1211
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 10th 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
1212
1 APPEARANCES: (Continued)
2 PAUL J. WILLIAMS, Esq.
Suite 801
3 301 South McDowell Street
Charlotte, North Carolina 28204
4
5 ---
6
7 THE COURT: Let's see, where is the defendant? We've
8 got the court reporter here.
9 (Defendant enters the courtroom.)
10 THE COURT: Call the jury.
11 (The jury returned to the courtroom.)
12 THE COURT: Good morning, ladies and gentlemen, hope you
13 had a nice evening. We've got the sun shining.
14 JUROR: Yes.
15 THE COURT: Getting ready to go back to your
16 deliberations. Again I have to ask you the standard question,
17 anybody seen, heard or read anything about this case overnight?
18 JURORS: No, sir.
19 THE COURT: Anybody talking about it?
20 JURORS: No, sir.
21 THE COURT: All right, fine, go back and start your
22 deliberations. Thank you so much. Are you comfortable back
23 there, how's the temperature?
24 JUROR: It's fine.
25 (Jurors nod heads.)
1213
1 THE COURT: Is it all right? Good, thank you.
2 (The jury left the courtroom.)
3 THE COURT: All right, let's see what happens.
4 (Deliberations.)
5 (Question from the jury.)
6 THE COURT: Where are the -- I'm going to read the
7 question and we can decide whether or not you need to have your
8 client here. I don't think it's necessary. First
9 question -- it's not a question really, it's a request, we would
10 like the transcript of portions of testimony. Do we ask for
11 specific testimony or may we -- do we ask for specific testimony
12 or do we have to -- or do we have the entire transcript? I
13 would suggest the specific testimony. I mean, if you give them
14 the trial transcript, how many volumes do we have?
15 MR. CONRAD: The trial transcript is in evidence, 65A, B
16 and C. We introduced that at the beginning of the sentencing
17 phase, so --
18 THE COURT REPORTER: I filed the all transcripts.
19 THE COURT: I don't think -- they asked for the trial
20 transcript. It says, we would like the testimony -- I mean, the
21 transcript of portions of testimony. Do we ask for specific
22 testimony or may we have the entire transcript? I assume this
23 is all -- we'll have to ask them, I guess.
24 MR. WILLIAMS: Judge, we don't know what part of the
25 transcript they are asking for.
1214
1 THE COURT: I think that's what we probably want to call
2 them and ask them that. And the next one, we would like to have
3 a copy of the time line book. Is there a time line book on this
4 thing?
5 MR. LAUGHRUN: Judge, the green book you have in front
6 of you there is the time line book. It was admitted without the
7 genogram and the life history. What was admitted was the time
8 line and the artwork.
9 THE COURT: All right, sir. Do you want your client
10 here for this?
11 MR. LAUGHRUN: No, sir, no objection to that.
12 THE COURT: Okay. Let me find out what part of the
13 transcript they want, so call them out here and let's ask them
14 that.
15 MR. LAUGHRUN: Judge, if you are going to bring the jury
16 out, I think we probably ought to have the defendant, if you're
17 going to bring the jury out to do that.
18 THE COURT: Well, get him in here then.
19 MR. CONRAD: Your Honor, if they have asked for --
20 MR. LAUGHRUN: Judge, one of the green notebooks for the
21 record only which was the big --
22 THE COURT: Let's make sure what notebook we are talking
23 about before we give it to them.
24 MR. CONRAD: Your Honor, if they are asking for the time
25 line, I would suggest to take the artwork out of the book.
1215
1 THE COURT: What is the artwork, is this the artwork?
2 THE CLERK: What is the number?
3 MR. CONRAD: There's a time line, and then at the back
4 of that notebook there is some artwork that the defendant --
5 THE COURT: Oh, that, yeah, okay, I remember that, yeah.
6 I guess the time line is all they want.
7 THE LAW CLERK: I think 54 was the one that was
8 admitted for the record only.
9 THE COURT: You have the time line on a board, don't
10 you, wouldn't that be better than the book?
11 MR. CONRAD: Yes, sir.
12 THE COURT: I'll ask them if they wouldn't rather have
13 that.
14 MR. WILLIAMS: I'm just getting this in case.
15 THE CLERK: The time line is 43.
16 THE COURT: Is that the whole thing, Paul, on one board,
17 is that what it is, the whole thing from beginning to end?
18 MR. WILLIAMS: Yes, sir.
19 THE COURT: Well, the board would be better, because
20 they have to go through all those pages.
21 All right, call the jury.
22 (Defendant present in the courtroom.)
23 (The jury returned to the courtroom.)
24 THE COURT: Let's see, Mr. Schudel, are you still the
25 foreperson?
1216
1 JUROR: I think so.
2 THE COURT: You have a note here, we would like the
3 transcript of a portion of testimony, do we ask for specific
4 testimony or do we have -- may we have the entire transcript?
5 Could you ask for specific testimony, it would make it a lot
6 simpler for you to find it, can you do that? I mean, can you
7 tell us what you want and then we can get it for you, or do you
8 want the entire transcript?
9 JUROR: Of his great aunt, Mabel Johnson.
10 THE COURT: What?
11 JUROR: His great aunt, Mabel Johnson's testimony.
12 THE COURT: Well, why don't we -- the trouble is I don't
13 think you could find it if you just get the whole transcript.
14 How many volumes are there, Scott, do you know, three, three
15 volumes? The penalty phase is what you want, isn't it, not the
16 trial transcript, the penalty phase?
17 JUROR: Correct.
18 THE COURT: All right, we can get that for you,
19 Ms. Grier has it right here. So that's all you want right now?
20 Okay, let's do that then, we'll get that for you.
21 JUROR: Okay.
22 THE COURT: And you also would like to have a copy of
23 the time line book. I assume you are talking about this green
24 book with the circles on it and so forth?
25 JUROR: Yes.
1217
1 THE COURT: Okay, we'll get that for you.
2 MR. LAUGHRUN: Judge, I believe they have copies there.
3 JUROR: We do, but we -- can we use ours?
4 THE COURT: You do have it? All right, you have that,
5 then, just take that back there with you. We will get the
6 transcript portion you want right now. You can go on back now
7 and continue -- we'll get that to you as soon as we can get it
8 together.
9 (The jury left the courtroom.)
10 MR. LAUGHRUN: Judge, if I may while the jury is out,
11 I'm not sure you can send them the entire transcript back and I
12 would like to be heard briefly.
13 THE COURT: All right.
14 MR. LAUGHRUN: A lot of stuff that went on outside the
15 jury's presence is in the transcript.
16 THE COURT: Oh, that's right, I forgot about that.
17 MR. LAUGHRUN: Bench conferences and the like, so that's
18 not proper.
19 THE COURT: You are right.
20 MR. CONRAD: Your Honor, Government's Exhibit 65A, B and
21 C, what we introduced into evidence as our first exhibit is a
22 transcript of the trial testimony, the guilt phase, and it's
23 absent any of the bench conference outside the presence of the
24 jury stuff. It's pure testimony.
25 THE COURT: Well, I think they want the guilt phase.
1218
1 MR. CONRAD: If they want the guilt phase, they have it
2 sanitized already in evidence.
3 THE COURT: You mean there are no bench conferences in
4 that part?
5 MR. CONRAD: There are no bench conferences, there is
6 nothing, there is no voir dire outside the presence of the jury,
7 it's just pure testimony. That's what we introduced as
8 Government's Exhibit 65A, B and C.
9 THE COURT: I think that's what Ms. Grier has gone to
10 get right now.
11 MR. CONRAD: Well, I've got the transcripts that we
12 introduced into evidence and these transcripts don't have any
13 bench conferences, don't have any --
14 THE COURT: Well, let defense counsel look at them and
15 make sure they're satisfied with them.
16 MR. LAUGHRUN: Judge, all they asked for was one
17 person's testimony.
18 THE CLERK: They asked for one specific testimony.
19 MR. LAUGHRUN: Right, all they asked for was Mabel
20 Johnson's 20 pages of testimony.
21 THE COURT: Okay, let's see if we can find it.
22 MR. CONRAD: All I'm saying, Judge, if they do ask for
23 the guilt phase later on, Mr. Laughrun's argument that there is
24 other stuff in there is not correct as to the guilt phase.
25 MR. LAUGHRUN: I wasn't talking about the guilt phase,
1219
1 Judge, I was talking about the sentencing portion of the trial
2 which has not been sanitized or whatever.
3 THE COURT: All right, sir. I'll tell you, give that to
4 them, Mike, and let them look at it, the two of them together,
5 defense counsel and the government, to see what they want. Just
6 give it to them and let them figure it out what they want,
7 defense counsel and the government. Mr. Conrad, you and
8 Mr. Walker want to look at what they are doing over there?
9 MR. CONRAD: Judge, we have our copy tabbed and we can
10 find it pretty quickly.
11 THE COURT: Okay, if you have them, fine, let them look
12 at them and if they are satisfied, we'll send that back.
13 MR. LAUGHRUN: Judge, we've got it right here.
14 THE COURT: Let Mr. Conrad see that.
15 MR. CONRAD: We have looked at it in our copy.
16 THE COURT: Okay.
17 MR. LAUGHRUN: Judge, it's Pages 444 to 458 of the
18 transcript.
