Dominguez v. Pruett, 756 S.E.2d 911

Dominguez was convicted by a Fairfax County jury (March 11, 2009) of malicious wounding (Va. Code § 18.2-51) and robbery; sentences run concurrently.
At trial the victim, highly intoxicated, testified he was attacked by two men who struck and kicked him in the head with baseball bats and boots until he surrendered his wallet; injuries required stitches.
The jury was instructed that malicious wounding required intent to “maim, disfigure, disable, or kill”; the instruction omitted the word “permanently.” Trial counsel did not object.
The jury sought clarification during deliberations (asked when a photograph was taken and later asked for a definition of “disable”); the court declined to alter instructions.
Dominguez appealed; the Court of Appeals refused review under Rule 5A:18 because no contemporaneous objection was made and found any instructional error immaterial given the evidence.
Dominguez filed a habeas petition alleging ineffective assistance of counsel for failing to object to the instruction; the habeas court denied relief, concluding Dominguez failed to show Strickland prejudice. The Virginia Supreme Court affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial counsel was ineffective for failing to object to a malicious-wounding instruction that omitted the word “permanently”	Failure to object deprived Dominguez of a correct instruction on the element of intent to permanently maim, disfigure, or disable; this omission was debatable and prejudiced the outcome	The omission was harmless because the evidence (violent, unprovoked attack to the head causing stitches) established intent to permanently injure; no reasonable probability of a different verdict	Court held Dominguez failed Strickland’s prejudice prong; no reasonable probability the outcome would differ and habeas relief was properly denied

Strickland v. Washington, 466 U.S. 668 (1984) (establishes two-prong ineffective-assistance test: performance and prejudice)
Burkeen v. Commonwealth, 286 Va. 255 (2013) (intent to permanently injure may be presumed from a violent, unprovoked blow to a vulnerable area under circumstances of brutality)
Banovitch v. Commonwealth, 196 Va. 210 (1954) (distinguishes motive from intent)
Dawkins v. Commonwealth, 186 Va. 55 (1947) (circumstantial evidence may prove intent to maliciously wound)
Luchenburg v. Smith, 79 F.3d 388 (4th Cir. 1996) (focus on fairness of proceeding in prejudice analysis under Strickland)
Orthopedic & Sports Physical Therapy Assocs. v. Summit Grp. Props., LLC, 283 Va. 777 (2012) (jury question can be evidence a jury may have been misled by an instruction)