879
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 5th 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
880
1 APPEARANCES: (Continued)
PAUL J. WILLIAMS, Esq.
2 Suite 801
301 South McDowell Street
3 Charlotte, North Carolina 28204
4
5 ---
6 THE COURT: I believe we're here this morning on a
7 motion in limine filed by the defendants this morning to the
8 effect that the PCL-R test has not been sufficiently
9 standardized to the black population based on recognized
10 literature and has not been sufficient standardized on the
11 institution population or sufficiently standardized in the
12 population post middle age. All right, Mr. Laughrun or
13 Mr. Williams, you want to speak to that?
14 MR. WILLIAMS: Yes, Your Honor. I would like to present
15 on this motion brief testimony from Dr. Cunningham with regard
16 to that motion, will be very brief. I mean, I can argue it, but
17 I can tell you that if Dr. Cunningham were to testify --
18 THE COURT: Let's go ahead and argue it.
19 MR. WILLIAMS: He would testify that he has written two
20 articles that have both been peer reviewed by the professionals
21 in his group of professionals, the American Psychological
22 Association. Both of the articles refer to, one in particular
23 was written by Salekin, S-A-L-E-K-I-N, Rogers and Sewell,
24 S-E-W-E-L-L, of the University of North Texas. There was an
25 article written --
881
1 THE COURT: Well, just tell me what the articles say,
2 let's don't worry about when they were written. We have got a
3 short time, Mr. Williams, we have a short time. I don't have
4 juries come up here 50 or 60 miles and sit here and wait while
5 we argue.
6 MR. WILLIAMS: The article says, Your Honor, that it's
7 not been standardized, that the PCL-R test has not been
8 standardized for blacks, it has only been used with regard to
9 whites and generally in a white population. It has not been
10 standardized, substantially standardized for blacks or in a
11 prison population. And we argue, therefore, that it's an
12 improper test. You will note that none of the other experts
13 used it.
14 THE COURT: Is that all you have, what Dr. Cunningham
15 has written two articles on, is that what you have?
16 MR. WILLIAMS: Yes.
17 THE COURT: What does the government say about this?
18 MR. CONRAD: Your Honor, that's all proper stuff for
19 cross-examination as this is testing that's reasonably relied
20 upon in the field. Dr. Duncan relied upon it. He was able to
21 testify to it. It's relevant to the testimony they put on
22 yesterday that we have to rebut about future violence.
23 THE COURT: All right, motion is denied. Call the jury.
24 MR. LAUGHRUN: Judge, one other thing, too.
25 Dr. Cunningham is here. We may want to --
882
1 THE COURT: Well --
2 MR. LAUGHRUN: Judge, if you'll hear me a minute,
3 please, we are early. He may testify at surrebuttal. We want
4 to make sure --
5 THE COURT: You have already, I think -- I believe you
6 said you rested yesterday. Are you going to rest in front of
7 the jury this morning?
8 MR. LAUGHRUN: That's what I'm saying, Judge. We are
9 resting in front of the jury. Just hear me out if you would,
10 please. We were going to rest in front of the jury. We want to
11 make sure it's okay he stays in the courtroom in case we want to
12 offer surrebuttal to the government's rebuttal. We have a right
13 to offer surrebuttal.
14 MR. CONRAD: Stay in the courtroom?
15 MR. LAUGHRUN: That's why we bring it up now, Judge.
16 THE COURT: You wouldn't let their -- you didn't want
17 their experts to stay in the courtroom.
18 MR. LAUGHRUN: He has already testified.
19 THE COURT: He cannot stay in the courtroom.
20 MR. LAUGHRUN: That's fine, that's why we bring it up
21 now, Judge.
22 THE COURT: Call the jury.
23 (The jury returned to the courtroom.)
24 THE COURT: Good morning, ladies and gentlemen. I
25 believe at this time, the defendant is ready to rest, is that
883
1 right, Mr. Laughrun?
2 MR. LAUGHRUN: That's correct, Judge Potter, thank you.
3 THE COURT: Defendant rests, and you've already checked
4 all of your exhibits and are certain that they're in evidence.
5 MR. LAUGHRUN: Yes, sir.
6 THE COURT: All right.
7 MR. LAUGHRUN: Thank you, Your Honor.
8 THE COURT: Government call its first witness.
9 MR. WALKER: Thank you, Your Honor. The government
10 would call Brian Ard, if I may go back and retrieve him.
11 BRIAN ARD,
12 being first duly sworn, was examined and testified as follows:
13 REBUTTAL DIRECT EXAMINATION
14 BY MR. WALKER:
15 Q. Sir, will you state your full name for the jury?
16 A. My name is Brian Ard.
17 Q. Mr. Ard, what is your current occupation?
18 A. I'm an assistant manager of The Disney Store in Roanoke,
19 Virginia.
20 Q. Prior to being the assistant manager of The Disney Store
21 in Roanoke, Virginia, what did you do for a living?
22 A. I was the store manager at Camelot Music.
23 Q. How long did you work as -- how long did you work for
24 Camelot Music store there in Roanoke?
25 A. In Roanoke, I worked for a little over four years, and
884
1 previously I worked for three years for them in Atlanta.
2 Q. What were your responsibilities and general duties as a
3 store manager of the Camelot Music store?
4 A. Basically just the day-to-day operations of running the
5 store, watching the inventory, hiring and training and just
6 general upkeep duties.
7 Q. Do you know the defendant in this case, Mark Barnette?
8 A. Yes, I do.
9 Q. How do you know the defendant in this case?
10 A. I hired him to work for me at Camelot Music.
11 Q. Did you interview the defendant before you hired him to
12 work for you?
13 A. Yes, I did. I interviewed him I believe in March, and
14 he --
15 Q. Let me ask you some questions about the interview
16 process before I ask you about him in particular. What does the
17 interview process entail?
18 A. The applicants turn in applications and then we call
19 back based on the type of experience they have. And then I
20 usually take them to a section in the mall and talk about what
21 their aspirations are and their qualifications and any
22 particular reasons they may want to work for me there.
23 Q. And did you go through those steps with Mark Barnette,
24 the defendant in the case?
25 A. Yes, I did.
885
1 Q. And you eventually hired him, is that right?
2 A. Yes, I did.
3 Q. What did you -- when you initially hired the defendant,
4 in what capacity was he hired?
5 A. He was hired as a regular associate, which is a
6 part-time position working on stock, cashiering and other
7 duties.
8 Q. When you met with the defendant to interview him, what
9 was your impression of him?
10 A. He was a very bright young man. He was -- it was the
11 best interview I had ever had. He was very bright. He was very
12 particular about what his goals are, what he wanted to do in his
13 life, the type of work he wanted to be in. He answered every
14 question the way it was supposed to be answered. He did all of
15 the talking, which is one of the best signs of any interview.
16 Q. Did he appear to be a self-confident person to you?
17 A. He was very confident.
18 Q. Pursuant to that interview --
19 MR. WALKER: May I approach the witness, Your Honor?
20 THE COURT: Yes, sir.
21 BY MR. WALKER:
22 Q. Mr. Ard, pursuant to that interview, let me show you a
23 Camelot Music form for employment that the defendant filled out
24 in the case, it's already into evidence. Let me refer your
25 attention to some of the questions which you ask your potential
886
1 employees. Are your potential employees ever asked whether they
2 have any prior convictions?
3 A. Yes, they are.
4 Q. And was the defendant asked that on his particular
5 application?
6 A. Yes, he was.
7 Q. And how did he respond to that question?
8 A. He checked the no box.
9 Q. Would you have hired the defendant if you had known at
10 the time that he was a convicted felon?
11 MR. LAUGHRUN: Objection.
12 THE COURT: Overruled.
13 THE WITNESS: No, I don't believe I would have.
14 BY MR. WALKER:
15 Q. The whole time that he was working for you, did he ever
16 tell you that he was a convicted felon?
17 A. No, he didn't.
18 Q. Did he ever tell you that he was on probation in the
19 State of North Carolina?
20 A. No, he didn't.
21 Q. Did you ever learn the whole time that he worked for you
22 that he was a convicted felon?
23 A. No, I didn't.
24 Q. Would you explain to the members of the jury -- did
25 there come a time when his employment with Camelot Music ended?
887
1 A. Yes, it ended in January of '96.
2 Q. Will you tell the members of the jury how that -- were
3 you the still the store manager when that occurred?
4 A. Yes, I was.
5 Q. Did you play a role in the termination of his
6 employment?
7 A. Yes, I did.
8 Q. Would you tell the members of the jury what happened?
9 MR. LAUGHRUN: Objection, would like to be heard at the
10 bench briefly.
11 THE COURT: Come on up.
12 (Bench conference not recorded.)
13 THE COURT: Objection is overruled.
14 BY MR. WALKER:
15 Q. Mr. Ard, if you would, indicate to the members of the
16 jury what steps you took and what happened when the defendant's
17 employment was terminated.
18 A. Okay, one night I had an employee call me. Her name was
19 Renee Wergan.
20 MR. LAUGHRUN: Objection to what --
21 THE COURT: Sustained as to what an employee told you.
22 As a result of the conversation with the employee, he did what.
23 BY MR. WALKER:
24 Q. As a result of that conversation -- well, who was Renee
25 Wergan, who was she?
888
1 A. She was an employee of the store.
2 Q. Was she working there at the same time the defendant was
3 working there?
4 A. Yes, she was.
5 Q. And she called you at home?
6 A. Yes.
7 Q. Based on what she told you, what did you do?
8 A. I -- that night?
9 Q. Yeah, just tell the jury what happened after you had
10 this conversation.
11 A. I made some phone calls to decide whether or not
12 something had happened. I called another employee there to look
13 into whether or not he had committed sexual harassment at the
14 store.
15 Q. Did you talk to various employees when you conducted
16 that investigation?
17 A. Yes, I did. That night I talked to one other employee,
18 but throughout the next week I talked to all of the employees at
19 the store.
20 Q. Who was the employee, the additional employee that you
21 talked to that first night?
22 A. Joanna Baldwin.
23 Q. Was she also working at the store?
24 A. Yes, she was.
25 Q. After you talked to Joanna Baldwin that night, what
889
1 other steps did you take in your investigation?
2 A. The next day, I brought Mark into the office in the back
3 there and told him what had come to light and what he was being
4 accused of.
