625
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, )
)
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 27th day of January, 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
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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: All right, my law clerk tells me that --
8 MR. WILLIAMS: The defendant is not here, Your Honor.
9 THE COURT: Do you want to bring something up, do you
10 need your client here for this?
11 MR. LAUGHRUN: Not for this, Judge, I don't believe.
12 THE COURT: I understand the marshals are running
13 behind, so go ahead, what is it you want to bring up?
14 MR. WILLIAMS: Judge, very briefly, we neglected during
15 the jury instruction conference to request that the Court give
16 the jury a definition of the word "spouse," and that definition
17 be that it means husband and wife. That's the request.
18 THE COURT: As a spouse, though, that's the way the
19 statute reads?
20 MR. WILLIAMS: As a spouse. And we ask that you give
21 the jury an instruction that the word "spouse" means husband or
22 wife.
23 THE COURT: That's going to confuse them, I think. As I
24 understand it, we have some legislative history on this thing.
25 The purpose of it was to keep roommates from being in this
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1 position. That's the way the statute reads, and that's the way
2 we are going to do it, exactly like it reads.
3 MR. WILLIAMS: I didn't want to argue it with the Court,
4 I just wanted to make that request respectfully.
5 THE COURT: All right, thank you, sir, appreciate that.
6 Now, we didn't say anything about time last night. I
7 think an hour apiece would be ample for both sides, more than
8 ample.
9 MR. WALKER: Yes, Your Honor.
10 THE COURT: Okay. One other thing, Ms. Grier, one of
11 the jurors as I understand it, if I'm telling this wrong, let me
12 know, says that she baby-sat for one of the policemen's
13 daughters, but she doesn't remember the name of the daughter or
14 never had anything to do with the policeman in five years, is
15 that right?
16 THE CLERK: Yes, it was in church years ago.
17 THE COURT: I just wanted to let you all know. I don't
18 even know who it was.
19 MR. WILLIAMS: What did you say?
20 THE COURT: One of the policemen -- one of the jurors,
21 number 7, said that she baby-sat with one of the policemen's
22 daughters who was a -- was he a witness here, Sammy?
23 THE CLERK: Yes.
24 THE COURT: But that she has not seen him, doesn't even
25 know his name, in five years, she just remembers sitting with
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1 one of the policemen's daughters.
2 MR. LAUGHRUN: No objection from us.
3 THE COURT: All right, thank you. Anything else?
4 MR. LAUGHRUN: Judge, the only thing, we have got our
5 exhibits ready to proffer to the jury this morning. If I could
6 go ahead and give them to the marshal, I'll be happy to do that
7 so when they come in, if he wants to -- or I can give them to
8 them at that time, whatever is Your Honor's preference. We
9 moved admission of these Friday afternoon late.
10 Also, Judge, we've been given the government's proffer
11 based on our discussion yesterday. I'm not sure, Your Honor has
12 probably read it. Maybe while the jury is out, we can discuss
13 that if that's acceptable to the government.
14 THE COURT: Okay. Anything else?
15 MR. CONRAD: No, sir.
16 THE COURT: Okay, ready for the jury?
17 MR. CONRAD: Yes, sir.
18 THE COURT: Okay, call the jury.
19 (The jury returned to the courtroom.)
20 THE COURT: Good morning, ladies and gentlemen. I hope
21 you enjoyed your day off. I'm glad it wasn't like this
22 yesterday. I hope none of you got too wet today.
23 First of all, I'm going to ask you, of course, it's been
24 since Friday since you were here, has anybody seen, heard or
25 read anything about this case or talked to anybody about the
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1 case, or has anybody tried to talk to them about the case?
2 (Jurors shake heads.)
3 THE COURT: Nobody has had any communication of any kind
4 with anybody about this case, is that my understanding?
5 (Jurors shake heads.)
6 THE COURT: Thank you very much. All right,
7 Mr. Laughrun.
8 MR. LAUGHRUN: Thank you, Judge Potter. Your Honor, the
9 defendant would offer at this time previously identified
10 exhibits, and for the record, they are numbers 1, 3, 4, 6, 7, 8,
11 10, 11, 12, 18, 23, 25, 24, 26 --
12 THE COURT: I had 16.
13 MR. LAUGHRUN: I have got 16 here, too, Judge Potter.
14 THE COURT: You say you do have 16?
15 MR. LAUGHRUN: I do have 16.
16 THE COURT: Okay, 16?
17 MR. LAUGHRUN: Yes, sir.
18 THE COURT: 24?
19 MR. LAUGHRUN: Yes, sir.
20 THE COURT: You want to offer those now?
21 MR. LAUGHRUN: If I may present those to the marshal to
22 pass to the jury.
23 THE COURT: Anything else from the defendant?
24 MR. LAUGHRUN: No, sir, the defense rests.
25 THE COURT: The defendant rests. Any rebuttal from the
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1 government?
2 MR. CONRAD: No, sir.
3 THE COURT: The government has rested, correct?
4 MR. CONRAD: Yes, sir.
5 THE COURT: Thank you. At this time, members of the
6 jury, we will have the final arguments. Now, I want you to
7 recall what I said to begin with, that the attorneys' statements
8 are not evidence. The only evidence you will consider in this
9 matter is the testimony you have heard and the exhibits which
10 have been admitted into evidence. However, listen closely to
11 these statements by the attorneys because it will help you in
12 your deliberations to tie together the pieces of information and
13 the evidence that came in during the trial. Just do not
14 consider their statements to be evidence.
15 I think that's about all, are you ready? By the way,
16 the government, of course, has the burden of proof, and
17 therefore, has the opening and closing arguments and statements
18 in this case. Mr. Walker?
19 MR. WALKER: Thank you, Your Honor.
20 (Pause.)
21 Members of the jury, if I could get you to remember one
22 thing that I hope that you will take back with you into the jury
23 room as you begin your deliberations in this case, it is that
24 justice does not get done on its own, justice does not get done
25 on its own. It takes a commitment, I submit to you, it takes a
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1 commitment from you to find the truth. Justice requires of you
2 that you do your duty, and I am asking you today to do justice
3 in this case.
4 It has been said on many occasions that all crimes, even
5 the smallest, the most insignificant of crimes, speak for,
6 request, ask for justice, even the smallest crimes ask for
7 justice. But I submit to you that the crime of murder is
8 different. You see, the crime of murder doesn't simply ask for
9 justice or request justice, the crime of murder cries out for
10 justice. And the reason the crime of murder cries out for
11 justice is because it cries out from the grave. And in this
12 case, there are two graves, and in this case, there are two
13 voices. They are the voices of Donnie Allen and the voices --
14 the voice of Robin Williams. And they cry out to you, and I
15 submit that their voices are louder and clearer than my voice,
16 their voices ask you for justice.
17 I cannot recreate in this case, really recreate in this
18 case the horror and the pain that this defendant has caused.
19 Mr. Conrad and I can call witnesses. We can put them on the
20 witness stand. They can be sworn. They can tell you the
21 truth. They can tell you what they saw. They can tell you what
22 they heard. But in the stillness of this place, in the
23 sacredness of this room, really, can you see the defendant and
24 what he did? What I'm asking you not to see him as he appears
25 to you today. No, I'm asking you to see him as Donnie Allen saw
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1 him. I'm asking to you see him as Robin Williams saw him.
2 I believe the Judge is going to instruct you on the law
3 in this case, and if Judge Potter tells you something, you can
4 be sure that you have to follow it and that it will be the law,
5 but with your permission I am going to go through each count,
6 briefly, of the indictment and summarize what I believe to be
7 the overwhelming evidence of guilt as to each and every single
8 charge in the indictment against this defendant.
9 Count 1 charges the defendant with interstate domestic
10 violence. For you the jury to find the defendant guilty of that
11 offense, you have to find that at the time of the offense
12 alleged in the indictment, meaning at the time of the fire
13 bombing, that the defendant and Robin Williams were or had been
14 intimate partners, were or had been intimate partners. The
15 Judge will tell that you the definition of intimate partner
16 includes a person who cohabits or has cohabited with the
17 abuser. There is no question in this case that these two people
18 at the beginning of this relationship, at least Robin Williams
19 was, in love, and she wanted to start her life outside of her
20 home with the defendant. And they moved in together, there is
21 no question about that, you should have no doubt about that
22 issue in this case.
23 The government has also proven to you that at the time
24 the defendant left Charlotte and drove to Roanoke to commit that
25 fire bombing, that at the time he did that, he had the intent to
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1 kill Robin Williams. Well, how do you know that? Because each
2 of you have common sense, and remember when Benjamin Greene was
3 testifying and he said that Robin was on the phone and that he
4 kept hearing her on the phone. And then you remember what
5 Mrs. Williams told you about how he would call her. And then
6 remember what the defendant's statement was through Steve
7 Austin. He said he heard a voice on the other end of the line
8 and he heard a man's voice in Robin Williams' apartment. I
9 submit to you when he heard Bennie Greene's voice in Robin's
10 apartment, the fuse was lit, and at that point he had the intent
11 to kill her. And my, what a method he used, what a method he
12 used.
13 It is obvious from the fire bombing that she experienced
14 serious bodily injury. You have seen those autopsy photographs,
15 and I want to show you this one of her arm. This, ladies and
16 gentlemen, I submit to you is serious bodily injury, and you
17 should have no question of the defendant's guilt in Count 1 of
18 the indictment.