19 THE COURT: 444 to 458, is that what you are talking
20 about?
21 MR. CONRAD: No, it ends at 448, Judge.
22 MR. LAUGHRUN: I'm sorry, Judge, that's right.
23 THE CLERK: What are the numbers?
24 MR. CONRAD: 444 to 448.
25 THE COURT: 444 to 448.
1220
1 MR. LAUGHRUN: You want us to take it out?
2 THE COURT: Is that all, four pages?
3 MR. LAUGHRUN: That's right.
4 THE COURT: All right, we are going to have copies made
5 of Pages 444 through 448 and send that back to the jury, is that
6 satisfactory to both sides?
7 MR. CONRAD: Yes, sir.
8 THE COURT: Let's make three copies for --
9 MR. CONRAD: Your Honor, when you do that, there is a
10 portion of Page 444 that's not relevant. There's about
11 two-thirds of the page that is some other testimony.
12 THE COURT: Loretta, can you take care of that for me,
13 take that part of the page out?
14 MR. CONRAD: Just the Mabel Johnson.
15 THE COURT: Ask Mr. Conrad what he is talking about and
16 make sure.
17 (Discussion among attorneys for the government and the
18 defendant.)
19 THE COURT: All right, is everybody satisfied?
20 MR. CONRAD: Yes, sir.
21 MR. LAUGHRUN: Yes, sir.
22 THE COURT: All right, we'll send that back. We are
23 going to send back the time line pages.
24 THE MARSHAL: They've already got the books.
25 THE COURT: Have they already got the book? Okay.
1221
1 MR. WILLIAMS: If they want that big board, of course,
2 they can have that, if the Court permits it.
3 MR. LAUGHRUN: Judge, for the record, too, I've reviewed
4 Government's Exhibit 65A, B and C and it is as Mr. Conrad --
5 THE COURT: 65A, B and C.
6 MR. LAUGHRUN: The trial transcript, yes, sir.
7 THE COURT: That's what we're sending back, A, B --
8 they've already got it, you say, A, B and C.
9 MR. LAUGHRUN: Judge, they never asked for that. That's
10 the trial testimony.
11 THE COURT: Okay.
12 (Note from the jury at 10:45 a.m.)
13 THE COURT: Note from the jury, we need a copy of the
14 divorce decree and the paternity test documents. Do we have
15 those?
16 (Attorneys review documents.)
17 MR. LAUGHRUN: Judge, that's Defendant's Exhibit 33.
18 THE COURT: All right, just be sure the government sees
19 it and everybody is happy, just let him look at it. Is that the
20 paternity test documents, too, Mr. Laughrun?
21 MR. LAUGHRUN: It's attached as part of the lawsuit,
22 yes, sir.
23 THE COURT: Just give it to the marshal.
24 (Marshal takes documents to the jury.)
25 (Note from the jury at 11:24 a.m.).
1222
1 THE COURT: All right, the question -- well, I guess you
2 call it a question, may we please have a legal definition of
3 duress as used in mitigating factors, factor two on Page 7.
4 (The Court reviews documents.) I don't see any factor two on
5 Page 7.
6 MR. LAUGHRUN: Judge, on your verdict sheet, it looks
7 like it is on the verdict sheet on Page 7.
8 THE COURT: I'm sorry, I was looking at the wrong thing.
9 MR. LAUGHRUN: Yes, sir. The, I believe and I'm just
10 speculating, the second statutory aggravator talks about the
11 defendant was under unusual --
12 THE COURT: The defendant was under unusual and
13 substantial duress regardless of whether the duress was of such
14 degree as to constitute a defense to the charge. You want to
15 give them the Black's legal dictionary definition?
16 MR. LAUGHRUN: Well, what does it say first? I mean, I
17 don't know what it says because I don't have Black's in front of
18 me.
19 THE COURT: I've got it right here. Do you want your
20 client here for this?
21 MR. LAUGHRUN: Are you going to bring the jury out?
22 THE COURT: Well, I'm going to have to give them the
23 definition. Let's go over it first. Duress, any unlawful
24 threat or coercion used by a person to induce another to act or
25 to refrain from acting in a manner he or she otherwise would not
1223
1 have done, or would not have, or would, subjecting a person to
2 improper pressure which overcomes his will and coerces him to
3 comply with a demand to which he would not yield if acting as a
4 free agent. There's a lot more to it, I'll go ahead and read it
5 all. Application of such pressure or constraint as compels man
6 to go against his will, takes away his free agency, destroying
7 power of refusing to comply with unjust demands of another. A
8 condition where one is induced by wrongful act or threat of
9 another to make a contract or perform a tortious act under
10 circumstances which deprive him of exercise of his free will.
11 Includes any conduct which overpowers will and coerces or
12 constrains performances of an act which otherwise would not have
13 been performed. And it goes on for the rest of page. I don't
14 know whether we need anymore than that or not, do we, are you
15 satisfied with that much of it?
16 MR. LAUGHRUN: Judge, could I suggest that given the
17 hour, would you consider recessing for lunch, let the jury go to
18 lunch and let us see if we can find a definition?
19 THE COURT: I don't think you are going to find any
20 better definition than this, but if you want to, that's fine.
21 I'm not going to tell them to go to lunch, Mr. Laughrun. If
22 they want to go to lunch, that's fine.
23 MR. LAUGHRUN: I didn't know what your policy was going
24 to be during this time or not.
25 THE COURT: That's up to them, because they -- they'll
1224
1 be here. Anything else, will that satisfy?
2 MR. LAUGHRUN: Judge, I hate to say it would, because I
3 don't have anything to look for for a definition. I don't know
4 if there's something in like the Fifth Circuit pattern
5 instruction about that not, I just don't know.
6 THE COURT: Well, as a matter of fact, I think there
7 is. I will get that, I'll find it, I know where it is, Mike.
8 (Brief recess.)
9 THE COURT: All right, Penal Code, Section 2.09 defines
10 duress as follows: It is an affirmative defense that the actor
11 engaged in the conduct charged to constitute an offense because
12 he was coerced to do so by the use of or threat to use unlawful
13 force against his person or the person of another, which a
14 person of reasonable firmness in his situation would have been
15 unable to resist. The defense -- well, we don't need to get
16 into that.
17 Devitt and Blackmar, duress or necessity as to defense,
18 duress or necessary of it is a defense to the crime of escape.
19 They're talking about one thing here. In order to find the
20 defense of duress or necessity in this case, you must determine
21 that, one, there was an immediate and specific threat of bodily
22 harm to the defendant, the defendant had no time to complain to
23 authorities about his danger or the making of such a complaint
24 would have been useless or futile, and three, force or violence
25 was not used in the escape, and four, the defendant intended to
1225
1 report immediately to the proper authorities as soon as the
2 threat of bodily harm had lost its coercive force or made a good
3 faith effort. I think we better take the dictionary, do you
4 agree.
5 MR. CONRAD: We agree.
6 MR. LAUGHRUN: Judge, neither one of those apply.
7 THE COURT: Pardon?
8 MR. LAUGHRUN: Neither one of those apply.
9 THE COURT: I know they don't. That's what I say, they
10 need to take the dictionary, the common meaning of it. I mean,
11 you're not going to get an instruction that doesn't have to do
12 with some particular case.
13 MR. LAUGHRUN: Right. Why don't you just tell them to
14 use their common sense, the term is self -- just like on
15 reasonable doubt, it's --
16 THE COURT: I'm going to define it. They asked me to
17 define it and I'm going to define it. All right, take Black's
18 Dictionary, that's the one we're going to use.
19 MR. LAUGHRUN: Judge, before the jury comes out, we also
20 have an objection to the government piling on evidence at that
21 table, to give you an idea.
22 THE COURT: No, sir, you cannot. That's been there the
23 whole trial.
24 MR. LAUGHRUN: Judge, no, sir, it hasn't. Let me tell
25 you if I can, Judge, the other shotgun, the second shotgun was
1226
1 added today. The government didn't --
2 THE COURT: Take the shotgun off. I don't know why it's
3 over there. They were using it in final argument, I guess.
4 MR. LAUGHRUN: Well, they didn't use it in final
5 argument, that's my point, and what they've done is they've put
6 stuff on over there --
7 THE COURT: All right, take the shotguns off.
8 MR. CONRAD: Can we turn those pictures around that the
9 defense attorneys prominently displayed right there for the
10 jury.
11 MR. WILLIAMS: Sure.
12 THE COURT: All right, take the shotguns off and let's
13 call the jury and get this over with. Now, this comes from
14 Black's Law Dictionary, Sixth Edition, Centennial Edition, 1891,
15 1991, call the jury.
16 MR. WILLIAMS: If you're going to take those pictures
17 down, we would ask that the other pictures be taken down.
18 THE COURT: Just take it all off the table.
19 (The jury returned to the courtroom.)
20 THE COURT: Somebody must have called to turn up the
21 heat, we're going to have to get rid of that right now.
