Mark Lee v. Harold Clarke
2015 U.S. App. LEXIS 4573
4th Cir.2015Background
- Mark E. Lee was tried for murder after Thomas Plummer was stabbed; witnesses agreed Plummer struck Lee first and Lee was bleeding from his eye/face.
- Trial evidence was disputed about whether Lee pursued and stabbed Plummer a second time and whether malice/premeditation formed.
- Jury received a manslaughter instruction but not Virginia’s full model definition of "heat of passion" (which explains provocation, emotions like rage/fear, and cooling).
- Trial counsel did not request the full heat-of-passion instruction and did not define it fully in closing; counsel later stated there was no strategic reason for the omission.
- Lee was convicted of second-degree murder and sentenced to 40 years. State habeas and federal district courts denied ineffective-assistance relief; the Fourth Circuit granted a COA and reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for failing to request a heat-of-passion definition | Lee: omission was deficient; the undisputed provocation evidence entitled him to the instruction and counsel had no strategic reason to omit it | Director: omission not prejudicial because jury had manslaughter instruction, counsel argued heat of passion in closing, and evidence of malice was strong | Fourth Cir.: performance deficient (no strategic basis) and prejudice shown — omission unreasonably harmed Lee under Strickland/AEDPA; state court unreasonably applied federal law |
| Whether a complete heat-of-passion instruction should have been given | Lee: he presented some credible evidence of heat of passion (victim struck first) so the definition was required | Director: trial instructions and counsel argument sufficed; jury focused on premeditation/malice | Court: complete instruction should have been given when provocation is credibly shown; Virginia precedent requires definitional instruction where provocation is established |
| Whether counsel’s closing argument cured the omitted instruction | Lee: arguments cannot substitute for explicit jury instructions; jurors view court instructions as definitive | Director: counsel discussed heat of passion so there was no prejudice | Court: counsel’s remarks did not cure omission — jurors need judge’s definitional instruction; counsel failed to explain that same emotions can support either malice or heat of passion |
| Whether prejudice exists given verdict and deliberations | Lee: reasonable probability verdict would differ (manslaughter) and sentence would be substantially lower | Director: jury questions show disbelief of Lee’s testimony and focus on premeditation; verdict unlikely to change | Court: reasonable probability of different outcome; state habeas unreasonably applied Strickland/AEDPA; remanded with directive to issue writ unless Commonwealth retries within 90 days |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishing the two-prong ineffective-assistance test)
- Glover v. United States, 531 U.S. 198 (sentence-increase prejudice can establish constitutional harm)
- Boyde v. California, 494 U.S. 370 (arguments of counsel less authoritative than jury instructions)
- Carter v. Kentucky, 450 U.S. 288 (importance of judge-issued instructions to cure juror misconceptions)
- Belton v. Commonwealth, 104 S.E.2d 1 (Virginia: where victim provokes, trial court must distinguish malice and passion)
- Hodge v. Commonwealth, 228 S.E.2d 692 (malice and heat of passion are mutually exclusive; some evidence of heat of passion entitles defendant to instruction)
- Barrett v. Commonwealth, 341 S.E.2d 190 (fear or provocation can support heat-of-passion finding)
- McClung v. Commonwealth, 212 S.E.2d 290 (provocation sufficiency and cooling time are jury questions)
- Crockett v. Commonwealth, 47 S.E.2d 377 (jury should receive instruction supporting heat-of-passion theory when supported by facts)
- Callahan v. Commonwealth, 63 S.E.2d 617 (jury can convict of voluntary manslaughter despite conflicting provocation evidence)