Lawlor v. Commonwealth

• Court: Supreme Court of Virginia
• Decided: January 10, 2013
• Docket: 120481
• Status: Published

Opinion

PRESENT: All the Justices

MARK ERIC LAWLOR OPINION BY v. Record No. 120481 JUSTICE WILLIAM C. MIMS January 10, 2013 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Jonathan C. Thacher, Judge

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.

1 Other wounds may have been consistent with having been struck by a hammer but no hammer was recovered.

2 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

3 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 conclusion of 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). 2 Prieto v.

Commonwealth, 283 Va. 149, 159, 721 S.E.2d 484, 490-91, cert.

denied, ___ U.S. ___, 133 S.Ct. 244, 2012 U.S. Lexis 6641

(2012) (“Prieto II”); Andrews v. Commonwealth, 280 Va. 231,

2 The abandoned assignments of error are 1, 3, 5, 6, 9, 10, 11, 12, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25, 26, 28, 30, 32, 33, 36, 37, 43, 65, 66, 68, 69, 70, 71, 73, 92, 94, 99, 100, 101, 102, 104, 105, 106, 107, 108, 109, 110, 112, 118, 121, 122, 126, 127, 129, 130, 133, 138, 139, 140, 142, 143, 144, 150, 151, 152, 153, 154, 155, 157, 158, 159, 161, 163, 166, 169, 170, 171, 172, 173, 174, 175, 176, 178, 181, 182, 183, 184, 191, 192, 197, 201, 203, 205, 211, 212, 216, and 217.

4 252, 699 S.E.2d 237, 249, cert. denied, ___ U.S. ___, 131 S.Ct.

299 (2010). 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

3 One of these, assignment of error 79, asserts that the court erred by denying Lawlor the follow-up question “And what would it depend on, ma’am?” when the member of the venire answered that her decision to impose the death penalty would “depend on the evidence.” We find no argument for this assignment of error in Lawlor’s brief and it therefore is abandoned. Rule 5:27(d).

5 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. 4 Rule 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

4 The brief also contains no independent argument on assignment of error 76 so to the extent it is not encompassed by assignments of error 74 and 75, it too is abandoned. Rule 5:27(d).

6 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 (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 (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 (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.

7 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 (2010); Juniper v.

Commonwealth, 271 Va. 362, 390, 626 S.E.2d 383, 402, cert.

denied, 549 U.S. 960 (2006); Orbe v. Commonwealth, 258 Va. 390,

403, 519 S.E.2d 808, 815 (1999), cert. denied, 529 U.S. 1113

(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 have come to a

different result in the first instance.” Evans, 514 F.3d at

322. Accordingly, “when a decision is discretionary . . . .

‘the court has a range of choice, and . . . its decision will

not be disturbed as long as it stays within that range and is

not influenced by any mistake of law.’ ” Landrum v. Chippenham

& Johnston-Willis Hosps., Inc., 282 Va. 346, 352, 717 S.E.2d

134, 137 (2011) (quoting Kern v. TXO Production Corp., 738 F.2d

968, 970 (8th Cir. 1984)); see also Evans, 514 F.3d at 322

(“[T]he [abuse of discretion] standard draws a line – or

rather, demarcates a region – between the unsupportable and the

8 merely mistaken, between the legal error, disorder of reason,

severe lapse of judgment, and procedural failure that a

reviewing court may always correct, and the simple disagreement

that, on this standard, it may not.”).

We recently focused this standard of review by identifying

the “three principal ways” by which a court abuses its

discretion: “when a relevant factor that should have been given

significant weight is not considered; when an irrelevant or

improper factor is considered and given significant weight; and

when all proper factors, and no improper ones, are considered,

but the court, in weighing those factors, commits a clear error

of judgment.” Landrum, 282 Va. at 352, 717 S.E.2d at 137

(quoting Kern, 738 F.2d at 970). Naturally, the law often

circumscribes the range of choice available to a court in the

exercise of its discretion. In such cases, “[t]he abuse-of-

discretion standard includes review to determine that the

discretion was not guided by erroneous legal conclusions,” id.

at 357, 717 S.E.2d at 139 (Millette, J., concurring) (quoting

Porter v. Commonwealth, 276 Va. 203, 261, 661 S.E.2d 415, 445

(2008), cert. denied, 556 U.S. 1189 (2009)), because a court

also abuses its discretion if it inaccurately ascertains its

outermost limits. Such an error may occur when the court

believes it lacks authority it possesses, see id. at 358, 661

S.E.2d at 140 (discussing court’s mistaken belief it lacked

9 authority to supervise courtroom security), when it believes

the law requires something it does not, LaCava v. Commonwealth,

283 Va. 465, 472, 722 S.E.2d 838, 841 (2012) (court abused its

discretion in denying a motion to extend the deadline for

filing a transcript based on a flawed interpretation of Rule

5A:8(a)), or when it fails to fulfill a condition precedent

that the law requires, Turner v. Commonwealth, 284 Va. 198,

208, 726 S.E.2d 325, 331 (2012) (court abused its discretion in

ruling a witness unavailable for lack of memory when it failed

to inquire into the authenticity of his claim as required by

precedent). But whether a court possesses or lacks authority,

and whether it has correctly identified and fulfilled the legal

prerequisites to a discretionary act, are themselves

significant factors in its consideration. Therefore, while our

abuse of discretion standard of review necessarily must include

a review of any legal conclusions made concomitant with a lower

court’s exercise of discretion, that does not mean abuse of

discretion review is partially de novo. See Koon v. United

States, 518 U.S. 81, 100 (1996). 5

5 Lawlor similarly implies a de novo review under the abuse of discretion standard elsewhere in his brief when quoting our statement in Porter and subsequent cases that a court “by definition abuses its discretion when it makes an error of law.” 276 Va. at 260, 661 S.E.2d at 445. For the foregoing reasons, this statement was not intended to be a back door through which an appellant may convert abuse of discretion review into de novo review.

10 In the case of voir dire, a trial court’s discretion in

excluding questions asked of the venire is limited by statute

and the United States Constitution. Code § 8.01-358

establishes a “right to ask [a member of the venire] directly

any relevant question to ascertain whether he is related to

either party, or has any interest in the cause, or has

expressed or formed any opinion, or is sensible of any bias or

prejudice therein.” To exclude all such questions would be

contrary to the statute, thereby constituting an abuse of

discretion. See Powell v. Commonwealth, 267 Va. 107, 143, 590

S.E.2d 537, 559, cert. denied, 543 U.S. 892 (2004) (“Powell

II”); LeVasseur, 225 Va. at 581, 304 S.E.2d at 653.

In a capital case, this inquiry of a prospective juror

encompasses questions of whether his “views [on the death

penalty] would ‘prevent or substantially impair the performance

of his duties as a juror in accordance with his instructions

and his oath.’” Morgan v. Illinois, 504 U.S. 719, 728 (1992)

(quoting Wainwright v. Witt, 469 U.S. 412, 424 (1985)); see

also Mackall, 236 Va. at 251, 372 S.E.2d at 766 (“[E]ither

party may require prospective jurors to state clearly that

whatever view they have of the death penalty will not prevent

or substantially impair their performance as jurors in

conformity with their oath and the court's instructions.”).

But within those perimeters, “[a] party has no right . . . to

11 propound any question he wishes, or to extend voir dire

questioning ad infinitum. The court must afford a party a full

and fair opportunity to ascertain whether prospective jurors

‘stand indifferent in the cause,’ but the trial judge retains

the discretion to determine when the parties have had

sufficient opportunity to do so.” LeVasseur, 225 Va. at 581,

304 S.E.2d at 653; accord Thomas, 279 Va. at 162-63, 688 S.E.2d

at 237; Juniper, 271 Va. at 396, 626 S.E.2d at 405. We

therefore review the challenged jurors’ entire voir dire, not

merely individual statements taken in isolation. Powell I, 261

Va. at 536, 552 S.E.2d at 358; Burns, 261 Va. at 329, 541

S.E.2d at 887.

2. VIEWS ON CAPITAL PUNISHMENT

In assignments of error 77, 78, and 88, Lawlor asserts

that the court erred by preventing him from asking specific

members of the venire “[D]o you have strong feelings in favor

of the death penalty?” or “[W]hat are your views about the

death penalty?” Lawlor asserts that the Supreme Court of the

United States identified such questions as constitutionally

protected in Morgan. That assertion is not accurate. Rather,

in Morgan the Supreme Court merely reiterated its earlier

holding in Witt, 469 U.S. at 424, and Adams v. Texas, 448 U.S.

38, 45 (1980), that a potential juror may be questioned to

determine whether his views “would prevent or substantially

12 impair the performance of his duties as a juror in accordance

with his instructions and his oath.” 504 U.S. at 728 (internal

quotation marks omitted). Thus there is no statutory or

constitutional right to ask Lawlor’s questions. Cf. Code

§ 8.01-358.

Accordingly, we have held that a party is not entitled to

ask potential jurors their views on the death penalty. Burns,

261 Va. at 329, 541 S.E.2d at 887 (citing Mackall, 236 Va. at

251, 372 S.E.2d at 766). The relevant inquiry is whether the

juror would adhere to them in disregard of the jury

instructions and in violation of his or her oath. Witt, 469

U.S. at 420 (“[A] juror may not be challenged for cause based

on his views about capital punishment unless those views would

prevent or substantially impair the performance of his duties

as a juror in accordance with his instructions and his oath.”

(quoting Adams, 448 U.S. at 45) (emphasis in Witt)). The court

therefore did not abuse its discretion by excluding Lawlor’s

questions.

3. MITIGATING EVIDENCE

In assignments of error 74, 75, 76, 80, 83, 84, 85, and

86, Lawlor argues that the court erred by preventing him from

asking specific members of the venire whether they would

consider specific types of evidence as mitigating evidence,

including evidence that the defendant was under the influence

13 of extreme mental or emotional disturbance; evidence of

childhood neglect; evidence of the defendant’s full life

history; evidence of a lack of prior violent criminal record;

and evidence of drug or alcohol use. Citing Abdul-Kabir v.

Quarterman, 550 U.S. 233 (2007), he argues that by denying him

the opportunity to ask about specific types of mitigating

evidence, the court prevented him from determining whether the

jurors could give meaningful consideration to all mitigating

evidence.

However, Abdul-Kabir requires that juries consider all

mitigating evidence as a whole; it does not require courts to

permit defendants to ask jurors how they would weigh every

species of mitigating evidence. See id. at 246. Furthermore,

we have ruled that questions about the effect of specific

mitigating evidence on the jurors’ deliberations “are improper

in voir dire because they are not relevant to a determination

of whether a juror has a particular bias or prejudice, but

instead attempt to elicit the juror's views on specific types

of evidence.” Powell I, 261 Va. at 536, 552 S.E.2d at 358.

Accordingly, the court did not abuse its discretion by

prohibiting this line of questioning.

In assignment of error 81, Lawlor argues that the court

erred by preventing him from asking whether specific members of

the venire would consider a life sentence in the absence of any

14 mitigating evidence. While we have indicated that a defendant

need not present any evidence pertaining to sentencing, see

Jackson v. Commonwealth, 267 Va. 178, 194, 590 S.E.2d 520, 529,

cert. denied, 543 U.S. 891 (2004), each of the specified

members of the venire was instructed during voir dire that a

sentence of death is never mandatory and that the jury could

return a sentence of life imprisonment without parole even if

the Commonwealth proved both aggravating factors and Lawlor

presented no mitigating evidence. The court thereafter asked

each member whether he or she understood that the defense was

not required to present mitigating evidence. Counsel also

asked whether the members of the venire understood and received

affirmative responses. However, the court rejected some forms

of Lawlor’s question and limited his inquiry as repetitive.

Reviewing the entire voir dire of the specified members of

the venire, Powell I, 261 Va. at 536, 552 S.E.2d at 358; Burns,

261 Va. at 329, 541 S.E.2d at 887, we are satisfied that “[t]he

circuit court explained the relevant legal principles, asked

appropriate questions to ensure that the jurors understood

those principles and could apply them to the case, and afforded

[Lawlor] a full and fair opportunity to ascertain whether

jurors could stand indifferent in the cause.” Bell v.

Commonwealth, 264 Va. 172, 196-97, 563 S.E.2d 695, 711-12

(2002), cert. denied, 537 U.S. 1123 (2003) (internal quotation

15 marks omitted). While the court restricted his voir dire,

Lawlor elicited the information he sought and was not entitled

to ask the members of the venire this question repetitively or

in his preferred form. Thomas, 279 Va. at 162-63, 688 S.E.2d

at 237; Juniper, 271 Va. at 396, 626 S.E.2d at 405; see also

Green v. Commonwealth, 266 Va. 81, 97, 580 S.E.2d 834, 843

(2003), cert. denied, 540 U.S. 1194 (2004) (“When . . . a trial

court affords ample opportunity to counsel to ask relevant

questions . . . sufficient to preserve a defendant's right to

trial by a fair and impartial jury, we will generally not

reverse [its] decision to limit or disallow certain questions

from defense counsel.” (internal quotation marks omitted)).

Accordingly, the court did not abuse its discretion.

In assignment of error 87, Lawlor asserts that the court

erred by preventing him from asking specific members of the

venire if they were substantially impaired from considering a

sentence of life imprisonment without parole if the defense

presented no mitigating evidence. He argues that the court

properly allowed him to ask whether they were “prevented” from

considering life imprisonment without parole but improperly

prevented him from asking whether they were “substantially

impaired” from considering such a sentence. He argues that

“prevent” and “substantially impair” are not interchangeable.

16 As noted above, the terms “prevent” and “substantially

impair” come from Adams, 448 U.S. at 45, and have been

reiterated in Witt, 469 U.S. at 424, Morgan, 504 U.S. at 728,

and Mackall, 236 Va. at 251, 372 S.E.2d at 766--all cases

applying them to a juror’s views on capital punishment and

their effect on his or her ability to follow jury instructions

and fulfill his or her oath. We need not decide whether the

terms “prevent” and “substantially impair” are interchangeable

in that context because they were not used for that purpose in

the portion of the record relevant to this assignment of error.

Rather, Lawlor asked a member of the venire, “[D]o you think

you would be substantially impaired from considering life

without parole as punishment for the guilty capital murderer

where aggravating circumstances were found and you heard no

evidence of mitigation?” 6 The question therefore did not seek

to elicit the effect of the jurors’ views on capital punishment

but rather whether they would consider life imprisonment

without parole if Lawlor presented no mitigating evidence,

which, as noted above, they had already answered. 7 That was the

view of the circuit court as well: in excluding the question

6 Lawlor also proposed a similar but longer version of the question in written form. 7 This assignment of error names two additional members of the venire who were not specified in assignment of error 81. However, they too had been fully instructed that the defendant need not present any mitigating evidence and were questioned whether they understood by the court and counsel.

17 upon the Commonwealth’s objection, it ruled, “They have

answered that question about eight times. Each of the

prospective jurors have said [‘]I would consider both, whether

there was mitigating evidence or where there wasn't mitigating

evidence[’] and you continue to ask the question.”

As noted above, a defendant has a right to propound

questions relevant under Code § 8.01-358 and the Adams line of

cases. However, he is not entitled to his preferred form of

question and does not have the right to repeat them

cumulatively when he already has elicited the relevant

information. Thomas, 279 Va. at 162-63, 688 S.E.2d at 237;

Juniper, 271 Va. at 396, 626 S.E.2d at 405; Green, 266 Va. at

97, 580 S.E.2d at 843. The information Lawlor sought was

whether the jurors would consider life imprisonment without

parole in the absence of any mitigating evidence. Any

distinction between the terms “prevent” and “substantially

impair” in the Adams line of cases does not apply to this

particular inquiry. Therefore, he had obtained the relevant

information and the court did not abuse its discretion by

restricting the form or frequency of his questions.

4. PRISON CONDITIONS

In assignment of error 72, Lawlor argues that the court

erred by preventing him from asking potential jurors whether

they could consider a sentence of life imprisonment without

18 parole in the absence of any evidence of prison security. He

contends that jurors may have been more willing to sentence him

to life imprisonment without parole if they were confident he

would be unable to present a danger there or escape.