22 All right, members of the jury, I'm going to read to you
23 from Black's Law Dictionary. I had picked up several other
24 sources, but I think this is more authoritative than anything we
25 can get for the common word "duress." This is Black's Law
1227
1 Dictionary, Sixth Edition, and it states that duress, any
2 unlawful threat or coercion used by a person to induce another
3 to act or to refrain from acting in a manner which he or she
4 otherwise would not have, or would, subjecting person to
5 improper pressure which overcomes his will and coerces him to
6 comply with a demand to which he would not yield if acting as
7 free agent. Application of such pressure or constraint as
8 compels man to go against his will and takes away his free
9 agency, destroying power or of refusing to comply with unjust
10 demands of another. A condition where one is induced by a
11 wrongful act or threat to a -- excuse me, a condition where one
12 is induced by a wrongful act or threat of another to make a
13 contract or perform a tortious act under circumstances which
14 deprive him of exercise of his free will. Includes any conduct
15 which overpowers will and coerces or constrains performances of
16 an act which otherwise would not have been performed. Duress
17 may be a defense to a criminal act, breach of contract or tort
18 because of an act to be criminal of one -- or one which
19 constitutes a breach of contract or a tort must be voluntary to
20 create liability responsibility.
21 I think that's about as far we need to go on that. IS
22 there anything else you need, you want me to go over it again?
23 It's forcing someone to do something, I think, is the way I
24 interpret it.
25 All right, thank you very much. When y'all are ready to
1228
1 go to lunch, just let us know and you'll be able to go.
2 JURORS: We're ready.
3 THE COURT: You want to go now? All right, everybody
4 agrees to go now. What time do you want to come back? It's in
5 your hands now. It's 1:00 o'clock now, what time, 2:00 o'clock?
6 JUROR: 2:00 o'clock.
7 THE COURT: 2:00'clock.
8 JUROR: 2:00 o'clock is fine.
9 THE COURT: Okay, fine. Do not discuss the case among
10 yourselves while you are out, do not discuss it with anyone
11 else, and do not -- if one or two of you come back in here in
12 the jury room, don't discuss it until everybody is there, do you
13 understand that? All right, 2:00 o'clock, then, we'll be back.
14 Thank you.
15 (The jury left the courtroom.)
16 MR. LAUGHRUN: Judge, if I may, we would object to that,
17 Judge. The definition of forcing someone to do something, I
18 respectfully object because that's not the way it's used in that
19 context and would ask if over the lunch break I can present the
20 Court with another definition. Would the Court consider that,
21 if I go back to our offices and try to find that over the lunch
22 break and present that to Your Honor, would you consider that
23 and maybe reinstructing them on that if I come up with a
24 definition?
25 THE COURT: Anything, all right, just so as long as we
1229
1 define duress. Thank you.
2 MR. LAUGHRUN: Thank you, Judge Potter.
3 THE COURT: Recess until 2:00 o'clock.
4 (Lunch recess.)
5 THE COURT: On the record, both counsel for the
6 defendant and for the government were present at 2:00 o'clock,
7 at which time we directed the court security officer to direct
8 the jury to recommence their deliberations, is that right?
9 MR. LAUGHRUN: That's correct. Before that too, Your
10 Honor, you had asked us if we found any other definitions of
11 duress. For the record, at the break we called David Brook who
12 is resource counsel for the federal death penalty resource
13 center. He said there is no definition in Title 18 for duress.
14 We also looked at Devitt and Blackmar and got the same
15 instruction Your Honor got. We also looked at Magistrate Judge
16 Horn's federal jury instructions for the Fourth Circuit authored
17 by Magistrate Judge Horn, 1997 edition. There is no duress
18 definition in those.
19 THE COURT: Are you satisfied with Black's Law
20 Dictionary?
21 MR. LAUGHRUN: I'm satisfied with it, but we understand
22 you gave and we renew our objection to it, but you've already
23 ruled on that.
24 THE COURT: Okay.
25 MR. LAUGHRUN: Thank you, Judge.
1230
1 THE COURT: All right.
2 (Verdict at 4:23 p.m.)
3 (The defendant enters the courtroom.)
4 THE COURT: Ready for the jury, call the jury.
5 (The jury returned to the courtroom.)
6 THE COURT: Mr. Schudel, has the jury reached a verdict
7 in this matter?
8 JUROR: Yes, we have, Your Honor.
9 THE COURT: Would you hand that to the marshal, please?
10 (Juror hands verdict form to the marshal, marshal hands
11 verdict form to the Court.)
12 THE COURT: Members of the jury, this is a right
13 complicated verdict, I guess you'd say. I need to go over this
14 with counsel before we announce it in court if you understand
15 that. If you will be more comfortable, you may go back to the
16 jury room. It will take us a few minutes to go through here.
17 Thank you so much. We will get you out here in just a few
18 minutes.
19 (The jury left the courtroom.)
20 THE COURT: I want to go over this with counsel and make
21 sure that we're all set. Let's go back here into this room
22 first.
23 (In-chambers conference.)
24 (Defendant not present.)
25 THE COURT: Going through this thing, and I think it's
1231
1 all right, count 7 age of the defendant, yes, mental state, yes,
2 section 2, that is paragraphs one and two, due -- I will read
3 the verdict, do you the jury understandly find government proved
4 beyond a reasonable doubt the defendant intentionally killed
5 Donald Lee Allen, count 7, answer yes; number two, do you the
6 unanimously find the government proved beyond a reasonable doubt
7 the defendant intentionally inflicted series bodily injury which
8 resulted in the death of Donald Lee Allen in Count 7, answer
9 yes; number 3, do you the jury unanimously find the government
10 proved beyond a reasonable doubt the defendant intentionally
11 engaged in conduct intending that Donald Lee Allen be killed and
12 or that lethal force be employed against Donald Lee Allen which
13 resulted in the death of Donald Lee Allen in Count 7, answer is
14 yes; number 4, do you the jury unanimously find that the
15 government proved beyond a reasonable doubt that the defendant
16 intentionally engaged in conduct which the defendant knew
17 created grave risk of death to a person other than one of the
18 participants in the offense and resulted in death of Donald Lee
19 Allen in Count 7, answer is yes; section 3, statutory
20 aggravating factors, number one, paragraph one, number one, yes;
21 paragraph two, number 2, yes; nonstatutory aggravating factors,
22 section 4, paragraph 1, yes; paragraph two, yes; number 3, yes.
23 Mitigating factors -- do we need to go through all of those, I
24 mean? Well, paragraph one --
25 MR. LAUGHRUN: Judge, can we go off the record for a
1232
1 minute?
2 THE COURT: Yes.
3 (Off-the-record discussion.)
4 THE COURT: Death sentence, yes. Let's go on back to
5 the other.
6 MR. CONRAD: Can you tell us what page 13 is on count 8
7 and 11.
8 THE COURT: Page 13, everyone signed it death sentence,
9 yes.
10 MR. CONRAD: On count 7, how about count 7, 8 and 11.
11 THE COURT: That's what I'm getting to right now. Death
12 sentence, yes; count 8, death sentence, yes, and on count 11.
13 Jurors all signed it, y'all want the look at it?
14 MR. LAUGHRUN: I would like to look at it.
15 (Court hands verdict form to Mr. Laughrun.)
16 MR. CONRAD: I will look over your shoulder.
17 (pause.)
18 MR. LAUGHRUN: Do you want to see it?
19 MR. WILLIAMS: (Shakes head.)
20 THE COURT: I will read the whole verdict out there
21 before the jury.
22 MR. LAUGHRUN: Judge, I don't know if you want to do
23 this, I don't particularly want you to go through every line by
24 line.
25 THE COURT: I'm going to have to put it on the record.
1233
1 MR. LAUGHRUN: You have to?
2 MR. WILLIAMS: Why can't he read the verdict and offer
3 the verdict sheet into evidence, it's part the record?
4 THE COURT: Well, I will ask is this your verdict to the
5 whole panel.
6 MR. CALLOWAY: I think he has to read the whole thing.
7 (The jury returned to the courtroom.)
8 THE COURT: Members of the jury, I want to thank you so
9 much for your time and patience. I know it's been hot and cold
10 and everything else, but we'll get around to that in just a
11 little bit.
12 Now, I am going ahead and read the entire verdict so
13 that everyone will know exactly what we have and so y'all will
14 hear that and understand that. At the end of this, the
15 defendants may want you to be polled, that is, to ask each one
16 of you individually, even though you've signed this, if this is
17 your verdict and still your verdict just as you did in the guilt
18 phase, do you understand that? There's nothing unusual about
19 that, it's the usual procedure.
20 As to the first section, do you the jury unanimously
21 find the government has established beyond a reasonable doubt
22 that, one, the defendant was 18 years of age or older at the
23 time of the offense in Count 7, the answer is yes. Section 2,
24 requisite mental state, do you the jury unanimously find -- now,
25 we're talking about Count 7, I forgot to mention that to you --
1234
1 number one, do you the jury unanimously find the government has
2 proven beyond a reasonable doubt that the defendant
3 intentionally killed Donald Lee Allen in Count 7, the answer is
4 yes.
5 Number 2 in Section 2, do you the jury unanimously find
6 the government has proved beyond a reasonable doubt the
7 defendant intentionally inflicted serious bodily injury which
8 resulted in the death of Donald Lee Allen in Count 7, the answer
9 is yes.
