732
1 UNITED STATES DISTRICT COURT
2 FOR THE WESTERN DISTRICT OF NORTH CAROLINA
3 CHARLOTTE DIVISION
4
UNITED STATES OF AMERICA )
5 )
)
6 vs. ) File No. 3:97CR23-P
)
7 AQUILIA MARCIVICCI BARNETTE, ) SENTENCING PHASE
)
8 Defendant. )
)
9
10
11 Transcript of proceedings before the Honorable
12 ROBERT D. POTTER, Senior United States District Court Judge,
13 before Scott A. Huseby, Official Court Reporter and Notary
14 Public, on the 4th day of February, 1998.
15 APPEARANCES:
16 For the United States:
17 ROBERT J. CONRAD, JR.
THOMAS G. WALKER
18 Assistant United States Attorneys
227 West Trade Street, Suite 1700
19 Charlotte, North Carolina 28204
20 On Behalf of the Defendant:
21 GEORGE V. LAUGHRUN, Esq.
Suite 602
22 301 South McDowell Street
Charlotte, North Carolina 28204
23
24
25
733
1 APPEARANCES: (Continued)
PAUL J. WILLIAMS, Esq.
2 Suite 801
301 South McDowell Street
3 Charlotte, North Carolina 28204
4
5 ---
6
7 THE COURT: Good morning, everyone.
8 MR. CONRAD: Good morning, Your Honor.
9 THE COURT: We're ready for the jury, I assume, call the
10 jury.
11 (The jury returned to the courtroom.)
12 THE COURT: Good morning. I see you have your coats,
13 glad to see you have your coats this morning. I think you must
14 come in and test the temperature before you come out here. I
15 assume y'all are a little bit chilly, is that right?
16 (Jurors nod heads.)
17 THE COURT: We'll try to see if we can get the heat
18 turned on sometime during the day.
19 All right, members of the jury, we are ready for more
20 evidence on the part of the defendant.
21 MR. WILLIAMS: Thank you, Your Honor. The defense calls
22 Cindy or Cynthia Maxwell, if Your Honor please.
23 CYNTHIA NEAGLE MAXWELL,
24 being first duly sworn, was examined and testified as follows:
25 DIRECT EXAMINATION
734
1 BY MR. WILLIAMS:
2 Q. State your name, please.
3 A. Cynthia Neagle Maxwell.
4 Q. Ms. Maxwell, were you at our request appointed by the
5 Court, this Court to assist the defense in this case?
6 A. Yes, I was.
7 Q. And in that regard, were you asked to prepare a life
8 history of Mark Barnette?
9 A. I was.
10 Q. Now, with regard to preparing a life history of Mark
11 Barnette, have you had any experience in doing that?
12 A. Yes, I have.
13 Q. And have you had any experience or in your background
14 any mental health experience or experience in social work?
15 A. I have experience in both.
16 Q. And have you been asked in the past to prepare life
17 histories for other lawyers in other cases?
18 A. I have.
19 Q. And were those all in capital defense cases?
20 A. Specific life histories have always been in capital
21 defense cases.
22 MR. WILLIAMS: If I may approach, Your Honor, I think
23 that microphone may be a little high, if I may. Can you hear
24 her all right?
25 THE COURT: Can y'all hear her?
735
1 THE CLERK: If she talks louder, it will be all right.
2 BY MR. WILLIAMS:
3 Q. I'm sorry, your answer to that question was what?
4 A. Specific life histories have been in capital cases for
5 the defense.
6 Q. And have you had experience in your past in doing that?
7 A. Yes, I have.
8 Q. And have you participated in any seminars and experience
9 in preparing life histories?
10 A. I have.
11 Q. And how many life histories have you prepared in the
12 past in regard to a person charged in a criminal case,
13 particularly a capital case?
14 A. For capital cases, I have worked on and prepared life
15 histories in 14 cases where the life history was typed and
16 submitted to defense counsel. I have assisted and consulted on
17 criminal cases and child abuse cases and life histories for
18 those people. I have done probably 30 or 40 life histories that
19 were not necessarily typed but were verbally given to defense
20 counsel.
21 Q. Now, what -- tell the jury just briefly what you do to
22 first obtain a life history.
23 A. I interview the defendant and the defendant's family and
24 any members of the family or significant others that the
25 defendant sends me to interview. I review records, and from
736
1 those records I find other names of people and agencies,
2 institutions, whom I interview. I then ask those people if
3 there is anyone else I should interview and I go and interview
4 those people. I talk with -- whenever I can find a phone number
5 or have access to victims, I do talk to victims if I can find
6 them. I talk with teachers and doctors and nurses and just
7 anybody I can find that knows the defendant and try --
8 Q. As a result of that and doing a life history, do you
9 prepare what is called a life line --
10 A. Yes, I do.
11 Q. -- in that regard?
12 A. Yes, I do.
13 THE COURT: Excuse me just a minute. Is that gentleman
14 that just came in, is he a witness in the case?
15 MR. LAUGHRUN: No, sir.
16 MR. WILLIAMS: No, sir, he is a lawyer.
17 THE COURT: Oh, okay, thank you. Lawyers can't be
18 witnesses.
19 MR. WILLIAMS: It's Mr. Brook, Your Honor.
20 THE COURT: Not very good witnesses anyway. All right,
21 go ahead.
22 BY MR. WILLIAMS:
23 Q. Now, when you prepare a life history and -- let me
24 strike that. Were you -- when were you appointed in this case
25 to assist the defense, about how long ago?
737
1 A. May 25th, 1997.
2 Q. And since that time, in the process of preparing a life
3 history and going into the background and reviewing records and
4 doing all that, about how many hours have you spent doing that?
5 A. Somewhere between 200 and 300 hours.
6 Q. Now, after you do a life history, do you then put it in
7 a visual form such as a life line?
8 A. Yes, I do.
9 Q. And how do you obtain or how do you prepare the life
10 line, where do you get the information that goes in the life
11 line to present as a visual history of the client's life, how do
12 you do that, where do you get that information from?
13 A. From the life history, which is a compilation of the
14 interviews and information that I have obtained.
15 Q. And when you do the life line, do you sometimes include
16 photographs in the life line that have been provided to you from
17 members of the family to indicate the life of, in this case Mark
18 Barnette at different times of his life?
19 A. Yes, I do.
20 MR. WILLIAMS: If I may approach the witness, Your
21 Honor?
22 THE COURT: Yes, sir.
23 BY MR. WILLIAMS:
24 Q. If I may show you Defendant's Exhibit 28B and 28C and
25 28D, and ask you if you recognize those photographs?
738
1 A. Yes, I do.
2 Q. And on the backs of the photographs, are there any
3 markings?
4 A. Yes, there are markings.
5 Q. Okay.
6 MR. CONRAD: Your Honor, we would stipulate to these
7 photographs which have already been admitted, and we would
8 stipulate as well to the admission of the life line.
9 THE COURT: All right.
10 MR. WILLIAMS: All right, thank you very much.
11 BY MR. WILLIAMS:
12 Q. Let me hand you Defendant's Exhibit Number 43, and ask
13 you if that is the life line that you prepared in this case with
14 regard to the life of Mark Barnette?
15 A. Yes, it is.
16 MR. WILLIAMS: If Your Honor please, we offer that
17 exhibit into evidence and ask that the jury be allowed to be
18 passed a notebook that has -- well, before I do that, I have one
19 more question to ask her.
20 BY MR. WILLIAMS:
21 Q. The notebook includes the life line, and also were
22 you -- did you obtain from Mr. Barnette some drawings or
23 art -- samples of his artwork that he has done since he has been
24 in prison?
25 A. Since he's been in jail, yes, sir.
739
1 MR. WILLIAMS: May I approach, Your Honor?
2 THE COURT: Yes, sir.
3 BY MR. WILLIAMS:
4 Q. And let me show you Exhibits 29A, B, C and D, and ask
5 you if those are the drawings that you obtained from Mark
6 Barnette that he did, from what he told you, since he's been in
7 jail?
8 A. Yes.
9 MR. WILLIAMS: We'd offer those into evidence, Your
10 Honor, and now ask that the notebook be passed to the jury
11 showing those two exhibits.
12 THE COURT: There is no objection to the notebook?
13 MR. WILLIAMS: We have taken out everything in the
14 notebook except the life line and those photographs.
15 THE COURT: All right, let them be admitted.
16 MR. CONRAD: Does the notebook have an exhibit number?
17 MR. WILLIAMS: Well, the notebook is going to be the
18 Exhibit 43A.
19 THE COURT: 43A? All right, the notebook as it is
20 passed to the jury will be admitted.
21 MR. WILLIAMS: Thank you, Your Honor.
22 THE COURT: And also 29 -- well, you've already got 28
23 in, I think -- 29A, B, C and D. Was there anything else? That
24 was all, wasn't it, okay, thank you.
25 BY MR. WILLIAMS:
740
1 Q. Very briefly, would you come down in front of the jury
2 while the notebooks are being passed out so we can move along as
3 quickly as possible, and I will ask you if Defendant's Exhibit
4 43A is the same thing as the life line for Mr. Barnette but put
5 together on a large board?
6 A. Yes.
7 MR. CONRAD: Your Honor, just for clarification, I
8 thought 43A was the notebook that was passed to the jury.
9 MR. WILLIAMS: I'm sorry, it is. 43B would be the
10 blowup of the life line. I'm sorry, Your Honor.
11 THE COURT: 43B, all right, it will be admitted, and
12 43A.
13 BY MR. WILLIAMS:
14 Q. Now, Exhibit 43B, I just want you to briefly explain to
15 the jury at this point, using the notebooks that the jurors have
16 at the beginning of the first page in the notebook of the life
17 line, is that this page here beginning in 1973?
18 A. I think we are going to stand in front. If I pull it
19 this way, I think --
20 THE CLERK: There is a pointer if you need one.
21 MR. WILLIAMS: May I have a pointer, Your Honor?
22 THE COURT: We have one right here, Mr. Williams.
23 MR. WILLIAMS: I have one, Your Honor.
24 BY MR. WILLIAMS:
25 Q. With regard to the first item that I'm pointing out
741
1 right now, is that the first page of the life line that's in the
2 notebook?
3 A. Yes, it is.
4 Q. And then the second page that's in the notebook for the
5 jurors is this page here?