19 Count 2 charges the defendant with the use and carrying
20 of a firearm during the commission of that fire bombing
21 incident. If you find the defendant is guilty of Count 1, and
22 if you find that during the commission of Count 1 that he used a
23 firearm, then he is also guilty of Count 2. And pay close
24 attention to what the Judge is going to tell you about the
25 definition of a firearm. It not only includes this shotgun over
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1 here, this sawed-off murder weapon shotgun that the defendant
2 later used, but the definition of a firearm also includes any
3 destructive device. And a destructive device is described as
4 any incendiary, bomb, grenade, rocket, missile, mine or device
5 similar to any of these devices. Remember what the expert from
6 Roanoke told you? That a Molotov of cocktail is a destructive
7 device, and the Judge is going to tell you that a destructive
8 device is a firearm. And so when the defendant went and bombed
9 Robin Williams' apartment, he had a firearm with him, that
10 Molotov cocktail, and he is also guilty of Count 2.
11 Count 3 charges the defendant with use of fire or
12 explosives to commit a felony. The evidence in this case is
13 overwhelming that the method this defendant chose to try the
14 kill Robin Williams was fire. You think about that when you go
15 back to deliberate in this case. That was the method he first
16 chose to kill Robin Williams was fire. He is guilty of Count
17 3.
18 Count 4 charges the defendant with false statement to a
19 firearms dealer. The government has to prove to you three
20 things: that the defendant made a false statement while
21 acquiring a firearm from a licensed dealer. Mr. Freshour from
22 the pawn shop and the documents we introduced from the pawn shop
23 show you that the pawn shop is a licensed firearms dealer. The
24 government also has to prove to you that the defendant made a
25 statement to that firearms dealer that he knew to be false. And
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1 thirdly, that the statement was intended or was likely to
2 deceive Mr. Freshour about a material fact which would affect
3 the legality of the sale to the defendant. There is no question
4 about that. This defendant lied about his identity, this
5 defendant lied about his felony status, this defendant lied
6 about being a fugitive from justice at the time he bought those
7 two shotguns. And Mr. Freshour told you that if he had known
8 that, he would not have sold the firearm to the defendant.
9 There is no question about the defendant's guilt to Count 4.
10 Count 5 charges the defendant with making a firearm, and
11 the Judge is going to instruct you that the term making or made
12 a firearm includes the altering of the firearm by sawing off the
13 barrel. Mr. Freshour told you that at the time he sold this
14 weapon to the defendant, it was not sawed off. So the sawing
15 off of that barrel to the length that Mr. Nordoff, the gun
16 expert, told you about is the altering, the illegal altering of
17 that firearm. There is no question of the defendant's guilt to
18 that charge.
19 Count 6 charges the defendant with possession of a
20 firearm by a convicted felon. By stipulation, you know that the
21 defendant is a convicted felon. No civil rights had been
22 restored for him to legally possess this firearm. And on the
23 date in question when he killed Donnie Allen and he killed Robin
24 Williams, he was possessing that firearm illegally as a
25 convicted felon.
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1 Count 7 is the carjacking count. The government has to
2 prove to you four things in Count 7, and I believe the Judge
3 will tell you the government has to prove that the defendant
4 intentionally took from Donnie Allen his Prelude, a motor
5 vehicle, that the motor vehicle had been transported in
6 interstate or foreign commerce, that the defendant did so by
7 means of force and violence and intimidation, and that the
8 defendant intended to cause death or serious bodily harm. There
9 is no question of the intent, the defendant's intent to take
10 Donnie Allen's car. That's been proven beyond any doubt.
11 There is no question concerning where that motor vehicle
12 was manufactured. We know it was manufactured outside of the
13 State of North Carolina, and at some time during in that car's
14 history, we don't have to prove when, but by virtue of the fact
15 that it was made somewhere else, by virtue of that fact alone,
16 at some point that car had to have travelled through interstate
17 or foreign commerce to get to North Carolina. We have proven
18 that point beyond any doubt.
19 Did the defendant take that vehicle by means of force
20 and violence and intimidation? Did he do so intending to cause
21 death or serious bodily harm? You betcha he did. His goal was
22 to kill so that he could kill again. He is guilty of Count 7.
23 Count 8 charges again the defendant with the use of a
24 firearm during a crime of violence resulting in death. If you
25 find that the defendant committed and is guilty of Count 7, the
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1 carjacking count, and you find that he used this firearm, this
2 shotgun during the commission of that offense, then he is also
3 guilty of Count 8 and the government must also prove to you that
4 such murder was committed without legal justification, with
5 malice aforethought and with premeditation. The Judge will tell
6 you that malice aforethought means to either kill another person
7 deliberately and intentionally or to act with callous and wanton
8 disregard for human life. The government does not have to prove
9 to you that the defendant hated or felt ill will towards Donnie
10 Allen. That is malice in the common sense of the word, but that
11 is not malice in the legal sense of the word.
12 I submit to you that what the defendant did in this
13 case, ordering Donnie Allen out at gunpoint, marching him across
14 the road into the woods to a concrete drainage ditch area, and
15 firing three shots at him from a distance of less than from me
16 to the front row of the jury is malice, it's intentional, it's
17 premeditated, cold-blooded murder.
18 After the defendant took Donnie Allen's car, he knew
19 that car to be stolen and he took it into a different state. By
20 virtue of that, he is guilty of Count 9 in the indictment.
21 Briefly let me summarize for you Counts 10 and 11.
22 Count 10 is also an interstate domestic violence count, and the
23 government has to prove that at the time that he killed Robin
24 Williams, that the defendant and Williams were or had been
25 intimate partners. And again, listen to the Judge's definition
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1 of what constitutes an intimate partner. The evidence in the
2 case is overwhelming that they were intimate partners.
3 Mrs. Williams told you about how much Robin loved the defendant,
4 and I submit to you that they moved in together because they
5 were intimate partners. They began their lives together. They
6 cohabited together for almost a year. That evidence is clear in
7 this case.
8 At the time the defendant killed Donnie Allen and drove
9 Donnie Allen's car into Virginia, did he have the intent as he
10 went from North Carolina to Virginia to kill Robin Williams?
11 Absolutely, he did. That was his plan. That's why he packed
12 this gym bag and those tools of death and went out and waited at
13 that intersection, so that he could kill and then kill again.
14 Lastly, the government has charged in Count 11 that the
15 defendant used a firearm during the commission of Count 10. In
16 other words, if you find that when he committed Count 10 that he
17 used this firearm that I'm pointing to, then he is also guilty
18 of Count 11, and that he did so with premeditation and with
19 malice aforethought. That evidence should be clear to you from
20 the definition of malice.
21 I submit to you, ladies and gentlemen, that the fire
22 bombing incident only whetted this defendant's appetite for
23 blood. It only increased his intent to cause the death of Robin
24 Williams. I cannot on behalf of the United States of America
25 tell you exactly what Donnie Allen was thinking that night. I
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1 can't do it. We can guess pretty closely probably. He had met
2 this girl at Coyote Joe's. Perhaps he was in a good mood. He
3 was going home, minding his own business. There was work to be
4 done the next day. There was a wedding to attend the next day.
5 He did not think, however, could not have known what thing
6 awaited him at the intersection of Morris Field Drive and Billy
7 Graham Parkway.
8 The randomness of this killing. I can't tell you
9 exactly what he thought as he stopped for that red light and
10 this defendant, this defendant approached him with that
11 sawed-off shotgun, ordered him out of car. What did he think at
12 that moment? Please don't kill me. Marched him down into those
13 woods like he was some kind of animal, this flashlight taped to
14 the barrel of that gun. What did he think about? We know what
15 the defendant didn't think about. He didn't care. He didn't
16 care. He didn't care. He could care less.
17 See, this case is not about a girl in Roanoke, it is,
18 but it is about so much more about that. This case is about
19 control, and the defendant when he doesn't get his way. You
20 think about that when you go into the jury room. This is a
21 defendant who will kill to get what he wants. What were Robin
22 Williams' last thoughts? She was awakened that morning. She
23 came down the steps. Mrs. Williams was already downstairs. She
24 said, what is it, mama, what is it? Mrs. Williams turned to her
25 daughter, her only daughter, and said, I don't know, baby, it
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1 must be Mark, it must be Mark. What do I do, mama, what do I
2 do? I don't know, baby, just run, just run. And this
3 defendant, this so-called remorseful defendant, having travelled
4 three hours to Roanoke, three hours to Roanoke, Virginia, killed
5 again, killed again, reloaded after he killed Donnie Allen,
6 after he pumped those three shots into Donnie Allen's body.
7 These pictures tell so much about that awful killing of
8 Donnie Allen. Didn't have to kill Donnie Allen, didn't have to
9 kill him. Cold-blooded murder. Then he hunted down Robin
10 Williams. She fled her house, she fell, she stumbled, she got
11 up, she fell, she stumbled, she is running, she is in hysterics,
12 begging for her life. The defendant didn't care. This
13 so-called remorseful defendant didn't care, killed her, killed
14 her in front of her own mother.
15 You know, the reason I submit to you that he returned
16 this shotgun, the first shotgun, remember he didn't tell anybody
17 about that, didn't tell any investigator about that. The reason
18 he returned that shotgun is because that shotgun is a pump
19 shotgun, and there is no way you can tape a flashlight the way
20 he taped it to this gun on this pump shotgun, you can't do it.
