to ask Lawlor’s questions. Cf. Code
§ 8.01-358.
Accordingly, we have held that a party is not entitled to
ask potential jurors their views on the death penalty. Burns,
261 Va. at 329, 541 S.E.2d at 887 (citing Mackall, 236 Va. at
251, 372 S.E.2d at 766). The relevant inquiry is whether the
juror would adhere to them in disregard of the jury
instructions and in violation of his or her oath. Witt, 469
U.S. at 420 (“[A] juror may not be challenged for cause based
on his views about capital punishment unless those views would
prevent or substantially impair the performance of his duties
as a juror in accordance with his instructions and his oath.”
(quoting Adams, 448 U.S. at 45) (emphasis in Witt)). The court
therefore did not abuse its discretion by excluding Lawlor’s
questions.
3. MITIGATING EVIDENCE
In assignments of error 74, 75, 76, 80, 83, 84, 85, and
86, Lawlor argues that the court erred by preventing him from
asking specific members of the venire whether they would
consider specific types of evidence as mitigating evidence,
including evidence that the defendant was under the influence
13
of extreme mental or emotional disturbance; evidence of
childhood neglect; evidence of the defendant’s full life
history; evidence of a lack of prior violent criminal record;
and evidence of drug or alcohol use. Citing Abdul-Kabir v.
Quarterman, 550 U.S. 233 (2007), he argues that by denying him
the opportunity to ask about specific types of mitigating
evidence, the court prevented him from determining whether the
jurors could give meaningful consideration to all mitigating
evidence.
However, Abdul-Kabir requires that juries consider all
mitigating evidence as a whole; it does not require courts to
permit defendants to ask jurors how they would weigh every
species of mitigating evidence. See id. at 246. Furthermore,
we have ruled that questions about the effect of specific
mitigating evidence on the jurors’ deliberations “are improper
in voir dire because they are not relevant to a determination
of whether a juror has a particular bias or prejudice, but
instead attempt to elicit the juror's views on specific types
of evidence.” Powell I, 261 Va. at 536, 552 S.E.2d at 358.
Accordingly, the court did not abuse its discretion by
prohibiting this line of questioning.
In assignment of error 81, Lawlor argues that the court
erred by preventing him from asking whether specific members of
the venire would consider a life sentence in the absence of any
14
mitigating evidence. While we have indicated that a defendant
need not present any evidence pertaining to sentencing, see
Jackson v. Commonwealth, 267 Va. 178, 194, 590 S.E.2d 520, 529,
cert. denied, 543 U.S. 891 (2004), each of the specified
members of the venire was instructed during voir dire that a
sentence of death is never mandatory and that the jury could
return a sentence of life imprisonment without parole even if
the Commonwealth proved both aggravating factors and Lawlor
presented no mitigating evidence. The court thereafter asked
each member whether he or she understood that the defense was
not required to present mitigating evidence. Counsel also
asked whether the members of the venire understood and received
affirmative responses. However, the court rejected some forms
of Lawlor’s question and limited his inquiry as repetitive.
Reviewing the entire voir dire of the specified members of
the venire, Powell I, 261 Va. at 536, 552 S.E.2d at 358; Burns,
261 Va. at 329, 541 S.E.2d at 887, we are satisfied that “[t]he
circuit court explained the relevant legal principles, asked
appropriate questions to ensure that the jurors understood
those principles and could apply them to the case, and afforded
[Lawlor] a full and fair opportunity to ascertain whether
jurors could stand indifferent in the cause.” Bell v.
Commonwealth, 264 Va. 172, 196-97, 563 S.E.2d 695, 711-12
(2002), cert. denied, 537 U.S. 1123 (2003) (internal quotation
15
marks omitted). While the court restricted his voir dire,
Lawlor elicited the information he sought and was not entitled
to ask the members of the venire this question repetitively or
in his preferred form. Thomas, 279 Va. at 162-63, 688 S.E.2d
at 237; Juniper, 271 Va. at 396, 626 S.E.2d at 405; see also
Green v. Commonwealth, 266 Va. 81, 97, 580 S.E.2d 834, 843
(2003), cert. denied, 540 U.S. 1194 (2004) (“When . . . a trial
court affords ample opportunity to counsel to ask relevant
questions . . . sufficient to preserve a defendant's right to
trial by a fair and impartial jury, we will generally not
reverse [its] decision to limit or disallow certain questions
from defense counsel.” (internal quotation marks omitted)).
Accordingly, the court did not abuse its discretion.
In assignment of error 87, Lawlor asserts that the court
erred by preventing him from asking specific members of the
venire if they were substantially impaired from considering a
sentence of life imprisonment without parole if the defense
presented no mitigating evidence. He argues that the court
properly allowed him to ask whether they were “prevented” from
considering life imprisonment without parole but improperly
prevented him from asking whether they were “substantially
impaired” from considering such a sentence. He argues that
“prevent” and “substantially impair” are not interchangeable.
16
As noted above, the terms “prevent” and “substantially
impair” come from Adams, 448 U.S. at 45, and have been
reiterated in Witt, 469 U.S. at 424, Morgan, 504 U.S. at 728,
and Mackall, 236 Va. at 251, 372 S.E.2d at 766--all cases
applying them to a juror’s views on capital punishment and
their effect on his or her ability to follow jury instructions
and fulfill his or her oath. We need not decide whether the
terms “prevent” and “substantially impair” are interchangeable
in that context because they were not used for that purpose in
the portion of the record relevant to this assignment of error.
Rather, Lawlor asked a member of the venire, “[D]o you think
you would be substantially impaired from considering life
without parole as punishment for the guilty capital murderer
where aggravating circumstances were found and you heard no
evidence of mitigation?” 6 The question therefore did not seek
to elicit the effect of the jurors’ views on capital punishment
but rather whether they would consider life imprisonment
without parole if Lawlor presented no mitigating evidence,
which, as noted above, they had already answered. 7 That was the
view of the circuit court as well: in excluding the question
6
Lawlor also proposed a similar but longer version of the
question in written form.
7
This assignment of error names two additional members of
the venire who were not specified in assignment of error 81.
However, they too had been fully instructed that the defendant
need not present any mitigating evidence and were questioned
whether they understood by the court and counsel.
17
upon the Commonwealth’s objection, it ruled, “They have
answered that question about eight times. Each of the
prospective jurors have said [‘]I would consider both, whether
there was mitigating evidence or where there wasn't mitigating
evidence[’] and you continue to ask the question.”
As noted above, a defendant has a right to propound
questions relevant under Code § 8.01-358 and the Adams line of
cases. However, he is not entitled to his preferred form of
question and does not have the right to repeat them
cumulatively when he already has elicited the relevant
information. Thomas, 279 Va. at 162-63, 688 S.E.2d at 237;
Juniper, 271 Va. at 396, 626 S.E.2d at 405; Green, 266 Va. at
97, 580 S.E.2d at 843. The information Lawlor sought was
whether the jurors would consider life imprisonment without
parole in the absence of any mitigating evidence. Any
distinction between the terms “prevent” and “substantially
impair” in the Adams line of cases does not apply to this
particular inquiry. Therefore, he had obtained the relevant
information and the court did not abuse its discretion by
restricting the form or frequency of his questions.
4. PRISON CONDITIONS
In assignment of error 72, Lawlor argues that the court
erred by preventing him from asking potential jurors whether
they could consider a sentence of life imprisonment without
18
parole in the absence of any evidence of prison security. He
contends that jurors may have been more willing to sentence him
to life imprisonment without parole if they were confident he
would be unable to present a danger there or escape.
We have previously ruled that evidence of general prison
conditions is not relevant in a capital case, either as
mitigating evidence, Juniper, 271 Va. at 425, 626 S.E.2d at 423
(citing Cherrix v. Commonwealth, 257 Va. 292, 310, 513 S.E.2d
642, 653, cert. denied, 528 U.S. 873 (1999)), or to rebut the
future dangerousness aggravating factor. Id. at 426-27, 626
S.E.2d at 424 (citing Bell, 264 Va. at 201, 563 S.E. 2d at
714); see also Morva v. Commonwealth, 278 Va. 329, 350, 683
S.E.2d 553, 565 (2009), cert. denied, ___ U.S. ___, 131 S. Ct.
97 (2010) (“The generalized competence of the Commonwealth to
completely secure a defendant in the future is not a relevant
inquiry.”). Code § 8.01-358 does not entitle or permit the
court or a party to examine potential jurors to ascertain what
effect the exclusion of irrelevant evidence may have on their
deliberations. Accordingly, the court did not abuse its
discretion by excluding Lawlor’s question.
5. MOTION FOR A MISTRIAL
In assignments of error 59 and 61, Lawlor argues that the
court failed to remedy its erroneous restrictions on voir dire
by denying his motion to re-question 7 members of the venire
19
and by denying his alternative motion for a mistrial. Because
we have found that the court did not erroneously restrict voir
dire, the court did not err in denying the motion. 8
CLAIM 5: THE CIRCUIT COURT’S CONDUCT DURING VOIR DIRE
This claim consists of 10 assignments of error asserting
that the circuit court erred by engaging in prejudicial conduct
during voir dire.
Lawlor asserts in assignments of error 34, 77, and 82 that
the court engaged in prejudicial conduct during voir dire by
issuing contradictory rulings. Based on our review of the
places in the record to which Lawlor refers, see Rule 5:27(c)
(requiring an appellant to refer “to the pages of the appendix
where the alleged error has been preserved”), the only rulings
adverse to Lawlor were those we have refused to reverse under
the abuse of discretion standard, including rulings on
questions to elicit the jurors’ views or feelings on capital
punishment, their ability to consider a sentence of life
imprisonment without parole in the absence of mitigating
evidence, and their willingness to consider specific types of
mitigating evidence. Because those rulings were not error,
8
These assignments of error include four members of the
venire not specified in assignments of error 81 and 87.
However, each of these members had also been instructed by the
court that the defendant need not present any mitigating
evidence and were questioned whether they understood by the
court and counsel. Therefore the reasoning set forth above
also applies to them.
20
they did not prejudice Lawlor in voir dire. To the extent that
the adverse rulings may have been contradicted by favorable
rulings at other places in the record, the favorable rulings
could not prejudice Lawlor because they enabled him to propound
questions that the court could properly, in its discretion,
have excluded.
Lawlor also argues in assignments of error 35, 39, 60, 89,
90, and 91 that he was prejudiced by the court’s reprimands in
the presence of jurors, either in open court or in a loud voice
during bench conferences, and in sustaining the Commonwealth’s
objections to his voir dire questions in the presence of the
jury. Based on our review of the places in the record to which
Lawlor refers, see Rule 5:27(c), either he did not object that
the comments were prejudicial when they were made in open court
or there is no indication that the jury heard the comments made
during bench conferences. 9 We cannot consider any comments
where the record contains no indication that the jury heard
9
Lawlor did request that the court and counsel keep their
voices down in the bench conferences, but there is no
indication that the comments he asserts were prejudicial were
overheard by the jury. On one occasion, he suggested the
possibility they were audible but the court ruled they were
not. On another occasion, co-counsel noted that the bench
conference could be heard at counsel table and objected to the
seating of the members of that panel of the venire. However,
the court ruled that counsel had already consented to their
qualification and that the objection therefore was untimely.
Lawlor has not assigned error to either ruling. Consequently,
we will not review them. Rule 5:22(c).
21
them because there is no basis to find prejudice. Prince
Seating Corp. v. Rabideau, 275 Va. 468, 470, 659 S.E.2d 305,
307 (2008) (per curiam) (“We cannot review the ruling of a
lower court for error when the appellant does not . . . provide
us with a record that adequately demonstrates that the court
erred.”). We will not consider any comments where Lawlor
failed to object because the issue was not preserved. Rule
5:25; Porter, 276 Va. at 256, 661 S.E.2d at 442 (noting the
issue of prejudice was not preserved because “the record shows
that he failed to timely object to any of the circuit court's
comments”).
In assignment of error 62, Lawlor argues that the court
erred by denying his written motion to reopen voir dire to
permit him to ask additional questions. In that motion, he
also sought in the alternative a mistrial on the ground that
the court’s comments and reprimands could be heard by the jury
and were prejudicial. In denying the motion, the court stated
that it could only rule on timely objections.
We review denial of a motion for mistrial for abuse of
discretion. Lewis v. Commonwealth, 269 Va. 209, 213-14, 608
S.E.2d 907, 909 (2005) (citing Burns, 261 Va. at 341, 541
S.E.2d at 894). The comments and reprimands Lawlor asserted to
be prejudicial in the motion were made during voir dire of the
first nine jurors, which occurred on February 2 and 3, 2011.
22
However, he did not file his motion until February 7. The
court denied it then as untimely. That ruling was not an abuse
of discretion. See Cheng v. Commonwealth, 240 Va. 26, 40, 393
S.E.2d 599, 607 (1990) (declining to reverse denial of motion
for mistrial where the defendant failed to seek corrective
action promptly when the allegedly prejudicial comments were
made).
CLAIM 6: MISLEADING THE JURY
This claim consists of 2 assignments of error, assignments
of error 63 and 64, in which Lawlor asserts that by overruling
his objections to the Commonwealth’s voir dire questions and
sustaining the Commonwealth’s objections to his, the circuit
court misled the jurors into believing they could disregard
mitigating evidence.
Lawlor first argues that the court erred by allowing the
Commonwealth to state “[W]hen it comes to mitigating evidence
the [c]ourt will instruct you that you shall consider . . . the
mitigating evidence? But, again, [as with evidence of
aggravating factors,] you don’t have to accept it?” However,
Lawlor did not object to the statement. We therefore will not
consider this argument. Rule 5:25.
Similarly, he argues that the court erred by sustaining
the Commonwealth’s objection to his question, “Do you all
understand that you can't reject any kind of mitigation
23
evidence?” The court sustained the objection as the question
was worded. Lawlor then expressly accepted the court’s ruling
and agreed to move on. We therefore will not consider this
argument. Rule 5:25.
Lawlor also refers to a written motion in limine he filed
to prevent future statements by the Commonwealth that the jury
could reject mitigating evidence. However, the court granted
the motion. Lawlor is not aggrieved by a ruling in his favor.
B. THE GUILT PHASE OF TRIAL
CLAIM 8: CHALLENGES TO COUNT I (CAPITAL MURDER IN
THE COMMISSION OF RAPE OR ATTEMPTED RAPE)
This claim consists of 2 assignments of error relating to
the first count of the indictment, challenging rulings on a
motion to strike and a motion in limine.
1. MOTION TO STRIKE
In assignment of error 93, Lawlor asserts that the court
erred by denying his motion to strike the element of rape from
Count I of the indictment, capital murder in the commission of
or subsequent to rape or attempted rape, in violation of Code
§ 18.2-31(5). Citing Moore v. Commonwealth, 254 Va. 184, 186,
491 S.E.2d 739, 740 (1997), he contends that there was no
evidence of penile penetration, an essential element of rape.
Under Code § 18.2-31(5) willful, deliberate, and
premeditated killing is capital murder if committed in the
24
commission of or subsequent to either rape or attempted rape. 10
Proof of either predicate is sufficient to establish the crime
of capital murder under the statute. Accordingly, the
conviction must be affirmed if the evidence is sufficient to
prove the statutory crime charged in the indictment, which in
this case includes both rape and attempted rape.
While Lawlor’s assignment of error asserts that the
evidence was insufficient to prove rape, neither it nor any
other challenges the sufficiency of the evidence to prove
attempted rape. Consequently, the unchallenged attempted rape
predicate is a separate and independent basis upon which to
affirm his conviction of the statutory crime as charged in the
indictment. We therefore do not review the sufficiency of the
evidence to prove the separate rape predicate. Johnson v.
