Lawlor v. Warden

VIRGINIA:
~ tk../~ gown- o/r~ kid rd tk../~ gown- f?lJ~ m tk
gityo/~(Nl, Friday tk 31st ckyO/ October, 2014.
?resent: All Justices
Mark c Lawlor, Petitioner,
against Record No. 131972
Keith W. Davis, Warden, Sussex I
State Prison, Respondent.
Upon a Petition for a Writ of Habeas Corpus
Upon consideration of the petition for a writ of habeas corpus
filed December 16, 2013, and the respondent's motion to dismiss,
the Court is of the opinion that the motion should be anted
that the wr should not issue.
Mark Eric Lawlor was convicted in the rcuit Court of Fairfax
County of capital murder in commission of, or subsequent to,
r or attempted rape, Code § 18.2-31(5), and capital murder
the commission of abduction with ent to defile, Code § 18.2­
31(1), and was sentenced to ath on each conviction. This Court
affirmed Lawlor's convictions upheld his sentences of de in
Lawlor v. Commonwealth, 285 Va. 187, 738 S.E.2d 847, cert. den
U.S. , 134 S. Ct. 427 (2013).
The victim, Genevieve Or ,was found on the floor of the
living area of her studio apartment. door to Orange's
apartment was unlocked and there were no signs of forced entry.
Orange had been struck at least 47 t s with one or more blunt
objects. Some of Orange's wounds were consistent with having been
struck wi a frying Others were consistent with having en
struck th a hammer. eauent cal examinat established
that had aspirated blood and sustained defensive wounds to
her hands arms, eating she been alive conscious
during some part of the beating.
's body lay near her couch, which was saturated with
blood. 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 right thigh. Her soi bloodi sand
underpants had been f to the floor nearby. A metal
was found near Orange's body. Its wooden handle broken off and
was found the kitchen sink, near a bent and bloody metal frying
pan.
Lawlor resided in Orange's apartment building. He also worked
there as a leasing consultant and had access to ke to each
apartment. Testing of semen on Orange's abdomen and thigh
showed DNA consistent th Lawlor's DNA. At trial, Lawlor's
atto admitted or had kill Orange, but contested the
allegations of premeditation, rape abduction.
CLAIMS (I), (II) & (V)
In claims (I) and (II), Lawlor alleges the Commonwealth failed
to disclose exculpatory information as required by Brady v.
Ma
~~L. ........ _ _
, 373 U.S. 83
(1963), and sented false testimony or
allowed it to go uncorrected in violation of v. Illinois 360
U.S. 264 (1959), and Gi lio v. Unit States, 405 U.S. 150 (1972).
As Court has stated previously:
[], the United States reme Court held that
"the prosecution of evidence favorable to
an accused upon reauest violates due process where the
2
evidence is material either to guilt or to punishment,
irrespect of the good ith or bad faith of the
secution." [373 U.S.] at 87.
Exculpatory e dence is material if there is a rea Ie
probability that the outcome of the oceeding would have been
different the evidence been disclosed to the defense. "A
reasonable is one which is sufficient to
in the outcome of proceeding.
Muhammad v. Warden, 274 Va. 3, 4, 646 S.E.2d 182, 186 (2007)
(citations tted) . Furthermore, s Court has previously held
that, "to find that a violation of Napue occurred . , we must
dete ne first t the testimony [at issue] was false, second
that the secution knew of the lsity, and finally that
falsity af the jury's judgment." Tele z v. Commonwealth,
273 Va. 458, 4 643 S.E.2d 708, 729 (2007).
In a portion of claims (I) (II), Lawlor alleges Detective
John Tuller lied in his curriculum v which Commonwealth
submitted to t defense pursuant to § 19.2-264.3:4, with its
notice of intent to introduce e rt testimony. The notice named
Tuller as the Commonwealth's rt in bloodstain pattern
interpretation. In his curriculum vitae, Tuller stated he had
testified as an expert in b tain tern inte ation in six
cases. However, two of the cases Tuller ified,
testified only as a ct witness. Tuller further stated was a
current member of the International Association of Bloodstain
Pattern Analysts (IABPA). However, Tuller's membersh with the
IABPA had expired. Tuller cIa d he attended a crime scene
investigation seminar at the Miami Metro-Dade Police Training
Institute. However, the Mi Metro- Police rtment has no
3
record of his attendance. Finally, Tuller r sented t in 2003
he attended the 3loodstain Users Group S nar at the Vi nia
Jepartment of Forensic Science (DFS). However, DFS ed ever
prese~t such a s nar.
The Court rejects these portions of cla (I) and (II). The
reco , including the affidavits of Lawlor's counsel and the
manuscript record, demonstrates that the alleged inconsistencies in
Tuller's curriculum tae were known or available to Lawlor at the
time of his trial. Thus, the Court holds that these portions of
claims (I) and (II) are barred because t se non-juri cti
issues could have been raised at trial and on direct appeal and,
t are not cognizable in a petition r a writ of habeas corpus.
v. Parr , 215 Va. 27, 29, 205 S.E.2d 680, 682 (1974),
cert. denied, 419 U.S. 1108 (1975).
In another portion of claims (I) (II), Lawlor contends
Tuller lied in s testimony to trial court when questioned
about his rt qualifications. At trial, Tuller repeated his
assertion he had testified as an expert in bloodstain ern
interpretation in six cases. ler also stated all six cases were
homi des, and the defendant in each case was convicted.
However, Tuller testified as an expert in only four cases.
Additionally, according to Tuller's curriculum vitae, one of the
cases in which had testi ed as an expert invol a malicious
wounding and not a homicide. Finally, of the six cases Tuller
identified in his curriculum tae, one was Lawlor's liminary
hearing, which had not, at the time of Tuller's testimony, resulted
in a conviction.
4
The Court rejects t se portions of claims (I) and (II).
Because the alleged inconsistencies in Tuller's representation of
his qualifications were known or available to Lawlor at the t of
his tr 1, the Court hol that these ions of claims (I) and
(I ) are barred. These non-juri ctional issues could have been
raised at trial and on direct appeal and, thus, are not cognizable
in a ition r a writ of habeas corpus. Sla 215 Va. at 29,
205 S.E.2d at 682.
In cla (V), Lawlor argues he was denied the effect
assistance of counsel cause counsel failed to investigate and
confront Detective Tuller's representations rega ng his
lifications to testify as an rt. Lawlor contends thad
counsel challenged Tuller's rt qualifications, there is a
reasonable probability that t court would have sustained Lawlor's
ection to Tuller's certification as an expert witness, that his
testimony would have been luded, and he would not have
been convicted of c tal murder. Lawlor argues that had Tuller
not testified, Commonwealth would have had no evidentiary basis
to argue or abducted Orange by moving her from the couch to the
floor. Lawlor further contends that without Tuller's testimony,
prosecutors would not have been able to rely on his opinions to
argue Lawlor was capable of preme tation. Lawlor contends the
Commonwealth relied on Tuller's opinion that Lawlor had tried to
clean up the crime scene after the murder to demonstrate
premeditation. Lawlor further contends the Commonweal relied on
Tuller's expert opinion to show the victim was in a vulne e
position when she was attac lly, Lawlor contends that had
Tuller been permitted to testi as an expert bloodstain pattern
5
interpretation despite counsel's objections, counsel could have
used s false statements to impeach h before the jury.
