Lawlor v. Zook, 17-6

909 F.3d 614

Mark Eric LAWLOR, Petitioner - Appellant,

v.David W. ZOOK, Warden, Respondent - Appellee.

No. 17-6

United States Court of Appeals, Fourth Circuit.

Argued: September 25, 2018

Decided: November 27, 2018

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.

Reversed and remanded by published opinion. Judge Thacker wrote the opinion, in which Judge Motz and Judge Duncan joined.

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, 106 S.Ct. 1669, 90 L.Ed.2d 1 (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 , 285 Va. 187, 738 S.E.2d 847, 859 (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 , 278 Va. 329, 683 S.E.2d 553 (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 , 274 Va. 290, 645 S.E.2d 448 (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...