Commonwealth, 45 Va. App. 113, 116-17, 609 S.E.2d 58, 60
(2005); see also Manchester Oaks Homeowners Ass’n, Inc. v.
Batt, 284 Va. 409, 421-22, 732 S.E.2d 690, 698 (2012).
2. MOTION IN LIMINE
In assignment of error 114, Lawlor asserts that allowing
the jury to consider the rape predicate during the penalty
phase may have been prejudicial because jurors may have viewed
10
Such a killing also is capital murder if committed in
the commission of or subsequent to forcible sodomy, attempted
forcible sodomy, or object sexual penetration. Code § 18.2-
31(5). These predicates were not included in the indictment
and are not relevant in this appeal.
25
rape as more reprehensible than attempted rape, thereby
influencing them to impose a sentence of death rather than life
imprisonment without parole.
Lawlor challenged the sufficiency of the evidence for the
rape portion of the charge in his motion to strike. That
motion was timely made. However, he did not make this argument
regarding prejudice then. Rather, he argued prejudice for the
first time in a motion in limine filed after the jury had been
instructed in the guilt phase of trial and after it returned
its verdict. This prejudice argument was not timely at that
stage of the trial.
It is axiomatic that when a jury considers what sentence
to impose upon a defendant convicted of a crime, the charge
upon which he stands convicted is essential to its
deliberation. Both Code § 19.2-295(A) and Code § 19.2-264.3(C)
direct that the same jury that returned a conviction shall
thereafter determine the sentence to be imposed. The statutes
therefore presume that the jury is cognizant of the conviction
during its deliberation of the sentence. Further, Code
§§ 18.2-10, 18.2-11, 18.2-12, and 18.2-13 set forth the
permissible ranges of sentences that juries may impose based
upon the offense for which the defendant stands convicted,
either directly or as a result of the classification of the
26
offense. Thus it is by knowing the offense that the jury knows
the legal range for the sentence.
Consequently, the charge upon which a defendant stands
convicted cannot, as a matter of law, be irrelevant to or
prejudicial in the jury’s consideration of the sentence to be
imposed. 11 Accordingly, because Lawlor’s argument that allowing
the jurors to consider the rape predicate would prejudice their
penalty phase deliberations was first made after they had
convicted him, it was not timely. It therefore will not be
considered. Rule 5:25.
CLAIM 7: CHALLENGES TO COUNT II (CAPITAL MURDER IN
THE COMMISSION OF ABDUCTION WITH INTENT TO DEFILE)
This claim consists of 7 assignments of error relating to
the second count of the indictment, challenging rulings on a
motion to strike, a motion in limine, and jury instructions.
1. MOTION TO STRIKE
In assignments of error 95 and 96, Lawlor asserts that the
court erred by denying his motions to strike the evidence on
Count II of the indictment, capital murder in the commission of
abduction with the intent to defile, in violation of Code
§ 18.2-31(1). Citing Powell I, he contends that there is no
11
This does not affect those situations wherein the
defendant has been convicted on multiple charges based on the
same facts, when double jeopardy considerations may compel the
Commonwealth to elect which charge to submit to the jury for
the imposition of a sentence. E.g., Andrews, 280 Va. at 287-88
& n.19, 699 S.E.2d at 269-70 & n.19.
27
evidence of an abduction “separate and apart from, and not
merely incidental to” capital murder in the commission of rape
or attempted rape.
A motion to strike challenges whether the evidence is
sufficient to submit the case to the jury. Culpeper Nat’l Bank
v. Morris, 168 Va. 379, 384, 191 S.E. 764, 766 (1937). What
the elements of the offense are is a question of law that we
review de novo. Whether the evidence adduced is sufficient to
prove each of those elements is a factual finding, which will
not be set aside on appeal unless it is plainly wrong. George
v. Commonwealth, 242 Va. 264, 278, 411 S.E.2d 12, 20 (1991),
cert. denied, 503 U.S. 973 (1992). In reviewing that factual
finding, we consider the evidence in the light most favorable
to the Commonwealth and give it the benefit of all reasonable
inferences fairly deducible therefrom. Commonwealth v. McNeal,
282 Va. 16, 20, 710 S.E.2d 733, 735 (2011) (citing Noakes v.
Commonwealth, 280 Va. 338, 345, 699 S.E.2d 284, 288 (2010));
Muhammad v. Commonwealth, 269 Va. 451, 479, 619 S.E.2d 16, 31
(2005), cert. denied, 547 U.S. 1136 (2006).
After so viewing the evidence, the question is
whether any rational trier of fact could have
found the essential elements of the crime beyond
a reasonable doubt. In sum, if there is evidence
to support the conviction, the reviewing court
is not permitted to substitute its judgment,
even if its view of the evidence might differ
from the conclusions reached by the finder of
fact at the trial.
28
McNeal, 282 Va. at 20, 710 S.E.2d at 735 (citations, internal
quotation marks, and alterations omitted).
In Scott v. Commonwealth, 228 Va. 519, 323 S.E.2d 572(1984), we considered the elements of the statutory offense of
abduction set forth in Code § 18.2-47. We determined that
statutory abduction, unlike common law abduction, required no
proof of asportation. Rather, the statutory offense is
complete upon “the physical detention of a person, with the
intent to deprive him of his personal liberty, by force,
intimidation, or deception.” Id. at 526, 323 S.E.2d at 577.
We recognized that some form of detention is inherent in rape,
robbery, and assault but postponed consideration of any
potential constitutional problems created by the overlap for a
future case where they were squarely presented. Id.
That case came a year later, in Brown v. Commonwealth, 230
Va. 310, 337 S.E.2d 711 (1985). We determined that “the
General Assembly did not intend to make the kind of restraint
which is an intrinsic element of crimes such as rape, robbery,
and assault a criminal act, punishable as a separate offense.”
Id. at 314, 337 S.E.2d at 713. The test enunciated by the
Supreme Court in Blockburger v. United States, 284 U.S. 299,
304 (1932), to ensure that a prosecution does not violate the
29
double jeopardy clause therefore did not apply. Brown, 230 Va.
at 313-14, 337 S.E.2d at 713-14. Accordingly,
one accused of abduction by detention and
another crime involving restraint of the victim,
both growing out of a continuing course of
conduct, is subject upon conviction to separate
penalties for separate offenses only when the
detention committed in the act of abduction is
separate and apart from, and not merely
incidental to, the restraint employed in the
commission of the other crime.
Id. at 314, 337 S.E.2d at 713-14.
Lawlor argues that applying the facts of his case to the
factors adopted by the Court of Appeals in Hoyt v.
Commonwealth, 44 Va. App. 489, 494, 605 S.E.2d 755, 757 (2004),
leads to the conclusion that there was no abduction separate
and apart from the murder and rape or attempted rape. 12 We
disagree that Hoyt is applicable in this case.
The only issue when abduction is charged alongside an
offense for which detention is an intrinsic element is whether
12
According to the Court of Appeals in Hoyt, the “ ‘four
factors . . . central to’ determining whether or not an
abduction or kidnapping is incidental to another crime” are
(1) the duration of the detention or
asportation; (2) whether the detention or
asportation occurred during the commission of a
separate offense; (3) whether the detention or
asportation which occurred is inherent in the
separate offense; and (4) whether the
asportation or detention created a significant
danger to the victim independent of that posed
by the separate offense.
44 Va. App. at 494, 605 S.E.2d at 757 (quoting Gov’t of the
V.I. v. Berry, 604 F.2d 221, 227 (3d. Cir. 1979)).
30
any detention exceeded the minimum necessary to complete the
required elements of the other offense. 13 See Powell I, 261 Va.
at 541, 552 S.E.2d at 360 (stating the question is whether
“there is sufficient evidence to support the finding of the
jury that [the defendant] used greater restraint than was
necessary” to commit the other offense. (emphasis added)). We
already have stated that murder is not a crime for which
detention is inherent as an intrinsic element. Id. at 541
n.11, 552 S.E.2d at 360 n.11. We therefore need only consider
whether the evidence in this case proves detention separate and
apart from rape or attempted rape.
Lawlor was neither indicted nor convicted upon a charge of
rape. However, the charge of capital murder in the commission
of or subsequent to rape or attempted rape incorporates the
statutory definition of rape. As relevant to this case, the
elements of that offense are “sexual intercourse with a
complaining witness” “against the complaining witness's will,
13
In Brown and subsequent cases, we have acknowledged some
degree of detention to be inherent in rape, robbery, and
assault but we have not indicated that any asportation of the
victim is similarly inherent. Cf. Cardwell v. Commonwealth,
248 Va. 501, 511, 450 S.E.2d 146, 153 (1994), cert. denied, 514
U.S. 1097 (1995) (“[T]ransporting [the victim] from the robbery
scene was . . . separate and apart from, and not merely
incidental to, the robbery and was greater than the restraint
intrinsic in a robbery.”); Coram v. Commonwealth, 3 Va. App.
623, 626, 352 S.E.2d 532, 534 (1987) (“[A]sportation to
decrease the possibility of detection is not an act inherent in
or necessary to the restraint required in the commission of
attempted rape.”).
31
by force, threat or intimidation.” Code § 18.2-61(A). Because
intercourse constituting rape necessarily occurs against the
victim’s will, we presume that the victim was present only
because the offender “deprive[d her] of [her] personal liberty”
to escape. Scott, 228 Va. at 526, 323 S.E.2d at 576. Thus the
restraint necessary to prevent such escape is an intrinsic
element of the offense. But additional restraint, either as to
duration or degree, is not inherent in rape and therefore is
not an intrinsic element. See Brown, 230 Va. at 314, 337
S.E.2d at 714 (considering both the “time and distance” between
the abduction and other offense and the “quality and quantity”
of the force and intimidation used to effectuate the abduction
and other offense).
For example, in Hoke v. Commonwealth, 237 Va. 303, 311,
377 S.E.2d 595, 600, cert. denied, 491 U.S. 910 (1989), the
victims’ “wrists and ankles were bound securely with ligatures,
her mouth was gagged tightly, and she was detained for a
lengthy period.” We determined that this was sufficient to
establish a detention beyond that necessary to complete the
separate offenses of robbery and rape. Similarly, in Fields v.
Commonwealth, 48 Va. App. 393, 400, 632 S.E.2d 8, 11 (2006),
the defendant “twice choked [the victim] to the point of
unconsciousness.” The choking increased the risk of death and
injury beyond the rape itself and deprived the victim of the
32
opportunity to resist or call for help in ways not
intrinsically encompassed by rape alone. Id.
This case is similar to Fields. Rendering one’s victim
unconscious is not an essential, intrinsic element to complete
the offense of rape. The evidence adduced at trial, viewed in
the light most favorable to the Commonwealth, established that
Orange was beaten 47 times with a blunt object, and she was
conscious and alive for part of the beating. This manner of
effectuating a capital murder in the commission of rape or
attempted rape is not inherent in the elements of those crimes.
The evidence therefore is sufficient to establish capital
murder in the commission of abduction with intent to defile
“separate and apart from, and not merely incidental to,”
capital murder in the commission of or subsequent to rape or
attempted rape. 14 See Powell I, 261 Va. at 540-41, 552 S.E.2d
at 360; Brown, 230 Va. at 314, 337 S.E.2d at 713-14.
2. MOTION IN LIMINE
Lawlor also asserts in assignments of error 113, 115, and
116 that the court erred by denying his motion in limine to
exclude the conviction for capital murder in the commission of
an abduction because it was based on the same operative facts
as capital murder in the commission of rape or attempted rape.
14
Having addressed Lawlor’s argument on these assignments
of error in the context of our own precedents, we express no
opinion on the Hoyt factors.
33
He argues that allowing the jury to consider both charges
violates the double jeopardy clause. We review de novo claims
that multiple punishments have been imposed for the same
offense in violation of the double jeopardy clause. Fullwood
v. Commonwealth, 279 Va. 531, 539, 689 S.E.2d 742, 747 (2010)
(citing United States v. Imngren, 98 F.3d 811, 813 (4th Cir.
1996)).
We previously examined this issue in Brown and Powell I:
The double jeopardy clause of the Fifth
Amendment provides that no person shall “be
subject for the same offense to be twice put in
jeopardy of life or limb. . . .” It is now well
recognized that this clause affords an accused
three distinct constitutional guarantees. “It
protects against a second prosecution for the
same offense after acquittal. It protects
against a second prosecution for the same
offense after conviction. And it protects
against multiple punishments for the same
offense.”
Brown, 230 Va. at 312-13, 337 S.E.2d at 712-13 (quoting North
Carolina v. Pearce, 395 U.S. 711, 717 (1969)); accord Andrews,
280 Va. at 279, 699 S.E.2d at 264. “The present case involves
the third protection because [Lawlor’s] convictions, and the
death sentences that resulted, occurred in a single trial.”
Id. (citing Blythe v. Commonwealth, 222 Va. 722, 725, 284
S.E.2d 796, 797-98 (1981)).
However double jeopardy does not prevent a defendant from
suffering separate punishments for separate offenses growing
34
out of the same continuing course of conduct. So long as
abduction “is separate and apart from, and not merely
incidental to, the restraint employed in the commission of the
other crime” the defendant may be punished for both. Powell I,
261 Va. at 540-41, 552 S.E.2d at 360; Brown, 230 Va. at 314,
337 S.E.2d at 713-14. As noted above, the evidence in this
case supports convictions for capital murder in the commission
of abduction with intent to defile and capital murder in the
commission of or subsequent to rape or attempted rape. The
duration and manner of Orange’s detention is separate and apart
from the detention inherent in capital murder in the commission
of rape or attempted rape. Therefore the conviction and
sentence on the charge of capital murder in the commission of
abduction with intent to defile do not violate the double
jeopardy clause.
3. JURY INSTRUCTIONS
In assignments of error 97 and 98, Lawlor asserts that the
court erred by failing to instruct the jury that the detention
inherent in capital murder in the commission of or subsequent
to rape or attempted rape cannot serve as the basis for
conviction upon a charge of capital murder in the commission of
abduction with intent to defile. The court refused his
proffered instruction that the jury must find “beyond a
reasonable doubt[] that any abduction . . . was separate and
35
apart from, and not merely incidental to, the act of rape or
attempted rape. The restraint inherent in Count 1 cannot serve
as the sole basis for a conviction for Count 2.” He argues
that in refusing the instruction, the court failed to instruct
the jury on a necessary element of the charge.
We review jury instructions “to see that the law has been
clearly stated and that the instructions cover all issues which
the evidence fairly raises.” Cooper v. Commonwealth, 277 Va.
377, 381, 673 S.E.2d 185, 187 (2009) (internal quotation marks
omitted). This is a mixed question of law and fact. It is
error to give an instruction that incorrectly states the law;
“whether a jury instruction accurately states the relevant law
is a question of law that we review de novo.” Orthopedic &
Sports Physical Therapy Assocs., Inc. v. Summit Group Props.,
LLC, 283 Va. 777, 782, 724 S.E.2d 718, 721 (2012) (internal
quotation marks omitted); see also Velasquez v. Commonwealth,
276 Va. 326, 330, 661 S.E.2d 454, 456-57 (2008) (finding error
when court’s instruction was an incorrect statement of law).