We have previously ruled that evidence of general prison

conditions is not relevant in a capital case, either as

mitigating evidence, Juniper, 271 Va. at 425, 626 S.E.2d at 423

(citing Cherrix v. Commonwealth, 257 Va. 292, 310, 513 S.E.2d

642, 653, cert. denied, 528 U.S. 873 (1999)), or to rebut the

future dangerousness aggravating factor. Id. at 426-27, 626

S.E.2d at 424 (citing Bell, 264 Va. at 201, 563 S.E. 2d at

714); see also Morva v. Commonwealth, 278 Va. 329, 350, 683

S.E.2d 553, 565 (2009), cert. denied, ___ U.S. ___, 131 S.Ct.

97 (2010) (“The generalized competence of the Commonwealth to

completely secure a defendant in the future is not a relevant

inquiry.”). Code § 8.01-358 does not entitle or permit the

court or a party to examine potential jurors to ascertain what

effect the exclusion of irrelevant evidence may have on their

deliberations. Accordingly, the court did not abuse its

discretion by excluding Lawlor’s question.

5. MOTION FOR A MISTRIAL

In assignments of error 59 and 61, Lawlor argues that the

court failed to remedy its erroneous restrictions on voir dire

by denying his motion to re-question 7 members of the venire

19 and by denying his alternative motion for a mistrial. Because

we have found that the court did not erroneously restrict voir

dire, the court did not err in denying the motion. 8

CLAIM 5: THE CIRCUIT COURT’S CONDUCT DURING VOIR DIRE

This claim consists of 10 assignments of error asserting

that the circuit court erred by engaging in prejudicial conduct

during voir dire.

Lawlor asserts in assignments of error 34, 77, and 82 that

the court engaged in prejudicial conduct during voir dire by

issuing contradictory rulings. Based on our review of the

places in the record to which Lawlor refers, see Rule 5:27(c)

(requiring an appellant to refer “to the pages of the appendix

where the alleged error has been preserved”), the only rulings

adverse to Lawlor were those we have refused to reverse under

the abuse of discretion standard, including rulings on

questions to elicit the jurors’ views or feelings on capital

punishment, their ability to consider a sentence of life

imprisonment without parole in the absence of mitigating

evidence, and their willingness to consider specific types of

mitigating evidence. Because those rulings were not error,

8 These assignments of error include four members of the venire not specified in assignments of error 81 and 87. However, each of these members had also been instructed by the court that the defendant need not present any mitigating evidence and were questioned whether they understood by the court and counsel. Therefore the reasoning set forth above also applies to them.

20 they did not prejudice Lawlor in voir dire. To the extent that

the adverse rulings may have been contradicted by favorable

rulings at other places in the record, the favorable rulings

could not prejudice Lawlor because they enabled him to propound

questions that the court could properly, in its discretion,

have excluded.

Lawlor also argues in assignments of error 35, 39, 60, 89,

90, and 91 that he was prejudiced by the court’s reprimands in

the presence of jurors, either in open court or in a loud voice

during bench conferences, and in sustaining the Commonwealth’s

objections to his voir dire questions in the presence of the

jury. Based on our review of the places in the record to which

Lawlor refers, see Rule 5:27(c), either he did not object that

the comments were prejudicial when they were made in open court

or there is no indication that the jury heard the comments made

during bench conferences. 9 We cannot consider any comments

where the record contains no indication that the jury heard

9 Lawlor did request that the court and counsel keep their voices down in the bench conferences, but there is no indication that the comments he asserts were prejudicial were overheard by the jury. On one occasion, he suggested the possibility they were audible but the court ruled they were not. On another occasion, co-counsel noted that the bench conference could be heard at counsel table and objected to the seating of the members of that panel of the venire. However, the court ruled that counsel had already consented to their qualification and that the objection therefore was untimely. Lawlor has not assigned error to either ruling. Consequently, we will not review them. Rule 5:22(c).

21 them because there is no basis to find prejudice. Prince

Seating Corp. v. Rabideau, 275 Va. 468, 470, 659 S.E.2d 305,

307 (2008) (per curiam) (“We cannot review the ruling of a

lower court for error when the appellant does not . . . provide

us with a record that adequately demonstrates that the court

erred.”). We will not consider any comments where Lawlor

failed to object because the issue was not preserved. Rule

5:25; Porter, 276 Va. at 256, 661 S.E.2d at 442 (noting the

issue of prejudice was not preserved because “the record shows

that he failed to timely object to any of the circuit court's

comments”).

In assignment of error 62, Lawlor argues that the court

erred by denying his written motion to reopen voir dire to

permit him to ask additional questions. In that motion, he

also sought in the alternative a mistrial on the ground that

the court’s comments and reprimands could be heard by the jury

and were prejudicial. In denying the motion, the court stated

that it could only rule on timely objections.

We review denial of a motion for mistrial for abuse of

discretion. Lewis v. Commonwealth, 269 Va. 209, 213-14, 608

S.E.2d 907, 909 (2005) (citing Burns, 261 Va. at 341, 541

S.E.2d at 894). The comments and reprimands Lawlor asserted to

be prejudicial in the motion were made during voir dire of the

first nine jurors, which occurred on February 2 and 3, 2011.

22 However, he did not file his motion until February 7. The

court denied it then as untimely. That ruling was not an abuse

of discretion. See Cheng v. Commonwealth, 240 Va. 26, 40, 393

S.E.2d 599, 607 (1990) (declining to reverse denial of motion

for mistrial where the defendant failed to seek corrective

action promptly when the allegedly prejudicial comments were

made).

CLAIM 6: MISLEADING THE JURY

This claim consists of 2 assignments of error, assignments

of error 63 and 64, in which Lawlor asserts that by overruling

his objections to the Commonwealth’s voir dire questions and

sustaining the Commonwealth’s objections to his, the circuit

court misled the jurors into believing they could disregard

mitigating evidence.

Lawlor first argues that the court erred by allowing the

Commonwealth to state “[W]hen it comes to mitigating evidence

the [c]ourt will instruct you that you shall consider . . . the

mitigating evidence? But, again, [as with evidence of

aggravating factors,] you don’t have to accept it?” However,

Lawlor did not object to the statement. We therefore will not

consider this argument. Rule 5:25.

Similarly, he argues that the court erred by sustaining

the Commonwealth’s objection to his question, “Do you all

understand that you can't reject any kind of mitigation

23 evidence?” The court sustained the objection as the question

was worded. Lawlor then expressly accepted the court’s ruling

and agreed to move on. We therefore will not consider this

argument. Rule 5:25.

Lawlor also refers to a written motion in limine he filed

to prevent future statements by the Commonwealth that the jury

could reject mitigating evidence. However, the court granted

the motion. Lawlor is not aggrieved by a ruling in his favor.

B. THE GUILT PHASE OF TRIAL

CLAIM 8: CHALLENGES TO COUNT I (CAPITAL MURDER IN THE COMMISSION OF RAPE OR ATTEMPTED RAPE)

This claim consists of 2 assignments of error relating to

the first count of the indictment, challenging rulings on a

motion to strike and a motion in limine.

1. MOTION TO STRIKE

In assignment of error 93, Lawlor asserts that the court

erred by denying his motion to strike the element of rape from

Count I of the indictment, capital murder in the commission of

or subsequent to rape or attempted rape, in violation of Code

§ 18.2-31(5). Citing Moore v. Commonwealth, 254 Va. 184, 186,

491 S.E.2d 739, 740 (1997), he contends that there was no

evidence of penile penetration, an essential element of rape.

Under Code § 18.2-31(5) willful, deliberate, and

premeditated killing is capital murder if committed in the

24 commission of or subsequent to either rape or attempted rape. 10

Proof of either predicate is sufficient to establish the crime

of capital murder under the statute. Accordingly, the

conviction must be affirmed if the evidence is sufficient to

prove the statutory crime charged in the indictment, which in

this case includes both rape and attempted rape.

While Lawlor’s assignment of error asserts that the

evidence was insufficient to prove rape, neither it nor any

other challenges the sufficiency of the evidence to prove

attempted rape. Consequently, the unchallenged attempted rape

predicate is a separate and independent basis upon which to

affirm his conviction of the statutory crime as charged in the

indictment. We therefore do not review the sufficiency of the

evidence to prove the separate rape predicate. Johnson v.

Commonwealth, 45 Va. App. 113, 116-17, 609 S.E.2d 58, 60

(2005); see also Manchester Oaks Homeowners Ass’n, Inc. v.

Batt, 284 Va. 409, 421-22, 732 S.E.2d 690, 698 (2012).

2. MOTION IN LIMINE

In assignment of error 114, Lawlor asserts that allowing

the jury to consider the rape predicate during the penalty

phase may have been prejudicial because jurors may have viewed

10 Such a killing also is capital murder if committed in the commission of or subsequent to forcible sodomy, attempted forcible sodomy, or object sexual penetration. Code § 18.2- 31(5). These predicates were not included in the indictment and are not relevant in this appeal.

25 rape as more reprehensible than attempted rape, thereby

influencing them to impose a sentence of death rather than life

imprisonment without parole.

Lawlor challenged the sufficiency of the evidence for the

rape portion of the charge in his motion to strike. That

motion was timely made. However, he did not make this argument

regarding prejudice then. Rather, he argued prejudice for the

first time in a motion in limine filed after the jury had been

instructed in the guilt phase of trial and after it returned

its verdict. This prejudice argument was not timely at that

stage of the trial.

It is axiomatic that when a jury considers what sentence

to impose upon a defendant convicted of a crime, the charge

upon which he stands convicted is essential to its

deliberation. Both Code § 19.2-295(A) and Code § 19.2-264.3(C)

direct that the same jury that returned a conviction shall

thereafter determine the sentence to be imposed. The statutes

therefore presume that the jury is cognizant of the conviction

during its deliberation of the sentence. Further, Code

§§ 18.2-10, 18.2-11, 18.2-12, and 18.2-13 set forth the

permissible ranges of sentences that juries may impose based

upon the offense for which the defendant stands convicted,

either directly or as a result of the classification of the

26 offense. Thus it is by knowing the offense that the jury knows

the legal range for the sentence.

Consequently, the charge upon which a defendant stands

convicted cannot, as a matter of law, be irrelevant to or

prejudicial in the jury’s consideration of the sentence to be

imposed. 11 Accordingly, because Lawlor’s argument that allowing

the jurors to consider the rape predicate would prejudice their

penalty phase deliberations was first made after they had

convicted him, it was not timely. It therefore will not be

considered. Rule 5:25.

CLAIM 7: CHALLENGES TO COUNT II (CAPITAL MURDER IN THE COMMISSION OF ABDUCTION WITH INTENT TO DEFILE)

This claim consists of 7 assignments of error relating to

the second count of the indictment, challenging rulings on a

motion to strike, a motion in limine, and jury instructions.

In assignments of error 95 and 96, Lawlor asserts that the

court erred by denying his motions to strike the evidence on

Count II of the indictment, capital murder in the commission of

abduction with the intent to defile, in violation of Code

§ 18.2-31(1). Citing Powell I, he contends that there is no

11 This does not affect those situations wherein the defendant has been convicted on multiple charges based on the same facts, when double jeopardy considerations may compel the Commonwealth to elect which charge to submit to the jury for the imposition of a sentence. E.g., Andrews, 280 Va. at 287-88 & n.19, 699 S.E.2d at 269-70 & n.19.

27 evidence of an abduction “separate and apart from, and not

merely incidental to” capital murder in the commission of rape

or attempted rape.

A motion to strike challenges whether the evidence is

sufficient to submit the case to the jury. Culpeper Nat’l Bank

v. Morris, 168 Va. 379, 384, 191 S.E. 764, 766 (1937). What

the elements of the offense are is a question of law that we

review de novo. Whether the evidence adduced is sufficient to

prove each of those elements is a factual finding, which will

not be set aside on appeal unless it is plainly wrong. George

v. Commonwealth, 242 Va. 264, 278, 411 S.E.2d 12, 20 (1991),

cert. denied, 503 U.S. 973 (1992). In reviewing that factual

finding, we consider the evidence in the light most favorable

to the Commonwealth and give it the benefit of all reasonable

inferences fairly deducible therefrom. Commonwealth v. McNeal,

282 Va. 16, 20, 710 S.E.2d 733, 735 (2011) (citing Noakes v.

Commonwealth, 280 Va. 338, 345, 699 S.E.2d 284, 288 (2010));

Muhammad v. Commonwealth, 269 Va. 451, 479, 619 S.E.2d 16, 31

(2005), cert. denied, 547 U.S. 1136 (2006).

After so viewing the evidence, the question is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In sum, if there is evidence to support the conviction, the reviewing court is not permitted to substitute its judgment, even if its view of the evidence might differ from the conclusions reached by the finder of fact at the trial.

28 McNeal, 282 Va. at 20, 710 S.E.2d at 735 (citations, internal

quotation marks, and alterations omitted).

In Scott v. Commonwealth, 228 Va. 519, 323 S.E.2d 572

(1984), we considered the elements of the statutory offense of

abduction set forth in Code § 18.2-47. We determined that

statutory abduction, unlike common law abduction, required no

proof of asportation. Rather, the statutory offense is

complete upon “the physical detention of a person, with the

intent to deprive him of his personal liberty, by force,

intimidation, or deception.” Id. at 526, 323 S.E.2d at 577.

We recognized that some form of detention is inherent in rape,

robbery, and assault but postponed consideration of any

potential constitutional problems created by the overlap for a

future case where they were squarely presented. Id.

That case came a year later, in Brown v. Commonwealth, 230

Va. 310, 337 S.E.2d 711 (1985). We determined that “the

General Assembly did not intend to make the kind of restraint

which is an intrinsic element of crimes such as rape, robbery,

and assault a criminal act, punishable as a separate offense.”

Id. at 314, 337 S.E.2d at 713. The test enunciated by the

Supreme Court in Blockburger v. United States, 284 U.S. 299,

304 (1932), to ensure that a prosecution does not violate the

29 double jeopardy clause therefore did not apply. Brown, 230 Va.

at 313-14, 337 S.E.2d at 713-14. Accordingly,

one accused of abduction by detention and another crime involving restraint of the victim, both growing out of a continuing course of conduct, is subject upon conviction to separate penalties for separate offenses only when the detention committed in the act of abduction is separate and apart from, and not merely incidental to, the restraint employed in the commission of the other crime.

Id. at 314, 337 S.E.2d at 713-14.

Lawlor argues that applying the facts of his case to the

factors adopted by the Court of Appeals in Hoyt v.

Commonwealth, 44 Va. App. 489, 494, 605 S.E.2d 755, 757 (2004),

leads to the conclusion that there was no abduction separate

and apart from the murder and rape or attempted rape. 12 We

disagree that Hoyt is applicable in this case.

The only issue when abduction is charged alongside an

offense for which detention is an intrinsic element is whether

12 According to the Court of Appeals in Hoyt, the “ ‘four factors . . . central to’ determining whether or not an abduction or kidnapping is incidental to another crime” are (1) the duration of the detention or asportation; (2) whether the detention or asportation occurred during the commission of a separate offense; (3) whether the detention or asportation which occurred is inherent in the separate offense; and (4) whether the asportation or detention created a significant danger to the victim independent of that posed by the separate offense.

44 Va. App. at 494, 605 S.E.2d at 757 (quoting Gov’t of the V.I. v. Berry, 604 F.2d 221, 227 (3d. Cir. 1979)).

30 any detention exceeded the minimum necessary to complete the

required elements of the other offense. 13 See Powell I, 261 Va.

at 541, 552 S.E.2d at 360 (stating the question is whether

“there is sufficient evidence to support the finding of the

jury that [the defendant] used greater restraint than was

necessary” to commit the other offense. (emphasis added)). We

already have stated that murder is not a crime for which

detention is inherent as an intrinsic element. Id. at 541

n.11, 552 S.E.2d at 360 n.11. We therefore need only consider

whether the evidence in this case proves detention separate and

apart from rape or attempted rape.

Lawlor was neither indicted nor convicted upon a charge of

rape. However, the charge of capital murder in the commission

of or subsequent to rape or attempted rape incorporates the

statutory definition of rape. As relevant to this case, the

elements of that offense are “sexual intercourse with a

complaining witness” “against the complaining witness's will,

13 In Brown and subsequent cases, we have acknowledged some degree of detention to be inherent in rape, robbery, and assault but we have not indicated that any asportation of the victim is similarly inherent. Cf. Cardwell v. Commonwealth, 248 Va. 501, 511, 450 S.E.2d 146, 153 (1994), cert. denied, 514 U.S. 1097 (1995) (“[T]ransporting [the victim] from the robbery scene was . . . separate and apart from, and not merely incidental to, the robbery and was greater than the restraint intrinsic in a robbery.”); Coram v. Commonwealth, 3 Va. App. 623, 626, 352 S.E.2d 532, 534 (1987) (“[A]sportation to decrease the possibility of detection is not an act inherent in or necessary to the restraint required in the commission of attempted rape.”).

