PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7914
MARK E. LEE,
Petitioner - Appellant,
v.
HAROLD W. CLARKE, Director, Department of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:13-cv-00251-HEH)
Argued: December 10, 2014 Decided: March 20, 2015
Amended: April 15, 2015
Before MOTZ, GREGORY, and WYNN, Circuit Judges.
Reversed and remanded by published opinion. Judge Gregory wrote
the opinion, in which Judge Motz and Judge Wynn joined.
ARGUED: David Bernard Hargett, HARGETT LAW, PLC, Glen Allen,
Virginia, for Appellant. Leah A. Darron, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON
BRIEF: Mark R. Herring, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
GREGORY, Circuit Judge:
Mark E. Lee (“Lee”) appeals the district court’s order
granting the motion of the Director of the Virginia Department
of Corrections (“Director”) to dismiss his petition for a writ
of habeas corpus. We issued a certificate of appealability to
address Lee’s claim that his trial counsel provided ineffective
assistance by failing to request a jury instruction defining
heat of passion. We find that the state habeas court’s decision
was based on an unreasonable application of clearly established
federal law set forth in Strickland v. Washington, 466 U.S. 668
(1984), in that the court failed to appreciate the prejudice
inherent in the absence of a jury instruction defining heat of
passion given that the undisputed facts demonstrate that the
instruction was crucial to Lee’s defense. We therefore reverse
the district court’s order of dismissal and remand with
instructions that it issue Lee a writ of habeas corpus unless
the Commonwealth of Virginia endeavors to prosecute him in a new
trial within ninety days.
I.
A.
On September 16-17, 2008, Lee was tried by a jury in the
Circuit Court for the City of Richmond on a charge of first
degree murder in connection with the stabbing of a man named
2
Thomas Plummer. According to the testimony of William Gormley,
a forensics pathologist and an assistant chief medical examiner
with Virginia’s Department of Health, Plummer suffered from “a
total of seven inflicted sharp force injuries,” but he
ultimately died as a result of “two fairly large stab wounds on
his chest.” J.A. 64. 1
The prosecution presented the testimony of a man named
Jarrell Drayton. Drayton testified that in the early afternoon
on April 9, 2008, he was outside on the 3100 block of Enslow
Avenue in Richmond, Virginia. He stated that he was speaking
with some people when he saw Plummer walking up the street.
Drayton also observed a burgundy truck, in which Lee was a
passenger, drive onto the 3100 block of Enslow Avenue.
According to Drayton, Lee “looked at [Plummer] funny.” J.A. 81.
When asked to elaborate, Drayton stated only that Lee “turned
his face upside down.” J.A. 81.
Plummer walked over to Drayton and his acquaintances and
asked for a gun. The truck was “[a] couple of steps” away, and
the window was rolled up. J.A. 82. When nobody produced a gun,
Plummer walked over to the truck and told Lee to get out.
Drayton stated that Plummer “was ready to fight,” and that when
Lee got out of the truck, Plummer “moved right up on him.” J.A.
1
“J.A.” refers to citations to the joint appendix filed by
the parties in this case.
3
83. Drayton testified that Plummer struck Lee in the face, and
that he observed blood coming from Lee’s eye. Drayton thought
Plummer struck Lee at most six times, but he was unsure. As
Plummer and Lee were fighting, Drayton heard Plummer yell “he
stabbed me.” J.A. 84. Plummer then advanced “up the street
holding his chest,” but Lee approached from behind and the two
began fighting again. Drayton first stated that Plummer was
again stabbed in the chest, but later admitted that he was not
sure where on Plummer’s body the blow landed. Plummer ran
around a car and Lee continued to pursue him, but Drayton and
another individual intervened and told Lee to leave Plummer
alone. Drayton heard Lee state “I’m tired of him” and “I’m
gonna kill him,” before running from the scene. J.A. 85-87.
Drayton did not know where Lee went afterward. Plummer
collapsed and later died.
After Drayton’s testimony, the prosecution rested its case.
Lee’s trial counsel then made a motion to strike the first
degree murder charge and to proceed instead on a second degree
murder charge, arguing that the Commonwealth had failed to show
premeditation. He also moved to proceed on a manslaughter
charge alone, arguing that there was no evidence of malice given
that Plummer provoked Lee by striking first. J.A. 111-13
(“[W]hen there is an assault on the defendant, and he is
provoked through that assault through no fault of his own, then
4
that negates the element of malice, which is required for a
murder conviction.” (citing Moxley v. Commonwealth, 77 S.E.2d
389 (Va. 1953), and Wilkins v. Commonwealth, 11 S.E.2d 653 (Va.
1940)). The prosecutor responded that “[i]f the defendant,
after having been struck, had defended himself quickly with a
knife and the fight would have terminated, then I would have
brought [the court] a manslaughter case.” J.A. 114. He went on
to characterize Drayton’s testimony:
The truth is the fight was over, the man had been
stabbed in the chest, he retreated, he backed off,
“I’ve been stabbed,” at which point we are pursuing
first degree murder, because this defendant then,
after having stabbed the man once, pursued the man,
stabbed him again, either got him in the heart or in
the liver, and specifically said loud enough for
everyone to hear: “I’m going to kill him.” And then
even after they told him, “leave him alone,” he chased
him down and stabbed him again.
