Citations
- 979 F. Supp. 1442
Full opinion text
ORDER
ORINDA D. EVANS, District Judge.
This criminal case is before the court on Defendant’s motion for judgment of acquittal, new trial and sentencing hearing, and correction or reduction of sentence. The government has responded. Having read and considered the motion, the supplement to the motion, and the parties’ briefs, the court denies Defendant’s motion.
Defendant, an inmate serving a life sentence for murder at the United States Penitentiary in Atlanta, Georgia (USP-Atlanta), was indicted in this case for murdering a prison guard, D’Antonio Washington. The indictment was brought under 18 U.S.C. § 1118, which provides that a federal inmate serving a term of life imprisonment who commits murder may be punished either by the death penalty or by life imprisonment. The case was tried to a jury during February and March, 1997. A guilty verdict was returned on March 12, 1997. At the penalty phase, the jury returned a death sentence which was pronounced by the court on March 20, 1997.
The trial evidence showed without dispute that Defendant approached Officer Washington from behind in an open cell block area and inflicted mortal wounds to Washington’s head with multiple blows of a hammer.
Defendant presented an insanity defense and also argued that the evidence was insufficient to prove his guilt beyond a reasonable doubt. During his trial testimony, Defendant admitted committing the murder. Defendant testified that while he emphatically believes he is not schizophrenic, he has implants in his body which monitor his thoughts and cause him physical pain and he constantly hears voices which curse him and harass him. He testified that he believes that the government placed the implants in his body; that the government is the cause of the voices; and that these problems began in 1991, when he was at FCI-Leavenworth. He testified essentially that Washington’s murder was intended to stop the government from tormenting him. The defense pointed out that in Defendant’s 1987 evaluation at FCI-Butner, government psychiatrists had determined that the Defendant had a personality disorder with paranoid and schizotypal features. At that time they noted this could be a prodromal phase of schizophrenia. Defendant’s expert witnesses testified that he suffers from paranoid schizophrenia; the defense argued that the disease had rendered the Defendant unable to understand the nature and quality of his acts or appreciate the wrongfulness of his conduct on the day of the murder, December 21,1994.
The government’s expert witnesses testified that the Defendant has had a history of behavioral and psychological problems, but opined that the correct diagnosis is “personality disorder with paranoid, schizotypal, and antisocial features.” (Tr. Vol. 14, at 2999). The government argued that Defendant’s statements to government and defense psychologists and psychiatrists regarding the implants and the voices were contrived in an effort to establish an insanity defense, and that Defendant only began reporting these symptoms considerably after Washington’s murder. The government presented evidence of Defendant’s statements and actions immediately prior to the murder, urging that these indicated a degree of planning and awareness of wrongfulness incompatible with an insanity defense. The government also pointed out that 1996 administrations of the Minnesota Multiphasic Personality Inventory by both defense and government psychologists did not show clinical elevation of the schizophrenia or paranoia scales, and that the results were valid according to the test’s own validity scales.
At the sentencing hearing phase, the government’s evidence showed that on April 25, 1995, the Defendant, while in handcuffs, attacked one of four guards who had entered his cell in the segregation unit at FCI-Leavenworth to place leg irons on him prior to taking him to an attorney conference. Defendant used a sharp pointed object, inflicting minor stab wounds, and also struck blows to the guard’s body after the guard had fallen to the floor. In addition, the government’s evidence showed that on December 30, 1996, while incarcerated at the Paulding County Jail (awaiting his February 1997 trial in the instant case), the Defendant forced his way out of his cell while it was being cleaned, chased the guard down the hall, and attacked and beat him on his face and chest. Defendant testified at the sentencing hearing and said, essentially, that Officer Washington had deserved to die.
Defendant first argues that he is entitled to a new sentencing hearing based on insufficient voir dire and improper rulings on challenges for cause.