The Court hoI that cIa (V) fails to satis the prej
prong of the two-part test enunciated in Strickland v. Wa
466 U.S. 668, 687 (:984). The reco ,including Tuller's affidavit
and attached exh ts and the affidavit of Lawlor's trial counsel,
demonstrates that ler's curriculum vitae conta multiple
errors. Of t six cases in which Tuller claimed to have testifi
as an expert in bloodstain tern erpretation, he had testified
as an expert in only four. Tuller was not a current member of the
IABPA, his membership having red years before Lawlor's trial.
Tuller attended the Miami-Dade Police Training Institute's Crime
Scene Investigat Seminar January 2003, not January 2002, as
Tuller stated. The Bloodstain Users Group Seminar Tuller attended
in 2003 was not a 40 r course and was not presented by DFS, as
Tuller's curri vitae stated. Although or's counsel was
aware of at least one of the screpancies in Tuller's curriculum
tae before trial, counsel fail to pursue an ade e
investigation or even ask Tuller about it dur their pretrial
interview with In addition, Tuller's testimony that he had
testifi as an e rt in blo tain pattern interpretation six
cases and that all six been r cases and had resulted in
convictions was clearly incorrect inconsistent with Tuller's
curriculum vitae. Counsel, however, failed to stion Tuller
about the screpancies.
Assuming, without iding, that these inaccuracies would have
precl Tuller from testifying as an expert or, had he been
permitted to testify as an rt, would have impeached his
6
expertise, Lawlor cannot show a reasonable probability of a
different outcome. Tuller's expert testimony was not cruci to
prove Law r abducted Orange. The Commonwealth was not required to
sent evidence that Lawlor moved Orange from the couch to
floor to prove he abducted her. H[T]he physical detention of a
person, with the intent to deprive him of his personal liberty, by
rce, intimidation, or deception, without any asportat of the
ctim from one place to another, is sufficient." Scott v.
COIillllonwealth, 228 Va. 519, 526, 323 S.E.2d 572, 576 (1984). The
record, including the trial transcript, demonstrates there was
overwhelming evidence to prove Lawlor us force to physically
detain Orange. Dr. Constance DiAngelo, an Assistant Chief Medical
Examiner and forensic pathologist, testified Orange sustained
"severe, heavy trauma" when she was stuck in the ad and face over
thirty times with a blunt object. Some of the blows left divots in
Orange's skull, which was fractured so badly that it opened as if
it were hinged. Dr. DiAngelo testified Orange sustained at least
seventeen additional fensive wounds to her hands and arms.
Combined with the blood in r lungs, this indicated Orange was
al for at least rt of attack. The jury did not require
Tuller's expert opinion to conclude that Lawlor detained Orange by
physical force.
In addition, the jury could reasonably infer, without the
benefit of Tuller's expert testimony, that Lawlor moved Orange from
the couch to the floor. Dr. DiAngelo testifi that the trauma to
Orange's head occurred while she was on the couch. Orange was
discovered lying on the floor, flat on her back, perpendicu r to
the couch, with her feet near the end of the couch where the pool
7
of blood from her head was. The jury could reasonably infer from
this evidence that Orange did not llingly move from the couch to
the floor.
Further, DiAngelo's testimo and the Commonwealth's
photographs of the blood-soaked couch left no reasonable doubt that
Orange was attacked there. Finally, the Commonwealth did not rely
on Tuller's expert testimony to argue premeditation. Rather, to
show premeditation, the Commonwealth relied on the location, force
and number of ows to Orange; evidence of Lawlor's rational,
competent behavior while purchasing and consuming drugs with
Michael Johnson, who had cilitated Lawlor's purchase of drugs;
Lawlor's ability to plan, as evi ed by his obtaining the
victim's ys, traveling to her apartment, and using a back exit to
avoid detection a r the murder; the obvious evidence of his
ineffectual attempts to clean up the crime scene by placing the
bloody pan and broken handle in the kitchen; s ev disposal
of hammer and his oody clothes; and s lying about his
knowledge of the crime. Thus, Lawlor has failed to demonstrate
that there is a reasonable probability that, but for the errors
alleged claim (V), the result of the proceeding would have been
dif rent.
CLAIM (III)
In claim (III) (A), Lawlor contends he was denied the right to
plead guilty and to have his sentence determined by a jury. Lawlor
contends that under Code § 19.2 257, to plead guilty a defendant
must waive his right to have a jury determine his sentence. Lawlor
argues that when applied to a defendant charged with a capital
offense, Code § 19.2-257 violates the Sixth Amendment under
8
decisions in Blakel v. Washi 542 u. S. 296 (2004), Ri v.
Arizona, 536 U.S. 584 (2002), and rendi v. New Jerse 530 U.S.
466 (2000), because it requires the judge to determine the
appropriate sentence on the basis of facts not "reflected in the
jury verdict or admitted by the defendant." Blakel 542 U.S. at
303-04.
The Court holds that claim (III) (A) is barred because this
non-juri ct 1 issue could have been raised at trial and on
direct appeal and, thus, is not izable in a petition for a writ
of habeas corpus. Sl 215 Va. at 29, 205 S.E.2d at 682.
In claim (I I I) (B), Lawlor contends he was ed the ef i ve
assistance of counsel because counsel failed to protect his right
to plead guilty and to have aggravati factors of vileness and
future dangerousness, which must be proven beyond a reasonable
doubt before a sentence of death may be imposed, termined by a
jury. Lawlor contends counsel should have argued t Code § 19.2­
257 violates the Sixth Amendment because it requires the J to
determine the appropriate sentence on the basis of facts not
"reflect in the jury verdict or admitted by the defendant."
Blakel , 542 U.S. at 303-04.
The Court holds that cIa (III) (B) fails to satisfy
prejudice prong of the two-part test enunciated in Strickland.
