By Lauren D. Emery

On March 20, 2015 in the published opinion, Mark E. Lee v. Harold W. Clarke, the Fourth Circuit reversed the district court’s dismissal of Lee’s petition for a writ of habeas corpus.

Altercation Instigated by Victim Results in his Death

On September 16-17, 2008, Lee was tried for first degree murder in the death of Thomas Plummer.  The jury heard testimony that on April 9, 2008, Lee was a passenger in a car that drove onto Enslow Avenue in Richmond, Virginia where he encountered Plummer.  Plummer–who had days previously had a fight with Lee–approached the car and told Lee to get out, and the two subsequently got in a physical altercation.  Plummer struck Lee in the face multiple times causing profuse bleeding from Lee’s eye.  Soon thereafter, Plummer yelled out that Lee had stabbed him.  According to a prosecution witness, Plummer began to retreat, but Lee followed him and the two continued fighting and Plummer was again stabbed.  Plummer’s friends ultimately intervened and told Lee to leave and heard him say, “I’m tired of him” and “I’m gonna kill him.”  Plummer ultimately died from his wounds.

After the State rested, Lee’s defense counsel made a motion to strike the first degree murder charge arguing that there was a lack of evidence as to premeditation.  Defense counsel 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.”  These motions were denied.  Jurors ultimately found Lee guilty of second degree murder and he was sentenced to the maximum of 40 years in prison.

After exhausting other remedies, Lee brought this federal habeas petition alleging ineffective assistance of counsel due to his attorney’s failure to request a heat of passion jury instruction.

Ineffective Assistance of Counsel Supported by Failure to Request Jury Instruction

Ineffective assistance of counsel claims are subjected to a two-part test outlined in Strickland v. Washington (466 U.S. 668).  First, a claimant must show that their counsel’s actions “fell below an objective standard of reasonableness.”  Second, they must show that they were “prejudiced as a result of counsel’s conduct.”  Specifically, they must show that, “but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

As to the first prong, the Fourth Circuit declared that failing to ask for an instruction on heat of passion fell below the standard of reasonableness. It considered the totality of the evidence presented at trial–including uncontested testimony that Plummer struck Lee first–and declared that “a competent attorney would have requested” a heat of passion instruction.  Though the jury heard a general instruction about the lesser included offense of manslaughter, the Fourth Circuit declared that “an instruction on manslaughter is ineffective if not accompanied by an instruction defining heat of passion.”

As to the second prong, the Fourth Circuit found that Lee was prejudiced by the lack of this jury instruction.  The court declared that, even though the defense counsel had made references to Lee acting in the heat of passion in their arguments, instructions from the court carry greater weight with a jury than arguments of counsel.  Thus, “‘arguments of counsel that the …jury heard at the trial’ cannot ‘substitute for [an] explicit instruction.'”  Furthermore, the court found that the statements of Lee’s counsel did not fully and effectively explain nor differentiate the concepts of malice and heat of passion as the Virginia model instruction could.  Finally, because a conviction of manslaughter would have carried a maximum sentence of ten years in prison and, because “there is a reasonable probability that the jury would have found Lee guilty only of manslaughter,” he was significantly prejudiced by this decision.

Case Reversed and Remanded

The Fourth Circuit reversed the decision and remanded the case with instructions to issue Lee a writ of habeas corpus or to grant him a new trial within ninety days.

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