31 by force, threat or intimidation.” Code § 18.2-61(A). Because

intercourse constituting rape necessarily occurs against the

victim’s will, we presume that the victim was present only

because the offender “deprive[d her] of [her] personal liberty”

to escape. Scott, 228 Va. at 526, 323 S.E.2d at 576. Thus the

restraint necessary to prevent such escape is an intrinsic

element of the offense. But additional restraint, either as to

duration or degree, is not inherent in rape and therefore is

not an intrinsic element. See Brown, 230 Va. at 314, 337

S.E.2d at 714 (considering both the “time and distance” between

the abduction and other offense and the “quality and quantity”

of the force and intimidation used to effectuate the abduction

and other offense).

For example, in Hoke v. Commonwealth, 237 Va. 303, 311,

377 S.E.2d 595, 600, cert. denied, 491 U.S. 910 (1989), the

victims’ “wrists and ankles were bound securely with ligatures,

her mouth was gagged tightly, and she was detained for a

lengthy period.” We determined that this was sufficient to

establish a detention beyond that necessary to complete the

separate offenses of robbery and rape. Similarly, in Fields v.

Commonwealth, 48 Va. App. 393, 400, 632 S.E.2d 8, 11 (2006),

the defendant “twice choked [the victim] to the point of

unconsciousness.” The choking increased the risk of death and

injury beyond the rape itself and deprived the victim of the

32 opportunity to resist or call for help in ways not

intrinsically encompassed by rape alone. Id.

This case is similar to Fields. Rendering one’s victim

unconscious is not an essential, intrinsic element to complete

the offense of rape. The evidence adduced at trial, viewed in

the light most favorable to the Commonwealth, established that

Orange was beaten 47 times with a blunt object, and she was

conscious and alive for part of the beating. This manner of

effectuating a capital murder in the commission of rape or

attempted rape is not inherent in the elements of those crimes.

The evidence therefore is sufficient to establish capital

murder in the commission of abduction with intent to defile

“separate and apart from, and not merely incidental to,”

capital murder in the commission of or subsequent to rape or

attempted rape. 14 See Powell I, 261 Va. at 540-41, 552 S.E.2d

at 360; Brown, 230 Va. at 314, 337 S.E.2d at 713-14.

Lawlor also asserts in assignments of error 113, 115, and

116 that the court erred by denying his motion in limine to

exclude the conviction for capital murder in the commission of

an abduction because it was based on the same operative facts

as capital murder in the commission of rape or attempted rape.

14 Having addressed Lawlor’s argument on these assignments of error in the context of our own precedents, we express no opinion on the Hoyt factors.

33 He argues that allowing the jury to consider both charges

violates the double jeopardy clause. We review de novo claims

that multiple punishments have been imposed for the same

offense in violation of the double jeopardy clause. Fullwood

v. Commonwealth, 279 Va. 531, 539, 689 S.E.2d 742, 747 (2010)

(citing United States v. Imngren, 98 F.3d 811, 813 (4th Cir.

1996)).

We previously examined this issue in Brown and Powell I:

The double jeopardy clause of the Fifth Amendment provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb. . . .” It is now well recognized that this clause affords an accused three distinct constitutional guarantees. “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.”

Brown, 230 Va. at 312-13, 337 S.E.2d at 712-13 (quoting North

Carolina v. Pearce, 395 U.S. 711, 717 (1969)); accord Andrews,

280 Va. at 279, 699 S.E.2d at 264. “The present case involves

the third protection because [Lawlor’s] convictions, and the

death sentences that resulted, occurred in a single trial.”

Id. (citing Blythe v. Commonwealth, 222 Va. 722, 725, 284

S.E.2d 796, 797-98 (1981)).

However double jeopardy does not prevent a defendant from

suffering separate punishments for separate offenses growing

34 out of the same continuing course of conduct. So long as

abduction “is separate and apart from, and not merely

incidental to, the restraint employed in the commission of the

other crime” the defendant may be punished for both. Powell I,

261 Va. at 540-41, 552 S.E.2d at 360; Brown, 230 Va. at 314,

337 S.E.2d at 713-14. As noted above, the evidence in this

case supports convictions for capital murder in the commission

of abduction with intent to defile and capital murder in the

commission of or subsequent to rape or attempted rape. The

duration and manner of Orange’s detention is separate and apart

from the detention inherent in capital murder in the commission

of rape or attempted rape. Therefore the conviction and

sentence on the charge of capital murder in the commission of

abduction with intent to defile do not violate the double

jeopardy clause.

3. JURY INSTRUCTIONS

In assignments of error 97 and 98, Lawlor asserts that the

court erred by failing to instruct the jury that the detention

inherent in capital murder in the commission of or subsequent

to rape or attempted rape cannot serve as the basis for

conviction upon a charge of capital murder in the commission of

abduction with intent to defile. The court refused his

proffered instruction that the jury must find “beyond a

reasonable doubt[] that any abduction . . . was separate and

35 apart from, and not merely incidental to, the act of rape or

attempted rape. The restraint inherent in Count 1 cannot serve

as the sole basis for a conviction for Count 2.” He argues

that in refusing the instruction, the court failed to instruct

the jury on a necessary element of the charge.

We review jury instructions “to see that the law has been

clearly stated and that the instructions cover all issues which

the evidence fairly raises.” Cooper v. Commonwealth, 277 Va.

377, 381, 673 S.E.2d 185, 187 (2009) (internal quotation marks

omitted). This is a mixed question of law and fact. It is

error to give an instruction that incorrectly states the law;

“whether a jury instruction accurately states the relevant law

is a question of law that we review de novo.” Orthopedic &

Sports Physical Therapy Assocs., Inc. v. Summit Group Props.,

LLC, 283 Va. 777, 782, 724 S.E.2d 718, 721 (2012) (internal

quotation marks omitted); see also Velasquez v. Commonwealth,

276 Va. 326, 330, 661 S.E.2d 454, 456-57 (2008) (finding error

when court’s instruction was an incorrect statement of law).

However, “jury instructions ‘are proper only if supported by

the evidence,’ ” Orbe I, 258 Va. at 398, 519 S.E.2d at 813

(quoting Commonwealth v. Donkor, 256 Va. 443, 445, 507 S.E.2d

75, 76 (1998)), and more than a scintilla of evidence is

required. Andrews, 280 Va. at 276, 699 S.E.2d at 263; Juniper,

271 Va. at 418, 626 S.E.2d at 419. “When reviewing a trial

36 court's refusal to give a proffered jury instruction, we view

the evidence in the light most favorable to the proponent of

the instruction.” Commonwealth v. Vaughn, 263 Va. 31, 33, 557

S.E.2d 220, 221 (2002); accord Cooper, 277 Va. at 381, 673

S.E.2d at 187.

A trial court has a duty when instructing the jury to

define each element of the relevant offense. 15 Dowdy v.

Commonwealth, 220 Va. 114, 116, 255 S.E.2d 506, 508 (1979).

However, as noted above, what the elements are is a question of

law. See Kozmina v. Commonwealth, 281 Va. 347, 349, 706 S.E.2d

860, 862 (2011); Houston v. Commonwealth, 87 Va. 257, 262, 12

S.E. 385, 386 (1890). Therefore, whether the detention

established by the evidence is “the kind of restraint which is

an intrinsic element of crimes such as rape, robbery, and

assault,” Brown, 230 Va. at 314, 337 S.E.2d at 713 (emphasis

added), is a question of law to be determined by the court.

Fields, 48 Va. App. at 399, 632 S.E.2d at 10. Accordingly, the

court did not err in denying the instruction.

CLAIM 12: VOLUNTARY INTOXICATION

This claim consists of a single assignment of error,

assignment of error 111, in which Lawlor asserts that the

15 Instructions 6 and 7 set forth the elements of rape and attempted rape. Instruction 12 set forth the elements of abduction with intent to defile. These instructions were granted.

37 circuit court erred by excluding Charles Wakefield’s testimony

during the guilt phase of trial. He proffered that Wakefield

would have testified that Lawlor drank, bought liquor, and

often smelled of alcohol during the three weeks preceding the

murder. The court ruled that evidence of general alcohol abuse

may be relevant as mitigation during the penalty phase but was

irrelevant and therefore inadmissible in the guilt phase.

Lawlor argues that the court’s ruling was error because he

sought to establish that he was voluntarily intoxicated at the

time of the offense and therefore incapable of forming the

requisite intent to commit capital murder.

A ruling that evidence is inadmissible is reviewed for

abuse of discretion. Thomas, 279 Va. at 168, 688 S.E.2d at

240; Commonwealth v. Wynn, 277 Va. 92, 97, 671 S.E.2d 137, 139

(2009). “[E]vidence of collateral facts and facts incapable of

supporting an inference on the issue presented are irrelevant

and cannot be accepted in evidence. Such irrelevant evidence

tends to draw the jurors' attention toward immaterial matters”

and therefore is properly excluded. Coe v. Commonwealth, 231

Va. 83, 87, 340 S.E.2d 820, 823 (1986).

We have said that “[a] person who voluntarily has become

so intoxicated as to be unable to deliberate and premeditate

cannot commit any class of murder that is defined as a wilful,

deliberate and premeditated killing.” Giarratano v.

38 Commonwealth, 220 Va. 1064, 1073, 266 S.E.2d 94, 99 (1980)

(citing Hatcher v. Commonwealth, 218 Va. 811, 814, 241 S.E.2d

756, 758 (1978)); accord Essex v. Commonwealth, 228 Va. 273,

281, 322 S.E.2d 216, 220 (1984). However, proof of mere

intoxication is insufficient; the defendant must establish

intoxication so great it rendered him incapable of

premeditation. Giarratano, 220 Va. at 1073, 266 S.E.2d at 99.

Consequently, even testimony that the defendant was drinking on

the day of the offense is insufficient to establish that he was

too intoxicated to form the requisite intent. Waye v.

Commonwealth, 219 Va. 683, 698, 251 S.E.2d 202, 211, cert.

denied, 442 U.S. 924 (1979). Accordingly, testimony about

Lawlor’s drinking during the three-week period prior to the

murder would not be probative of that issue and it therefore

was irrelevant. The court did not abuse its discretion by

excluding it during the guilt phase.

CLAIM 13: PRINCIPAL IN THE SECOND DEGREE

This claim consists of 3 assignments of error asserting

that the circuit court erred by preventing Lawlor from

presenting a defense that he was merely a principal in the

second degree.

1. REQUESTS FOR FUNDING

In assignment of error 27, Lawlor asserts that the court

erred by denying his requests for funding for a private

39 investigator to travel to Uruguay to interview and collect a

DNA sample from a third party. Lawlor similarly asserts in

assignment of error 29 that the court erred by denying his

request for funds for private mitochondrial DNA testing of hair

recovered from Orange’s body. Lawlor argues that these funding

requests were necessary to enable him to present a defense on

the ground that (a) someone else actually committed the murder,

(b) Lawlor was merely a principal in the second degree, and

therefore (c) Lawlor was culpable only of first-degree murder

rather than capital murder.

Citing Crawford v. Commonwealth, 281 Va. 84, 97, 704

S.E.2d 107, 115 (2011), Lawlor again mistakenly asserts that we

review these issues de novo. However, we did not review any

denial of a request for funding in that case. To the contrary,

denial of funding is reviewed for abuse of discretion. In

particular,

[i]n Husske v. Commonwealth, 252 Va. 203, 476 S.E.2d 920 (1996), this Court noted that an indigent defendant is not constitutionally entitled, at the state's expense, to all the experts that a non-indigent defendant might afford. Id. at 211, 476 S.E.2d at 925. All that is required is that an indigent defendant have “‘an adequate opportunity to present his claims fairly within the adversary system.’” Id. (quoting Ross v. Moffitt, 417 U.S. 600, 612 (1974)).

In Husske we held that

40 an indigent defendant who seeks the appointment of an expert witness, at the Commonwealth's expense, must demonstrate that the subject which necessitates the assistance of the expert is "likely to be a significant factor in his defense," and that he will be prejudiced by the lack of expert assistance.

Id. at 211-12, 476 S.E.2d at 925 (citation omitted). In that context, we specified that a defendant seeking the assistance of an expert witness “must show a particularized need” for that assistance. Id.

It is the defendant's burden to demonstrate this “particularized need” by establishing that an expert's services would materially assist him in preparing his defense and that the lack of such assistance would result in a fundamentally unfair trial. Id.; accord Green v. Commonwealth, 266 Va. 81, 92, 580 S.E.2d 834, 840 (2003). We made clear in Husske and subsequent cases that “mere hope or suspicion that favorable evidence is available is not enough to require that such help be provided.” 252 Va. at 212, 476 S.E.2d at 925 (internal quotation marks omitted). Whether a defendant has made the required showing of particularized need is a determination that lies within the sound discretion of the trial court. Id. [at 212], 476 S.E.2d at 926; Lenz v. Commonwealth, 261 Va. 451, 462, 544 S.E.2d 299, 305, cert. denied, 534 U.S. 1003 (2001); Bailey v. Commonwealth, 259 Va. 723, 737, 529 S.E.2d 570, 578[, cert. denied, 531 U.S. 995] (2000).

Commonwealth v. Sanchez, 268 Va. 161, 165, 597 S.E.2d 197, 199

(2004) (internal alteration omitted); accord Thomas, 279 Va. at

169-70, 688 S.E.2d at 241. The expert services to which a

defendant may be entitled following the required showing of

particularized need may include those of a private

41 investigator. Husske, 252 Va. at 212, 476 S.E.2d at 926;

Bailey, 259 Va. at 737, 529 S.E.2d at 578.

During a December 9, 2010 motions hearing, Lawlor sought

funding to send an investigator to Uruguay. He argued that he

wanted the investigator to interview and collect a DNA sample

from Rafael Delgado, who lived in Orange’s apartment building

at the time of the murder but who thereafter left the country.

Lawlor admitted that he had known of Delgado’s existence since

the indictment in March 2009. 16 Nevertheless, in December 2010

he still did not know where in Uruguay Delgado might be found

and had not asked him whether he would provide a DNA sample.

The court noted that Lawlor had known of Delgado’s

existence for nearly two years but had not undertaken any

significant steps to locate him. It also ruled that it would

not approve funding the investigation until Lawlor had located

Delgado and ascertained that he was willing to provide a DNA

sample.

Lawlor renewed his request at a January 13, 2011 motions

hearing after locating Delgado and ascertaining that he was

willing to speak with the investigator and return to testify at

trial if appropriate. During that hearing, Lawlor admitted to

participating in Orange’s murder. The court then again noted

16 He had also cited Delgado’s presence in Uruguay during a January 21, 2010 hearing as partial basis for a continuance when the trial was scheduled for March 1 of that year.

42 that Lawlor had known of Delgado’s existence for 22 months but

had only obtained the information necessary to justify a

request for investigatory funds on the eve of trial. Because

Lawlor admitted participation in the murder, he should have

known promptly whether there were any potential co-defendants

and who those potential co-defendants were. The court then

ruled that Lawlor had a right to call Delgado at trial and that

it would provide funds to make Delgado available as a defense

witness. However, it denied the request for funds to send the

investigator to Uruguay.

As noted above, an indigent defendant has the right to an

adequate opportunity to present his claims fairly. Sanchez,

268 Va. at 165, 597 S.E.2d at 199. However, he bears the

burden of establishing a particularized need for an expert’s

services – i.e., that the services must “materially assist him

in preparing his defense and that the lack of such assistance

would result in a fundamentally unfair trial.” Id.; Thomas,

279 Va. at 169-70, 688 S.E.2d at 241. The court ruled that

Lawlor was entitled to call Delgado as a witness and that it

would provide the funds necessary to make him available. That

ruling adequately preserved Lawlor’s right to a fair trial. He

did not show any need for further funding for the

investigator’s trip to Uruguay. Accordingly, the court did not

abuse its discretion by denying his request.

43 On the issue of DNA testing, Lawlor made several

successive funding requests. In January 2010, he requested

testing of blood recovered from various public places in the

apartment building outside Orange’s apartment. The court

granted that request. The next month, he requested testing of

8 foreign hairs found on Orange’s pubic region and the court

again granted his request. In April 2010, he requested that a

swab be sent to an outside, private laboratory for testing

because it did not contain a sample sufficient for testing by

the Department of Forensic Sciences (“DFS”). The court also

granted that request.