Before turning to the specifies of Defendant’s argument, the court will first set out the manner in which voir dire proceeded in this case. First, prior to trial counsel for both sides submitted proposed juror questionnaires. The court prepared a questionnaire drawing on the proposed questionnaires submitted by both sides. Counsel were provided a copy of the final version of the questionnaire in advance of trial. On the day the jurors reported for jury selection, each prospective juror was required to fill out a questionnaire. A sample of the questionnaire is attached hereto as Exhibit A.
The initial portion of the questionnaire gave the jury some information concerning the case. It stated that the Defendant was charged with killing a prison guard while serving a life sentence. It stated that an insanity defense might be presented and that if the penalty phase was reached, evidence concerning the Defendant’s mental condition would be presented. The jury was informed that if the Defendant were found guilty, the case would move to a penalty phase wherein the jury would make the determination as to whether or not the death penalty should be imposed. Thus, before responding to the questionnaire and before the oral questioning began, the jurors knew not only that the Defendant was charged with murder, but also had more specific contextual information. They also knew that there would be psychiatric evidence which might be offered as a defense or in any event in mitigation of the penalty and that the jury would be determining the sentence, with the death penalty being one option.
The oral questioning began with questions by counsel for both sides after each prospective juror had stated certain basic information (name, city and county of residence, occupation, name of company employed by, position held prior to retirement if applicable, plus spouse’s occupation if applicable). At this point, counsel’s questions were limited to details of occupation, plus spouse’s occupation if applicable.
Following that, copies of the completed juror questionnaires were distributed to counsel. After counsel had had an opportunity to review the questionnaires, each prospective juror was called into the courtroom individually for questioning. The views of counsel were solicited as to what questions they believed would be appropriate for each juror. In all cases where a juror had indicated that he/she would “automatically vote in favor of the death penalty” or “automatically vote against the death penalty”, the court and counsel asked questions to verify that the juror understood the question and meant what he/she said. Also, all of those jurors who responded that if the jury had to determine whether or not the death penalty should be imposed, “I would make my decision based on consideration of the evidence in this particular ease, including aggravating or mitigating circumstances, and in accordance with the Court’s instructions in the law”, but who had also stated strong support for the death penalty were questioned by the Court and in many instances by counsel to verify that they indeed could act as fair impartial fact-finders. After each juror had been questioned, counsel had an opportunity to move to challenge the juror for cause outside the juror’s presence.
The court also conducted general voir dire questioning of prospective jurors as a group. These questions were largely drawn from lists of proposed questions filed by both sides. In some instances, counsel asked follow-up questions.
Defendant first asserts that prospective jurors Lindsay and Parker were insufficiently questioned as to their anti-death penalty views and that they were improperly excused for cause.
Juror Lindsay stated in his questionnaire that if the Defendant was convicted of murder without justification, that he would automatically vote against the death penalty. He also checked the “Yes, definitely” option in response to the question: Would you favor abolishing the death penalty? In response to another question on the questionnaire, he checked a block indicating “the death penalty should be abolished because it is wrong”. In response to another question, he selected the option indicating that he “could not support the death penalty in any case”, in lieu of the other option which was “might sometimes support the death penalty in the most horrible cases”. Finally, in response to a question as to what reasons justified the death penalty, Lindsay checked the option “there is no good reason for the death penalty”. The relevant portion of Lindsay’s individual oral questioning is as follows:
The Court: Could you just tell us again verbally how you feel about the death penalty?
Juror Lindsay: I am adamantly opposed to murder, any kind of murder, either by an individual or collectively by us as a group. I’m adamantly opposed to murder, and I consider the death penalty murder.
The Court: Let me tell you this: we are not necessarily looking for jurors who are in favor of the death penalty. That’s not important. It’s not required. What is required is somebody that can take a good look at the facts of our particular case, listen to the evidence, try to figure out what really happened in this case, try to get as much information as you can about the defendant, and then if we do get to the part of the trial where the penalty is at issue, we are looking for jurors who can look at the different options and weigh them fairly.
Could you consider the various options; in other words, for example, consider the option of a life sentence versus the death penalty?
