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Lee v. Clarke

United States Court of Appeals, Fourth Circuit

March 20, 2015

MARK E. LEE, Petitioner - Appellant,
HAROLD W. CLARKE, Director, Department of Corrections, Respondent - Appellee

Argued December 10, 2014

Page 115

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. (3:13-cv-00251-HEH). Henry E. Hudson, District Judge.


David Bernard Hargett, HARGETT LAW, PLC, Glen Allen, Virginia, for Appellant.

Leah A. Darron, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.


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

Before MOTZ, GREGORY, and WYNN, Circuit Judges. Judge Gregory wrote the opinion, in which Judge Motz and Judge Wynn joined.


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GREGORY, Circuit Judge

Mark E. Lee (" Lee" ) appeals the district court's order granting the motion of the Director of the Virginia Department of Corrections (" Director" ) to dismiss his petition for a writ of habeas corpus. We issued a certificate of appealability to address Lee's claim that his trial counsel provided ineffective assistance by failing to request a jury instruction defining heat of passion. We find that the state habeas court's decision was based on an unreasonable application of clearly established federal law set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in that the court failed to appreciate the prejudice inherent in the absence of a jury instruction defining heat of passion given that the undisputed facts demonstrate that the instruction was crucial to Lee's defense. We therefore reverse the district court's order of dismissal and remand with instructions that it issue Lee a writ of habeas corpus unless the Commonwealth of Virginia endeavors to prosecute him in a new trial within ninety days.



On September 16-17, 2008, Lee was tried by a jury in the Circuit Court for the

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City of Richmond on a charge of first degree murder in connection with the stabbing of a man named Thomas Plummer. According to the testimony of William Gormley, a forensics pathologist and an assistant chief medical examiner with Virginia's Department of Health, Plummer suffered from " a total of seven inflicted sharp force injuries," but he ultimately died as a result of " two fairly large stab wounds on his chest." J.A. 64.[1]

The prosecution presented the testimony of a man named Jarrell Drayton. Drayton testified that in the early afternoon on April 9, 2008, he was outside on the 3100 block of Enslow Avenue in Richmond, Virginia. He stated that he was speaking with some people when he saw Plummer walking up the street. Drayton also observed a burgundy truck, in which Lee was a passenger, drive onto the 3100 block of Enslow Avenue. According to Drayton, Lee " looked at [Plummer] funny." J.A. 81. When asked to elaborate, Drayton stated only that Lee " turned his face upside down." J.A. 81.

Plummer walked over to Drayton and his acquaintances and asked for a gun. The truck was " [a] couple of steps" away, and the window was rolled up. J.A. 82. When nobody produced a gun, Plummer walked over to the truck and told Lee to get out. Drayton stated that Plummer " was ready to fight," and that when Lee got out of the truck, Plummer " moved right up on him." J.A. 83. Drayton testified that Plummer struck Lee in the face, and that he observed blood coming from Lee's eye. Drayton thought Plummer struck Lee at most six times, but he was unsure. As Plummer and Lee were fighting, Drayton heard Plummer yell " he stabbed me." J.A. 84. Plummer then advanced " up the street holding his chest," but Lee approached from behind and the two began fighting again. Drayton first stated that Plummer was again stabbed in the chest, but later admitted that he was not sure where on Plummer's body the blow landed. Plummer ran around a car and Lee continued to pursue him, but Drayton and another individual intervened and told Lee to leave Plummer alone. Drayton heard Lee state " I'm tired of him" and " I'm gonna kill him," before running from the scene. J.A. 85-87. Drayton did not know where Lee went afterward. Plummer collapsed and later died.

