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Lawlor v. Zook

United States Court of Appeals, Fourth Circuit

November 27, 2018

MARK ERIC LAWLOR, Petitioner - Appellant,
v.
DAVID W. ZOOK, Warden, Respondent - Appellee.

          Argued: September 25, 2018

          Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Mark S. Davis, District Judge. (2:15-cv-00113-MSD-LRL)

         ARGUED:

          Timothy Patrick Kane, FEDERAL COMMUNITY DEFENDER OFFICE FOR EASTERN DISTRICT OF PENNSYLVANIA, Philadelphia, Pennsylvania, for Appellant.

          Matthew P. Dullaghan, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

         ON BRIEF:

          Aren Adjoian, FEDERAL COMMUNITY DEFENDER OFFICE FOR EASTERN DISTRICT OF PENNSYLVANIA, Philadelphia, Pennsylvania; Emily Munn, BISCHOFF MARTINGALE, P.C., Norfolk, Virginia, for Appellant.

          Mark R. Herring, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

          Before MOTZ, DUNCAN, and THACKER, Circuit Judges.

          THACKER, CIRCUIT JUDGE

         A Virginia state court sentenced Mark Eric Lawlor to death after his conviction for the capital murder of Genevieve Orange. In recommending the death sentence, the sentencing jury found that there was a probability Lawlor "would commit criminal acts of violence that would constitute a continuing serious threat to society." Va. Code Ann. § 19.2-264.4.C. Lawlor exhausted state court direct appeal and post-conviction remedies. He then filed the instant federal petition for review of his death sentence pursuant to 28 U.S.C. § 2254, raising 18 claims. The district court dismissed his petition, and Lawlor appealed.

         We granted a certificate of appealability on three issues raised in the federal petition, including whether it was constitutional error for the trial court to exclude expert testimony about Lawlor's risk of future violence in prison. Specifically, the state court excluded specialized and relevant testimony of a qualified witness who would have explained that Lawlor "represents a very low risk for committing acts of violence while incarcerated," J.A. 1070, [1] where the jury's only choices were life in prison without parole ("LWOP") or death.

         As more fully explained below, we conclude that the state court's exclusion of the expert's testimony was an unreasonable application of clearly established federal law. It is well established that "evidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating," and "such evidence may not be excluded from the sentencer's consideration." Skipper v. South Carolina, 476 U.S. 1, 5 (1986). Because we also conclude the state court's error in this regard had a substantial and injurious effect, we reverse the district court's decision and remand with instructions to grant relief.

         I.

         A.

         Factual Background

         In 2008, Lawlor worked as a leasing consultant at an apartment complex in Fairfax County, Virginia, and had access to keys to each apartment. On September 24, 2008, Lawlor consumed alcohol and a large amount of crack cocaine and sexually assaulted, bludgeoned, and killed a tenant in that complex, Genevieve Orange.

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. 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 v. Commonwealth, 738 S.E.2d 847, 859 (Va. 2013).

         Lawlor was indicted on March 16, 2009, in Virginia state court on two counts of capital murder: (1) premeditated murder in the commission of, or subsequent to, rape or attempted rape;[2] and (2) premeditated murder in the commission of abduction with the intent to defile.[3] On the eve of trial, Lawlor admitted "participation" in the murder. Lawlor, 738 S.E.2d at 859. In February 2011, Lawlor was convicted of both counts. He does not challenge any aspect of the conviction in this appeal.

         After Lawlor's conviction at the guilt phase of his trial, the jury proceeded to the penalty phase. Virginia law provides, "The penalty of death shall not be imposed unless the Commonwealth shall prove beyond a reasonable doubt that": (1) "there is a probability based upon evidence of the prior history of the defendant or of the circumstances surrounding the commission of the offense of which he is accused that he would commit criminal acts of violence that would constitute a continuing serious threat to society" (the "future dangerousness aggravator"); or (2) "that his conduct in committing the offense was outrageously or wantonly vile, horrible or inhuman, in that it involved torture, depravity of mind or aggravated battery to the victim" (the "vileness aggravator"). Va. Code Ann. § 19.2-264.4.C.