Under Code § 19.2-264.4, the sentencing ury must consider, among
other things, "the circumstances surrounding the offense." It is
the ju 's y to consider all the evidence, both favorable and
unfavorable, fore fixing punishment. St r v. Commonwealth,
220 Va. 260, 275 76, 257 S.E.2d 808, 819 (1979). Thus, even if
Lawlor had been permitt to ad Ity and have his sentence
9
ermined by a jury, the sentencing jury necessarily would have
had access to the evidence presented in the guilt phase of Lawlor's
trial, including the evidence adduced at trial of the brutal nature
of Lawlor's cr s. n addition, although Lawlor argues a guilty
ea would have rmitted him to show remorse and accept
respons ility in front of the jury, the record, including the
trial transcr , demonstrates that counsel effect ly proceeded
as if Lawlor had entered a guilty plea. From opening statement
through the of trial, Lawlor's trial counsel conceded Lawlor
had murdered Orange. The record further est ishes that the
crimes were extremely brutal, t t t victim suffer
significantly, that immediately a r the murder Lawlor insisted
had no knowledge of the crimes and attempted to cast su icion on
his neighbor, and t a er his DNA was discovered on the victim,
Lawlor insisted he was being framed. Under the circumstances,
Lawlor cannot show that had he been permitted to plead guilty and
have his sentence ermined by a jury, the ju would have reached
a different outcome. Thus, Lawlor has failed to demonstrate that
there is a reasonable probability that, but for the errors alleged
in claim (III) (8), the result of the proceeding would have been
different.
CLAIM (IV)
In cIa (IV) (A) a port of claim (IV) (C), Lawlor
contends he was denied a fair trial because t prosecution used
four of its f peremptory strikes to remove all persons of
Hispanic and Pacific-Island ethnicity from the jury venire and the
trial court failed to ensure those strikes were not based upon the
ethnicity of jurors.
10
The Court holds that claim (IV) (A) and this portion of claim
( V) (C) are rred because these non-jurisdictional issues could
have been raised at trial and on direct appeal and, thus, are not
cognizable in a petition for a writ of habeas corpus. Sla 215
Va. at 29, 205 S.E.2d at 682.
In claim (IV) (B) and another rtion of claim (IV) (C), Lawlor
contends he was denied the effective assistance of counsel because
counsel failed to object to the Co~monwealthls removal of all
rsons of Hispanic and Pacific-Island ethnicity from the jury
venire. The Co~monwealth used peremptory strikes to remove G
Alvarez, Fredericka Wall, Vene a Fernandez, and Dave Lunasco from
the venire of twenty-four qualif jurors. Lawlor all s that
Alvarez, Wall, and Fernandez were only members of the panel of
Hispanic ethnicity, and that Lunasco was the only person of
Paci c-Island ethni ty. Lawlor contends that the removal of all
spanic and Pacific-Island jurors was prima facie evidence of
discrimination, and that counsel unreasonably f led to object to
their exclusion.
The Court holds that claim (IV) (B) and this portion of claim
(IV) (C) satisfy neither the performance nor t prejudice prong of
the two rt test enunci in Strickland. The principles
applicable to 11 s of racial motivation for the exercise of
remptory strikes on a jury panel in ially were set out by the
ted States Supreme Court in son v. Kentuc 476 U.S. 79
(1986), and s equently have been refined in decisions of this
Court.
11
As the Court s stated previously:
When a defendant makes a Batson challen to the
use of a peremptory strike, he must show that the
individual "is a member of a cognizable racial group,"
and "make a prima facie showing that the remptory
strike was made on racial grounds." Mere exclusion of
members of a particular race by usi peremptory strikes
"does not self establish such a pr facie case under
Batson." To establish a prima fa e case, the defendant
must also "identify facts and circumstances that raise an
inference that potential jurors were excluded based on
their race."
r v. Commonwealth 271 Va. 362, 407, 626 S.E.2d 383, 412
(2006) (internal citations omit ) {citing -Yarbr v.
-----="--­
Commonwealth, 262 Va. 388, 394, 551 S.E.2d 306, 309 (2001) (quoting
Batson, 476 U.S. at 96), and Jackson v. Commonwealth, 266 Va. 423,
436, 587 S.E.2d 532, 542 (2003)).
Once a fendant makes a pr facie case, the burden ifts
to the Co~~onwealth "to produce race-neutral explanations for
striking juror." ---"-­
, 271 Va. at 407, 626 S.E.2d at 412
(quot Jackson, 266 Va. at 436, 587 S.E.2d at 542). The
defendant can then argue the Commonwealth's lanations were a
pretext for unconstitutional discr nation. Id.
Lawlor has failed to establish a prima facie case of
purposeful discrimination that counsel should have recognized and
llenged, and that the trial court would have accepted. though
Lawlor asserts that the Commonwealth's perempto strikes resulted
i~ exclusion of all rsons of Hispanic and Pacific-Island
ethnicity from the jury, he proffers no basis for his assertio~
Lhat the strikes were racially motivated other than observi that
four of the five jurors struck by Commonwealth were either of
12
Hispanic or Pacif Island ethnicity. Lawlor does not assert that
the jurors the Commonwealth chose to strike were members of the
same race as either Lawlor or the victim, or identify any other
"'facts and rcumstances that raise an inference that potential
jurors were excluded based on their race. , .. Jun r
.::...:::::.:.:..:~=
271 Va. at
407, 626 S.E.2d at 412 (quoting Ya
-'=-=':"=":'~-"--=---L:"::'
262 Va. at 394, 551
S.E.2d at 309). ~hus, Lawlor has failed to demonstrate that
counsel's performance was ficient or that there is a reasonable
probability that, but for counsel's alleged errors, the result of
the proceeding wou have been different.
C:i.,AIM (VI)
In a portion of claim (VI), Law contends was denied the
ffective assistance of counsel because counsel il to ask Dr.
W. exander Morton, Jr., a psychopharmacologist appointed by the
trial court to assist Lawlor, to opine whether consumption of "the
better part of a case of beer and at least two to three eight-balls
of crack cocaine" would render a person incapable of 1 ration
and premeditation. Lawlor contends t when the Commonwea
object to s testimony and the trial court ruled it was
inadmiss le, trial counsel unreasonably agreed not to present such
evidence without first arguing it was admissible. In support of
is claim, Lawlor has provided an affidavit from Morton in which
he states his opinion, to a reasonable degree of scientific
~ The Court rejects Lawlor's assertion that he is not required to
show prejudice under Strickland. Counsel's failure to object to
the Commonwealth's peremptory strikes is not a "structural error."
See Jackson v. Warden, 271 Va. 434, 436, 627 S.E.2d 776, 781
(2006) .
13
certainty, that Lawlor would not have been able to form the
necessary intent to premeditate after ingesti that quantity of
alcohol and cocaine.
Court holds that this ion of claim (VI) satisfies
neither the performance nor the prejudice prong of t two-part
test enunciated in Strickla The proffered expert opinion, that
Lawlor did not premeditate at time of the killing, was properly
ruled inadmissible because it went to the "precise or ult fact
issue" in the case and "to have admitted the opinion would have
invaded the province of the jury." Wa v. Commonwealth 219 Va.