5 Q. What did you tell him, tell the jury what you told the
6 defendant.
7 A. I asked him whether or not it was true as to whether or
8 not he had actually touched the two female employees on their
9 behinds, and he admitted that he had but that it was in a joking
10 manner, a jesting manner. And when he had admitted to that, I
11 told him that I needed to do an investigation because he was
12 possibly going to be investigated for sexual harassment. When I
13 told him this -- when I told him that he was being accused of
14 this, he got upset and started to cry and he said he wanted to
15 go home at that point. So I let him go home, I let him out the
16 back door, and then I started my investigation as to talking to
17 each employee, one at a time, one on one. And I also asked
18 Joanna and Renee to write statements on what had happened
19 regarding the sexual harassment issue. We --
20 Q. At what, let me ask you a question, at what point when
21 you were talking with the defendant about the allegations, at
22 what point in particular did he start to cry?
23 A. Well, I just -- when he admitted to doing it and really
24 when the accusations came to light and I mentioned that these
25 were accusations, that's when he started to cry.
890
1 Q. What did he say, if anything?
2 A. He said, this isn't fair, this isn't fair. He said, I
3 want to go home.
4 Q. Is that when he started to cry?
5 A. Yes.
6 MR. WALKER: May I have just a moment, Your Honor?
7 THE COURT: Yes.
8 MR. WALKER: Judge, I don't have any other questions of
9 Mr. Ard.
10 THE COURT: Cross?
11 REBUTTAL CROSS-EXAMINATION
12 BY MR. LAUGHRUN:
13 Q. Good morning, Brian. You and I know each other, do we
14 not?
15 A. Yes, we do.
16 Q. We met in Roanoke the day after Christmas, I think, is
17 that right?
18 A. Correct.
19 Q. Kind enough to meet me after work on probably one of the
20 busiest shopping days, is that right?
21 A. That's correct.
22 Q. Let me ask you a few questions. When you hired Mark,
23 what type of worker was he?
24 A. He was an excellent worker.
25 Q. Good with customers?
891
1 A. He was an excellent salesman, he was very good with
2 customers.
3 Q. Knew the product?
4 A. Beg your pardon?
5 Q. Knew the product?
6 A. He was astounding in product knowledge.
7 Q. Only African-American working in the store, is that
8 right?
9 A. I beg your pardon?
10 Q. Only African-American working in the store at that time,
11 is that right, was Mark?
12 A. I believe so.
13 MR. CONRAD: Objection, relevance.
14 BY MR. LAUGHRUN:
15 Q. Now, no problems with the cash drawer being short?
16 A. Never.
17 Q. Under Mark's term there?
18 A. Never.
19 Q. Honest employee?
20 A. He was an honest employee.
21 Q. No product with products being -- CD's, tapes, cassettes
22 being missing or anything, was there?
23 A. Huh-uh.
24 Q. Okay. Now, let me show you a couple photographs, and I
25 think you and I went over these in December. Let me show them
892
1 to you.
2 MR. LAUGHRUN: Approach the witness, Your Honor?
3 THE COURT: Yes, sir.
4 BY MR. LAUGHRUN:
5 Q. Brian, I'm going to show you what I've marked as
6 Defendant's Exhibits 60, 61 and 62, and ask if you saw those in
7 December when you and I met up in Roanoke?
8 A. Yes, I did.
9 Q. The first picture is you and Joanna, is that right?
10 A. Correct.
11 Q. King of horsing around, is that correct?
12 A. Uh-huh.
13 Q. The next picture at the bottom left is a picture of
14 Joanna, is that right?
15 A. Correct.
16 Q. And the one in the middle is you at the office, is that
17 right?
18 A. That's right.
19 Q. And there's a picture there on the wall. Did Mark use
20 that desk also?
21 A. Yes, he did.
22 Q. Who is that a picture of?
23 A. That's a picture of his two children, little Mark and, I
24 believe her name was Angeline.
25 Q. Angelica?
893
1 A. Angelica.
2 Q. And that's a picture on the wall that was at Mark's
3 desk, is that right?
4 A. Correct.
5 Q. Now, when he applied for a job at the Saturn dealer, you
6 got a call about that, didn't you?
7 A. Yes, I did.
8 Q. Gave him an excellent reference, didn't you?
9 A. Yes, I did.
10 Q. He got promoted, didn't he, Brian, from sales to
11 assistant manager?
12 A. To assistant manager, that's correct.
13 MR. LAUGHRUN: Thank you, sir. That's all, Your Honor.
14 MR. WALKER: Just briefly.
15 REBUTTAL REDIRECT EXAMINATION
16 BY MR. WALKER:
17 Q. Mr. Ard, would you have given that recommendation for
18 the defendant if you had known that he was a convicted felon?
19 A. I don't think so.
20 Q. And you indicated -- did he ever tell you that he had
21 been convicted of felonious cruelty to children, did he ever
22 tell you that?
23 A. No, he did not.
24 Q. You referred to him as an honest employee. Did he ever
25 volunteer to you that he was on probation in North Carolina and
894
1 not supposed to move out of the State of North Carolina?
2 A. No, he didn't.
3 Q. Pardon me?
4 A. No, he did not.
5 MR. WALKER: I don't have any other questions, Your
6 Honor.
7 THE COURT: All right, call your next witness. Step
8 down, thank you, sir.
9 Members of the jury, I neglected to ask you again this
10 morning the standard question, have you seen, heard or read
11 anything about this case overnight?
12 (Jurors shake heads.)
13 THE COURT: Nobody tried to talk to you about the case?
14 (Jurors shake heads.)
15 THE COURT: Have you discussed it with anyone else?
16 (Jurors shake heads.)
17 THE COURT: You all indicate you have not, you answered
18 no to all of those questions.
19 One other thing, of course, the defendant has rested his
20 case. This is rebuttal by the government. I neglected to tell
21 you that, too. I was thinking about something else when y'all
22 came in. Call your next witness.
23 MR. WALKER: Your Honor, the government would call
24 Shirley Williams.
25 SHIRLEY DENISE WILLIAMS,
895
1 being first duly sworn, was examined and testified as follows:
2 REBUTTAL DIRECT EXAMINATION
3 BY MR. WALKER:
4 Q. Ma'am, if you would speak up and tell the members of the
5 jury what your full name is.
6 A. Shirley Denise Williams.
7 Q. And Ms. Williams, how old are you at the present time?
8 A. I'm 19 years old.
9 Q. Ms. Williams, do you currently live in Roanoke,
10 Virginia?
11 A. Yes, I do.
12 Q. Have you lived there your whole life?
13 A. Yes.
14 Q. Do you know the defendant in this case, Mark Barnette?
15 A. Yes, I do.
16 Q. I want to take your attention back to when you first met
17 the defendant. Were you in Roanoke, Virginia when you first met
18 the defendant?
19 A. Yes.
20 Q. Will you tell the members of the jury the circumstances
21 or how that happened, where you were when you first met the
22 defendant?
23 A. I was in Valley View Mall and I walked into Camelot
24 Music where he was employed. And I was looking inside the
25 gospel area looking for a particular CD or whatever, and he came
896
1 over to help me find what I was looking for. And we started to
2 talk about gospel music and church, and our conversation led to
3 me not having a job and I left with an application.
4 Q. How old were you at the time when you first met the
5 defendant?
6 A. I was 16.
7 Q. You say you talked about church with the defendant?
8 A. Right.
9 Q. Did there come a time -- and then you left with an
10 application for employment?
11 A. (Witness nods head.)
12 Q. Did you ever come back with the application for
13 employment completed?
14 A. Yes.
15 Q. How much longer after or how much later was that from
16 when you first met the defendant?
17 A. Within weeks, I can't remember.
18 Q. Okay. Did you get hired there at Camelot Music?
19 A. Yes, I did.
20 Q. And was the defendant still working there at the time
21 you were working there?
22 A. Yes, he was.
23 Q. Tell the members of the jury what your relationship was
24 with the defendant during working hours there at Camelot Music
25 store?
897
1 A. It was on a business level.
2 Q. Tell the members of the jury the nature of your
3 relationship with him outside of business.
4 MR. LAUGHRUN: Objection to the relevance again.
5 THE COURT: Overruled.
6 BY MR. WALKER:
7 Q. You can answer the question.
8 A. I went to his house twice and we had sex once.
9 Q. I want to ask you about that. When you say you went to
10 his house, where was that located there in Roanoke?
11 A. Keswick.
12 Q. Keswick Apartments?
13 A. Uh-huh.
14 Q. And you say you went to Keswick Apartments two times?
15 A. Yes.
16 Q. And you had sex with the defendant inside the Keswick
17 apartment?
18 A. Yes.
19 Q. Did the defendant ever tell you that he had a girlfriend
20 named Robin Williams living there at his apartment with him?
21 A. Yes, he did.
22 Q. When did he tell you that?
23 A. (Shakes head.)
24 Q. You don't remember?
25 A. No, I don't.
898
1 MR. WALKER: Judge, I don't have any other questions for
2 her.
3 THE COURT: Cross?
4 REBUTTAL CROSS-EXAMINATION
5 BY MR. LAUGHRUN:
6 Q. Ms. Williams, what kind of employee was he at Camelot?
7 A. He was a manager at the time.
8 Q. Was he a good manager?
9 A. Yes.
10 Q. You and I have never talked, have we?
11 A. No.
12 Q. Was he a hard worker?
13 A. Yes.
14 Q. Didn't harass you at work?
15 A. No.
16 Q. I believe you told Mr. Walker you had a businesslike
17 relationship at work, is that right?
18 A. Yes.
19 Q. Nothing inappropriate?
20 A. No.
21 MR. LAUGHRUN: Thank you, Judge, that's all.
22 MR. WALKER: Just briefly, Your Honor.
23 REBUTTAL REDIRECT EXAMINATION
24 BY MR. WALKER:
25 Q. How would you describe the defendant's personality when
899
1 you knew him up in Roanoke?
2 A. He was an outgoing person, calm, cool, collect, I
3 mean --
4 MR. WALKER: I don't have any other questions, Your
5 Honor.
6 THE COURT: Thank you, ma'am, come down. Call your next
7 witness. Thank you, you may step down.