         The Commonwealth presented evidence of aggravating factors supporting a death sentence. Lawlor then presented his mitigation case, which included around 50 witnesses, in support of a LWOP sentence. He called witnesses who testified about his alcohol and drug abuse; family witnesses; social history witnesses; experts who testified about addiction; and as discussed in depth below, an expert on prison risk assessment and adaptation, Dr. Mark Cunningham.

         The jury found that both the vileness aggravator and future dangerousness aggravator were present in Lawlor's case, and it returned a death sentence on each of the two murder counts. Thereafter, the trial court was charged with determining "whether the sentence of death is appropriate and just." Va. Code Ann. § 19.2-264.5. At sentencing on July 1, 2011, the trial court concluded there was "no reason to intercede and sentence [Lawlor] contrary to the recommendations of the jury in either count one or two," and imposed the death sentence. J.A. 1230.

         B.

         Expert Witness Testimony

         Arguably the most contentious portion of the penalty phase was during the testimony of retained expert Mark Cunningham, Ph.D., a clinical psychologist and expert in prison risk assessment and adaptation. He evaluated Lawlor by interviewing him, his former probation officer, a friend, and a corrections supervisor; and by reviewing criminal records, prison records, mental health and rehabilitation records, school records, and employment records. Dr. Cunningham used Lawlor's past behavior, as well as statistical data and actuarial models, to analyze Lawlor's "potential to adjust to a life term in prison without serious violence." J.A. 552.

         1.

         Dr. Cunningham is Permitted to Testify

         The first issue was whether Dr. Cunningham would be able to testify at all. Defense counsel proffered:

What he is going to be talking about is, and as set forth in his report, based upon the particular characteristics of Mr. Lawlor, the fact of his prior conduct while incarcerated in jails and prisons in the past, and the lack of write-ups for lack of violence; Mr. Lawlor's age; Mr. Lawlor's having connections with members of the community, and other factors as set forth in the report that, based upon specific factors that relate to Mr. Lawlor that are different than me and that are different than other Defendants.
Based upon all that, Dr. Cunningham will opine that Mr. Lawlor is a low risk to commit serious acts of violence in prison and he can put some numbers on that as set forth in the report; a low risk, a very low risk.
That is peculiar to him. That is unique to him.

         J.A. 869-70. The trial court ultimately ruled:

I don't dispute that what you have said so long as it is particularized to this Defendant and stays with in the guidelines of Morva [v. Commonwealth, 683 S.E.2d 553 (Va. 2009)], but I think that Dr. Cunningham's report appears to me to be far in excess of that. . . .
[T]otal exclusion of Dr. Cunningham would be improper under [Morva and Gray v. Commonwealth, 645 S.E.2d 448 (Va. 2007)] but it's going to have to be limited under the rules of evidence, in all respects, as well as limited to the particularized facts of this Defendant as set forth; his character, his prior record and the circumstances of his offense, not prison life and not the effect of prison life.

Id. at 872-73.

         The Commonwealth objected: "It was mentioned in Counsel's argument about [Lawlor's] risk of future dangerousness in prison society. That's not the question, and the jury is not limited to considering prison society and that's another danger with this type of testimony." J.A. 873. The trial court explained, "The Supreme Court has been very clear; it is the society, it is not the prison society which he is maybe confined to --it's society, period." Id. at 874. Defense counsel then stated, "I would not put [Dr. Cunningham] on to say [Lawlor is not a risk of future dangerousness, period]." Id. at 875. The trial court then allowed Dr. Cunningham to take the stand.

         2.