However, “jury instructions ‘are proper only if supported by
the evidence,’ ” Orbe I, 258 Va. at 398, 519 S.E.2d at 813
(quoting Commonwealth v. Donkor, 256 Va. 443, 445, 507 S.E.2d
75, 76 (1998)), and more than a scintilla of evidence is
required. Andrews, 280 Va. at 276, 699 S.E.2d at 263; Juniper,
271 Va. at 418, 626 S.E.2d at 419. “When reviewing a trial
36
court's refusal to give a proffered jury instruction, we view
the evidence in the light most favorable to the proponent of
the instruction.” Commonwealth v. Vaughn, 263 Va. 31, 33, 557
S.E.2d 220, 221 (2002); accord Cooper, 277 Va. at 381, 673
S.E.2d at 187.
A trial court has a duty when instructing the jury to
define each element of the relevant offense. 15 Dowdy v.
Commonwealth, 220 Va. 114, 116, 255 S.E.2d 506, 508 (1979).
However, as noted above, what the elements are is a question of
law. See Kozmina v. Commonwealth, 281 Va. 347, 349, 706 S.E.2d
860, 862 (2011); Houston v. Commonwealth, 87 Va. 257, 262, 12
S.E. 385, 386 (1890). Therefore, whether the detention
established by the evidence is “the kind of restraint which is
an intrinsic element of crimes such as rape, robbery, and
assault,” Brown, 230 Va. at 314, 337 S.E.2d at 713 (emphasis
added), is a question of law to be determined by the court.
Fields, 48 Va. App. at 399, 632 S.E.2d at 10. Accordingly, the
court did not err in denying the instruction.
CLAIM 12: VOLUNTARY INTOXICATION
This claim consists of a single assignment of error,
assignment of error 111, in which Lawlor asserts that the
15
Instructions 6 and 7 set forth the elements of rape and
attempted rape. Instruction 12 set forth the elements of
abduction with intent to defile. These instructions were
granted.
37
circuit court erred by excluding Charles Wakefield’s testimony
during the guilt phase of trial. He proffered that Wakefield
would have testified that Lawlor drank, bought liquor, and
often smelled of alcohol during the three weeks preceding the
murder. The court ruled that evidence of general alcohol abuse
may be relevant as mitigation during the penalty phase but was
irrelevant and therefore inadmissible in the guilt phase.
Lawlor argues that the court’s ruling was error because he
sought to establish that he was voluntarily intoxicated at the
time of the offense and therefore incapable of forming the
requisite intent to commit capital murder.
A ruling that evidence is inadmissible is reviewed for
abuse of discretion. Thomas, 279 Va. at 168, 688 S.E.2d at
240; Commonwealth v. Wynn, 277 Va. 92, 97, 671 S.E.2d 137, 139
(2009). “[E]vidence of collateral facts and facts incapable of
supporting an inference on the issue presented are irrelevant
and cannot be accepted in evidence. Such irrelevant evidence
tends to draw the jurors' attention toward immaterial matters”
and therefore is properly excluded. Coe v. Commonwealth, 231
Va. 83, 87, 340 S.E.2d 820, 823 (1986).
We have said that “[a] person who voluntarily has become
so intoxicated as to be unable to deliberate and premeditate
cannot commit any class of murder that is defined as a wilful,
deliberate and premeditated killing.” Giarratano v.
38
Commonwealth, 220 Va. 1064, 1073, 266 S.E.2d 94, 99 (1980)
(citing Hatcher v. Commonwealth, 218 Va. 811, 814, 241 S.E.2d
756, 758 (1978)); accord Essex v. Commonwealth, 228 Va. 273,
281, 322 S.E.2d 216, 220 (1984). However, proof of mere
intoxication is insufficient; the defendant must establish
intoxication so great it rendered him incapable of
premeditation. Giarratano, 220 Va. at 1073, 266 S.E.2d at 99.
Consequently, even testimony that the defendant was drinking on
the day of the offense is insufficient to establish that he was
too intoxicated to form the requisite intent. Waye v.
Commonwealth, 219 Va. 683, 698, 251 S.E.2d 202, 211, cert.
denied, 442 U.S. 924 (1979). Accordingly, testimony about
Lawlor’s drinking during the three-week period prior to the
murder would not be probative of that issue and it therefore
was irrelevant. The court did not abuse its discretion by
excluding it during the guilt phase.
CLAIM 13: PRINCIPAL IN THE SECOND DEGREE
This claim consists of 3 assignments of error asserting
that the circuit court erred by preventing Lawlor from
presenting a defense that he was merely a principal in the
second degree.
1. REQUESTS FOR FUNDING
In assignment of error 27, Lawlor asserts that the court
erred by denying his requests for funding for a private
39
investigator to travel to Uruguay to interview and collect a
DNA sample from a third party. Lawlor similarly asserts in
assignment of error 29 that the court erred by denying his
request for funds for private mitochondrial DNA testing of hair
recovered from Orange’s body. Lawlor argues that these funding
requests were necessary to enable him to present a defense on
the ground that (a) someone else actually committed the murder,
(b) Lawlor was merely a principal in the second degree, and
therefore (c) Lawlor was culpable only of first-degree murder
rather than capital murder.
Citing Crawford v. Commonwealth, 281 Va. 84, 97, 704
S.E.2d 107, 115 (2011), Lawlor again mistakenly asserts that we
review these issues de novo. However, we did not review any
denial of a request for funding in that case. To the contrary,
denial of funding is reviewed for abuse of discretion. In
particular,
[i]n Husske v. Commonwealth, 252 Va. 203, 476
S.E.2d 920 (1996), this Court noted that an
indigent defendant is not constitutionally
entitled, at the state's expense, to all the
experts that a non-indigent defendant might
afford. Id. at 211, 476 S.E.2d at 925. All
that is required is that an indigent defendant
have “‘an adequate opportunity to present his
claims fairly within the adversary system.’”
Id. (quoting Ross v. Moffitt, 417 U.S. 600, 612
(1974)).
In Husske we held that
40
an indigent defendant who seeks the
appointment of an expert witness, at the
Commonwealth's expense, must demonstrate
that the subject which necessitates the
assistance of the expert is "likely to be a
significant factor in his defense," and
that he will be prejudiced by the lack of
expert assistance.
Id. at 211-12, 476 S.E.2d at 925 (citation
omitted). In that context, we specified that a
defendant seeking the assistance of an expert
witness “must show a particularized need” for
that assistance. Id.
It is the defendant's burden to demonstrate
this “particularized need” by establishing that
an expert's services would materially assist him
in preparing his defense and that the lack of
such assistance would result in a fundamentally
unfair trial. Id.; accord Green v.
Commonwealth, 266 Va. 81, 92, 580 S.E.2d 834,
840 (2003). We made clear in Husske and
subsequent cases that “mere hope or suspicion
that favorable evidence is available is not
enough to require that such help be provided.”
252 Va. at 212, 476 S.E.2d at 925 (internal
quotation marks omitted). Whether a defendant
has made the required showing of particularized
need is a determination that lies within the
sound discretion of the trial court. Id. [at
212], 476 S.E.2d at 926; Lenz v. Commonwealth,
261 Va. 451, 462, 544 S.E.2d 299, 305, cert.
denied, 534 U.S. 1003 (2001); Bailey v.
Commonwealth, 259 Va. 723, 737, 529 S.E.2d 570,
578[, cert. denied, 531 U.S. 995] (2000).
Commonwealth v. Sanchez, 268 Va. 161, 165, 597 S.E.2d 197, 199
(2004) (internal alteration omitted); accord Thomas, 279 Va. at
169-70, 688 S.E.2d at 241. The expert services to which a
defendant may be entitled following the required showing of
particularized need may include those of a private
41
investigator. Husske, 252 Va. at 212, 476 S.E.2d at 926;
Bailey, 259 Va. at 737, 529 S.E.2d at 578.
During a December 9, 2010 motions hearing, Lawlor sought
funding to send an investigator to Uruguay. He argued that he
wanted the investigator to interview and collect a DNA sample
from Rafael Delgado, who lived in Orange’s apartment building
at the time of the murder but who thereafter left the country.
Lawlor admitted that he had known of Delgado’s existence since
the indictment in March 2009. 16 Nevertheless, in December 2010
he still did not know where in Uruguay Delgado might be found
and had not asked him whether he would provide a DNA sample.
The court noted that Lawlor had known of Delgado’s
existence for nearly two years but had not undertaken any
significant steps to locate him. It also ruled that it would
not approve funding the investigation until Lawlor had located
Delgado and ascertained that he was willing to provide a DNA
sample.
Lawlor renewed his request at a January 13, 2011 motions
hearing after locating Delgado and ascertaining that he was
willing to speak with the investigator and return to testify at
trial if appropriate. During that hearing, Lawlor admitted to
participating in Orange’s murder. The court then again noted
16
He had also cited Delgado’s presence in Uruguay during a
January 21, 2010 hearing as partial basis for a continuance
when the trial was scheduled for March 1 of that year.
42
that Lawlor had known of Delgado’s existence for 22 months but
had only obtained the information necessary to justify a
request for investigatory funds on the eve of trial. Because
Lawlor admitted participation in the murder, he should have
known promptly whether there were any potential co-defendants
and who those potential co-defendants were. The court then
ruled that Lawlor had a right to call Delgado at trial and that
it would provide funds to make Delgado available as a defense
witness. However, it denied the request for funds to send the
investigator to Uruguay.
As noted above, an indigent defendant has the right to an
adequate opportunity to present his claims fairly. Sanchez,
268 Va. at 165, 597 S.E.2d at 199. However, he bears the
burden of establishing a particularized need for an expert’s
services – i.e., that the services must “materially assist him
in preparing his defense and that the lack of such assistance
would result in a fundamentally unfair trial.” Id.; Thomas,
279 Va. at 169-70, 688 S.E.2d at 241. The court ruled that
Lawlor was entitled to call Delgado as a witness and that it
would provide the funds necessary to make him available. That
ruling adequately preserved Lawlor’s right to a fair trial. He
did not show any need for further funding for the
investigator’s trip to Uruguay. Accordingly, the court did not
abuse its discretion by denying his request.
43
On the issue of DNA testing, Lawlor made several
successive funding requests. In January 2010, he requested
testing of blood recovered from various public places in the
apartment building outside Orange’s apartment. The court
granted that request. The next month, he requested testing of
8 foreign hairs found on Orange’s pubic region and the court
again granted his request. In April 2010, he requested that a
swab be sent to an outside, private laboratory for testing
because it did not contain a sample sufficient for testing by
the Department of Forensic Sciences (“DFS”). The court also
granted that request.
In September 2010, Lawlor requested that hairs and hair
fragments in three forensic collections recovered from
fingernail scrapings and from Orange’s left hand during the
autopsy be submitted for testing. Because some hairs and hair
fragments did not include the hair root, they were unsuitable
for nuclear DNA testing and had to be subjected to more
protracted mitochondrial DNA testing. The court indicated it
would revisit the issue after the human hairs were isolated. 17
After further forensic study of the three hair collections, the
court ordered the testing of all the complete human hairs. It
also ordered DFS to select a random sample from the remaining
17
Orange owned a cat and some of the hair was identified
as non-human.
44
91 human hair fragments and to subject the random sample to
mitochondrial DNA testing.
In November 2010, Lawlor asked for further testing of the
hair fragments. He noted that DFS had classified the 91
fragments from 2 of the forensic collections into 7 distinct
groups based on microscopic evaluation of their physical
characteristics. He requested that one hair fragment from each
group be subjected to mitochondrial DNA testing. The first
forensic collection contained 3 groups of hair fragments: one
containing 36 fragments, one containing 15, and one containing
a single fragment. The second forensic collection contained 4
groups of fragments: one containing 23, one containing 17, and
two groups each containing a single fragment. The condition of
the majority of the hair fragments indicated that they were not
fresh and had likely been in the apartment for some time.
Nevertheless, the court again granted his request.
Testing on these 7 final hair fragments resulted in a
mitochondrial DNA profile for each fragment. A comparison
indicated that the profile for one hair fragment was
inconsistent with the profiles of the others. It is not clear
from the record whether the single inconsistent fragment came
from a group containing other fragments sharing the same
microscopic physical characteristics or from one of the unique,
single-fragment groups. In other words, it is not clear
45
whether the single inconsistent hair fragment shared physical
characteristics with any untested hair fragments.
On January 3, 2011, based on this single inconsistent
mitochondrial DNA profile, the fractional amount of the single
inconsistent allele detected in the PCR DNA testing on the non-
sperm portion of DNA recovered from Orange’s abdominal swab,
and the fact that the blood recovered from the public areas of
the apartment building could not be attributed either to him or
Orange, Lawlor moved for a continuance and requested
mitochondrial DNA testing of all the forensic evidence. The
court denied the motion and the request:
The Defense [has] asked the Court to test
virtually everything that’s there, and I have
yet to see any basis that would produce evidence
of a second participant. . . . Absent some
showing that we’re not just continuing to test
everything that’s there, every hair, every item
in the room, it’s simply a wish and a hope and
speculation, and the motion is denied.
As noted above, a defendant must show a particularized
need that expert services will materially assist him in
preparing his defense and that denial of such services will
result in a fundamentally unfair trial. Sanchez, 268 Va. at
165, 597 S.E.2d at 199; Thomas, 279 Va. at 169-70, 688 S.E.2d
at 241. However, “[a] particularized need is more than a ‘mere
hope’ that favorable evidence can be obtained through the
services of an expert.” Id. at 170, 688 S.E.2d at 241 (quoting
46
Husske, 252 Va. at 212, 476 S.E. 2d at 925); accord Sanchez,
268 Va. at 165, 597 S.E.2d at 199; Morva, 278 Va. at 344, 683
S.E.2d at 562. The court repeatedly granted Lawlor’s
successive requests for additional DNA testing, despite the
fact that Lawlor admitted participating in the murder and the
overwhelming consistency of the forensic evidence recovered
from inside Orange’s apartment. It was not an abuse of
discretion for the court to rule that a single hair fragment,
which was present in the apartment for an undeterminable period
of time, was insufficient to justify testing approximately 80
other hair fragments, many of which had different physical
characteristics. Similarly, the court did not abuse its
discretion by ruling that the single hair fragment, even
coupled with blood recovered from the public areas of the
apartment building and the single, fractional inconsistent
allele discovered during PCR DNA testing, did not justify
subjecting all the forensic evidence to mitochondrial DNA
testing. Rather, as the court observed, the notion that
further DNA testing would establish the presence of a second
perpetrator was merely “a wish and a hope and speculation.” We
therefore will not reverse its denial of the requests.
2. JURY INSTRUCTIONS
In assignment of error 103, Lawlor asserts that the court
erred by failing to instruct the jurors that they could not
47
impose a sentence of death if they found he was merely a
principal in the second degree. He argues that the evidence
was sufficient to support such an instruction based on (a) the
DNA evidence attributable to neither Lawlor nor Orange, as
described above, and (b) the possibility that some of Orange’s
wounds were inflicted by a hammer, though no hammer was found
either in her apartment or in his.
As noted above in Claim 7, a jury instruction may be given
only if it is supported by more than a mere scintilla of
evidence. Andrews, 280 Va. at 276, 699 S.E.2d at 263; Juniper,
271 Va. at 418, 626 S.E.2d at 419. When reviewing the evidence
to determine whether it supports a proffered instruction, “we
view [it] in the light most favorable to the proponent of the
instruction.” Vaughn, 263 Va. at 33, 557 S.E.2d at 221. This
means we grant Lawlor all reasonable inferences fairly
deducible from it. Branham v. Commonwealth, 283 Va. 273, 279,
720 S.E.2d 74, 77 (2012).
The absence of a possible weapon from the scene of a
murder and the defendant’s residence is not evidence that a
third party participated in the crime. It may support a
reasonable inference that someone removed the weapon but not
the exclusion of the defendant from the universe of people who
may have done so. One also cannot reasonably infer that a
defendant did not use a murder weapon based only on its absence
48
from his residence after the crime occurred. Similarly, even
assuming that one could reasonably infer from the two minor
inconsistencies in the DNA evidence that a third party was
present during the crime, a hypothesis that Lawlor was merely a
principal in the second degree extends the inference beyond
reasonableness into speculation. Because there was not more
than a scintilla of evidence supporting such a hypothesis, the
court did not err in refusing the instruction.