The Court is well aware, willful, deliberate, and
premediated [intent] can be formed in the blink of an
eye, and when you say, “I’m going to kill him,” you
have reached the standpoint of first degree murder.
J.A. 114.
Lee’s trial counsel argued there might not have been a
cooling off period between the two stabbings. However, the
trial court denied the motions, stating, “[t]he court believes
the jury viewing the evidence in the light most favorable to the
Commonwealth will have sufficient evidence of malice, and that
evidence will include the defendant’s statement.” J.A. 115.
5
B.
Trial counsel then presented Lee’s case to the jury, in the
form of testimony from Lee and Lee’s friend, Reginald Davis.
Lee testified that he and Plummer had an argument the Friday
prior to Plummer’s killing. In particular, Lee testified that
the two men were at the Salvation Army when Plummer “approached
[him] about some rumors he had heard.” J.A. 126. Lee denied
knowledge of the rumors, “[a]nd then [Plummer] pushed [him] into
a lamp on a table at the Salvation Army. And the houseman at
the Salvation Army . . . put [them] both out that day.” J.A.
126.
The following Wednesday, April 9, 2008, Davis was driving
down Enslow looking for men to help pick up trash and do some
other work for a friend. Davis saw Lee and pulled over to let
him into his truck so they could discuss the work. As they were
talking, Lee spotted Plummer outside. Davis testified that
Plummer passed by the truck, and then returned to speak to Lee.
Davis stated that Lee “said something along the line . . . you
got us kicked out of that place.” J.A. 119. Plummer “had this
look in [sic] his face like he wanted to start fighting again,”
and Lee urged Plummer to “let it go.” J.A. 127. Plummer then
told Lee to get out of the truck, but before he could exit,
Plummer began punching him through the window. Plummer struck
him in the face about the eye and his glasses. Lee stated that
6
his “eye just started spitting out blood.” J.A. 127. Lee
testified that Plummer pulled him out of the truck, and he fell
to one knee. Plummer “was over top of [Lee] beating [him], and
[Lee] was throwing [his] hand up to try to . . . get up on [his]
feet, and [Plummer] just kept on hitting [Lee] in [his] head.”
J.A. 129.
Lee drew a pocket knife, 2 swung it at Plummer, and then
heard Plummer say, “He stabbed me.” J.A. 131. Lee admitted
that he then stated, “Man you knocked my eye out. Man I’m gonna
kill this nigga.” J.A. 131. By then, Plummer was across the
street yelling for someone to give him a gun. Lee testified
that he did not pursue Plummer or engage in additional fighting.
Instead, other individuals in the area told Lee to leave, and he
did so.
Davis did not see the stabbing. Rather, Davis exited the
truck from the driver’s side once the fight began, but when he
got to the passenger side, Lee and Plummer “were coming off the
ground.” J.A. 120. Davis observed Plummer running away
“holding his upper torso [and] saying, ‘I can’t believe I’ve
been stabbed.’” J.A. 120. Davis then returned to his truck and
drove away. He testified that he did not see a knife in Lee’s
hand at any point, and that he was unaware that Lee was armed.
2
Lee testified that he had the knife because he used it for
his manufacturing job.
7
C.
At the close of all testimony, Lee’s trial counsel again
moved to strike the murder charges and proceed solely on
manslaughter. Counsel argued that there was sufficient evidence
of provocation, and also that the Commonwealth had failed to
prove premeditation beyond a reasonable doubt. The trial court
rejected trial counsel’s arguments, stating that there were
credibility determinations that must be put to the jury. The
court stated also:
The statement of the intent can incur [sic] after the
forming of the intent, and that’s a jury issue. The
fact that the expression of the, I intend to kill him,
was after one or two of the wounds is not relevant.
The issue is when the intent was formed, not when it
was stated, not when it was expressed.
And I have read, too, the instruction on malice. I’ve
read the instructions that have been offered without
objection, and they are the law of the case and based
on this law and the evidence before the Court, there
are a number of jury issues. The Court is not going
to take this matter away from the jury.
J.A. 147.
The trial court asked both counsel to look at the
instructions; neither party objected to the instructions or
proposed any corrections or additions. The court thus read the
instructions to the jury. Among them were:
• Instruction No. 3, in relevant part,
If you find the Commonwealth has failed to prove
beyond a reasonable doubt that the killing was
malicious but that the Commonwealth has proved beyond
8
a reasonable doubt that the defendant killed Thomas
Plummer, and further: (1) [t]hat the killing was the
result of an intentional act; and (2) [t]hat the
killing was committed while in the sudden heat of
passion upon reasonable provocation[,] [t]hen you
shall find the defendant guilty of voluntary
manslaughter . . . . 3
• Instruction No. 4, in full,
“Willful, deliberate, and premeditated” means a
specific intent to kill adopted at sometime before the
killing, but which need not exist for any particular
length of time.
• Instruction No. 5, in full,
Malice is that state of mind which results in the
intentional doing of a wrongful act to another without
legal excuse or justification, at a time when the mind
of the actor is under the control of reason. Malice
may result from any unlawful or unjustifiable motive
including anger, hatred or revenge. Malice may be
inferred from any deliberate willful and cruel act
against another, however sudden.