         The Trial Court's View of "Society"

         On direct examination, Dr. Cunningham explained his methodology and the materials he reviewed. Defense counsel stated, "[S]pecifically regarding the facts and circumstances of Mr. Lawlor's prior history, and the circumstances of the offense, [I want to turn to] whether Mr. Lawlor would commit criminal acts of violence that would constitute a continuing serious threat to society in the future." J.A. 955. The Commonwealth objected, and the trial court reiterated that society "is not the prison. . . . I think [defense counsel] knows that he can't ask that question, limited to the prison." Id. at 957.

         Defense counsel then asked Dr. Cunningham, "[W]hat is your opinion as to whether Mr. Lawlor would commit criminal acts of violence that would constitute a continuing serious threat to society if he were to be sentenced to life imprisonment rather than to death?" J.A. 960-61. Dr. Cunningham answered, "That likelihood is very low," to which the Commonwealth objected, and the trial court sustained the objection and struck the answer. Id. at 962. After several more attempts by defense counsel to elicit testimony about Lawlor's future dangerousness in prison, the trial court said, "[I]t's not limited to prison society, and it's misleading to the jury." Id. at 964.

         The court repeatedly admonished defense counsel and Dr. Cunningham not to confine "society" to prison. See, e.g., J.A. 979 ("We've already discussed that three times at the bench. The issue is not life in prison. It's an issue of risk of violence, period."); id. at 981 ("The issue in this case that you are here to testify about is the likelihood of future violence of Mr. Lawlor. It is not the likelihood of future violence in prison."); id. at 995 ("It's future dangerousness, period, not future dangerousness in prison . . . ."); id. at 1023 ("The issue is not violence in prison. . . . [I]f [Dr. Cunningham] continues to talk about violence in prison that's not the issue."); id. at 1027 ("I have told you over and over the issue is future dangerousness. It's not future dangerousness in prison . . . it's future dangerousness of this individual and you keep trying to back door in the capital sentence . . . .").

         The trial court also relied on the Virginia Supreme Court decision of Porter v. Commonwealth, 661 S.E.2d 415 (Va. 2008), explaining, "[I]n Porter, they . . . said the argument that . . . prison society, what you call prison life, is the only society which should be considered for future dangerousness has been rejected." J.A. 986. As a result of the trial court's belief that Dr. Cunningham could not testify about future dangerousness in prison only, Dr. Cunningham was not able to sufficiently explain his prediction that Lawlor would present a very low risk of violence if incarcerated.

         3.

         Dr. Cunningham's Other Testimony

         Dr. Cunningham was able to testify about some of the characteristics and history of Lawlor. He stated that there was an instance of Lawlor being "verbally abusive and profane towards jail staff," J.A. 1036, and being the "victim" of two fistfights, for which no disciplinary action was taken, id. at 1009. But Dr. Cunningham explained that, overall, Lawlor was not historically violent in a prison setting. He otherwise attempted to discuss risk factors such as age and education, both of which he found to weigh in favor of Lawlor being a low risk for prison violence. However, when Dr. Cunningham attempted to cabin his opinion in terms of "prison," the Commonwealth would object, and the trial court would admonish the expert or defense counsel. Dr. Cunningham eventually told the court it would "violate [his] oath" if he talked about risk of violence outside of prison because his "risk assessment is specific to prison," and the trial court responded, "Then you may not be able to testify." Id. at 1029-30.

         In response to Lawlor's argument on this point, the Commonwealth contends "the jury actually heard the opinions that Lawlor[] [has] asserted in his petition were missing." Resp't's Br. 24 (citing J.A. 966, 967-72). But the passages cited in the Commonwealth's brief do not support this contention. In the first passage, Dr. Cunningham stated, "[T]here is a very low likelihood of serious violence from being in prison," which was vague and not at all particularized to Lawlor. J.A. 966. The other passage cited likewise contains no evidence specific to Lawlor; rather, it is a list of the factors Dr. Cunningham considered in his assessment, ending with yet another objection and bench conference. See id. at 967-72. In all, Dr. Cunningham's testimony, riddled with objections and bench conferences, could hardly have given the jury a firm and clear picture of his predictive expert opinion.

         4.

         Dr. Cunningham's ...


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