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, 
2

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. 
3

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 
4

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. 
5

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). 
6

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). 
7

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. 
8

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 
9

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-ofdiscretion 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 
10

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. 
11

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 
12

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 
13

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 
14

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 
15

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 
16

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. 
17

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. 
18

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 
19

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 
20

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. 
21

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). 
22

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. 
23

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 
24

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 
25

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. 
26

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 
27

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. 

1. MOTION TO STRIKE 

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. 
28

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. 
29

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 
30

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)). 
31

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.”). 
32

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 
33

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. 

2. MOTION IN LIMINE 

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. 
34

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 
35

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 
36

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 
37

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. 
38

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. 
39

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 
40

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 
41

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 
42

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. 
43

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. 
44

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. 
45

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 
46

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 nonsperm 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 
47

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 
48

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 
49

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 

This claim consists of a single assignment of error, 

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). 
50

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 
51

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 
52

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 
53

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
54

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, ___ 
55

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. 
56

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 
57

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. 
58

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). 
59

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 thenexisting 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 
60

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 
61

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. 

Accordingly, the court did not abuse its discretion by 

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 
62

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 
63

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). 
64

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 

disagree. 

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 
65

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, 
66

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. 
67

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). 
68

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). 
69

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 
70

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 

testimony. 

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-
71

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 

added)). 

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 
72

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 
73

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 
74

rebuttal evidence, it should have been admitted as mitigating 

evidence. 

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 

mitigating evidence. 

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.” 
75

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 
76

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
77

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. 
78

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? 
79

 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 peerreviewed 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 
80

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 
81

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). 
82

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 
83

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. 
84

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). 
85

(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. 
86

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. 
87

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. 
88

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 
89

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 SC 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 

us with a record that adequately demonstrates that the court 

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. 
90

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). 
91

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. 
92

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 
93

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. 
94

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 
95

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 
96

Code § 19.2-264.5 requires the preparation of a postsentence 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. 
97

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 presentence 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. 
98

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 
99

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 
100

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 
101

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. 
102

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 

This claim consists of a single assignment of error, 

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 
103

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 
104

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 

This claim consists of a single assignment of error, 

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. 
105

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 
106

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). 
107

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 
108

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 
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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. 
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Affirmed.