• Instruction No. 6, in full,
You may infer malice from the deliberate use of a
deadly weapon unless, from all the evidence, you have
a reasonable doubt as to whether malice existed. A
deadly weapon is any object or instrument, not part of
the human body, that is likely to cause death or great
bodily injury because of the manner and under the
circumstances in which it is used.
• Instruction No. 7, in relevant part,
You have been instructed on more than one grade of
homicide and if you have a reasonable doubt as to the
grade of the offense, then you must resolve that doubt
in favor of the defendant, and find him guilty of the
lesser offense.
3
The omitted portion of Instruction No. 3 provides the
elements of first and second degree murder. J.A. 196.
9
• Instruction No. 8, in full,
The difference between murder and manslaughter is
malice. When malice is present the killing is murder.
When it is absent, the killing can be no more than
manslaughter.
• Instruction No. 9, in full,
Once the Commonwealth has proved there was an unlawful
killing, then you are entitled to infer there was
malice and that the act was murder in the second
degree unless, from all the evidence, you have a
reasonable doubt as to whether malice existed.
See J.A. 194-207.
Instruction No. 5 included the first paragraph of the
Virginia model instruction on malice and heat of passion.
Neither party requested the full model instruction, which
includes a definition of heat of passion, as well as a
discussion of the “cooling” of passion:
Malice is that state of mind which results in the
intentional doing of a wrongful act to another without
legal excuse or justification, at a time when the mind
of the actor is under the control of reason. Malice
may result from any unlawful or unjustifiable motive
including anger, hatred or revenge. Malice may be
inferred from any deliberate, willful, and cruel act
against another, however sudden.
Heat of passion excludes malice when that heat of
passion arises from provocation that reasonably
produces an emotional state of mind such as hot blood,
rage, anger, resentment, terror or fear so as to
demonstrate an absence of deliberate design to kill,
or to cause one to act on impulse without conscious
reflection. Heat of passion must be determined from
circumstances as they appeared to defendant but those
circumstances must be such as would have aroused heat
of passion in a reasonable person.
10
If a person acts upon reflection or deliberation, or
after his passion has cooled and there has been a
reasonable time or opportunity for cooling, then the
act is not attributable to heat of passion.
J.A. 253 (2-33 Virginia Model Jury Instructions – Criminal
Instruction No. 33.220) (omitted portions in bold).
During closing arguments, Lee’s counsel attempted to
distinguish malice and heat of passion for the jury. He stated:
“You cannot at the same time have malice, which is required for
both first and second degree murder, and heat of passion,
provocation. The two are what they called [sic] mutually
exclusive. You cannot have them both present at the same time.”
J.A. 157; see also J.A. 161 (“If you find the force was too
much, he didn’t need to take that knife at that point, but that
Mark Lee was provoked into that killing, that negates that
malice element that we’ve been talking about. That’s a
manslaughter.”).
During its deliberations, the jury contacted the court
three times. First, the jury sent a note indicating that it was
unable to reach a unanimous verdict, and the court responded by
giving an Allen charge. 4 The second time, the jury requested a
4
“An Allen charge, based on the Supreme Court’s decision in
Allen v. United States, 164 U.S. 492 (1896), is ‘[a]n
instruction advising deadlocked jurors to have deference to each
other’s views, that they should listen, with a disposition to be
convinced, to each other’s argument.’” United States v. Burgos,
(Continued)
11
clarification of the definition of premeditation. The court
informed the jury that Instruction No. 4 was the only legal
definition of willful, deliberate, and premeditated that was
available, and thus re-read that instruction. Finally, the jury
contacted the bailiff and indicated that it was still unable to
reach a unanimous verdict. The court thus gave both an Allen
charge and re-read Instruction No. 7. Neither counsel objected
to the court’s instructions and responses to the jury’s
questions. Sixteen minutes after the last set of instructions,
the jury returned with a unanimous verdict of second degree
murder.
Trial counsel made an oral motion to set aside the verdict,
arguing that the evidence of malice for second degree murder was
insufficient. The court summarily denied the motion, and the
jury later sentenced Lee to the maximum sentence of 40 years’
imprisonment.
D.
On direct appeal, Lee again argued that there was
insufficient evidence of malice to sustain his second degree
murder conviction. In upholding the conviction, the Court of
Appeals of Virginia framed “the issue [as] whether, after
55 F.3d 933, 935 (4th Cir. 1995) (quoting United States v.
Seeright, 978 F.2d 842, 845 n.* (4th Cir. 1992)).
12
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
J.A. 33 (internal quotation marks and citation omitted). The
court thus credited Commonwealth witness Drayton’s testimony and
found that a jury could have concluded that Lee acted with
malice. Lee’s subsequent appeal to the Virginia Supreme Court
was denied.