683, 696, 251 S.E.2d 202, 210 (1979) (internal quotation marks and
citations omitt ).
In tion, the record, including the trial transcript,
demonstrates that on the eveni before the murder, Lawlor and
Michae Johnson purchas three "eight-balls," or approximate ten
and a half grams, of coca and that together they consumed
between ei and nine grams. Johnson testifi he and Lawlor
consumed all of the first and second "ei -ball," of which Johnson
had consumed about two grams. Of the third eight-ball, of whi
son and Lawlor consumed half, Johnson testified Lawlor had
consumed about a gram of the cocaine and that he had consumed less
than one gram. Johnson testifi he and Lawlor been king
beer, but was unable to say how much beer Lawlor had actually
consumed. Thus, the evidence established that Lawlor consumed
approximately six grams of cocaine and an unknown quantity of beer.
Therefore, the proffered opinion, which assumed Lawlor consumed
"the better part of a case of beer" between seven and ten
of cocaine, was not based on facts in dence and would not have
14
been admissible. See S on v. Commonwealth, 227 Va. 557, 565-66,
318 S.E.2d 386, 391 (1984)
Further, the record, including the trial transcr
demonstrates that Morton testified as to the hypothetical effect
that consumption of large quantities of cocaine and alcohol would
have on a son in Lawlor's position. Morton testified that
consumi alcohol and cocaine toget r negat ly impacts an
individual's ability to think rationally and make isions and
that the consumption of alar amount of alcohol and cocaine could
cause olent behavior and cause an individual to become
"unpredictable, impulsive, and unstable." Morton that a
rson consuming three a half grams of cocaine over the course
of an eight hour period would expe ence profound psychiatric
symptoms, including inability to think clearly, paranoia, and
aggression, and these symptoms would increase at higher doses,
though the ef s would vary depending on the individual. Thus,
Lawlor has fail to demonstrate that counsel's rformance was
deficient or that there is a reasonable probability that, but for
counsel's alleged errors, the result of the proce ng would have
been different.
In another portion of cia (VI), Lawlor contends he was
denied the effective assistance of counsel because counsel fai
to provide Morton with an opportunity to interview Lawlor before
trial. Lawlor contends that had Morton interviewed him, Morton
would have been able to opine that Lawlor's ior drug use and
addiction affected his reaction to the drugs he consumed in the
hours before the murder and "further diminished his ability to
premeditate and 1 rate." Lawlor contends this opinion would
15
have opened the door to other evidence of his history of drug use
and addiction, which the trial court had found to be inadmissible
in the guilt phase of the trial.
The Court holds that this portion of cIa (VI) satisfies
neither the performance nor the prejudice prong of the two-part
test enunciated in Strickland. Morton's opinion about Lawlor's
suscept ility to the effects of the drugs he consumed before
murder would not have opened the door to evidence of his history of
drug use and addiction. An expert may not relate hearsay ev
to the jury when providing his opinion testimony. Wr v.
Commonwealth, 245 Va. 177, 197, 427 S.E.2d 379, 392 (1993), vacated
on other rounds, 512 U.S. 1217 (1994); see also Buc~anan v.
Commonwealth, 238 Va. 389, 416, 384 S.E.2d 757, 773 (1989). Lawlor
fa Is to proffer any dence Morton could have gleaned from an
interview with him that would have been admissible. T~us, Lawlor
has failed to demonstrate that counsel's performance was defi ent
or that there is a reasonable probability that, but for counsel's
alleged errors, the result of the proceeding would ~ave been
fferent.
CLAIMS (VII) & (VIII)
In claim (VIII) (A), Lawlor contends the jury instructions were
defective because t~ey fail to define specific intent, instructed
the jury they could infer Lawlor's intent from the natural and
probable consequences of his acts, and fai to distinguish
between premeditated rst degree murder and first degree murder in
the commission of rape or abduction.
The Court holds that claim (VIII) (A) is barred because is
non-jurisdictional issue could have been raised at trial and on
16
direct appeal and, thus, is not cognizable in a petition for a writ
of habeas corpus. Sla on, 215 Va. at 29, 205 S.E.2d at 682.
In a rtion of claim (VIII) (B), Lawlor contends was denied
the effective assistance of counsel because counsel fail to
request instructions de ning specific intent, stating that
specific ent differs from general intent, and explaining the
difference between two. Lawlor contends that without such
instructions, jurors would not have understood that they had to
find that Lawlor had the specific intent to kill Orange, and
it was not sufficient to find he had the general intent to do an
act that resulted in her death, before convicting him of capital
murder or premeditated first degree murder.
The Court holds that this portion of claim (VIII) (B) does not
satis the performance prong of two-part test enunciated in
Strickland. Generally, courts now disfavor instructing jurors on
specific versus general intent and the difference between the two.
See ed States v. Perez 43 F.3d 1131, 1138 (7th r.
1994) (not instructions distinguishing between cific
general intent are not as helpful to juries as those stating
"pre se mental state required for the particular cr "); Unit
=s~t=a~t~e=s__
v~.-=~~=l=i~n, 26 F.3d 1523, 1527 (10th Cir. 1994) (noting
instructing jury in terms of specific intent s been disfavored
because of t confusing and ambiguous nature of such
instructions); see also Qnited States v~ Jobe, 101 F.3d 1046, 1059
(5th Cir. 1996) (no error in failing to give instruction defining
specific intent where t al court instruct jury on element of
intent and clearly defined the term "knowingly"); cf. Dixon v.
United States, 548 U.S. 1, 7 (2006) (recogniz g lithe movement away
17
from the traditional dichotomy of general versus specific intent
and toward a more specifically defined hierarchy of culpable mental
states") .
Here, the record, including the trial transcript and the jury
instructions, demonstrates the jury was instructed that to find
Lawlor guilty of capital or premeditated first degree murder, they
had to find the killing was Ilful, deliberate, and premeditated.
The jury was further instructed:
will 1, deliberate, and premeditated means a specific
intent to kill adopted at some time before the killing
but which need not exist for any particular length of
time. An intent to kill may be formed only a moment
before the fatal act is committed, provided the accused
has time to think and did intend to 11.
This instruction properly instructed the jury about the requisite
intent necessary to support a finding of premeditated murder. Any
additional definition of the term specific intent, which was itself
used to define "willful, deliberate, and premeditat , .. would have
been redundant and potentially confusing, and counsel was not
deficient for failing to make a contrary argument. Thus, .wawlor
has failed to demonstrate that counsel's rformance was deficient.
In another portion of claim (VIII) (B), Lawlor contends he was
denied the ef ive assistance of counsel because counsel failed
to adequately object to a jury struction that instructed the jury
they could infer Lawlor's intent from the natural and probable
consequences of s acts. Lawlor contends that although this
instruction has been approved by this Court, it was improper in
this case because it suggested the jury could determine it was
Lawlor's purpose to kill Orange because the natural and probable
18
consequence of his conduct was to cause her death. Lawlor argues
this blurs the distinction between specific intent to kill and
general intent to do an act which, while not intended to do so,
results in death.