10 Number 3, do you the jury unanimously find that the
11 government has proven beyond a reasonable doubt that the
12 defendant intentionally engaged in conduct intending that Donald
13 Lee Allen be killed and/or that lethal force be employed against
14 Donald Lee Allen, which resulted in the death of Donald Lee
15 Allen in Count 7, the answer is yes.
16 Number 4, do you the jury unanimously find that the
17 government has proven beyond a reasonable doubt that the
18 defendant intentionally engaged in conduct which the government
19 knew -- excuse me, which the defendant knew would create a grave
20 risk of death to a person other than one of the parties in the
21 offense and resulted in the death of Donald Lee Allen in Count
22 7, the answer is yes.
23 Moving over to the statutory aggravating factors,
24 Section 3, do you the jury unanimously find that the government
25 has established the existence of the following statutory
1235
1 aggravating factors beyond a reasonable doubt as to Count 7.
2 Paragraph 1, do you the jury unanimously find the government has
3 proven beyond a reasonable doubt that the defendant committed
4 the offense in Count 7, the expectation of the receipt of
5 something of pecuniary value, the answer is yes.
6 Number 2, do you the jury unanimously find that the
7 government has proven beyond a reasonable doubt that the
8 defendant committed the offense in Count 7 after substantial
9 planning and premeditation to cause the death of Donald Lee
10 Allen, the answer is yes.
11 Moving on to Section 4, nonstatutory aggravating
12 factors, do you the jury unanimously find that the government
13 has established the existence of the following nonstatutory
14 aggravating factors beyond a reasonable doubt as to Count 7.
15 Paragraph 1, do -- do you the jury unanimously find the
16 government has proven beyond a reasonable doubt that the
17 defendant caused harm to the family of Donald Lee Allen as a
18 result of the impact of the killing on the family of Donald Lee
19 Allen, the answer is yes.
20 Number 2, do you the jury unanimously find that the
21 government has proven beyond a reasonable doubt that the
22 defendant is likely to commit criminal acts of violence in the
23 future which would been a continuing and serious threat to
24 society, the answer is yes.
25 Number 3, do you the jury unanimously find the
1236
1 government has proven beyond a reasonable doubt that the
2 defendant intentionally killed two people in that in addition to
3 killing Donald Lee Allen, the defendant also killed Robin
4 Williams, the answer is yes.
5 Mitigating factors, Section 5, the statutory mitigating
6 factors which the defendant contends have been proved by a
7 preponderance are, paragraph one, the defendant's capacity to
8 appreciate the wrongfulness of his conduct or to conform his
9 conduct to the requirements of the law was significantly
10 impaired regardless of whether the capacity was so impaired as
11 to constitute a defense to the charge, the number of jurors who
12 so find, zero.
13 Number 2, the defendant was under unusual and
14 substantial duress regardless of whether the duress was of such
15 degree as to constitute a defense to the charge, the number of
16 jurors who so find, zero.
17 Number 3, the other factors of the defendant's
18 childhood, background and character mitigate against the
19 imposition of the death sentence, the number of the jurors who
20 so find, one.
21 The nonstatutory factors of the defendant's background
22 and character and the circumstances of the crime or other
23 relevant fact or circumstances of mitigation are as follows, the
24 evidence tends to show, number one, the defendant assisted
25 police in locating Donald Allen's body, the number of jurors who
1237
1 so find, 12.
2 The defendant voluntarily turned himself in, the number
3 of jurors who so find, 9.
4 The defendant had no positive family role model during
5 his teenage years, the number of jurors who so find, 6.
6 Number 4, the defendant grew up in a home which condoned
7 domestic violence and he frequently saw his mother abused, the
8 number of jurors who so find, five.
9 Number 5, the defendant was physically and emotionally
10 abused by his father, the number of jurors who so find, 7.
11 Number 6, the defendant was neglected by his mother when
12 she was drunk and distraught over the breakup of her marriage,
13 number of jurors who so find, 9.
14 The defendant was, number 7, the defendant was never
15 allowed to resolve issues of childhood before he was thrust into
16 a caretaker's role of caring for his mother, aunt, brother and
17 aging grandfather when his mother divorced his father, number of
18 jurors who so find, 3.
19 The defendant has worked consistently since age 15 and
20 many times worked more than one job, number of jurors who so
21 find, five.
22 Number 9, the defendant grew up in a home where alcohol
23 and drugs were used frequently, number of jurors who so find,
24 12.
25 Number 10, the defendant grew up in a home where
1238
1 violence was prevalent, the number of jurors who so find, 11.
2 Number 11, after the beating in Atlanta, the defendant
3 lost interest in school and stopped going to school, number of
4 jurors who so find, 6.
5 Number 12, the defendant went to church with his
6 grandfather Jessie, number of jurors that so find, 11.
7 Number 13, the defendant pled guilty to two prior
8 convictions and accepted responsibility for them, the number of
9 jurors who so find, 3.
10 Number 14, the defendant confessed to his friend Steve
11 Austin and Steve's mother, Anne Austin, with regard to the fire
12 incident in April of 1996, number of jurors who so find, 11.
13 Number 15, the defendant confessed to the police, the
14 number of jurors who so find, 12.
15 And since his arrest, the defendant has been a model
16 inmate, the number of jurors who so find, 12.
17 Now, other nonstatutory factors which the defendant
18 contends are, number 1, an unstable home life and frequent moves
19 during childhood denied the defendant skills to form normal peer
20 relationships, number of jurors who so find, two.
21 The defendant showed remorse by trying to kill himself
22 when he realized what he had done, number of jurors who so find,
23 one.
24 The defendant prayed for the souls of his victims,
25 number of jurors who so find, four.
1239
1 Number 4, the defendant exhibited psychological problems
2 as a minor for which his family failed to seek medical attention
3 or treatment, number of jurors who so find, 6.
4 Number 5, the defendant cooperated with the police,
5 number of jurors who so find, 11.
6 Number 6, the defendant will do well in the structured
7 environment that prison will offer, number of jurors who so
8 find, 6.
9 Number 7, the defendant was abandoned by his father at
10 the age of ten due to the separation of his mother and father,
11 number of jurors who so find, 1.
12 Number 8, the defendant was further rejected by his
13 father at age 13 when blood tests revealed Derrick Barnette was
14 not his father or his brother's father, number of jurors who so
15 find, 2.
16 Number 9, the defendant attempted suicide prior to the
17 crimes indicating that he was already having psychological
18 problems, number of jurors who so find, two.
19 Number 10, the age of the defendant at the time of the
20 offense, number of jurors who so find, 2.
21 Number 11, if the defendant is sentenced to life without
22 the possibility of release, he will not be a future danger,
23 number of jurors who so find, 3.
24 Number 12, the defendant's mother, young brother and
25 children will be harmed by the emotional trauma of his
1240
1 execution, number of jurors who so find, 8.
2 Now, based upon the consideration of whether the
3 aggravating factor or factors found to exist as to Count 7
4 sufficiently outweigh any mitigating factor or factors found to
5 exist to justify a sentence of death, or in the absence of any
6 mitigating factors whether the aggravating factor or factors as
7 to Count 7 are themselves sufficient to justify a sentence of
8 death, indicate your recommendation using either the following
9 forms, A, B or C.
10 Form A, based upon the consideration of whether the
11 aggravating factors found to exist sufficiently outweigh any
12 mitigating factors or factors found to exist to justify a
13 sentence of death, or in the absence of any mitigating factors
14 whether the aggravating factors are themselves sufficient to
15 justify a sentence of death, we recommend by unanimous vote that
16 a sentence of death shall be imposed for the killing of Donald
17 Lee Allen in Count 7, the answer to that is yes, signed by all
18 of the jurors, including the foreperson, dated February 10,
19 1998.
20 Now, moving over to certification, number 7, by signing
21 below, each juror certifies that consideration of the face,
22 color, religious beliefs, national origin or sex of the
23 defendant or the victim was not involved in reaching his or her
24 individual decision, and that the individual juror would have
25 made the same recommendation regarding a sentence for crime or
1241
1 crimes in question no matter what the race, color, religious
2 beliefs, national origin or sex of the defendant or the victim
3 would have been, signed by all of the jurors and the juror
4 foreperson, dated February 10, 1998. Is that your verdict so
5 say you all as to Count number 7?
6 (Jurors nod heads.)
7 JUROR: It is, Your Honor.
8 THE COURT: All right, moving over to Count Number 8,
9 age of the defendant, defendant was 18 years of age at the time
10 of the offense in Count Number, the answer is yes.
11 Moving over to Section 2, requisite mental state, do you
12 the jury unanimously find the government has proven beyond a
13 reasonable doubt the defendant intentionally killed Donald Lee
14 Allen in Count 8, the answer is yes.
15 Do you the jury unanimously find that the government has
16 proven beyond a reasonable doubt that the defendant
17 intentionally inflicted seriously bodily injury which resulted
18 in the death of Donald Lee Allen in Count 8, the answer is yes.
19 Number 3, do you the jury unanimously find that the
20 government has proven beyond a reasonable doubt that the
21 defendant intentionally engaged in conduct intending that Donald
22 Lee Allen be killed and that the lethal force he employed
23 against Donald Lee Allen which resulted in the death of Donald
24 Lee Allen in Count 8, the answer to that is yes.
25 Number 4, do you the jury unanimously find that the
1242
1 government has proven beyond a reasonable doubt that the
2 defendant intentionally engaged in conduct which the defendant
3 knew would create a grave risk of death to a person other than
4 one of the participants in the offense and resulted in the death
5 of Donald Lee Allen in Count 8, the answer to that is yes.