6 A. That's correct.
7 Q. And then do the rest of the -- if you can stand right
8 over here where I am. And are the rest of the pages in
9 sequential order on this life line going in this direction
10 (indicating)?
11 A. Yes.
12 Q. As they appear in the notebook for the jurors?
13 A. Yes, that's correct.
14 Q. Now, I notice that there are photographs in that life
15 line. Are those the photographs that have been admitted into
16 evidence that you testified you obtained, I believe from Sonia
17 Barnette?
18 A. Those are the photographs, yes.
19 Q. And there are also, if you could explain briefly to the
20 jury what this life line has in it with regard to the different
21 colors. I believe there is a color code down here in the lower
22 left-hand page -- lower left-hand corner of each page. Would
23 you explain what that color code is?
24 A. Yes. The magenta or the first color is for Mark's
25 employment during his life, and the green is for every move that
742
1 he made. The red is for the violence that has been in his life,
2 and the blue indicates information about significant others.
3 Q. Okay. And did you determine or did you make a
4 determination in putting this life line into this form, into a
5 visual exhibit, make determinations as to what went in there?
6 A. Yes, I did.
7 Q. And what were the reasons you made those determinations?
8 A. The determinations were made based on commonly accepted
9 risk factors.
10 MR. CONRAD: Objection, this witness is not an expert on
11 risk factors, Your Honor.
12 THE COURT: Sustained.
13 BY MR. WILLIAMS:
14 Q. In any event, did you take the various events from Mark
15 Barnette's life and place them in this life line?
16 A. Yes.
17 Q. And did you obtain that information from the life
18 history that you obtained from your interviews of over 200 hours
19 with various people and reviewing records?
20 A. Yes, that's right.
21 Q. Thank you very much, you may take the stand.
22 MR. WILLIAMS: I believe I have offered that exhibit,
23 Your Honor, but it's offered again to illustrate the testimony
24 of the witnesses and to illustrate the life story of
25 Mr. Barnette in visual form. You may cross-examine.
743
1 THE COURT: Yes, sir. If you want to move that, you
2 can.
3 MR. CONRAD: I will leave that for the moment, Your
4 Honor, thank you.
5 THE COURT: Can you see the witness?
6 MR. CONRAD: I can.
7 MR. WILLIAMS: I'll be glad to move it.
8 MR. CONRAD: I said I would leave it there.
9 CROSS-EXAMINATION
10 BY MR. CONRAD:
11 Q. Ms. Maxwell, you indicated that you had some training.
12 What type of training did you have to put together a life line?
13 A. I have training in the mental health field. I have a
14 B.A. in psychology from the University of North Carolina at
15 Chapel Hill. I have been a therapist and an emergency telephone
16 worker at Mecklenburg Mental Health and Gaston Lincoln Mental
17 Health. I did an internship at Butner while a student in
18 psychology.
19 Q. How long ago was that?
20 A. That was in 1975 that I did the internship.
21 Q. After that, when is the first time you did a life line?
22 A. That I actually did a life line?
23 Q. Right.
24 A. I started doing these life lines in 19 -- putting them
25 on boards like this in 1993.
744
1 Q. And that was as a result of some specific training,
2 wasn't it?
3 A. That was the result of some specific training.
4 Q. And what specific training was that?
5 A. I had one-on-one training from the mitigation specialist
6 at the Center for Death Penalty Litigation who is a Master's in
7 social work.
8 Q. And what is the Center for Death Penalty Litigation to
9 your knowledge?
10 A. It is a center that studies death penalty cases and
11 provides representation and consultation to defense attorneys.
12 Q. It's a think tank for defense attorneys with capital
13 cases, correct?
14 A. That's a synopsis.
15 Q. And a resource for defense attorneys?
16 A. That's correct.
17 Q. And after you had that training, you've done some 14
18 life histories did you say?
19 A. Yes, sir.
20 Q. And this is one of them?
21 A. This is one of them.
22 Q. Now, your chart has 15 pages in a notebook in three rows
23 on a poster board, does it not?
24 A. That's correct.
25 Q. And Donnie Lee Allen and Robin Williams' murder, which
745
1 this case is all about, is a little tiny circle on the second to
2 last page, correct?
3 A. Yes, sir, that's where it came in the life line.
4 Q. Turning your attention to the page which begins with
5 1992, do you have a copy of the notebook in front of you?
6 A. I do.
7 Q. Does that --
8 A. That would be Page 10, the page numbers are in the lower
9 right-hand corner.
10 Q. Right. Does that show that the defendant spent 25 days
11 in jail in 1992?
12 A. That's correct.
13 Q. And how do you know that?
14 A. I reviewed his criminal records.
15 Q. And does that show that soon after he got out of jail,
16 he was arrested again for felonious conduct?
17 A. That shows that he was arrested in the first of 1993.
18 Q. Correct. So soon after he got out of jail, spent 25
19 days in jail for shooting someone, he was arrested again for
20 felonious conduct in the early part of '93, correct?
21 A. Correct, he got out of jail in June of '92.
22 Q. Now, I think this orange color is supposed to signify
23 violent events in the defendant's life, is that right?
24 A. That's correct.
25 Q. Where in 1993 have you drawn an orange circle showing
746
1 that the defendant beat the infant children of Crystal Dennis,
2 can you point that out to the jury?
3 A. I did not color it orange. What I did was I talked
4 about -- and I did not color it any color actually. In the
5 beginning of 1993, I talked about the negotiated plea on two
6 counts of cruelty to children.
7 Q. Did you not indicate there the significance of the event
8 to you on January 28th, 1993 is that Mark was arrested and lost
9 his Blockbuster job, is that the event where he beat the two
10 children of Crystal Dennis, yes or no?
11 A. Yes, it is.
12 Q. And anywhere there did you indicate that he beat the two
13 children of Crystal Dennis?
14 A. I did not -- I indicated --
15 Q. Yes or no?
16 MR. WILLIAMS: Well, objection, Your Honor.
17 THE COURT: She hasn't answered the question. Very
18 simple, yes or no, and then she can explain.
19 MR. WILLIAMS: She has a right to explain it, Your
20 Honor.
21 THE WITNESS: Yes, I did indicate it.
22 BY MR. CONRAD:
23 Q. And would you show the jury where it is that you
24 indicated that he beat the two children, one age three and one
25 age five, of Crystal Dennis?
747
1 A. Underneath where he was arrested for the Blockbuster
2 job, I have that he negotiated a plea of two counts of cruelty
3 to children.
4 Q. So the significance to you is that he negotiated a plea,
5 not that he beat the two children?
6 A. I think both are significant.
7 Q. But only one is reflected, correct?
8 A. If I could explain why I think both are significant.
9 Q. I'm asking you if only one of those things is reflected
10 on your chart, can you answer me yes or no?
11 A. No, both are.
12 Q. Is it not colored in orange because in your opinion as a
13 mitigation whatever, that you didn't think it was an act of
14 violence?
15 MR. LAUGHRUN: Object to the mitigation whatever, Your
16 Honor, that's --
17 THE COURT: Sustain that.
18 BY MR. CONRAD:
19 Q. Is it not reflected in orange because it wasn't
20 significant to you as a violent episode?
21 A. Actually, it's not reflected in any color because I
22 think it is both, and I did not have a way of representing both
23 colors on this particular chart. And so I put it with no color
24 whatsoever because I think that it is both his job, which was
25 significant to him as a person, and it is red as violent. I did
748
1 not put --
2 Q. Where is it red as violent, that's what I don't
3 understand?
4 A. I didn't put it in any color.
5 Q. You had no trouble circling Mark's attempted suicide,
6 putting a circle around it and drawing that red, you had no
7 trouble doing that, did you?
8 A. I had no trouble doing that, because that did not
9 represent two different things at the same time.
10 Q. Do you know that after he, quote, negotiated the plea
11 for the counts of cruelty to children, that he was put on
12 probation?
13 A. Yes, I do know that.
14 Q. And where on your chart is it reflected that he was put
15 on probation?
16 A. It is not reflected on the chart anywhere as is none of
17 the other -- he was put on probation I believe yet another time,
18 and that isn't represented.
19 Q. So the fact that he was put on probation twice in his
20 adult life was not a fact that was significant to you enough so
21 that you would put it on the chart?
22 A. I had to select what I had room to put on the chart, and
23 I didn't select that.
24 Q. How much room would it have taken to put an arrow like
25 you have here showing that the defendant was put on probation on
749
1 two occasions?
2 A. With the criminal records, I suppose I could have done
3 that. I didn't know that it was going to be a factor. It is a
4 part of the criminal record and a part of what has been entered,
5 I believe.
6 Q. Did you ever talk to his probation officers?
7 A. I did not talk to his probation officers.
8 Q. Why not?
9 A. I called down there several times and couldn't find
10 them.
11 Q. Did you ever talk to any probation officers in North
12 Carolina?
13 A. No, I did not.
14 Q. Why not?
15 A. I was talking to other people.
16 Q. Uh-huh. You have listed in 12-93 in red an altercation
17 over Alesha at Bojangles', second degree trespass, Mark taken to
18 the emergency room with head and elbow injuries, do you see
19 that?
20 A. I do, on Page 11.
21 Q. Now, you know that that actually didn't happen in
22 December, rather it happened in November, correct?
23 A. It happened at the very end of November and the
24 beginning of December.
25 Q. Well, it actually happened November 12th, did it not?
750
1 A. No, that was a different incident.
2 Q. Oh, really? What happened on November 12th that is
3 different than the Bojangles' incident?
4 A. I need to refer, I believe, to my records for that.
5 What I remember from the records is that there was one incident
6 where he went into the house and --
7 Q. When you say went into the house --
8 MR. WILLIAMS: Objection, Your Honor, he is
9 interrupting.
10 THE COURT: Excuse me just a minute. He is asking what
11 she means by went into the house.
12 THE WITNESS: Went into the home where Alesha Chambers
13 was staying at the time.
