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Present: All the Justices.
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 granted and that the writ should not issue.
Mark Eric Lawlor was convicted in the Circuit Court of Fairfax County of capital murder in the commission of, or subsequent to, rape or attempted rape, Code § 18.2-31(5), and capital murder in the commission of abduction with intent to defile, Code § 18.2-31(1), and was sentenced to death on each conviction. This Court affirmed Lawlor's convictions and upheld his sentences of death in Lawlor v. Commonwealth, 285 Va. 187, 738 S.E.2d 847, cert. denied, ___ U.S. ___, 134 S.Ct. 427, 187 L.Ed.2d 282 (2013).
The victim, Genevieve Orange, was found on the floor of the living area of her studio apartment. The door to Orange's apartment was unlocked and there were no signs of forced entry. Orange had been struck at least 47 times with one or more blunt objects. Some of Orange's wounds were consistent with having been struck with a frying pan. Others were consistent with having been struck with a hammer. Subsequent medical examination established that Orange had aspirated blood and sustained defensive wounds to her hands and arms, indicating she had been alive and conscious during some part of the beating.
Orange's body lay near her couch, which was saturated with blood. 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. A bent metal pot was found near Orange's body. Its [288 Va. 224] wooden handle had broken off and was found in 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 keys to each apartment. Testing of the semen on Orange's abdomen and thigh showed DNA consistent with Lawlor's DNA. At trial, Lawlor's attorneys admitted Lawlor had killed Orange, but contested the allegations of premeditation, rape and abduction.
CLAIMS (I), (II) & (V)
In claims (I) and (II), Lawlor alleges the Commonwealth failed to disclose exculpatory information as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and presented false testimony or allowed it to go uncorrected in violation of Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).
As the Court has stated previously:
In Brady , the United States Supreme Court held that " the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." [373 U.S.] at 87.
. . . .
Exculpatory evidence is material if there is a reasonable probability that the outcome of the proceeding would have been different had the evidence been disclosed to the defense. " A reasonable probability" is one which is sufficient to undermine confidence in the outcome of the proceeding.
Muhammad v. Warden, 274 Va. 3, 4, 646 S.E.2d 182, 186 (2007) (citations omitted). Furthermore, this Court has previously held that, " to find that a violation of Napue occurred . .., we must determine first that the testimony [at issue] was false, second that the prosecution knew of the falsity, and finally that the falsity affected the jury's judgment." Teleguz v. Commonwealth, 273 Va. 458, 492, 643 S.E.2d 708, 729 (2007).
In a portion of claims (I) and (II), Lawlor alleges Detective John Tuller lied in his curriculum vitae, which the Commonwealth submitted to the defense pursuant to Code § 19.2-264.3:4, with its notice of intent to introduce expert testimony. The notice named Tuller as the Commonwealth's [288 Va. 225] expert in bloodstain pattern interpretation. In his curriculum vitae, Tuller stated he had testified as an expert in bloodstain pattern interpretation in six cases. However, in two of the cases Tuller identified, he testified only as a fact witness. Tuller further stated he was a current member of the International Association of Bloodstain Pattern Analysts (IABPA). However, Tuller's membership with the IABPA had expired. Tuller claimed he attended a crime scene investigation seminar at the Miami Metro-Dade Police Training Institute. However, the Miami Metro-Dade Police Department has no record of his attendance. Finally, Tuller represented that in 2003 he attended the Bloodstain Users Group Seminar at the Virginia Department of Forensic Science (DFS). However, DFS denied ever presenting such a seminar.
The Court rejects these portions of claims (I) and (II). The record, including the affidavits of Lawlor's counsel and the manuscript record, demonstrates that the alleged inconsistencies in Tuller's curriculum vitae 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 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. Slayton v. Parrigan, 215 Va. 27, 29, 205 S.E.2d 680, 682 (1974), cert. denied, 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975).
In another portion of claims (I) and (II), Lawlor contends Tuller lied in his testimony to the trial court when questioned about his expert qualifications. At trial, Tuller repeated his assertion he had testified as an expert in bloodstain pattern interpretation in six cases. Tuller also stated all six cases were homicides, and that 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 he had testified as an expert involved a malicious wounding and not a homicide. Finally, of the six cases Tuller identified in his curriculum vitae, one was Lawlor's preliminary hearing, which had not, at the time of Tuller's testimony, resulted in a conviction.
The Court rejects these 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 time of his trial, the Court holds that these portions of claims (I) and (II) are barred. 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. Slayton, 215 Va. at 29, 205 S.E.2d at 682.
In claim (V), Lawlor argues he was denied the effective assistance of counsel because counsel failed to investigate and confront Detective [288 Va. 226] Tuller's representations regarding his qualifications to testify as an expert. Lawlor contends that had counsel challenged Tuller's expert qualifications, there is a reasonable probability that the court would have sustained Lawlor's objection to Tuller's certification as an expert witness, that his testimony would have been precluded, and that he would not have been convicted of capital murder. Lawlor argues that had Tuller not testified, the Commonwealth would have had no evidentiary basis to argue Lawlor 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 premeditation. 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 Commonwealth relied on Tuller's expert opinion to show the victim was in a vulnerable position when she was attacked. Finally, Lawlor contends that had Tuller been permitted to testify as an expert in bloodstain pattern interpretation despite counsel's objections, counsel could have used his false statements to impeach him before the jury.