6 Statutory aggravating factors, do you the jury --
7 Section 3, do you the jury unanimously find that the government
8 has established the existence of the following statutory
9 aggravating factors beyond a reasonable doubt as to Count 8,
10 number 1, do you the jury unanimously find the government has
11 proven beyond a reasonable doubt that the defendant committed
12 the offense in Count 8 in expectation of the receipt of
13 something of pecuniary value, the answer is yes.
14 Do you the jury, number 2, do you the jury unanimously
15 find the government has proven beyond a reasonable doubt that
16 the defendant committed the offense in Count 8 after substantial
17 planning and premeditation to cause the death of Donald Lee
18 Allen, the answer is yes.
19 Moving over to Section 4, nonstatutory aggravating
20 factors, paragraph 1, do you the jury unanimously find the
21 government has proven beyond a reasonable doubt that the
22 defendant caused harm to the family of Donald Lee Allen and as a
23 result of the impact of the killing -- and as a result of the
24 impact of the killing of the family of Donald Lee Allen, the
25 answer is yes.
1243
1 Paragraph 2, do you the jury unanimously find the
2 government has proven beyond a reasonable doubt that the
3 defendant is likely to commit criminal acts of violence in the
4 future which would be a continuing and serious threat to
5 society, the answer is yes.
6 Number 3, do you the jury unanimously find the
7 government has beyond a reasonable doubt that the defendant
8 intentionally killed two people in that in addition to killing
9 Donald Lee Allen, the defendant also killed Robin Williams, the
10 answer to that is yes.
11 Now, as the mitigating factors, I don't believe it's
12 necessary that we go through all of those, is it, do you want me
13 to do that?
14 MR. LAUGHRUN: Judge, for the record, as long as you
15 file the verdict sheet, we have no objection to whatever the
16 jury found that the mitigators be, the findings of fact.
17 THE COURT: We will do that, then. I think they are all
18 probably the same as they were in Count 7, aren't they?
19 (Jurors nod heads.)
20 THE COURT: Moving over to determination, based upon the
21 consideration of whether the aggravating factor or factors found
22 to exist as to Count 8 sufficiently outweigh any mitigating
23 factor or factors found to exist to justify a sentence of death,
24 or in the absence of any mitigating factors whether the
25 aggravating factor or factors as to Count 8 are themselves
1244
1 sufficient to justify a sentence of death, indicate your
2 recommendation using either the following form, A B, or C, death
3 sentence, Section A, based upon the consideration of whether the
4 aggravating factors found to exist sufficiently outweigh any
5 mitigating factor or factors found to exist to justify a
6 sentence of death, or in the absence of any mitigating factors
7 whether the aggravating factors are themselves sufficient to
8 justify a sentence of death, we recommend by unanimous vote that
9 the sentence of death shall be imposed for the killing of Donald
10 Lee Allen in Count 8, the answer to that is yes, signed by all
11 of the jurors and the foreperson, dated February 10, 1998.
12 Moving over to Count Number 11, first of all the
13 certification, Section 7 in Count 8, signed by all of the jurors
14 dated February 10, 1998.
15 Now, let's move over to Count Number 11, paragraph 1, do
16 you the jury unanimously find the government has established
17 beyond a reasonable doubt that the defendant was 18 years of age
18 or older at the time of the offense in Count 11, the answer to
19 that is yes.
20 Requisite mental state, Section 2, do you the jury
21 unanimously find that the government has proven beyond a
22 reasonable doubt that the defendant intentionally killed Robin
23 Williams in Count 11, the answer to that is yes.
24 Number 2, do you the jury unanimously find the
25 government has proven beyond a reasonable doubt that the
1245
1 defendant intentionally inflicted serious bodily injury which
2 resulted in the death of Robin Williams in Count 11, the answer
3 is yes.
4 Paragraph 3, do you the jury unanimously find the
5 government has proven beyond a reasonable doubt that the
6 defendant intentionally engaged in conduct intending that Robin
7 Williams be killed and/or that lethal force be employed against
8 Robin Williams which resulted in the death of Robin Williams in
9 Count 11, the answer is yes.
10 Number 4, do you the jury unanimously find that the
11 government has proven beyond a reasonable doubt that the
12 defendant intentionally engaged in conduct which the defendant
13 knew would create a grave risk of death to a person other than
14 one of the participants in the offense and resulted in the death
15 of Robin Williams in Count 11, the answer is yes.
16 Moving over to statutory aggravating factors, do you the
17 jury unanimously find that the government has established the
18 existence of the following statutory aggravating factors beyond
19 a reasonable doubt as to Count 11, Paragraph 1, do you the jury
20 unanimously find that the government has proven beyond a
21 reasonable doubt that in the commission of the offense in Count
22 11, the defendant knowingly created a grave risk of death to one
23 or more persons in addition to the intended victim of the
24 offense, the answer is yes.
25 Do you the jury unanimously find, number 2, do you the
1246
1 jury unanimously find that the government has proven beyond a
2 reasonable doubt that the defendant committed the offense in
3 Count 11 after substantial planning and premeditation to cause
4 the death of Robin Williams, the answer is yes.
5 Nonstatutory aggravating factors, do you the jury
6 unanimously find the government has established the existence of
7 the following nonstatutory aggravating factors beyond a
8 reasonable doubt as to Count 11, paragraph 1, do you the jury
9 unanimously find the government has proven beyond a reasonable
10 doubt that the defendant caused harm to the family of Robin
11 Williams as a result of the impact of the killing on the family
12 of Robin Williams, the answer is yes.
13 Paragraph Number 2, do you the jury unanimously find the
14 government has proven beyond a reasonable doubt that the
15 defendant is likely to commit criminal acts of violence in the
16 future which would be a continuing and serious threat to
17 society, the answer to that is yes.
18 Paragraph Number 3, do you the jury unanimously find the
19 government has proven beyond a reasonable doubt that the
20 defendant intentionally killed two people in that in addition to
21 killing Robin Williams, the defendant also killed Donald Lee
22 Allen, the answer to that is yes.
23 Mitigating factors, we will file that with the Clerk and
24 also, of course, put it into the record.
25 Moving on over to determination, then, Section 6, based
1247
1 upon the consideration of whether the aggravating factor or
2 factors found to exist as to Count 11 sufficiently outweigh any
3 mitigating factor or factors found to exist to justify a
4 sentence of death, or in the absence of any mitigating factors
5 whether the aggravating factor or factors as to Count 11 are
6 themselves sufficient to justify a sentence of death, indicate
7 your recommendation using either of the following forms, A B or
8 C, the jury has chosen, A, death sentence based upon the
9 consideration of whether the aggravating factors found to exist
10 sufficiently outweigh any mitigating factor or factors found to
11 exist to justify a sentence of death, or in the absence of any
12 mitigating factors whether the aggravating factors are
13 themselves sufficient to justify a sentence of death, we
14 recommend by unanimous vote that a sentence of death shall be
15 imposed for the killing of Robin Williams in Count 11, the
16 answer to that is yes. All of the jurors signed the
17 certification, death sentence recommendation rather, dated
18 February 10, 1998.
19 Certification, Section 7, by signing below, each juror
20 certifies the consideration -- that consideration of the race,
21 color, religious beliefs, national origin or sex of the
22 defendant or the defendant -- or the victim was not involved in
23 reaching his or her individual decision and that the individual
24 juror would have made the same recommendation regarding a
25 sentence for the crime or crimes in question no matter what the
1248
1 race, color, religious beliefs, national origin or sex of the
2 defendant or the victim would have been, all signed by the
3 jurors and the foreperson, dated February 10, 1998.
4 Members of the jury, I can't tell you how much we
5 appreciate your participating in this procedure. It's been a
6 long process for you, I know that, it's taken you away from your
7 business and your homes, it's been hold hot and it's been cold
8 and everything else in here, and we do appreciate everything you
9 have done.
10 Mr. Laughrun, did you stand up for something?
11 MR. LAUGHRUN: Judge, under Rule 31, would you poll the
12 jury individually, if Your Honor please?
13 THE COURT: Yes, sir, getting ready to do that right
14 now.
15 Members of the jury, as to the Count Number 7, you have
16 heard the entire reading of all of the sections involved in
17 that, and we are going to read to you at this time Section
18 Number A in Count Number 7.
19 Based upon the consideration of whether the aggravating
20 factors found to exist sufficiently outweigh any mitigating
21 factor or factors found to exist to justify a sentence of death,
22 or in the absence of any mitigating factor whether the
23 aggravating factors are themselves sufficient to justify a
24 sentence of death, we recommend by unanimous vote that the
25 sentence of death shall be imposed for the killing of Donald Lee
1249
1 Allen in Count 7, the answer to that is yes. Mr. Wallace, is
2 that your verdict?
3 JUROR: Yes, sir.
4 THE COURT: Is that still your verdict?
5 JUROR: Yes, sir.
6 THE COURT: Mr. Politowicz, is that your verdict, is it
7 still your verdict?