C. THE PENALTY PHASE OF TRIAL
CLAIM 11: BIFURCATION OF THE PENALTY PHASE
This claim consists of a single assignment of error,
assignment of error 13, in which Lawlor asserts that the
circuit court erred by denying his motion to bifurcate the
penalty phase into two proceedings: one in which the jury must
unanimously find one or more of the aggravating factors set
forth in Code § 19.2-264.2 beyond a reasonable doubt, thereby
making him eligible for a sentence of death, followed by one in
which the jurors considered his mitigating evidence to
determine whether to impose a sentence of death or life
imprisonment without parole. He argues that such a bifurcation
is required both by Code § 19.2-264.4(A) and the United States
Constitution. These are questions of law we review de novo.
Gallagher v. Commonwealth, 284 Va. 444, 449, 732 S.E.2d 22, 24
(2012).
49
Code § 19.2-264.4(A) requires that “[u]pon a finding that
the defendant is guilty of an offense which may be punishable
by death, a proceeding shall be held which shall be limited to
a determination as to whether the defendant shall be sentenced
to death or life imprisonment.” Lawlor argues that a defendant
is not “guilty of an offense which may be punishable by death”
until after at least one aggravating factor has been proved.
Therefore, he contends, the separate proceeding referred to in
Code § 19.2-264.4(A) must occur after that time.
We construe a statute under familiar principles.
The primary objective of statutory construction
is to ascertain and give effect to legislative
intent. When a given controversy involves a
number of related statutes, they should be read
and construed together in order to give full
meaning, force, and effect to each. Therefore
we accord each statute, insofar as possible, a
meaning that does not conflict with any other
statute. When two statutes seemingly conflict,
they should be harmonized, if at all possible,
to give effect to both.
Conger v. Barrett, 280 Va. 627, 630-31, 702 S.E.2d 117, 118
(2010) (citations, internal quotation marks, and alterations
omitted). “[A]n undefined term must be given its ordinary
meaning, given the context in which it is used. Furthermore,
the plain, obvious, and rational meaning of a statute is to be
preferred over any curious, narrow, or strained construction,
and a statute should never be construed in a way that leads to
absurd results.” Meeks v. Commonwealth, 274 Va. 798, 802, 651
50
S.E.2d 637, 639 (2007) (citations, internal quotation marks,
and alteration omitted). Where the same term is used in
different places within a statutory scheme, we apply the same
meaning unless the legislature clearly intended a different
one. Eberhardt v. Fairfax County Emps. Ret. Sys. Bd. of Trs.,
283 Va. 190, 195, 721 S.E.2d 524, 526 (2012).
The language at issue in Code § 19.2-264.4(A) is “an
offense which may be punishable by death.” This phrase is an
integrated relative clause narrowing the universe of offenses
to which the subsection applies. Under Lawlor’s
interpretation, an offense is not “an offense which may be
punishable by death” until after the jury has found at least
one of the aggravating factors set forth in Code § 19.2-264.2.
This argument is without merit.
First, Code § 19.2-264.2 also uses the phrase “an offense
for which the death penalty may be imposed” to describe the
offenses to which that statute applies. It provides:
In assessing the penalty of any person convicted
of an offense for which the death penalty may be
imposed, a sentence of death shall not be
imposed unless the court or jury shall (1) after
consideration of the past criminal record of
convictions of the defendant, find that there is
a probability that the defendant would commit
criminal acts of violence that would constitute
a continuing serious threat to society or that
his 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
51
battery to the victim; and (2) recommend that
the penalty of death be imposed.
Code § 19.2-264.2 (emphasis added). Thus, if the phrase “an
offense for which the death penalty may be imposed” truly is
defined by this section as Lawlor argues, a jury may not
consider the aggravating factors set forth in that section
until after it has found at least one of them and has
recommended a sentence of death. This is an absurd, circular
result. We therefore will not adopt Lawlor’s interpretation.
Meeks, 274 Va. at 802, 651 S.E.2d at 639.
Second, while Code § 19.2-264.2 does not define “an
offense for which the death penalty may be imposed,” Code
§§ 18.2-10 and 18.2-31 do. Code § 18.2-10 states in relevant
part that “[t]he authorized punishments for conviction of a
felony are: (a) For Class 1 felonies, death . . . or
imprisonment for life . . . .” Code § 18.2-31 enumerates the
offenses “constitut[ing] capital murder, punishable as a Class
1 felony.” Accordingly, “an offense for which the death
penalty may be imposed” for the purposes of Code §§ 19.2-264.2
and 19.2-264.4(A) is capital murder and it is “a finding that
the defendant is guilty of” capital murder that triggers the
separate sentencing proceeding. Code § 19.2-264.4(A).
Code § 19.2-264.3 supports this interpretation. Code
§ 19.2-264.3(A) directs the trial court first to submit the
52
question of guilt or innocence to the jury. Thereafter, and
only “[i]f the jury finds the defendant guilty of an offense
which may be punishable by death,” does it commence a penalty
proceeding under Code § 19.2-264.4. Code § 19.2-264.3(C). “If
the jury finds the defendant guilty of an offense for which the
death penalty may not be imposed,” there is no Code § 19.2-
264.4 penalty proceeding at all. Code § 19.2-264.3(B).
Accordingly, the General Assembly could not have intended the
phrase “an offense which may be punishable by death” to mean
only those offenses for which one or more aggravating factors
have been proved beyond a reasonable doubt because the
proceeding in which those factors are presented to the jury
only commences after the defendant has been convicted of such
an offense.
Citing Ring v. Arizona, 536 U.S. 584 (2002), Lawlor also
argues that bifurcation of the penalty phase is required by the
United States Constitution. However, that was not the Supreme
Court’s holding in Ring. Rather, the Court reiterated its
holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), that
“[i]f a State makes an increase in a defendant's authorized
punishment contingent on the finding of a fact, that fact – no
matter how the State labels it – must be found by a jury beyond
a reasonable doubt.” Ring, 536 U.S. at 602 (citing Apprendi,
530 U.S. at 482-83). The Court then extended its Apprendi
53
rationale to hold that “Arizona's enumerated aggravating
factors operate as ‘the functional equivalent of’ ” such
factual findings and could not be found by a sentencing judge
without a jury. Id. at 609 (quoting Apprendi, 530 U.S. at 494
n.19).
Lawlor also cites Lockett v. Ohio, 438 U.S. 586 (1978),
for the proposition that bifurcating the penalty phase is
required to ensure jurors can meaningfully consider all
mitigating evidence. However, while the Supreme Court held in
that case that a defendant must be allowed to present “any
aspect of a defendant's character or record and any of the
circumstances of the offense that the defendant proffers as a
basis for a sentence less than death,” it did not require the
fact-finder to consider that evidence in a separate proceeding.
Id. at 604.
Virginia law complies with these constitutional
requirements. See Code § 19.2-264.4(B) (“Evidence which may be
admissible . . . may include the circumstances surrounding the
offense, the history and background of the defendant, and any
other facts in mitigation of the offense.”); Code § 19.2-
264.4(C) (“The penalty of death shall not be imposed unless the
Commonwealth shall prove [one or more aggravating factors]
beyond a reasonable doubt . . . .”); Prieto v. Commonwealth,
278 Va. 366, 413, 682 S.E.2d 910, 935 (2009), cert. denied, ___
54
U.S. ___, 130 S. Ct. 3419 (2010) (“Prieto I”) (“[W]e hold that
in the penalty phase of capital murder trials the death penalty
may not be imposed unless the jury unanimously finds either one
or both of the aggravating factors . . . beyond a reasonable
doubt.”); Andrews, 280 Va. at 301, 699 S.E.2d at 277 (“A
defendant in a capital case has the constitutional right to
present virtually unlimited relevant evidence in mitigation.”).
Accordingly, there is no basis for Lawlor’s claim that the
Constitution requires bifurcation of the penalty phase. For
these reasons, the court did not err in denying Lawlor’s
motion. 18
CLAIM 1: MITIGATING EVIDENCE
This claim consists of 19 assignments of error asserting
that the circuit court erred by excluding specific types of
mitigating evidence either as hearsay, irrelevant, or both.
1. GENERAL ADMISSIBILITY OF HEARSAY MITIGATING EVIDENCE
In assignment of error 117, Lawlor asserts that a court
may not exclude mitigating evidence on the basis of hearsay.
Citing Green v. Georgia, 442 U.S. 95 (1979), and subsequent
cases, he argues that the exclusion of mitigating evidence as
hearsay violates a defendant’s constitutional right to due
18
This appeal does not present, and we do not consider,
whether the statute prohibits a circuit court from exercising
its discretion to bifurcate the penalty phase. The question
here is limited to whether the statute and applicable
precedents require it to do so.
55
process. This is a question of constitutional interpretation
that we review de novo. Gallagher, 284 Va. at 449, 732 S.E.2d
at 24.
In Green, the defendant and another person, Moore, were
indicted together but tried separately for a rape and murder.
At Moore’s trial, a prosecution witness testified that Moore
told him that he had killed the victim after ordering Green to
leave the scene. However, when Green attempted to introduce
the testimony in his trial, the prosecution objected on the
ground that it was hearsay. The objection was sustained and
the evidence was excluded. 442 U.S. at 95-96.
The Supreme Court ruled that excluding the witness’s
testimony in Green’s trial was error. The Court considered
both its relevance and reliability and determined that the
prosecution’s use of the testimony to secure Moore’s conviction
and sentence of death was “[p]erhaps [the] most important”
factor justifying its admission in Green’s trial. Id. at 97.
It held that “[i]n these unique circumstances, ‘the hearsay
rule may not be applied mechanistically to defeat the ends of
justice.’” Id. (quoting Chambers v. Mississippi, 410 U.S. 284,
302 (1973)) (emphasis added). 19
19
The Court also considered that Moore’s comment to the
witness was made spontaneously to a close friend, was against
his penal interest, and was independently corroborated by other
evidence. 442 U.S. at 97. These are the same factors the
56
Thus, Green turned on the fact that the prosecution had
introduced and relied upon witness testimony in a separate
prosecution for the same crime: it could not subsequently
impugn the reliability of that testimony in the related
proceeding. By its own terms, Green does not stand for the
proposition that evidence may not be excluded on hearsay
grounds simply because it is offered as mitigation in the
penalty phase of a capital murder trial.
Sears v. Upton, 561 U.S. ___, 130 S. Ct. 3259 (2010),
similarly fails to support Lawlor’s broad argument. In that
case the Supreme Court did not rule that mitigating evidence
may not be excluded as hearsay. Rather, citing Green and
Chambers, the Court again emphasized that reliability is the
touchstone for determining whether such evidence should be
admitted. Id. at 3263 & n.6 (“[T]he fact that some of such
evidence may have been ‘hearsay’ does not necessarily undermine
its value—or its admissibility—for penalty phase purposes.”
Rather, “reliable hearsay evidence that is relevant to a
capital defendant's mitigation defense should not be excluded
Court considered in Chambers, 410 U.S. at 301-02. Although the
Court ruled that exclusion of the testimony at issue in
Chambers was improper because the evidence “bore persuasive
assurances of trustworthiness,” it nevertheless observed that
“the accused . . . must comply with established rules of
procedure and evidence designed to assure both fairness and
reliability in the ascertainment of guilt and innocence.” Id.
at 302.
57
by rote application of a state hearsay rule.” (emphasis
added)).
However, when hearsay evidence does not bear the indicia
of reliability present in Green and Chambers, it may properly
be excluded even when offered in mitigation. Buchanan v.
Angelone, 103 F.3d 344, 349 (4th Cir. 1996) (“The excluded
statements also lack the inherent reliability of the statement
excluded in Green. The statement in Green was against the
declarant's penal interest, made spontaneously to a close
friend, and the state itself had relied on the excluded
testimony to convict the declarant of capital murder. . . .
The evidence in this case discloses that the application of
Virginia's hearsay rule did not rise to the level of a
constitutional violation.”).
Accordingly, the circuit court did not err simply because
it declined to overrule each of the Commonwealth’s hearsay
objections to some of Lawlor’s mitigating evidence. We must
consider each ruling individually. 20
2. SPECIFIC RULINGS
20
In assignment of error 124, Lawlor generally assigns
error to the court’s exclusion of “relevant mitigating evidence
in the form of reliable hearsay.” The brief contains no
independent argument on this assignment of error.
Consequently, to the extent it is not encompassed by the
assignments of error challenging specific rulings and addressed
below, it is abandoned. Rule 5:27(d).
58
As noted above in Claim 12, we review rulings that
evidence is inadmissible for abuse of discretion. Thomas, 279
Va. at 168, 688 S.E.2d at 240.
In assignment of error 132, Lawlor asserts that the court
erred by excluding Charles Wakefield’s testimony that Lawlor
showed remorse. Specifically, he proffered that Wakefield
would testify that Lawlor said, “I just don’t want to hit
anyone” several days after the murder occurred. The
Commonwealth objected that the statement was hearsay. Lawlor
responded that it was admissible as a statement of his then-
existing mental and emotional condition – i.e., that at the
time he made the statement to Wakefield, several days after the
murder, he did not “want to hit anyone.” The court ruled that
the statement was irrelevant.
To be admissible as evidence of a then-existing state of
mind, the state of mind must be relevant to a material issue.
See Clay v. Commonwealth, 262 Va. 253, 257, 546 S.E.2d 728, 730
(2001) (Statements showing state of mind are admissible
“provided the statements are relevant and probative of some
material issue in the case.”). As proffered by Lawlor,
Wakefield would have testified that Lawlor no longer wanted to
hit anyone. But such testimony would not establish remorse.
While the alleged statement may indicate that Lawlor had purged
himself of a desire to do violence at that time, it does not
59
encompass any sentiment of regret for his prior violent acts.
Moreover, remorse includes “sympathy” or “concern for the
victims of the crimes for which he was convicted.” Smith v.
Commonwealth, 27 Va. App. 357, 364-65, 499 S.E.2d 11, 14
(1998). The proffered testimony includes neither of these
attributes. It therefore was not probative of the issue of
Lawlor’s remorse and the court did not abuse its discretion by
excluding it.
In assignments of error 134, 135, 136, 137, and 148,
Lawlor asserts that the court erroneously excluded testimony
from his former probation officers, Mark Crosby and Kathy
Coburn. He argues that they would have testified that Lawlor
had suffered childhood sexual abuse. He concedes that the
excluded statements were hearsay but contends they are
nevertheless admissible. He argues they are reliable because
they were made years before to probation officers in the
context of supervisory relationships. We disagree.
Lawlor cites no authority for his argument that statements
made to probation officers are sufficiently reliable to
overcome the hearsay rule. The issue is not whether the
probation officers are reliable, but whether the statements
Lawlor made to them can be relied upon as truthful under the
circumstances, rather than being self-serving or manipulative.
The statements at issue are not clothed with any of the indicia
60
of reliability the Supreme Court set forth in Green or
Chambers. They were not made against Lawlor’s penal interest,
they were not made spontaneously to a close friend, and they
were not independently corroborated by other evidence.
Accordingly, the court did not abuse its discretion by
excluding them.