14 BY MR. CONRAD:
15 Q. Kicked in the door?
16 A. I believe he did kick in that door, yes.
17 Q. Took her away?
18 A. Yes.
19 Q. Would it surprise to you to learn that that happened on
20 November the 8th?
21 A. Actually, that was a very chaotic time in Mark's life --
22 Q. No, I'm --
23 A. -- and it wouldn't surprise me.
24 Q. But, I mean, you investigated all of this, you looked at
25 police records, you came up with a life chart, and you're
751
1 telling this jury that on November 12th, Alesha is pregnant,
2 Mark is charged with second degree kidnapping and three counts
3 of assault with a deadly weapon?
4 A. Yes.
5 Q. And what incident are you referring to you when you put
6 that on the chart?
7 A. I was referring to the incident that you were speaking
8 of.
9 Q. The November 8th incident?
10 A. November 8th, that's a fine date for me, November -- in
11 November of 1993.
12 Q. November 8th of 1993?
13 A. That's fine.
14 Q. And you know that he went to jail for that?
15 A. Yes.
16 Q. And that's not reflected on your chart, is it?
17 A. He was charged with second degree kidnapping, three
18 counts of assault with a deadly weapon.
19 Q. You know he got out of jail a couple of days later and
20 assaulted Ms. Chambers at the Bojangles' on November 12th, you
21 know that, don't you?
22 A. That -- within the span of just a few days, yes, and I
23 think that that is reflected on the chart, and I do have that he
24 went to jail under the December event.
25 Q. Right. But you now know the December event actually
752
1 occurred November 12th?
2 A. That is very likely.
3 Q. Now, you referred to it as a, quote, altercation. You
4 actually know that he held a knife to Alesha Chambers' throat
5 and threatened to kill her, correct?
6 A. I think that's -- yes, that's what happened. There
7 were --
8 Q. Is that what you mean when you use the
9 word "altercation", that the defendant held a knife to someone's
10 throat and threatened to kill her?
11 A. Basically, yes. There were -- if I can explain just a
12 little bit, there were other people involved in that incident,
13 and so it was bigger than just holding a knife to somebody's
14 throat. It was an altercation.
15 Q. It was much bigger than that. You know as well that the
16 defendant took that knife and started swinging it at other
17 people, you know that, too, don't you?
18 A. From reading the criminal records, yes, I do.
19 Q. Did you ever talk to those witnesses?
20 A. I did not.
21 Q. Did you talk to Brent McCrickard, an eyewitness from
22 T.K. Tripp?
23 A. I need to go back. I did talk to Alesha Chambers at
24 length.
25 Q. Did you talk to Brent Casey McCrickard?
753
1 A. No, I did not.
2 Q. Had you talked to her, would you have learned that the
3 defendant swung a knife at --
4 MR. LAUGHRUN: Objection, Judge, it's entirely
5 speculative.
6 THE COURT: Overruled.
7 MR. LAUGHRUN: Had she talked to her, Judge?
8 THE COURT: Had she talked to her, overruled.
9 THE WITNESS: Can you repeat the question, please?
10 BY MR. CONRAD:
11 Q. If you had talked to Ms. McCrickard and she had told you
12 she was an eyewitness to the defendant swinging a knife at
13 several people, would you have put that on the chart?
14 MR. LAUGHRUN: Objection, it's speculation, Your Honor.
15 THE COURT: Overruled.
16 THE WITNESS: I think that I would have put on the chart
17 exactly what I have here, because I can't put everything on the
18 chart, it's a summation.
19 BY MR. CONRAD:
20 Q. You'd just call it an altercation and leave it at that?
21 A. I would.
22 Q. Now, you said that Mark was taken to the emergency
23 room. Did you list anywhere on the chart that Mark was taken to
24 jail?
25 A. Yes, right underneath it.
754
1 Q. This little tiny white box indicating jail?
2 A. That's correct.
3 Q. Now, on 3-25-94 you indicate, Mark charged with first
4 degree rape and first degree kidnapping of Alesha Chambers,
5 later dropped?
6 A. That's correct.
7 Q. But you don't put that in red?
8 A. It was later dropped.
9 Q. Well, you have several -- strike that. So you don't put
10 something in red unless there is a conviction that results from
11 it, is that correct?
12 A. No, I think I have several things -- let me look. If a
13 conviction -- yes, I think that in this situation, I do wait for
14 a conviction of some charges. Some of the times, some of these
15 charges that I have put in red are dropped or he is convicted of
16 a lesser offense. For instance, what I indicate as 11-12-93 and
17 what you tell me was 11-8-93 with the arrow, he was later
18 convicted of lesser charges.
19 Q. He was convicted by a jury beyond a reasonable doubt,
20 correct?
21 A. Yes.
22 Q. Now, you had no trouble putting in red, Mark runs away
23 from home, even though that's not a conviction?
24 A. Can you tell me what page we are on now?
25 Q. I will just point right here to right before 1980, Mark
755
1 runs away from home and tells police his father beat him, that
2 was put in red even though there is no conviction?
3 A. That was put in red because a child running away from
4 home is --
5 Q. A crime of violence?
6 A. He said his father beat him.
7 Q. Was his father convicted of it?
8 A. No, I put Mark's convictions in red. I didn't put other
9 people's convictions.
10 Q. The only information you have that Mark ran away from
11 home is that his father beat him was from Mark?
12 A. No, I had that information from his father and I had
13 that information from his mother.
14 Q. On this particular --
15 A. And I had that information from his little brother.
16 THE COURT: Wait just a minute, let her finish and then
17 you can ask a question.
18 BY MR. CONRAD:
19 Q. The red circle you have right before 1990, Mark runs
20 away from home, tells police his father beat him, what
21 specifically do you know about that incident?
22 A. I had been told about that incident by Mark.
23 Q. What did he tell you?
24 A. He went into great depth about why he ran away from
25 home. He was afraid to go home because of the grade that he
756
1 had. And so he went home, nobody was at home when he would come
2 home from school, and he went in, thought about it, thought
3 about what was going to happen because of that grade. And he
4 drew me a map to the house that he went to up the street and
5 told me what he had for dinner that night at that other house,
6 told me that the police came, talked to the man at that house,
7 told me that the police left, and then his father came up there
8 to pick him up and he hid under the bed and they had to go into
9 this friend's bedroom and drag him out from under the bed.
10 Sonia then told me --
11 Q. Mark ran away because he was afraid his father might
12 beat him for grades?
13 A. Yes.
14 Q. And that's sufficient for you to put it in red even
15 though there is no conviction,, but you don't put in red the
16 fact that he is charged with first degree rape, correct?
17 A. Now, the charge of first degree rape --
18 THE COURT: Wait, Ms. Maxwell, answer the question yes
19 or no and then you can explain.
20 THE WITNESS: Could I get a clarification as to what
21 page that -- is that still on Page 11 that we were talking
22 about?
23 MR. CONRAD: It's on Page 12.
24 THE WITNESS: I did not put that in red, and if I may
25 explain again. It is not put in red, because it was later
757
1 dropped.
2 BY MR. CONRAD:
3 Q. Now, you indicated you talked to Alesha Chambers?
4 A. Yes.
5 Q. She must have told you that shortly before that, Mark
6 hit her with a baseball bat causing stitches to her arm?
7 A. Actually, she didn't tell me that.
8 Q. So the reason that incident is not on here, that act of
9 violence, is because Alesha Chambers didn't tell you about it?
10 A. Right.
11 Q. Did Mark tell you about it?
12 A. I don't think he did, no.
13 Q. Now, you know that at this time when these acts are
14 occurring that the defendant is on probation, correct?
15 A. Yes.
16 Q. Now, you have an entry for 5-24-95 in which --
17 A. Page 13?
18 Q. -- you have circled in red, Page 13, circled in red,
19 Robin almost cuts off Mark's finger?
20 A. That's correct.
21 Q. There wasn't a conviction for that, was there?
22 A. There was no conviction for that, no.
23 Q. But that didn't keep you from circling it and painting
24 it red, did it?
25 A. No, it didn't keep me from doing that, because I had the
758
1 medical records.
2 Q. Tell the jury about what medical records, if any, you
3 gathered in this case.
4 A. Actually, I had great difficulty gathering records in
5 this case.
6 Q. I'd actually like for you just to tell the jury what
7 medical records you gathered.
8 A. Okay. I gathered the Carolinas Medical Center records
9 for the gunshot wound that Mark suffered January 31st, 1995. I
10 gathered the Roanoke medical records with the initial finger
11 incident where his finger was cut, May 24th, 1995.
12 Q. The incident you have on your chart, Robin almost cut
13 off Mark's finger?
14 A. That's the incident. The reinjury of his finger on
15 May 30th, 1995. The Charlotte pediatric records and Family
16 Practice of Lithonia, Georgia medical records were put into the
17 expert's notebook that I compiled as they were interviewing
18 Mark.
19 Q. And are all of those medical records contained in a
20 notebook that appears before you?
21 A. These are not all of the medical records we have,
22 though.
23 Q. What other medical records do you have?
24 A. We had the -- these are all of the medical records we
25 had on Mark.
759
1 Q. Right, and that's what I'm asking about.
2 A. Okay.
3 Q. What medical records did you obtain concerning the
4 defendant, Aquilia Marcivicci Barnette?
5 A. These are the medical records we have.
6 Q. All of the medical records that you gathered contained
7 in that notebook which says expert's notebook attorneys?
8 A. Correct.
9 MR. CONRAD: All right, let me mark that for
10 identification, Your Honor, I'm not sure what number, but I'm
11 going to call it 70.
12 THE COURT: Well, let's see, Number 69, that's right, it
13 would be 70.
14 BY MR. CONRAD:
15 Q. Which is a notebook labeled expert's notebook attorneys,
16 and it's your testimony here today that the medical records you
17 gathered in this case related to Aquilia Marcivicci Barnette are
18 all in that notebook?
19 A. Correct.
20 Q. And you -- did you send those medical records to the
21 various experts in this case?
22 A. I sent them to the defense experts.
23 Q. Okay. And did you send any other medical records other
24 than what is in the binder labeled Government's Exhibit 70
25 related to the defendant?
760
1 A. I faxed to them the birth records.
2 Q. I'm just talking about medical records.
3 A. Okay, no.
4 Q. Now, you indicated that your review of the medical
5 records contained in Government's Exhibit 70 enabled you to draw
6 a circle, color it red and put 5-24-95, Robin almost cuts off
7 Mark's finger, correct?
8 A. Also my interviews.
9 Q. I would ask you to turn to Government's Exhibit 70 and
10 find for the jury where it is in that exhibit that there is any
11 indication at all in those medical records that Robin almost cut
12 off Mark's finger.