Juror Lindsay: I could consider anything except the death penalty. That for me is out. As a matter of fact, I have a living will with my wife that if someone were to kill me, that I would not want that person to experience the death penalty. I’m adamantly opposed to it.
The Court: What about the possibility, and I don’t know what the evidence is going to show, and I don’t mean to suggest to you what the evidence is going to be, but I mean what if you sat as a juror, and we get to the death penalty phase of the trial, and the evidence is just, you know, really overwhelming and gut wrenching. Could you possibly consider imposing the death penalty if the evidence is just really bad?
Juror Lindsay: I reiterate what I said. My wife and I have an agreement. I love my wife. I love my wife more than I love me. If someone were to kill my wife and it were to get to court to the point of the death penalty, I would, in fact, voice an opinion that I do not want that person put to death. I’m adamantly opposed to murder whatever the issues. I’m adamantly opposed.
The Court: Can you think of any circumstance under which you as a juror would be able to vote for the death penalty?
Juror Lindsay: Absolutely not. Absolutely not. Absolutely not.
The Court: Thank you. Step out in the hall, and we will let you know something in a minute.
(Tr. Vol. 2, at 147-49).
The government moved to excuse Lindsay for cause and the defense objected. The motion was granted. The defense contended that the court should have asked the following question:
You understand that sometimes you have to apply laws you don’t believe in, and that is your duty as a juror. Could you, if the court instructed you, and you took an oath to apply the law, even if you disagreed with it, could you comply with the court’s instructions?
(Tr. Yol. 2, at 150).
On her questionnaire, juror Parker cheeked the block “I would automatically vote against the death penalty” in response to the question as to how she would proceed at a sentencing phase if the defendant were convicted of murder without legal justification. In an apparent contradiction, she checked the “not sure” space in response to the question “Would you favor abolishing the death penalty”; but on the next question, which was “Which of the following describes your attitude toward the death penalty? (you can check as many or as few as apply to you)”, she selected the block “the death penalty should be abolished because it is wrong” and added a handwritten comment “Yes I’m [sic] say this by the Bible which says thou shell [sic] not kill.” Finally, she checked “There is no good reason for the death penalty” in response to the question “What reasons justify the death penalty”. The following individual voir dire of juror Parker as to death penalty views took place:
The Court: All right. Now, let me change the subject for just a minute. When you filled out your questionnaire yesterday, you were asked some questions about how you feel about the death penalty-
Juror Parker: Uh-huh.
The Court: Would you just tell us again verbally what your feelings are about the death penalty?
Juror Parker: I do not believe in the death penalty. First, I’m a Christian, and I believe in God who said that you shall not kill, and that’s for me and for anybody else. Now, that’s what I believe.
The Court: Now, what we are looking for in this case is not necessarily people who are in favor of the death penalty. You do not have to be in favor of the death penalty to be on our jury, but it has to be one of the things that you could consider if you thought the facts of the case were really bad, and if we get to the penalty phase of the trial, which we might or we might not, but if we got to that phase of the trial, the question is would you be able to listen to the evidence and follow the court’s instructions on the law, part of the instruction being that you should consider the aggravating and mitigating circumstances, and then pick the penalty that is right for this particular case? In other words, we need people who can keep an open mind and consider the death penalty as just one possibility. Is it a possibility that you could consider? You need to answer out loud?
Juror Parker: I don’t think so.
The Court: Okay. Mr. Martin, do you want to ask any questions?
Mr. Martin: Yes, Ma’am.
EXAMINATION
By Mr. Martin:
Q. Ms. Parker, you understand it is important that we have jurors representing all the community, do you not?
A. Yes.
Q. And you also understand there are occasions when we have to obey a law which we might not agree with?
A. Yes.
Q. You understand that?
.A. Yes.
Q. And you understand that no court or no juror would ever be required under the law to impose the death penalty. The only think we are asking is whether or not you can consider it as a possibility. Do you understand that?