Lee thereafter, with the help of new counsel, filed a state
habeas petition in the Circuit Court for the City of Richmond,
alleging that his trial counsel was ineffective due to his
failure to request a heat of passion jury instruction. 5 After a
motions hearing, the court granted the Commonwealth’s motion to
dismiss Lee’s habeas petition. In its written order, the court
stated:
[T]he Court finds, upon review of the trial record, no
reasonable probability that but for the lack of
request of counsel for a jury instruction [on] the
definition of the heat of passion . . . [the outcome
of trial] would have been different. The Court
concurs with the argument of the [Respondent] with
regard to the testimony of the witnesses as well as
5
Lee additionally alleged ineffective assistance of counsel
for failing to advise him to take a plea offer. The court
denied the claim and, although Lee appealed that ruling in his
federal habeas petition filed in the Eastern District of
Virginia, this Court granted Lee a certificate of appealability
only as to his claim of ineffective assistance of counsel for
failure to request the heat of passion instruction.
13
the guidance . . . one can infer with regard to jury
deliberation [on] th[e] issue of malice.
J.A. 295 (internal quotation marks and citations omitted)
(alterations in original). The court noted in its opinion that
Lee had not requested an evidentiary hearing concerning his heat
of passion claim. 6 The Supreme Court of Virginia denied Lee’s
subsequent appeal.
Lee next filed a federal habeas petition in the Eastern
District of Virginia. He argued again he received ineffective
assistance of counsel as a result of his trial counsel’s failure
to request a jury instruction defining heat of passion. 7 Relying
on “[t]he Court of Appeals of Virginia[’]s apt[] summar[y] of
the evidence of Lee’s guilt” as set forth in the state court
opinion denying Lee’s direct appeal, J.A. 300, the district
court denied Lee’s federal habeas petition and denied a
certificate of appealability. In particular, the district court
stated that jurors knew from Jury Instruction No. 3 “that if Lee
killed Plummer in the heat of passion upon reasonable
provocation they should only find him guilty of voluntary
manslaughter.” J.A. 302-03. The district court also concluded
that the weight of the evidence against Lee was such that a heat
6
Lee did request an evidentiary hearing for his claim
concerning the plea offer, but the court denied his request.
7
Lee also advanced his claim concerning the plea offer. As
noted earlier, only Lee’s heat of passion instruction claim is
at issue in this appeal.
14
of passion instruction would not have changed the outcome of his
trial.
Lee filed an informal appeal. This Court granted a
certificate of appealability, and this appeal followed.
II.
“We review de novo a district court’s denial of habeas
relief based on a state record.” Tucker v. Ozmint, 350 F.3d
433, 438 (4th Cir. 2003). Under the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), federal courts may not
grant a petitioner’s habeas petition where the state court
adjudicated the petitioner’s habeas claims on the merits unless
the state court’s decision “was contrary to, or involved an
unreasonable application of clearly established Federal law, as
determined by the Supreme Court of the United States,” or “was
based on an unreasonable determination of facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d). “In reviewing a state court’s ruling on post-
conviction relief, we are mindful that ‘a determination on a
factual issue made by a State court shall be presumed correct,’
and the burden is on the petitioner to rebut this presumption
‘by clear and convincing evidence.’” Tucker, 350 F.3d at 439
(quoting 28 U.S.C. § 2254(e)); see also Lindh v. Murphy, 521
15
U.S. 320, 333 n.7 (1997) (referring to § 2254(d) as a “highly
deferential standard for evaluating state court rulings”).
We review claims based on ineffective assistance of counsel
under the familiar two-part standard set forth in Strickland. A
claimant must show first, that his counsel’s conduct “fell below
an objective standard of reasonableness,” and second, that he
was prejudiced as a result of counsel’s conduct. Strickland,
466 U.S. at 688. When reviewing ineffective assistance claims,
courts “must consider the totality of the evidence before the
judge or jury.” Id. at 695. As to counsel’s performance, “a
court must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Id. at 689. As to
prejudice, a claimant must demonstrate “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. A
reasonable probability is one “sufficient to undermine
confidence in the outcome.” Id. And, “[i]n cases where a
conviction has been the result of a trial, the defendant must
demonstrate that but for counsel’s errors, there is a reasonable
probability that he would not have been convicted.” United
States v. Luck, 611 F.3d 183, 186 (4th Cir. 2010).
16
Finally, we note that “when a petitioner’s habeas corpus
claim is based on alleged ineffective assistance of counsel
. . . . [t]he AEDPA standard and the Strickland standard are
dual and overlapping, and we apply the two standards
simultaneously rather than sequentially.” Richardson v.
Branker, 668 F.3d 128, 139 (4th Cir. 2012) (citing Harrington v.
Richter, --- U.S. ---, 131 S. Ct. 770 (2011)). Because both
standards of review are “‘highly deferential’ to the state
court’s adjudication . . . , ‘when the two apply in tandem, the
review is doubly so.’” Id. (citing and quoting Richter, 131 S.
Ct. at 788).
III.
A.
Lee contends that any reasonably competent attorney would
have requested the Virginia jury instruction defining heat of
passion. The Director does not argue that the failure to
request the instruction was not deficient, and the state habeas
court did not address ineffectiveness in its Strickland
analysis. While we do not today set forth the only circumstance
in which a heat of passion instruction is required, it is clear
from the testimony that arose during Lee’s trial that a
competent attorney would have requested the instruction in this
case.