13 A. The only indication that is there is that Mark went to
14 the Roanoke hospital with a severely cut finger.
15 Q. There is no indication at all in those medical records,
16 is there, that Robin cut that finger?
17 A. Not that Robin cut the finger, no, not in these records.
18 Q. In fact, the defendant was asked how his injury occurred
19 and he never once in any of those medical records indicated that
20 Robin cut his finger?
21 A. Not in these records.
22 Q. So when you told the jury earlier that you had the
23 medical records and as a result you could write, Robin almost
24 cut off Mark's finger, that was incorrect?
25 A. No, sir.
761
1 Q. Well, you now are testifying that that circle comes from
2 something other than the medical records, correct?
3 A. My interview.
4 Q. Thank you. Now, you have entries 9-29-95 and 12-31-95
5 that Angelica is five and little Mark is four, correct?
6 A. Yes.
7 Q. And those are significant there because they are
8 significant events in the defendant's life?
9 A. Correct.
10 Q. Is there any indication in your chart that the defendant
11 ever went down to Newnan, Georgia to see Angelica or little
12 Mark?
13 A. Yes.
14 Q. There is?
15 A. Ask the question again.
16 Q. In your efforts in this case, your 200, 300 hours, is
17 there any indication at all that this defendant ever went down
18 to Newnan, Georgia to see Angelica or little Mark?
19 A. He lived with them for a while.
20 Q. Well, and when he moved out and came to Charlotte, is
21 there any evidence in your 200, 300 hours that you put in this
22 case that he ever went back to Newnan, Georgia to see his
23 children?
24 A. No. What happened was, if I can explain that, what
25 happened was the children were brought up here.
762
1 Q. One time?
2 A. One time.
3 Q. For one month?
4 A. My information says that it was more than one month.
5 Q. But anyways, in 1995 when you have these entries, they
6 are entries because they are significant in the defendant's
7 life, but you have no evidence that he had any contact with
8 those children at all on that occasion, correct?
9 A. On the occasion of their birthdays?
10 Q. Where you have listed on the chart significant events in
11 the defendant's life, there's no evidence that he did as much as
12 send a card on those days to those children?
13 A. No evidence that he sent a card, no.
14 Q. Called or visited or did anything on those days?
15 A. I first got these out of his daytimer. For what it's
16 worth, he did have it indicated in the daytimer.
17 Q. 4-11-96, you have colored in green, which means a move,
18 that Mark is kicked out by Robin and must return to Charlotte,
19 do you see that entry, Page 14?
20 A. I do.
21 Q. Is there any indication in there that he took Robin's
22 car and locked her out of the apartment on 4-11-96?
23 A. No, there is not, and --
24 Q. Did you become aware that, in fact, he took Robin's car
25 and drove it to Charlotte after he got kicked out?
763
1 A. Yes, I knew that.
2 Q. 5-21-96, you have listed in white the purchase of a
3 gun. Was that the purchase of the murder weapon in this case?
4 A. I think that it was, yes.
5 Q. Do you have any -- any indication here that the
6 defendant provided false information to require that murder
7 weapon?
8 A. No, I think that's in evidence, though.
9 Q. It's what?
10 A. I think that's already been put in evidence.
11 Q. Any indication on this life line of significant events
12 in the defendant's life that the day before, he purchased
13 another pump shotgun?
14 A. That is not on this life line.
15 Q. Why isn't it on the life line?
16 A. I couldn't include everything, and I thought that the
17 purchase of that gun was more significant than the purchase of
18 the other.
19 Q. Did you even know about the purchase of the first gun?
20 A. I became aware of it later on.
21 Q. And when did you become aware of it?
22 A. I don't know exactly.
23 Q. You don't remember?
24 A. Not exactly.
25 Q. Did you become aware of it as a result of discovery
764
1 produced in this case and not as a result of anything that the
2 defendant or anybody else in the defense team told you?
3 A. I did become aware of it as a result of discovery, yes.
4 Q. The defendant never told you he purchased two illegal
5 weapons, did he, or illegally purchased two weapons, never told
6 you that, did he?
7 A. No.
8 Q. And he never told you, or did he tell you that between
9 the fire bombing and the murder that he had gone up to Roanoke,
10 Virginia, did he ever tell you that?
11 A. No, he did not.
12 Q. Did he ever tell you that he left cards on the
13 windshield of Robin Williams' car after he fire bombed her
14 apartment and she went to UVA hospital for skin grafts, did he
15 ever tell you that?
16 A. No.
17 Q. If he had told you that, would that have been
18 significant enough to put on the time line?
19 A. I probably would have tried to somehow put it in there
20 with an arrow.
21 Q. Now, he did tell you, did he not, that he sawed off the
22 shotgun that he illegally purchased on May 21st?
23 A. Yes.
24 Q. Where is that on the time line?
25 A. That is not on the time line.
765
1 Q. The commission of a federal felony is not significant
2 enough to be put on the time line, is that correct?
3 A. I think that it's a significant point, however, I think
4 more significant are the murders, and they are on --
5 Q. The murders that you have in a little red circle, about
6 the size of a red circle that says, Mark attempted suicide and
7 goes to church, those are the events that you think are more
8 significant?
9 A. The size of the circles have nothing to do with the
10 significance.
11 Q. Now, you had plenty -- this life line is three rows long
12 and you had plenty of opportunity to put, Mark is in the seventh
13 grade at Randall Junior High School and circle it in green, but
14 you don't have enough room to put in the fact that he sawed off
15 the barrel of a shotgun and committed a federal felony, you
16 don't have enough room for that?
17 A. I thought that in the synopses, that that was
18 encompassed in the murders.
19 Q. You have an entry for 6-25-96 in which you indicate, the
20 defendant turns himself in to the FBI. Where is it on the time
21 line do you have an entry that he stole a license plate in
22 Knoxville, Tennessee?
23 A. This is not a detailed account of his life. His life
24 was detailed in the life history, and this is just a way of
25 helping and organizing information for the jury, for us, so that
766
1 we can have some kind of perspective on what was going on when.
2 Q. A detail such as, Mark is enrolled in Beverly Woods
3 Elementary, Sonia begins working at State Farm Insurance,
4 Charlotte are significant enough to put on this chart, but his
5 stealing a license plate is not significant enough to do that?
6 A. That was all part of the murder and suicide and turning
7 himself in to the FBI.
8 Q. Uh-huh. The same with scraping an inspection sticker
9 off of the car?
10 A. That's correct.
11 Q. No need to put that on the time line?
12 A. It all happened in the same event.
13 Q. Driving a stolen car from Charlotte to Roanoke to
14 Knoxville, Tennessee to Charlotte again, committing the federal
15 felony of interstate transportation of stolen property, that's
16 not significant enough to put on the time line?
17 A. That is on the time line under the Donald Allen and
18 Robin Williams.
19 Q. Show me where that is.
20 A. It is encompassed in the same event is what I'm saying.
21 Q. And it includes future events after Robin is killed and
22 he drives to Tennessee and he drives back, that's all
23 encompassed in that?
24 A. In my opinion.
25 Q. Where is it on the time line that the defendant called
767
1 his cousin Shondra Nero from Tennessee and was told that the FBI
2 was at his mother's house, where is that?
3 A. It is not on there.
4 Q. Where is it that he hid the car behind the shopping
5 center, having driven back to Charlotte with stolen license
6 plates and scraped off the inspection sticker, not on there?
7 A. No.
8 Q. How about dumping critical evidence in the dumpster,
9 including the shotgun and other evidence, is that on the time
10 line?
11 A. I did not diagram the events of the murder and directly
12 before and directly afterwards. I did indicate the loss of
13 these two lives on this life line.
14 Q. In that one circle on this three-row life line?
15 A. Right.
16 MR. CONRAD: That's all I have, Your Honor.
17 THE COURT: Redirect?
18 REDIRECT EXAMINATION
19 BY MR. WILLIAMS:
20 Q. Just one question, Ms. Maxwell, just to sum this up.
21 Your purpose in preparing this life line for lawyers and the
22 experts and this jury was simply, or was it, to illustrate the
23 life of Mark Barnette and was not prepared for the purpose of
24 putting every single item of his life in that one document, was
25 it?
768
1 A. I could not do that.
2 Q. You had those itemized events in your life history which
3 was written, is that correct?
4 A. That's correct, it was 32 pages.
5 MR. WILLIAMS: No further questions.
6 MR. CONRAD: Just one, Your Honor.
7 RECROSS-EXAMINATION
8 BY MR. CONRAD:
9 Q. Your purpose of doing this was to present the picture of
10 the defendant's life that you wanted the jury to see and the
11 defense attorneys to see, correct?
12 A. I illustrated it to the best of my ability.
13 MR. CONRAD: That's all I have.
14 MR. WILLIAMS: No further questions.
15 THE COURT: Thank you, ma'am. Is your next witness long
16 or short?
17 MR. WILLIAMS: The next witness is a little lengthy, and
18 going to be our last live witness.
19 THE COURT: In that case, we will go ahead and take the
20 morning recess a little early because we don't want to get right
21 in the middle of the next witness. Do not discuss the case
22 among yourselves.
23 Now, one thing I forgot to ask you again this morning,
24 have any of you seen -- you can step down, Ms. Maxwell.
25 THE WITNESS: Okay.
769
1 THE COURT: Have any of you seen, heard or read anything
2 overnight or talked to anybody about this case overnight in any
3 way.
4 (Jurors shake heads.)
5 THE COURT: I take it you have not. Thank you so much.
6 Do not discuss the case among yourselves while you are out,
7 please.
8 (The jury left the courtroom.)
9 MR. WILLIAMS: May I move this, Your Honor?
10 THE COURT: Yes, sir. Recess until 10:40.
11 (Brief recess.)
12 THE COURT: Did somebody want to talk about something?
13 MR. CONRAD: Your Honor, may I be heard on a couple of
14 matters before the next witness takes the stand?