The Court holds that claim (V) fails to satisfy the prejudice prong of the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The record, including Tuller's affidavit and attached exhibits and the affidavit of Lawlor's trial counsel, demonstrates that Tuller's curriculum vitae contained multiple errors. Of the six cases in which Tuller claimed to have testified as an expert in bloodstain pattern interpretation, he had testified as an expert in only four. Tuller was not a current member of the IABPA, his membership having expired years before Lawlor's trial. Tuller attended the Miami-Dade Police Training institute's Crime Scene Investigation Seminar in January 2003, not January 2002, as Tuller stated. The Bloodstain Users Group Seminar Tuller attended in 2003 was not a 40-hour course and was not presented by DFS, as Tuller's curriculum vitae stated. Although Lawlor's counsel was aware of at least one of the discrepancies in Tuller's curriculum vitae before trial, counsel failed to pursue an adequate investigation or even ask Tuller about it during their pretrial interview with him. in addition, Tuller's testimony that he had testified as an expert in bloodstain pattern interpretation in six cases and that all six had been murder cases and had resulted in convictions was clearly incorrect and inconsistent with Tuller's curriculum vitae. Counsel, however, failed to question Tuller about the discrepancies.
Assuming, without deciding, that these inaccuracies would have precluded Tuller from testifying as an expert or, had he been permitted [288 Va. 227] to testify as an expert, would have impeached his expertise, Lawlor cannot show a reasonable probability of a different outcome. Tuller's expert testimony was not crucial to prove Lawlor abducted Orange. The Commonwealth was not required to present evidence that Lawlor moved Orange from the couch to the floor to prove he abducted her. " [T]he physical detention of a person, with the intent to deprive him of his personal liberty, by force, intimidation, or deception, without any asportation of the victim from one place to another, is sufficient." Scott v. Commonwealth, 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 used 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 head 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 defensive wounds to her hands and arms. Combined with the blood in her lungs, this indicated Orange was alive for at least part of the 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 testified 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, perpendicular to the couch, with her feet near the end of the couch where the pool of blood from her head was. The jury could reasonably infer from this evidence that Orange did not willingly move from the couch to the floor.
Further, DiAngelo's testimony 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 blows to Orange; evidence of Lawlor's rational, competent behavior while purchasing and consuming drugs with Michael Johnson, who had facilitated Lawlor's purchase of drugs; Lawlor's ability to plan, as evidenced by his obtaining the victim's keys, traveling to her apartment, and using a back exit to avoid detection after 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; his evident disposal of the [288 Va. 228] hammer and his bloody clothes; and his 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 in claim (V), the result of the proceeding would have been different.
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 the decisions in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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." Blakely, 542 U.S. at 303-04.
The Court holds that claim (III)(A) 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. Slayton, 215 Va. at 29, 205 S.E.2d at 682.
In claim (III) (B), Lawlor contends he was denied the effective assistance of counsel because counsel failed to protect his right to plead guilty and to have the aggravating factors of vileness and future dangerousness, which must be proven beyond a reasonable doubt before a sentence of death may be imposed, determined by a jury. Lawlor contends counsel should have argued that Code § 19.2-257 violates the Sixth Amendment 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." Blakely, 542 U.S. at 303-04.
The Court holds that claim (III)(B) fails to satisfy the prejudice prong of the two-part test enunciated in Strickland. Under Code § 19.2-264.4, the sentencing jury must consider, among other things, " the circumstances surrounding the offense." It is the jury's duty to consider all the evidence, both favorable and unfavorable, before fixing punishment. Stamper v. Commonwealth, 220 Va. 260, 275-76, 257 S.E.2d 808, 819 (1979). Thus, even if Lawlor had been permitted to plead guilty and have his sentence determined 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 [288 Va. 229] of Lawlor's crimes. In addition, although Lawlor argues a guilty plea would have permitted him to show remorse and accept responsibility in front of the jury, the record, including the trial transcript, demonstrates that counsel effectively proceeded as if Lawlor had entered a guilty plea. From opening statement through the end of trial, Lawlor's trial counsel conceded Lawlor had murdered Orange. The record further establishes that the crimes were extremely brutal, that the victim suffered significantly, that immediately after the murder Lawlor insisted he had no knowledge of the crimes and attempted to cast suspicion on his neighbor, and that after 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 determined by a jury, the jury 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)(B), the result of the proceeding would have been different.
In claim (IV) (A) and a portion of claim (IV) (C), Lawlor contends he was denied a fair trial because the prosecution used four of its five peremptory strikes to remove all persons of Hispanic and Pacific-Island ethnicity from the jury venire and the trial court failed ...