In September 2010, Lawlor requested that hairs and hair

fragments in three forensic collections recovered from

fingernail scrapings and from Orange’s left hand during the

autopsy be submitted for testing. Because some hairs and hair

fragments did not include the hair root, they were unsuitable

for nuclear DNA testing and had to be subjected to more

protracted mitochondrial DNA testing. The court indicated it

would revisit the issue after the human hairs were isolated. 17

After further forensic study of the three hair collections, the

court ordered the testing of all the complete human hairs. It

also ordered DFS to select a random sample from the remaining

17 Orange owned a cat and some of the hair was identified as non-human.

44 91 human hair fragments and to subject the random sample to

mitochondrial DNA testing.

In November 2010, Lawlor asked for further testing of the

hair fragments. He noted that DFS had classified the 91

fragments from 2 of the forensic collections into 7 distinct

groups based on microscopic evaluation of their physical

characteristics. He requested that one hair fragment from each

group be subjected to mitochondrial DNA testing. The first

forensic collection contained 3 groups of hair fragments: one

containing 36 fragments, one containing 15, and one containing

a single fragment. The second forensic collection contained 4

groups of fragments: one containing 23, one containing 17, and

two groups each containing a single fragment. The condition of

the majority of the hair fragments indicated that they were not

fresh and had likely been in the apartment for some time.

Nevertheless, the court again granted his request.

Testing on these 7 final hair fragments resulted in a

mitochondrial DNA profile for each fragment. A comparison

indicated that the profile for one hair fragment was

inconsistent with the profiles of the others. It is not clear

from the record whether the single inconsistent fragment came

from a group containing other fragments sharing the same

microscopic physical characteristics or from one of the unique,

single-fragment groups. In other words, it is not clear

45 whether the single inconsistent hair fragment shared physical

characteristics with any untested hair fragments.

On January 3, 2011, based on this single inconsistent

mitochondrial DNA profile, the fractional amount of the single

inconsistent allele detected in the PCR DNA testing on the non-

sperm portion of DNA recovered from Orange’s abdominal swab,

and the fact that the blood recovered from the public areas of

the apartment building could not be attributed either to him or

Orange, Lawlor moved for a continuance and requested

mitochondrial DNA testing of all the forensic evidence. The

court denied the motion and the request:

The Defense [has] asked the Court to test virtually everything that’s there, and I have yet to see any basis that would produce evidence of a second participant. . . . Absent some showing that we’re not just continuing to test everything that’s there, every hair, every item in the room, it’s simply a wish and a hope and speculation, and the motion is denied.

As noted above, a defendant must show a particularized

need that expert services will materially assist him in

preparing his defense and that denial of such services will

result in a fundamentally unfair trial. Sanchez, 268 Va. at

165, 597 S.E.2d at 199; Thomas, 279 Va. at 169-70, 688 S.E.2d

at 241. However, “[a] particularized need is more than a ‘mere

hope’ that favorable evidence can be obtained through the

services of an expert.” Id. at 170, 688 S.E.2d at 241 (quoting

46 Husske, 252 Va. at 212, 476 S.E. 2d at 925); accord Sanchez,

268 Va. at 165, 597 S.E.2d at 199; Morva, 278 Va. at 344, 683

S.E.2d at 562. The court repeatedly granted Lawlor’s

successive requests for additional DNA testing, despite the

fact that Lawlor admitted participating in the murder and the

overwhelming consistency of the forensic evidence recovered

from inside Orange’s apartment. It was not an abuse of

discretion for the court to rule that a single hair fragment,

which was present in the apartment for an undeterminable period

of time, was insufficient to justify testing approximately 80

other hair fragments, many of which had different physical

characteristics. Similarly, the court did not abuse its

discretion by ruling that the single hair fragment, even

coupled with blood recovered from the public areas of the

apartment building and the single, fractional inconsistent

allele discovered during PCR DNA testing, did not justify

subjecting all the forensic evidence to mitochondrial DNA

testing. Rather, as the court observed, the notion that

further DNA testing would establish the presence of a second

perpetrator was merely “a wish and a hope and speculation.” We

therefore will not reverse its denial of the requests.

2. JURY INSTRUCTIONS

In assignment of error 103, Lawlor asserts that the court

erred by failing to instruct the jurors that they could not

47 impose a sentence of death if they found he was merely a

principal in the second degree. He argues that the evidence

was sufficient to support such an instruction based on (a) the

DNA evidence attributable to neither Lawlor nor Orange, as

described above, and (b) the possibility that some of Orange’s

wounds were inflicted by a hammer, though no hammer was found

either in her apartment or in his.

As noted above in Claim 7, a jury instruction may be given

only if it is supported by more than a mere scintilla of

evidence. Andrews, 280 Va. at 276, 699 S.E.2d at 263; Juniper,

271 Va. at 418, 626 S.E.2d at 419. When reviewing the evidence

to determine whether it supports a proffered instruction, “we

view [it] in the light most favorable to the proponent of the

instruction.” Vaughn, 263 Va. at 33, 557 S.E.2d at 221. This

means we grant Lawlor all reasonable inferences fairly

deducible from it. Branham v. Commonwealth, 283 Va. 273, 279,

720 S.E.2d 74, 77 (2012).

The absence of a possible weapon from the scene of a

murder and the defendant’s residence is not evidence that a

third party participated in the crime. It may support a

reasonable inference that someone removed the weapon but not

the exclusion of the defendant from the universe of people who

may have done so. One also cannot reasonably infer that a

defendant did not use a murder weapon based only on its absence

48 from his residence after the crime occurred. Similarly, even

assuming that one could reasonably infer from the two minor

inconsistencies in the DNA evidence that a third party was

present during the crime, a hypothesis that Lawlor was merely a

principal in the second degree extends the inference beyond

reasonableness into speculation. Because there was not more

than a scintilla of evidence supporting such a hypothesis, the

court did not err in refusing the instruction.

C. THE PENALTY PHASE OF TRIAL

CLAIM 11: BIFURCATION OF THE PENALTY PHASE

assignment of error 13, in which Lawlor asserts that the

circuit court erred by denying his motion to bifurcate the

penalty phase into two proceedings: one in which the jury must

unanimously find one or more of the aggravating factors set

forth in Code § 19.2-264.2 beyond a reasonable doubt, thereby

making him eligible for a sentence of death, followed by one in

which the jurors considered his mitigating evidence to

determine whether to impose a sentence of death or life

imprisonment without parole. He argues that such a bifurcation

is required both by Code § 19.2-264.4(A) and the United States

Constitution. These are questions of law we review de novo.

Gallagher v. Commonwealth, 284 Va. 444, 449, 732 S.E.2d 22, 24

(2012).

49 Code § 19.2-264.4(A) requires that “[u]pon a finding that

the defendant is guilty of an offense which may be punishable

by death, a proceeding shall be held which shall be limited to

a determination as to whether the defendant shall be sentenced

to death or life imprisonment.” Lawlor argues that a defendant

is not “guilty of an offense which may be punishable by death”

until after at least one aggravating factor has been proved.

Therefore, he contends, the separate proceeding referred to in

Code § 19.2-264.4(A) must occur after that time.

We construe a statute under familiar principles.

The primary objective of statutory construction is to ascertain and give effect to legislative intent. When a given controversy involves a number of related statutes, they should be read and construed together in order to give full meaning, force, and effect to each. Therefore we accord each statute, insofar as possible, a meaning that does not conflict with any other statute. When two statutes seemingly conflict, they should be harmonized, if at all possible, to give effect to both.

Conger v. Barrett, 280 Va. 627, 630-31, 702 S.E.2d 117, 118

(2010) (citations, internal quotation marks, and alterations

omitted). “[A]n undefined term must be given its ordinary

meaning, given the context in which it is used. Furthermore,

the plain, obvious, and rational meaning of a statute is to be

preferred over any curious, narrow, or strained construction,

and a statute should never be construed in a way that leads to

absurd results.” Meeks v. Commonwealth, 274 Va. 798, 802, 651

50 S.E.2d 637, 639 (2007) (citations, internal quotation marks,

and alteration omitted). Where the same term is used in

different places within a statutory scheme, we apply the same

meaning unless the legislature clearly intended a different

one. Eberhardt v. Fairfax County Emps. Ret. Sys. Bd. of Trs.,

283 Va. 190, 195, 721 S.E.2d 524, 526 (2012).

The language at issue in Code § 19.2-264.4(A) is “an

offense which may be punishable by death.” This phrase is an

integrated relative clause narrowing the universe of offenses

to which the subsection applies. Under Lawlor’s

interpretation, an offense is not “an offense which may be

punishable by death” until after the jury has found at least

one of the aggravating factors set forth in Code § 19.2-264.2.

This argument is without merit.

First, Code § 19.2-264.2 also uses the phrase “an offense

for which the death penalty may be imposed” to describe the

offenses to which that statute applies. It provides:

In assessing the penalty of any person convicted of an offense for which the death penalty may be imposed, a sentence of death shall not be imposed unless the court or jury shall (1) after consideration of the past criminal record of convictions of the defendant, find that there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing serious threat to society or that his conduct in committing the offense for which he stands charged was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated

51 battery to the victim; and (2) recommend that the penalty of death be imposed.

Code § 19.2-264.2 (emphasis added). Thus, if the phrase “an

offense for which the death penalty may be imposed” truly is

defined by this section as Lawlor argues, a jury may not

consider the aggravating factors set forth in that section

until after it has found at least one of them and has

recommended a sentence of death. This is an absurd, circular

result. We therefore will not adopt Lawlor’s interpretation.

Meeks, 274 Va. at 802, 651 S.E.2d at 639.

Second, while Code § 19.2-264.2 does not define “an

offense for which the death penalty may be imposed,” Code

§§ 18.2-10 and 18.2-31 do. Code § 18.2-10 states in relevant

part that “[t]he authorized punishments for conviction of a

felony are: (a) For Class 1 felonies, death . . . or

imprisonment for life . . . .” Code § 18.2-31 enumerates the

offenses “constitut[ing] capital murder, punishable as a Class

1 felony.” Accordingly, “an offense for which the death

penalty may be imposed” for the purposes of Code §§ 19.2-264.2

and 19.2-264.4(A) is capital murder and it is “a finding that

the defendant is guilty of” capital murder that triggers the

separate sentencing proceeding. Code § 19.2-264.4(A).

Code § 19.2-264.3 supports this interpretation. Code

§ 19.2-264.3(A) directs the trial court first to submit the

52 question of guilt or innocence to the jury. Thereafter, and

only “[i]f the jury finds the defendant guilty of an offense

which may be punishable by death,” does it commence a penalty

proceeding under Code § 19.2-264.4. Code § 19.2-264.3(C). “If

the jury finds the defendant guilty of an offense for which the

death penalty may not be imposed,” there is no Code § 19.2-

264.4 penalty proceeding at all. Code § 19.2-264.3(B).

Accordingly, the General Assembly could not have intended the

phrase “an offense which may be punishable by death” to mean

only those offenses for which one or more aggravating factors

have been proved beyond a reasonable doubt because the

proceeding in which those factors are presented to the jury

only commences after the defendant has been convicted of such

an offense.

Citing Ring v. Arizona, 536 U.S. 584 (2002), Lawlor also

argues that bifurcation of the penalty phase is required by the

United States Constitution. However, that was not the Supreme

Court’s holding in Ring. Rather, the Court reiterated its

holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), that

“[i]f a State makes an increase in a defendant's authorized

punishment contingent on the finding of a fact, that fact – no

matter how the State labels it – must be found by a jury beyond

a reasonable doubt.” Ring, 536 U.S. at 602 (citing Apprendi,

530 U.S. at 482-83). The Court then extended its Apprendi

53 rationale to hold that “Arizona's enumerated aggravating

factors operate as ‘the functional equivalent of’ ” such

factual findings and could not be found by a sentencing judge

without a jury. Id. at 609 (quoting Apprendi, 530 U.S. at 494

n.19).

Lawlor also cites Lockett v. Ohio, 438 U.S. 586 (1978),

for the proposition that bifurcating the penalty phase is

required to ensure jurors can meaningfully consider all

mitigating evidence. However, while the Supreme Court held in

that case that a defendant must be allowed to present “any

aspect of a defendant's character or record and any of the

circumstances of the offense that the defendant proffers as a

basis for a sentence less than death,” it did not require the

fact-finder to consider that evidence in a separate proceeding.

Id. at 604.

Virginia law complies with these constitutional

requirements. See Code § 19.2-264.4(B) (“Evidence which may be

admissible . . . may include the circumstances surrounding the

offense, the history and background of the defendant, and any

other facts in mitigation of the offense.”); Code § 19.2-

264.4(C) (“The penalty of death shall not be imposed unless the

Commonwealth shall prove [one or more aggravating factors]

beyond a reasonable doubt . . . .”); Prieto v. Commonwealth,

278 Va. 366, 413, 682 S.E.2d 910, 935 (2009), cert. denied, ___

54 U.S. ___, 130 S.Ct. 3419 (2010) (“Prieto I”) (“[W]e hold that

in the penalty phase of capital murder trials the death penalty

may not be imposed unless the jury unanimously finds either one

or both of the aggravating factors . . . beyond a reasonable

doubt.”); Andrews, 280 Va. at 301, 699 S.E.2d at 277 (“A

defendant in a capital case has the constitutional right to

present virtually unlimited relevant evidence in mitigation.”).

Accordingly, there is no basis for Lawlor’s claim that the

Constitution requires bifurcation of the penalty phase. For

these reasons, the court did not err in denying Lawlor’s

motion. 18

CLAIM 1: MITIGATING EVIDENCE

This claim consists of 19 assignments of error asserting

that the circuit court erred by excluding specific types of

mitigating evidence either as hearsay, irrelevant, or both.

1. GENERAL ADMISSIBILITY OF HEARSAY MITIGATING EVIDENCE

In assignment of error 117, Lawlor asserts that a court

may not exclude mitigating evidence on the basis of hearsay.

Citing Green v. Georgia, 442 U.S. 95 (1979), and subsequent

cases, he argues that the exclusion of mitigating evidence as

hearsay violates a defendant’s constitutional right to due

18 This appeal does not present, and we do not consider, whether the statute prohibits a circuit court from exercising its discretion to bifurcate the penalty phase. The question here is limited to whether the statute and applicable precedents require it to do so.

55 process. This is a question of constitutional interpretation

that we review de novo. Gallagher, 284 Va. at 449, 732 S.E.2d

at 24.

In Green, the defendant and another person, Moore, were

indicted together but tried separately for a rape and murder.

At Moore’s trial, a prosecution witness testified that Moore

told him that he had killed the victim after ordering Green to

leave the scene. However, when Green attempted to introduce

the testimony in his trial, the prosecution objected on the

ground that it was hearsay. The objection was sustained and

the evidence was excluded. 442 U.S. at 95-96.

The Supreme Court ruled that excluding the witness’s

testimony in Green’s trial was error. The Court considered

both its relevance and reliability and determined that the

prosecution’s use of the testimony to secure Moore’s conviction

and sentence of death was “[p]erhaps [the] most important”

factor justifying its admission in Green’s trial. Id. at 97.

It held that “[i]n these unique circumstances, ‘the hearsay

rule may not be applied mechanistically to defeat the ends of

justice.’” Id. (quoting Chambers v. Mississippi, 410 U.S. 284,

302 (1973)) (emphasis added). 19

19 The Court also considered that Moore’s comment to the witness was made spontaneously to a close friend, was against his penal interest, and was independently corroborated by other evidence. 442 U.S. at 97. These are the same factors the

56 Thus, Green turned on the fact that the prosecution had

introduced and relied upon witness testimony in a separate

prosecution for the same crime: it could not subsequently

impugn the reliability of that testimony in the related

proceeding. By its own terms, Green does not stand for the

proposition that evidence may not be excluded on hearsay

grounds simply because it is offered as mitigation in the

penalty phase of a capital murder trial.

Sears v. Upton, 561 U.S. ___, 130 S.Ct. 3259 (2010),

similarly fails to support Lawlor’s broad argument. In that

case the Supreme Court did not rule that mitigating evidence

may not be excluded as hearsay. Rather, citing Green and

Chambers, the Court again emphasized that reliability is the

touchstone for determining whether such evidence should be

admitted. Id. at 3263 & n.6 (“[T]he fact that some of such

evidence may have been ‘hearsay’ does not necessarily undermine

its value—or its admissibility—for penalty phase purposes.”