In assignments of error 146 and 147, Lawlor asserts that
the court erred by excluding testimony and written evidence
from Woody Couts, who provided a court-ordered alcohol and drug
dependency assessment while Lawlor was incarcerated 2 years
prior to Orange’s murder. Couts also would have testified that
Lawlor told him of childhood sexual abuse. Lawlor argues that
the testimony was admissible because the statements were made
for the purposes of obtaining a medical diagnosis or treatment.
Further, he argues that the statements were reliable even if
not covered by that exception to the hearsay rule. We again
disagree.
We have acknowledged that “a physician [may] testify to a
patient's statements concerning his ‘past pain, suffering and
subjective symptoms’ to show ‘the basis of the physician's
opinion as to the nature of the injuries or illness.’ ”
Cartera v. Commonwealth, 219 Va. 516, 518, 248 S.E.2d 784, 785-
86 (1978); accord Jenkins v. Commonwealth, 254 Va. 333, 339,
492 S.E.2d 131, 134 (1997). However, Couts was not a
61
physician; he was not even licensed as a substance abuse
counselor.
Moreover, a statement made for the purpose of medical
diagnosis or treatment in contravention of the hearsay rule is
admissible because “a patient making a statement to a treating
physician recognizes that providing accurate information to the
physician is essential to receiving appropriate treatment.”
Jenkins, 254 Va. at 339, 492 S.E.2d at 134-35. The exception
therefore includes an assessment of reliability. However, as
the circuit court noted,
The fallacy [in your analogy] is that you
believe that a defendant who is incarcerated who
talks to a drug counselor is going to be a
hundred percent honest as one would who is
seeking treatment from a physician.
If I’m seeking treatment from a physician,
I want that treatment to cure me of my ill or
illness, whatever it is.
A defendant sitting in jail wants to
minimize his time, wants to get probation
instead of penitentiary time, depending on what
the offense is. And your theory is that [the]
defendant will, of course, automatically be one
hundred percent honest to the drug treatment
counselor.
And we know that’s not true, even through
your own witnesses, who have said that the most
drug-challenged people are not honest, even with
their own – even with their own treatment people
. . . .
Accordingly, the rationale underlying the medical
diagnosis or treatment exception does not apply to substance
62
abuse assessments in the context of incarceration. The circuit
court did not abuse its discretion by excluding this
testimony. 21
In assignment of error 131, Lawlor asserts that the court
erred by preventing his investigator, Samuel Dworkin, from
testifying about Lawlor’s father’s failure to appear at trial.
Lawlor alleges that his father threatened to commit suicide if
he was subpoenaed to testify at trial. He argues that this
information was relevant because the Commonwealth had objected,
in the presence of the jury, to evidence that his father had
sexually abused other children on the ground that “[t]he man’s
not here to defend himself.” He also argues that it may have
disposed the jury to impose a sentence of life imprisonment.
We again disagree.
The court provided Lawlor the opportunity to call Dworkin
to establish that his father was unwilling to appear
voluntarily. However, the court ruled that the reason Lawlor’s
father did not appear at all was that Lawlor chose not to
subpoena him and Lawlor’s rationale for that decision was not
relevant. We agree with the circuit court that a party’s
21
In assignment of error 119, Lawlor also generally
assigns error to the court’s exclusion of evidence of his
history of sexual abuse. The brief contains no independent
argument on this assignment of error. Consequently, to the
extent it is not encompassed by the foregoing assignments of
error, it is abandoned. Rule 5:27(d).
63
litigation strategy is not evidence of a fact at issue in the
proceeding. Testimony justifying a party’s chosen course at
trial therefore is not relevant. The reasoning behind Lawlor’s
decision not to subpoena his father was irrelevant and the
court did not abuse its discretion by excluding Dworkin’s
testimony.
In assignments of error 14 and 120, Lawlor asserts that
the court erred by denying his motion to allow evidence of the
effect his execution would have on his family and friends.
Similarly, in assignments of error 128, 141, and 145, he
asserts that the court erred by excluding testimony from his
sister, Elizabeth Cox, mother, Joann Cox, and friend, Richard
Poorman, respectively, about the value of their relationships
with him. He argues that this was relevant mitigating evidence
under our decision in Andrews and the Supreme Court’s decisions
in Lockett and Tennard v. Dretke, 542 U.S. 274 (2004). We
disagree.
In Andrews, we said “[a] defendant in a capital case has
the constitutional right to present virtually unlimited
relevant evidence in mitigation.” 280 Va. at 301, 699 S.E.2d
at 277 (emphasis added).
[T]he meaning of relevance is no different in
the context of mitigating evidence introduced in
a capital sentencing proceeding than in any
other context, and thus the general evidentiary
standard—any tendency to make the existence of
64
any fact that is of consequence to the
determination of the action more probable or
less probable than it would be without the
evidence—applies. . . . Relevant mitigating
evidence is evidence which tends logically to
prove or disprove some fact or circumstance
which a fact-finder could reasonably deem to
have mitigating value.
Tennard, 542 U.S. at 284 (citations and internal quotation
marks omitted).
In Lockett, the Supreme Court defined the circumstances
which a fact-finder could reasonably deem to have mitigating
value as those relevant to “the ‘character and record of the
individual offender and the circumstances of the particular
offense.’ ” 438 U.S. at 601 (quoting Woodson v. North
Carolina, 428 U.S. 280, 304 (1976)). Lockett does not “limit[]
the traditional authority of a court to exclude, as irrelevant,
evidence not bearing on the defendant's character, prior
record, or the circumstances of his offense.” Id. at 605 n.12.
Therefore, to be relevant to mitigation in the penalty phase of
a capital case, evidence must be relevant to these three
factors.
As we noted in Cherrix, “Code § 19.2-264.4(B) vests the
trial court with the discretion to determine, subject to the
rules of evidence governing admissibility, the evidence which
may be adduced in mitigation of the offense.” 257 Va. at 309,
513 S.E.2d at 653 (citing Coppola v. Commonwealth, 220 Va. 243,
65
253, 257 S.E.2d 797, 804 (1979), cert. denied, 444 U.S. 1103(1980)). In Coppola, we expressly declined to reverse as an
abuse of discretion a circuit court’s exclusion of evidence
addressing the effect of the defendant’s arrest and trial on
his family as irrelevant to the issue of mitigation. 220 Va.
at 253, 257 S.E.2d at 804. Although Coppola addressed only
arrest and trial, not the imposition of a sentence of death,
and Code § 19.2-264.4(B) has been amended since that decision,
we are not persuaded that the effect on a defendant’s family
and friends of such a sentence is relevant mitigating evidence
“bearing on the defendant's character, prior record, or the
circumstances of his offense.” Lockett, 438 U.S. at 605 n.12.
The court therefore did not abuse its discretion by excluding
this evidence.
3. RIGHT NOT TO TESTIFY
In assignments of error 125 and 177, Lawlor asserts that
the court erred by ruling that he would have to testify to
present his mitigating evidence to the jury. He identifies 4
specific statements made by the court referring to Lawlor’s
failure to take the stand himself.
Each of the identified statements was made as the court
ruled on an objection by the Commonwealth. 22 Contrary to
22
The comments were made outside the presence of the jury
and therefore could not have influenced its deliberation.
66
Lawlor’s assertion, the court did not base its rulings on his
exercise of his right against self-incrimination. Rather, it
based these rulings on its determination that the evidence
Lawlor was attempting to present was inadmissible hearsay. The
court noted that while the witnesses would not be allowed to
present hearsay evidence by testifying to statements Lawlor
made to them, the evidence would be admissible if Lawlor
testified himself: then, by definition, it would not be
hearsay.
A court does not err by observing outside the presence of
the jury that inadmissible hearsay evidence would be admissible
if the declarant testified directly – even if the declarant is
the defendant. 23
CLAIM 3: TESTIMONY OF DR. MARK CUNNINGHAM
This claim consists of 6 assignments of error asserting
that the circuit court erred by excluding portions of the
testimony of Dr. Mark Cunningham. 24 Lawlor offered Dr.
23
Lawlor also argues the Commonwealth improperly referred
to his failure to testify during an objection in the presence
of the jury. However, Lawlor failed to preserve this issue
because he did not timely object to the comment or seek a
curative instruction or mistrial. Rule 5:25; Porter, 276 Va.
at 256, 661 S.E.2d at 442; Cheng, 240 Va. at 40, 393 S.E.2d at
607.
24
In assignment of error 185, Lawlor generally assigns
error to the court for restricting Cunningham’s testimony. The
brief contains no independent argument on this assignment of
error so to the extent it is not encompassed by the other
assignments of error, it is abandoned. Rule 5:27(d).
67
Cunningham as an expert witness to rebut the Commonwealth’s
evidence on the future dangerousness aggravating factor and to
provide mitigating evidence. 25 As noted above in Claims 1 and
12, we review a ruling that evidence is inadmissible for abuse
of discretion. Thomas, 279 Va. at 168, 688 S.E.2d at 240.
As an initial matter, we note that a defendant’s evidence
rebutting the risk of future dangerousness serves a purpose
different from mitigating evidence. While the same evidence
may be adduced to serve both purposes, the purposes must not be
conflated.
Pursuant to Code §§ 19.2-264.2 and 19.2-264.4(C), a
sentence of death may not be imposed unless the Commonwealth
has proved one or both of the aggravating factors set out in
the statutes beyond a reasonable doubt. Where the Commonwealth
alleges that the future dangerousness factor applies and
adduces evidence to prove it, the defendant has a due process
right to rebut that evidence. Simmons v. South Carolina, 512
U.S. 154, 164 (1994) (citing Skipper v. South Carolina, 476
Similarly, we find no argument in the brief related to
assignment of error 190 and it too is abandoned. Id.
25
The aggravating factor commonly referred to as the risk
of future dangerousness factor provides that “a sentence of
death shall not be imposed unless the . . . jury shall . . .
after consideration of the past criminal record of convictions
of the defendant, find that there is a probability that the
defendant would commit criminal acts of violence that would
constitute a continuing serious threat to society . . . .”
Code § 19.2-264.2; accord Code § 19.2-264.4(C).
68
U.S. 1, 5 n.1 (1986)). However, where the Commonwealth does
not pursue the future dangerousness aggravating factor, there
is nothing for the defendant to rebut.
The statutes also define the evidence relevant to prove
the future dangerousness aggravating factor, or the probability
that the defendant “would commit criminal acts of violence that
would constitute a continuing serious threat to society.” Code
§§ 19.2-264.2 and 19.2-264.4(C). The relevant evidence is “the
past criminal record of convictions of the defendant,” Code
§ 19.2-264.2, and “evidence of the prior history of the
defendant or of the circumstances surrounding the commission of
the offense of which he is accused.” Code § 19.2-264.4(C); see
also Morva, 278 Va. at 349, 683 S.E.2d at 565 (“The relevant
evidence surrounding a determination of future dangerousness
consists of the defendant’s history and the circumstances of
the defendant’s offense.”).
By contrast, a defendant is always entitled to present
relevant mitigating evidence in a capital case. Andrews, 280
Va. at 301, 699 S.E.2d at 277 (citing Tennard, 542 U.S. at 285,
and Lockett, 438 U.S. at 608). This right is grounded in the
Eighth Amendment. Simmons, 512 U.S. at 164 (citing Skipper,
476 U.S. at 4).
Mitigating evidence includes “any aspect of a defendant's
character or record and any of the circumstances of the offense
69
that the defendant proffers as a basis for a sentence less than
death.” Lockett, 438 U.S. at 604. “[A] defendant’s
disposition to make a well-behaved and peaceful adjustment to
life in prison is itself an aspect of his character” and
therefore is relevant mitigating evidence. Skipper, 476 U.S.
at 7.
In Bell, we described evidence of a defendant’s
disposition to adjust to prison life as “future adaptability”
evidence. 264 Va. at 201, 563 S.E.2d at 714. We also stated
that it must be specific to the individual defendant or
relevant “as a foundation for an expert opinion.” Id.; accord
Juniper, 271 Va. at 427, 626 S.E.2d at 424. With these
principles in mind, we turn to Lawlor’s arguments.
1. REBUTTING THE RISK OF FUTURE DANGEROUSNESS
In assignments of error 180 and 188, Lawlor asserts that
the court erred by excluding Dr. Cunningham’s testimony about
his risk of future dangerousness in prison. He argues that the
court repeatedly excluded such testimony by sustaining the
Commonwealth’s objections and by denying him the opportunity to
recall Dr. Cunningham following a proffer of additional
testimony.
We thoroughly reviewed the evidence that is admissible to
rebut the future dangerousness aggravating factor in Morva
based on Simmons, Skipper, and Code §§ 19.2-264.2 and 19.2-
70
264.4(C). We reiterated our earlier holding that “[t]he
relevant inquiry is not whether a defendant could commit
criminal acts of violence in the future but whether he would.”
Id. at 349, 683 S.E.2d at 564 (quoting Burns, 261 Va. at 339-
40, 541 S.E.2d at 893) (internal alterations and quotation
marks omitted). In other words, the issue is not whether the
defendant is physically capable of committing violence, but
whether he has the mental inclination to do so. Compare
Webster's Third New International Dictionary 517 (1993)
(defining “could” in part as the conditional of “can”) and id.
at 323 (defining “can” in part as “to be able to do, make, or
accomplish” (emphasis added)) with id. at 2638 (defining
“would” in part as the conditional of “will”) and id. at 2616
(defining “will” in part as “to be inclined to” (emphasis
added)).
Accordingly, evidence of restrictions on a prisoner’s
physical capacity to commit violence due to generalized prison
conditions is not relevant:
Increased security measures and conditions of
prison life that reduce the likelihood of future
dangerousness of all inmates is general
information that is irrelevant to the inquiry
required by Code §§ 19.2-264.2 and 19.2-
264.4(C). See [Juniper, 271 Va. at 426-27, 626
S.E.2d at 423-24]; Porter, 276 Va. at 252, 661
S.E.2d at 440. The generalized competence of
the Commonwealth to completely secure a
defendant in the future is not a relevant
inquiry. Our precedent is clear that a court
71
should exclude evidence concerning the
defendant's diminished opportunities to commit
criminal acts of violence in the future due to
the security conditions in the prison. Burns,
261 Va. at 339-40, 541 S.E.2d at 893-94.
Morva, 278 Va. at 350, 683 S.E.2d at 565. In short, the
question of future dangerousness is about the defendant’s
volition, not his opportunity, to commit acts of violence.
Evidence of custodial restrictions on opportunity therefore is
not admissible.
Lawlor argues that Dr. Cunningham’s testimony was not
about generalized prison conditions. He argues it was
sufficiently particularized based on attributes such as his
age, prior behavior while incarcerated, education, and
employment history, which are admissible under Morva. He
asserts that the court excluded the testimony simply because
Dr. Cunningham’s opinion was restricted to Lawlor’s risk of
dangerousness to “prison society” or “while in prison.” He
contends this was error because if sentenced to life
imprisonment, prison society would be the only society to which
he could pose a risk.
We previously considered and rejected this argument in
Lovitt v. Commonwealth, 260 Va. 497, 537 S.E.2d 866 (2000),
cert. denied, 534 U.S. 815 (2001). In that case we said,
Code § 19.2-264.2 requires that the jury make a
factual determination whether the defendant
“would commit criminal acts of violence that
72
would constitute a continuing serious threat to
society.” The statute does not limit this
consideration to “prison society” when a
defendant is ineligible for parole, and we
decline Lovitt's effective request that we
rewrite the statute to restrict its scope.
Id. at 517, 537 S.E.2d at 879. Thus, evidence concerning a
defendant’s probability of committing future violent acts,
limited to the penal environment, is not relevant to
consideration of the future dangerousness aggravating factor
set forth in Code §§ 19.2-264.2 and 19.2-264.4(C).