After Drayton's testimony, the prosecution rested its case. Lee's trial counsel then made a motion to strike the first degree murder charge and to proceed instead on a second degree murder charge, arguing that the Commonwealth had failed to show premeditation. He also moved to proceed on a manslaughter charge alone, arguing that there was no evidence of malice given that Plummer provoked Lee by striking first. J.A. 111-13 (" [W]hen there is an assault on the defendant, and he is provoked through that assault through no fault of his own, then that negates the element of malice, which is required for a murder conviction." (citing Moxley v. Commonwealth, 195 Va. 151, 77 S.E.2d 389 (Va. 1953), and Wilkins v. Commonwealth, 176 Va. 580, 11 S.E.2d 653 (Va. 1940)). The prosecutor responded that " [i]f the defendant, after having been struck, had defended himself quickly with a knife and the fight would have terminated, then I would have brought [the court] a manslaughter case." J.A. 114. He went on to characterize Drayton's testimony:

The truth is the fight was over, the man had been stabbed in the chest, he retreated, he backed off, " I've been stabbed," at which point we are pursuing first degree murder, because this

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defendant then, after having stabbed the man once, pursued the man, stabbed him again, either got him in the heart or in the liver, and specifically said loud enough for everyone to hear: " I'm going to kill him." And then even after they told him, " leave him alone," he chased him down and stabbed him again.
The Court is well aware, willful, deliberate, and premediated [intent] can be formed in the blink of an eye, and when you say, " I'm going to kill him," you have reached the standpoint of first degree murder.

J.A. 114.

Lee's trial counsel argued there might not have been a cooling off period between the two stabbings. However, the trial court denied the motions, stating, " [t]he court believes the jury viewing the evidence in the light most favorable to the Commonwealth will have sufficient evidence of malice, and that evidence will include the defendant's statement." J.A. 115.


Trial counsel then presented Lee's case to the jury, in the form of testimony from Lee and Lee's friend, Reginald Davis. Lee testified that he and Plummer had an argument the Friday prior to Plummer's killing. In particular, Lee testified that the two men were at the Salvation Army when Plummer " approached [him] about some rumors he had heard." J.A. 126. Lee denied knowledge of the rumors, " [a]nd then [Plummer] pushed [him] into a lamp on a table at the Salvation Army. And the houseman at the Salvation Army . . . put [them] both out that day." J.A. 126.

The following Wednesday, April 9, 2008, Davis was driving down Enslow looking for men to help pick up trash and do some other work for a friend. Davis saw Lee and pulled over to let him into his truck so they could discuss the work. As they were talking, Lee spotted Plummer outside. Davis testified that Plummer passed by the truck, and then returned to speak to Lee. Davis stated that Lee " said something along the line . . . you got us kicked out of that place." J.A. 119. Plummer " had this look in [sic] his face like he wanted to start fighting again," and Lee urged Plummer to " let it go." J.A. 127. Plummer then told Lee to get out of the truck, but before he could exit, Plummer began punching him through the window. Plummer struck him in the face about the eye and his glasses. Lee stated that his " eye just started spitting out blood." J.A. 127. Lee testified that Plummer pulled him out of the truck, and he fell to one knee. Plummer " was over top of [Lee] beating [him], and [Lee] was throwing [his] hand up to try to . . . get up on [his] feet, and [Plummer] just kept on hitting [Lee] in [his] head." J.A. 129.

Lee drew a pocket knife,[2] swung it at Plummer, and then heard Plummer say, " He stabbed me." J.A. 131. Lee admitted that he then stated, " Man you knocked my eye out. Man I'm gonna kill this nigga." J.A. 131. By then, Plummer was across the street yelling for someone to give him a gun. Lee testified that he did not pursue Plummer or engage in additional fighting. Instead, other individuals in the area told Lee to leave, and he did so.

Davis did not see the stabbing. Rather, Davis exited the truck from the driver's side once the fight began, but when he got to the passenger side, Lee and Plummer " were coming off the ground." J.A. 120. Davis observed Plummer running away " holding his upper torso [and] saying, 'I

Page 119

can't believe I've been stabbed.'" J.A. 120. Davis then returned to his truck and drove away. He testified that he did not see a knife in Lee's hand at any point, and that he was unaware that Lee was armed.


At the close of all testimony, Lee's trial counsel again moved to strike the murder charges and proceed solely on manslaughter. Counsel argued that there was sufficient evidence of provocation, and also that the Commonwealth had failed to prove premeditation beyond a reasonable doubt. The trial court rejected trial counsel's arguments, stating that there were credibility determinations that must be put to the jury. The court stated also:

The statement of the intent can incur [sic] after the forming of the intent, and that's a jury issue. The fact that the expression of the, I intend to kill him, was after one or two of the wounds is not relevant. The issue is when the intent ...

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