8 MR. WALKER: Your Honor, the government calls Joanna
9 Baldwin.
10 JOANNA PAIGE BALDWIN,
11 being first duly sworn, was examined and testified as follows:
12 DIRECT EXAMINATION
13 BY MR. WALKER:
14 Q. Ma'am, would you state your full name?
15 A. Joanna Paige Baldwin.
16 Q. And Ms. Baldwin, how old are you at the present time?
17 A. 22.
18 Q. Where do you live?
19 A. Salem, Virginia.
20 Q. How far is Salem, Virginia from Roanoke, Virginia?
21 A. Four miles.
22 Q. What do you do for a living there, or are you a student
23 in Virginia?
24 A. Uh-huh, I'm a senior at Roanoke College.
25 Q. In the past, have you worked at the Camelot Music store
900
1 in Roanoke, Virginia?
2 A. Yes.
3 Q. How long did you work there, do you recall?
4 A. I worked there from July 28th, '95 until the second week
5 of January last year.
6 Q. When you worked there, did you meet the defendant in
7 this case, Mark Barnette?
8 A. Yes.
9 Q. Did you interact with the defendant while you were
10 working there?
11 A. All the time; he was assistant manager.
12 Q. What was -- tell the members of the jury anything that
13 you remember about what he would say to you when you were an
14 employee at the Camelot Music store.
15 MR. LAUGHRUN: Objection again to the relevance.
16 THE COURT: Overruled.
17 MR. WALKER: You can answer the question.
18 THE WITNESS: Okay. Mark was a very flirtatious person
19 overall. When I first met him, he would ask me to go with him
20 to Applebee's for drinks. And it started out with comments
21 about dress and that type of thing, and then it progressed from
22 there.
23 BY MR. WALKER:
24 Q. Tell the members of the jury what he would say to you.
25 A. At first he would just ask me to go out with him or he
901
1 would make comments about my body, that type of thing. Towards
2 the end, it became more lewd and crude. Like I said, it
3 progressed through the months. Just before he left Camelot, he
4 would make lots of lewd sexual comments. The worst case, he
5 told me that he wanted to put -- I needed to have --
6 MR. LAUGHRUN: Objection, would like to be heard.
7 THE COURT: Come on up and be heard.
8 (Bench conference not recorded.)
9 THE COURT: Objection overruled.
10 BY MR. WALKER:
11 Q. Ms. Baldwin, you were indicating one comment in
12 particular that you remember the defendant saying to you. Tell
13 the members of the jury what that was.
14 A. Let me back up here a second. In this whole timing,
15 things got worse and worse.
16 MR. LAUGHRUN: Objection, Judge, she needs to answer the
17 question.
18 THE COURT: Sustain that.
19 THE WITNESS: I think I need to say I cried all the
20 time.
21 THE COURT: Just answer the question and then you can
22 tell us anything else.
23 THE WITNESS: The worst thing he said was I needed to
24 have his big black dick in me.
25 BY MR. WALKER:
902
1 Q. Okay. Now, let me ask you a question. Did you ever
2 have a conversation with the store manager, Brian Ard, about any
3 of the comments the defendant would say to you?
4 A. Brian called me that Christmas of '95 and I said that,
5 you know, it bothered me at first, and I was fine with it, and
6 at that point it was bad, but I thought it would stop. And it
7 just got worse, so, yes, I did talk to Brian, but I didn't come
8 forward with everything until the very end. I mean, it's
9 uncomfortable to have someone say things like that to you all
10 the time. I mean, it was every single day.
11 Q. Do you recall the time when the defendant was terminated
12 from Camelot store?
13 A. Yes, it was the end of January '95.
14 Q. I want to refer your attention to the date April 30th of
15 1996. Did you become aware of a fire bombing incident that
16 occurred in Roanoke, Virginia on that particular date?
17 A. Yes, I saw it on 11:00 o'clock news that night.
18 Q. Tell the members of the jury how you became aware of the
19 fire bombing of -- that occurred on April 30th.
20 MR. LAUGHRUN: Objection to the relevance, Judge.
21 THE COURT: Overruled.
22 MR. WALKER: You can answer the question.
23 THE WITNESS: I was watching the news that night, it
24 came on, and I became very upset, like I say, excited, called
25 Brian immediately, Brian Ard.
903
1 BY MR. WALKER:
2 Q. How long had it been since you had seen the defendant
3 before the fire bombing incident, before you heard of the fire
4 bombing incident?
5 A. It hadn't been that long. Mark left Camelot
6 January 25th. He put on a variety show sometime in March. He
7 came into Camelot just prior to that variety show and talked to
8 Brian. He passed out flyers. Robin was with him. One other
9 time, he came in on a Sunday to Camelot. He was dressed in
10 sweat pants, had on a hat, bought a CD or something, turned
11 around and looked at me, walked out. That was it.
12 Q. And that last time that you saw him, about how many days
13 was that prior to the fire bombing incident that you heard
14 about?
15 A. Two to three weeks.
16 Q. Two to three weeks? How do you know that it was two to
17 three weeks, did anything happen in your life that you remember
18 that?
19 A. The fire bomb incident or when that was on the news as
20 the last day of exams my sophomore year of college, and everyone
21 was packing up and going home or whatever.
22 Q. When you heard about the fire bombing incident, having
23 seen the defendant two to three weeks before that, what did you
24 do?
25 A. I was really scared. I panicked. I called the police.
904
1 Q. Why did you do that?
2 MR. LAUGHRUN: Objection.
3 THE COURT: Overruled.
4 BY MR. WALKER:
5 Q. Why did you do that?
6 A. Because I worked for Mark, I was part of the reason he
7 was fired. You know, when we made our comments about the sexual
8 harassment, he lost his job. I figured Mark was probably angry,
9 brewing, and I didn't -- I felt like we were too closely
10 connected at that time.
11 MR. WALKER: No further questions, Your Honor.
12 THE COURT: Cross?
13 REBUTTAL CROSS-EXAMINATION
14 BY MR. LAUGHRUN:
15 Q. Do you recall back a time in November that Mr. Williams
16 and I came to Roanoke and tried to talk with you?
17 A. Yes, I do.
18 Q. Called you on the phone?
19 A. Yes.
20 Q. You were very nice, talked with us?
21 A. Uh-huh.
22 Q. And you told us you wouldn't meet with us until you
23 talked to Mr. Conrad or Mr. Walker, is that right?
24 A. Yes.
25 Q. You never called us back, did you?
905
1 A. No.
2 Q. We left you a hotel number?
3 A. Yes.
4 Q. Several times?
5 A. Yes.
6 Q. Never would talk with us, would you?
7 A. The way I saw it, I was subpoenaed by the prosecution.
8 Q. Did they tell you not to talk to us?
9 A. No, they didn't. I made that choice.
10 Q. Now, you had a prior incident back in high school,
11 didn't you, someone calling and leaving lewd messages on your
12 recorder and things?
13 A. Yes, I did.
14 Q. It wasn't Mark?
15 A. No, it wasn't.
16 Q. Okay.
17 A. I don't see that that pertains to this whatsoever.
18 Q. You were assaulted, weren't you?
19 A. Yes, I was, and that's really why it took me so long to
20 come out with what was going on with Mark, because you don't
21 want to seem like you are overreacting. But his comments became
22 so lewd and crude, I couldn't say, well, he is just flirting.
23 When someone says they want to put their big black dick in you,
24 I think that goes beyond just flirting and maybe just wanting to
25 go out. I mean, it was all the time.
906
1 Q. Now, you told Brian Ard that?
2 A. Yes, I did.
3 Q. He didn't believe you, did he?
4 A. I think Brian believed me.
5 Q. He didn't fire Mark then, did he?
6 A. There had to be an internal investigation, you can't
7 just fire somebody.
8 Q. When you told him that, he still continued to show up
9 for work every day, didn't he?
10 A. No, no, no, no. Brian -- no. Mark was -- Renee Wergan
11 came forward --
12 Q. Answer my question, ma'am.
13 MR. CONRAD: Well, I -- Your Honor, he --
14 THE COURT: Just a minute.
15 BY MR. LAUGHRUN:
16 Q. He continued to work there, didn't he, ma'am?
17 A. No. Renee made her --
18 Q. That's fine, I just need --
19 THE COURT: Let her finish up, Mr. Laughrun.
20 MR. LAUGHRUN: I'm sorry, Judge.
21 THE WITNESS: You are wrong in what happened. The
22 accusations were made. Mark was put on an internal
23 investigation. Brian had to look into it. He had to talk to
24 everyone in Camelot. You just can't go on one person's word
25 against another. Brian couldn't just say, hey, well, Joanna
907
1 said this, Mark, you are fired. We had to make statements.
2 Everybody in the store had to make a statement. Renee and I
3 made written statements. But, yes, Brian believed me.
4 BY MR. LAUGHRUN:
5 Q. Now, wasn't any horsing around at Camelot, was there, it
6 was all business, right?
7 A. Not -- what do you mean? I think we were all friends,
8 yes, we were all friends.
9 Q. Hard work?
10 A. To some. It just depends on what you consider hard work
11 to be.
12 Q. Were you working your way through school there?
13 A. Yes.
14 Q. Working sometimes and going to school full-time, too?
15 A. At that point, my mother was a secretary. She was a
16 single parent. I was paying my way through college. I needed
17 the job.
18 Q. You were working your way through school, weren't you?
19 A. Yes.
20 Q. And Salem College, I believe you -- 15, 20 minutes --
21 A. It's Roanoke College.
22 Q. Roanoke College, 15, 20 minutes from Salem, is that
23 right?
24 A. Yes.
25 Q. Now, when y'all were there in the back, would everybody
908
1 kid around sometimes?
2 A. Yes.
3 Q. Sometimes employees put their hands on other employees?
4 A. No.
5 Q. Let me ask you to look at what's been introduced and
6 marked as Defendant's Exhibit 61, and ask if this is you and
7 Brian Ard with Brian's hands on your head?
8 A. I think by hands on employees that you are talking
9 about, I'm -- Mark was grabbing our butts and that type thing.
10 Q. I'm asking you, is that a picture of you and Brian?
11 A. Yes, this is a picture of Brian Ard and me.
12 Q. Horsing around in the back?
13 A. Yes.
14 Q. Okay. Do you know who took those pictures, Joanna?
15 A. I remember Mark took a picture of Heather Hamlin, a past
16 associate, and me. I'm fairly certain Mark took the picture, I
17 don't remember.