21 But this defendant, when asked about the gun in this statement,
22 this statement, this so-called confession, isn't worth the paper
23 it's written on, said to Investigator Rice, I bought the shotgun
24 for protection of the house because we didn't have any
25 protection, and if you ever know anything about the house here
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1 in Charlotte we stayed in has been broken into numerous times,
2 I've been shot in that house that had varmits and snakes around
3 the house, that's the reason I bought the gun. Looked right at
4 Investigator Rice and lied through his teeth.
5 After he committed the murder, he goes into a different
6 state. He goes into the State of Tennessee, where he steals a
7 license plate. Why does he do that? To avoid law enforcement,
8 that's why he does that. Why did he have extra shells with
9 him? I submit to you because he was ready to do battle if he
10 got stopped along the way. That's what the evidence shows in
11 this case. This is the defendant who reduced Donnie Allen to
12 this (indicating). This is the defendant who reduced Robin
13 Williams to this (indicating). He is guilty as the day is long
14 of each and every count in the indictment.
15 A wise man once said a long time ago that all that is
16 necessary for evil to flourish is for good men and women to do
17 nothing. I'm asking you today to do something, to do justice in
18 this case, to see this case for what it is, to see this
19 defendant for who he really is and what he did, and to find the
20 defendant guilty of every count in the indictment. Thank you.
21 THE COURT: All right, Mr. Laughrun or Mr. Williams.
22 MR. LAUGHRUN: How do you follow something like that?
23 How do you stand up here before 12 people and follow that
24 closing argument? That's tough, and whatever I say is
25 inadequate and I apologize for that. Paul Williams said
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1 something to you last Wednesday when he got up here at this very
2 podium, shaking just like I am right now because this is tough,
3 and he said, this is a domestic tragedy, and it is, and it was,
4 and it will be a domestic tragedy until we are no longer on this
5 earth. And he said it was a triangle of tragedy that Donnie
6 Allen unfortunately got swept up in, and what Paul said last
7 week is true and you have seen it played out last Wednesday,
8 Thursday and Friday. And the saddest part of all is that it
9 didn't have to happen.
10 That tragedy, triangle of tragedy was compounded by the
11 negligence of mine and your police department. That's not an
12 excuse, folks, for what happened, that's not an explanation or a
13 reason, but you need to know, as Paul Harvey says, the rest of
14 the story. And the rest of the story is that you've got in your
15 hands now an exhibit that says Mark's house doesn't exist. They
16 came there 25 times before this incident.
17 Now, does that excuse the conduct? Absolutely not, and
18 we we're offering any excuses for you. Thomas Walker said a few
19 minutes ago that Judge Potter is going to tell you what the law
20 is, and he's the authority, he's the senior judge in this
21 district. And he is going to tell you what the law is, not what
22 I say it is, what Paul Williams, what Thomas Walker, what Bob
23 Conrad says it is, and he's going to tell that you burden of
24 proving this case sits at this table. They have the burden of
25 proof throughout this case. It's the highest burden in the free
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1 world, beyond a reasonable doubt. And why that's important,
2 members of the jury, is you have got to look at all of the
3 evidence in the bill of indictment and decide does it fit or
4 does it not. And you can't let your emotions and the tragedy
5 and the loss that these folks suffer every day, you can't let
6 that fill in any blanks in some of the counts that are there.
7 You heard 42 government witnesses. The strongest
8 witness you heard for the United States sits beside Paul
9 Williams right now. Thomas Williams threw the confession up and
10 said, it's not worth the paper it's printed on. Then, folks,
11 why did they go through two complete statements of the
12 defendant? He was truthful, he was detailed, he was accurate,
13 and everything he told the government in that statement of any
14 consequence is borne out in this semicircle right there. He
15 gave them details that for the last two and a half days, the
16 government went back and corroborated details.
17 So saying that paper is not worth its weight or not
18 printed, listen to the evidence, remember those statements. And
19 everything he told Tony Rice, everything he told J.M. Sanders,
20 the government has taken great pains to go through and verify
21 and document and research and catalogue, and it's all in
22 evidence here, what Mark Barnette told these officers.
23 Paul Williams said last week, he said, you know, we are
24 not going to contest much of the government's evidence, and we
25 didn't, very few objections you've heard. How many times did
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1 Mr. Williams and I stand up and say, no questions, Your Honor,
2 no questions. Our job, folks, is to defend as Paul said, but
3 it's not to play a shell game with you, it's not to disguise
4 things, it's not to use mirrors and say what's black is white
5 and what's white is black. That's not our job. Our job is to
6 show you what happened from our point of view, and we have, and
7 we have tried to in the last two and a half days.
8 You know, last Wednesday morning Sammy Grier stood and
9 swore you in as a juror, and she said basically your duty is to
10 try the issues fairly and impartially. And all 16 of you could
11 have gotten out of jury duty if you wanted to, you could have
12 said the right buzz words or the right phrase not to be here.
13 It's an inconvenience on you, it's taken away from your personal
14 time and your professional time, it's costing you income, and
15 you are doing your duty by being here.
16 Now, part of that duty is to participate as Paul said on
17 Wednesday in the process, listen to all of the evidence, decide
18 what weight, if any, you think it deserves and not to decide
19 this case on sympathy, hatred, ill will, malice, spite, revenge,
20 because if you decide it on sympathy for the Allen and Williams
21 families, don't leave the jury box, you vote right here. But
22 you can't do that. His Honor is going to tell you you can't do
23 that, because that's not part of the process that everybody in
24 the courtroom is going through. It's not about sympathy, it's
25 not about empathy, the natural, heartfelt empathy for the
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1 victims' families, and if you don't have that, you are not
2 human. And you can't, just don't leave the box if you decide it
3 on that issue.
4 You know, without Mark's statements, it's a tougher case
5 for the government. He has helped him get over that -- most of
6 the hurdle, not all of it. And as Paul told you, we are not
7 going to contest all of the evidence, some of the evidence you
8 need to hear about, some of the discrepancies in the evidence.
9 Let's talk about this intimate partner definition. Let me give
10 you the complete definition His Honor is going to tell you.
11 He's going to tell you that an intimate partner is a spouse,
12 which doesn't apply here, a former spouse, which doesn't apply
13 here, a person who shares a child with the abuser, which doesn't
14 apply here, and a person who cohabits or has cohabited with the
15 abuser as a spouse.
16 You know what spouse means, wedlock, husband and wife.
17 There is no evidence of that in this case, folks, and why is
18 that important? It's important because Counts 1 and 10 that
19 Mr. Walker went over require that you as a jury, the standard of
20 proof we talked about, beyond a reasonable doubt, the highest
21 burden there is in the free world, find unanimously that they
22 meet that definition, and folks, they don't. And you can't
23 climb the reasonable doubt ladder and say, well, he shouldn't
24 have done it, no question. The victim's family has suffered
25 tragic losses, no question, the evidence is 100 percent to
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1 that. You can't leapfrog Counts 1 and 10 and say, well, it may
2 not meet the legal definition, but I think he ought to be guilty
3 of that. You can't do that, folks. You are violating your duty
4 as a juror if you do that. Don't do that.
5 20 days before the fire incident, Mark had come back to
6 Charlotte. 52 days later, the homicide took place. The
7 intimate spouse counts don't apply, folks, the intimate partner
8 counts don't apply because the Congress has not seen fit to
9 define this incident. And you can't make that leapfrog and say,
10 well, they should have. You have got to follow the law as Judge
11 Potter gives it to you, whether you like it or not. And it
12 takes courage to walk out of that jury room and say those two
13 counts don't apply, and they don't.
14 In Counts 8 and 11, the government has alleged
15 willfully, deliberately, maliciously, premeditation with
16 deliberation committed two homicides. Listen to what Judge
17 Potter tells you about premeditation and deliberation. Quote, a
18 killing is premeditated when it is the result of planning or
19 deliberation. Amount of time depends on the circumstances and
20 the person. You must consider all of the facts and
21 circumstances.
22 Now, if there was so much premeditation and deliberation
23 in Mark Barnette's mind, ask yourself the following: Why in the
24 world did he buy a firearm that could be traced? Sure, he used
25 a false name, but he had the serial number. Why didn't he have
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1 an escape plan? The evidence was that after Robin's homicide,
2 he drove to Tennessee and you heard what happened there. Why
3 didn't he wear a mask? All of this planning and premeditation
4 the government's alleged, why did he come back to Charlotte,
5 North Carolina, go to his mom's house, have the police or FBI
6 call and say, come get him, he is here. If he's got all of this
7 planning and premeditation, they couldn't find him as a result
8 of the fire bombing, and there is no evidence that they would
9 have found him without him coming to turn himself in. Then why
10 did he give such detailed statements to the police if he has got
11 this master plan? Why did he not only tell them and draw a
12 diagram where Mr. Allen's body was? But he took them there.
13 Does that sound like someone who's thinking through everything,
14 premeditating, deliberating? And folks, you cannot fill in the
15 gaps of that with emotion, with sympathy, with sorrow to a sage,
16 you can't do that, because the law says you can't and you
17 violate your oath as a juror if you do. The emotions can't play
18 any part in your deliberations.
19 Now, Mark said some statements to Investigator Tony Rice
20 on June 26th, why did you shoot her, talking about Robin, and he
21 said, I'm still trying to find that out, I wanted to die, I
22 wanted to kill myself and I wanted her to be with me, just one
23 part of me, I was mad, throughout out our relationship, we'd
24 been together for two years and I had a lot of questions I
25 wanted to know, I don't know why. He told Mike Sanders about
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1 Donnie Allen, I don't know how many times I shot him, I was
2 scared, I didn't mean to hurt him, I knew he was hurt.