17
“Virginia has long recognized that malice and heat of
passion cannot coexist. Proof of malice excludes the presence
of passion, and proof of passion presupposes the absence of
malice.” Hodge v. Commonwealth, 228 S.E.2d 692, 697 (Va. 1976)
(citing Brown v. Commonwealth, 10 S.E.2d 745, 747-48 (Va.
1890)). As the Virginia Supreme Court has stated,
[i]n a given situation, the accused, without producing
evidence, may be entitled to an instruction on
manslaughter, or even to a verdict on that lesser
charge, if it can reasonably be inferred from the
Commonwealth’s evidence that he acted in the heat of
passion. Where the Commonwealth’s evidence does not
permit such an inference, however, the burden of
production shifts to the accused. But when he
produces some credible evidence that he acted in the
heat of passion, he is entitled to an instruction on
manslaughter and also, if the evidence as a whole
raises a reasonable doubt that he acted maliciously,
to a verdict on the lesser charge of homicide.
Id. (citing McClung v. Commonwealth, 212 S.E.2d 290, 293 (Va.
1975)).
Here, Lee “produce[d] some credible evidence that he acted
in the heat of passion,” and was therefore “entitled to an
instruction on manslaughter.” Hodge, 228 S.E.2d at 697.
Indeed, there was undisputed testimony at trial from both the
Commonwealth and the defense that Plummer struck first, beating
Lee about his face several times and drawing blood. There was
no finding by the state trial court that any witness’s testimony
was not credible. Rather, because other facts were in dispute,
the trial court correctly put the matter to the jury.
18
Critically, however, the jury was never provided with a
complete definition of heat of passion. But where, as here,
there is ample evidence of heat of passion, an instruction on
manslaughter is ineffective if not accompanied by an instruction
defining heat of passion. See Belton v. Commonwealth, 104
S.E.2d 1, 4 (Va. 1958). In Belton, the Virginia Supreme Court
found that the trial court committed reversible error by
refusing, among other errors, to give the jury an instruction
“on the distinction between malice and passion.” Id. The court
stated that “[t]here [was] evidence in the record tending to
support” the defendant’s theory that he shot and killed his wife
in the heat of passion during an argument in which she first
taunted him about her relationships with other men and then hit
him. Id. The court went on to note that not only was an
instruction on the law of voluntary manslaughter necessary, but
also an instruction distinguishing heat of passion from malice.
Id. at 4-5; cf. Arnold v. Commonwealth, 560 S.E.2d 915, 918-19
(Va. Ct. App. 2002) (“While it is true that ‘[m]alice and heat
of passion are mutually exclusive,’ we have held that where it
is not the victim of the crime who invoked the defendant’s heat
of passion, there was no evidence to support a [jury instruction
or] finding of heat of passion.” (footnotes omitted)). Because
“malice and heat of passion cannot coexist,” Hodge, 228 S.E.2d
at 697, it follows that the jury must be appropriately apprised
19
of the legal definition of each, at least in cases like this
where it is undisputed that the passion was provoked by the
victim.
There is certainly a question concerning whether Lee, after
stabbing Plummer once, pursued him a second time. But under the
facts here, the discrepancy does not diminish the importance of
the heat of passion instruction. Generally,
whether provocation, shown by credible evidence, is
sufficient to engender the [f]uror brevis necessary to
rebut the presumption of malice arising from a
homicide is a question of fact. Only when the trial
court, giving the defendant the benefit of every
reasonable inference from the evidence, can say that
the minds of reasonable men could not differ does the
question become a question of law. Subject to the
same standards, it is also a question of fact whether
the defendant committed the homicide before or after
his passion had cooled.
McClung, 212 S.E.2d at 292 (internal citation omitted). Put
differently, not only is the sufficiency of provocation a
question of fact for the jury, but also the question of when any
passion stirred by the provocation cooled. Here, assuming that
Lee pursued Plummer a second time, there was very little time
between the two fighting incidents. The Virginia Supreme Court
has found it appropriate to issue a cooling instruction for much
longer cooling off periods than that potentially present here.
See Potter v. Commonwealth, 283 S.E.2d 448, 450 (Va. 1981)
(discussing cooling off instructions given in cases involving
twenty-four hours, three hours, and two years between
20
provocation and killing). Moreover, regardless of whose
testimony is believed and contrary to what the Director appears
to argue in his brief, Lee made the statement that he was going
to kill Plummer after the fighting had ceased. Thus, even
though the malice necessary for a finding of second degree
murder can be “‘implied from any deliberate or cruel act against
another, however sudden,’” Thomas v. Commonwealth, 41 S.E.2d
476, 480 (Va. 1947) (citing Scott v. Commonwealth, 129 S.E. 360,
363 (Va. 1925)), there would remain, under the facts of this
case, “a question of fact whether the defendant committed the
homicide before or after his passion had cooled,” McClung, 212
S.E.2d at 292.
Finally, we note that “strategic choices must be respected
. . . if they are based on professional judgment.” Strickland,
466 U.S. at 681. But here, Lee’s trial counsel in a May 25,
2011 letter stated that “[t]here was no strategic reason for the
omission of the instruction.” J.A. 271.