Rather, “reliable hearsay evidence that is relevant to a

capital defendant's mitigation defense should not be excluded

Court considered in Chambers, 410 U.S. at 301-02. Although the Court ruled that exclusion of the testimony at issue in Chambers was improper because the evidence “bore persuasive assurances of trustworthiness,” it nevertheless observed that “the accused . . . must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” Id. at 302.

57 by rote application of a state hearsay rule.” (emphasis

added)).

However, when hearsay evidence does not bear the indicia

of reliability present in Green and Chambers, it may properly

be excluded even when offered in mitigation. Buchanan v.

Angelone, 103 F.3d 344, 349 (4th Cir. 1996) (“The excluded

statements also lack the inherent reliability of the statement

excluded in Green. The statement in Green was against the

declarant's penal interest, made spontaneously to a close

friend, and the state itself had relied on the excluded

testimony to convict the declarant of capital murder. . . .

The evidence in this case discloses that the application of

Virginia's hearsay rule did not rise to the level of a

constitutional violation.”).

Accordingly, the circuit court did not err simply because

it declined to overrule each of the Commonwealth’s hearsay

objections to some of Lawlor’s mitigating evidence. We must

consider each ruling individually. 20

2. SPECIFIC RULINGS

20 In assignment of error 124, Lawlor generally assigns error to the court’s exclusion of “relevant mitigating evidence in the form of reliable hearsay.” The brief contains no independent argument on this assignment of error. Consequently, to the extent it is not encompassed by the assignments of error challenging specific rulings and addressed below, it is abandoned. Rule 5:27(d).

58 As noted above in Claim 12, we review rulings that

evidence is inadmissible for abuse of discretion. Thomas, 279

Va. at 168, 688 S.E.2d at 240.

In assignment of error 132, Lawlor asserts that the court

erred by excluding Charles Wakefield’s testimony that Lawlor

showed remorse. Specifically, he proffered that Wakefield

would testify that Lawlor said, “I just don’t want to hit

anyone” several days after the murder occurred. The

Commonwealth objected that the statement was hearsay. Lawlor

responded that it was admissible as a statement of his then-

existing mental and emotional condition – i.e., that at the

time he made the statement to Wakefield, several days after the

murder, he did not “want to hit anyone.” The court ruled that

the statement was irrelevant.

To be admissible as evidence of a then-existing state of

mind, the state of mind must be relevant to a material issue.

See Clay v. Commonwealth, 262 Va. 253, 257, 546 S.E.2d 728, 730

(2001) (Statements showing state of mind are admissible

“provided the statements are relevant and probative of some

material issue in the case.”). As proffered by Lawlor,

Wakefield would have testified that Lawlor no longer wanted to

hit anyone. But such testimony would not establish remorse.

While the alleged statement may indicate that Lawlor had purged

himself of a desire to do violence at that time, it does not

59 encompass any sentiment of regret for his prior violent acts.

Moreover, remorse includes “sympathy” or “concern for the

victims of the crimes for which he was convicted.” Smith v.

Commonwealth, 27 Va. App. 357, 364-65, 499 S.E.2d 11, 14

(1998). The proffered testimony includes neither of these

attributes. It therefore was not probative of the issue of

Lawlor’s remorse and the court did not abuse its discretion by

excluding it.

In assignments of error 134, 135, 136, 137, and 148,

Lawlor asserts that the court erroneously excluded testimony

from his former probation officers, Mark Crosby and Kathy

Coburn. He argues that they would have testified that Lawlor

had suffered childhood sexual abuse. He concedes that the

excluded statements were hearsay but contends they are

nevertheless admissible. He argues they are reliable because

they were made years before to probation officers in the

context of supervisory relationships. We disagree.

Lawlor cites no authority for his argument that statements

made to probation officers are sufficiently reliable to

overcome the hearsay rule. The issue is not whether the

probation officers are reliable, but whether the statements

Lawlor made to them can be relied upon as truthful under the

circumstances, rather than being self-serving or manipulative.

The statements at issue are not clothed with any of the indicia

60 of reliability the Supreme Court set forth in Green or

Chambers. They were not made against Lawlor’s penal interest,

they were not made spontaneously to a close friend, and they

were not independently corroborated by other evidence.

excluding them.

In assignments of error 146 and 147, Lawlor asserts that

the court erred by excluding testimony and written evidence

from Woody Couts, who provided a court-ordered alcohol and drug

dependency assessment while Lawlor was incarcerated 2 years

prior to Orange’s murder. Couts also would have testified that

Lawlor told him of childhood sexual abuse. Lawlor argues that

the testimony was admissible because the statements were made

for the purposes of obtaining a medical diagnosis or treatment.

Further, he argues that the statements were reliable even if

not covered by that exception to the hearsay rule. We again

disagree.

We have acknowledged that “a physician [may] testify to a

patient's statements concerning his ‘past pain, suffering and

subjective symptoms’ to show ‘the basis of the physician's

opinion as to the nature of the injuries or illness.’ ”

Cartera v. Commonwealth, 219 Va. 516, 518, 248 S.E.2d 784, 785-

86 (1978); accord Jenkins v. Commonwealth, 254 Va. 333, 339,

492 S.E.2d 131, 134 (1997). However, Couts was not a

61 physician; he was not even licensed as a substance abuse

counselor.

Moreover, a statement made for the purpose of medical

diagnosis or treatment in contravention of the hearsay rule is

admissible because “a patient making a statement to a treating

physician recognizes that providing accurate information to the

physician is essential to receiving appropriate treatment.”

Jenkins, 254 Va. at 339, 492 S.E.2d at 134-35. The exception

therefore includes an assessment of reliability. However, as

the circuit court noted,

The fallacy [in your analogy] is that you believe that a defendant who is incarcerated who talks to a drug counselor is going to be a hundred percent honest as one would who is seeking treatment from a physician.

If I’m seeking treatment from a physician, I want that treatment to cure me of my ill or illness, whatever it is.

A defendant sitting in jail wants to minimize his time, wants to get probation instead of penitentiary time, depending on what the offense is. And your theory is that [the] defendant will, of course, automatically be one hundred percent honest to the drug treatment counselor.

And we know that’s not true, even through your own witnesses, who have said that the most drug-challenged people are not honest, even with their own – even with their own treatment people . . . .

Accordingly, the rationale underlying the medical

diagnosis or treatment exception does not apply to substance

62 abuse assessments in the context of incarceration. The circuit

court did not abuse its discretion by excluding this

testimony. 21

In assignment of error 131, Lawlor asserts that the court

erred by preventing his investigator, Samuel Dworkin, from

testifying about Lawlor’s father’s failure to appear at trial.

Lawlor alleges that his father threatened to commit suicide if

he was subpoenaed to testify at trial. He argues that this

information was relevant because the Commonwealth had objected,

in the presence of the jury, to evidence that his father had

sexually abused other children on the ground that “[t]he man’s

not here to defend himself.” He also argues that it may have

disposed the jury to impose a sentence of life imprisonment.

We again disagree.

The court provided Lawlor the opportunity to call Dworkin

to establish that his father was unwilling to appear

voluntarily. However, the court ruled that the reason Lawlor’s

father did not appear at all was that Lawlor chose not to

subpoena him and Lawlor’s rationale for that decision was not

relevant. We agree with the circuit court that a party’s

21 In assignment of error 119, Lawlor also generally assigns error to the court’s exclusion of evidence of his history of sexual abuse. The brief contains no independent argument on this assignment of error. Consequently, to the extent it is not encompassed by the foregoing assignments of error, it is abandoned. Rule 5:27(d).

63 litigation strategy is not evidence of a fact at issue in the

proceeding. Testimony justifying a party’s chosen course at

trial therefore is not relevant. The reasoning behind Lawlor’s

decision not to subpoena his father was irrelevant and the

court did not abuse its discretion by excluding Dworkin’s

testimony.

In assignments of error 14 and 120, Lawlor asserts that

the court erred by denying his motion to allow evidence of the

effect his execution would have on his family and friends.

Similarly, in assignments of error 128, 141, and 145, he

asserts that the court erred by excluding testimony from his

sister, Elizabeth Cox, mother, Joann Cox, and friend, Richard

Poorman, respectively, about the value of their relationships

with him. He argues that this was relevant mitigating evidence

under our decision in Andrews and the Supreme Court’s decisions

in Lockett and Tennard v. Dretke, 542 U.S. 274 (2004). We

In Andrews, we said “[a] defendant in a capital case has

the constitutional right to present virtually unlimited

relevant evidence in mitigation.” 280 Va. at 301, 699 S.E.2d

at 277 (emphasis added).

[T]he meaning of relevance is no different in the context of mitigating evidence introduced in a capital sentencing proceeding than in any other context, and thus the general evidentiary standard—any tendency to make the existence of

64 any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence—applies. . . . Relevant mitigating evidence is evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value.

Tennard, 542 U.S. at 284 (citations and internal quotation

marks omitted).

In Lockett, the Supreme Court defined the circumstances

which a fact-finder could reasonably deem to have mitigating

value as those relevant to “the ‘character and record of the

individual offender and the circumstances of the particular

offense.’ ” 438 U.S. at 601 (quoting Woodson v. North

Carolina, 428 U.S. 280, 304 (1976)). Lockett does not “limit[]

the traditional authority of a court to exclude, as irrelevant,

evidence not bearing on the defendant's character, prior

record, or the circumstances of his offense.” Id. at 605 n.12.

Therefore, to be relevant to mitigation in the penalty phase of

a capital case, evidence must be relevant to these three

factors.

As we noted in Cherrix, “Code § 19.2-264.4(B) vests the

trial court with the discretion to determine, subject to the

rules of evidence governing admissibility, the evidence which

may be adduced in mitigation of the offense.” 257 Va. at 309,

513 S.E.2d at 653 (citing Coppola v. Commonwealth, 220 Va. 243,

65 253, 257 S.E.2d 797, 804 (1979), cert. denied, 444 U.S. 1103

(1980)). In Coppola, we expressly declined to reverse as an

abuse of discretion a circuit court’s exclusion of evidence

addressing the effect of the defendant’s arrest and trial on

his family as irrelevant to the issue of mitigation. 220 Va.

at 253, 257 S.E.2d at 804. Although Coppola addressed only

arrest and trial, not the imposition of a sentence of death,

and Code § 19.2-264.4(B) has been amended since that decision,

we are not persuaded that the effect on a defendant’s family

and friends of such a sentence is relevant mitigating evidence

“bearing on the defendant's character, prior record, or the

circumstances of his offense.” Lockett, 438 U.S. at 605 n.12.

The court therefore did not abuse its discretion by excluding

this evidence.

3. RIGHT NOT TO TESTIFY

In assignments of error 125 and 177, Lawlor asserts that

the court erred by ruling that he would have to testify to

present his mitigating evidence to the jury. He identifies 4

specific statements made by the court referring to Lawlor’s

failure to take the stand himself.

Each of the identified statements was made as the court

ruled on an objection by the Commonwealth. 22 Contrary to

22 The comments were made outside the presence of the jury and therefore could not have influenced its deliberation.

66 Lawlor’s assertion, the court did not base its rulings on his

exercise of his right against self-incrimination. Rather, it

based these rulings on its determination that the evidence

Lawlor was attempting to present was inadmissible hearsay. The

court noted that while the witnesses would not be allowed to

present hearsay evidence by testifying to statements Lawlor

made to them, the evidence would be admissible if Lawlor

testified himself: then, by definition, it would not be

hearsay.

A court does not err by observing outside the presence of

the jury that inadmissible hearsay evidence would be admissible

if the declarant testified directly – even if the declarant is

the defendant. 23

CLAIM 3: TESTIMONY OF DR. MARK CUNNINGHAM

This claim consists of 6 assignments of error asserting

that the circuit court erred by excluding portions of the

testimony of Dr. Mark Cunningham. 24 Lawlor offered Dr.

23 Lawlor also argues the Commonwealth improperly referred to his failure to testify during an objection in the presence of the jury. However, Lawlor failed to preserve this issue because he did not timely object to the comment or seek a curative instruction or mistrial. Rule 5:25; Porter, 276 Va. at 256, 661 S.E.2d at 442; Cheng, 240 Va. at 40, 393 S.E.2d at 607. 24 In assignment of error 185, Lawlor generally assigns error to the court for restricting Cunningham’s testimony. The brief contains no independent argument on this assignment of error so to the extent it is not encompassed by the other assignments of error, it is abandoned. Rule 5:27(d).

67 Cunningham as an expert witness to rebut the Commonwealth’s

evidence on the future dangerousness aggravating factor and to

provide mitigating evidence. 25 As noted above in Claims 1 and

12, we review a ruling that evidence is inadmissible for abuse

of discretion. Thomas, 279 Va. at 168, 688 S.E.2d at 240.

As an initial matter, we note that a defendant’s evidence

rebutting the risk of future dangerousness serves a purpose

different from mitigating evidence. While the same evidence

may be adduced to serve both purposes, the purposes must not be

conflated.

Pursuant to Code §§ 19.2-264.2 and 19.2-264.4(C), a

sentence of death may not be imposed unless the Commonwealth

has proved one or both of the aggravating factors set out in

the statutes beyond a reasonable doubt. Where the Commonwealth

alleges that the future dangerousness factor applies and

adduces evidence to prove it, the defendant has a due process

right to rebut that evidence. Simmons v. South Carolina, 512

U.S. 154, 164 (1994) (citing Skipper v. South Carolina, 476

Similarly, we find no argument in the brief related to assignment of error 190 and it too is abandoned. Id. 25 The aggravating factor commonly referred to as the risk of future dangerousness factor provides that “a sentence of death shall not be imposed unless the . . . jury shall . . . after consideration of the past criminal record of convictions of the defendant, find that there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing serious threat to society . . . .” Code § 19.2-264.2; accord Code § 19.2-264.4(C).

68 U.S. 1, 5 n.1 (1986)). However, where the Commonwealth does

not pursue the future dangerousness aggravating factor, there

is nothing for the defendant to rebut.

The statutes also define the evidence relevant to prove

the future dangerousness aggravating factor, or the probability

that the defendant “would commit criminal acts of violence that

would constitute a continuing serious threat to society.” Code

§§ 19.2-264.2 and 19.2-264.4(C). The relevant evidence is “the

past criminal record of convictions of the defendant,” Code

§ 19.2-264.2, and “evidence of the prior history of the

defendant or of the circumstances surrounding the commission of

the offense of which he is accused.” Code § 19.2-264.4(C); see

also Morva, 278 Va. at 349, 683 S.E.2d at 565 (“The relevant

evidence surrounding a determination of future dangerousness

consists of the defendant’s history and the circumstances of

the defendant’s offense.”).

By contrast, a defendant is always entitled to present

relevant mitigating evidence in a capital case. Andrews, 280

Va. at 301, 699 S.E.2d at 277 (citing Tennard, 542 U.S. at 285,

and Lockett, 438 U.S. at 608). This right is grounded in the

Eighth Amendment. Simmons, 512 U.S. at 164 (citing Skipper,

476 U.S. at 4).

Mitigating evidence includes “any aspect of a defendant's

character or record and any of the circumstances of the offense

69 that the defendant proffers as a basis for a sentence less than

death.” Lockett, 438 U.S. at 604. “[A] defendant’s

disposition to make a well-behaved and peaceful adjustment to

life in prison is itself an aspect of his character” and

therefore is relevant mitigating evidence. Skipper, 476 U.S.

at 7.

In Bell, we described evidence of a defendant’s

disposition to adjust to prison life as “future adaptability”

evidence. 264 Va. at 201, 563 S.E.2d at 714. We also stated

that it must be specific to the individual defendant or

relevant “as a foundation for an expert opinion.” Id.; accord

Juniper, 271 Va. at 427, 626 S.E.2d at 424. With these

principles in mind, we turn to Lawlor’s arguments.

1. REBUTTING THE RISK OF FUTURE DANGEROUSNESS

In assignments of error 180 and 188, Lawlor asserts that

the court erred by excluding Dr. Cunningham’s testimony about

his risk of future dangerousness in prison. He argues that the

court repeatedly excluded such testimony by sustaining the

Commonwealth’s objections and by denying him the opportunity to

recall Dr. Cunningham following a proffer of additional

We thoroughly reviewed the evidence that is admissible to

rebut the future dangerousness aggravating factor in Morva

based on Simmons, Skipper, and Code §§ 19.2-264.2 and 19.2-

70 264.4(C). We reiterated our earlier holding that “[t]he

relevant inquiry is not whether a defendant could commit

criminal acts of violence in the future but whether he would.”