18 Q. I see.
19 MR. LAUGHRUN: Thank you, Judge, that's all.
20 MR. WALKER: Just briefly.
21 REBUTTAL REDIRECT EXAMINATION
22 BY MR. WALKER:
23 Q. Ms. Baldwin, did the defendant ever appear to be
24 depressed to you when you saw him?
25 A. Never. He was very happy go lucky until he was
909
1 crossed. The minute you crossed him, then he turned into a
2 whole other person.
3 MR. WALKER: I don't have any other questions, Judge.
4 THE COURT: Thank you, come down. Call your next
5 witness.
6 MR. CONRAD: The United States would call Thad Johnson.
7 THAD JOHNSON,
8 being first duly sworn, was examined and testified as follows:
9 REBUTTAL DIRECT EXAMINATION
10 BY MR. CONRAD:
11 Q. Would you state your name for the jury?
12 A. Thad Johnson.
13 Q. Mr. Johnson, how are you employed?
14 A. I'm employed with the State of North Carolina as an
15 adult probation and parole officer.
16 Q. How long you been employed by the State of North
17 Carolina as an adult probation and parole officer?
18 A. Nine and a half years.
19 Q. In September of 1994, what were your duties?
20 A. Well, I was employed as an adult probation officer here
21 in Charlotte.
22 Q. What does an adult probation officer do?
23 A. We supervise probationers and parolees here in the
24 state. When someone gets placed on probation, we supervise a
25 probation case to make sure that the court contract is
910
1 enforced. There is a whole list of duties that we have. I'm
2 not sure how specific you would like me to be.
3 Q. When you talk about a court contract, what are you
4 referring to?
5 A. To the probation judgment.
6 Q. Let me approach and hand to you what has been introduced
7 into evidence in the guilt phase of this trial as Government's
8 Exhibit 17, and ask you if you recognize that exhibit?
9 A. Yes, sir.
10 Q. What is Government's Exhibit 17?
11 A. This is one of the probation cases on Mr. Barnette.
12 Q. Okay. Now, did you have -- was there another case as
13 well?
14 A. Yes, sir.
15 Q. And would you take Government's Exhibit 17 and
16 describe -- is that what you are referring to when you're you
17 talking about a court contract?
18 A. Yes, sir. A probation judgment is probably a better
19 word.
20 Q. Is that a --
21 A. That's the proper term.
22 Q. -- judgment and conviction reflecting a felony
23 conviction for felonious restraint?
24 A. Yes, sir.
25 Q. And what is the docket number on that?
911
1 A. It's 93-CRS-076063.
2 Q. And what were the terms of that judgment, if you would
3 tell the jury looking at Government's Exhibit 17?
4 A. Okay, he received a one-year sentence suspended, placed
5 on supervised probation for three years. I'm not sure if you
6 want me to get into each of the regular conditions of probation
7 or not.
8 Q. You indicated that there was also another court contract
9 for which supervision was provided, is that correct?
10 A. That's correct.
11 Q. And what was that for?
12 A. That would be breaking and entering, and it's case
13 number 93-CRS-076062.
14 Q. Let me approach and hand to you what has been introduced
15 into evidence in the guilt phase of this trial as Government's
16 Exhibit 64A, and ask you if you can identify that exhibit?
17 A. Yes.
18 Q. What is that?
19 A. Okay, this is a case too of probation. He received a
20 two-year sentenced, suspended for five years, supervised
21 probation for five years.
22 Q. Now, turning your attention to the first judgment and
23 conviction for the felonious restraint, on Page 2 of that
24 Exhibit 17, is there a list of regular conditions of probation?
25 A. Yes, sir.
912
1 Q. And what -- when I use that, what do I mean when I say
2 regular conditions of probation?
3 A. These are general conditions of probation that apply to
4 anyone who is on supervised probation in the State of North
5 Carolina.
6 Q. And what were the regular conditions of probation that
7 were applicable to Mr. Barnette in September of 1994?
8 A. Each and every one of the conditions listed, 1 through
9 10.
10 Q. And what was condition number 1?
11 A. First condition is commit no criminal offense in any
12 jurisdiction.
13 Q. Number 2?
14 A. Possessing a firearm, explosive device or other deadly
15 weapon listed in General Statute 14269.
16 Q. Are there also conditions of supervised probation in
17 addition to regular conditions of probation?
18 A. Well, these regular conditions of probation apply to
19 anyone who is on supervised probation.
20 Q. Some probationers are on unsupervised probation and only
21 have a certain number of those conditions applicable to them,
22 correct?
23 A. Correct.
24 Q. And others are on supervised probation, and they have an
25 additional set of conditions in addition to the regular
913
1 conditions, correct?
2 A. Right. Actually, anyone who is on supervised or
3 unsupervised, the regular conditions of probation all apply.
4 Q. Okay.
5 A. The special conditions of probation apply. They can
6 also apply to unsupervised as well. Supervised means that you
7 report to a probation officer, and unsupervised means that there
8 is a suspended sentence, but you don't actually report to
9 probation officer.
10 Q. Was Mark Barnette on supervised probation?
11 A. That's correct, yes, sir.
12 Q. What is condition number 5?
13 A. Condition number 5 says, remain within the jurisdiction
14 of the Court unless granted written permission to leave by the
15 Court or his probation officer.
16 Q. What is condition number 6?
17 A. Report as directed by the Court or his probation officer
18 to the officer at reasonable times and places and in a
19 reasonable manner, permit the officer to visit him at reasonable
20 times, answer all reasonable inquiries by the officer, and
21 obtain prior approval from the officer for and notify the
22 officer of any change in address or employment.
23 Q. And condition number 7?
24 A. Notify the probation officer if he fails to obtain or
25 retain satisfactory employment.
914
1 Q. Mr. Johnson, does your office maintain a probation file
2 on Aquilia Marcivicci Barnette?
3 A. Yes, sir.
4 Q. Did you bring it with you today?
5 A. Yes, sir.
6 MR. CONRAD: May I approach, Your Honor?
7 THE COURT: Yes, sir.
8 MR. LAUGHRUN: We would like to take some time to look
9 at it, we haven't seen it, Judge.
10 THE COURT: Pardon?
11 MR. LAUGHRUN: We need to look at it, we haven't seen
12 it.
13 THE COURT: First of all, go ahead and mark it and
14 identify it.
15 MR. CONRAD: Can I identify it and then --
16 THE COURT: Identify it first.
17 BY MR. CONRAD:
18 Q. Would you take the two exhibits I have just showed you,
19 remove them from your file, put your file together and hand it
20 to me?
21 A. (Witness complies.)
22 Q. I'm going to mark for identification as Government's
23 Exhibit --
24 MR. CONRAD: Is it 72, Your Honor?
25 THE CLERK: 72.
915
1 BY MR. CONRAD:
2 Q. A file, and I would ask you, Mr. Johnson, is that a file
3 kept in the regular course of business by the North Carolina
4 probation office?
5 A. Yes, sir.
6 Q. And are the items in that file, is it part of the North
7 Carolina probation officer to keep records such as are contained
8 in that file?
9 A. Yes, sir.
10 Q. Are you someone who is authorized to maintain custody of
11 records kept in --
12 MR. LAUGHRUN: Judge, we will stipulate that's the file.
13 I don't have any objection to that.
14 THE COURT: All right.
15 MR. LAUGHRUN: I would like to see it, we haven't seen.
16 MR. CONRAD: Well, I'm getting to that point.
17 BY MR. CONRAD:
18 Q. Mr. Johnson, are there any regulations concerning your
19 disseminating the contents of that file in court or otherwise?
20 A. Yes, sir.
21 Q. And what are those regulations?
22 A. It's the property of the probation office unless we have
23 a Judge's order to turn it over.
24 MR. CONRAD: Your Honor, would you at this point order
25 this witness to turn his file over for purposes of the trial?
916
1 THE COURT: Yes, sir, turn it over, please.
2 MR. CONRAD: (Hands the file over to defense counsel.)
3 (Pause.)
4 MR. LAUGHRUN: We would like to be heard about some of
5 this material.
6 THE COURT: All right.
7 (Bench conference not recorded.)
8 MR. CONRAD: Mr. Johnson, I'm going to approach and give
9 you back your file.
10 THE COURT: Yes, sir.
11 THE WITNESS: Thank you.
12 BY MR. CONRAD:
13 Q. Does a probation file contain a narrative of the
14 activities that took place during the time period of probation?
15 A. Yes, sir.
16 Q. And what is that called?
17 A. Okay, this is our supervision report contacts form that
18 we use.
19 Q. And describe that form for the jury, would you, please.
20 A. Yes, sir. It's a narrative entry form that we use
21 anytime we have personal contact with a probationer or anytime
22 we have any contact to do with court records, home visits,
23 pretty much any contact that we have, any agency that may be
24 helping us in supervising the client. So any contacts that we
25 have whatsoever involving the probationer, we do write down in a
917
1 narrative file.
2 Q. Is that a file that's dated?
3 A. Yes, sir. It indicates the date, of course, that we had
4 and the type of contact we had, whether it was personal contact,
5 a telephone call or whatever.
6 Q. And are there any codes that are used that would let you
7 know what type of contact or what type --
8 A. Yes, sir, there are codes that we use.
9 Q. What are those codes?
10 A. Well, would you like me to go over each one of them?
11 Q. (Nods head.)
12 A. An HV-1 indicates that we did a home visit on the
13 probationer and they were actually -- actually saw them
14 physically at that residence. An HV-2 means that we did a home
15 visit and someone in the household verifies to us that they live
16 there. An HV-3 means that no one was home or the residence
17 could not be located. An OV indicates an office visit in our
18 office. A PC is a personal contact. A T is a telephone. L is
19 letter, meaning that we mailed a letter in regards to the case.
20 A CV-1 is a family of acquaintance of the probationer. A CV-2
21 is a law enforcement contact or any court record. A CV-3 is an
22 employment contact. A CV-4 is a court or commission hearing.
23 And a CV-5 is a resource contact.
24 Q. Now, is there a part of that -- strike that. Does
25 reviewing that narrative assist you in testifying as to what
918
1 happened during the course of defendant Mark Barnette's
2 probation supervision?