15 THE COURT: Yes, sir.
16 MR. CONRAD: The first matter I would like to be heard
17 on is I think the Court is about ready to hear expert testimony,
18 and we intend to present expert testimony as well. And I should
19 have done this yesterday and I omitted to do it, but I would ask
20 the Court the give an instruction to the jury with respect to
21 expert testimony. You have done that before in the guilt phase
22 of a trial, and I filed a -- I just now have filed a request to
23 instruct the jury as to what an expert -- what weight the jury
24 may give to expert testimony. It's exactly the same instruction
25 you gave during the guilt phase of the trial, and I would ask
770
1 the Court to assist the jury by giving that instruction.
2 THE COURT: All right, let me see what you've got here.
3 MR. WILLIAMS: Well, we would object, Your Honor, simply
4 as to the instruction being given at this time. Certainly at
5 the appropriate time during jury instructions, that would be
6 appropriate, but to do it now, it would emphasize this
7 particular witness. It would put an emphasis on this particular
8 witness, and I think it would be inappropriate. It was not done
9 on other witnesses, and I just ask that you give that
10 instruction at the end of the case.
11 THE COURT: Well, let me see what it says. Is it the
12 usual routine instruction?
13 MR. CONRAD: Yes, sir. It's the instruction you gave
14 during the guilt phase of the trial.
15 THE COURT: Who is this witness?
16 MR. WILLIAMS: It's Dr. Mark Cunningham, Your Honor.
17 MR. CONRAD: And it's not directed at him, Your Honor.
18 I should have asked you to do it yesterday when the other two
19 experts testified and I just forgot about it. Dr. Cunningham is
20 going to testify and we're going to have an expert testifying in
21 rebuttal, and I think it would help the jury to be reminded of
22 the purpose of expert testimony in this case.
23 THE COURT: Why is it necessary, Mr. Conrad? I mean,
24 I'm going to give the same thing, they've heard it before. I
25 just don't see why it's necessary.
771
1 MR. CONRAD: I think they were instructed in the guilt
2 phase, but they haven't been instructed on that point in the --
3 THE COURT: Well, I will give them an instruction at the
4 end of the case, but I really don't think it's necessary to do
5 that now. I don't know why the defendant is objecting, I don't
6 see what difference it makes, but, I mean --
7 MR. WILLIAMS: Well, I think it just -- I would rather,
8 Your Honor, do it at the appropriate time.
9 THE COURT: All right, sir, I will sustain the
10 objection.
11 MR. CONRAD: Your Honor, I have a second motion in
12 limine concerning the testimony of Dr. Cunningham if I could be
13 heard on that.
14 THE COURT: All right, sir, let me see what this is.
15 MR. CONRAD: Your Honor, I have reviewed a transcript of
16 Mr. Cunningham's testimony in the case United States v. Hardy,
17 et al., 94381, Eastern District of Louisiana, April 30th, 1996.
18 In that case, and I have got a transcript attached to the back
19 of my motion, at the bottom of the transcript page, the
20 defendant, this expert witness testified, clearly he is
21 personally responsible, he will spend the rest of his life in
22 federal prison, that is a just sentence. Your Honor, this
23 witness has no business testifying to such a conclusion.
24 THE COURT: Is he in the courtroom, is he here?
25 AGENT MODZELEWSKI: Yes, sir, I think.
772
1 THE COURT: Dr. Cunningham, you do not give that
2 statement, do you understand that?
3 UNIDENTIFIED SPEAKER: Yes, sir.
4 MR. CONRAD: Thank you, Your Honor.
5 THE COURT: The statement was, clearly he is personally
6 responsible, he will spend the rest of his life in federal
7 prison, this is a just sentence. That's not for you to decide
8 and not for me decide, do you understand that?
9 UNIDENTIFIED SPEAKER: Yes, sir.
10 THE COURT: All right, thank you.
11 MR. CONRAD: Thank you, Your Honor. The second part of
12 that motion deals with what I anticipate this witness to testify
13 to. I've reviewed prior transcripts, and he spends a great deal
14 of time talking about a high security prison facility in
15 Colorado Springs, near Colorado Springs, Colorado called ADX.
16 In the course of that testimony, he shows a number of
17 photographs of a prison cell at this facility, and the
18 photographs are of such things as anchored toilets and other
19 security measures at that institution.
20 This witness is not a Bureau of Prisons official, has
21 never worked within a penal institution, does not have firsthand
22 knowledge of classification or designation procedures, and that
23 type of testimony does not fall within the purview of a forensic
24 psychologist. And Your Honor, the point of my motion is unless
25 the defendants can show that, in fact, this defendant would be
773
1 sentenced and sent to the prison facility in Colorado Springs,
2 Colorado, then that testimony confuses the jury, it misleads
3 them, and that confusion and misleading outweighs any probative
4 force of the testimony.
5 I would ask the Court to prohibit this defendant from
6 talking about the ADX facility at all unless the defense can
7 show that this defendant is going to be sent there, and I don't
8 believe they can show that.
9 THE COURT: All right, sir.
10 MR. WILLIAMS: If Your Honor please, I have for Your
11 Honor a book which is marked Defendant's Exhibit 59 which shows
12 the illustrations that are going to be used by Dr. Cunningham in
13 his presentation to the jury. I have already provided those and
14 additional overheads to the government.
15 The reference the government makes is part of
16 Dr. Cunningham's presentation as an expert in risk assessment
17 where he's testified on six or seven, at least six or seven
18 occasions in Federal Court qualifying as an expert in forensic
19 psychology in the evaluation of risk assessment. And in that
20 presentation, there are references with regard to the
21 available -- the availability of different types of maximum
22 security in the federal prison system, and it's clearly relevant
23 to the issue of future dangerousness that the government has
24 alleged in its notice alleging that this man, our client, will
25 be a future danger and the only position and situation that
774
1 could be created for him where he is sentenced to life, that
2 would be in federal prison. In other words, the jury has a
3 right to know that in federal prison, if he were given a
4 sentence of life without the possibility of release, that there
5 are different types of custodial and security type prisons
6 anywhere from a U.S. minimum security prison to an ADX Florence
7 control unit maximum security units, one of which is the
8 administrative maximum in Florence, Colorado which he -- which
9 is in this book. I will be glad to tender it to the Court so
10 you can look at this overhead.
11 THE COURT: That's all right, I've got it.
12 MR. LAUGHRUN: And would testify that he has been in
13 that prison. I believe he's been in that particular prison.
14 UNIDENTIFIED SPEAKER: Yes, I have.
15 MR. WILLIAMS: That he has viewed these particular
16 cells, he has viewed this particular prison and has firsthand
17 knowledge of what the security measures are in that particular
18 maximum security prison. It's an offering of, ladies and
19 gentlemen of the jury, here is an inmate that's going into the
20 prison system that has within the federal prison system
21 available different types of security, and this is one of the
22 maximum types of security that would be available to him.
23 Now, or available, that's up to the federal prison
24 system, but I think the jury clearly has the right to know what
25 they can expect, what is there in the federal prison system when
775
1 the government has alleged and has the burden to prove beyond a
2 reasonable doubt that he is going to be a danger in the future
3 in the prison system of the federal system, and I think that's
4 clearly relevant, particularly since he has firsthand knowledge
5 of it.
6 MR. CONRAD: Judge, he has knowledge of that prison
7 facility, he does not have knowledge of the classification and
8 designation procedures. In order for that testimony to be
9 relevant at all, they have to show that this defendant would be
10 sent to that prison facility. Without being able to show that,
11 the information is prejudicial, it's confusing and it's
12 misleading, and they shouldn't be entitled go into it.
13 MR. WILLIAMS: You see, the problem, Your Honor, is that
14 the government doesn't want this jury to know, I respectfully
15 argue, that there are maximum security units within the federal
16 prison system. If the Federal Bureau of Prisons decides that
17 this man is a maximum risk, is something in the system available
18 for a security measure to protect society and to protect others
19 and put him in that position. Now, that's something that this
20 jury ought to have the available information to make a decision
21 on life or death in this particular case. Otherwise, the
22 government is attempting to hide from them these available
23 maximum security measures.
24 THE COURT: I disagree with you. I think that the --
25 MR. LAUGHRUN: May I add something briefly?
776
1 THE COURT: Yes, sir.
2 MR. LAUGHRUN: There is also a perception by the public
3 of federal prisons that they are just like Seymore Johnson,
4 they're just like Maxwell Air Force Base, that they go down and
5 they play tennis, you know, that they sit out in the sun, go
6 boating. That's the perception some people have of federal
7 facilities. Now, if this defendant is sentenced to life, three
8 life terms plus 400 years, he is not going to a club fed, he is
9 going to go to a level one or an administrative unit. That's a
10 fact of life. And sure, it's up to BOP to designate him, and
11 the government is free to cross-examine Dr. Cunningham about
12 that. Sure, the designation is up to BOP. We have a right to
13 present that, that he is not going to a club fed down in
14 Montgomery, Alabama or Seymore Johnson Air Force Base or
15 whatever.
16 MR. CONRAD: Judge, my point is they could have brought
17 that kind of witness, they could have brought a Bureau of Prison
18 official here to talk to the jury. They couldn't be able to
19 bring a forensic psychologist from Abilene, Texas to talk about
20 it just because he went and --
21 THE COURT: Well, even if you brought a Bureau of Prison
22 official, he couldn't say where this man is going to be
23 imprisoned and it's really irrelevant. The jury will be
24 instructed that the defendant will be sentenced to life, if he
25 is sentenced to life, that he will never be released, and that's
777
1 the only thing they need to know. We are not going to get into
2 the different prisons, so I'll sustain -- I mean, I'll grant the
3 motion in limine. It's prejudicial, unnecessary, irrelevant,
4 and I'm just not going to instruct them on that or let him
5 testify as to that.
6 MR. WILLIAMS: May I have a moment, Your Honor, to
7 adjust this exhibit in accordance with Your Honor's instruction?
8 THE COURT: Yes, sir.
9 MR. WILLIAMS: Your Honor, we will not ask
10 Dr. Cunningham about the administrative maximum prison unit in
11 Florence, Colorado or show any photographs of any cells. But
12 there is an overhead that deals with custody options dated June
13 1997, and we would ask that we be permitted, and I will be glad
14 to show Your Honor what it looks like if I may approach the
15 bench.
16 THE COURT: All right.
17 (Pause.)
18 THE COURT: Okay, custody options, minimum security,
19 what do you want me to do?