Accordingly, the excluded testimony ran afoul of Lovitt to
the extent it was offered to rebut evidence of the future
dangerousness aggravating factor. It expressed Dr.
Cunningham’s opinion of Lawlor’s risk of future violence in
prison society only, rather than society as a whole. To be
admissible as evidence rebutting the future dangerousness
aggravating factor under the statutes, expert opinion testimony
must not narrowly assess the defendant’s continuing threat to
prison society alone. The court therefore did not abuse its
discretion by excluding Dr. Cunningham’s testimony as rebuttal
evidence on the future dangerousness aggravating factor.
2. MITIGATING EVIDENCE
In assignments of error 179 and 189, Lawlor asserts that
even if Dr. Cunningham’s testimony was properly excluded as
73
rebuttal evidence, it should have been admitted as mitigating
evidence.
General conditions of prison life also are inadmissible as
mitigating evidence. Walker v. Commonwealth, 258 Va. 54, 70,
515 S.E.2d 565, 574 (1999), cert. denied, 528 U.S. 1125 (2000),
and Cherrix, 257 Va. at 309-10, 513 S.E.2d at 653. Our
determination that such evidence may properly be excluded was
based on the description of relevant mitigating evidence the
Supreme Court set forth in Lockett. As noted above in Claim 1,
that case did “not limit ‘the traditional authority of a court
to exclude, as irrelevant, evidence not bearing on the
defendant's character, prior record, or the circumstances of
his offense.’ ” Cherrix, 257 Va. at 309, 513 S.E.2d at 653
(quoting Lockett, 438 U.S. at 605 n.12). Evidence of general
prison conditions therefore may properly be excluded even as
mitigating evidence.
Significantly, though, Lockett made clear that
“ ‘consideration of the character and record of the individual
offender’ ” is required by the United States Constitution. 438
U.S. at 604 (quoting Woodson, 428 U.S. at 304). “[T]he
sentencer [must] not be precluded from considering, as a
mitigating factor, any aspect of a defendant's character or
record and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than death.”
74
Id. (emphasis in original). As noted above, future
adaptability evidence is relevant character evidence. Bell,
264 Va. at 201, 563 S.E.2d at 714. Nevertheless, future
adaptability evidence must be specific to the individual
defendant or relevant “as a foundation for an expert opinion.”
Id.; accord Juniper, 271 Va. at 427, 626 S.E.2d at 424.
In this context, a defendant’s probability of committing
violence, even when confined within a penal environment, is
relevant as mitigating evidence of his character and is
constitutionally mandated under Lockett, provided the evidence
establishing that probability arises specifically from his
character and is sufficiently personalized to him. As with
evidence rebutting the future dangerousness aggravating factor,
the relevant inquiry is narrowly focused on whether the
particular defendant is inclined to commit violence in prison,
not whether prison security or conditions of confinement render
him incapable of committing such violence. Unlike inclination
or volition, capacity – i.e., what a prisoner could do – is not
relevant to character.
Further, testimony relevant to a defendant’s propensity to
commit violence while incarcerated necessarily must be
personalized to the defendant based on his specific, individual
past behavior or record. Otherwise it cannot constitute
evidence of the defendant’s personal character and would be
75
irrelevant even for purposes of mitigation. See Morva, 278 Va.
at 350, 683 S.E.2d at 565; Juniper, 271 Va. at 426-27, 626
S.E.2d at 423-24.
We stress that characteristics alone are not character.
Merely extracting a set of objective attributes about the
defendant and inserting them into a statistical model created
by compiling comparable attributes from others, to attempt to
predict the probability of the defendant’s future behavior
based on others’ past behavior does not fulfill the requirement
that evidence be “peculiar to the defendant’s character,
history, and background” under Morva, 278 Va. at 350, 683
S.E.2d at 565. To the contrary, it is mere “statistical
speculation.” Porter, 276 Va. at 255, 661 S.E.2d at 442.
To satisfy Morva’s standard, the evidence must consist of
more than the recitation of shared attributes as the basis for
predicting similar behavior. Evidence of a defendant’s
objective attributes may be relevant as foundation for expert
opinion establishing his character, history, and background
under this standard. See Juniper, 271 Va. at 427, 626 S.E.2d
at 424; Bell, 264 Va. at 201, 563 S.E.2d at 714. However, the
mere fact that an attribute is shared by others from whom a
statistical model has been compiled, and that the statistical
model predicts certain behavior, is neither relevant to the
defendant’s character nor a foundation for expert opinion. See
76
Porter, 276 Va. at 255, 661 S.E.2d at 442. Merely stating that
the percentage of violent crimes committed by a specified
demographic group sharing one of the defendant’s attributes is
lower, based on statistical models, than others who do not
share it does not suffice.
Lawlor submitted a written proffer of questions he would
propound to Dr. Cunningham, and Dr. Cunningham’s expected
answers to them. The proffer contains the following proposed
exchanges:
1. Q: What is your expert opinion as to
how Mark Lawlor's behavior pattern
while [previously] in
custody/incarceration, impacts his
future prison adaptability?
A: Because of Mark Lawlor's prior
adaption in prison and jail, and
particularly because of his lack of
violent activity in these settings,
Mr. Lawlor represents a low
likelihood of committing acts of
violence while in prison.
2. Q: What is your expert opinion as to
how Mark Lawlor's age impacts his
future prison adaptability? Does
that opinion take into account the
fact that Mr. Lawlor committed his
current crime at age 43?
A: Because of Mark Lawlor's age of 45
years old, Mr. Lawlor represents a
low likelihood of committing acts of
violence while in prison. The fact
that Mr. Lawlor committed his
current offense at age 43 has been
taken into account in forming this
opinion, but it does not change my
opinion about his future prison
adaptability.
77
3. Q: What is your expert opinion as to
how Mark Lawlor's education impacts
his future prison adaptability? Is
this risk factor predictive of
violence in the free community as
well?
A: The fact that Mr. Lawlor has earned
his G.E.D. is predictive of a low
likelihood of committing acts of
violence while in prison. This risk
factor is far more predictive of
violent conduct in the prison
context than it is in the free
community context.
4. Q: What is your expert opinion as to
how Mark Lawlor's employment history
impacts his future prison
adaptability?
A: Mark Lawlor's employment history in
the community is predictive that Mr.
Lawlor represents a low likelihood
of committing acts of violence while
in prison.
5. Q: What is your expert opinion as to
how Mark Lawlor's continued contact
with his family and friends in the
community impacts his future prison
adaptability?
A: Mark Lawlor's continued contact with
these individuals while in prison,
is predictive that Mr. Lawlor
represents a low likelihood of
committing acts of violence while in
prison.
6. Q: What is your expert opinion as to
how Mark Lawlor's past correctional
appraisal impacts his future prison
adaptability?
A: Mark Lawlor's past correctional
appraisal is predictive that Mr.
Lawlor represents a low likelihood
of committing acts of violence while
in prison.
7. Q: What is your expert opinion as to
how Mark Lawlor's lack of gang
affiliation impacts his future
prison adaptability?
78
A: Mark Lawlor's lack of gang
affiliation is predictive that Mr.
Lawlor represents a low likelihood
of committing acts of violence while
in prison.
8. Q: Have you reached an opinion, to a
reasonable degree of psychological
certainty, based on all of the
factors relevant to your studies of
prison risk assessment, as to what
Mark Lawlor's risk level is for
committing acts of violence while
incarcerated? And if so, what is
your opinion?
A: Yes. It is my opinion based on my
analysis of all of the relevant risk
factors which are specific to Mr.
Lawlor's prior history and
background, that Mr. Lawlor
represents a very low risk for
committing acts of violence while
incarcerated.
9. Q: Are all of your opinions concerning
the above questions and answers
about Mr. Lawlor, grounded in
scientific research and peer-
reviewed scientific literature?
A: Yes.
Of these proffered answers, only the first meets the
standard for admissibility as future adaptability mitigating
evidence. The others merely (a) supply an item of demographic
data coupled with an unexplained, conclusory opinion that the
datum indicates Lawlor will present a low risk of violence
while incarcerated or (b) lay the foundation that the opinion
is based on statistical models. While each datum is extracted
from Lawlor’s personal history, it sheds no light on his
character, why he committed his past crimes and the crime for
79
which he stood convicted, or how would it influence or affect
his behavior while incarcerated. It therefore is not
personalized for the purposes of establishing future
adaptability. In short, the proffered testimony is not
probative of Lawlor’s “disposition to make a well-behaved and
peaceful adjustment to life in prison.” Skipper, 476 U.S. at
7. Accordingly, the circuit court did not abuse its discretion
in excluding these questions and answers.
While the first proffered answer would be admissible
because it establishes the fact that Lawlor did not engage in
violent behavior during past periods of incarceration, that
fact was already known to the jury through other evidence. For
example, Dr. Cunningham testified without objection that
Lawlor’s records of incarceration covered a period of 120
months of intermittent custody and the only violent behavior
recorded for the entire duration of that time was when he was
the victim of two fistfights in January 2009, for which he
incurred no disciplinary action. Dr. Cunningham also testified
that the Virginia Department of Corrections had classified
Lawlor as presenting a low likelihood of committing violence.
Because the excluded testimony was either cumulative or
inadmissible, the court did not abuse its discretion.
CLAIM 14: THE VILENESS AGGRAVATING FACTOR
80
This claim consists of 5 assignments of error asserting
that the circuit court erred by allowing the jury to consider
the vileness aggravating factor. 26
1. EXCLUSION OF EVIDENCE
Lawlor asserts in assignments of error 149 and 156 that
the trial court erred by excluding evidence that he originally
was charged with first-degree murder rather than capital
murder. 27 He argues that this evidence was relevant to rebut
the vileness aggravating factor. However, as explained below,
Lawlor did not present this argument to the court for its
consideration.
While Lawlor asserted in a hearing on March 8, 2011 that
the evidence subject to these assignments of error should be
admitted, he argued only that the records were relevant to show
his conduct in custody and because they “show[] the dates he
was brought in[to detention] and why he was brought in and
26
The aggravating factor commonly referred to as the
vileness factor provides that “a sentence of death shall not be
imposed unless the . . . jury shall . . . find . . . 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 . . . .” Code § 19.2-264.2;
accord Code § 19.2-264.4(C).
27
In assignment of error 123, Lawlor also generally
assigns error to the court’s “limiting and excluding evidence
. . . to rebut the Commonwealth’s allegation of vileness.”
Because he presents no argument about any rulings other than
those challenged in assignments of error 149 and 156, this
assignment of error is abandoned to the extent it is not
encompassed by them. Rule 5:27(d).
81
measures taken.” The court allowed all evidence showing
Lawlor’s conduct but excluded the portion that referred to the
original charge of first-degree murder having been superseded
by a charge of capital murder. Lawlor said, “Your Honor,
that’s fine. . . . I don’t intend to make the argument in any
more of a sophisticated way than I have. If the court
disagrees with me, I understand. I don’t want to go back and
forth but that’s why we offered it.”
On March 10, 2011, Lawlor filed a more nuanced, written
motion in which he raised the argument he makes on appeal:
that the original charge was relevant as rebuttal evidence to
the vileness aggravating factor. However, our review of the
record reveals that Lawlor never argued the written motion,
sought or obtained a ruling, or otherwise provided the court
with an opportunity to rule on it. We therefore will not
consider it. Rule 5:25; Scialdone v. Commonwealth, 279 Va.
422, 437, 689 S.E.2d 716, 724 (2010) (“[T]he provisions of Rule
5:25 protect the trial court from appeals based upon
undisclosed grounds. . . . In analyzing whether a litigant has
satisfied the requirements of Rule 5:25, this Court has
consistently focused on whether the trial court had the
opportunity to rule intelligently on the issue. If the
opportunity to address an issue is not presented to the trial
court, there is no ruling by the trial court on the issue, and
82
thus no basis for review or action by this Court on appeal.”
(citations, internal quotation marks, and alterations
omitted)).
2. CONSTITUTIONAL CHALLENGES
In assignments of error 2 and 4, Lawlor asserts that the
court erred by allowing the Commonwealth to seek a sentence of
death based on the vileness aggravating factor because it is
unconstitutionally vague. We have previously considered and
rejected these arguments. Gray v. Commonwealth, 274 Va. 290,
314-15, 645 S.E.2d 448, 463 (2007), cert. denied, 552 U.S. 1151(2008) (citing Wolfe v. Commonwealth, 265 Va. 193, 208, 576
S.E.2d 471, 480, cert. denied, 540 U.S. 1019 (2003) and Beck v.
Commonwealth, 253 Va. 373, 387, 484 S.E.2d 898, 907, cert.
denied, 522 U.S. 1018 (1997)). The circuit court did not err
in adhering to our controlling precedents. We also find no
reason to modify the views we previously expressed in them.
Lawlor also argues that the composite sub-factors to the
vileness aggravating factor must be individually proven beyond
a reasonable doubt and agreed upon unanimously by the jury. We
recently rejected this argument in Prieto II, 283 Va. at 180-
81, 721 S.E.2d at 503, which had not been decided at the time
of the proceedings in this case. The court’s ruling was
consistent with our holding in Prieto II and we decline
Lawlor’s invitation to revisit it.
83
CLAIM 9: JURY INSTRUCTIONS
In this claim, Lawlor challenges the instructions given to
the jury at the conclusion of the penalty phase in 4
assignments of error. 28 As noted above in Claims 7 and 13, we
review whether a jury instruction accurately states the
relevant law de novo. Summit Group Props., 283 Va. at 782, 724
S.E.2d at 721.
Even if accurate, a jury instruction may be given only if
it is supported by more than a mere scintilla of evidence,
Andrews, 280 Va. at 276, 699 S.E.2d at 263, when viewed in the
light most favorable to the proponent of the instruction.
Vaughn, 263 Va. at 33, 557 S.E.2d at 221. The proponent is
entitled to all reasonable inferences fairly deducible from the
evidence. Branham, 283 Va. at 279, 720 S.E.2d at 77.
Nevertheless, a court may exercise its discretion and properly
exclude an instruction that both correctly states the law and
is supported by the evidence when other “granted instructions
fully and fairly cover” the relevant principle of law. Daniels
v. Commonwealth, 275 Va. 460, 466, 657 S.E.2d 84, 87 (2008)
28
In assignment of error 160, Lawlor also generally
assigns error to the court’s denial of his proffered
instructions. Because he presents no argument about any
instructions other than those specifically identified in
assignments of error 162, 164, 165, and 168, this assignment of
error is abandoned to the extent it is not encompassed by them.
Rule 5:27(d).
84
(internal quotation marks omitted); Juniper, 271 Va. at 431,
626 S.E.2d at 426.
In assignment of error 168, Lawlor asserts that the court
erred by denying his motion to exclude the torture sub-factor
from Instructions S-2a and S-3a, relating to the vileness
aggravating factor, because there was no evidence that Orange
had been tortured. He cites Quintana v. Commonwealth, 224 Va.
127, 149, 295 S.E.2d 643, 654 (1982), a case in which the
circuit court eliminated the torture element although the
victim had been struck with a hammer 11 times.
“Torture” as set forth in the vileness aggravating factor
is not defined by statute. However, Virginia’s vileness
aggravating factor is identical to the State of Georgia’s
aggravating factor reviewed by the Supreme Court in Godfrey v.
Georgia, 446 U.S. 420 (1980). Compare Code §§ 19.2-264.2 and
19.2-264.4(C) with Godfrey, 446 U.S. at 422 (quoting Ga. Code
Ann. § 27-2534.1(b)(7) (1978)). The Supreme Court of Georgia
has defined the torture element of its statute:
[T]orture occurs when a living person is
subjected to the unnecessary and wanton
infliction of severe physical or mental pain,
agony or anguish. Besides serious physical
abuse, torture includes serious sexual abuse or
the serious psychological abuse of a victim
resulting in severe mental anguish to the victim
in anticipation of serious physical harm.