3 Premeditation and deliberation, it's not there, folks, and
4 again, you can't make the leap of faith the government wants you
5 to because of this triangle of tragedy Paul Williams talked
6 about better than I last Thursday and played out for you.
7 Two weeks ago, you told us you could all be fair. We
8 take you at your word for that. You were chosen out of 300
9 people, 16 of you. If you violate your oath, folks, I'm not
10 going to know about it, the government won't know about it, Mark
11 won't know about it, Judge Potter won't know about it, but you
12 will, you will. And your duty is not to rush to judgment, your
13 duty is to look and say, did my government meet all of the
14 elements beyond a reasonable doubt in this case, and nowhere on
15 those elements are you going to hear compassion, sorrow,
16 empathy, revenge, hatred, spite, bias, prejudice. Those aren't
17 in the instructions at all, except for the Judge to tell you
18 that you can't base your verdict on that.
19 Do what you think is fair in this case. Do what you
20 think is right as your duty as a juror, and you will have done
21 your job in this case. Thank you.
22 THE COURT: Mr. Walker, any rebuttal?
23 MR. WALKER: Thank you, Your Honor.
24 I have been shot in the house that had varmits and
25 snakes around the house, that's the reason I bought that gun.
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1 That's a truthful, detailed statement. Later on in that same
2 interview, Investigator Rice asked the defendant, why the month
3 not talking to each other, talking about the month when she was
4 in the burn unit in Charlottesville, Virginia undergoing skin
5 grafts. At the same time she was going through that, the
6 defendant was in an interview room with Investigator Rice
7 lying. Why the month not talking to each other? I can't call
8 her, I don't have any money, I have to get a calling card to
9 call her and I don't have any money, I didn't have any money.
10 That's why he -- that's not why he didn't call her. He didn't
11 call her because she is in hospital, that's why he didn't call
12 her. Is that a truthful statement, a detailed statement?
13 Mr. Laughrun, he has got to argue something, and he
14 said, the government had to have the defendant's statement. No,
15 we didn't, no, we didn't. There were eyewitnesses in Roanoke to
16 this murder, to that tragedy. They testified in this case. We
17 put on expert ballistic evidence that this gun was used to kill
18 Robin Williams and used to kill Donnie Allen. The expert told
19 you that the shells found at both murder scenes were fired from
20 this very gun, and we have put into evidence the evidence of the
21 defendant's fingerprint on Donnie Allen's Honda Prelude. So we
22 didn't need any statement, the statement is in evidence for you
23 to see and you need to look at what he said.
24 Mr. Williams stands up on opening statement and says,
25 this is a domestic tragedy. Mr. Laughrun stands up during part
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1 of his closing argument and says, this is a domestic triangle
2 tragedy, but then on the other hand argues to you, well, it's
3 not really a domestic case because they weren't married, they
4 weren't spouses. The Judge is going to tell you that they
5 didn't have to be married. The Judge is going to tell you the
6 law in this case, and if there was something wrong with any of
7 the charges in the indictment, you wouldn't be hearing about
8 them.
9 MR. LAUGHRUN: Objection.
10 THE COURT: Overruled.
11 MR. WALKER: So you need to listen to what the Judge
12 tells you about the law in this case.
13 The last thing I want to say to you is this nonsense
14 about the defendant being at home waiting to be arrested. Do
15 you believe that? Is that why he meets Steve Austin across town
16 at McDonald's, if he is at home on West Boulevard but he meets
17 his best friend across town at McDonald's? He's at home waiting
18 to be arrested. That's not true, that's not what happened in
19 this case. Your common sense tells you that and the evidence
20 tells you that that's not what happened in this case.
21 We know that's true, because we know he was in Roanoke
22 during that period of time -- we know two things. One is he was
23 in Roanoke during that period of time stalking Robin, leaving
24 notes on her car. He sure wasn't at West Boulevard waiting for
25 the police to arrest him when that happened. And the second
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1 thing that we know is that the defendant doesn't tell the truth
2 about where he was. Why the month not talking to her? Did he
3 tell Investigator Rice, well, I went to Roanoke, I tried to talk
4 to her, I left some notes on her car? No, because he doesn't
5 know what Investigator Rice knows, so he is hedging his bets at
6 that point. You need to think about these so-called
7 confessions.
8 There is no question in this case, there has never been
9 a case where the premeditation was more clear, where the
10 deliberation was more clear. Sure, there is always things that
11 a person could do, but that's not what the law is. He clearly
12 intended to kill whoever approached that traffic stop light. A
13 person doesn't take a travel bag with them and go to the trouble
14 of obtaining possession of these bolt cutters to cut the phone
15 lines, go to the trouble of obtaining possession of a crowbar,
16 go to the trouble of taping a flashlight onto the barrel of a
17 shotgun with a red lens unless he has the intent to kill, and
18 anybody who tells you anything different, you ought to question
19 what they have to say.
20 This case is about premeditation and deliberation,
21 overwhelming premeditation and deliberation. Listen to the
22 Judge as he tells you what the law is in this case, apply the
23 evidence as you heard it from the witness stand and through
24 these exhibits, and I am confident that you will do your duty
25 and find this defendant guilty as charged. Thank you.
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1 THE COURT: Members of the jury, before we start into
2 the jury instructions, we are going to give you a recess because
3 the jury instructions are rather long. And I know you don't
4 want to stop right in the middle of them, so let's go ahead and
5 take a recess at this time, please. Do not discuss the case
6 among yourselves, it's not over yet, don't talk about it, and
7 we'll come back out. Thank you.
8 (The jury left the courtroom.)
9 THE COURT: Gentlemen, I want to point out one thing
10 about this section of the statute which there's been so much
11 controversy about. Legislative history indicates at the
12 conclusion that domestic relationships in this area should be
13 broadly interpreted to include relationships between spouses,
14 former spouses, cohabitors, former cohabitors, partners or
15 former partners, and persons in a dating, courtship or intimate
16 relationship. Also Title 18, Section 921(A)(32) states the
17 term "intimate partner" means with respect to a person the
18 spouse of the person, a former spouse of the person, an
19 individual who is the parent of a child of the person, and an
20 individual who cohabits or has cohabited with the person. I
21 think that's where we stand.
22 MR. LAUGHRUN: Judge, that's not what you told us you
23 were going to instruct the jury on.
24 THE COURT: I know that, that's the reason I'm pointing
25 it out to you right you.
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1 MR. LAUGHRUN: Judge, I don't think it's fair for us now
2 to make an argument.
3 THE COURT: All right, sir. I'm going ahead and do what
4 I did before, but I just want to point out to you what is in the
5 statute. I didn't find out about it until this morning,
6 Mr. Laughrun.
7 MR. LAUGHRUN: Right. Judge, one thing, too, it appears
8 that juror number 8, Amanda Edwards, had our exhibits.
9 THE COURT: What happened to them?
10 MR. LAUGHRUN: She had them. I don't think the jury is
11 through looking at them.
12 THE COURT: She doesn't have them now, does she?
13 MR. LAUGHRUN: I don't know, Judge, I think they are
14 sitting back in chair number 8. Before you give them your
15 instructions, so they can listen to you, would you let them
16 finish looking at the exhibits? I don't think they've all
17 finished looking at our exhibits, and I know they need to listen
18 to Your Honor's instructions.
19 THE COURT: We can do that. That's going to take a
20 little while, though, Mr. Laughrun.
21 MR. LAUGHRUN: Well, I think they are already on number
22 8. I think they worked around. I think juror number 8, Amanda
23 Edwards, has them. And I guess until they finish that, because
24 they need to listen to Your Honor's instructions more so than my
25 argument or Mr. Walker's argument.
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1 THE COURT: All right, we'll recess, then, for 10:35.
2 (Brief recess.)
3 THE COURT: Call the jury.
4 (The jury returned to the courtroom.)
5 THE COURT: Do you gentlemen have something you wanted
6 to bring up?
7 MR. LAUGHRUN: Exhibits, Your Honor.
8 THE COURT: Pardon? Do you have anything you want to
9 bring up right now?
10 All right, members of the jury, you've heard all of the
11 evidence --
12 MR. LAUGHRUN: Judge, may we approach?
13 THE COURT: Yes, sir.
14 (Bench conference not recorded.)
15 THE COURT: Members of the jury, the attorney wanted you
16 to look at the exhibits before we go any further. I think some
17 of you have and some of you haven't.
18 (Pause.)
19 THE COURT: Has everybody seen them?
20 (No response.)
21 THE COURT: If you want these during your deliberations,
22 you'll have an opportunity to look at them. Go ahead and look
23 at them now.
24 (Pause while jury reviews exhibits.)
25 THE COURT: All right, I believe everyone has seen the
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1 exhibits we were concerned with. You have heard all of the
2 evidence in the case and final arguments. If any of you do not
3 hear me while I am going over these instructions, just raise
4 your hand. Sometimes I get going and I forget about the fact
5 that I'm talking to you. I feel like I'm hollering up here.
6 This courtroom is kind of big. I don't want you to think I'm
7 hollering at you, but at the same time you have to hear what
8 we're saying. I will talk as loud as I can as long as I can
9 remember to do it, but if I forget, if I'm looking at this,
10 raise your hand and say something.
11 All right, you've heard all of the evidence as I say in
12 the case and final arguments. It now becomes my duty to
13 instruct you on the rules of law you must follow and apply the
14 law in arriving at your decision.