Id. at 349, 683 S.E.2d at 564 (quoting Burns, 261 Va. at 339-

40, 541 S.E.2d at 893) (internal alterations and quotation

marks omitted). In other words, the issue is not whether the

defendant is physically capable of committing violence, but

whether he has the mental inclination to do so. Compare

Webster's Third New International Dictionary 517 (1993)

(defining “could” in part as the conditional of “can”) and id.

at 323 (defining “can” in part as “to be able to do, make, or

accomplish” (emphasis added)) with id. at 2638 (defining

“would” in part as the conditional of “will”) and id. at 2616

(defining “will” in part as “to be inclined to” (emphasis

Accordingly, evidence of restrictions on a prisoner’s

physical capacity to commit violence due to generalized prison

conditions is not relevant:

Increased security measures and conditions of prison life that reduce the likelihood of future dangerousness of all inmates is general information that is irrelevant to the inquiry required by Code §§ 19.2-264.2 and 19.2- 264.4(C). See [Juniper, 271 Va. at 426-27, 626 S.E.2d at 423-24]; Porter, 276 Va. at 252, 661 S.E.2d at 440. The generalized competence of the Commonwealth to completely secure a defendant in the future is not a relevant inquiry. Our precedent is clear that a court

71 should exclude evidence concerning the defendant's diminished opportunities to commit criminal acts of violence in the future due to the security conditions in the prison. Burns, 261 Va. at 339-40, 541 S.E.2d at 893-94.

Morva, 278 Va. at 350, 683 S.E.2d at 565. In short, the

question of future dangerousness is about the defendant’s

volition, not his opportunity, to commit acts of violence.

Evidence of custodial restrictions on opportunity therefore is

not admissible.

Lawlor argues that Dr. Cunningham’s testimony was not

about generalized prison conditions. He argues it was

sufficiently particularized based on attributes such as his

age, prior behavior while incarcerated, education, and

employment history, which are admissible under Morva. He

asserts that the court excluded the testimony simply because

Dr. Cunningham’s opinion was restricted to Lawlor’s risk of

dangerousness to “prison society” or “while in prison.” He

contends this was error because if sentenced to life

imprisonment, prison society would be the only society to which

he could pose a risk.

We previously considered and rejected this argument in

Lovitt v. Commonwealth, 260 Va. 497, 537 S.E.2d 866 (2000),

cert. denied, 534 U.S. 815 (2001). In that case we said,

Code § 19.2-264.2 requires that the jury make a factual determination whether the defendant “would commit criminal acts of violence that

72 would constitute a continuing serious threat to society.” The statute does not limit this consideration to “prison society” when a defendant is ineligible for parole, and we decline Lovitt's effective request that we rewrite the statute to restrict its scope.

Id. at 517, 537 S.E.2d at 879. Thus, evidence concerning a

defendant’s probability of committing future violent acts,

limited to the penal environment, is not relevant to

consideration of the future dangerousness aggravating factor

set forth in Code §§ 19.2-264.2 and 19.2-264.4(C).

Accordingly, the excluded testimony ran afoul of Lovitt to

the extent it was offered to rebut evidence of the future

dangerousness aggravating factor. It expressed Dr.

Cunningham’s opinion of Lawlor’s risk of future violence in

prison society only, rather than society as a whole. To be

admissible as evidence rebutting the future dangerousness

aggravating factor under the statutes, expert opinion testimony

must not narrowly assess the defendant’s continuing threat to

prison society alone. The court therefore did not abuse its

discretion by excluding Dr. Cunningham’s testimony as rebuttal

evidence on the future dangerousness aggravating factor.

2. MITIGATING EVIDENCE

In assignments of error 179 and 189, Lawlor asserts that

even if Dr. Cunningham’s testimony was properly excluded as

73 rebuttal evidence, it should have been admitted as mitigating

General conditions of prison life also are inadmissible as

mitigating evidence. Walker v. Commonwealth, 258 Va. 54, 70,

515 S.E.2d 565, 574 (1999), cert. denied, 528 U.S. 1125 (2000),

and Cherrix, 257 Va. at 309-10, 513 S.E.2d at 653. Our

determination that such evidence may properly be excluded was

based on the description of relevant mitigating evidence the

Supreme Court set forth in Lockett. As noted above in Claim 1,

that case did “not limit ‘the traditional authority of a court

to exclude, as irrelevant, evidence not bearing on the

defendant's character, prior record, or the circumstances of

his offense.’ ” Cherrix, 257 Va. at 309, 513 S.E.2d at 653

(quoting Lockett, 438 U.S. at 605 n.12). Evidence of general

prison conditions therefore may properly be excluded even as

Significantly, though, Lockett made clear that

“ ‘consideration of the character and record of the individual

offender’ ” is required by the United States Constitution. 438

U.S. at 604 (quoting Woodson, 428 U.S. at 304). “[T]he

sentencer [must] not be precluded from considering, as a

mitigating factor, any aspect of a defendant's character or

record and any of the circumstances of the offense that the

defendant proffers as a basis for a sentence less than death.”

74 Id. (emphasis in original). As noted above, future

adaptability evidence is relevant character evidence. Bell,

264 Va. at 201, 563 S.E.2d at 714. Nevertheless, future

adaptability evidence must be specific to the individual

defendant or relevant “as a foundation for an expert opinion.”

Id.; accord Juniper, 271 Va. at 427, 626 S.E.2d at 424.

In this context, a defendant’s probability of committing

violence, even when confined within a penal environment, is

relevant as mitigating evidence of his character and is

constitutionally mandated under Lockett, provided the evidence

establishing that probability arises specifically from his

character and is sufficiently personalized to him. As with

evidence rebutting the future dangerousness aggravating factor,

the relevant inquiry is narrowly focused on whether the

particular defendant is inclined to commit violence in prison,

not whether prison security or conditions of confinement render

him incapable of committing such violence. Unlike inclination

or volition, capacity – i.e., what a prisoner could do – is not

relevant to character.

Further, testimony relevant to a defendant’s propensity to

commit violence while incarcerated necessarily must be

personalized to the defendant based on his specific, individual

past behavior or record. Otherwise it cannot constitute

evidence of the defendant’s personal character and would be

75 irrelevant even for purposes of mitigation. See Morva, 278 Va.

at 350, 683 S.E.2d at 565; Juniper, 271 Va. at 426-27, 626

S.E.2d at 423-24.

We stress that characteristics alone are not character.

Merely extracting a set of objective attributes about the

defendant and inserting them into a statistical model created

by compiling comparable attributes from others, to attempt to

predict the probability of the defendant’s future behavior

based on others’ past behavior does not fulfill the requirement

that evidence be “peculiar to the defendant’s character,

history, and background” under Morva, 278 Va. at 350, 683

S.E.2d at 565. To the contrary, it is mere “statistical

speculation.” Porter, 276 Va. at 255, 661 S.E.2d at 442.

To satisfy Morva’s standard, the evidence must consist of

more than the recitation of shared attributes as the basis for

predicting similar behavior. Evidence of a defendant’s

objective attributes may be relevant as foundation for expert

opinion establishing his character, history, and background

under this standard. See Juniper, 271 Va. at 427, 626 S.E.2d

at 424; Bell, 264 Va. at 201, 563 S.E.2d at 714. However, the

mere fact that an attribute is shared by others from whom a

statistical model has been compiled, and that the statistical

model predicts certain behavior, is neither relevant to the

defendant’s character nor a foundation for expert opinion. See

76 Porter, 276 Va. at 255, 661 S.E.2d at 442. Merely stating that

the percentage of violent crimes committed by a specified

demographic group sharing one of the defendant’s attributes is

lower, based on statistical models, than others who do not

share it does not suffice.

Lawlor submitted a written proffer of questions he would

propound to Dr. Cunningham, and Dr. Cunningham’s expected

answers to them. The proffer contains the following proposed

exchanges:

1. Q: What is your expert opinion as to how Mark Lawlor's behavior pattern while [previously] in custody/incarceration, impacts his future prison adaptability? A: Because of Mark Lawlor's prior adaption in prison and jail, and particularly because of his lack of violent activity in these settings, Mr. Lawlor represents a low likelihood of committing acts of violence while in prison. 2. Q: What is your expert opinion as to how Mark Lawlor's age impacts his future prison adaptability? Does that opinion take into account the fact that Mr. Lawlor committed his current crime at age 43? A: Because of Mark Lawlor's age of 45 years old, Mr. Lawlor represents a low likelihood of committing acts of violence while in prison. The fact that Mr. Lawlor committed his current offense at age 43 has been taken into account in forming this opinion, but it does not change my opinion about his future prison adaptability.

77 3. Q: What is your expert opinion as to how Mark Lawlor's education impacts his future prison adaptability? Is this risk factor predictive of violence in the free community as well? A: The fact that Mr. Lawlor has earned his G.E.D. is predictive of a low likelihood of committing acts of violence while in prison. This risk factor is far more predictive of violent conduct in the prison context than it is in the free community context. 4. Q: What is your expert opinion as to how Mark Lawlor's employment history impacts his future prison adaptability? A: Mark Lawlor's employment history in the community is predictive that Mr. Lawlor represents a low likelihood of committing acts of violence while in prison. 5. Q: What is your expert opinion as to how Mark Lawlor's continued contact with his family and friends in the community impacts his future prison adaptability? A: Mark Lawlor's continued contact with these individuals while in prison, is predictive that Mr. Lawlor represents a low likelihood of committing acts of violence while in prison. 6. Q: What is your expert opinion as to how Mark Lawlor's past correctional appraisal impacts his future prison adaptability? A: Mark Lawlor's past correctional appraisal is predictive that Mr. Lawlor represents a low likelihood of committing acts of violence while in prison. 7. Q: What is your expert opinion as to how Mark Lawlor's lack of gang affiliation impacts his future prison adaptability?

78 A: Mark Lawlor's lack of gang affiliation is predictive that Mr. Lawlor represents a low likelihood of committing acts of violence while in prison. 8. Q: Have you reached an opinion, to a reasonable degree of psychological certainty, based on all of the factors relevant to your studies of prison risk assessment, as to what Mark Lawlor's risk level is for committing acts of violence while incarcerated? And if so, what is your opinion? A: Yes. It is my opinion based on my analysis of all of the relevant risk factors which are specific to Mr. Lawlor's prior history and background, that Mr. Lawlor represents a very low risk for committing acts of violence while incarcerated. 9. Q: Are all of your opinions concerning the above questions and answers about Mr. Lawlor, grounded in scientific research and peer- reviewed scientific literature? A: Yes.

Of these proffered answers, only the first meets the

standard for admissibility as future adaptability mitigating

evidence. The others merely (a) supply an item of demographic

data coupled with an unexplained, conclusory opinion that the

datum indicates Lawlor will present a low risk of violence

while incarcerated or (b) lay the foundation that the opinion

is based on statistical models. While each datum is extracted

from Lawlor’s personal history, it sheds no light on his

character, why he committed his past crimes and the crime for

79 which he stood convicted, or how would it influence or affect

his behavior while incarcerated. It therefore is not

personalized for the purposes of establishing future

adaptability. In short, the proffered testimony is not

probative of Lawlor’s “disposition to make a well-behaved and

peaceful adjustment to life in prison.” Skipper, 476 U.S. at

7. Accordingly, the circuit court did not abuse its discretion

in excluding these questions and answers.

While the first proffered answer would be admissible

because it establishes the fact that Lawlor did not engage in

violent behavior during past periods of incarceration, that

fact was already known to the jury through other evidence. For

example, Dr. Cunningham testified without objection that

Lawlor’s records of incarceration covered a period of 120

months of intermittent custody and the only violent behavior

recorded for the entire duration of that time was when he was

the victim of two fistfights in January 2009, for which he

incurred no disciplinary action. Dr. Cunningham also testified

that the Virginia Department of Corrections had classified

Lawlor as presenting a low likelihood of committing violence.

Because the excluded testimony was either cumulative or

inadmissible, the court did not abuse its discretion.

CLAIM 14: THE VILENESS AGGRAVATING FACTOR

80 This claim consists of 5 assignments of error asserting

that the circuit court erred by allowing the jury to consider

the vileness aggravating factor. 26

1. EXCLUSION OF EVIDENCE

Lawlor asserts in assignments of error 149 and 156 that

the trial court erred by excluding evidence that he originally

was charged with first-degree murder rather than capital

murder. 27 He argues that this evidence was relevant to rebut

the vileness aggravating factor. However, as explained below,

Lawlor did not present this argument to the court for its

consideration.

While Lawlor asserted in a hearing on March 8, 2011 that

the evidence subject to these assignments of error should be

admitted, he argued only that the records were relevant to show

his conduct in custody and because they “show[] the dates he

was brought in[to detention] and why he was brought in and

26 The aggravating factor commonly referred to as the vileness factor provides that “a sentence of death shall not be imposed unless the . . . jury shall . . . find . . . that [the defendant’s] conduct in committing the offense for which he stands charged was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim . . . .” Code § 19.2-264.2; accord Code § 19.2-264.4(C). 27 In assignment of error 123, Lawlor also generally assigns error to the court’s “limiting and excluding evidence . . . to rebut the Commonwealth’s allegation of vileness.” Because he presents no argument about any rulings other than those challenged in assignments of error 149 and 156, this assignment of error is abandoned to the extent it is not encompassed by them. Rule 5:27(d).

81 measures taken.” The court allowed all evidence showing

Lawlor’s conduct but excluded the portion that referred to the

original charge of first-degree murder having been superseded

by a charge of capital murder. Lawlor said, “Your Honor,

that’s fine. . . . I don’t intend to make the argument in any

more of a sophisticated way than I have. If the court

disagrees with me, I understand. I don’t want to go back and

forth but that’s why we offered it.”

On March 10, 2011, Lawlor filed a more nuanced, written

motion in which he raised the argument he makes on appeal:

that the original charge was relevant as rebuttal evidence to

the vileness aggravating factor. However, our review of the

record reveals that Lawlor never argued the written motion,

sought or obtained a ruling, or otherwise provided the court

with an opportunity to rule on it. We therefore will not

consider it. Rule 5:25; Scialdone v. Commonwealth, 279 Va.

422, 437, 689 S.E.2d 716, 724 (2010) (“[T]he provisions of Rule

5:25 protect the trial court from appeals based upon

undisclosed grounds. . . . In analyzing whether a litigant has

satisfied the requirements of Rule 5:25, this Court has

consistently focused on whether the trial court had the

opportunity to rule intelligently on the issue. If the

opportunity to address an issue is not presented to the trial

court, there is no ruling by the trial court on the issue, and

82 thus no basis for review or action by this Court on appeal.”

(citations, internal quotation marks, and alterations

omitted)).

2. CONSTITUTIONAL CHALLENGES

In assignments of error 2 and 4, Lawlor asserts that the

court erred by allowing the Commonwealth to seek a sentence of

death based on the vileness aggravating factor because it is

unconstitutionally vague. We have previously considered and

rejected these arguments. Gray v. Commonwealth, 274 Va. 290,

314-15, 645 S.E.2d 448, 463 (2007), cert. denied, 552 U.S. 1151

(2008) (citing Wolfe v. Commonwealth, 265 Va. 193, 208, 576

S.E.2d 471, 480, cert. denied, 540 U.S. 1019 (2003) and Beck v.

Commonwealth, 253 Va. 373, 387, 484 S.E.2d 898, 907, cert.

denied, 522 U.S. 1018 (1997)). The circuit court did not err

in adhering to our controlling precedents. We also find no

reason to modify the views we previously expressed in them.

Lawlor also argues that the composite sub-factors to the

vileness aggravating factor must be individually proven beyond

a reasonable doubt and agreed upon unanimously by the jury. We

recently rejected this argument in Prieto II, 283 Va. at 180-

81, 721 S.E.2d at 503, which had not been decided at the time

of the proceedings in this case. The court’s ruling was

consistent with our holding in Prieto II and we decline

Lawlor’s invitation to revisit it.

83 CLAIM 9: JURY INSTRUCTIONS

In this claim, Lawlor challenges the instructions given to

the jury at the conclusion of the penalty phase in 4

assignments of error. 28 As noted above in Claims 7 and 13, we

review whether a jury instruction accurately states the

relevant law de novo. Summit Group Props., 283 Va. at 782, 724

S.E.2d at 721.

Even if accurate, a jury instruction may be given only if

it is supported by more than a mere scintilla of evidence,

Andrews, 280 Va. at 276, 699 S.E.2d at 263, when viewed in the

light most favorable to the proponent of the instruction.