The Court holds that this portion of cIa (VI I I) (B) does not
satis the performance prong of the two-part test enunciated in
Strickland. 7he natural and probable consequence of striking
Orange 47 times with a blunt object, principally in the head, was
her death. 7he instruction properly rmitted, but did not
require, t jury to in r from the fact that when Lawlor struck
her 47 times with a blunt object, he intended to kill her. Counsel
was not ineffective for iling to object to this instruction.
Thus, Lawlor has failed to demonstrate that counsel's performance
was deficient.
In another portion of claim (VIII) (B) and a portion of claim
(VII), Lawlor contends he was denied the effective assistance of
counsel because counsel failed to ask that the instructions on
first degree murder use the terms "premeditated first degree
murder" and "felony first degree murder" to dif rentiate between
premeditated first degree murder and first degree murder in the
commission of rape, attempted rape, or abduction. Lawlor contends
the instructions given were confusing because they used the term
"first murder" to describe two different theories under
which Lawlor could be convicted of rst degree murder. Lawlor
argues the lack of a descriptive label in the instructions could
have confused the jury because under Virginia law, voluntary
intoxication is a defense only to premeditated murder, and not to
felony first degree murder. He further argues that the lack of a
19
descript label could also have confused the jury because in
closing argument counsel conceded Lawlor was guilty of first degree
murder. Although counsel argued Lawlor was incapable of
premeditation and that the murder occurred during an altercation,
the ury could have been confused and assumed couns was conceding
premeditation because the instruction not clearly label
different theories of first degree murder.
The Court holds that these portions of claims (VI I I) (B) and
(VII) do not satisfy the performance prong of the two-part test
enunci in Strickland. The record, incl ng the trial
transcript, demonstrates that jurors were instruct
The defendant is charged with the cr of capital
murder in the commission of or subsequent to or
attempted rape. The Commonwealth must beyond a
reasonable doubt each of the following elements of that
cr
(1) That the defendant 11 Genevieve
and
(2 ) That the killing was will , del rate,
and premeditated; and
(3 ) That the killing was of a rson in the
commission of, or subsequent to rape or
attempted rape.
If you nd the Commonwealth has proved beyond a
reasonable doubt each of the above elements of the crime
as charged, then you shall find the fendant guilty
capital murder in the commission of or subsequent to rape
or attempted rape and shall not fix the punishment until
your verdict has been returned and further evidence is
heard by you.
If you find from the evidence that the Commonwealth
has proven beyond a reasonable doubt the defendant killed
Genevieve Orange and that the killing occurred in the
20
co~mission of, or subsequent to rape or attempted rape,
bJt that the killing was not willful, deliberate and
premeditated, then you shall find the defendant guilty of
first degree murder and shall not fix the punishment
until your verdict has been returned and further evidence
has been heard by you.
If you find from the dence that the Commonwealth
has not proven beyond a reasonable doubt that the killing
occurred in the commission of, or subsequent to rape or
attempted but the Commonwealth has proved beyond a
reasonable doubt:
(1) That the defendant killed Genevieve
Orange; and
(2 ) That the killing was willful, del rate,
and premeditated; and
(3 ) That the killing was malicious,
then you shall find the defendant guilty of first degree
mJrder and shall not fix the punishment until your
verdict has been returned and further evidence has been
heard by you.
If you find from the evidence that the Commonwealth
has proven beyond a reasonable doubt that the defendant
killed Genevieve Orange and that the killing was
malicious but that the Commonwealth has not proven beyond
a reasonable doubt that the killing was willful,
deliberate and premeditated and was not in the commission
of, or subsequent to rape or attempted rape, then you
shall find the defendant guilty of second degree murder
but shall not fix the punishment until your verdict has
been returned and further evidence is heard by you.
If you find that the Co~~onwealth has failed to
prove beyond a reasonable doubt any of the crimes listed
above, then you 11 find the defendant not guilty.
The =ury received a nearly identical instruction on the charge
of capital murder in commission of abduction with intent to
21
defile. These instructions were not confusing. They clearly
delineated the distinctions between capital murder; premeditated
first degree murder; first degree murder in the commission of a
rape, attempted rape or abduction; and second degree murder.
Counsel was not ineffective for iling to argue to the contrary.
Thus, Lawlor has failed to demonstrate that counsel's performance
was deficient.
In another portion of claim (VII), Lawlor contends he was
denied the ef ctive assistance of counsel because counsel iled
to realize, until the end of the guilt phase of the trial, that
Lawlor cou be convicted of first de murder even if the jury
found he was incapable of premeditation, if the jury found he
killed Orange in the commission of rape or abduction. Lawlor
argues that because counsel failed to understand the applicable
law, counsel based Lawlor's guilt-phase fense on the theory that
Lawlor was so intoxicated at the t of the offenses that he was
incapable of premeditation.
The Court holds that this portion of claim (VII) fails to
satisfy the prejudice prong of the two-part test enunciated in
Strickland. Lawlor ils to identify any defense theory that
counsel could have, but did not, argue because of counsel's alleged
failure to recognize that Lawlor could be convicted of first degree
felony murder, or to show that such a fense would have been
successful. See Hinton v. Alabama, 571 U.S. , 134 S. Ct.
1081, 1089 (2014) (per curiam) (even where counsel makes a mistake of
law, petitioner challenging a criminal conviction still bears the
burden of showing a reasonable probability that, absent counsel's
error, the fact finder would have had a reasonable doubt as to
22
petitioner's guilt). Thus, or has failed to demonstrate that
there is a reasonable probability that, but for counsel's alleged
errors, the result of the proceeding would have been dif rent.
In another portion of cIa (VII), Lawlor contends he was
deni the effective assistance of counsel because counsel focused
closing argument almost exclusively on voluntary intoxication and
asked the jury to find him guilty of first degree murder without
differentiating between premeditated first de murder and rst
felony murder. Lawlor argues this suggested to the jury
that counsel was conceding t evidence proved premeditation.
The Court holds that this portion of claim (VII) satisfies
neither the performance nor the prejudice prong of the two-part
test enunciated in Strickland. The record, including the trial
transcript, demonstrates that counsel argued during closing
argument that Lawlor's crimes were not premeditated and jury
would not have reasonably believed counsel was conceding the
evidence was sufficient to prove premeditation. Thus, ~awlor has
failed to demonstrate that counsel's performance was de ent or
that there is a reasonable probability that, but for counsel's
alleged errors, the result of the proceeding would have been
different.