15 In any jury trial there are, in effect, two judges. I'm
16 one of them and you are the other. I'm the judge of the law and
17 the jury is the judge of the facts. That's what your concern
18 with is the facts in the case. It's my duty to preside over the
19 trial and to determine what evidence is admissible under the
20 laws for your consideration. It is also my duty at the end of
21 the trial to instruct you on the law applicable in this case.
22 Now, you, as jurors, are judges of the facts, and in
23 determining what actually happened in this case, that is, in
24 reaching your decision as to the facts, it is your sworn duty to
25 follow the law I am now in the process of defining it to you.
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1 You must follow all of my instructions as a whole. You
2 have no right to disregard or give special attention to any one
3 instruction, or to question the wisdom or correctness of any
4 rule that I may state to you. That is, you must not substitute
5 or follow your own notion or opinion as to what the law is or
6 ought to be. It is your duty to apply the law as I give it to
7 you, regardless of the consequences.
8 By the same token, it is also your duty to base your
9 verdict solely upon the testimony and evidence in the case
10 without prejudice or sympathy. That was the promise you made
11 and the oath you took before being accepted by the parties as
12 jurors in this case. They have a right to expect nothing less.
13 The defendant has been charged by the government with
14 violations of federal criminal law. The indictment is simply
15 the description of the charges made by the government against
16 the defendant and is not evidence of guilt. The law presumes
17 every defendant innocent. The presumption of innocence means
18 that the defendant starts the trial with a clean slate. In
19 other words, I instruct you that the defendant is presumed by
20 you to be innocent throughout the deliberations until such time,
21 if ever, you as the jury are satisfied that the government has
22 proved the defendant guilty beyond a reasonable doubt. Unless
23 you are satisfied beyond a reasonable doubt that the defendant
24 is guilty, presumption alone is sufficient to find the defendant
25 not guilty.
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1 The law does not require a defendant to prove his
2 innocence. The government has the burden of proving the
3 defendant guilty beyond a reasonable doubt, and if it fails to
4 do so, you must acquit the defendant.
5 While the government's burden of proof is a strict or
6 heavy burden, it is not necessary that the defendant's guilt be
7 proved beyond all possible doubt. It is only required that the
8 government's proof exclude any reasonable doubt concerning the
9 defendant's guilt.
10 Reasonable doubt means just what it says. It is a doubt
11 based upon reason and common sense. It is a -- its meaning is
12 no doubt self-evident an understood by you, and the Court will
13 not attempt to define that term further.
14 As I told you earlier, it is your duty to determine the
15 facts, and in so doing, you must consider only the evidence that
16 I have admitted into the case. You may not speculate on matters
17 not in evidence. The term "evidence" includes the sworn
18 testimony of the witnesses, any of the exhibits admitted into
19 the record, and any stipulations entered into by the parties.
20 Remember that any statements, objections or arguments
21 made by the lawyers are not evidence in the case. The function
22 of lawyers is to point out those things that are most
23 significant or most helpful to their side of the case, and in so
24 doing, to call your attention to certain facts or inferences
25 that might otherwise escape your notice. In the final analysis,
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1 however, it is your own recollection and interpretation of the
2 evidence that controls in the case. What the lawyers say is not
3 binding upon you. Also, anything you have seen or heard outside
4 the courtroom is not evidence and must be entirely disregarded.
5 During the trial, I sustained objections to certain
6 questions and exhibits. You must disregard those questions and
7 exhibits entirely. Do not speculate as to what the witness
8 would have said if permitted to answer the question or as to the
9 contents of an exhibit. Also, certain testimony or other
10 evidence has been ordered stricken from the record and you have
11 been instructed to disregard that evidence. Do not consider any
12 evidence or other evidence which has been stricken in reaching
13 your decision, and your verdict must be based solely on the
14 legal admissible evidence and testimony.
15 Let me emphasize that a lawyer's question is not
16 evidence. At times, a lawyer may have incorporated into a
17 question a statement that assumes certain facts to be true and
18 asked the witness if the statement was true. If the witness
19 does not answer or denies the truth of the statement, and if
20 there is no evidence in the record proving that the assumed fact
21 is true, then you may not consider the fact simply because it is
22 contained in the lawyer's question. On the other hand, if the
23 witness an adopts or agrees to the assumed facts in his answer,
24 then the witness may be considered to have testified to the
25 facts assumed in the question and his testimony is evidence of
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1 those facts.
2 Also, do not assume anything I may have said or done
3 during the trial that I have any opinion concerning any of the
4 issues in this case. Except for the instructions to you on the
5 law, you should disregard anything I may have said during the
6 trial in arriving at your own findings as to the facts.
7 Now, while you should consider only the evidence in the
8 case, you are permitted to draw such reasonable inferences from
9 the testimony and exhibits as you feel are justified in the
10 light of common experience. In other words, you may make
11 deductions and reach conclusions which reason and common sense
12 lead you to draw from the facts which have been established by
13 the testimony and evidence in the case.
14 You may consider either direct or circumstantial
15 evidence. Direct evidence is the testimony of one who asserts
16 actual knowledge of a fact such as an eyewitness.
17 Circumstantial evidence is a proof of chain of facts and
18 circumstances indicating either the guilt or innocence of the
19 defendant. You probably can't tell whether it's raining outside
20 or not with these blinds, but when you go outside, if the
21 streets are wet, it means it's been raining. That's
22 circumstantial evidence, simply put to you. The law makes no
23 distinction between the weight to be given to either direct or
24 circumstantial evidence. It requires only that you weigh all of
25 the evidence and be convinced of the defendant's guilt beyond a
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1 reasonable doubt before he is convicted.
2 Now, I'm going to go over the indictment with you count
3 by count and instruct you as to the law as it applies to each
4 count. You will have a copy of the bill of indictment with you
5 when you go back into the jury room, so it will not be necessary
6 for you to try to memorize exactly how the charges are laid out
7 while I speak.
8 You will note in the indictment the charges of the
9 offense was committed on or about a specified date. The
10 government does not have to prove that a crime was committed on
11 that exact date, so long as the government proves beyond a
12 reasonable doubt that the defendant committed the crime on a
13 date reasonably near the date stated in the indictment.
14 You are here to decide whether the government has proved
15 beyond a reasonable doubt that the defendant is guilty of the
16 crime charged. The defendant is not on trial for any act,
17 conduct or offense not alleged in the indictment. Neither are
18 you concerned with the guilt of any other person or persons not
19 on trial as a defendant in this case.
20 Now, the first count, Count number 1, reads that on or
21 about the 30th day of April, 1996 in Mecklenburg County, in the
22 Western District of North Carolina and in the Western District
23 of Virginia, the defendant, Aquilia Marcivicci Barnette, and as
24 I did before, I'm not going to repeat that name every time, you
25 know the name by now, I'm just going to refer to him as the
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1 defendant, did travel across a state line, that is, did
2 transport himself from Charlotte, North Carolina to Roanoke,
3 Virginia with the intent to injure, harass and intimidate an
4 intimate partner, Robin Williams, and in the course and as a
5 result of such travel intentionally committed a crime of
6 violence, that is, did fire bomb Robin Williams' occupied
7 apartment and an automobile parked in her driveway causing
8 bodily injury to her.
9 When you were here before for the jury instructions, the
10 preliminary injury instructions, I did not give you the statute
11 numbers. I'm going to do that now because I'm going to refer to
12 them in the instructions. But again, you don't have to remember
13 these because you will have the indictment back in the jury room
14 with you. That's in violation of Title 18, United States Code,
15 Sections 2261(a)(1) and 2261(b).
16 Now, 2261(a)(1) reads in pertinent part as follows: A
17 person who travels across a state line with the intent to
18 injure, harass or intimidate that person's spouse or intimate
19 partner, and who in the course of and as a result of such travel
20 intentionally commits a crime of violence and therefore causes
21 bodily injury to such spouse or intimate partner violates Title
22 18, United States Code, Section 2261(a)(1).
23 Now, the essential elements which the government must
24 prove beyond a reasonable doubt in Count number 1 are: Number
25 one, that at the time alleged in the indictment, the defendant
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1 and Robin Antoinette Williams were or had been intimate
2 partners; two, that the defendant traveled across a state line
3 with the intent to either injure, harass or intimidate Robin
4 Antoinette Williams; three, that during the course of and as a
5 result of the travel the defendant intentionally committed a
6 crime of violence; and four, thereby caused bodily injury to
7 Robin Antoinette Williams; and the defendant committed all such
8 acts knowingly, number 5, the defendant committed all such acts
9 knowingly and willfully.
10 Now, an "intimate partner" is described in the statute
11 or defined in the statute as including a spouse, a former
12 spouse, a person who shares a child in common with the abuser,
13 and a person who cohabits or has cohabited with the abuser as a
14 spouse.
15 Second element, the defendant traveled across a state
16 line, in this case from North Carolina to Virginia, with the
17 intent to either injure, harass or intimidate Robin Williams.
18 Those terms have their common, everyday meaning. In this case,
19 the government contends that the defendant crossed the state
20 line with the intent to injure his former intimate partner Robin
21 Williams. You must find beyond a reasonable doubt that the
22 defendant intended to injure Robin Williams at the time that he
23 across from North Carolina the Virginia.
24 Bodily injury means any act, except one done in
25 self-defense, that results in physical injury or sexual abuse.
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1 Moving on the second count, Count number 2, on or about
2 the 30th day of April, 1996 in Mecklenburg County, in the
3 Western District of North Carolina and in the Western District
4 of Virginia, the defendant knowingly used and carried a firearm,
5 that is, a destructive device consisting of a bottle filled with
6 flammable liquid during and in relation to a crime of violence
7 for which he may be prosecuted in a court of the United States,
8 that is, an act of interstate domestic violence, in violation of
9 Title 18, United States Code, Section 2261 as set forth in Count
10 number 1, in violation of Title 18, United States Code, Section
11 924(c)(1).