8 JUROR: Yes, sir.
9 THE COURT: Mr. Mattingly, is that your verdict, is it
10 still your verdict?
11 JUROR: Yes, sir.
12 THE COURT: Ms. Stafford, is that your -- excuse me,
13 Mr. Owensby, is that your verdict and still your verdict?
14 JUROR: Yes, sir.
15 THE COURT: Ms. Stafford, is that your verdict and still
16 your verdict?
17 JUROR: Yes.
18 THE COURT: Mr. Schudel, is that the way you pronounce
19 that, Schudel?
20 JUROR: Yes.
21 THE COURT: Is that your verdict, is that still your
22 verdict?
23 JUROR: Yes, sir, Your Honor.
24 THE COURT: Ms. -- Mrs. Randazzo, is that your verdict
25 and still your verdict?
1250
1 JUROR: Yes, sir.
2 THE COURT: Mrs. Edwards, is that your verdict and still
3 your verdict?
4 JUROR: Yes, sir.
5 THE COURT: And Mr. Simpson, is that your verdict and
6 still your verdict?
7 JUROR: Yes, sir.
8 THE COURT: Ms. Farris, is that your verdict and still
9 your verdict?
10 JUROR: Yes, sir.
11 THE COURT: Ms. Boyette, is that your verdict and still
12 your verdict?
13 JUROR: Yes, sir.
14 THE COURT: Ms. Wilson, is that your verdict and still
15 your verdict?
16 JUROR: Yes, sir.
17 THE COURT: All jurors have indicated yes.
18 Certification has been signed by all of the jurors, we've been
19 through that before.
20 Moving over to Count Number 8, we've been through the
21 entire verdict with the jury and they have indicated -- now,
22 moving over as far as Count Number 8 is concerned, Section A,
23 based upon consideration of whether the aggravating factors
24 found to exist sufficiently outweigh any mitigating factor or
25 factors found to exist to justify a sentence of death, or in the
1251
1 absence of any mitigating factors whether the aggravating
2 factors are themselves sufficient to justify a sentence of
3 death, we recommend by unanimous vote that a sentence of death
4 shall be imposed for the killing of Donald Lee Allen in Count
5 Number 8.
6 Now, Mr. Wallace, is that your verdict and still your
7 verdict?
8 JUROR: Yes, sir.
9 THE COURT: Ms. Wilson, is that your -- Mr. Wilson, is
10 that your verdict and still -- I'm sorry, wrong one.
11 Mr. Politowicz, is that your verdict and still your verdict?
12 JUROR: Yes, sir.
13 THE COURT: Mr. Mattingly, is that your verdict and
14 still your verdict?
15 JUROR: Yes, sir.
16 THE COURT: Did you say yes?
17 JUROR: Yes, sir.
18 THE COURT: Mr. Owensby, is that your verdict and still
19 your verdict?
20 JUROR: Yes, sir.
21 THE COURT: Ms. Stafford, is that your verdict and still
22 your verdict?
23 JUROR: Yes, sir.
24 THE COURT: Ms. Randazzo, is that your verdict and still
25 your verdict?
1252
1 JUROR: Yes, sir.
2 THE COURT: Ms. Edwards, is that your verdict and still
3 your verdict?
4 JUROR: Yes, sir.
5 THE COURT: Ms. Simpson, is that your verdict and still
6 your verdict?
7 JUROR: Yes, sir.
8 THE COURT: Ms. Farris, is that your verdict and still
9 your verdict?
10 JUROR: Yes, sir.
11 THE COURT: Ms. Boyette, is that your verdict and still
12 your verdict?
13 JUROR: Yes, sir.
14 THE COURT: Ms. Wilson, is that your verdict and still
15 your verdict?
16 JUROR: Yes, sir.
17 THE COURT: Mr. Schudel, is that your verdict and still
18 your verdict?
19 JUROR: Yes, sir, Your Honor.
20 THE COURT: Moving on to Count Number 11, again you have
21 heard the answers to all of your questions in the verdict form
22 and you have all signed the certification.
23 Section A of Count 11, the death sentence, based upon
24 the consideration of whether the aggravating factors found to
25 exist sufficiently outweigh any mitigating factor or factors
1253
1 found to exist to justify a sentence of death, or in the absence
2 of any mitigating factors whether the aggravating factors are
3 themselves sufficient to justify a sentence of death, we
4 recommend by unanimous vote that a sentence of death shall be
5 imposed for the killing of Robin Williams in Count 11, the
6 answer to that is yes.
7 Mr. Wallace, is that your verdict and still your
8 verdict?
9 JUROR: Yes, sir.
10 THE COURT: Mr. Politowicz, is that your verdict and
11 still your verdict?
12 JUROR: Yes, sir.
13 THE COURT: Mr. Mattingly, is that your verdict and
14 still your verdict?
15 JUROR: Yes, sir.
16 THE COURT: Ms. Owensby, is -- Mr. Owensby, is that your
17 verdict and still your verdict?
18 JUROR: Yes, sir.
19 THE COURT: Ms. Stafford, is that your verdict and still
20 your verdict?
21 JUROR: Yes, sir.
22 THE COURT: Mr. Schudel, is that your verdict and still
23 your verdict?
24 JUROR: Yes, Your Honor.
25 THE COURT: Ms. Randazzo, is that your verdict and still
1254
1 your verdict?
2 JUROR: Yes, sir.
3 THE COURT: Ms. Edwards, is that your verdict and still
4 your verdict?
5 JUROR: Yes, sir.
6 THE COURT: Ms. Simpson, is that your verdict and still
7 your verdict?
8 JUROR: Yes, sir.
9 THE COURT: Ms. Farris, is that your verdict and still
10 your verdict?
11 JUROR: Yes, sir.
12 THE COURT: Ms. Boyette, is that your verdict and still
13 your verdict?
14 JUROR: Yes, sir.
15 THE COURT: Ms. Wilson, is that your verdict and still
16 your verdict?
17 JUROR: Yes, sir.
18 THE COURT: Is there anything further as far as this
19 jury is concerned for either side?
20 MR. CONRAD: Your Honor, before they are excused, do I
21 understand defense counsel to have waived any objection to the
22 complete reading of the special verdict formed?
23 THE COURT: Is that correct, Mr. Laughrun?
24 MR. LAUGHRUN: Judge, as long as it's filed as part of
25 the record.
1255
1 THE COURT: Pardon?
2 MR. LAUGHRUN: Yes, as long as you file --
3 THE COURT: Yes, sir, we're going to file this for the
4 record.
5 MR. LAUGHRUN: That's correct.
6 THE COURT: Thank you, sir.
7 Members of the jury, again, we started this process on
8 January 5th with the questionnaires and we are down to
9 February 10th. I think we got through with it as fast as we
10 possibly could considering the severity of the sentence in this
11 matter and the seriousness of the crimes which have been
12 charged. I hope you understand this process and that we have
13 not impinged on your time any more than absolutely necessary.
14 You did have a couple of days off during the process because we
15 had some things to do, and again, I think everybody wants to
16 thank you for your consideration. Obviously, your verdict,
17 determination of your verdict, you did not take it lightly, you
18 worked very hard on it and you've been here every day and done
19 everything you possibly could.
20 I've been telling you all during the trial you are not
21 to talk to anybody or repeat anything or anything else. You are
22 free now to talk to anybody you want to, or not to talk to
23 anybody you want to. If anybody wants to ask you some
24 questions, you are free to answer or you are free to say, I
25 don't want to talk about it. That's up to you. Same way with
1256
1 reading about it. Obviously maybe some of your families have
2 been keeping a few clippings, there haven't been too many, but a
3 few clippings about it and you may want to go back and read
4 those.
5 Again, I can't thank you enough. Maybe next time you
6 will get on a jury that will get through in a day or two. Thank
7 you so much, and maybe we'll see you again. You are excused.
8 (The jury left the courtroom.)
9 THE COURT: All right, as far as sentencing is
10 concerned, when do we want to do that?
11 MR. CONRAD: Your Honor, Section 3594, Title 18 says
12 that upon a recommendation under Section 3593(e) that the
13 defendant shall be sentenced to death or life imprisonment
14 without possibility of release, the Court shall sentence the
15 defendant accordingly, and I would ask the Court to do that now
16 on those three counts.
17 THE COURT: Do it now?
18 MR. CONRAD: Yes, sir.
19 MR. LAUGHRUN: Judge, we object to that. We have got
20 obviously motion to file. We have got seven days to file that.
21 You've also got eight other counts to sentence the defendant
22 on. We need to do it all at once, we would contend to Your
23 Honor. He is not going anywhere, obviously, he is in jail.
24 Nobody is going to be jeopardized by delaying the sentence to
25 give us a chance to file our motion. We have seven days to file
1257
1 that obviously. And I would ask that you do it all at one time
2 instead of doing it piecemeal. That's what the government is
3 asking you to do is do it piecemeal. There's nothing to be
4 gained by that, the sentence is what it is. If you deny our
5 motion for a new trial, or new sentencing, you've got to do what
6 the jury recommended, so nothing is going to change except we
7 come back and do it at one time. I'd ask that you set a date
8 for sentencing as Your Honor suggested.
