Lawlor v. Commonwealth

• Decision Date: 10 January 2013
• Docket Number: Record No. 120481.
• Parties: Mark Eric LAWLOR v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

285 Va. 187

738 S.E.2d 847

Mark Eric LAWLOR

v.COMMONWEALTH of Virginia.

Record No. 120481.

Supreme Court of Virginia.

Jan. 10, 2013.

Joshua M. Segal (Mark Petrovich; Thomas Walsh; Petrovich & Walsh; Fairfax; Meghan Shapiro; Edward J. Ungvarsky, Capital Defender; Terese E. McGarrity, Deputy Capital Defender; Ann K. Wanger; Jenner & Block, on briefs), for appellant.

Katherine B. Burnett, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

PRESENT: All the Justices.

Opinion by Justice WILLIAM C. MIMS.

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.

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 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 conclusionof 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).²Prieto v. Commonwealth, 283 Va. 149, 159, 721 S.E.2d 484, 490–91,cert. denied,––– U.S. ––––, 133 S.Ct. 244, 184 L.Ed.2d 129 (2012) (“ Prieto II ”); Andrews v. Commonwealth, 280 Va. 231, 252, 699 S.E.2d 237, 249,cert. denied,––– U.S. ––––, 131 S.Ct. 2999, 180 L.Ed.2d 827 (2011). 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 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.⁴Rule 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 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, 104 S.Ct. 744, 79 L.Ed.2d 202 (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, 122 S.Ct. 621, 151 L.Ed.2d 542 (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, 112 S.Ct. 1500, 117 L.Ed.2d 639 (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.

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, 178 L.Ed.2d 86 (2010); Juniper v. Commonwealth, 271 Va. 362, 390, 626 S.E.2d 383, 402,cert. denied,549 U.S. 960, 127 S.Ct. 397, 166 L.Ed.2d 282 (2006); Orbe v. Commonwealth, 258 Va. 390, 403, 519 S.E.2d 808, 815 (1999), cert. denied,529 U.S. 1113, 120 S.Ct. 1970, 146 L.Ed.2d 800 (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...