Vaughn, 263 Va. at 33, 557 S.E.2d at 221. The proponent is

entitled to all reasonable inferences fairly deducible from the

evidence. Branham, 283 Va. at 279, 720 S.E.2d at 77.

Nevertheless, a court may exercise its discretion and properly

exclude an instruction that both correctly states the law and

is supported by the evidence when other “granted instructions

fully and fairly cover” the relevant principle of law. Daniels

v. Commonwealth, 275 Va. 460, 466, 657 S.E.2d 84, 87 (2008)

28 In assignment of error 160, Lawlor also generally assigns error to the court’s denial of his proffered instructions. Because he presents no argument about any instructions other than those specifically identified in assignments of error 162, 164, 165, and 168, this assignment of error is abandoned to the extent it is not encompassed by them. Rule 5:27(d).

84 (internal quotation marks omitted); Juniper, 271 Va. at 431,

626 S.E.2d at 426.

In assignment of error 168, Lawlor asserts that the court

erred by denying his motion to exclude the torture sub-factor

from Instructions S-2a and S-3a, relating to the vileness

aggravating factor, because there was no evidence that Orange

had been tortured. He cites Quintana v. Commonwealth, 224 Va.

127, 149, 295 S.E.2d 643, 654 (1982), a case in which the

circuit court eliminated the torture element although the

victim had been struck with a hammer 11 times.

“Torture” as set forth in the vileness aggravating factor

is not defined by statute. However, Virginia’s vileness

aggravating factor is identical to the State of Georgia’s

aggravating factor reviewed by the Supreme Court in Godfrey v.

Georgia, 446 U.S. 420 (1980). Compare Code §§ 19.2-264.2 and

19.2-264.4(C) with Godfrey, 446 U.S. at 422 (quoting Ga. Code

Ann. § 27-2534.1(b)(7) (1978)). The Supreme Court of Georgia

has defined the torture element of its statute:

[T]orture occurs when a living person is subjected to the unnecessary and wanton infliction of severe physical or mental pain, agony or anguish. Besides serious physical abuse, torture includes serious sexual abuse or the serious psychological abuse of a victim resulting in severe mental anguish to the victim in anticipation of serious physical harm.

85 West v. State, 313 S.E.2d 67, 71 (Ga. 1984) (appendix). 29

Courts of last resort in other states have similarly

formulated definitions of torture that include physical and

psychological aspects. E.g., State v. White, 668 N.W.2d 850,

857 (Iowa 2003) (“‘[T]orture’ is either physical and/or mental

anguish.”); State v. Ross, 646 A.2d 1318, 1361 (Conn. 1994)

(holding torture may be psychological as well as physical).

But cf. Newman v. State, 106 S.W.3d 438, 461 (Ark. 2003)

(reciting a statutory distinction between torture and mental

anguish under Ark. Code Ann. § 5-4-604(b)(B)(ii)). The

psychological aspect of torture may be established, for

example, “where the victim is in intense fear and is aware of,

but helpless to prevent, impending death . . . for an

appreciable lapse of time.” Ex parte Key, 891 So. 2d 384, 390

(Ala. 2004).

29 “Aggravated battery” is also undefined by Virginia statute, though it was and remains a statutory offense in Georgia. Godfrey, 446 U.S. at 431 n.13 (citing Ga. Code Ann. § 26-1305 (1978)); see also West, 313 S.E.2d at 69; Ga. Code Ann. § 16-5-24(a). The elements of that statutory offense define aggravated battery for the purpose of establishing the aggravating factor under Georgia law. West, 313 S.E.2d at 71 (appendix). Similarly, though “depravity of mind” is undefined by statute in both Virginia and Georgia, the Georgia Supreme Court has defined it as “a reflection of an utterly corrupt, perverted or immoral state of mind.” Id. The meanings of these two terms for the purposes of the Virginia vileness aggravating factor are not at issue in Lawlor’s appeal and we express no opinion on them.

86 In this case, unlike Quintana, the medical evidence of

aspirated blood and defensive wounds established that Orange

was alive and conscious during some of the 47 blows she

sustained. Viewed in the light most favorable to the

Commonwealth, the proponent of the instructions, there is more

than a mere scintilla of evidence that Orange was tortured

within the meaning of Code §§ 19.2-264.2 and 19.2-264.4(C).

Accordingly, the court did not err in giving the proposed

instructions.

In assignment of error 164, Lawlor asserts that the court

erred by denying his proposed Instruction S-A. He argues that

the Commonwealth’s Instructions S-2a and S-3a erroneously

instructed the jurors that they could not impose a sentence of

life imprisonment unless they found that a sentence of death

was not justified. In particular, he challenges the portion of

the two instructions that included the language:

However, even if you find that the Commonwealth has proved [one or] both of the aggravating factors beyond a reasonable doubt and the jury has so found unanimously, if you nevertheless believe from all the evidence, including evidence in mitigation, that the death penalty is not justified, then you shall fix the punishment of the defendant at [life imprisonment].

However, this argument is not within the scope of the

assignment of error.

87 Assignment of error 164 states, “The trial court erred in

denying Mr. Lawlor’s proffered penalty phase instruction S-A

regarding whether the jury may impose a sentence of life even

if it is unanimous regarding the factors necessary to impose a

sentence of death.” Neither this nor any other assignment of

error challenges the Commonwealth’s proposed instructions on

the basis that they misled the jurors into believing they could

not impose a sentence of life imprisonment. We consider only

arguments within the scope of the assignment of error. Rule

5:27(d); Teleguz v. Commonwealth, 273 Va. 458, 484, 643 S.E.2d

708, 725 (2007), cert. denied, 552 U.S. 1191 (2008). We

therefore do not consider whether Instructions S-2a and S-3a

misled the jurors into believing they could not impose a

sentence of life imprisonment.

In assignment of error 162, Lawlor asserts that the court

erred by denying his proposed Instruction S-L. He again argues

that the instruction would have remedied alleged defects in

Instructions S-2a and S-3a which, according to Lawlor, misled

the jurors about their ability to impose a sentence of life

imprisonment. However, this argument is again outside the

scope of the assignment of error.

Assignment of error 162 states, “The trial court erred in

denying Mr. Lawlor’s proffered penalty phase instruction S-L

and in failing to instruct the jury that a sentence of life

88 without the possibility of parole is the default sentence for

capital murder.” As noted above, no assignment of error

challenges Instructions S-2a and S-3a on the ground that they

misled the jurors about their ability to impose a sentence of

life imprisonment. Because Lawlor’s argument is again outside

the scope of the assignment of error, we will not consider it.

Rule 5:27(d); Teleguz, 273 Va. at 484, 643 S.E.2d at 725.

In assignment of error 165, Lawlor asserts that the court

erred by denying his proposed Instruction S-C. However, there

is only one Instruction S-C in the record and it is marked

“granted.” To the extent Lawlor offered another Instruction S-

C that was denied, it appears in neither the joint appendix nor

the manuscript record. 30 “We cannot review the ruling of a

lower court for error when the appellant does not . . . provide

erred.” Prince Seating Corp., 275 Va. at 470, 659 S.E.2d at

307. Consequently, we cannot consider this assignment of

error.

CLAIM 2: IMPRISONMENT FOR LIFE WITHOUT PAROLE

This claim consists of 11 assignments of error asserting

that through rulings on jury instructions and answers to

questions from the jury during its penalty phase deliberations,

30 The record does include a description of language from an alternative Instruction S-C but the entire, verbatim instruction is not clear.

89 the circuit court erred by misleading the jurors into believing

that Lawlor could be released from prison if they imposed a

sentence of life imprisonment. 31

1. JURY INSTRUCTIONS

As noted above in Claims 7, 9, and 13, we review jury

instructions “to see that the law has been clearly stated and

that the instructions cover all issues which the evidence

fairly raises.” Cooper, 277 Va. at 381, 673 S.E.2d at 187

(internal quotation marks omitted). A court may in its

discretion properly exclude an instruction when other

instructions fully and fairly cover the relevant principle of

law. Daniels, 275 Va. at 466, 657 S.E.2d at 87.

31 In assignment of error 186, Lawlor asserts the court’s error also extended to rulings and comments during Dr. Cunningham’s testimony. However, he cites to no place in the record where the court made such rulings and comments or where he preserved objection to them. Accordingly, we do not consider this assignment of error. Rule 5:27(c). The court’s rulings during Dr. Cunningham’s testimony are also included in assignment of error 187, but we likewise do not consider that portion of it. Id. Similarly, in assignments of error 193 and 194, he asserts that the court also erred by misleading the jurors that they could not consider his risk of future dangerousness in prison in rulings relating to jury selection and Dr. Cunningham’s testimony. Again, he cites to no place in the record where the court made such rulings and comments or where he preserved objection to them. Accordingly, we do not consider those portions of these assignments of error. Id. In addition, his argument on jury instructions is limited to his assertion that they misled the jury into believing he would not spend his sentence in prison if sentenced to life imprisonment. The portions of these assignments of error relating to jury instructions therefore are abandoned. Rule 5:27(d).

90 In assignment of error 167, Lawlor asserts that the court

erred by granting the Commonwealth’s proposed Instruction S-8a

relating to the future dangerousness aggravating factor. He

argues that the instruction failed to inform the jury that he

would spend the rest of his life in prison if not sentenced to

death. In considering Lawlor’s objection to the instruction,

the court observed that other granted instructions informed the

jury that a sentence of life imprisonment meant life without

parole and declined to add the information to Instruction S-8a.

Instruction S-4, which the court granted, stated, “The

words ‘imprisoned for life’ mean imprisonment for life without

possibility of parole.” This instruction adequately informed

the jury of the law and the court did not err in declining to

modify Instruction S-8a as Lawlor suggested.

In assignment of error 187, Lawlor asserts that the court

erred by denying his proposed Instruction S-J. That

instruction stated, “The words ‘imprisonment for life’ mean[]

imprisonment for life without possibility of parole. In other

words, if sentenced to life imprisonment, Mark Lawlor will

never be released on parole.” The jury was adequately informed

of the meaning of life imprisonment by Instruction S-4, which

the court granted. The court therefore did not abuse its

discretion by refusing Lawlor’s proffered instruction.

91 2. ANSWERS TO JURY QUESTIONS

In assignments of error 187, 193, 194, 195, 196, 198, 199,

200, and 202, Lawlor asserts that the court erred by answering

the jury’s questions during its penalty phase deliberations.

We review the court’s answers to questions propounded by the

jury for abuse of discretion. Marlowe v. Commonwealth, 2 Va.

App. 619, 625, 347 S.E.2d 167, 171 (1986).

The jury asked three questions. The initial question was,

“Re: ‘Continuing threat to society[,]’ Society means prison

society, or society in general?” The court answered, “Society

is not limited to ‘prison society’ but includes all society;

prison and society in general. Your focus must be on the

particular history and background of the defendant, Mark

Lawlor, and the circumstances of his offense.” Lawlor

expressly consented to the court’s answer. Thus, to the extent

these assignments of error encompass that answer, they are not

preserved. Rule 5:25.

Thereafter, the jury asked two follow-up questions

simultaneously. The first follow-up question was “Are we to

consider ‘society in general’ is free society or Mark Lawlor as

a prisoner in society inside & outside the wire?” In response,

the court directed the jury to its answer to its first question

and reiterated, “Society means all of society. All of society

92 includes prison society as well as non-prison, i.e., all

society.”

Lawlor objected to the court’s answer, arguing that a

sentence of life imprisonment means life without the

possibility of parole and the only relevant society therefore

was prison society. The court overruled his objection because

the jury already had been instructed that life imprisonment

means life without parole and because the relevant inquiry is

society in general, not prison society.

The second follow-up question was “If imprisoned for life,

what physical constraints would Mark Lawlor be under outside of

his cell while exposed to other persons? Inside prison?

Outside prison?” The court responded, “The circumstances of

Mr. Lawlor once he is delivered to the Department of

Corrections is not a matter [with] which you should concern

yourself.”

Lawlor again objected, arguing that prison conditions

could be relevant mitigating evidence. He also argued that the

question asked only about imprisonment for life rather than

imprisonment for life without parole. The court ruled that the

conditions of confinement were not relevant to the jury’s

deliberations and again ruled that other instructions informed

them that life imprisonment meant life without parole.

93 Instruction S-4 adequately informed the jury that life

imprisonment meant life without parole. Further, in Lovitt, we

expressly determined that “society” for the purposes of the

future dangerousness aggravating factor was society as a whole,

not merely prison society. 260 Va. at 517, 537 S.E.2d at 879.

We reaffirm that holding in Claim 3 of this case. Finally, we

ruled that the general conditions of confinement and prison

security are not relevant either to future dangerousness or as

mitigating evidence in Morva, 278 Va. at 350, 683 S.E.2d at

565, Juniper, 271 Va. at 425-27, 626 S.E.2d at 423-24, Bell,

264 Va. at 201, 563 S.E. 2d at 714, Walker, 258 Va. at 70, 515

S.E.2d at 574, Cherrix, 257 Va. at 310, 513 S.E.2d at 653, and

in Claims 3 and 4 of this case. Accordingly, the court did not

abuse its discretion by overruling Lawlor’s objections.

D. GENERAL STATUTORY AND CONSTITUTIONAL CHALLENGES

CLAIM 10: THE CONSTITUTIONALITY OF CODE § 19.2-264.5

This claim consists of 7 assignments of error challenging

Code § 19.2-264.5 generally and as the circuit court applied it

in Lawlor’s case.

1. FACIAL UNCONSTITUTIONALITY

In assignment of error 7, Lawlor asserts that the court

erred by denying his motion to declare Code § 19.2-264.5

unconstitutional. The statute states that “upon good cause

shown, the court may set aside the sentence of death and impose

94 a sentence of imprisonment for life.” Code § 19.2-264.5

(emphasis added). He argues that permitting the court such

discretion is unconstitutional.

We have previously considered and rejected Lawlor’s

argument. Prieto I, 278 Va. at 416, 682 S.E.2d at 937 (citing

Juniper, 271 Va. at 389, 626 S.E.2d at 401, Teleguz, 273 Va. at

474, 643 S.E.2d at 719, and Breard v. Commonwealth, 248 Va. 68,

76, 445 S.E.2d 670, 675-76, cert. denied, 513 U.S. 971 (1994)).

The circuit court did not err in adhering to our controlling

precedents. We also find no reason to modify the views we

previously expressed in them.

2. UNCONSTITUTIONAL AS-APPLIED

Lawlor also asserts in assignments of error 207, 208, 209,

and 210 that the court erred in the exercise of its discretion

under the statute because it considered improper factors in

denying his motion to set aside the jury’s recommendation.

Specifically, Lawlor argues that the court erred by considering

the defense strategy and representations in pre-trial motions,

finding that Lawlor had not expressed remorse, and noting that

Lawlor did not testify on his own behalf in the penalty phase. 32

32 In assignment of error 206, Lawlor also generally assigns error to the court’s failure to find good cause to set aside the jury’s recommendation and impose a sentence of life imprisonment. The brief contains no independent argument on this assignment of error. Consequently, to the extent it is not encompassed by his other assignments of error, it is

95 Code § 19.2-264.5 requires the preparation of a post-

sentence report prior to the imposition of a sentence of death.

“After consideration of the report, and upon good cause shown,

the court may set aside the sentence of death and impose a

sentence of imprisonment for life.” Code § 19.2-264.5. We

review a trial court’s decision on a motion to set aside a

sentence of death for abuse of discretion. See Yarbrough v.

Commonwealth, 262 Va. 388, 398, 551 S.E.2d 306, 312 (2001)

(noting the trial court’s authority under Code § 19.2-264.5 to

set aside a jury’s sentence of death is discretionary), cert.

denied, 535 U.S. 1060 (2002).

As noted above in Claim 4, there are “three principal

ways” by which a court abuses its discretion: “when a relevant

factor that should have been given significant weight is not

considered; when an irrelevant or improper factor is considered

and given significant weight; and when all proper factors, and

no improper ones, are considered, but the court, in weighing

those factors, commits a clear error of judgment.” Landrum,

282 Va. at 352, 717 S.E.2d at 137 (internal quotation marks

omitted).

abandoned. Rule 5:27(d). Similarly, in assignment of error 213, Lawlor generally assigns error to the court’s denial of his motion to suspend or vacate the final judgment but provides no argument relating to that motion. Therefore, to the extent this assignment of error is not encompassed by the others, it too is abandoned. Id.