12 Now, Section 924(c)(1) reads in pertinent part as
13 follows: that whoever, during and in relation to any crime of
14 violence for which he may be prosecuted in a court of the United
15 States, uses or carries a firearm, that shall be a violation of
16 the statute.
17 For you to find the defendant guilty of the offense set
18 forth in Count 2 of the indictment, the government must prove
19 the following essential elements beyond a reasonable doubt:
20 first, that the defendant committed the crime of interstate
21 domestic violence as charged in Count 1 of the indictment for
22 which he may be prosecuted in a court of the United States. I
23 instruct you that an act of interstate domestic violence is a
24 crime of violence. Number two, that the defendant knowingly
25 used or carried a firearm, that is a destructive device, during
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1 and in relation to the defendant's commission of the crime
2 alleged in Count number 1 of the indictment.
3 You may find the defendant guilty of Count 2 if you find
4 him guilty as charged in Count 1, and that he knowingly used or
5 carried a firearm, that is a destructive device, in the
6 commission of that offense.
7 Now, the term "firearm" means any weapon that will or is
8 designed to or may readily be converted to expel a projectile by
9 the action of explosive. The term "firearm" also includes the
10 frame or receiver of any such weapon, or any firearm muffler or
11 firearm silencer, or destructive device.
12 A destructive device is any explosive, incendiary, bomb,
13 grenade, rocket, missle, mine, or device similar to any of the
14 devices described in the preceding clauses.
15 A destructive device includes any incendiary device, be
16 it a military-type weapon or homemade incendiary product, or
17 components thereof, the function of which is to ignite and
18 destroy property. It must be similar to an explosive or
19 incendiary device -- incendiary bomb, grenade, missile or
20 firearm, but need not be identical.
21 Any device composed of a combustible material capable of
22 producing sufficient heat to destroy property of any kind and
23 having components designed to ignite that combustible material
24 is under the laws an incendiary device similar to a fire or
25 incendiary bomb.
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1 Crime of violence means an offense that is a felony or
2 has been -- excuse me, or has an element the use, attempted use
3 or threatened use of physical force against the person or
4 property of another, or that by its nature involves a
5 substantial risk that physical force against the person or
6 property of another may be used in the course of committing the
7 offense. I instruct you that traveling across state lines with
8 the intent to injure and then firebombing an occupied apartment
9 if found beyond a reasonable doubt constitutes a crime of
10 violence.
11 Use during -- use means some active employment of the
12 firearm by the defendant, a use that makes the firearm, that is
13 a destructive device, an operative factor in relation to the
14 crime of violence.
15 Carry should be given its ordinary meaning and includes
16 to transport the firearm, that is a destructive device, on or
17 about his person or within his reach or in a vehicle in such a
18 way as it becomes immediately available.
19 Now, moving on to Count number 3, on or about the 30th
20 day of April, 1996, in Mecklenburg County in the Western
21 District of North Carolina and the Western District of Virginia,
22 the defendant, Aquilia Marcivicci Barnette, knowingly used and
23 carried fire and explosive materials, to commit an act of
24 interstate domestic violence in violation of Title 18, United
25 States Code, Section 2261, a felony prosecutable in a court of
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1 the United States, in violation of Title 18, United States Code,
2 Section 844(h)(1). In other words, Count number 3 charges a
3 violation of Title 18, United States Code, Section 844(h)(1).
4 That statute reads in pertinent part that whoever uses fire or
5 an explosive or carries an explosive during the commission of
6 any felony may be prosecuted in a court of the United States,
7 and that would be a violation of the statute.
8 Now, you may find the defendant guilty of the offense
9 charged in Count 3 of the indictment -- for you to find the
10 defendant guilty of the offense charged in Count number 3 of the
11 indictment, the government must prove each of the following
12 essential elements beyond a reasonable doubt: first, that the
13 defendant committed the crime of interstate domestic violence, a
14 felony prosecutable in a court of the United States; second,
15 that the defendant knowingly used fire and explosive materials
16 or carried an explosive in the commission of the crime alleged
17 in Count number 1 of the indictment.
18 Now, you may find the defendant guilty of Count 3 if you
19 find him guilty as charged in Count number 1, and that he
20 knowingly used fire and explosive materials or carried an
21 explosive in the commission of that offense.
22 County number 4, moving on to Count number 4 of the
23 indictment, that reads as follows: that on or about 21st day of
24 May, 1996, in Mecklenburg County in the Western District of
25 North Carolina, the defendant, in connection with his
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1 acquisition of a firearm, a Winchester semiautomatic shotgun,
2 from Quik Pawn Shop, a licensed firearm dealer, knowingly made
3 false and fictitious statements which were likely to deceive
4 Quik Pawn Shop as to a fact material to the lawfulness of such
5 acquisition of said firearm by the defendant under chapter 44 of
6 Title 18, in that the defendant represented that he was Mario
7 Vonkeith Barnette and that he had not been convicted of a crime
8 punishable by imprisonment for a term exceeding one year, when
9 in fact, as the defendant then well knew, he was not Mario
10 Vonkeith Barnette and he had been so convicted. That's in
11 violation of Title 18, United States Code, Section 922(a)(6) and
12 924.
13 Now, Section 922(a)(6) of Title 18 reads in pertinent
14 part as follows: It shall be unlawful for any person in
15 connection with the acquisition of any firearm from a licensed
16 dealer to make any false or fictitious oral or written statement
17 intended or likely to deceive such dealer with respect to any
18 fact material to the lawfulness of the sale of such firearm.
19 Now, in order to convict the defendant or find him
20 guilty beyond a reasonable doubt of that offense, the government
21 must prove each of the following essential elements beyond a
22 reasonable doubt: first, that the defendant made a false
23 statement while acquiring a firearm from a licensed dealer;
24 second, that the defendant knew the statement was false; and
25 third, that the defendant was intended -- that the statement was
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1 intended or was likely to deceive about a material fact, that
2 is, one which would affect the legality of the sale to the
3 defendant.
4 A statement is "false or fictitious" if it was untrue
5 when made or was then known to be untrue by the person making
6 it.
7 A false statement is "likely to deceive" if the nature
8 of the statement, considering all of the surrounding
9 circumstances at the time that it is made, is such is that a
10 reasonable person of ordinary prudence would have been actually
11 deceived or misled.
12 Count number 5 of the indictment reads that between
13 May 21, 1996 and June 22, 1996, exact date unknown, in
14 Mecklenburg County within the Western District of North
15 Carolina, the defendant knowingly made a firearm, that is he did
16 saw off a portion of the barrel of a Winchester shotgun, without
17 complying with the provisions of the National Firearms Act
18 contained in Chapter 53 of Title 26 of the United States Code,
19 in violation of Title 26, United States Code, Sections 5821,
20 5822, 5861(f) and 5871.
21 Now, in order -- that statute reads as follows in
22 pertinent part, 5861(f), excuse me, Count 5, 5861(f) reads in
23 pertinent part as follows: that it shall be unlawful for any
24 person to make a firearm in violation of the provisions of this
25 chapter.
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1 Now, for you to find the defendant guilty of the offense
2 charged in Count 5, the government must prove each of the
3 following essential elements beyond a reasonable doubt: first,
4 that the defendant knowingly made a firearm as described in the
5 bill of indictment; second, that prior to making the firearm,
6 the defendant failed to obtain an approved application from the
7 Secretary of the Treasury or his delegate showing approval to
8 make and register the firearm as required in Title 18, Section
9 5822.
10 The term "make" includes manufacturing, other than one
11 qualified to engage in such business under Chapter 53 of Title
12 18, putting together, altering, any combination of these, or
13 otherwise producing a firearm.
14 The term "firearm" means any weapon that will or is
15 designed to or may readily be converted to expel a projectile by
16 the action of an explosive. The term "firearm" also includes
17 the frame or receiver of any such weapon, or any firearm muffler
18 or firearm silencer, or destructive device.
19 Count number 6 reads that on or about the 22nd day of
20 June, 1996, in Mecklenburg County within the Western District of
21 North Carolina, the defendant, having been convicted of a crime
22 punishable by imprisonment for a term exceeding one year, to
23 wit, in case number 76063 on September 20, 1994 in Mecklenburg
24 County Superior Court of the crime of felonious restraint, did
25 knowingly possess a firearm, that is a Winchester semiautomatic
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1 shotgun, which had been shipped and transported in interstate or
2 foreign commerce, in violation of Title 18, United States Code,
3 Section 922(g)(1) and Section 924.
4 Section 922(g)(1) in pertinent part reads as follows:
5 It shall be unlawful for any person who has been convicted in
6 any court of a crime punishable by imprisonment for a term
7 exceeding one year to knowingly ship or transport in interstate
8 or foreign commerce, or possess in or affecting commerce, any
9 firearm or ammunition, or to receive any firearm or ammunition
10 which had been shipped or transported in interstate or foreign
11 commerce.
12 Now, for the jury to find the defendant guilty of the
13 offense charged in Count 6 of the indictment, the government
14 must prove the following essential elements beyond a reasonable
15 doubt: first, that the defendant has been convicted in any
16 court of a crime punishable by imprisonment for a term exceeding
17 one year; second, that the conviction had not been expunged or
18 set aside, nor had the defendant had his civil rights restored;
19 third, that the defendant knowingly possessed the firearm
20 described in the indictment; and fourth, that such firearm had
21 been shipped in interstate or foreign commerce.