85
West v. State, 313 S.E.2d 67, 71 (Ga. 1984) (appendix). 29
Courts of last resort in other states have similarly
formulated definitions of torture that include physical and
psychological aspects. E.g., State v. White, 668 N.W.2d 850,
857 (Iowa 2003) (“‘[T]orture’ is either physical and/or mental
anguish.”); State v. Ross, 646 A.2d 1318, 1361 (Conn. 1994)
(holding torture may be psychological as well as physical).
But cf. Newman v. State, 106 S.W.3d 438, 461 (Ark. 2003)
(reciting a statutory distinction between torture and mental
anguish under Ark. Code Ann. § 5-4-604(b)(B)(ii)). The
psychological aspect of torture may be established, for
example, “where the victim is in intense fear and is aware of,
but helpless to prevent, impending death . . . for an
appreciable lapse of time.” Ex parte Key, 891 So. 2d 384, 390
(Ala. 2004).
29
“Aggravated battery” is also undefined by Virginia
statute, though it was and remains a statutory offense in
Georgia. Godfrey, 446 U.S. at 431 n.13 (citing Ga. Code Ann.
§ 26-1305 (1978)); see also West, 313 S.E.2d at 69; Ga. Code
Ann. § 16-5-24(a). The elements of that statutory offense
define aggravated battery for the purpose of establishing the
aggravating factor under Georgia law. West, 313 S.E.2d at 71
(appendix). Similarly, though “depravity of mind” is undefined
by statute in both Virginia and Georgia, the Georgia Supreme
Court has defined it as “a reflection of an utterly corrupt,
perverted or immoral state of mind.” Id. The meanings of
these two terms for the purposes of the Virginia vileness
aggravating factor are not at issue in Lawlor’s appeal and we
express no opinion on them.
86
In this case, unlike Quintana, the medical evidence of
aspirated blood and defensive wounds established that Orange
was alive and conscious during some of the 47 blows she
sustained. Viewed in the light most favorable to the
Commonwealth, the proponent of the instructions, there is more
than a mere scintilla of evidence that Orange was tortured
within the meaning of Code §§ 19.2-264.2 and 19.2-264.4(C).
Accordingly, the court did not err in giving the proposed
instructions.
In assignment of error 164, Lawlor asserts that the court
erred by denying his proposed Instruction S-A. He argues that
the Commonwealth’s Instructions S-2a and S-3a erroneously
instructed the jurors that they could not impose a sentence of
life imprisonment unless they found that a sentence of death
was not justified. In particular, he challenges the portion of
the two instructions that included the language:
However, even if you find that the Commonwealth
has proved [one or] both of the aggravating
factors beyond a reasonable doubt and the jury
has so found unanimously, if you nevertheless
believe from all the evidence, including
evidence in mitigation, that the death penalty
is not justified, then you shall fix the
punishment of the defendant at [life
imprisonment].
However, this argument is not within the scope of the
assignment of error.
87
Assignment of error 164 states, “The trial court erred in
denying Mr. Lawlor’s proffered penalty phase instruction S-A
regarding whether the jury may impose a sentence of life even
if it is unanimous regarding the factors necessary to impose a
sentence of death.” Neither this nor any other assignment of
error challenges the Commonwealth’s proposed instructions on
the basis that they misled the jurors into believing they could
not impose a sentence of life imprisonment. We consider only
arguments within the scope of the assignment of error. Rule
5:27(d); Teleguz v. Commonwealth, 273 Va. 458, 484, 643 S.E.2d
708, 725 (2007), cert. denied, 552 U.S. 1191 (2008). We
therefore do not consider whether Instructions S-2a and S-3a
misled the jurors into believing they could not impose a
sentence of life imprisonment.
In assignment of error 162, Lawlor asserts that the court
erred by denying his proposed Instruction S-L. He again argues
that the instruction would have remedied alleged defects in
Instructions S-2a and S-3a which, according to Lawlor, misled
the jurors about their ability to impose a sentence of life
imprisonment. However, this argument is again outside the
scope of the assignment of error.
Assignment of error 162 states, “The trial court erred in
denying Mr. Lawlor’s proffered penalty phase instruction S-L
and in failing to instruct the jury that a sentence of life
88
without the possibility of parole is the default sentence for
capital murder.” As noted above, no assignment of error
challenges Instructions S-2a and S-3a on the ground that they
misled the jurors about their ability to impose a sentence of
life imprisonment. Because Lawlor’s argument is again outside
the scope of the assignment of error, we will not consider it.
Rule 5:27(d); Teleguz, 273 Va. at 484, 643 S.E.2d at 725.
In assignment of error 165, Lawlor asserts that the court
erred by denying his proposed Instruction S-C. However, there
is only one Instruction S-C in the record and it is marked
“granted.” To the extent Lawlor offered another Instruction S-
C that was denied, it appears in neither the joint appendix nor
the manuscript record. 30 “We cannot review the ruling of a
lower court for error when the appellant does not . . . provide
us with a record that adequately demonstrates that the court
erred.” Prince Seating Corp., 275 Va. at 470, 659 S.E.2d at
307. Consequently, we cannot consider this assignment of
error.
CLAIM 2: IMPRISONMENT FOR LIFE WITHOUT PAROLE
This claim consists of 11 assignments of error asserting
that through rulings on jury instructions and answers to
questions from the jury during its penalty phase deliberations,
30
The record does include a description of language from
an alternative Instruction S-C but the entire, verbatim
instruction is not clear.
89
the circuit court erred by misleading the jurors into believing
that Lawlor could be released from prison if they imposed a
sentence of life imprisonment. 31
1. JURY INSTRUCTIONS
As noted above in Claims 7, 9, and 13, we review jury
instructions “to see that the law has been clearly stated and
that the instructions cover all issues which the evidence
fairly raises.” Cooper, 277 Va. at 381, 673 S.E.2d at 187
(internal quotation marks omitted). A court may in its
discretion properly exclude an instruction when other
instructions fully and fairly cover the relevant principle of
law. Daniels, 275 Va. at 466, 657 S.E.2d at 87.
31
In assignment of error 186, Lawlor asserts the court’s
error also extended to rulings and comments during Dr.
Cunningham’s testimony. However, he cites to no place in the
record where the court made such rulings and comments or where
he preserved objection to them. Accordingly, we do not
consider this assignment of error. Rule 5:27(c). The court’s
rulings during Dr. Cunningham’s testimony are also included in
assignment of error 187, but we likewise do not consider that
portion of it. Id.
Similarly, in assignments of error 193 and 194, he asserts
that the court also erred by misleading the jurors that they
could not consider his risk of future dangerousness in prison
in rulings relating to jury selection and Dr. Cunningham’s
testimony. Again, he cites to no place in the record where the
court made such rulings and comments or where he preserved
objection to them. Accordingly, we do not consider those
portions of these assignments of error. Id. In addition, his
argument on jury instructions is limited to his assertion that
they misled the jury into believing he would not spend his
sentence in prison if sentenced to life imprisonment. The
portions of these assignments of error relating to jury
instructions therefore are abandoned. Rule 5:27(d).
90
In assignment of error 167, Lawlor asserts that the court
erred by granting the Commonwealth’s proposed Instruction S-8a
relating to the future dangerousness aggravating factor. He
argues that the instruction failed to inform the jury that he
would spend the rest of his life in prison if not sentenced to
death. In considering Lawlor’s objection to the instruction,
the court observed that other granted instructions informed the
jury that a sentence of life imprisonment meant life without
parole and declined to add the information to Instruction S-8a.
Instruction S-4, which the court granted, stated, “The
words ‘imprisoned for life’ mean imprisonment for life without
possibility of parole.” This instruction adequately informed
the jury of the law and the court did not err in declining to
modify Instruction S-8a as Lawlor suggested.
In assignment of error 187, Lawlor asserts that the court
erred by denying his proposed Instruction S-J. That
instruction stated, “The words ‘imprisonment for life’ mean[]
imprisonment for life without possibility of parole. In other
words, if sentenced to life imprisonment, Mark Lawlor will
never be released on parole.” The jury was adequately informed
of the meaning of life imprisonment by Instruction S-4, which
the court granted. The court therefore did not abuse its
discretion by refusing Lawlor’s proffered instruction.
91
2. ANSWERS TO JURY QUESTIONS
In assignments of error 187, 193, 194, 195, 196, 198, 199,
200, and 202, Lawlor asserts that the court erred by answering
the jury’s questions during its penalty phase deliberations.
We review the court’s answers to questions propounded by the
jury for abuse of discretion. Marlowe v. Commonwealth, 2 Va.
App. 619, 625, 347 S.E.2d 167, 171 (1986).
The jury asked three questions. The initial question was,
“Re: ‘Continuing threat to society[,]’ Society means prison
society, or society in general?” The court answered, “Society
is not limited to ‘prison society’ but includes all society;
prison and society in general. Your focus must be on the
particular history and background of the defendant, Mark
Lawlor, and the circumstances of his offense.” Lawlor
expressly consented to the court’s answer. Thus, to the extent
these assignments of error encompass that answer, they are not
preserved. Rule 5:25.
Thereafter, the jury asked two follow-up questions
simultaneously. The first follow-up question was “Are we to
consider ‘society in general’ is free society or Mark Lawlor as
a prisoner in society inside & outside the wire?” In response,
the court directed the jury to its answer to its first question
and reiterated, “Society means all of society. All of society
92
includes prison society as well as non-prison, i.e., all
society.”
Lawlor objected to the court’s answer, arguing that a
sentence of life imprisonment means life without the
possibility of parole and the only relevant society therefore
was prison society. The court overruled his objection because
the jury already had been instructed that life imprisonment
means life without parole and because the relevant inquiry is
society in general, not prison society.
The second follow-up question was “If imprisoned for life,
what physical constraints would Mark Lawlor be under outside of
his cell while exposed to other persons? Inside prison?
Outside prison?” The court responded, “The circumstances of
Mr. Lawlor once he is delivered to the Department of
Corrections is not a matter [with] which you should concern
yourself.”
Lawlor again objected, arguing that prison conditions
could be relevant mitigating evidence. He also argued that the
question asked only about imprisonment for life rather than
imprisonment for life without parole. The court ruled that the
conditions of confinement were not relevant to the jury’s
deliberations and again ruled that other instructions informed
them that life imprisonment meant life without parole.
93
Instruction S-4 adequately informed the jury that life
imprisonment meant life without parole. Further, in Lovitt, we
expressly determined that “society” for the purposes of the
future dangerousness aggravating factor was society as a whole,
not merely prison society. 260 Va. at 517, 537 S.E.2d at 879.
We reaffirm that holding in Claim 3 of this case. Finally, we
ruled that the general conditions of confinement and prison
security are not relevant either to future dangerousness or as
mitigating evidence in Morva, 278 Va. at 350, 683 S.E.2d at
565, Juniper, 271 Va. at 425-27, 626 S.E.2d at 423-24, Bell,
264 Va. at 201, 563 S.E. 2d at 714, Walker, 258 Va. at 70, 515
S.E.2d at 574, Cherrix, 257 Va. at 310, 513 S.E.2d at 653, and
in Claims 3 and 4 of this case. Accordingly, the court did not
abuse its discretion by overruling Lawlor’s objections.
D. GENERAL STATUTORY AND CONSTITUTIONAL CHALLENGES
CLAIM 10: THE CONSTITUTIONALITY OF CODE § 19.2-264.5
This claim consists of 7 assignments of error challenging
Code § 19.2-264.5 generally and as the circuit court applied it
in Lawlor’s case.
1. FACIAL UNCONSTITUTIONALITY
In assignment of error 7, Lawlor asserts that the court
erred by denying his motion to declare Code § 19.2-264.5
unconstitutional. The statute states that “upon good cause
shown, the court may set aside the sentence of death and impose
94
a sentence of imprisonment for life.” Code § 19.2-264.5
(emphasis added). He argues that permitting the court such
discretion is unconstitutional.
We have previously considered and rejected Lawlor’s
argument. Prieto I, 278 Va. at 416, 682 S.E.2d at 937 (citing
Juniper, 271 Va. at 389, 626 S.E.2d at 401, Teleguz, 273 Va. at
474, 643 S.E.2d at 719, and Breard v. Commonwealth, 248 Va. 68,
76, 445 S.E.2d 670, 675-76, cert. denied, 513 U.S. 971 (1994)).
The circuit court did not err in adhering to our controlling
precedents. We also find no reason to modify the views we
previously expressed in them.
2. UNCONSTITUTIONAL AS-APPLIED
Lawlor also asserts in assignments of error 207, 208, 209,
and 210 that the court erred in the exercise of its discretion
under the statute because it considered improper factors in
denying his motion to set aside the jury’s recommendation.
Specifically, Lawlor argues that the court erred by considering
the defense strategy and representations in pre-trial motions,
finding that Lawlor had not expressed remorse, and noting that
Lawlor did not testify on his own behalf in the penalty phase. 32
32
In assignment of error 206, Lawlor also generally
assigns error to the court’s failure to find good cause to set
aside the jury’s recommendation and impose a sentence of life
imprisonment. The brief contains no independent argument on
this assignment of error. Consequently, to the extent it is
not encompassed by his other assignments of error, it is
95
Code § 19.2-264.5 requires the preparation of a post-
sentence report prior to the imposition of a sentence of death.
“After consideration of the report, and upon good cause shown,
the court may set aside the sentence of death and impose a
sentence of imprisonment for life.” Code § 19.2-264.5. We
review a trial court’s decision on a motion to set aside a
sentence of death for abuse of discretion. See Yarbrough v.
Commonwealth, 262 Va. 388, 398, 551 S.E.2d 306, 312 (2001)
(noting the trial court’s authority under Code § 19.2-264.5 to
set aside a jury’s sentence of death is discretionary), cert.
denied, 535 U.S. 1060 (2002).
As noted above in Claim 4, there are “three principal
ways” by which a court abuses its discretion: “when a relevant
factor that should have been given significant weight is not
considered; when an irrelevant or improper factor is considered
and given significant weight; and when all proper factors, and
no improper ones, are considered, but the court, in weighing
those factors, commits a clear error of judgment.” Landrum,
282 Va. at 352, 717 S.E.2d at 137 (internal quotation marks
omitted).
abandoned. Rule 5:27(d). Similarly, in assignment of error
213, Lawlor generally assigns error to the court’s denial of
his motion to suspend or vacate the final judgment but provides
no argument relating to that motion. Therefore, to the extent
this assignment of error is not encompassed by the others, it
too is abandoned. Id.
96
The court clearly set forth its basis for denying Lawlor’s
motion:
So, I have reviewed all of the evidence,
all of the materials, the voluminous materials,
the letters in support of you, the research
articles submitted, and all of the other offered
materials proffered in the presentations by your
counsel in the sentencing phase.
This was done despite the large quantity of
material that was delivered only a few days ago.
I have reviewed all of the Phase II
litigation testimony of more than 50--I think
the total is 51 witnesses presented by the
defense at trial. I’ve considered the pre-
sentence report as well as the statements you’ve
made, the arguments of your attorneys, arguments
of the Commonwealth.
There simply has not been a document
submitted on behalf of either the Commonwealth
or the Defendant that has not been reviewed by
the Court.
The jury in this case was selected after a
multi-week voir dire, and was selected and
approved by both the Commonwealth and the
Defendant as to composition of membership.