9 MR. CONRAD: Your Honor, with respect to the eight other
10 counts, there has to be a presentence report prepared. That
11 will be a 60-day delay on those eight counts. I don't think
12 there is sufficient evidence in the record to waive the
13 presentence report. There is all sorts of enhancement issues
14 dealing with the armed career criminal status and other
15 sentencing issues. So eight counts will have to take 60 days or
16 more before sentencing can occur. I would ask the Court, the
17 Court has been patient with defense counsel's requests for
18 delays throughout this trial.
19 MR. LAUGHRUN: I object to that, if Your Honor please.
20 MR. CONRAD: I would ask -- and the Court has bent over
21 backwards to accommodate those requests. This jury has done
22 their duty, they have rendered a verdict, and now it is
23 incumbent upon the Court to sentence this defendant. There is
24 nothing gained by waiting a day to do that. We sat here, heard
25 the evidence, you read the jury's verdict, and I ask you to
1258
1 impose sentence on Counts 7, 8 and 11.
2 MR. LAUGHRUN: Judge, what is going to happen, if you
3 impose -- first of all, I resent the fact that the government
4 says that delays that we have caused. I would contend that if
5 there were any delays, we didn't run out of witnesses at all
6 like the government did. Be that as it may, that's not an
7 issue. If you enter judgment today, we have ten days to file a
8 notice of appeal with the Fourth Circuit on those three counts.
9 Time starts running the minute you impose judgment.
10 What is going to happen, the Fourth Circuit is going to
11 get the record of three counts, not get the record for eight
12 counts, and we are going to get letters from staff counsel up
13 there saying, we can't process the appeal that's going to come
14 up in two stages, because the ten days runs as of right now, if
15 you impose judgment, we have got ten days to file it. It's
16 going to be -- by the time the appellate counsel gets it -- the
17 transcripts are done, because Mr. Huseby has done such an
18 excellent job of keeping all the transcripts up. The
19 transcripts are virtually finished, so as a practical matter you
20 could get a briefing schedule for the first three counts, Counts
21 7, 8 and 11, before sentence is imposed on the other eight
22 counts. That's going to cause all sorts of appellate problems.
23 There is nothing to be gained by that.
24 Judge, Rule 32 says that you can make a finding to waive
25 the presentence report. I dare say in the 18 years I've been
1259
1 practicing before Your Honor that you don't have as much
2 sentencing information in this case than you've had in any case
3 Your Honor has ever presided over. We spent a week on
4 sentencing and you never do that. In all the cases you've tried
5 that I've been involved in and you've tried in general, I dare
6 say there has not been anything more about Mr. Barnette than
7 anybody out there has got to say. And you can make that
8 finding. In a capital case under Title 18, presentence reports
9 are not required. And I think Your Honor has enough information
10 to make that information available without doing a presentence
11 report, and I would ask you to find that there is enough to
12 waive that and sentence him all at one time to keep all of the
13 cases together, because, Judge, it's going to create enormous
14 havoc when the appeal process starts if you have to appeal two
15 separate portions of this case, and I'd ask you to do all at one
16 time.
17 MR. CONRAD: Your Honor, there is no appellate problem
18 whatsoever in sentencing on these three counts today, sending a
19 single letter to the Fourth Circuit requesting a delay until the
20 eight other counts have been sentenced. That's an
21 administrative detail that is routine, and it is not cumbersome
22 at all and it won't delay anything and won't cause any confusion
23 at all. Mr. Laughrun and I have participated in many appellate
24 cases with multiple defendants and briefing schedules stayed
25 until transcripts are prepared. There should be no reason to
1260
1 delay sentencing in this case. These families have been here
2 for a month. It won't have any impact on the appellate process
3 whatsoever.
4 THE COURT: What was the section of the statute you read
5 to me a minute ago, 35?
6 MR. CONRAD: 3594.
7 MR. LAUGHRUN: Judge, all that says is what everybody in
8 this courtroom knows, that you have to do what the jury says.
9 That's all it says. It doesn't say when you have to do it.
10 With all due respect to Mr. Conrad, Judge, it creates enormous
11 problems. And I wish I could say a letter to the Fourth Circuit
12 would suffice, it's not, because you've got to get everything
13 together at once. Because once a notice of appeal is filed with
14 the Fourth Circuit, then counsel gets a request to raise issues,
15 and what is going to happen is all sorts of correspondence is
16 going to go back and forth that's irrelevant, it's going to be
17 duplicative of the appeal of the other eight counts. So there
18 is nothing to be gained. We know what the sentence is going to
19 be. You have to do what the jury says you have to do. Whether
20 we like it or not, you are bound by Title. And instead of
21 coming back two sentencing, do it all at one time. We know what
22 you have to do on those three counts.
23 MR. WALKER: Judge, if I may address the Court just
24 briefly, that's the reason that 3594 is written the way that it
25 is, so that Your Honor can impose those sentences of death
1261
1 directly after the jury makes that recommendation. This jury
2 was told that all during voir dire by defense counsel and
3 counsel by the government, and that's why that statute is
4 written exactly the way it is, so that Your Honor can impose
5 those sentences right after the jury recommends them, and we
6 would ask that you do just that, Your Honor. There is no reason
7 to delay sentencing this defendant to death on Counts 7, 8 and
8 11. Mr. Laughrun might like to think there is a reason to do
9 that for some reason up in Richmond that they can't get the file
10 straight, but, Your Honor, there is no reason for you to delay
11 sentencing this defendant to death based on 3594. That's the
12 reason it's written the way it's written, I would submit to Your
13 Honor, and I would ask you to do that.
14 MR. LAUGHRUN: Judge, if I may.
15 THE COURT: All right, sir.
16 MR. LAUGHRUN: When Tim McVeigh was sentenced to death
17 for probably the worst crime in this country's history, the
18 judge delayed it out there to let counsel file pretrial motions
19 and do it all at one time. 168 death associated with that.
20 Now, I dare say if the government had had a verdict
21 adverse to its interest, they wouldn't be sitting here saying,
22 well, sentence him to life today or if the jury came back on
23 Section C, let you sentence him to a sentence less than death,
24 they're going to want all the time they can to pile it on. And
25 for them to piecemeal and cut and paste three of the counts
1262
1 sentenced today and not the others, it makes absolutely no
2 difference. Your Honor has to do what the jury says unless you
3 agree with our motion. If you go ahead and sentence him, we
4 have lost our right to file a motion for a new sentencing
5 hearing because you've already sentenced him.
6 THE COURT: File a motion for what?
7 MR. LAUGHRUN: Motion for new sentencing hearing, motion
8 for a new trial as a practical matter on this issue.
9 THE COURT: Well, you've already filed one of those, I
10 think, haven't you?
11 MR. LAUGHRUN: On the guilt innocence part. On this
12 part, we have seven days from today to file that. If you
13 sentence him, our pretrial motions are cut off, because once the
14 sentence is imposed, the only way a case can come back is on a
15 Rule 35 motion, which isn't coming, or ineffective assistance of
16 counsel motion. Once you impose sentence, all pretrial -- all
17 trial -- once you sentence him, all motions in this court are
18 gone. Post-trial motions now go to the Fourth Circuit, because
19 you have no jurisdiction at that point.
20 The statute says that we have got seven days to file
21 that motion under -- if you'll give me just a minute, Judge -- I
22 believe it's Rule 33, Your Honor. Under Rule 33, Judge, we have
23 got a right seven days after the verdict to file a motion for a
24 new trial, and that would include a new sentencing hearing I
25 would contend. If you impose judgment, we don't have that
1263
1 right. We have lost the right to come back to Your Honor to
2 show Your Honor why we deserve a new sentence hearing. Your
3 Honor may deny that motion, but that's a right that Title 18,
4 3594 is not taken away, it's still there. We have a right to
5 file that as I said earlier. If you impose judgment today, you
6 don't have jurisdiction to hear our motion.
7 So that's what Rule 33 talks about and that's why Rule
8 33 is there, because if you impose judgment, there is nothing
9 that this court has left to do in Counts 7, 8 and 11, if Your
10 Honor please.
11 MR. CONRAD: Your Honor, Rule 33 speaks to a new trial.
12 It says nothing about a sentencing hearing. Mr. Laughrun knows
13 that the time for filing his notice of appeal runs from the
14 issuance of the J and C, not what you do here today. Your
15 Honor, I would contend those are reasons without basis for
16 delaying this imposition of sentence. The Court shouldn't delay
17 it any further.
18 THE COURT: Well, what about the -- the government does
19 not feel that I should take into consideration Rule 33?
20 MR. CONRAD: No, sir, I think that refers to a motion
21 for a new trial, not a new sentencing hearing.
22 THE COURT: I'm sure that's what they are probably
23 planning on doing.
24 MR. CONRAD: But this is not a trial, this is a
25 sentencing.
1264
1 THE COURT: I understand that.
2 MR. CONRAD: And 3591 et sec controls what happens in
3 the sentencing hearing. Rule 33 deals with the guilt phase of
4 the trial. The Court has never had a Rule 33 motion for a new
5 sentencing hearing.