22 It is not necessary for the government to prove that the
23 defendant knew he was convicted, a convicted felon, or that he
24 knew the firearm had traveled in or affected commerce, nor is it
25 necessary to prove that the defendant knew he was prohibited
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1 from possessing a firearm, rather ignorance of the law is not a
2 defense to this charge.
3 The phrase "crime punishable by imprisonment for a term
4 exceeding one year" generally means a crime which is a felony.
5 The phrase does not include any state offense classified by the
6 laws of that state as a misdemeanor and punishable by a term of
7 imprisonment of two years or less and certain crimes concerning
8 the regulation of business practices.
9 I hereby instruct you that the crime of felonious
10 restraint is a crime in the State of North Carolina punishable
11 by imprisonment for a term exceeding one year as that phrase is
12 used in these instructions.
13 Now, the term "possess" means to exercise authority,
14 dominion or control over. Possession may be of two kinds,
15 actual possession and constructive possession. The person who
16 knowingly has direct physical control over a thing at a given
17 time is then in actual possession of it. A person who, although
18 not in actual possession, knowingly has both the power and the
19 intention at a given time to exercise dominion or control over a
20 thing, either directly or through another person or persons, is
21 then in constructive possession.
22 Possession may be sole or joint. If one person alone
23 has actual or constructive possession of a thing, possession is
24 sole. If two or more persons share actual or constructive
25 possession of a thing, possession is joint.
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1 You may find that the element of possession, as that
2 term is used in these instructions, is present if you find
3 beyond a reasonable doubt that the defendant had actual or
4 constructive possession, either alone or jointly with others.
5 Interstate commerce means commerce or travel between one
6 state, territory or possession of the United States and another
7 state, territory or possession of the United States, including
8 the District of Columbia.
9 The government may meet its burden of proof on the
10 question of being in or affecting commerce and, quote, shipped
11 or transported in interstate commerce by move to you beyond a
12 reasonable doubt that the firearm identified in the indictment,
13 at any time during its existence, had traveled across a state
14 boundary line.
15 Moving on to Count number 7, it reads in the indictment
16 that on or about June 22, 1996, in Mecklenburg County within the
17 Western District of North Carolina, the defendant, with intent
18 to cause death or serious bodily harm, did knowingly, willfully
19 and unlawfully take by force, violence and intimidation, that
20 is, he shot to death and took from the person of Donald Lee
21 Allen a motor vehicle which had been shipped, transported and
22 received in interstate commerce, that is, a 1994 Honda Prelude
23 vehicle, the identification number is in there, we won't get
24 into that, in violation of Title 18, United States Code, Section
25 2119(3).
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1 Now, that statute reads in pertinent part as follows,
2 that whoever, with the intent to cause death or serious bodily
3 harm takes a motor vehicle that has been transported, shipped or
4 received in interstate or foreign commerce from the person or
5 presence of another by force and violence or by intimidation has
6 violated this statute.
7 Now, for you to find the defendant guilty of the crime
8 charged in Count number 7 of the indictment, you must be
9 convinced that the government has proved each of the following
10 essential elements beyond a reasonable doubt: first, that the
11 defendant intentionally took from Donald Lee Allen the motor
12 vehicle described in the indictment; second, that the motor
13 vehicle had been transported in interstate or foreign commerce;
14 third, that the defendant did so by means of force and violence
15 and intimidation; and fourth, that the defendant intended to
16 cause the death or serious bodily harm.
17 Moving on to Count number 8, on or about the 22nd day of
18 June, 1996, in Mecklenburg County in the Western District of
19 North Carolina, the defendant knowingly used and carried a
20 firearm, that is, a sawed-off Winchester semiautomatic shotgun,
21 during and in relation to a crime of violence, for which he may
22 be prosecuted in a court of the United States, that is, the
23 carjacking set forth in Count 7 above, and in course of this
24 violation caused the death of Donald Lee Allen through the use
25 of a firearm, which killing is a murder as defined in Title 18,
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1 United States Code, Section 1111, in that the defendant, with
2 malice aforethought, did unlawfully kill Donald Lee Allen by
3 shooting him with the firearm willfully, deliberately,
4 maliciously and with premeditation, in violation of Title 18,
5 United States Code, Section 924(c)(1) and (i)2(1).
6 Now, in order to convict -- that statute reads in
7 pertinent part as follows: that whoever, during and in relation
8 to any crime of violence for which he may be prosecuted in a
9 court of United States, uses or carries a firearm shall be in
10 violation of that statute.
11 And 924 -- let's see -- now, moving on to Count
12 number -- excuse me, Title 18, Section 924(j), included in Count
13 number 8, charges the defendant with violating Title 18, United
14 States Code, Section 924(c)(1)(2)(i) -- excuse me, 924(i)2(1),
15 which had been recodified as Title 18, United States Code,
16 Section 924(j)(1), and which reads in pertinent part as
17 follows: A person who, in the course of a violation of
18 subsection (c), causes the death of a person through the use of
19 a firearm, shall if the killing is a murder have violated this
20 statute.
21 Now, for you to find the defendant guilty of the offense
22 set forth in Count 8 of the indictment, the government must
23 prove the following essential elements beyond a reasonable
24 doubt: first, that the defendant committed the crime of
25 carjacking as charged in Count 7 or the indictment, for which he
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1 may be prosecuted in a court of the United States. I instruct
2 you that an act of carjacking is a crime of violence; second,
3 that the defendant knowingly used and carried a firearm during
4 and in relation to the defendant's commission of the crime
5 alleged in Count 7 of the indictment; third, that in the course
6 of and using -- excuse me, that in the course of using and
7 carrying a firearm during and in relation to the defendant's
8 commission of the crime alleged in Count 7, he caused the death
9 of Donald Lee Allen by murdering him; and fourth, that such
10 murder was committed without legal justification, with malice
11 aforethought and with premeditation which includes
12 deliberation.
13 You may find the defendant guilty of Count 8 if you find
14 him guilty as charged in Count 7, and that he knowingly used a
15 carried a firearm in the commission of that offense and that he
16 caused the death of Donald Lee Allen by murdering him without
17 legal justification, with malice aforethought and with
18 premeditation, which includes deliberation.
19 To kill with malice aforethought means either to kill
20 another person deliberately and intentionally or to act with
21 callous and wanton disregard for human life. To find malice
22 aforethought, you need not be convinced that the defendant hated
23 or otherwise felt ill will toward the victim at the time.
24 In determining whether the killing was with malice
25 aforethought, you may consider the use of a weapon and the
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1 manner in which the death was caused.
2 Premeditation, a killing is premeditated when it is the
3 result of planning or deliberation. The amount of time needed
4 for premeditation of a killing depends on the person and the
5 circumstances. It must be long enough for the killer, after
6 forming the intent to kill, to be fully conscious of the
7 intent.
8 You should consider all of the facts and circumstances
9 preceding, surrounding and following the killing which tend to
10 shed light upon the condition of the defendant before and at the
11 time of the killing.
12 Moving on to Count number 9, on or about the 22nd day of
13 June, 1996, in Mecklenburg County within the Western District of
14 North Carolina, the defendant did unlawfully transport in
15 interstate a stolen motor vehicle, that is, a 1994 Honda Prelude
16 vehicle, identification number is in the indictment, from the
17 State of North Carolina to the Commonwealth of Virginia, knowing
18 the same to be stolen, in violation of Title 18, United States
19 Code, Section 2312.
20 Now, that statute reads in pertinent part as follows:
21 that whoever transports in interstate or foreign commerce a
22 motor vehicle, knowing the same to have stolen, shall be guilty
23 of an offense against the United States.
24 Now, for to you find the defendant guilty of this
25 offense charged in Count 9, you must be convinced that the
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1 government has proved each of the following essential elements
2 beyond a reasonable doubt: first, that the defendant
3 transported or caused to be transported in interstate commerce a
4 stolen motor vehicle; second, that at the time of such
5 transportation, the defendant knew the motor vehicle had been
6 stolen.
7 The word "stolen" as used in the indictment in this case
8 includes all wrongful and dishonest taking of motor vehicles
9 with the intent to deprive the owner, temporarily or
10 permanently, of the rights and benefits of ownership.
11 Count number 10, interstate domestic violence, that on
12 or about the 22nd day of June, 1996, in Mecklenburg County in
13 the Western District of North Carolina and in the Western
14 District of Virginia, the defendant did travel across a state
15 line, that is, did transport himself from Charlotte, North
16 Carolina to Roanoke, Virginia with the intent to injure, harass
17 and intimidate an intimate partner, Robin Williams, and in the
18 course and as a result of such travel intentionally committed a
19 crime of violence, that is, shot and killed Robin Williams
20 causing bodily injury and death to her, in violation of Title
21 18, United States Code, Sections 2261(a)(1) and 2261(b). The
22 reason I'm saying whether it's parenthesis, this is the man who
23 has to take it down and he doesn't know whether it's big A or
24 little A or such, so I'm trying to make it exactly as it is in
25 the indictment.