A. Yes.
Q. Now, if you took an oath as a juror to apply the law, and the court instructed you that one of the things that the law requires you to do is to give consideration to the death penalty along with all the other factors in this case, the good and the bad, do you think you could temporarily set aside your, opinions and try to do your duty as a juror in conformance with the law? I don’t mean you give up your opposition to the death penalty, but just the ability to consider it as an option in this case?
A. I’m I sure I could consider it.
Mr. Martin: Your Honor, that’s all I have.
EXAMINATION
By Mr. McKinnon:
Q. Ms. Parker, you have to be able to do more than consider it. You have to be able to listen to the instructions that the judge would give you about what you should consider in deciding whether you should impose the death penalty or some lesser penalty. Can you listen to the Judge’s instruction and follow these instructions even though you personally disagree with giving the state the power to impose the death penalty in a particular case?
A. Sure, I can listen to the Judge.
Q. And if the Judge tells you that you have to consider certain factors about the defendant’s background and about the characteristics of the crime, and if you find those factors to be present that you may impose the death penalty, can you listen to those instructions and follow that instruction and say yes, I can impose the death penalty if those factors are proven here? A. I could go along with it.
The Court: I’m sorry. I can’t hear you.
Juror Parker: I said I’m sure I can go along with that.
By Mr. McKinnon:
Q. And can you come back into this courtroom, look at this man, and say, yes, I’m one of the jurors who voted in favor of imposing the death penalty in this case?
Mr. Martin: Your Honor, I would object to that question.
The Court: Overruled.
Juror Parker: Repeat it.
By Mr. McKinnon:
Q. If the jury unanimously concludes that it would impose the death penalty, and that is done back in the jury room outside the presence of the lawyers and the judge and the defendant, but then you come back in and publish your verdict and say out loud that you are imposing the death penalty as a body of 12 people, then you may be asked individually to state in the courtroom looking at the defendant with him present that you voted in favor of the death penalty in this particular case. Could you do that?
A. I don’t know if I can do that or not.
The Court: I couldn’t hear you, ma’am.
Juror Parker: I don’t think I could do that.
The Court: Well, I want you to understand that, or course, my job is to give instructions to the jury. That’s part of what I do, but I will not be telling the jury what to do. If we get to that penalty phase, I’m not going to be saying you do this or you do that. I’m going to be giving out sort of guideline instructions saying here are the sorts of things you should consider. It is going to be up to the jury ultimately to decide what to do. If the evidence was just—and I don’t know what the evidence is going to be in this case really, but let’s suppose the evidence was just really bad. I mean it just really looked like a horrible, horrible crime. If that were to happen, could you vote in favor of the death penalty?
Juror Parker: No, ma’am. I could not.
The Court: Okay. Step out in the hall, and we will let you know something in just a minute.
(Juror Parker excused from the courtroom).
After juror Parker left the courtroom, the following colloquy occurred:
The court: I think that Mrs. Parker’s hardship excuse is meritorious, quite frankly, and I also think she is disqualified. I do not think that she could vote in favor of the death penalty.
I would also like to observe that I don’t think these questions about following the instructions of the court are going to cut it. I think the questions are too confusing to the jurors. It puts them in a position of saying no, I don’t think I could follow the instructions of the court, which they are not prone to do. I think we have to go at it a slightly different way.
Mr. Martin: Your Honor, may I respond to that?
The Court: Yes.
Mr. Martin: The reason that you have to go at it that way is because Waiñwright v. Witt says that the standard is would their views on capital punishment, quote, prevent or substantially impair the performance of his duties as a juror in accordance with his instruction and his oath.
What Witt made clear was that jurors who are opposed to the death penalty, and, of course, Lockhart v. McCree said this as well, who are violently opposed to the death penalty are still qualified as jurors as long as they can say we will follow the court’s instructions, and we will set aside our personal belief in deference to the rule of law. That’s what I’m trying to get at with these jurors.
(Tr. Vol. 2, at 156-57).
Juror Parker was excused.