CLAIM (IX)
In a portion of claim (IX), ~awlor contends he was de the
effective assistance of counsel because counsel iled to move for
a mistrial when jurors overheard portions of a bench conference.
Lawlor contends that in the guilt phase of the trial during
counsel's cross examination of Detective Brian Colligan, counsel
questioned why Colligan initially became su icious of Law The
23
trial court called counsel to a bench conference, during which the
prosecutor noted the answer to counsel's stion included Lawlor's
prior abduction conviction. The trial court told Lawlor's counsel
he was about to cause a mistrial if he pursued the question and
that the court was "not going to declare it if you do it." Lawlor
contends defense counsel should have asked for a mistrial at that
po ,because the jury could hear both the prosecutor's statement
and the trial court's admonishment of Lawlor's counsel. In support
of this claim, Lawlor prof rs the affidavit of Michael Chick, Jr.,
a member of Lawlor's defense team. Chick avers that the courtroom
was small and that he could hear portions of most of the bench
conferences, even from his position in the back of the courtroom,
especially those that were "heated." Chick avers that during the
conference about Colligan's testimony, he heard the t al court
advise counsel "in an angry tone," that he "was not going to
a mistrial if [counsel] continued with his line of questioning."
Chick further avers that he told counsel that he heard "that
conversation, and that it was likely that the jurors could hear it
too."
The Court holds that this portion of claim (IX) satisfies
neither the performance nor the prejudice prong of the two-part
test enunciated in Strickland. Lawlor fails to proffer any support
for his allegation that the jury overheard the prosecutor mention
Lawlor's prior abduction conviction. Although Chick avers he
overheard portions of many bench conferences, especially those that
were heated, and that he specifically heard the trial court tell
counsel he was not going to grant a mistrial, Chick does not state
that he heard the prosecutor's remark or provide any reason to
24
believe the jury heard it. Lawlor does not suggest the
prosecutor's voice was loud or "heated" when he made the cOJTh.'1lent,
which appears to have been made specifically to prevent any
dence of the prior conviction from being inadvertently
introduced during the guilt phase of the t a l .
In addition, while "[rJulings made in words or manner
indicating antagonism or resentment toward counsel may convey the
impression that the feeling inc s also counsel's client,"
v. Commonwealth, 190 Va. 48, 56, 55 S.E.2d 446, 450 (1949),
Lhe record in the present case, including the t al transcripts,
does not demonstrate such "antagonism or resentment" in the trial
court's admonishment of counsel during this bench conference.
Assuming the jury heard the exchange, the tr 1 judge's warning
that counsel was about to cause a mistrial, which the court would
not grant, likely suggested to the jury the court's spleasure
with the possibility that counsel was about to do something that
would negatively impact Lawlor or that counsel's behavior could
potentially negatively impact Lawlor. Further, the trial court
instructed the jury at the beginning of the trial that they were to
base their verdict solely on the instruction of law and the
evidence presented at trial, that "no statement or ruling or remark
might make from the bench is intended in any way to indicate to
you what my personal opinion might be," that e purpose of a bench
conference was to ensure that the only dence received by the
jury was that "which is appropriate and proper under our laws," and
that the jury should not hold such conferences against either the
Comrnonweal th or the defendant. "It is presumed that a jury will
follow the instructions given by the trial court." Muhamrnad, 274
25
Va. at 18, 646 S.E.2d at 195 (citation omitted). Thus, Lawlor has
failed to demonstrate that counsel's performance was deficient or
that there is a reasonable probability that, but for counsel's
alleged errors, the result of the proceeding would have been
different.
In another portion of claim (IX), Lawlor contends he was
denied the effective assistance of counsel because counsel failed
to move for a mistrial when jurors overheard portions of a second
bench conference. Lawlor contends that while discussing last
minute changes to jury tructions, the trial court loudly
admonished counsel, stating "[y]ou know, you've had this case for
two years, and we're now sting here-this is the best you can do
with jury tructions?" Lawlor contends that during this
conference the trial court further admonished counsel for failing
to include an approved instruction with the wr ten instructions
presented to the court that morning, saying, "I gave you that pile
back yesterday and said return those instructions to me." Lawlor
alleges that these comments were audible to everyone in the
courtroom, that they were prejudicial to him because they suggested
defense counsel was unprepared and uninformed, and that defense
counsel should have asked for a mistrial. In support of this
claim, Lawlor relies on the affidavits of Chick, Meghan Shapiro,
and Thomas Walsh, also members of Lawlor's defense team, who each
aver that they heard the trial court loudly and sharply reprimand
counsel.
The Court holds that this portion of claim (IX) satisfies
neither the performance nor the prejudice prong of the two-part
test enunciated in Strickland. Assuming the jury heard the trial
26
court's comments, Lawlor does not allege that the jury heard the
rest of the bench conference and does not articulate how the jury
would have known whether the judge was admonishing defense counsel
or the prosecutor. In addition, the trial court had p ously
instructed the jury that t y were to base their verdict solely on
the instructions and the dence, and that "no statement or ruling
or remark I might make from the bench is intended in any way to
indicate to you what my personal opinion might be." "It is
presumed that a jury will follow the instructions given by the
trial court." Muhammad, 274 Va. at 18, 646 S.E.2d at 195 (citation
omitted); see also United States v. Lomax, 87 F.3d 959, 962 (8th
Cir. 1996) (appellate court assumed that, even if jury overheard
bench conference, they disregarded the information in compliance
with the judge's instruction directing jury to consider only
evidence presented at t a l l . Thus, Lawlor has failed to
demonstrate that counsel's performance was deficient or that there
is a reasonable probability that, but for counsel's alleged errors,
the result of the proceeding would have n different.
CLAIM (X)
In claim (X), Lawlor contends he was denied the effective
assistance of counsel because, during the sentencing phase, counsel
opened the door to the admission of evidence of Lawlor's abuse of
his former fianc ,Amanda Godlove. Lawlor argues the Commonwealth
elicited testimony from Godlove that Lawlor had abducted her in
1998, a cr for which he had been convicted, but did not elicit
any testimony regarding Lawlor's relationship with or violence
toward Godlove prior to the abduction. On cross- nation,
Lawlor's counsel asked Godlove about her relationship with Lawlor
27
prior to abduction, eliciting testimony from Godlove that
Lawlor had anger control issues, Godlove only agreed to marry
Lawlor because she was afraid to refuse his proposal, and she ended
their relationship because she was afraid of Lawlor. On redirect,
the Commonwealth elicited testimony about the tenor of Lawlor's
entire relationship with Godlove, including specific acts of
violence toward Godlove. Lawlor's counsel objected to this
testimony, but the trial court found counsel had opened door
for the admission of the evidence through cross-examination.