3 A. Yes, yes.
4 Q. What is the first entry, if any, in that report?
5 A. Excuse me one second, make sure I have it here.
6 (Witness reviews documents.) 9-22-94 was the first office visit
7 and personal contact made with Mr. Barnette.
8 Q. Was that two days after the judgment and conviction, the
9 Court contract that you talked about?
10 A. Yes, sir.
11 Q. And what, if any, information was gleaned from the
12 defendant on that day?
13 A. Okay, first of all, it was not a contact made by me.
14 There was another probation officer who had this case at the
15 time.
16 Q. Right.
17 A. Would you like me to read what is written down?
18 Q. Yes.
19 A. Says 9-22-94, OVPC, address 3413 West Boulevard, phone
20 number is listed as 392-9072, employment Courtyard Marriott,
21 indicating that he works 10:45 p.m. to 8:00 a.m. as a night
22 auditor, defendant stated past charges dealt with ex-girlfriend
23 Alesha Chambers at 1524 Penson Street, defendant will report on
24 9-29-94 to the jail. Let's see, PO will resume supervision on
25 10-16-94.
919
1 Q. Now, when you relate this to the jury, if there is a
2 code, would you just go ahead and say what the code is?
3 A. Oh, I'm sorry, yeah. His next office visit was set for
4 10-16-94.
5 Q. Was there any contact on October 4th of '94?
6 A. Yes. He came in on October 4th, same address, 3413
7 listed as West Boulevard, same employment. He told the
8 probation officer the same employment.
9 Q. Did he have a work phone number?
10 A. He did. He gave a work number as 527-5055. And he also
11 had an assault with a deadly weapon charge that was currently on
12 appeal.
13 Q. What is the next entry?
14 A. It's 12-1-94 was the next office visit. He told the
15 probation office that he was still living at 3413 West
16 Boulevard, that he was still employed at the Courtyard
17 Marriott. He told the probation officer that his next court
18 date was in courtroom 3302 for the assault with a deadly weapon
19 charge. He was given a next office visit to return on
20 December 9th at 9:00 a.m. of '94.
21 Q. In that entry, did he list a supervisor at the Courtyard
22 by Marriott, a name?
23 A. Well, he did not. He listed who his attorney was at the
24 time. He told the probation officer Mariah Long was his public
25 defender.
920
1 Q. What's the next entry?
2 A. The next entry is 12-9-94, probation officer called
3 defendant and told him not to come because we did not have any
4 EHA monitors to put him on EHA.
5 Q. What's EHA?
6 A. Which is the electronic house arrest monitor. Probation
7 officer informed unit supervisor of situation. We will attempt
8 to location FMD's, which is the unit that we use to hook up the
9 electric house arrest.
10 Q. Was there an office visit set for January 31st of 1995?
11 A. Actually, there is no narrative entry for the next
12 appointment at that point that the probation officer indicated
13 at that time.
14 Q. Let me turn your attention to December 9th, 1994, and
15 ask you whether or not an office visit was set for January 31st,
16 1995?
17 A. Probation officer does not have when the next
18 appointment is set from December 9th.
19 Q. Turning your attention to January 31st, 1995, is there
20 an entry there?
21 A. He returned to our office -- first of all, to answer
22 your question, there is a narrative entry from 1-31-95.
23 Q. And what, if anything, is reflected there?
24 A. It indicates that he was a no show on 1-31-95.
25 Q. Okay. And what is the next contact?
921
1 A. The next contact was 2-22-95. That's when I had been
2 assigned the case, and I mailed a letter to West Boulevard for
3 him to report on March 6th at 9:30 a.m.
4 Q. And what is the code reflected there?
5 A. It's code CV-2, L, which just documents and dates that a
6 letter was sent on that date.
7 Q. And what does the CV-2 reflect?
8 A. It's just a court -- matter of document and court record
9 that a letter was mailed to West Boulevard on that date for him
10 to report on 3-6-95.
11 Q. What happened on the office visit set for March 6th,
12 1995?
13 A. He did not show up for that appointment.
14 Q. What, if anything, did you do?
15 A. Well, on that same day, I called the phone number that
16 had been given to us previously and the phone was disconnected.
17 Q. So what did you do next?
18 A. On March 20th, I called the Courtyard Marriott and was
19 told he was no longer employed there.
20 Q. What did you do next?
21 A. On March 24th, 1995, I made an HV-3, which indicates
22 that I attempted to locate the residence on West Boulevard and
23 could not locate the residence.
24 Q. And explain your efforts in attempting to locate that
25 residence.
922
1 A. Well, the residence is back off the road and it is
2 difficult to see. I mean, I had to go out there several times
3 before I actually located the residence. But I rode up and down
4 West Boulevard on that day and could not locate the residence.
5 I was unsuccessful in locating it.
6 Q. And on April 26th, did you do the same thing?
7 A. Right, I went back out again and made another attempt to
8 locate the residence, and still at that point I could not locate
9 the residence.
10 Q. Did there come a time in July of 1995 that you made any
11 efforts with respect to this supervision?
12 A. Right, I did. I finally located the residence, and at
13 that point there was a female who came to the door when I
14 knocked on the door who identified herself as his mother. And I
15 identified myself, of course, and she told me that she did not
16 know where he was living at the time, but I indicated to her
17 that I gave her an office visit for him to come in two days from
18 that date. She did indicate that she would have contact with
19 him and could give him my message to report to me on July 19th.
20 Q. Did his mother indicate to you on that day that the
21 defendant comes in from time to time?
22 A. Yes, I have that written, that she -- he is not living
23 there, but he does come in from time to time.
24 Q. But she didn't know where he was?
25 A. That's correct.
923
1 Q. But told you she would give him a message?
2 A. Right, yes, sir.
3 Q. Did she tell you that for the past four months, the
4 defendant had been living in Roanoke, Virginia, did she tell you
5 that on that day?
6 A. No, sir.
7 Q. What was your next contact?
8 A. Well, on July 19th, I received a phone call from
9 Mr. Barnette and he told me that he could not come in because he
10 was working for Temp World that day, and that he had also
11 another reason he said that he had not contacted was that he had
12 been recuperating and recovering from a gunshot wound.
13 Q. Okay. So he told you two things?
14 A. Right.
15 Q. And it was a phone call that he initiated to you?
16 A. Right.
17 Q. Do you know where that phone call came from?
18 A. I have no idea.
19 Q. You don't know whether it was from North Carolina or
20 Virginia?
21 A. No, sir, we don't have any equipment on our phone that
22 indicates where the phone call is coming in from.
23 Q. But this was the day that he was supposed to be in for
24 an office visit?
25 A. That was the day that he was supposed to report to me,
924
1 yes, sir.
2 Q. And he told you he was working at Temp World?
3 A. Temp World here in Charlotte.
4 Q. And was he located onsite at Selectron, is that what he
5 told you?
6 A. Right, right.
7 Q. And he said that he was home recovering from --
8 A. A gunshot wound.
9 Q. -- a gunshot wound?
10 A. That's correct.
11 Q. Do you know that -- do you know whether or not the
12 defendant had, in fact, been shot in his home in January of
13 1995, seven months before?
14 A. I did not know that.
15 Q. Did the mother, when you talked to the mother on
16 July 17th, did she tell you that her son was home recovering
17 from a gunshot wound seven months before?
18 A. No, sir.
19 Q. Did anything else happen on that day?
20 A. Well, I also gave -- at that point, I rescheduled his
21 appointment for July 24th of 1995 at 4:00 p.m.
22 Q. Okay. Did you call -- was there any -- telephone
23 contact with his mother on that day?
24 A. His mother called me later that day to confirm his
25 appointment with me on July 24th, 1995 at 4:00 p.m.
925
1 Q. What did you do on July 14th as a result of getting
2 information from the defendant that he was working at Temp
3 World?
4 A. Well, I called Temp World and they told me that he was
5 not employed there.
6 Q. What, if anything, happened on July 24th?
7 A. He did report to my office as scheduled that day. I
8 will just read what I have written down. OVPC, defendant
9 arrived as scheduled, same address, indicating that he would be
10 living at his West Boulevard address. He told me there were no
11 current tickets or arrests that were pending against him. I
12 have a narrative entry, defendant has been recovering from a
13 gunshot wound, he was shot in the leg, femur was shattered,
14 defendant states he did not contact office because of getting
15 shot.
16 Q. Now, did he tell you that being shot happened seven
17 months ago?
18 A. No.
19 Q. Did he tell you that prior to getting shot, he had shot
20 a rifle on the premises at 3413 West Boulevard?
21 A. No, sir.
22 Q. Would possessing a rifle in January of 1995 been a
23 violation of his court contract?
24 A. Yes, sir.
25 Q. Would leaving the State of North Carolina and going to
926
1 Roanoke without your permission have been a violation of his
2 court contract?
3 A. Yes, sir.
4 Q. Would changing residences from 3413 West Boulevard to
5 1616 Keswick Drive in Roanoke, would that have been -- without
6 notifying you, would that have been a violation of his court
7 contract?
8 A. Yes, sir.
9 Q. Did you on that occasion take a photograph of the
10 defendant?
11 A. Yes, sir.
12 Q. And is that maintained in your file?
13 A. That's correct.
14 Q. And is that the first time that you were able to get a
15 hold of him during the time period that you were supervising him
16 in this case?
17 A. That's correct.
18 Q. Did you at that time do a client assessment?
19 A. Yes, sir. I went over the conditions of probation again
20 as I do whenever I meet a client for the first time or I get a
21 case from the very beginning.
22 Q. Did you -- do you have in your file a document entitled,
23 Initial Client Assessment?
24 A. Yes, sir.
25 Q. And would you describe what that is for the jury?
927
1 A. Excuse me one second while I locate the form here. This
2 is an assessment that we use in personally evaluating each
3 person as we meet them which goes into everything as far as
4 their address, their prior convictions, what those prior
5 convictions may be for, their attitude when we are talking with
6 them, when we're dealing with them, their employment, their
7 education, their marital status, and a whole list, financial
8 situation, friends, associates. And they are given a score at
9 that point.
10 Q. Is the score based upon the information provided to you?
11 A. Yes, sir.
12 Q. And what is the purpose of scoring a probation client
13 with an initial client assessment?