20 MR. WILLIAMS: We just want to be able to tell them what
21 the possible different, with regard to risk assessment, the
22 different types of security prisons that are available, not
23 saying which one he is going to go to.
24 MR. CONRAD: Your Honor, my objection to that is this
25 guy is a forensic psychologist who has no specialty in that area
778
1 whatsoever. The defense could have subpoenaed any Bureau of
2 Prison official to come in here and talk about those kind of
3 custody options.
4 MR. WILLIAMS: Judge, in his expert area of risk
5 assessment, he's written a paper on this. It's been reviewed by
6 his peers. He is extremely well regarded in his profession in
7 the area of risk assessment. Part of his expertise in risk
8 assessment involves assessing the risk, and one way to assess
9 the risk, let this jury know what is going to be going on in the
10 real word with this man when he goes in the prison system, is to
11 tell the jury what is available. We are just not saying where
12 he is going to go, but saying, this is what is available in the
13 Federal Bureau of Prisons. Dr. Cunningham is well aware through
14 his expertise about those options. It's part of his study. I
15 mean, he has reviewed literature after literature after
16 literature. He has reviewed study after study after study on
17 risk assessment. This is all part of his expertise, Your Honor,
18 it's part of the risk assessment.
19 MR. CONRAD: Judge, as a forensic psychologist, he can
20 talk about whether this particular defendant, based upon what
21 he's studied and what research he's looked at, whether he is a
22 future danger, but he has no expertise in the Bureau of Prisons
23 classification procedures, designation procedures, and he
24 shouldn't be allowed to extrapolate from his testimony about the
25 future dangerousness of this defendant to the classification
779
1 procedures and the custody options in the Bureau of Prisons.
2 MR. WILLIAMS: He is not stating his opinion, Your
3 Honor, he is stating a fact. This is fact. These are what the
4 Federal Bureau of Prisons has available for people who go into
5 the system. It's not an opinion.
6 MR. CONRAD: He is not qualified to do that.
7 MR. WILLIAMS: Why is he not qualified as part of his
8 risk assessment expertise to tell them what is, in fact, true
9 based on his own personal knowledge and expertise?
10 MR. CONRAD: Mr. Williams and I could --
11 THE COURT: Wait a minute, are you through?
12 MR. WILLIAMS: I mean, that's -- to simply have an
13 expert come in here and be able to talk about risk assessment
14 and then be shut off and not be able to tell the jury and hide
15 from the jury, well, now I'm telling you about risk assessment,
16 I'm an expert in it, but I don't want to tell you what is
17 available there, we don't want to talk about that. They need to
18 know that, they have a right to know. That's part of the
19 sentencing decision and part of the knowledge that they have to
20 know. Why? Because the government has alleged he is a future
21 danger. We have a right to present evidence, if Your Honor
22 please, to rebut that through an expert who has personal
23 knowledge of those facts.
24 MR. CONRAD: He is not an expert. I mean, Mr. Williams
25 and I could read research and read a book on Bureau of Prisons
780
1 and find out what the custody options are, doesn't make us an
2 expert. He is a forensic psychologist.
3 MR. WILLIAMS: Doesn't need to be an expert.
4 MR. CONRAD: Well --
5 MR. WILLIAMS: To state a fact.
6 MR. CONRAD: He has to be an expert to read the
7 literature and testify to that hearsay. He has to be an expert
8 to do that.
9 MR. WILLIAMS: Your Honor --
10 MR. CONRAD: Mr. Williams and --
11 THE COURT: Wait just a minute.
12 MR. WILLIAMS: I'm sorry, I apologize.
13 MR. CONRAD: As a lawyer, I could read a book on Bureau
14 of Prisons, but I could not get up there on the stand and say,
15 as a result of my reading this book, here are the options. I'm
16 not qualified to do it and neither is this forensic
17 psychologist.
18 MR. WILLIAMS: Your Honor, one last thing, Rule 702 or
19 703 I believe it is of the Federal Rules of Evidence provide
20 clearly that an expert can base part of his opinion, his opinion
21 is going to be in risk assessment, says that the facts or data
22 in the particular case upon which an expert bases an opinion or
23 inference may be those perceived by or made known to the expert
24 at or before the hearing. And if it's something that he's read
25 and had knowledge of, it comes in under 703. 703 also says if a
781
1 type reasonably relied upon by experts in the particular field
2 in forming opinions, which would be on risk assessment, or
3 inferences upon the subject, the facts or data need not be
4 admissible in evidence. So that's something that he is relying
5 on as an expert. Clearly it should come in under 703.
6 THE COURT: Mr. Conrad, I think you could stipulate
7 these are available, couldn't you?
8 MR. CONRAD: I could, I just don't want this man
9 pretending to be an expert on that in front of the jury.
10 MR. WILLIAMS: He is not pretending, Your Honor, he is
11 an expert.
12 MR. CONRAD: I will stipulate that these options are
13 available, I have no problem with that. I don't want a witness
14 who is not qualified to render an opinion to say that. If you
15 will instruct the jury that these options are available, I have
16 no problem with that.
17 THE COURT: Well, he is not going to express an opinion
18 on this, is he, Mr. Williams?
19 MR. WILLIAMS: It's a fact, he is not expressing any
20 opinion. I mean, he is going to be qualified, I think very
21 clearly, as an expert in forensic psychology in the area of risk
22 assessment with regard to, I have the exact language here, and
23 part of that is going to be stating facts as a basis for his
24 opinion. He is net going to give any opinion about the place.
25 We have already been prevented from showing them pictures of
782
1 this facility or any facility. We are just stating, look,
2 ladies and gentlemen of the jury, this is what is available.
3 Now, he is an expert in risk assessment. I just
4 respectfully say to Your Honor, clearly he ought to be able to
5 say that. I mean, there is nothing magic about that.
6 MR. CONRAD: If Your Honor would consider limiting his
7 testimony solely to these options without any further opinion or
8 elaboration, I would withdraw my objection to that.
9 MR. WILLIAMS: Well, I think that's what I understood
10 the Court was instructing us.
11 THE COURT: All right, do that then and we'll go with
12 that, no opinions, just state what is available.
13 MR. WILLIAMS: Yes, sir.
14 THE COURT: All right, ready to go?
15 MR. LAUGHRUN: Judge, can we offer for the record the
16 Defendant's Exhibit I've marked as 59A, the ADX --
17 THE COURT: Oh, yeah, sure.
18 MR. LAUGHRUN: -- information and photographs photograph
19 that Your Honor sustained an objection to?
20 THE COURT: Yes, sir, that's fine.
21 MR. LAUGHRUN: If I could approach the Clerk with that.
22 THE COURT: Are we ready for the jury?
23 MR. WILLIAMS: As I understand, I want to make sure I
24 understand and my expert understands what you are saying, Your
25 Honor, are you -- what he is -- what we are requesting is that
783
1 the jury be allowed to not only list what is available, but to
2 tell the jury in a Super Max situation what it's like. In other
3 words, it involves a single cell bar door and steel door, window
4 faces the inner recreation yard, 23 hour a day lockdown, meals
5 in the cell, double escort, shackled behind the back, one to two
6 15-minute phone calls monthly monitored, no contact visits,
7 glass has one-hour hammer rating monitored, mail is x-rayed,
8 opened and read. He knows that of his own personal knowledge as
9 part of his expertise in risk assessment.
10 I think the jury has a right to know that this isn't a
11 country club, this is what is what we are talking about here and
12 they are having to decide what the sentence is. So I think they
13 have a clear right to know, what are we taking about, are we
14 talking about a prison in the federal system where he is going
15 to go play tennis and go out on passes and he's going to have a
16 nice time, or are we talking about the realities of life as an
17 available possibility in the system.
18 MR. CONRAD: Judge, they want a concession out of the
19 government, they obtained that concession, now they're going
20 back in the back door to talk about this facility that they have
21 no qualifications to talk about. They can't talk about a
22 facility unless they can show that this man is going to be sent
23 to that facility, and that's not through this witness. They
24 could have --
25 THE COURT: Well, we are not talking about any one
784
1 facility.
2 MR. CONRAD: Yes, they are, they're talking --
3 everything Mr. Williams just told you comes from this ADX
4 Florence facility in Colorado Springs, Colorado, and they
5 haven't established that this man is going to be sent there.
6 MR. WILLIAMS: The concern I have, Your Honor, is this:
7 Let's say the jury is back there deliberating on this moral
8 judgment as to what to do in sentencing this man. They go back
9 there and start talking about, well, if we sentence him to life
10 without the possibility of release, what kind of prison is he
11 going to be sent to, what is there available there? And I think
12 that's part of their decision making right to know, and in that
13 process it ought to be told. They ought to have that
14 information available that, you know, if they go back and one
15 juror says, well, gosh what if he gets in the prison system and
16 becomes violent and they've got to find a particular place for
17 this man in the Federal Bureau system, does that place exist?
18 We are simply saying to the jury that kind of place exists if
19 that happens, and I think they have a right to know that in
20 order to make an intelligent decision on a severe, severe moral
21 judgment as this.
22 THE COURT: Well, I think you can say that's what is
23 available in the prisons, but -- and Mr. Conrad, of course, can
24 cross-examine him as to facts that he doesn't know where he is
25 going to be sent.
785
1 MR. WILLIAMS: He can do that, sure.
2 THE COURT: In fact, I could always tell them that
3 myself, because I never have been able to direct anybody
4 anywhere.
5 MR. WILLIAMS: All right, sir.
6 THE COURT: All right, ready to go. Call the jury.
7 (The jury returned to the courtroom.)
8 THE COURT: Members of the jury, the heat is supposed to
9 be on, so hopefully you can take off your coats sometime during
10 this session, but don't plan on it until you get the heat.
11 All right, call your next witness.
12 MR. WILLIAMS: Thank you, Judge Potter, the defense
13 calls Dr. Mark Cunningham.
14 MARK DOUGLAS CUNNINGHAM,
15 being first duly sworn, was examined and testified as follows:
16 DIRECT EXAMINATION
17 BY MR. WILLIAMS:
18 Q. Will you please tell the ladies and gentlemen of the
19 jury your name?
20 A. Mark Douglas Cunningham.
21 Q. Please try and remember that if you get too close to
22 that microphone, you get a kickback.