Lawlor contends this evidence, which included testimony that Lawlor
sometimes went into a "white hot rage," that he had thrown an
ashtray at Godlove, hit her, grabbed her, and twice choked her to
the point of unconsciousness, would not have been admitted if not
for counsel's error and that but for the admission of the dence,
the Commonwealth could not have proved the aggravating factor of
future dangerousness and the jury would not have sentenced Lawlor
to death.
The Court holds claim (X) fails to satisfy the prejudice prong
of the two-part test enunciated in Strickland. The record,
including the trial transcript, demonstrates that at the t the
testimony complained of was admitted, Godlove had already testi ed
that prior to the abduction, but after she and Lawlor had ended
their relationship, Lawlor called her at work and approached her
office, and as a result of Lawlor's behavior she felt the need to
have two men escort r to her car every night when she left work
"for [her] safety." Godlove testi ed she and her mother had
established a routine whereby s would phone her mother every
night when she left work, and her mother knew how long it would
28
then take Godlove to get home. Godlove would again call her mother
as she approached the house, and upon arriving home Godlove would
pull into the garage but stay in her car, with the windows rolled
up, the doors locked, and r hand on remote control for the
garage door until the door had ly closed before getting out of
her car. These measures were to ensure Godlove's safety. Godlove
testified that on the evening of the abduction she had followed
this routine, but when she got near r house she noticed a car
which was not normally there and which matched the description she
had of Lawlor's car. Godlove then called her mother and asked her
to meet her at the door. Then she drove past her home to see if
the car followed her. When it did not, she turned around and went
home. She pulled into her garage and waited in r car, doors
locked, windows rolled up, hand on the ge door opener, watching
the door in the rear view mirror. Before the door closed, Lawlor
rolled under it and approached the car, demanding to talk with
Godlove. When she told him to leave, he got very angry and started
banging on the car. Godlove's mother saw what was happening and
told Lawlor she was going to call the police. According to
Godlove's testimony "normally, that would be enough of a deterrent"
but on this night Lawlor said he did not care. Godlove's mother
opened t garage door and motioned to Godlove to drive away. When
Godlove attempt to do so, Lawlor climbed onto the hood of the car
and began hitting and kicking the windshield until he managed to
put a hole in it. Lawlor reached through the windshield, turned
off the car, opened the door, dragged Godlove out, threw her into
his car, and drove away. Eventually, Lawlor's rage dissipated and
he freed Godlove after she feigned a severe asthma attack.
29
Based upon this testimony, the jury knew Godlove was afraid of
Lawlo~ long before he abducted her. Thus, Lawlor has failed to
demonstrate that but for counsel's alleged errors, the result of
the proceeding would have been different.
CLAIM (XI)
In claim (XI), Lawlor contends he was denied the effective
assistance of counsel because counsel failed to elicit from
Lawlor's therapist, Mary Fisher, evidence that Lawlor had ed
to her that he had been sexually abused by his father. In support
of this claim, Lawlor p~ovides an affidavit from Fisher in which
she avers she is a nurse practitioner cializing in psychological
and mental health issues. She treated Lawlor in the 11 of 2005,
and she diagnosed Lawlor with poly-substance abuse, poly-substance
dependence, and post-traumatic stress disorder (PTSD) as a result
of being the victim of childhood physical and sexual abuse. Fisher
avers that Lawlor disclosed to her in their initial meetings that
he had been physically and sexually abused multip times and that
he had been sexually abused by his father. sher further avers
that Lawlor suffered from flashbacks of being sexually abused by
his father and of his sister being sexually abused by their father.
Fisher further avers that she provided this information to Lawlor's
defense team prior to trial. Lawlor contends that had the jury
known he had been sexually abused by his father, there is a
reasonable likelihood that the jury would not have sentenced him to
death.
The Court holds claim (XI) satisfies neither the performance
nor the prejudice prong of the two-part test enunciated in
Strickland. The record, including the trial transcript,
30
demonstrates that Fisher testified on Lawlor's behalf during the
sentencing phase of his trial. Fisher testified that she had
diagnosed Lawlor with PTSD, that such a diagnosis re red at least
one qualifying traumatic event in the patient's past, and that she
had based her diagnosis of Lawlor, in part, on his "revelation of
both physical and probable history of sexual abuse" of "himself and
family members." When asked what that revelation of probable
sexual abuse was, Fisher responded that the revelation was
"innuendo that he also had a history of sexual abuse himself,
but I don't I he ever specifically said that at that
point until we terminated treatment."
Fisher further testified that in her init I meetings with
Lawlor there was some "reference made to possible abuse by a peer,
but was not specifically addressed in the short time that we had
to talk." sher went on to explain that when dealing with a new
patient it was important to ask open-ended questions and establish
a trusting relationship and that it is not unusual for a patient to
initially deny having a history of sexual abuse. Fisher elaborated
that she would not have expected Lawlor to immediately disclose all
of the sexual abuse he suffered. Fisher further testified that
Lawlor had specifically described flashbacks involving traumatic
events with peers, and "violent incidents between he [sic] and his
dad and his sister that he was involved in."
Finally, Fisher testified that toward the end of Lawlor's
treatment, which lasted several weeks and spanned four to five
sessions, she had referred Lawlor for inpatient treatment, for
which he had en refused, and that during the intake procedure
Lawlor reported he had a history of physical and sexual abuse by
31
someone he lived with after he ran away from home at t age of
sixteen. Thus, despite being asked numerous open-ended questions
by Lawlor's counsel, Fisher's testimony established that during her
treatment of Lawlor, he never specifically stated he had been
sexually abused, although he had suggested that might be the case,
and that his suggestions of abuse involved peers, not his father.
The first direct report of sexual abuse, according to Fisher's
testimony, was in Lawlor's intake report. To the extent this
testimony differs from Fisher's affidavit, this Court need not
decide which is more credible. Counsel could reasonably have
determined, based on Fisher's testimony at trial, that if asked
directly if Lawlor had ever reported to her that he had been
sexual~y abused by his father, Fisher's response would have been,
"No." As Lawlor concedes, he had repeatedly attempted throughout
the course of the trial to establish that he had been sexually
abused by his father, and counsel could reasonably have determined
that asking this question would have been more detrimental than
helpful to his case. Thus, Lawlor has failed to demonstrate that
counsel's performance was deficient or that there is a reasonable
probability that, but for counsel's alleged errors, the result of
the proceeding would have been different.
CLAIM (XII)
In claim (XII), Lawlor contends he was denied the effect
assistance of counsel because counsel failed to present testimony
from Dr. James Hopper, a clinical psychologist with expertise in
the long-term effects of childhood abuse, who was appointed by the
trial court to assist Lawlor. Lawlor contends that Dr. Hopper's
testimony should have been presented as part of his mitigation
32
evidence to put Lawlor's prior bad acts and Orange's murder into
context by showing Lawlor's criminal acts were rooted in the trauma
he suffered during his childhood and adolescence. Lawlor further
contends that Dr. Hopper's testimony should have been presented to
show Lawlor's mental health and substance abuse treatment programs
had been ineffective because they fail to address his underlying
mental health issues, and to support the central mitigation theme
that Lawlor was an abused and neglected child who turned to drugs
and alcohol, that his violent acts had been the result of his
addictions, and that he should not be sentenced to death.