14 A. Well, at that point, it's a tool for our office to use
15 as far as whether we feel like what type of probationer they are
16 going to be, whether they are going to be high risk or whatnot.
17 Q. Now, there is an entry on that form, is there not, for
18 felony convictions, prior, current or past felony convictions?
19 A. Yes, sir.
20 Q. And what score did you give him for that?
21 A. A two for one or more.
22 Q. What is that based upon, one or more felony convictions?
23 A. Right.
24 Q. What felony convictions did he tell you about on that
25 day?
928
1 A. He told me that the only felony conviction he had was
2 what he was on probation for.
3 Q. Did he tell you he had a felony conviction in the State
4 of Georgia?
5 A. No, sir.
6 Q. Is there an entry on that assessment form involving an
7 offense involving the use of a weapon, physical force or the
8 threat of force?
9 A. Yes, sir.
10 Q. What score did you give him for that?
11 A. Well, he was given a two, because that is the score
12 that's given to anyone who is convicted of house break-in,
13 breaking and entering, burglary or stolen property.
14 Q. And as for the current and/or past convictions, he was
15 given a two?
16 A. Yes, sir.
17 Q. Now, the next item on the score tabulation, is that for
18 an offense involving use of a weapon, physical force or the
19 threat of force?
20 A. That's -- actually, the very next item is vehicle theft
21 and auto larceny.
22 Q. Okay.
23 A. The very next one is robbery, and following that is
24 forgery, worthless check or fraud -- okay, I'm sorry, you're
25 going to the very -- I follow you now.
929
1 Q. Turning your attention to the item listed offense
2 involving the use of a weapon, physical force or the threat of
3 force, what score did you give him for that?
4 A. Well, he was given a no, a zero, indicating that --
5 Q. Did he tell you that he had a felony conviction for
6 beating two children with a metal coat hanger in the State of
7 Georgia?
8 A. No, he did not.
9 Q. Now, if he had, would that have indicated a different
10 point total?
11 A. Yes, sir.
12 Q. Now, alcohol usage, you gave him a zero for that. Was
13 that based upon the information that he provided to you?
14 A. The conversation.
15 Q. And his attitude, what score did you give him for
16 attitude?
17 A. Well, I put a zero, which indicates motivated or
18 receptive to assistance.
19 Q. And that's how he appeared to you on that day?
20 A. That's how he appeared on me on that day. I mean, he
21 was very cooperative. His mother came with him that day and she
22 was there in support, saying the reason he had not been in to my
23 office was because he had been recuperating from a gunshot
24 wound, et cetera.
25 Q. This is something she hadn't told you in the home visit
930
1 that you had the same month?
2 A. Right, right.
3 Q. Now, is there an entry for prior periods of adult
4 probation parole supervision?
5 A. Yes.
6 Q. And what score was he given for that?
7 A. He was given a zero for that.
8 Q. Indicating no prior adult probation?
9 A. Right.
10 Q. Did he tell you about being put on probation in the
11 State of Georgia for felonious cruelty to children?
12 A. No, sir.
13 Q. And based upon all of those answers, you came up with a
14 final score that would reflect the degree of seriousness this
15 probationer presented on that day?
16 A. That's correct.
17 Q. Now, when you first met with him on July 24th, 1995,
18 where did you think he resided?
19 A. Well, as I looked -- he -- I was told that he was living
20 at West Boulevard part of the time. But at the end of the
21 office visit, I have a narrative entry, defendant cannot give me
22 a set schedule or address at this time.
23 Q. Now, did he tell you he was living in Roanoke, Virginia?
24 A. No, sir, that --
25 Q. Did his mother tell you that?
931
1 A. No, sir.
2 Q. Did he tell you he was working at the Camelot record
3 store in Roanoke, Virginia?
4 A. No, sir.
5 Q. Did his mother tell you that?
6 A. No, sir.
7 Q. Did he tell you he had a Virginia driver's license
8 listing 1616 Keswick Drive as his address?
9 A. No, sir.
10 Q. Did he tell you that he was working at Courtyard by
11 Marriott?
12 A. Yes, sir.
13 Q. Tell this jury who he said was his point of contact at
14 Courtyard by Marriott?
15 A. He told me on July 24th that his supervisor was Sheila
16 Cooper, that he was working at the Courtyard Marriott as a
17 security night auditor from the 11:00 to 7:00 shift, 11:00 p.m.
18 to 7:00 a.m. shift that day.
19 Q. In Charlotte, North Carolina?
20 A. Right, Charlotte, North Carolina.
21 Q. Now, is the name Sheila Cooper familiar to you?
22 A. It turns out that this was his aunt, but at the time I
23 had no idea.
24 Q. Did you know that Sheila Cooper was living at the 3413
25 West Boulevard address at the time he indicated that was his
932
1 supervisor at work?
2 A. He told me that was his supervisor at work.
3 Q. Did you have a contact with him on July 31st?
4 A. Excuse me one second here -- yes, sir.
5 Q. And what, if anything, did the defendant communicate to
6 you on that day?
7 A. On July 31st, defendant arrived as scheduled. He gave
8 me a new address as 1708 Flynwood Drive located here in
9 Charlotte, zip code 28205, phone number 532-9595. He gave me
10 directions, take Central Avenue, past Briar Creek Road.
11 Defendant told me he was still employed with Marriott Courtyard
12 but he did not have a set schedule at that time, but he was
13 working on getting a set schedule.
14 Q. Still employed at the Courtyard by Marriott?
15 A. Right.
16 Q. Did you set a next office visit for August 10th?
17 A. Yes, sir, August 10th of 1995 at 10:00 a.m.
18 Q. And what happened on that day?
19 A. Defendant -- I received a message from defendant stating
20 that he could not come in because he had a doctor's appointment.
21 Q. So what was done at that point?
22 A. I called the defendant's residence and left a message
23 for him to call me immediately.
24 Q. And what happened next?
25 A. I didn't receive a phone call on August 29th. I went
933
1 out to the residence at 1708 Flynwood Drive, verified his
2 residence and spoke with someone who came to the door who told
3 me that he did live there. And I gave him an appointment slip
4 to give to Mr. Barnette to report on August 31st at 12:00 noon.
5 Q. When you say you verified that he was living there, you
6 talked to someone who answered the door and said yes, he does
7 live there?
8 A. That's correct.
9 Q. You didn't see the defendant?
10 A. No, sir.
11 Q. And did there come a time when you had an office visit
12 on August 31st of 1995?
13 A. Right. I gave this gentleman who came to the door who
14 told me he was his cousin to report to my office on
15 August 31st. On August 31st, Mr. Barnette did report to my
16 office.
17 Q. Do you know whether that gentleman's name was Steve
18 Austin?
19 A. I don't have his name written down here.
20 Q. Now, what happened on August 31st?
21 A. August 31st, defendant arrived as scheduled, same
22 address. Defendant stated that he fell and hurt his leg.
23 Q. As a reason for missing the last appointment?
24 A. He gave me the same phone number as 532-9595, and at
25 that point I advised defendant to have all calling features
934
1 taken off of his phone so that we could get his house arrest
2 monitor set up.
3 Q. Was there an appointment set up for September 7th?
4 A. Yes, sir.
5 Q. What happened on that day?
6 A. September 7th 1995, defendant called, stated he could
7 not come in, he had to appear in court. He left a message.
8 Q. What did you do as a result of getting that message?
9 A. On September 21st, I mailed a letter for him to report
10 on October 9th, 1995 at 10:30 a.m.
11 Q. What, if anything, happened on October 9th, 1995?
12 A. He was a no show for that appointment.
13 Q. And what did you do as a result of that?
14 A. Well, I sent out another contact request for him to
15 report on November 6th at 11:15 a.m.
16 Q. And what happened on that day?
17 A. He was a no show.
18 Q. And what did you do as a result of that?
19 A. I called the Courtyard Marriott on November 14th,
20 defendant's place of employment, verified still there, left
21 message for defendant to call as soon as possible.
22 Q. Now, previously in July, he had indicated to you his
23 supervisor there was Sheila Cooper?
24 A. Sheila Cooper, that's correct.
25 Q. And you left a message for him to call as soon as
935
1 possible?
2 A. Right.
3 Q. What happened after that?
4 A. Turn to the next page here, I never heard from him after
5 that.
6 Q. What did you do on December 15th, 1995, if anything?
7 A. December 15th I went back to the Flynwood address,
8 verified once again that he was living there, and left an
9 appointment for him to come in on December 18th.
10 Q. December 18th?
11 A. That's correct.
12 Q. Let me approach and hand you what has been marked for
13 identification as Government's Exhibit 66, and ask you to look
14 at that exhibit and state whether or not a photograph appears
15 there?
16 A. Yes, sir.
17 Q. Is that a photograph of the defendant, Mark Barnette?
18 A. Yes, sir.
19 Q. And what is the date of that photograph, the issue date?
20 A. Issue date is 12-18-95.
21 Q. And is that 12-18-95 the date the defendant was supposed
22 to be in your office in Charlotte, North Carolina?
23 A. Yes, sir.
24 Q. And what is the -- although the photograph is of the
25 defendant, Mark Barnette, what is the customer name listed on
936
1 Government's Exhibit 66?
2 A. Mario Vonkeith Barnette.
3 Q. Does that appear to be a Commonwealth of Virginia
4 identification document?
5 A. Yes, sir.
6 Q. On December 18th when the defendant was supposed to be
7 in your office, he was having his photograph taken in Virginia
8 to obtain an identification card in the name of Mario Vonkeith
9 Barnette?
10 A. Yes, sir.
11 Q. Did he tell you that he missed the appointment on
12 December 18th because he was having a fake I.D. made in the
13 Commonwealth of Virginia?
14 A. No, sir.
15 Q. What did you do at that point?
16 A. At that point, I started proceedings to issue a warrant
17 for his arrest.
18 Q. And why did you do that?
19 A. Because I felt like that I had certainly exhausted
20 everything I knew to do and to work with him and try to get him
21 to comply and get him to come in, and at that point there was
22 nothing else I could really do, because I had been to the
23 residence several times and followed through. And I hadn't had
24 any response from him on the last couple of contacts that I
25 attempted to make.
937
1 Q. And at that time when you started the process to issue a
2 warrant for arrest, did you still believe that he was living in
3 the State of North Carolina?