Because Lee’s trial counsel had no strategic reason for
failing to request the heat of passion jury instruction, and
because it was error to fail to do so in any event under the
facts of this case, we find that Lee has satisfied the first
prong of the Strickland/AEDPA test.
21
B.
We turn now to the issue of prejudice. To determine
whether Lee satisfied the prejudice prong of Strickland, the
state habeas court was required to consider the “totality of the
evidence before the judge or jury.” Strickland, 466 U.S. at
695. In conducting its analysis, it agreed with and adopted the
arguments made by the Commonwealth. J.A. 295 (“The [state
habeas] Court concurs with the argument of the [Respondent] with
regard to the testimony of the witnesses as well as the guidance
. . . one can infer with regard to the deliberation [on] th[e]
issue of malice.” (first alteration added)); see also J.A. 264-
66 (Commonwealth’s memorandum of law before state habeas court).
In reviewing the state habeas court’s conclusions, “[o]ur
inquiry regarding the prejudice prong is twofold: (1) whether
the instruction, if requested, should have been given; and (2)
if the instruction had been given, was there a reasonable
probability that the outcome of the proceedings would have been
different.” Luck, 611 F.3d at 189. We answer both of these
questions in the affirmative. As explained below, the
undisputed testimony that Plummer struck Lee first demonstrates
that the state habeas court’s Strickland analysis fails to
perceive the prejudice created by the lack of a definitional
heat of passion instruction.
22
First, if requested, the trial court should have given the
complete heat of passion instruction. As discussed at length
above, Lee produced evidence of provocation and heat of passion.
The Commonwealth’s witness, Drayton, also testified that Plummer
provoked Lee. Accordingly, Lee was entitled not only to an
instruction on manslaughter, which he received, but also to an
instruction defining heat of passion. See Belton, 104 S.E.2d at
4-5 (finding that where victim hit defendant during an argument,
trial court should have given instruction distinguishing heat of
passion from malice); Hodge, 228 S.E.2d at 697 (stating that a
defendant is entitled to an instruction on manslaughter if he
produces “some credible evidence that he acted in the heat of
passion”); Arnold, 560 S.E.2d at 918-19 (finding that it was not
error for trial court to refuse to give heat of passion
instruction where defendant failed to produce evidence of heat
of passion). Notably, the trial court made no finding that
there was insufficient evidence to support a heat of passion
defense.
To address the second question, we look to the importance
of the instruction under the facts of this case. The Director
argues that the lack of a heat of passion instruction could not
have been prejudicial because Lee’s trial counsel discussed heat
of passion during his closing arguments. This is incorrect. As
an initial matter, it is well established that “arguments of
23
counsel generally carry less weight with a jury than . . .
instructions from the court.” Boyde v. California, 494 U.S.
370, 384 (1990) (stating that arguments of counsel “are usually
billed in advance to the jury as matters of argument, not
evidence . . . and are likely viewed as the statements of
advocates,” while jury instructions from the court, “we have
often recognized, are viewed as definitive and binding
statements of the law”). To be sure, “[j]urors are not lawyers;
they do not know the technical meaning” of legal terms such as
heat of passion. See Carter v. Kentucky, 450 U.S. 288, 303
(1981). Accordingly, “[t]he other trial instructions and
arguments of counsel that the . . . jurors heard at the trial”
cannot “substitute for [an] explicit instruction.” Id. at 304
(“[M]ost certainly, defense counsel’s own argument that the
petitioner ‘doesn’t have to take the stand . . . [and] doesn’t
have to do anything’ cannot have the purging effect that an
instruction from the judge would have had.” (second alteration
in original)); see also Muhammad v. Warden of Sussex I State
Prison, 646 S.E.2d 182, 194 (Va. 2007) (“It is presumed that a
jury will follow the instructions given by the trial court.”).
A court issued jury instruction carries the command and force of
law in a way that a statement by counsel cannot, and thus
prejudice that arises from a flawed or omitted jury instruction
is not cured by mere argument.
24
Moreover, here, trial counsel attempted to distinguish
malice and heat of passion without once setting forth or
otherwise explaining the full force of Virginia’s model
instruction defining heat of passion. He repeatedly stated that
heat of passion negates malice but did not describe heat of
passion itself. He never informed jurors that “[h]eat of
passion must be determined from circumstances as they appeared
to the defendant.” J.A. 253. And perhaps most important, he
failed entirely to explain that, under the law of Virginia, the
same emotions that can serve as the basis for malice can also
serve as the basis for heat of passion. Compare Barrett, 341
S.E.2d at 192 (“Heat of passion . . . may be founded upon rage,
fear, or a combination of both.” (emphasis added) (citations
omitted)), and J.A. 253 (model instruction defining heat of
passion as arising from “hot blood, rage, anger, resentment,
terror or fear” (emphasis added)), with Thomas, 41 S.E.2d at 480
(“Malice . . . includ[es] not only anger, hatred and revenge,
but every other unlawful and unjustifiable motive.” (emphasis
added)), and J.A. 199 (Instruction No. 5, stating malice can
arise from “anger, hatred or revenge” (emphasis added)).