Over a period of 31 trial days this jury
heard the evidence in the guilt [or] innocence
phase of this trial, including . . . your
admission through counsel that you were the
perpetrator of this horrific, vile, and
unnecessarily cruel and vicious criminal act on
Ginny Orange on September 24th, 2008.
Thereafter, the jury found by a unanimous
vote that you were guilty of the capital murder
as alleged in both count one and count two.
I have before me both Exhibit 1 and Exhibit
2 from the trial. Exhibit 1 is a picture of Ms.
Orange in life and Exhibit 2 is a picture of Ms.
97
Orange in death. Only discretion prevents me
from showing those to you because there are
citizens in the courtroom.
In Phase II of this trial, the jury was
presented with and heard over 50 mitigation
witnesses presented by the Defense in Phase II.
The jury thereafter deliberated for several
days and they reviewed the evidence and the
argument of both the Commonwealth and the
Defendant. The jury reached their unanimous
verdict with the determination that under the
facts of this case, the appropriate sentence
under the law was the imposition of the death
penalty for each of the two counts in the
indictment.
I note that upon the reentry of the jury in
to the court to deliver their verdict in Phase
II, it was clear and obvious that the jury was,
I guess the word is distraught, or better word,
emotionally drained, and in fact several of the
jurors were in tears.
It is clear evidence of the heavy emotional
burden placed upon 12 citizens in a capital
prosecution, and the seriousness and
deliberation with which they addressed their
civic duty as jurors.
There simply are no mitigating facts in
this case that would convince the Court that the
jury failed to properly consider any evidence in
this litigation submitted by the defense.
There was abundant evidence and the jury’s
conclusion that the two crimes as charged
contained both the presence of a continuing
threat and a violence factor, which has not been
discussed today at all in this hearing, and thus
warranted punishment by the imposition of death.
Counsel argues that the Defendant has
accepted responsibility and the Defendant has
said that today. Although I note for the record
that over 22 months the defense position was
98
that someone else had committed this act . . . .
Even[] as late as December 9th of 2010, the
defense was asking for funds to send an
investigator to Uruguay to interview one Rafael
Delgado, who they at least intimated was
involved in this crime.
It was only on January 13th in the opening
statements that counsel for the Defendant
accepted some responsibility.
Mr. Lawlor, I find today, and it is a
difficult finding, I will admit to you, no
reason to intercede and sentence you contrary to
the recommendations of the jury in either count
one or count two.
Today the Court affirms and imposes those
sentences.
The record also indicates that the court prefaced its
remarks by observing that Lawlor did not express remorse prior
to sentencing. Lawlor points to a number of statements in
which he expressed remorse, but these statements were contained
in or attached as exhibits to a pleading filed on June 17,
2011, less than a week prior to the court’s June 23 hearing.
This 6-day interlude is a distinction without a difference for
the purposes of reviewing the court’s statement that “up until
today, there has not been a scintilla of remorse,” particularly
when the court expressly noted that it had reviewed these
statements when referring to “the large quantity of material
that was delivered only a few days ago.”
However, the record also indicates that the court
considered Lawlor’s pre-trial motions for funding to send an
99
investigator to Uruguay to interview and collect DNA from
Delgado, whom Lawlor at the time asserted may have committed
the murder as principal in the first degree. In addition, the
court commented that Lawlor “continued to deny [responsibility]
for over 22 months of pretrial investigations, in motions,
[and] pleadings by the defense team.” It also stated that he
accepted responsibility “only on January 13th in the opening
statements.”
While it is proper for a court to consider a defendant’s
“present tense refusal to accept responsibility, or show
remorse,” Jennings v. State, 664 A.2d 903, 910 (Md. 1995)
(emphasis added), it may not be linked to his “prior claim of
innocence or not guilty plea or exercise of his right to remain
silent.” Saenz v. State, 620 A.2d 401, 407 (Md. Ct. Spec. App.
1993). See also Smith, 27 Va. App. at 362-63, 499 S.E.2d at
13-14 (citing Jennings and Saenz). Lawlor’s defense strategy
in the 22 months preceding trial, including his assertion that
Delgado may have committed the murder and the concomitant
denial of responsibility it implied, was not an appropriate
factor to consider in weighing Lawlor’s sense of remorse at the
time of sentencing. Simply put, a defendant must not be
penalized at sentencing for having mounted a legal defense to
100
the charge against him. 33 See Bordenkircher v. Hayes, 434 U.S.
357, 363 (1978) (“To punish a person because he has done what
the law plainly allows him to do is a due process violation of
the most basic sort.”).
Nevertheless, the consideration under Code § 19.2-264.5 is
whether there is good cause to set aside the jury’s sentences
of death; the court correctly noted that the question before it
was whether to intercede and overrule the jury’s determination.
It is clear from the record that in evaluating that question
the court considered and gave the greatest weight to the
statutory sentencing report; the evidence adduced at trial,
including Lawlor’s mitigating evidence in the penalty phase;
the duration of voir dire and the resulting impartiality of the
jury; the seriousness with which jurors undertook and completed
their deliberations; the jury’s finding of both aggravating
factors; and the egregiousness of the offense. These are all
proper factors for the court’s consideration. While Lawlor’s
defense strategy was not a proper factor, the court did not
give it significant weight in relation to the many other
factors stated from the bench when it determined that Lawlor
had not shown good cause to set aside the jury’s sentences.
33
As noted, whether the defendant expresses remorse at
sentencing is a proper factor for consideration and the trial
court may weigh the credibility of any such expression,
provided it does not consider the defendant’s prior legal
positions when doing so.
101
Accordingly, the court did not abuse its discretion in denying
Lawlor’s motion. Landrum, 282 Va. at 352-53, 717 S.E.2d at
137.
CLAIM 15: NARROWING THE CLASS OF CAPITAL OFFENSES
This claim consists of a single assignment of error,
assignment of error 20, in which Lawlor asserts that the
circuit court erred by denying his motion to declare Code
§ 18.2-31 unconstitutional for failing to narrow the class of
murders for which a sentence of death may be imposed. He
contends that the number of offenses defined as capital murder
in the statute has increased to the point that it no longer
satisfies the requirements of Gregg v. Georgia, 428 U.S. 153(1976), Godfrey v. Georgia, 446 U.S. 420 (1980), and Zant v.
Stephens, 462 U.S. 862 (1983). We review this issue de novo.
Gallagher, 284 Va. at 449, 732 S.E.2d at 24 (2012).
Lawlor’s argument is without merit. In Furman v. Georgia,
408 U.S. 238 (1972), the Supreme Court determined that
arbitrary imposition of the death penalty was unconstitutional.
States responded by narrowing the class of defendants on whom a
sentence of death could be imposed. For example, in Texas such
a sentence could be imposed after conviction for one of only
five categories of murder. Jurek v. Texas, 428 U.S. 262, 268
(1976), overruled on other grounds by Abdul-Kabir, 550 U.S. at
258. The Court determined that limiting the type of murder for
102
which a sentence of death could be imposed was sufficient for
Furman purposes. Jurek, 428 U.S. at 276.
By contrast, in Georgia every murder was punishable by
either death or life imprisonment. Gregg, 428 U.S. at 196.
Nevertheless, that state narrowed the imposition of a sentence
of death to those cases in which a jury found at least one of
ten statutory aggravating factors beyond a reasonable doubt.
The Court determined that requirement eliminated the
opportunity the Furman jury had to impose a sentence of death
arbitrarily, “without guidance or direction.” Id. at 196-97.
In Godfrey, the Court reiterated its holding in Gregg that
“if a State wishes to authorize capital punishment it has a
constitutional responsibility to tailor and apply its law in a
manner that avoids the arbitrary and capricious infliction of
the death penalty.” 446 U.S. at 428. “It must channel the
sentencer’s discretion by clear and objective standards that
provide specific and detailed guidance, and that make
rationally reviewable the process for imposing a sentence of
death.” Id. (internal quotation marks and footnotes omitted).
While the Court reversed the death sentence imposed in
Godfrey, it did so because it determined that the sole
aggravating factor upon which the sentence had been imposed had
been applied unconstitutionally. Id. at 432-33. Notably, it
did not reverse on the ground that Georgia law extended the
103
potential imposition of a sentence of death to too many
offenses. To the contrary, in Zant, the Supreme Court
reaffirmed the principle that appropriate aggravating factors
may be sufficient to narrow the class of defendants upon whom a
sentence of death may be imposed. 462 U.S. at 878-79.
In short, states may avoid the arbitrary imposition of the
death penalty either by restricting the types of murder
constituting capital offenses or by setting forth aggravating
factors which must be proved prior to the imposition of a
sentence of death. By specifying certain offenses as capital
murder in Code § 18.2-31 and setting forth aggravating factors
in Code §§ 19.2-264.2 and 19.2-264.4(C), Virginia has done
both. Accordingly, the statutory aggravating factors set forth
in Code §§ 19.2-264.2 and 19.2-264.4(C) satisfy the
constitutional obligation to narrow the cases in which a
sentence of death may be imposed regardless of the number of
offenses defined as capital murder in Code § 18.2-31. The
court therefore did not err in denying Lawlor’s motion.
CLAIM 16: CRUEL AND UNUSUAL PUNISHMENT
This claim consists of a single assignment of error,
assignment of error 204, in which Lawlor asserts that the
circuit court erred by denying his motion to bar the imposition
of a sentence of death because both of the Commonwealth’s
methods of execution constitute cruel and unusual punishment.
104
He also argues that an evidentiary hearing was necessary to
ascertain the changes made to its lethal injection protocol
since our last review.
Code § 53.1-234 allows a prisoner who has been sentenced
to death to elect whether the sentence will be executed by
electrocution or lethal injection; if the prisoner fails to
make a timely election, the statute directs that the sentence
be executed by lethal injection. We have consistently ruled
that execution by electrocution is constitutionally
permissible. Porter, 276 Va. at 238, 661 S.E.2d at 432
(quoting Bell, 264 Va. at 203, 563 S.E.2d at 715-16); Orbe v.
Johnson, 267 Va. 568, 570, 601 S.E.2d 543, 545 (2004) (“Orbe
II”). When a prisoner sentenced to death may choose to have
his sentence executed through a constitutionally permissible
method, we will not consider a constitutional challenge to an
alternative choice. Porter, 276 Va. at 237, 661 S.E.2d at 432
(“When a condemned prisoner has a choice of method of
execution, the inmate may not choose a method and then complain
of its unconstitutionality, particularly when the
constitutionality of the alternative method has been
established.”) (quoting Orbe II, 267 Va. at 570, 601 S.E.2d at
546). Accordingly, we will not reverse the court’s ruling.
CLAIM 17: LACK OF MEANINGFUL APPELLATE REVIEW
105
This claim consists of a single assignment of error,
assignment of error 8, in which Lawlor asserts that the circuit
court erred by denying his motion to declare the Commonwealth’s
capital punishment statutory scheme unconstitutional because it
fails to provide defendants with an opportunity for meaningful
appellate review. We have previously considered and rejected
Lawlor’s arguments. Morrisette v. Commonwealth, 264 Va. 386,
398, 569 S.E.2d 47, 55-56 (2002), cert. denied, 540 U.S. 1077(2003); Bailey v. Commonwealth, 259 Va. 723, 742, 529 S.E.2d
570, 581, cert. denied, 531 U.S. 995 (2000). The circuit court
did not err in adhering to our controlling precedents. We also
find no reason to modify the views we previously expressed in
them.
III. REVIEW UNDER CODE § 17.1-313(C)
Code § 17.1-313(C) requires us to review every sentence of
death and “consider and determine: [(1) w]hether the sentence
of death was imposed under the influence of passion, prejudice
or any other arbitrary factor; and [(2) w]hether the sentence
of death is excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the
defendant.” Lawlor presents his argument relating to this
review in his eighteenth and final claim. While we consider
Lawlor’s arguments concomitantly with our statutory review,
they do not restrict its scope. Code § 17.1-313(F).
106
A. PASSION, PREJUDICE, OR OTHER ARBITRARY FACTORS
In assignment of error 214, Lawlor asserts that the
sentences of death were imposed under the influence of
prejudice and an arbitrary factor, i.e., mistake. In
particular, he cites the trial court’s references to his
decision not to testify and his counsel’s advocacy. He also
argues that the jury’s sentences were made without the evidence
of his remorse and his asserted lack of risk of future
dangerousness excluded by the court’s rulings.
We have addressed each of these arguments above and have
found no reversible error. In addition, we have reviewed the
errors Lawlor assigns to the judgment of the trial court to
ascertain whether they suggest prejudice when considered
cumulatively. See Porter, 276 Va. at 266, 661 S.E.2d at 448
(citing Waye v. Commonwealth, 219 Va. 683, 704, 251 S.E.2d 202,
214 (1979)). We conclude that they do not.
Expanding our review beyond the scope of Lawlor’s
argument, we have thoroughly reviewed the record as mandated by
Code § 17.1-313(C)(1). Nothing therein suggests that the jury
failed to consider fully all evidence adduced in both the guilt
and penalty phases of trial, including Lawlor’s relevant
mitigating evidence. Likewise, nothing suggests any improper
influence in imposing the sentences of death. Accordingly, we
conclude that there is no indication that the sentences were
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imposed under the influence of passion, prejudice, or any other
arbitrary factor.
B. EXCESSIVE OR DISPROPORTIONATE SENTENCE
In assignment of error 215, Lawlor asserts that, although
his crime was terrible, it does not compare to those this Court
routinely sees in capital cases. However, that is not the
standard set forth in the statute. Rather, we “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.” Morva, 278 Va.
at 354, 683 S.E.2d at 567 (quoting Lovitt, 260 Va. at 518, 537
S.E.2d at 880) (internal quotation marks omitted). “This
review is not designed to ensure complete symmetry among all
death penalty cases. Rather, the goal of the review is to
determine if a sentence of death is aberrant.” Prieto II, 283
Va. at 188-89, 721 S.E.2d at 507-08 (quoting Porter, 276 Va. at
267, 661 S.E.2d at 448 (internal citation, alteration, and
quotation marks omitted).
Pursuant to Code § 17.1-313(C)(2) and (E), we examined
similar cases in which a sentence of death was imposed
following a conviction for capital murder in the commission of
abduction with intent to defile or a conviction for capital
murder in the commission of or subsequent to rape or attempted
rape. Our review was especially attentive to those cases in
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which both aggravating factors were found, including Vinson v.
Commonwealth, 258 Va. 459, 522 S.E.2d 170 (1999), cert. denied,
530 U.S. 1218 (2000), Prieto II, and the cases cited therein.
Barnabei v. Commonwealth, 252 Va. 161, 477 S.E.2d 270(1996), cert. denied, 520 U.S. 1224 (1997), and Payne v.
Commonwealth, 257 Va. 216, 509 S.E.2d 293 (1999), are
particularly analogous in that they each involve victims of
rape or attempted rape who suffered multiple blows from blunt
objects. Swisher v. Commonwealth, 256 Va. 471, 506 S.E.2d 763(1998), cert. denied, 528 U.S. 812 (1999), is similarly
noteworthy in that both capital murder in the commission of
abduction with intent to defile and capital murder in the
commission of rape were charged in that case as they were in
Lawlor’s.
We also reviewed capital murder cases in which a sentence
of life imprisonment was imposed. Based on the totality of
this review, we find that the sentences of death imposed in
this case were not excessive or disproportionate to sentences
imposed in capital murder cases for comparable crimes.
IV. CONCLUSION
We find no error in the judgment of the circuit court.
Accordingly, we affirm the convictions for capital murder and
the sentences of death returned by the jury and the judgment
entered by the court.
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Affirmed.
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