4 A. Yes, sir, because I had done as I just testified several
5 home visits and was told -- our department does not require that
6 the person has to physically be there, because many times our
7 probationers are at work during the day and whatnot. Just a
8 family member or someone that lives in that household has to
9 physically be there to tell us that they reside there.
10 Q. After having that process started, when is the next time
11 you ever met face to face with the defendant?
12 A. Well, the very next time I met with him was on July 8th
13 of 1996. That was after he was arrested for these charges and I
14 served the probation violation report on him at that point.
15 Q. And you served that in July, the month following the
16 murders of Donnie Lee Allen and Robin Williams?
17 A. Yes, sir.
18 Q. And his attorney at that time was present when you
19 served that paperwork?
20 A. That's correct.
21 Q. Describe the defendant's demeanor on that day.
22 MR. LAUGHRUN: Objection to relevance.
23 THE COURT: Overruled.
24 THE WITNESS: Well, he first walked in and he was like,
25 yeah, you were straight up with me, to use his exact words, you
938
1 were straight up with me, you were fine, I will sign whatever I
2 need to sign. And I explained to him that I was charging him
3 with violating his probation and the warrant had already been
4 served on him, but it is a requirement that we explain to them
5 what they are being charged with as far as violating their
6 probation, and he signed the paperwork.
7 BY MR. CONRAD:
8 Q. Did he seem to understand what you told him?
9 A. He fully understood exactly what I was saying to him.
10 Q. Just roughly two weeks after the killings took place on
11 June 22nd?
12 A. That's correct.
13 Q. Did he -- describe his -- how he appeared to you on that
14 day in terms of personality?
15 A. Well, I mean, he appeared calm. I mean, he didn't
16 appear very upset, he didn't show any signs of remorse to me at
17 all, in fact, because I was rather concerned about his state of
18 mind.
19 MR. LAUGHRUN: Objection.
20 THE COURT: Overruled, go ahead.
21 BY MR. CONRAD:
22 Q. Go ahead.
23 A. In fact, I questioned his lawyer before I went back
24 there as far as his state of mind, because I didn't know what
25 state of mind to expect him in when I served the probation
939
1 violation on him.
2 Q. Did he seem listless to you on that day?
3 A. He seemed listless. I mean, it seemed like it was an
4 everyday thing, it was no big deal. He signed the probation
5 violation report and that was it.
6 Q. Any signs of depression?
7 A. He didn't appear depressed or anything to me at all.
8 MR. CONRAD: Your Honor, that's all I have.
9 THE COURT: Cross?
10 REBUTTAL CROSS-EXAMINATION
11 BY MR. LAUGHRUN:
12 Q. Mr. Johnson, that was down in the courtroom holding cell
13 of 1101, is that right?
14 A. That's correct.
15 Q. 1101 is the probable cause court for State Court, right?
16 A. That's correct.
17 Q. And he was back there. When he showed no remorse, was
18 calm and not upset, there were probably 20 to 30 other inmates
19 there dressed in orange jump suits, is that right?
20 A. No, sir, this was actually in a holding cell that he,
21 Ms. Wegan, his attorney at the time, and myself, just the three
22 of us were exclusively in in the room.
23 Q. And y'all took him out of the big room where other
24 inmates were, is that right?
25 A. Right.
940
1 Q. And the holding cell is open, there's not a door to it,
2 is that right?
3 A. I'm sorry?
4 Q. Where y'all were, were you in the female section?
5 A. We were in the very first holding cell as you go back to
6 where the prisoners are kept, the first room on the right. I'm
7 not sure if that's the female room or not.
8 Q. Benches, steel benches there, is that right?
9 A. That's correct, yes, sir.
10 Q. Door open or closed?
11 A. The door was -- it was cracked, I think. It was almost
12 closed, maybe not completely closed.
13 Q. And you just gave the warrants on him for absconding
14 supervision, is that right?
15 A. That's correct.
16 Q. And you were aware at that time that he had been charged
17 with two counts of capital murder?
18 A. Yes, sir.
19 Q. Carjacking?
20 A. Yes, sir.
21 Q. Had some charges pending in Virginia?
22 A. Yes, sir.
23 Q. And in the scheme of things, this was the least of his
24 worries, would that be fair statement based on your experience,
25 I mean, he's looking at the death penalty, the probation
941
1 violation for a felony is the least of his worries, is that a
2 fair statement?
3 A. Perhaps, perhaps.
4 Q. His lawyer was with him?
5 A. Yes, sir.
6 Q. Susan Wegan?
7 A. Yes, sir, that's correct.
8 Q. Female lawyer from the public defender's office?
9 A. Yes, sir.
10 Q. Now, and I believe he was upbeat with you as far as
11 saying, you were straight up with me, is that right?
12 A. Right.
13 Q. Let's go back a little. When you went and did this
14 initial client assessment sheet that Mr. Conrad asked you about,
15 a lot of that information you get from the computer, do you not,
16 about prior convictions and stuff like that, you just don't rely
17 on what somebody tells you, is that right?
18 A. Well, yes and no. I mean, I depends on when we fill
19 these out, we ask them -- I mean, because we feel it's a better
20 assessment if we ask them personally and that gives us an
21 indication of whether they are being truthful with us or not.
22 Q. And if you found out different, would you go back and
23 change it?
24 A. Yes, sir.
25 Q. Were you aware when you did the assessment sheet in 1984
942
1 that he had been supervised by your office two years earlier?
2 MR. CONRAD: Object to the year.
3 MR. LAUGHRUN: 1993.
4 THE COURT: Overruled.
5 BY MR. LAUGHRUN:
6 Q. September 23rd, '93, were you aware he had been
7 supervised by your office by a probation officer named
8 Michael D. Haley?
9 A. No, sir.
10 Q. You didn't put that in your records?
11 A. Well, that file, I'm sure, had been closed at that
12 point. There was nothing in the file that I had that indicated
13 that.
14 Q. Couldn't punch his name in the computer to see if he had
15 ever been supervised by probation before?
16 A. Yes, we could do that.
17 Q. Let me ask you to look at Defendant's Exhibits 62 and
18 63. And while Mr. Conrad is looking at those, do you know what,
19 these are my words, Mr. Johnson, courtesy supervision is called?
20 A. Yes, sir.
21 Q. Courtesy supervision, and correct me if I'm wrong, one
22 state asks another state to supervise that inmate or that
23 probationer?
24 A. Yes, sir, that's correct.
25 Q. That's through what is called the interstate compact, is
943
1 that right?
2 A. Yes, sir.
3 Q. And what happens is, correct me if I'm wrong, the state
4 that wants the supervision contacts tax the state where the
5 defendant lives and asks to do a background check to see if he
6 would be appropriate to transfer the paperwork, is that right?
7 A. That's correct.
8 Q. And your office here, for example, if the defendant were
9 in Georgia, transferred it up here, you'd do a home visit, do a
10 background check as best you could to see if it would be
11 appropriate to supervise him here, is that right?
12 A. Yes, sir.
13 Q. And if it's done, it's sent back through what is called
14 the interstate compact, probationer, all the paperwork is sent
15 up here and y'all do what is called a courtesy supervision, is
16 that right?
17 A. Yes, sir.
18 Q. Try to enforce all of the terms of that home state
19 probation, is that right?
20 A. Yes, sir, that's correct.
21 Q. And were you familiar with Mr. Barnette being supervised
22 by Mike Haley up here at all?
23 A. Not at that time, I was not, no, sir.
24 Q. The government didn't ask you to bring that file with
25 you, did they?
944
1 A. No, sir.
2 Q. Did they ever ask you about that case at all to your
3 knowledge?
4 A. Briefly, briefly.
5 Q. Okay.
6 THE COURT: Approach the witness, Your Honor?
7 THE COURT: Yes, sir.
8 BY MR. LAUGHRUN:
9 Q. I will ask you, Mr. Johnson, if Defendant's Exhibit 62
10 appears to be an initial client assessment of Mark Barnette that
11 Mr. Haley did 9-23-93?
12 A. Yes, sir.
13 Q. And he scored there a what, a 16?
14 A. Yes, sir.
15 Q. And what did he score with you when you did yours?
16 A. A 17.
17 Q. Now, I would ask you to look at Exhibit 63, and if that
18 appears to be the documents that were from the file that was
19 transferred from Georgia to North Carolina for supervision, and
20 in there is a picture of the defendant holding a placard, is
21 that right, not a very good picture?
22 A. Yes, that looks like his name. It's kind of hard to
23 identify who the person is.
24 Q. There's also a supervision report contact sheet in
25 there, is that right?
945
1 A. Yes, sir.
2 Q. And on the last page of that, it looks like the case was
3 terminated, is that right?
4 A. That's correct.
5 Q. And sent back to Georgia, is that right?
6 A. Yes, sir, 8-1-94.
7 Q. Now, you told us that in October of '94, you were
8 waiting for approval for the EHA, is that right?
9 A. I'm sorry, could you repeat that question for me? I was
10 referring back to my notes. I'm sorry, go ahead.
11 Q. Approximately October '94, was your office awaiting
12 approval for what is called EHA, electronic house arrest?
13 A. Yes, sir.
14 Q. EHA, correct me if I'm wrong, is the band they put on
15 the individual's ankle or ankle bracelet so that they -- you
16 have a certain time that you are supposed to be home, the
17 computer calls them at various times to make sure people are
18 there, is that correct?
19 A. That's correct.
20 Q. And requires a touch tone phone with no call waiting,
21 call forwarding, those type of features, is that correct?
22 A. That's correct.
23 Q. Gives you a certain little -- you go a certain amount
24 before it won't work, is that right?
25 A. Yes, sir, that's correct.
946
1 Q. And I believe you said that you were waiting to get
2 those devices in October of '94, and still you were trying to
3 set that up with Mr. Barnette in November of '95, is that
4 correct?
5 A. That's correct.
6 Q. Still hadn't gotten that approved or set up or whatever,
7 is that right?
8 A. That's correct. In order to set that up, though, you
9 have to have a stable residence. You also have to have a set
10 schedule every day, and he was telling us, of course, that first
11 of all, that he didn't have a set schedule at that time. He
12 told us, I think I testified a couple times that he said he was
13 working at the Marriott but he didn't have a set schedule, that
14 his schedule rotated.