Lawlor proffers that Dr. Hopper would have testified the abuse
and neglect Lawlor suffered as a child negatively affected his
ability to plan, make decisions, and regulate his emotions and
behavior. Dr. Hopper would have testified that Lawlor's history of
neglect and abuse and the resulting behavioral and interpersonal
deficits led Lawlor to addiction and a cycle of sobriety and
relapse, often involving criminal act ty and incarceration, and
this cycle was exacerbated by the lack of treatment for his
underlying issues. Lawlor her proffers Dr. Hopper would have
testified Lawlor's cocaine and alcohol binge on the night of the
murder was an inevitable result of his initial success maintaining
sobriety and a good job, which led him to distance himself from his
support network and stop attending Alcoholics Anonymous (AA)
meetings. When his grandmother and a friend subsequently died,
Lawlor had completely isolated himself from his support network and
began a downward spiral.
The Court holds claim (XII) satisfies neither the performance
nor the prejudice prong of the two-part test enunciated in
33
Strickland. The Un ed States Supreme Court has held that, in
determining whether a petitioner has established prejudice based
upon counsel's failure to present additional mitigation evidence, a
reviewing court should consider whether a competent attorney, aware
of the evidence, would have introduced it at sentencing and
whether, had the jury been confronted with the evidence, there is a
reasonable probability it would have returned a different sentence.
v. Belmontes, 558 U.S. 15, 20 (2009). In evaluating this
second question, a reviewing court must consider all t relevant
evidence the jury would have considered, not just the proffered
additional mitigation evidence but also any rebuttal evidence the
prosecution might have offered, and determine if the petitioner has
shown "a reasonable probability that the jury would have rejected a
capital sentence after it weighed the entire body of mitigating
evidence." Id.
Here, the record, including the trial transcript, demonstrates
that much of the mitigating evidence Lawlor faults counsel for
failing to introduce was cumulative of the substantial mitigation
evidence already introduced. Many witnesses, including Lawlor's
family members, probation officers, and Mary Fisher, presented
evidence that Lawlor was an abused and neglected child who turned
to drugs and alcohol. Dr. Morton, Lawlor's expert
psychopharmacologist, and Fisher presented evidence that
individuals who suffer childhood trauma and have untreated
psychiatric problems often turn to drugs and alcohol to "self­
icate," and that Lawlor's mental health and substance abuse
treatment programs had been ineffective because they failed to
address his underlying mental health issues. Morton and John
34
Sullivan, the clinical coordinator for S s to Recovery, a program
that Lawlor completed just months fore he killed Orange,
presented evidence that Lawlor's addictions had precipitated
numerous violent acts. Morton and Sullivan also presented evidence
regarding the cycle of addiction, sobriety, and relapse, and Morton
explained how such cycles may be aggravated by untreated underlying
psychiatric problems. The cumulative mitigating evidence Lawlor
contends counsel should have introduced would not have ded
Lawlor. §~~ i29,
205 S.E.2d at 682.
In claim (XIII) (B) and a portion of claim (XIII) (C), Lawlor
contends he was denied the effective assistance of counsel because
37
counsel failed to object to the prosecutor's improper questions and
argument during the sentencing phase of trial. Lawlor contends
that the prosecutor's questions to Lawlor's mitigation witnesses
and closing argument improperly asserted that Lawlor had raped
Orange, and that whether Lawlor had completed the rape was a
question left unresolved by the jury's verdict. Therefore, Lawlor
argues, any assertion that he was guilty of a completed rape was
improper, and he was prejudiced by counsel's failure to object
because the jury was likely to infer counsel conceded that he was
guilty of rape.
The Court holds that claim (XI I I) (B) and this portion of claim
(XIII) (C) fail to satisfy the prejudice prong of the two-part test
enunciated in Strickland. "Under Code § 18.2-31(5) willful,
deliberate, and premeditated killing is capital murder if committed
in the cowmission of or subsequent to either rape or attempted
rape." Lawlor, 285 Va. at 222, 738 S.E.2d at 866. The jury was
permitted to find Lawlor guilty if it found either predicate. Id.
at 222, 738 S.E.2d at 867. The sentencing phase jury was composed
of the same jurors who convicted Lawlor during the guilt phase of
tal. Consequently, the jurors knew during the sentencing phase
which predicate they had found in the guilt phase. Lawlor
therefore cannot establish that he was prejudiced by the
prosecutor's references to rape. Thus, Lawlor has failed to
demonstrate that, but for counsel's alleged errors, the result of
the proceeding would have been different.
38
CLAIMS (XIV) & (XV)
In claim (XIV) and a portion of claim (XV), Lawlor contends
the cumulative effect of counsel's deficient performance undermines
confidence in the jurors' decision.
The Court holds that claim (XIV) and this portion of claim
(XV) are without merit. As addressed previously, Lawlor has failed
to demonstrate prejud as a result of counsel's alleged errors.
"Having rejected each of itioner's individual claims, there is
no support for the proposition that such actions when considered
collectively have deprived petitioner of his constitutional ght
to effective assistance of counsel." Lenz v. Warden of the Sussex
I State Prison, 267 Va. 318, 340, 593 S.E.2d 292, 305, cert.
denied, 542 U.S. 953 (2004).
In the remaining portion of claim (XV), Lawlor contends the
cumulative effect of trial errors produced a trial that was
fundamentally unfair, thereby depr ng him of his constitutional
right to due process.
The Court holds that this portion of claim (XV) is barred
because this non-jurisdictional issue could have been raised at
trial and on direct appeal and, thus, is not cognizable in a
petition for a writ of habeas corpus. Sl 215 Va. at 29, 205
S.E.2d at 682.
Upon consideration whereof, Lawlor's motion to make the joint
appendix from the direct appeal part of the record is granted.
Lawlor's motions for discovery, for expert assistance, and for an
evidentiary hearing are denied.
39
Upon consideration of Lawlor!s motion to strike the Warden!s
evidence and the Warden's motions to stri Lawlor's affidavits,
the motions are denied. The exhibits and affidavits are considered
pursuant to the appropriate evidentiary rules.
Upon consideration of the Warden!s motions to amend the motion
to dismiss and to file a supplemental affidavit, the motions are
granted.
Accordingly, the petition is dismissed and the respondent
shall recover from petitioner the costs expended in his defense
herein.
This order shall be published in the Virginia Reports.
Respondent's costs:
Attorney's fee $50.00
A Copy,
Teste:
Clerk
40