While it is true that Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986) states that jurors opposed to the death penalty may serve “so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law,” id. at 176, 106 S.Ct. at 1766, nothing in Lockhart requires that particular words be used in making this inquiry. The basic idea is that a juror who is ideologically opposed to the death penalty, but who could nonetheless impose the death penalty if this were shown to be appropriate by the facts and law in a particular case, is not disqualified. The court was convinced that neither juror could vote for the death penalty, regardless of the evidence, and that neither could give fair and impartial consideration to the death penalty as an option, consistent with the court’s instructions to consider aggravating and mitigating circumstances.
The question sought by defense counsel “Could you set aside your beliefs and follow the court’s instructions”, while meaningful to judges and lawyers, is ambiguous and possibly misleading to a layperson. A prospective juror may not know to what “instructions” the question is referring and may be reluctant to state unwillingness to follow the law or the court’s instructions. Also, some jurors are more prone to feeling pressured and confused by leading voir dire questions than others. Juror Parker’s voir dire illustrates this.
Defendant next argues that the court conducted insufficient voir dire of certain prospective jurors who favored the death penalty, and with respect to those the defense challenged for cause, improperly declined to excuse them for cause. Defendant asserts that “the voir dire was insufficient to determine whether or not the views of the juror were sufficiently dogmatic that the juror should have been disqualified for cause, because he or she was substantially impaired from being able to follow this court’s instruction concerning the consideration and weighing of mitigating circumstances.” (Supplement to Motion for Judgment of Acquittal, New Trial and Sentencing Hearing, and Correction or Reduction of Sentence with Incorporated Authority, filed June 2, 1997, at 4).
The prospective jurors included within this argument are jurors Youmans, Heard, Brown, Jeffares, Alexander, Belcher, Moore, Foil, Adams-Conner, Falany, Fields, Rudisill, Cody, Cobb, Jackson, and Gravett. All of these jurors except Fields and Gravett had stated on their questionnaires that they “very strongly” favored the death penalty, but all had indicated that if the penalty phase were reached, “I would make my decision based on consideration of the evidence in this particular case, including evidence of aggravating or mitigating circumstances, and in accordance with the court’s instructions on the law.” Fields had indicated that he was “somewhat strongly” in favor of the death penalty; in response to another question, he had also checked a block “The death penalty should probably be imposed more frequently than it is.” Gravett had stated he was “somewhat strongly” in favor of the death penalty, but that he definitely did not think it should be abolished. The court conducted individual oral voir dire as to each of these jurors’ views concerning the death penalty. The defense moved to excuse for cause all of the referenced jurors except for jurors Belcher and Youmans, as to whom there was no motion. Of this group, jurors Belcher and Fields were selected for the jury. (Tr. Vol. 4, at 647, 700-01).
Defendant’s legal argument concerning insufficiency of voir dire as to these jurors is based on a combined interpretation of two Supreme Court decisions, Wainwright v. Witt, 469 U.S. 412,105 S.Ct. 844, 83 L.Ed.2d 841 (1985), and Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). In Witt, the Supreme Court held that a juror with anti-death penalty views was properly excused for cause where her views would prevent or “substantially impair” the performance of her duties as a juror. In Morgan, the Supreme Court held that the trial court’s refusal to inquire of prospective jurors in a capital case whether they would automatically vote for the .death penalty if the defendant were found guilty violates due process. Defendant therefore asserts that his due process rights were violated because he was unable to determine whether jurors who supported the death penalty were “substantially impaired”.
The scope of Defendant’s argument is somewhat ambiguous. Defendant appears to argue that those jurors who indicated that they would be able to make a decision as to whether or not to impose the death penalty “based on consideration of the evidence in this particular case, including evidence of aggravating or mitigating circumstances, and in accordance with the court’s instructions on the law”, but who also indicated strong support of the death penalty, should have been questioned more extensively than they were to determine whether such jurors were “substantially impaired” so as to disqualify them from jury service. Defendant may also be arguing that any juror who supports the death penalty “very strongly” is per se substantially impaired and must be stricken on a challenge for cause.