96 The court clearly set forth its basis for denying Lawlor’s

motion:

So, I have reviewed all of the evidence, all of the materials, the voluminous materials, the letters in support of you, the research articles submitted, and all of the other offered materials proffered in the presentations by your counsel in the sentencing phase.

This was done despite the large quantity of material that was delivered only a few days ago.

I have reviewed all of the Phase II litigation testimony of more than 50--I think the total is 51 witnesses presented by the defense at trial. I’ve considered the pre- sentence report as well as the statements you’ve made, the arguments of your attorneys, arguments of the Commonwealth.

There simply has not been a document submitted on behalf of either the Commonwealth or the Defendant that has not been reviewed by the Court.

The jury in this case was selected after a multi-week voir dire, and was selected and approved by both the Commonwealth and the Defendant as to composition of membership.

Over a period of 31 trial days this jury heard the evidence in the guilt [or] innocence phase of this trial, including . . . your admission through counsel that you were the perpetrator of this horrific, vile, and unnecessarily cruel and vicious criminal act on Ginny Orange on September 24th, 2008.

Thereafter, the jury found by a unanimous vote that you were guilty of the capital murder as alleged in both count one and count two.

I have before me both Exhibit 1 and Exhibit 2 from the trial. Exhibit 1 is a picture of Ms. Orange in life and Exhibit 2 is a picture of Ms.

97 Orange in death. Only discretion prevents me from showing those to you because there are citizens in the courtroom.

In Phase II of this trial, the jury was presented with and heard over 50 mitigation witnesses presented by the Defense in Phase II.

The jury thereafter deliberated for several days and they reviewed the evidence and the argument of both the Commonwealth and the Defendant. The jury reached their unanimous verdict with the determination that under the facts of this case, the appropriate sentence under the law was the imposition of the death penalty for each of the two counts in the indictment.

I note that upon the reentry of the jury in to the court to deliver their verdict in Phase II, it was clear and obvious that the jury was, I guess the word is distraught, or better word, emotionally drained, and in fact several of the jurors were in tears.

It is clear evidence of the heavy emotional burden placed upon 12 citizens in a capital prosecution, and the seriousness and deliberation with which they addressed their civic duty as jurors.

There simply are no mitigating facts in this case that would convince the Court that the jury failed to properly consider any evidence in this litigation submitted by the defense.

There was abundant evidence and the jury’s conclusion that the two crimes as charged contained both the presence of a continuing threat and a violence factor, which has not been discussed today at all in this hearing, and thus warranted punishment by the imposition of death.

Counsel argues that the Defendant has accepted responsibility and the Defendant has said that today. Although I note for the record that over 22 months the defense position was

98 that someone else had committed this act . . . . Even[] as late as December 9th of 2010, the defense was asking for funds to send an investigator to Uruguay to interview one Rafael Delgado, who they at least intimated was involved in this crime.

It was only on January 13th in the opening statements that counsel for the Defendant accepted some responsibility.

Mr. Lawlor, I find today, and it is a difficult finding, I will admit to you, no reason to intercede and sentence you contrary to the recommendations of the jury in either count one or count two.

Today the Court affirms and imposes those sentences.

The record also indicates that the court prefaced its

remarks by observing that Lawlor did not express remorse prior

to sentencing. Lawlor points to a number of statements in

which he expressed remorse, but these statements were contained

in or attached as exhibits to a pleading filed on June 17,

2011, less than a week prior to the court’s June 23 hearing.

This 6-day interlude is a distinction without a difference for

the purposes of reviewing the court’s statement that “up until

today, there has not been a scintilla of remorse,” particularly

when the court expressly noted that it had reviewed these

statements when referring to “the large quantity of material

that was delivered only a few days ago.”

However, the record also indicates that the court

considered Lawlor’s pre-trial motions for funding to send an

99 investigator to Uruguay to interview and collect DNA from

Delgado, whom Lawlor at the time asserted may have committed

the murder as principal in the first degree. In addition, the

court commented that Lawlor “continued to deny [responsibility]

for over 22 months of pretrial investigations, in motions,

[and] pleadings by the defense team.” It also stated that he

accepted responsibility “only on January 13th in the opening

statements.”

While it is proper for a court to consider a defendant’s

“present tense refusal to accept responsibility, or show

remorse,” Jennings v. State, 664 A.2d 903, 910 (Md. 1995)

(emphasis added), it may not be linked to his “prior claim of

innocence or not guilty plea or exercise of his right to remain

silent.” Saenz v. State, 620 A.2d 401, 407 (Md. Ct. Spec. App.

1993). See also Smith, 27 Va. App. at 362-63, 499 S.E.2d at

13-14 (citing Jennings and Saenz). Lawlor’s defense strategy

in the 22 months preceding trial, including his assertion that

Delgado may have committed the murder and the concomitant

denial of responsibility it implied, was not an appropriate

factor to consider in weighing Lawlor’s sense of remorse at the

time of sentencing. Simply put, a defendant must not be

penalized at sentencing for having mounted a legal defense to

100 the charge against him. 33 See Bordenkircher v. Hayes, 434 U.S.

357, 363 (1978) (“To punish a person because he has done what

the law plainly allows him to do is a due process violation of

the most basic sort.”).

Nevertheless, the consideration under Code § 19.2-264.5 is

whether there is good cause to set aside the jury’s sentences

of death; the court correctly noted that the question before it

was whether to intercede and overrule the jury’s determination.

It is clear from the record that in evaluating that question

the court considered and gave the greatest weight to the

statutory sentencing report; the evidence adduced at trial,

including Lawlor’s mitigating evidence in the penalty phase;

the duration of voir dire and the resulting impartiality of the

jury; the seriousness with which jurors undertook and completed

their deliberations; the jury’s finding of both aggravating

factors; and the egregiousness of the offense. These are all

proper factors for the court’s consideration. While Lawlor’s

defense strategy was not a proper factor, the court did not

give it significant weight in relation to the many other

factors stated from the bench when it determined that Lawlor

had not shown good cause to set aside the jury’s sentences.

33 As noted, whether the defendant expresses remorse at sentencing is a proper factor for consideration and the trial court may weigh the credibility of any such expression, provided it does not consider the defendant’s prior legal positions when doing so.

101 Accordingly, the court did not abuse its discretion in denying

Lawlor’s motion. Landrum, 282 Va. at 352-53, 717 S.E.2d at

137.

CLAIM 15: NARROWING THE CLASS OF CAPITAL OFFENSES

assignment of error 20, in which Lawlor asserts that the

circuit court erred by denying his motion to declare Code

§ 18.2-31 unconstitutional for failing to narrow the class of

murders for which a sentence of death may be imposed. He

contends that the number of offenses defined as capital murder

in the statute has increased to the point that it no longer

satisfies the requirements of Gregg v. Georgia, 428 U.S. 153

(1976), Godfrey v. Georgia, 446 U.S. 420 (1980), and Zant v.

Stephens, 462 U.S. 862 (1983). We review this issue de novo.

Gallagher, 284 Va. at 449, 732 S.E.2d at 24 (2012).

Lawlor’s argument is without merit. In Furman v. Georgia,

408 U.S. 238 (1972), the Supreme Court determined that

arbitrary imposition of the death penalty was unconstitutional.

States responded by narrowing the class of defendants on whom a

sentence of death could be imposed. For example, in Texas such

a sentence could be imposed after conviction for one of only

five categories of murder. Jurek v. Texas, 428 U.S. 262, 268

(1976), overruled on other grounds by Abdul-Kabir, 550 U.S. at

258. The Court determined that limiting the type of murder for

102 which a sentence of death could be imposed was sufficient for

Furman purposes. Jurek, 428 U.S. at 276.

By contrast, in Georgia every murder was punishable by

either death or life imprisonment. Gregg, 428 U.S. at 196.

Nevertheless, that state narrowed the imposition of a sentence

of death to those cases in which a jury found at least one of

ten statutory aggravating factors beyond a reasonable doubt.

The Court determined that requirement eliminated the

opportunity the Furman jury had to impose a sentence of death

arbitrarily, “without guidance or direction.” Id. at 196-97.

In Godfrey, the Court reiterated its holding in Gregg that

“if a State wishes to authorize capital punishment it has a

constitutional responsibility to tailor and apply its law in a

manner that avoids the arbitrary and capricious infliction of

the death penalty.” 446 U.S. at 428. “It must channel the

sentencer’s discretion by clear and objective standards that

provide specific and detailed guidance, and that make

rationally reviewable the process for imposing a sentence of

death.” Id. (internal quotation marks and footnotes omitted).

While the Court reversed the death sentence imposed in

Godfrey, it did so because it determined that the sole

aggravating factor upon which the sentence had been imposed had

been applied unconstitutionally. Id. at 432-33. Notably, it

did not reverse on the ground that Georgia law extended the

103 potential imposition of a sentence of death to too many

offenses. To the contrary, in Zant, the Supreme Court

reaffirmed the principle that appropriate aggravating factors

may be sufficient to narrow the class of defendants upon whom a

sentence of death may be imposed. 462 U.S. at 878-79.

In short, states may avoid the arbitrary imposition of the

death penalty either by restricting the types of murder

constituting capital offenses or by setting forth aggravating

factors which must be proved prior to the imposition of a

sentence of death. By specifying certain offenses as capital

murder in Code § 18.2-31 and setting forth aggravating factors

in Code §§ 19.2-264.2 and 19.2-264.4(C), Virginia has done

both. Accordingly, the statutory aggravating factors set forth

in Code §§ 19.2-264.2 and 19.2-264.4(C) satisfy the

constitutional obligation to narrow the cases in which a

sentence of death may be imposed regardless of the number of

offenses defined as capital murder in Code § 18.2-31. The

court therefore did not err in denying Lawlor’s motion.

CLAIM 16: CRUEL AND UNUSUAL PUNISHMENT

assignment of error 204, in which Lawlor asserts that the

circuit court erred by denying his motion to bar the imposition

of a sentence of death because both of the Commonwealth’s

methods of execution constitute cruel and unusual punishment.

104 He also argues that an evidentiary hearing was necessary to

ascertain the changes made to its lethal injection protocol

since our last review.

Code § 53.1-234 allows a prisoner who has been sentenced

to death to elect whether the sentence will be executed by

electrocution or lethal injection; if the prisoner fails to

make a timely election, the statute directs that the sentence

be executed by lethal injection. We have consistently ruled

that execution by electrocution is constitutionally

permissible. Porter, 276 Va. at 238, 661 S.E.2d at 432

(quoting Bell, 264 Va. at 203, 563 S.E.2d at 715-16); Orbe v.

Johnson, 267 Va. 568, 570, 601 S.E.2d 543, 545 (2004) (“Orbe

II”). When a prisoner sentenced to death may choose to have

his sentence executed through a constitutionally permissible

method, we will not consider a constitutional challenge to an

alternative choice. Porter, 276 Va. at 237, 661 S.E.2d at 432

(“When a condemned prisoner has a choice of method of

execution, the inmate may not choose a method and then complain

of its unconstitutionality, particularly when the

constitutionality of the alternative method has been

established.”) (quoting Orbe II, 267 Va. at 570, 601 S.E.2d at

546). Accordingly, we will not reverse the court’s ruling.

CLAIM 17: LACK OF MEANINGFUL APPELLATE REVIEW

105 This claim consists of a single assignment of error,

assignment of error 8, in which Lawlor asserts that the circuit

court erred by denying his motion to declare the Commonwealth’s

capital punishment statutory scheme unconstitutional because it

fails to provide defendants with an opportunity for meaningful

appellate review. We have previously considered and rejected

Lawlor’s arguments. Morrisette v. Commonwealth, 264 Va. 386,

398, 569 S.E.2d 47, 55-56 (2002), cert. denied, 540 U.S. 1077

(2003); Bailey v. Commonwealth, 259 Va. 723, 742, 529 S.E.2d

570, 581, cert. denied, 531 U.S. 995 (2000). The circuit court

did not err in adhering to our controlling precedents. We also

find no reason to modify the views we previously expressed in

them.

III. REVIEW UNDER CODE § 17.1-313(C)

Code § 17.1-313(C) requires us to review every sentence of

death and “consider and determine: [(1) w]hether the sentence

of death was imposed under the influence of passion, prejudice

or any other arbitrary factor; and [(2) w]hether the sentence

of death is excessive or disproportionate to the penalty

imposed in similar cases, considering both the crime and the

defendant.” Lawlor presents his argument relating to this

review in his eighteenth and final claim. While we consider

Lawlor’s arguments concomitantly with our statutory review,

they do not restrict its scope. Code § 17.1-313(F).

106 A. PASSION, PREJUDICE, OR OTHER ARBITRARY FACTORS

In assignment of error 214, Lawlor asserts that the

sentences of death were imposed under the influence of

prejudice and an arbitrary factor, i.e., mistake. In

particular, he cites the trial court’s references to his

decision not to testify and his counsel’s advocacy. He also

argues that the jury’s sentences were made without the evidence

of his remorse and his asserted lack of risk of future

dangerousness excluded by the court’s rulings.

We have addressed each of these arguments above and have

found no reversible error. In addition, we have reviewed the

errors Lawlor assigns to the judgment of the trial court to

ascertain whether they suggest prejudice when considered

cumulatively. See Porter, 276 Va. at 266, 661 S.E.2d at 448

(citing Waye v. Commonwealth, 219 Va. 683, 704, 251 S.E.2d 202,

214 (1979)). We conclude that they do not.

Expanding our review beyond the scope of Lawlor’s

argument, we have thoroughly reviewed the record as mandated by

Code § 17.1-313(C)(1). Nothing therein suggests that the jury

failed to consider fully all evidence adduced in both the guilt

and penalty phases of trial, including Lawlor’s relevant

mitigating evidence. Likewise, nothing suggests any improper

influence in imposing the sentences of death. Accordingly, we

conclude that there is no indication that the sentences were

107 imposed under the influence of passion, prejudice, or any other

arbitrary factor.

B. EXCESSIVE OR DISPROPORTIONATE SENTENCE

In assignment of error 215, Lawlor asserts that, although

his crime was terrible, it does not compare to those this Court

routinely sees in capital cases. However, that is not the

standard set forth in the statute. Rather, we “determine

whether other sentencing bodies in this jurisdiction generally

impose the supreme penalty for comparable or similar crimes,

considering both the crime and the defendant.” Morva, 278 Va.

at 354, 683 S.E.2d at 567 (quoting Lovitt, 260 Va. at 518, 537

S.E.2d at 880) (internal quotation marks omitted). “This

review is not designed to ensure complete symmetry among all

death penalty cases. Rather, the goal of the review is to

determine if a sentence of death is aberrant.” Prieto II, 283

Va. at 188-89, 721 S.E.2d at 507-08 (quoting Porter, 276 Va. at

267, 661 S.E.2d at 448 (internal citation, alteration, and

quotation marks omitted).

Pursuant to Code § 17.1-313(C)(2) and (E), we examined

similar cases in which a sentence of death was imposed

following a conviction for capital murder in the commission of

abduction with intent to defile or a conviction for capital

murder in the commission of or subsequent to rape or attempted

rape. Our review was especially attentive to those cases in

108 which both aggravating factors were found, including Vinson v.

Commonwealth, 258 Va. 459, 522 S.E.2d 170 (1999), cert. denied,

530 U.S. 1218 (2000), Prieto II, and the cases cited therein.

Barnabei v. Commonwealth, 252 Va. 161, 477 S.E.2d 270

(1996), cert. denied, 520 U.S. 1224 (1997), and Payne v.

Commonwealth, 257 Va. 216, 509 S.E.2d 293 (1999), are

particularly analogous in that they each involve victims of

rape or attempted rape who suffered multiple blows from blunt

objects. Swisher v. Commonwealth, 256 Va. 471, 506 S.E.2d 763

(1998), cert. denied, 528 U.S. 812 (1999), is similarly

noteworthy in that both capital murder in the commission of

abduction with intent to defile and capital murder in the

commission of rape were charged in that case as they were in

Lawlor’s.

We also reviewed capital murder cases in which a sentence

of life imprisonment was imposed. Based on the totality of

this review, we find that the sentences of death imposed in

this case were not excessive or disproportionate to sentences

imposed in capital murder cases for comparable crimes.

IV. CONCLUSION

We find no error in the judgment of the circuit court.

Accordingly, we affirm the convictions for capital murder and

the sentences of death returned by the jury and the judgment

entered by the court.

109 Affirmed.