The facts in this case expose the consequences of trial
counsel’s omission. It cannot be overemphasized that, according
to both Commonwealth and defense witnesses, Plummer struck Lee
first such that Lee was bleeding from his head or his eye.
25
There can be no serious doubt that such an attack would engender
anger, rage, fear or similar emotions. Thus, the principal
prejudicial factor lies in the manner in which the legal import
of these emotions was framed for the jury. The jury was well
aware that “[m]alice may result from any unlawful or
unjustifiable motive including anger, hatred or revenge.” J.A.
199 (Instruction No. 5). But it was never told, in any fashion,
that if a reasonable person, when provoked, felt “rage, anger,
[or] resentment,” then the jury could find instead that that
person was acting in the heat of passion. J.A. 253 (model
instruction defining heat of passion); see also Barrett, 341
S.E.2d at 192. Put differently, the jury was given to
understand “anger, hatred or revenge” as exclusively “unlawful
or unjustifiable motive[s].” J.A. 199 (Instruction No. 5). It
was not presented the option of applying the law of heat of
passion -- that is, the option of concluding that anger, rage,
or hatred arose from anything other than malice. Absent that
option, the state trial court, through trial counsel’s failure
to request the heat of passion instruction, deprived the jury of
any legal avenue to find Lee guilty of manslaughter as opposed
to second degree murder on the facts of this case. Trial
counsel further compounded the problem by failing to explain
during his closing argument that heat of passion and malice can
arise from similar emotions.
26
The state habeas court turned a blind eye to this reality
in accepting Lee’s trial counsel’s brief and incomplete
discussion of heat of passion as sufficient to overcome the
prejudice in this case. Put simply, and upon consideration of
the totality of the evidence before the trial court, trial
counsel’s closing argument could not carry the day. Trial
counsel did not define heat of passion for the jury. He did not
explain that anger or rage could legally signify either heat of
passion or malice. He did not reiterate for the jury that a
finding that Lee’s anger or rage was attributable to heat of
passion would completely supplant a finding that his anger or
rage was attributable to malice. By failing to make plain to
the jury that it had a legal choice between anger qua malice and
anger qua heat of passion, trial counsel’s closing argument
failed to remedy the lack of a jury instruction defining heat of
passion. In any event, and as discussed above, it would matter
little whether trial counsel’s closing argument had been more
adequately presented, because it was not supported by
“definitive and binding statements of the law” in the form of
jury instructions. Boyde, 494 U.S. at 384. This was
prejudicial. The state habeas court unreasonably applied
Strickland in concluding otherwise, even when its conclusion is
considered through the deferential lens of AEDPA. Instead, with
27
only what little argument was offered, and without the heat of
passion instruction, Lee suffered prejudice.
The Director also urges the Court that there was no
prejudice because “it is evident from the jury’s deliberations
that the jury did not believe the petitioner’s testimony and the
jury’s attention was focused on whether Lee acted with
premeditation.” Appellee’s Br. 19. But as the Virginia Supreme
Court very recently stated, “[a] question posed to the court
during deliberations . . . could suggest as little as the
tentative views of a single juror. It cannot be extrapolated
into a binding finding by the jury as a whole.” Dominguez v.
Pruett, 756 S.E.2d 911, 915 (Va. 2014) (internal citation and
quotation marks omitted). Here, for example, it is possible
that the question arose because a single juror was in favor of
first degree murder, while some or all of the remaining jurors
were in favor of second degree murder. And, for the reasons
discussed above, there is a reasonable probability that the
jurors were in favor of second degree murder only because they
were never apprised of the definition of heat of passion.
Our conclusion is further bolstered by Virginia Supreme
Court cases suggesting a reasonable probability that the outcome
of Lee’s trial would have been different had the heat of passion
instruction been given. For example, in Barrett v.
Commonwealth, two men were involved in a fistfight. 341 S.E.2d
28
190, 192 (Va. 1986). The loser of the fight, Gilchrist,
“threatened Barrett, stating their next fight ‘wouldn’t be with
fists.’” Id. Barrett was fearful because Gilchrist had a
reputation for carrying a gun. Id. Later, Barrett was walking
with a friend when he encountered Gilchrist again. Barrett’s
friend testified that he saw Gilchrist pull out a gun. When the
friend yelled a warning, Barrett pulled out his own gun and shot
Gilchrist. 8 The Virginia Supreme Court held that “a jury
reasonably could find from the evidence that Barrett did not act
maliciously, but acted upon reasonable provocation, in the heat
of passion induced by fear.” Id. at 193. Here, it was
undisputed that Plummer initiated the fight by punching Lee in
the face. Given these facts, and given the standard announced
in Barrett, there is a reasonable probability that a jury would
find that Lee acted upon reasonable provocation in heat of
passion when he swung his pocket knife at Plummer. 9
8
Barrett was convicted only of malicious wounding.
However, “[b]ecause the mental-state elements of unlawful
wounding are the same as those of voluntary manslaughter, [the
Virginia Supreme Court] . . . examine[d] homicide law” in
resolving the case. Barrett, 341 S.E.2d at 192.