23 A. Yes, sir.
24 Q. Where do you live?
25 A. I live in Abilene, Texas.
786
1 Q. And how long have you lived in Abilene, Texas?
2 A. Since 1981.
3 Q. And what is your current status?
4 A. I'm a clinical and forensic psychologist in private
5 practice.
6 Q. And what is a clinical psychologist?
7 A. A clinical psychologist is a psychologist who evaluates
8 and treats emotional disorders through testing and
9 psychotherapy, counseling, couples therapy. A forensic
10 psychologist is a psychologist who applies psychological
11 research and techniques to legal issues, things like child
12 custody determinations in a family law arena, or in a civil
13 case, evaluating psychological injuries that someone might have
14 sustained, in a criminal arena, evaluating questions of
15 competency to stand trial or mental state at time of offense, or
16 competency to weigh various rights or sentencing determination
17 issues such as we are talking about today.
18 Q. Would you tell the ladies and gentlemen of the jury what
19 your education is, please, sir?
20 A. Sure. I got my undergraduate degree, my Bachelor's
21 Degree from Abilene Christian College, it's now Abilene
22 Christian University, and that was in 1973. My majors were in
23 mass communication and also in psychology, and I graduated with
24 high honors there. I then attended a doctoral program in
25 clinical psychology at Oklahoma State University, and that
787
1 training was accredited by the American Psychological
2 Association as a doctorate training program in clinical
3 psychology, and received both my Master's and Ph.D. from
4 Oklahoma State in clinical psychology.
5 I then did a one-year clinical psychology internship at
6 the National Naval Medical Center in Bethesda, Maryland while I
7 was also an active duty naval officer, and then served as a
8 staff psychologist at the Naval Submarine Medical Center in
9 Groton, Connecticut and while there did a couple of years of
10 postdoctoral study at Yale, and have participated very actively
11 in continuing education since that time as well.
12 Q. Are you board certified?
13 A. Yes, I am.
14 Q. Would you tell the ladies and gentlemen of the jury what
15 it means to be board certified?
16 A. Well, I am a diplomate of the American Board of Forensic
17 Psychology, which is a subspecialty board of the American Board
18 of Professional Psychology. The steps that are involved in
19 becoming board certified in forensic psychology within this
20 organization require you to have at least five years of
21 experience after your Ph.D. You have to have a significant
22 number of hours in specific forensic practice. You make
23 application and they do a licensing and ethics check and that
24 sort of thing, and then if you are allowed to submit an
25 application, you submit a work sample which is a scholarly work
788
1 product.
2 You send a couple of examples of your work along with
3 relevant research and case law to demonstrate your familiarity
4 with these forensic issues and research that might be associated
5 with them, and that work product is critically evaluated by
6 other board certified forensic psychologists. And if that's
7 deemed acceptable, you are allowed to sit for an oral exam that
8 is about a three-hour exam. It's administered by three people,
9 three board certified psychologists in this forensic area who
10 examine you about both the areas that you focus on in a more
11 specialized way as well as the whole breadth of the field of
12 forensic psychology.
13 Q. What is the failure rate of that oral examination?
14 A. Historically the failure rate of the oral exam has been
15 about 40 percent.
16 Q. Is that throughout the United States?
17 A. That's correct.
18 Q. How many board certified forensic psychologists are
19 there in the United States?
20 A. Less than 200.
21 Q. Are you one of them?
22 A. Yes, I am.
23 Q. Will you tell the jury about your past experience
24 professionally, that is, with regard to academic appointments
25 and clinical experience?
789
1 A. Yes, I will. I was teaching assistant during my
2 graduate training at Oklahoma State and instructed classes in
3 introductory psychology, and was also a teaching assistant and
4 coordinated the lab of an individual intelligence testing class
5 that was taught at the graduate level. There was a professor
6 who taught the class. I handled the lab part of that under his
7 direction.
8 My first professional appointment was as a staff
9 clinical psychologist at the Naval Submarine Medical Center
10 where I was stationed for about three and a half years in
11 Groton, New London, Connecticut. I left the Navy in 1981 and
12 returned to Abilene and for a couple of years was a full-time
13 assistant professor of psychology at Hardin Simmons University
14 and started a part-time practice during those same years. In
15 1983, I resigned that academic position and was just in
16 full-time private practice and have been in full-time practice
17 since 1983.
18 Q. Now, what professional publications do you have,
19 Dr. Cunningham?
20 A. I have three publications that have been accepted or
21 have been published and peer reviewed.
22 Q. What does peer reviewed mean?
23 A. Well, peer reviewed means that -- it's a scientific
24 journal, and when you send a research study or a paper into it,
25 then they send that paper out to review with people who are
790
1 experts in that area. And they evaluate whether or not your
2 methodology is sound and whether this is deemed of sufficient
3 scholarly significance and has been appropriately done to be, in
4 fact, published as a paper in a scientific journal.
5 The first paper that I had published in that way was my
6 dissertation that had to do with the area of learning
7 disabilities. More recently, I have two papers that are in
8 press with the Journal of Behavioral Science and the Law, which
9 is one of the primary forensic psychology journals.
10 Q. Have any of those publications dealt with violence risk
11 assessments at capital sentencing?
12 A. Yes, they have. The title of one of these papers that's
13 currently in press, in press means it's been accepted and
14 approved and it is in line for one of the publications that are
15 coming up across the coming months, the paper that deals most
16 specifically with risk assessments is entitled, Integrating Base
17 Rate Data in Risk Assessments at Capital Sentencing, in other
18 words, applying actuarial, statistical techniques to evaluations
19 of violence risk or future dangerousness in capital sentencing
20 proceedings. And as I said, that paper is currently in press.
21 Q. All right.
22 A. There is a second paper that involves antisocial
23 personality disorder and psychopathy and the diagnostic dilemma
24 that can be present in a sentencing determination of trying to
25 categorize patterns of antisocial behavior. And so that's a
791
1 second paper that's also in press with Behavioral Sciences and
2 the Law.
3 Q. Does that second paper, does that deal with forensic
4 psychology?
5 A. Yes, it does, in a sentencing determination issue. I
6 would also add that both of these papers are co-authored with a
7 colleague of mine, Dr. Thomas J. Reedy, who is the second author
8 of each of those papers.
9 Q. And what professional affiliations do you have?
10 A. I am a member of the American Psychological Association,
11 I am a fellow of the American Academy of Forensic Psychology
12 which is the scholarly organization of the diplomates in
13 forensic psychology with the American Board of Professional
14 Psychology. I'm a member of the Texas Psychological
15 Association, Abilene Psychological Association.
16 Q. Does the State of Texas require continuing education
17 courses in your area of expertise?
18 A. It requires continuing education as a psychologist to
19 renew your license each year.
20 Q. And how much is required?
21 A. As I recall, 12 hours a year of continuing education are
22 required.
23 Q. How much have you had in the last two years?
24 A. About 190 hours.
25 Q. What is your forensic experience?
792
1 A. I began -- my initial exposure to forensic psychology
2 was in discussions during my graduate training, but I didn't
3 actually do any work at that time. There were additional
4 lectures and discussions about this across my internship with
5 the Navy. My initial direct exposure was as a psychologist with
6 the Navy. As I would evaluate individuals who were pending
7 captain's mast, which is judicial proceedings, or nonjudicial
8 proceedings, just below a court-martial, as well as evaluating
9 individuals who were facing court-martial. That was a small
10 part of the work that I did at that time, but that was with some
11 regularity.
12 In my practice, in my private practice in Abilene,
13 across the 1980's I gradually did more and more forensic work,
14 initially primarily in the family law area in evaluations of
15 child custody, but increasingly involving criminal cases. And
16 at this point, have a general practice in forensic psychology
17 with a good portion of that still involving family law, but a
18 very large portion of it involving criminal related
19 evaluations. Most often, appointments by the Court to evaluate
20 competency to stand trial or mental state at time of offense as
21 a neutral examiner on behalf of the Court.
22 Q. Have you ever done an evaluation that you have been
23 asked to do and not testified after you have done the
24 evaluation?
25 A. Yes, I have. That's happened number of times.
793
1 Q. Why is that?
2 A. Well, in some cases, I may do an evaluation and the case
3 ends up settling in some fashion before there is ever a hearing
4 where I might be called to testify. In other cases, the
5 evaluation that I have done is not helpful to the position of
6 the attorney who has asked me to do the evaluation, and so he
7 doesn't then call me to testify.
8 Q. Have you ever testified in capital cases?
9 A. Yes, I have.
10 Q. Have you always testified for the defense in a capital
11 case?
12 A. Yes.
13 Q. If the state had -- has the state ever asked you to
14 testify?
15 A. No, not in a capital case. I have testified at the
16 request of the state in other criminal matters but not in a
17 capital case.
18 Q. Have you ever been asked to provide training in capital
19 sentencing evaluations to other psychologists, forensic
20 psychologists?
21 A. Yes, I have.
22 Q. And who has asked you to do that?
23 A. The American Academy of Forensic Psychology, which is
24 again the scholarly organization of board certified forensic
25 psychologists within the American Board of Professional
794
1 Psychology, has asked me to do that. I have been invited to
2 present a day-long workshop in Milwaukee this March under the
3 auspices of the American Academy of Forensic Psychology on
4 capital sentencing determination issues.
5 Q. Have you provided expert testimony regarding violence
6 risk assessments in other federal capital cases?
7 A. Yes, I have.
8 Q. How many?
9 A. I have testified by my recollection in six cases that
10 were actively at trial regarding risk assessment and I believe
11 in one federal habeas case that involved issues of risk
12 assessment.
13 Q. Have you additionally testified as an expert involving
14 violence risk assessments in State Court?
15 A. Yes, I have.
16 Q. How many times have you done that?
17 A. By my recollection, there have been four state cases at
18 active trial that I have testified in regarding risk assessment
19 and one or two habeas cases in addition to that, I believe, at
20 the state level.
21 Q. Please tell the ladies and gentlemen of the jury,
22 Dr. Cunningham, what is violence risk assessment?
23 A. Violence risk assessment is -- is estimating the
24 likelihood that someone will behave in a serious violent
25 fashion, in this case, estimating the likelihood that a
795
1 particular individual, a defendant, or Mark Barnette, will
2 behave in a serious violent fashion, in this instance, in
3 federal prison, and applying both conceptual approaches --
4 applying both the theory of the research as well as specific
5 data, specific statistical data to try to arrive at as accurate
6 an estimate as possible.