15 Q. That's why you couldn't do the EHA, is that right?
16 A. Well, that was the latter part, but initially we didn't
17 have the equipment to set him up.
18 Q. Because the State of North Carolina didn't fund it, is
19 that a fair statement?
20 A. Well, we had a limited number of monitors at that time.
21 Q. Now, when he was going to do the EHA, that was part of
22 Judge Jessie Caldwell's judgment, was it not?
23 A. Yes.
24 Q. And that judgment never was enforced, was it, never was
25 placed into effect due to what you've just told us about?
947
1 A. Right, that's correct.
2 Q. And he missed some office visits, right?
3 A. (Nods head.)
4 Q. Unstable employment?
5 A. (Nods head.)
6 Q. Unstable residence?
7 A. (Nods head.)
8 Q. Right. Was he paying his money?
9 A. He was not paying his money, no.
10 Q. And you said one time he had to go to court for an
11 assault charge in approximately November of '94?
12 MR. CONRAD: Objection.
13 THE WITNESS: That's correct.
14 THE COURT: Overruled.
15 BY MR. LAUGHRUN:
16 Q. Is that correct?
17 A. That's correct.
18 Q. On any one of those, either whether he was convicted or
19 not, a warrant for a probation violation could have been issued,
20 is that right?
21 A. Well, we don't issue warrants if someone has a pending
22 charge. It's only a violation of the probation if they're
23 convicted at that point.
24 Q. You can bring them back for the conduct even if they may
25 be acquitted for the charge, is that a fair statement,
948
1 technically?
2 A. Well, we can, yes. It just depends on -- I'm sure that
3 you certainly know that as many years as you've been a lawyer
4 here in Charlotte that we don't -- normally we don't report
5 people back unless there is a conviction, prior conviction. On
6 his appointments with me, he was cooperative at the appointments
7 that he did show up. I was working with him the best that I
8 knew how to work with him.
9 Q. In fact, he even said that to you in the holding cell,
10 you were straight up with me?
11 A. Right, right.
12 Q. Those probation violations that you served, Mr. Johnson,
13 on July 8th of '96 are still outstanding as of right now, is
14 that right?
15 A. Yes, sir.
16 Q. They've never been heard, have they?
17 A. Well, they been continued for many, many different
18 reasons at the request of the defense.
19 Q. Right, because of his pending matters down here, is that
20 right?
21 A. That's correct.
22 MR. LAUGHRUN: Thank you, Judge Potter.
23 MR. CONRAD: Just briefly, Your Honor.
24 REBUTTAL REDIRECT EXAMINATION
25 BY MR. CONRAD:
949
1 Q. Mr. Johnson, Mr. Laughrun asked you whether or not the
2 government had asked you any questions about his prior probation
3 with Michael Haley. Are you aware that the government provided
4 the defense with all of the information concerning Michael
5 Haley's previous supervision?
6 A. Yes, sir.
7 Q. And the fact is that this defendant was not under
8 Michael Haley's supervision in 1995, is that correct?
9 A. That's correct.
10 Q. When he indicated he was living at 3413 West Boulevard
11 or 1708 Flynwood in Charlotte, when, in fact, he was living at
12 1616 Keswick Drive in Roanoke, he was under your supervision at
13 that time?
14 A. Yes, sir.
15 Q. And the same is true in 1996 when he killed Donnie Lee
16 Allen and Robin Williams, he was under the supervision related
17 to the felonious restraint here in Charlotte, not supervision
18 related to the felonious cruelty to children out of Georgia?
19 A. That's correct.
20 MR. CONRAD: That's all I have.
21 MR. LAUGHRUN: One question if I may.
22 REBUTTAL RECROSS-EXAMINATION
23 BY MR. LAUGHRUN:
24 Q. Mr. Johnson, you didn't provide that document that you
25 testified from, you were not asked to provide them copies of
950
1 that like you were the other documents, were you?
2 A. The only way that we can provide any file to anyone is
3 if the Court orders us to do that.
4 Q. Do you know if the court order provided the Georgia
5 probation we talked about, do you have any knowledge about that
6 at all?
7 A. No, I have no knowledge about that at all.
8 MR. LAUGHRUN: Thank you, sir. Thank you, Judge Potter.
9 THE COURT: Thank you, sir.
10 Members of the jury, we will take the morning recess at
11 this time. Do not discuss the case among yourselves while you
12 are out, please.
13 (The jury left the courtroom.)
14 THE COURT: Mr. Conrad, Mr. Walker how much more do you
15 have?
16 MR. CONRAD: One witness.
17 THE COURT: One more witness.
18 MR. LAUGHRUN: Judge, if I may, I'd like to put
19 something on the record if I may. We had several bench
20 conferences. Judge, first the government called Brian Ard about
21 a defendant being terminated for sexual harassment, and that was
22 the only purpose they called him. We would object, ask the
23 Court to strike his testimony, move for a mistrial and ask the
24 Court to impose a life sentence, strike his testimony in the
25 alternative because that has nothing to do with what was offered
951
1 by the defense in its case in chief.
2 We would also renew that with regard to Ms. Williams,
3 that there was absolutely nothing she testified to, Judge, that
4 was offered in rebuttal. Your Honor will recall her testimony.
5 We would move again for a mistrial, Judge, with regard to Joanna
6 Baldwin due to the fact that she has through the government's
7 efforts injected race into this matter. The jury is composed
8 entirely of whites, the defendant is African-American, the
9 witness was white. We would again move for a mistrial, would
10 ask Your Honor to impose a life sentence, in the alternative to
11 strike her testimony as being totally irrelevant to the
12 defense's presentation.
13 And also, Judge, with regard to Thad Johnson, who is
14 probably one of best probation officers over there in the state,
15 has nothing to do with what we offered in case in chief. And
16 the government has stricken from its death notice the low
17 rehabilitative factor. They did that last Friday. His
18 testimony had absolutely nothing to do with future
19 dangerousness, et cetera. It's merely brought to arouse the
20 passions of the jury to say, wow, while on probation, the
21 defendant did A, B, C and D and had nothing to do with what we
22 offered in our case in chief and ask Your Honor for a mistrial
23 on that matter and a life sentence, in the alternative to strike
24 his testimony, if Your Honor please journal.
25 THE COURT: Thank you, sir. Do you want to respond,
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1 Mr. Conrad?
2 MR. CONRAD: Your Honor, all the things Mr. Laughrun
3 objected to were matters we put in after the defense case which
4 involved the character of the defendant's. Our evidence was
5 offered to rebut that.
6 With respect to the injection of race into this matter,
7 Mr. Laughrun's question to Mr. Ard was, was he the only
8 African-American at Camelot Music store, and I objected on
9 relevance grounds to that. But that was his, he is the one that
10 injected race into this case. All that witness was testifying
11 to is what the defendant told her. And so she is entitled to
12 say what the defendant told her.
13 I would contend with respect to Mr. Johnson's testimony
14 it's highly probative, because we spent a week in here with
15 family members telling this jury that the defendant was at home
16 sitting on a bucket waiting for the police to arrest him for six
17 weeks. And Mr. Johnson's testimony is those same family members
18 and the defendant himself on previous occasions had indicated
19 that he was living at a residence when, in fact, he was living
20 in a completely different state. And it goes to their
21 credibility, and it's direct rebuttal evidence of matters
22 brought up into this trial by the defendant during his case in
23 chief.
24 MR. LAUGHRUN: Judge, if I may, were you finished Bob,
25 I'm sorry, I didn't mean to cut you off.
953
1 THE COURT: Are you finished, Mr. Conrad?
2 MR. CONRAD: Yes, sir.
3 MR. LAUGHRUN: Judge, the evidence was the warrant for
4 probation arrest was issued 12-15-95. We'd be happy to call
5 Mr. Johnson back, but the testimony from him, I think, will be
6 once a warrant for arrest of a probationer is issued, they do
7 nothing more. They don't go out there and try to serve it. The
8 evidence we offered was from April of 1996 until June of 1996,
9 that's when the defendant was home, quote, sitting on a bucket
10 waiting for the police to arrive. That's the testimony, sitting
11 in the area. There is no evidence from Mr. Johnson that he ever
12 went out there in April, May or June of 1995. And I can tell
13 you the policy is once a warrant for arrest for state probation
14 is issued, probation washes their hands of it and depends on law
15 enforcement to find the defendants.
16 THE COURT: All right.
17 MR. CONRAD: Your Honor, the fact that someone engaged
18 in similar conduct before is directly relevant to their
19 credibility when they say they -- whey they testify about the
20 same type of situation in the future. This family provided
21 cover for the defendant in the past to help him out on his
22 probation violations, and they came in here and testified as to
23 why it was that he was at home for the six weeks between April
24 and June. It's directly rebutting that testimony.
25 THE COURT: All right, thank you, sir. All of the
954
1 defendant's motions are denied. Recess until 11:10.
2 (Brief recess.)
3 THE COURT: Ready for the jury.
4 MR. CONRAD: Yes, sir.
5 THE COURT: Call the jury.
6 (The jury returned to the courtroom.).
7 THE COURT: They're supposed to be cooling it down for
8 us. All right Mr. Conrad.
9 MR. CONRAD: I had the witness Thad Johnson identify an
10 exhibit with no objection from the defendant, and I wish to move
11 admission now and ask to pass it to the jury, Government's
12 Exhibit 66.
13 THE COURT: 66?
14 MR. LAUGHRUN: That's correct, we have no objection.
15 THE COURT: Let it be admitted. Call your next witness.
16 MR. CONRAD: United States would call Dr. Scott Duncan.
17 DR. SCOTT DUNCAN
18 being first duly sworn, was examined and testified as follows:
19 DIRECT EXAMINATION
20 BY MR. CONRAD:
21 Q. Would you tell the jury your name?
22 A. Scott Duncan.
23 Q. Dr. Duncan, how are you employed?
24 A. I am the forensic coordinator, forensic psychology
25 coordinator at the United States Penitentiary in Atlanta,
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1 Georgia.
2 Q. How long have you been so employed?
3 A. In that particular position, I have been employed
4 approximately four and a half to five years.
5 Q. Prior to that what was your employment?
6 A. I have been with the federal Bureau of Prisons since the
7 28th of August, 1989. Within my employment with the Federal
8 Bureau of Prisons, I initially came on as a staff psychologist,
9 where I served in that capacity for about four months. And t