9
Despite the unanimous testimony that Plummer initiated the
fight by striking Lee in the face, the Director argues that Lee
provoked Plummer by “making a derogatory facial expression” at
Plummer and verbally blaming Plummer for the incident at the
Salvation Army. Appellee’s Br. 16-17. Even if such actions
were to blame for the ensuing physical altercation, there is a
factual issue as to whether Lee or Plummer made a face and spoke
first. Compare J.A. 81, 83 (Drayton’s testimony that Lee
(Continued)
29
Also illustrative is another case, Callahan v.
Commonwealth, 63 S.E.2d 617 (Va. 1951), in which a jury found
the defendant guilty of voluntary manslaughter. There, the
defendant and the deceased were arguing near the entrance to a
cafe. Id. at 618. Witnesses for the Commonwealth testified
that the deceased left the entrance and walked toward the
defendant, at which point the defendant fired a pistol at the
deceased’s feet. Id. The deceased continued walking toward the
defendant, and the defendant then fired two more shots, killing
the deceased. Id. The defendant’s witnesses, on the other
hand, testified that the deceased threatened the defendant both
verbally and with a knife, and that the defendant subsequently
fired the warning shot and the fatal shots. Id. The jury was
instructed on not only manslaughter, but also first and second
degree murder, and returned a verdict for voluntary
manslaughter. Id. at 619-20. The Virginia Supreme Court
affirmed the conviction. While a heat of passion instruction
was not directly at issue in Callahan, it is noteworthy that the
jury convicted the defendant of voluntary manslaughter despite
conflicting evidence about provocation. In this case, there is
evidence of provocation from both the Commonwealth and Lee. It
“looked at [Plummer] funny” and that Plummer told Lee to get out
of the truck”), with J.A. 119 (Davis testimony that Lee spoke
first).
30
thus seems reasonably probable that, if properly instructed on
the definition of heat of passion, a jury would conclude that
Lee was guilty of manslaughter as opposed to second degree
murder.
There remains the question of whether Lee pursued and
stabbed Plummer a second time. But again, even assuming two
stabbings, there is a reasonable probability that a jury would
conclude that Lee was acting in the heat of passion for the
duration of the fighting. The Virginia Supreme Court stated
that there was “credible evidence to support” a defendant’s
theory of voluntary manslaughter resulting from provocation and
heat of passion in Crockett v. Commonwealth, 47 S.E.2d 377, 382
(Va. 1946). There, the deceased beat the defendant with his
fists and with a bottle of gin during the course of a card game.
Id. at 379. Three hours later, the defendant sought out the
deceased and shot him in the chest. Id. The Commonwealth
argued that sufficient time had elapsed for the defendant’s
blood to cool, whereas the defendant argued that he shot the
deceased in the heat of passion. Id. at 381-82. The Virginia
Supreme Court observed that, based on the facts, it was error to
give the jury instructions pertaining only to the Commonwealth’s
theory that the defendant’s blood had cooled before the
shooting. Id. at 381. Rather, the jury should have also been
given an instruction that supported the defendant’s theory that
31
the he was operating in the heat of passion when he shot the
deceased. Id. at 381-82. Here, too, there is credible evidence
that Lee was acting in the heat of passion, and there is a
reasonable probability that a jury would so conclude if properly
instructed. See McClung, 212 S.E.2d at 293 (finding that jury
could have concluded that defendant acted in heat of passion
where jury “could have concluded that the ‘cooling time’ was
less than half an hour”).
We note finally that a verdict of manslaughter would have
resulted in a substantially shorter sentence. Under Virginia
law, second degree murder is punishable by a maximum of forty
years in prison. Va. Code § 18.2-32. By contrast, manslaughter
is a Class 5 Felony punishable by a maximum of ten years in
prison. Va. Code §§ 18.2-35, 18.2-10(e). Here, Lee was
sentenced to the maximum term for second degree murder. Because
there is a reasonable probability that the jury would have found
Lee guilty only of manslaughter, he would have received a
sentence at least thirty years shorter. This difference in the
applicable sentences is undoubtedly prejudicial. See Glover v.
United States, 531 U.S. 198, 202-04 (2001) (holding that Sixth
Amendment prejudice resulted from an unasserted error that added
six to twenty-one months to the defendant’s sentence).
In sum, the trial court should have given the heat of
passion instruction if asked. Trial counsel’s inadequate
32
discussion of heat of passion during closing argument did not
cure the lack of instruction. Under the law of Virginia, the
undisputed facts here present a reasonable probability that the
outcome of Lee’s trial would have been different if the heat of
passion instruction had been given, and we therefore find that
Lee was prejudiced by his trial counsel’s failure to request the
heat of passion instruction.
IV.
For the foregoing reasons, we find that the state habeas
court’s denial of Lee’s ineffective assistance claim was based
on an unreasonable application of clearly established federal
law set forth in Strickland and its progeny, even when viewed
through the additional lens of AEDPA. Specifically, given the
undisputed facts presented at Lee’s trial, the state habeas
court erred in disregarding the prejudice created by the
omission of a jury instruction defining heat of passion. The
district court’s order is therefore reversed, and this case is
remanded with instructions to issue Lee a writ of habeas corpus
unless the Commonwealth of Virginia endeavors to prosecute him
in a new trial within ninety days.
REVERSED AND REMANDED
33