7 Q. Is that process a science?
8 A. Yes, it is.
9 Q. And what makes it a science?
10 A. It's a science in that risk assessment has a conceptual
11 and research literature. In other words, in the field of risk
12 assessment, there are scholarly articles that are written about
13 how this needs to be approached, that's the conceptual part of
14 it, and then there is also research data that looks at, what's
15 the outcome, what's the degree of violence that is in various
16 populations and what factors seem to be associated with that.
17 And so there is scholarly scientific research data that is
18 associated with the subject, and that's a part of what makes it
19 a science.
20 Q. Are you familiar with that literature, Dr. Cunningham?
21 A. Yes, I am, I study it intensively.
22 Q. And what is the relation of your own publication to this
23 literature?
24 A. The paper that I mentioned regarding the integrating
25 base rate data in risk assessments at capital sentencing is
796
1 specifically oriented to that question, and the paper summarizes
2 the different conceptual approaches that have been taken to risk
3 assessment, looks at various statistical studies that can be
4 supplied to this question at capital sentencing, and is
5 essentially a literature review and a synthesis of these studies
6 and this research into a single paper.
7 Q. What else makes this a science, if anything?
8 A. There is a publish methodology. In other words, the
9 scholarly literature, the publications talk about how you need
10 to go about doing this and what factors you need to pay
11 attention to, what steps are involved in it.
12 Q. What else is considered in showing that this is a
13 science?
14 A. When we talk about risk assessment, we are not just
15 talking about making estimates or evaluations of violence risk
16 potential. The area of risk assessment has a long established
17 history. That's what the insurance industry is, they are in the
18 business of risk assessment, of trying to identify what's the
19 likelihood that someone will have an automobile accident, or
20 what their mortality is, by any number of things that as they
21 try to evaluate how do you go about identifying the likelihood
22 of negative outcomes. And so that part of risk assessment has
23 an established tradition in other industries.
24 Q. Is there anything else that makes it a science?
25 A. The methods of risk assessment can lend themselves to
797
1 being objective, that means that whoever looks at it comes up
2 with a similar kind of approach, as well as reliable, in other
3 words, that you would come up with similar answers each time you
4 evaluate it. That objectivity and reliability, I think, though,
5 depends on how close you stay to the statistics. The closer you
6 stay to the statistics of it, the more likely it is to be
7 objective and reliable. The more it becomes intuitive or even
8 clinical, if you will, the greater likelihood there is that you
9 begin to stray and are less accurate and less reliable.
10 Q. Is there anything else that makes it a science?
11 A. There is progressive accuracy with additional research.
12 In other words, as more studies are done, as more populations
13 are studied and in more detail and outcomes are measured, then
14 our data pool of statistics increases, then we know more, we
15 have better information over time. And so that progressive
16 increase in accuracy, I think, is also part of what makes it a
17 science.
18 Q. Dr. Cunningham, at the conclusion of a risk assessment,
19 are you able to say whether a person is violent or going to be
20 violent or not?
21 A. No, that would be a prediction and prediction is not
22 science. Prediction is a -- that's crystal balls. I don't make
23 predictions, and predictions are not well regarded within the
24 risks assessment community. What I'm attempting to do is
25 evaluate the degree of risk, what is the probability that this
798
1 person will be violent. So it's not an either/or, but it is a
2 probability.
3 Q. So would it be fair to say that it's a probability
4 estimate?
5 A. That's correct.
6 Q. Is this based on research data?
7 A. Yes, it is. The probability estimate stems directly
8 from actuarial follow-up, from research data with individuals
9 who we identify as having various characteristics in common with
10 the person who we are evaluating here.
11 Q. And what sort of data is relied on in doing a risk
12 assessment?
13 A. The basic source of data are group statistics. In other
14 words, you measure the group as a whole. It's -- the analogy
15 that comes to mind is that as the automobile insurance company
16 evaluates the likelihood that my 16-year-old will be involved in
17 an accident. The way they evaluate that is they look at their
18 experience with thousands of 16-year-old's, and on the basis of
19 that, they can identify a statistical likelihood that this
20 16-year-old will have an accident. And so we are going to start
21 the same way. We're going to begin with group statistics that
22 look at large numbers of people, and the next step then is to
23 individualize that to a particular person, to look at what
24 factors there are about a specific individual that might cause
25 us to modify that group statistic a little bit. And I
799
1 emphasize "a little bit," because the farther that you go, the
2 farther you depart from that statistical estimate, the greater
3 the likelihood is that you are going to be inaccurate. But we
4 do try to individualize that risk estimate based on individual
5 characteristics.
6 Q. When you say individualize it, you mean individualize it
7 to a particular person?
8 A. That's right, to bring this down to Mark Barnette,
9 looking at Mark Barnette in relation to these group statistics,
10 where does he look like he is going to fall around that risk
11 level.
12 Q. Dr. Cunningham, have you studied this group statistical
13 data?
14 A. Yes, I have.
15 MR. WILLIAMS: Your Honor, at this time the defense
16 would tender Dr. Cunningham as an expert in the field of
17 forensic psychology involving violence risk assessment at
18 capital sentencing.
19 THE COURT: All right, the Court will so accept him.
20 BY MR. WILLIAMS:
21 Q. Dr. Cunningham, were you asked to evaluate Mark Barnette
22 for the purpose of violence risk assessment in this case?
23 A. Yes, I was.
24 Q. Tell the jury how you did that.
25 A. I began by reviewing extensive, and it's part of my
800
1 ongoing practice and habit of reviewing extensive statistical
2 studies and research data in this area of risk assessment and
3 looking at what data could be brought to bear on the question of
4 Mark Barnette's likelihood of serious violence in prison. I
5 reviewed extensive records in the case that I can detail.
6 Q. All right. And you have a list of those records that
7 you have reviewed?
8 A. Yes, I do.
9 Q. How many pages is the list you have?
10 A. Four pages single spaced, and in many instances there is
11 more than one document per line.
12 Q. And were those the records that were involved in the
13 charges that were brought and now the convictions of Mark
14 Barnette in the killings of Robin Williams and Donald Lee Allen?
15 A. That's correct.
16 Q. And without reading every single document, can you give
17 the jury an overview of the areas that you reviewed, the kinds
18 of documents that you reviewed?
19 A. Well, in addition to the offense reports in this case, I
20 reviewed the offense reports and statements associated with his
21 prior criminal arrest and convictions. I reviewed school
22 records, medical records, reports of past psychological
23 evaluations, reports of the evaluations that were done at FCI
24 Butner and the federal facility this fall, read the entire chart
25 from the federal facility that was made available to me.
801
1 Q. In addition to records, did you review any interviews?
2 A. Yes, there were many other records that I looked at,
3 including records of other experts, extensive interviews that
4 Cindy Maxwell had obtained with a large number of third parties,
5 family members, friends, employers, other individuals that she
6 had collected data from.
7 Q. Did you review all of the reports not only from Butner
8 but from Dr. Duncan, Dr. Grant?
9 A. Yes, I did.
10 Q. And any other medical reports?
11 A. Yes, I did.
12 Q. Did you directly evaluate Mark Barnette, the young man
13 seated next to me?
14 A. Yes, I did.
15 Q. How many hours did you spent in interviewing him?
16 A. I spent just over 11 hours interviewing him.
17 Q. Did you have any interviews of people directly?
18 A. Yes, I did.
19 Q. And what kind of people did you interview directly?
20 A. Directly, I interviewed Jessie Cooper, also Sonia
21 Barnette. Then I spoke to Sonia Barnette for an extended period
22 of time over the phone. Then I conducted telephone interviews
23 of Derrick Barnette, Mario Barnette, Sheila Cooper, Steve
24 Austin, Brian Ard, Shonda Nero, Captain Alan Cobb who I spoke to
25 briefly. He was checking the disciplinary status at the jail
802
1 and so his was more of just to let me know that there had been
2 no additional incidents or other incidents. I also interviewed
3 Tony Harrison, who is a Mecklenburg County jailer, police
4 officer Elizabeth A. Joye and Dr. Sally Johnson. All of those
5 individuals I had direct telephone interviews with, and then
6 there were other individuals who I attempted to contact but who
7 I could not reach.
8 Q. Did you review all of the jail records since Mark
9 Barnette's arrest?
10 A. Yes, I did.
11 Q. Did you go to the crime scene of the Donald Lee Allen
12 killing?
13 A. Yes, I did.
14 Q. Did you review photos and videos?
15 A. Yes, I did.
16 Q. Did you review the findings of Dr. Salton and
17 Dr. Halleck?
18 A. Yes, I did.
19 Q. Have you as part of your extensive review in this case,
20 Dr. Cunningham, prepared some demonstrative visual aids to
21 illustrate your testimony to this jury?
22 A. Yes, I have.
23 MR. WILLIAMS: If Your Honor please, may Dr. Cunningham
24 at this time come down to the overhead projector?
25 THE COURT: All right, sir.
803
1 MR. WILLIAMS: I have a -- I think I have tendered to
2 the Court an exhibit marked, whatever that exhibit number is,
3 Your Honor, I believe it's 58.
4 THE COURT: Well, let's see.
5 MR. WILLIAMS: It's a black book, Your Honor.
6 THE COURT: The one I have here?
7 MR. WILLIAMS: Yes, sir.
8 THE COURT: You have 59 on that one.
9 MR. WILLIAMS: Pardon me?
10 THE COURT: 59.
11 MR. WILLIAMS: All right, 59, Your Honor, and that is,
12 Your Honor, a copy of the various overheads that Dr. Cunningham
13 intends to use. We put them into one exhibit. We provided them
14 to the government.
15 BY MR. WILLIAMS:
16 Q. Before, Dr. Cunningham, you proceed, I wanted to ask you
17 one last question.
18 Before you -- before you attempted to interview Mark
19 Barnette in the case, were you aware of licensing procedures in
20 the State of North Carolina for an out-of-state psychologist?
21 A. I made myself aware of it.
22 Q. And how did you do that?
23 A. I telephoned the State Board of Psychologists here in
24 North Carolina to identify what their procedure was for
25 psychologists coming in from out of state to perform forensic