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1 All right, then, Title 18, Section 2261(a)(1) reads in
2 pertinent part as follows: A person who travels across a state
3 line with the intent to injure, harass or intimate that person's
4 spouse or an intimate partner, and who in the course of or as a
5 result of such travel intentionally commits a crime of violence
6 and therefore cause bodily injury to such spouse or intimate
7 partner violates Title -- I mean, Title 18, United States Code,
8 Section 2261(A)(1).
9 Now, for you to find the defendant guilty of interstate
10 domestic violence as charged in Count 1 of the indictment, you
11 must be convinced that the government has proved each of the
12 following essential elements beyond a reasonable doubt: first,
13 that at the time alleged in the indictment the defendant and
14 Robin Antoinette Williams were or had been intimate partners;
15 second, that the defendant traveled across a state line with the
16 intent to either injure, harass or intimidate Robin Antoinette
17 Williams; third, that during the course of, and as a result of
18 the travel, the defendant intentionally committed a crime of
19 violence; and fourth, thereby caused bodily injury to Robin
20 Antoinette Williams.
21 As I said before, an intimate partner includes a spouse,
22 a former spouse, a person who shares a child in common with the
23 abuser, and a person who cohabits or has cohabited with the
24 abuser as a spouse.
25 The second element is that the defendant traveled across
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1 a state line, in this case North Carolina to Virginia, with the
2 intent to injure, harass or intimidate Robin Williams. These
3 terms have their common, everyday meaning. In this case, the
4 government contends that the defendant crossed the state line
5 when the intent to injure his former intimate partner, Robin
6 Williams. You must find beyond a reasonable doubt that the
7 defendant intended to injure Robin Williams at the time he
8 crossed from North Carolina to Virginia.
9 Bodily injury means any act, except one in self defense,
10 that results in physical injury or sexual abuse.
11 Moving on to Count number 11, Count number 11 of the
12 indictment charges the defendant with violating Title 18, United
13 States Code, Section 924(c)(1), which reads in pertinent part as
14 follows: that whoever, during and in relation to any crime of
15 violence for which he may be prosecuted in a court of the United
16 States, uses or carries a firearm shall be in violation of this
17 statute.
18 Count number 11 also charges the defendant with
19 violating Title 18, United States Code, Section 924(i)2(1) which
20 has been recodified as Title 18, United States Code, Section
21 924(j)(1), and which reads in pertinent part as follows: A
22 person who, in the course of a violation subsection (c), causes
23 the death of a person through the use of a firearm shall, if the
24 killing is a murder, have violated this statute.
25 MR. CONRAD: Your Honor?
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1 THE COURT: Yes, sir?
2 MR. CONRAD: May I be heard at this point?
3 THE COURT: Yes, sir.
4 (Bench conference not recorded.)
5 THE COURT: Members of the jury, I referred in the
6 beginning there, or maybe I didn't, to Count number, it's Count
7 11 we're in. For you to find the defendant guilty of the
8 offense set forth in Count number 11 of the indictment which we
9 just had, the government must prove the following essential
10 elements beyond a reasonable doubt: first, that the defendant
11 committed an act of interstate domestic violence as charged in
12 Count 10 of the indictment, for which he may be prosecuted in a
13 court of the United States. I instruct you that an act of
14 interstate domestic violence is a crime of violence; second,
15 that the defendant knowingly used and carried a firearm during
16 and in relation to the defendant's commission of the crime
17 alleged in Count number 11 of -- Count number 10 of the
18 indictment; third, that the defendant -- excuse me, third, that
19 in the course of knowingly using and carrying a firearm during
20 and in relation to the defendant's commission of the crime
21 alleged in Count number 10, he caused the death of Robin
22 Antoinette Williams by murdering her;, and fourth, that such
23 murder was committed without legal justification, with malice
24 aforethought and with premeditation.
25 Now, you may find the defendant guilty of Count 11 if
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1 you find him guilty as charged in Count number 10, and that he
2 used or carried a firearm in the commission of that offense and
3 that he caused the death of Robin Antoinette Williams by
4 murdering her without legal justification and with malice
5 aforethought and premeditation, which means deliberation.
6 I shall now define for you certain terms, other terms
7 used in the essential elements. You are to apply these
8 definitions as you consider the evidence. If I do not define
9 certain words, you will assign to them their ordinary, everyday
10 meanings.
11 Malice aforethought is defined, to kill with malice
12 aforethought means either to kill another person deliberately
13 and intentionally, or to act with callous and wanton disregard
14 for human life. To define malice aforethought, you need not be
15 convinced that the defendant hated or otherwise felt ill will
16 toward the victim at the time.
17 In determining whether the killing was with malice
18 aforethought, you may consider the use of a weapon and the
19 manner in which the death was caused.
20 Premeditation, a killing is premeditated when it is the
21 result of planning or deliberation. Again, the amount of time
22 needed for premeditation of a killing depends on the person and
23 the circumstances. It must be long enough for the killer, after
24 forming the intent to kill, to be fully conscious of the
25 intent.
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1 You should consider all of the facts and circumstances
2 preceding, surrounding and following the killing which tend to
3 shed lied upon the condition of the defendant before and at the
4 time of the killing.
5 The word "knowingly" as the term was used from time to
6 time in these instructions means that the act was done
7 voluntarily and intentionally, and not because of mistake or
8 accident.
9 Members of the jury, intent ordinarily may not be proved
10 directly, because there's no way of fathoming or scrutinizing
11 the operations of the human mind. But you may infer the
12 defendant's intent from the surrounding circumstances. You may
13 consider any statement made and done or omitted by the
14 defendant, and all other facts and circumstances in evidence
15 which indicate his state of mind.
16 You may consider it reasonable to draw the inference and
17 find that a person intends the natural and probable consequences
18 of acts knowingly done or knowingly admitted, but you are not
19 required to do so. As I have said, it is entirely up to you to
20 decide what facts you find from the evidence.
21 The world "willfully" as that term has been used in
22 certain crimes charged in the indictment refers to an act
23 committed by an accused voluntarily, with knowledge that it was
24 prohibited by law, and with the purpose of violating the law,
25 and not by mistake, accident or in good faith. An act is
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1 done "willfully" if done voluntarily and intentionally, and with
2 specific intent to do something that the law forbids, that is to
3 say, with bad purpose either to disobey or disregard the law.
4 "Unlawfully," of course, simply means contrary to law.
5 To do an act unlawfully means knowingly to do something which is
6 contrary to law.
7 Members of the jury, you heard a great deal of evidence
8 from a number of witnesses. I remind you it is your job to
9 decide whether the government has proved the guilt of the
10 defendant beyond a reasonable doubt. In doing so, you must
11 consider all of the evidence. This does not mean, however, that
12 you must accept all of the evidence as true or accurate.
13 You are the sole judges of the credibility or
14 believability of each witness and the weight to be given to the
15 witness's testimony. An important part of your job will be
16 making judgments about the testimony of the witnesses who
17 testified in this case. You should decide whether you believe
18 all or any part of what each person had to say, and how
19 important that testimony was. In making that decision, I
20 suggest that you ask yourself a few questions: first, did the
21 person impress you as honest; second, did the witness have any
22 particular reason not to tell the truth; third, did the witness
23 have a personal interest in the outcome of the case; fourth, did
24 the witness have any relationship to either the government or
25 the defense; fifth, did the witness seem to have a good memory;
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1 sixth, did the witness clearly see or hear the things about what
2 he or she testified; seven, did the witness have the opportunity
3 and ability to understand the questions clearly and answer them
4 directly; eight, did the witness's testimony differ from the
5 testimony of other witnesses?
6 These are a few considerations that will help you to
7 determine the accuracy of what each witness had to say.
8 Your job is to think about the testimony of each witness
9 you have heard and decide how much you believe of what each
10 witness had to say. In making up your mind and reaching a
11 verdict, do not make any decision simply because there were more
12 witnesses on one side than the other. Do not reach a conclusion
13 on a particular point just because there were more witnesses
14 testifying for one side on that point.
15 Now, you should keep in mind, of course, that a simple
16 mistake by a witness does not necessarily mean that a witness
17 was not telling the truth as he or she remembers it, because
18 people naturally tend to forget some things or remember other
19 things inaccurately. So if a witness has made a misstatement,
20 you need to consider whether that misstatement was simply an
21 innocent lapse of memory or intentional falsehood, and that may
22 depend on whether it has to do with an important fact or only an
23 unimportant detail.
24 In the final analysis, the jury may give the testimony
25 of a witness such weight or credibility, if any, as the jury in
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1 its sole discretion may find appropriate.
2 The testimony of a witness may be discredited by showing
3 that a witness testified falsely concerning a material matter,
4 or by evidence that at some other time the witness has said or
5 done something or failed to say or do something, which is
6 inconsistent with the testimony the witness gave at this trial.
7 Earlier statements of a witness were not admitted into
8 evidence to prove the contents of those statements -- earlier
9 statements of a witness were not admitted into evidence to prove
10 that the contents of those statements are true. You may
11 consider the earlier statements only to determine whether you
12 think they are consistent or inconsistent with the trial
13 testimony of the witness and therefore whether they affect the
14 credibility of that witness.
15 If you believe that a witness has been discredited in
16 the matter, it is your exclusive right to give the testimony of
17 that witness whatever weight you think it deserves.
18 The defendant has elected not to testify in this case.
19 The Court instructs you that he has a Constitutional right not
20 to take the stand and testify and not to speak at all or offer
21 any evidence, the burden of proof being entirely upon the
22 government. You must draw no adverse inferences of any kind
23 from his exercise of his privilege not to testify. This is a
24 fundamental right, fundamental right in America's criminal law
25 and one which cannot be disregarded by the jury at its pleasure.
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1 When the government offers testimony or evidence that a
2 defendant made a statement or admission to someone after being
3 arrested, the jury should consider the evidence concerning such