6 MR. LAUGHRUN: The Court has never had -- this district
7 has never had a jury be the sentencing authority either. Judge,
8 when Rule 33 was drafted, the death penalty statute for Federal
9 Court didn't exist. Rule 33 wasn't abrogated by Title 18,
10 3594. And again, I cite the Court to the McVeigh case. In the
11 McVeigh case, a 60 some page motion for new trial was filed out
12 there. Judge Mattach out there denied that motion and then went
13 ahead and sentenced the defendant.
14 As I said, if the government's position is Rule 33
15 doesn't apply to a sentencing hearing, that's fine. If they
16 want to argue that at the Fourth Circuit, that's fine. I'd ask
17 the Court to allow us to file that motion. We have a right to
18 file that motion, whether they like it or not and after
19 responding to it or not. There's nowhere in Title 18 death
20 penalty statute that says that the Federal Rules of Criminal
21 Procedure don't apply to sentencing hearings. It doesn't say
22 that.
23 MR. CONRAD: I'm saying Rule 33 doesn't apply to a
24 sentencing hearing. There's no basis for it. Rule 33 applies
25 to a new trial. They filed that motion already. There is no
1265
1 more motions to file.
2 MR. LAUGHRUN: Judge, let's assume, and I'm going to
3 hush after this, let's assume that on appeal the defendant gets
4 a new sentencing hearing. That is a trial, whether you call it
5 a sentencing hearing or a trial, it's an adversarial process,
6 witnesses are sworn, jury is impaneled, it is a trial, period.
7 You can call it a sentencing hearing all you want, it's an
8 adversarial proceeding and it's a trial. And the government,
9 the government has got the verdict it wants, there is absolutely
10 nothing that the government gains by sentencing this defendant
11 today.
12 MR. CONRAD: Finality for these families that have been
13 here for a month. There is nothing in a motion they could file
14 with you that you gives you the authority to do something any
15 different than what the jury recommended. It's mandatory, it's
16 binding, the Court has to impose it. There is no motion they
17 could file with you to release you from that directive. These
18 families have been here for a month, and to delay it any further
19 is not right. There is no basis for it.
20 MR. LAUGHRUN: Judge, let's assume during our motion
21 that you read the transcripts and listen to our briefs and
22 decide, yes, I made an error of law in that case. Now, I don't
23 have any brief to file with you today, I don't. If you do, we
24 are entitled to a new sentencing hearing. You have the inherent
25 discretion to set that verdict aside. You always have the
1266
1 discretion to set a verdict aside, always. In your inherent
2 powers as a United States District Court Judge, if you think
3 it's against the greater weight of the evidence, whatever, an
4 error of law was committed, an error of fact was misinterpreted
5 by the jury, you always have that inherent authority, always
6 have that. And the government saying Rule 33 doesn't apply,
7 that's fine, but it does whether they like it or not, it
8 applies. Thank you, Judge.
9 THE COURT: All right, Mr. Laughrun, I have listened to
10 you and I have also listened to this trial. I think we actually
11 started the evidence on January 13th, I believe, may have been
12 the 12th, the 13th. As I made a statement I think sometime
13 during the trial, I do not believe that there were any errors in
14 this trial so far. There may be, but that will be decided by
15 the appellate court, and I really believe that there is really
16 no justification at this time to delay sentencing in the
17 matter. Therefore, I will do that at this time. Does the
18 defendant want to say anything before I start?
19 MR. LAUGHRUN: Judge, if you are going to impose
20 sentence, I would ask you to impose sentence on all 11 counts.
21 THE COURT: I am.
22 MR. LAUGHRUN: You have got enough evidence before you
23 that you've got, I mean, you couldn't have any more evidence
24 than you've got about this young man, what you've heard from
25 both sides in the last week and a half. The rule number is
1267
1 32(b). You can make that finding. There is enough evidence to
2 sentence him, we will in open court waive the presentence
3 report. Now is the time to get completely finished.
4 MR. CONRAD: You can't sentence on the other eight
5 counts. They are subject to the guidelines. There has been no
6 guideline analysis. Those eight counts cry out for the
7 presentence report.
8 MR. LAUGHRUN: Which I can tell the Court we are not
9 going to cooperate on.
10 THE COURT: All right, if you will, ask your client if
11 he wants to say anything, Mr. Laughrun, I'm going ahead with the
12 sentencing today.
13 THE DEFENDANT: Since this trial started, I haven't had
14 a chance to address the families, and I wanted to very badly.
15 And I would just like to tell you that I've stared in your eyes
16 and I've felt your pain. No matter what these guys say, I'm
17 hurting. This shouldn't have happened, none of this should have
18 happened. I'm ashamed of myself. I used to be able to look
19 people in the eye, but I can't do it anymore.
20 You might listen to these guys, they want my life,
21 that's fine, because I don't know, you know, if I want to keep
22 my life because it shouldn't have happened. They said a lot of
23 bad things about me, you've heard a lot of bad things about me,
24 but you haven't heard any good, and that's fine, because nobody
25 deserves to hear any good about what I did to you. I took
1268
1 something from you that you very much deserved to keep, and I
2 hurt because I know you hurt, and I know what you lost.
3 Bertha, I loved your daughter more than anything in this
4 world, and it hurts me that she is not here. It hurts.
5 Mr. Allen, I know I did not know your son, but I know how you
6 feel. You may not believe it, you may never believe it, but
7 that's the truth. They called me a liar, they called me
8 everything, but I know how I feel.
9 They've sentenced me to death, that's fine. The worst
10 thing they could have done is sentence me to life, because I
11 live every day in a little block and think about what I did, and
12 that is painful. That hurts worse than anything I've ever felt,
13 and I feel it every day. And I can only imagine what you are
14 going through.
15 I may have done a lot of bad things, but I've never done
16 anything like that. And to think about what I've done to you,
17 both families, and to my family, it hurts, and I'm very sorry.
18 I can't and I will never ask you to forgive me, because
19 I don't deserve to be forgiven. I would never ask you for mercy
20 because I don't deserve it. You don't deserve a second chance.
21 They have said a lot of things that I agree with.
22 Regardless of what my attorneys have tried to do, I've agreed
23 with the prosecution on a lot of stuff, because I was wrong.
24 And I want you to know straight from me that I do feel
25 for you, and I do feel for the pain, and I still pray every day,
1269
1 and I will never stop because I know you won't.
2 To my family, I am sorry, and I love you all.
3 Thank you, Your Honor.
4 MR. LAUGHRUN: Thank you, Judge Potter.
5 THE COURT: Thank you, Mr. Barnette.
6 In the matter of Aquilia Marcivicci Barnette, docket
7 number 3:97CR23-P, Count Number 7, the jury having found that
8 based upon the consideration of whether the aggravating factors
9 found to exist sufficiently outweigh any mitigating factor or
10 factors found to exist to justify a sentence of death, or in the
11 absence of any mitigating factors whether the aggravating
12 factors are themselves sufficient to justify a sentence of
13 death, have recommended by unanimous vote that a sentence of
14 death shall be imposed for the killing of Donald Lee Allen in
15 Count Number 7, the Court will impose that sentence upon the
16 defendant at this time.
17 Moving on over to Count Number 8, based upon the
18 consideration of whether the aggravating factors found to exist
19 sufficiently outweigh any mitigating factor or factors found to
20 exist to justify a sentence of death, or in the absence of any
21 mitigating factors whether the aggravating factors are
22 themselves sufficient to justify a sentence of death, the jury
23 has recommended by unanimous vote that the sentence of death
24 shall be imposed for the killing of Donald Lee Allen in Count
25 Number 8. The Court will impose that sentence at this time.
1270
1 Moving over to Count Number 11, the jury having found
2 that based upon the consideration of the aggravating factors
3 found to exist sufficiently outweigh any mitigating factor or
4 factors found to exist to justify a sentence of death, or in the
5 absence of any mitigating factors whether the aggravating
6 factors are themselves sufficient to justify a sentence of
7 death, the jury has recommended by unanimous vote that a
8 sentence of death shall be imposed upon the killing of Robin
9 Williams in Count Number 11. Therefore, the Court will impose a
10 sentence of death upon the defendant for Counts Number 7, 8, and
11 11, and may God have mercy on your soul.
12 I'm sorry, Mr. Laughrun, I really can see no reason to
13 defer this any longer. It's something none of us want to do,
14 but it's something we have to do.
15 MR. LAUGHRUN: Judge, pursuant to that, we would
16 respectfully enter notice of appeal to the Fourth Circuit and we
17 will file that within ten days in writing, if Your Honor please,
18 and we will get that filed.
19 THE COURT: Okay, fine, thank you, sir.
20 Okay, we'll recess, I guess that's -- well, we'll
21 adjourn at this time.
22 (Court in recess.)
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2 UNITED STATES DISTRICT COURT
3 WESTERN DISTRICT OF NORTH CAROLINA
4 CERTIFICATE OF REPORTER
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8
9 I, Scott A. Huseby, Official Reporter and Notary Public
10 certify that the foregoing transcript is a true and correct
11 transcript of my original stenographic notes transcribed under
12 my direction. This 13th day of February, 1998.
13
14
15 ____________________
SCOTT A. HUSEBY
16 NOTARY PUBLIC,
OFFICIAL COURT REPORTER,
17 REGISTERED PROFESSIONAL
COURT REPORTER,
18 CERTIFIED COURT REPORTER.
19
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