The relevant portions of the individual oral questioning of each of the referenced jurors is as follows:
Juror Youmans
The Court: I wanted to ask you a few more questions following up on your questionnaire answers.
Juror Youmans: All right.
The Court: You indicated that you are strongly in favor of the death penalty. Now, of course, in this case that will not become an issue unless and until the Defendant is found guilty. If he is found guilty, however, that jury is going to have to decide what penalty applies in this case, and we, of course, are looking for jurors who can do that in a fair and impartial way.
I anticipate that if we get to that part of the trial, that the government is going to be presenting evidence of what is called aggravating circumstances, and the defense is going to be presenting evidence of mitigating circumstances.
Now, keeping in mind that we won’t even get to that point unless the jury first finds that there was a premeditated murder, okay, and given the fact that you say you are strongly in favor of the death penalty, how comfortable are you in saying, or could you say that options other than the death penalty would be a live option for you at that point, another option being life in prison without parole?
Juror Youmans: I have no problem with that. The question wasn’t presented any other way with any other circumstances other than how do you feel about the death penalty. So, the way I perceived it, I’ve got to answer it honestly, but by the same token, I would view everything that was presented, or whatever, and then make a determination based on that. Just simply because I feel strongly for the death penalty doesn’t mean that that’s my only option for any decision that I might make. Does that make sense to you?
The Court: Yes. So, do you think you could give fair consideration to the evidence and make an impartial determination if we get to that part of the case?
Juror Youmans: Certainly. Certainly.
(Tr. Yol. 3, at 548-49).
Juror Heard
The Court: ____I wanted to ask you a couple of questions regarding your views on the death penalty. The first thing the jury is going to do in this case is determine whether the Defendant is guilty or not guilty. If the Defendant is found guilty, there will be a second separate sentencing phase, and at that time each side has the opportunity to present additional evidence.
Based on what the lawyers have told me, I anticipate that at that time the government will put on some evidence of what it considers to be aggravating circumstances, things that suggest that the death penalty should be imposed. It is also my understanding that the defense will present evidence which it considers mitigating in nature, and which would point more towards a term of life imprisonment. I further anticipate that the evidence presented by both sides is going to be sharply disputed.
If we get to that point in the trial, I will be instructing the jury that it should give careful consideration to the evidence presented by both sides, and that the jury should determine based on consideration of all of the evidence whether the death penalty or another penalty should be imposed.
I notice that you indicated in your questionnaire that you very strongly favor the death penalty. In light of that, what is the degree of your confidence that you can give fair consideration to all of the evidence that is presented and make a fair choice as to the appropriate penalty in this case?
Juror Heard: Well, I think if the crime is of a malicious nature, as you just spoke of, and the death penalty is justified in such a case, I would have no problem whatsoever with it. The evidence would have to be overwhelming, I would think, for me to vote for the death sentence. I would be strictly on what was said as far as the evidence is concerned.
The Court: Okay. So, at this point is it fair to say that you have an open mind as to what you would do if we get to that penalty phase?
Juror Heard: Yes.
The Court: Can you keep an open mind and make a decision based on the evidence you hear?
Juror Heard: Most definitely.
The Court: All right. Thank you. Would you please go on up to the jury assembly room, and we will be with you as soon as possible.
(Tr. Vol. 3, at 412-14).
Juror Brown
The Court: Okay. Also on your questionnaire you indicated you were very strongly in favor of the death penalty. Now, this case is going to first be a trial of the guilt/innocence issue. If the Defendant is found not guilty, of course, there won’t be any penalty phase of the trial, but if he is found guilty, we will then have to move into the penalty phase, and I anticipate that at that time both sides will be presenting evidence that they think is relevant.
The government will be presenting evidence that they consider is aggravating in nature, that they feel would make the death penalty the right penalty. The defense, on the other hand, will be presenting evidence in mitigation, evidence which they feel would make the death penalty not appropriate, that would point more towards a sentence of life imprisonment, and I anticipate that both sides’ evidence is going to be conflicting. The jury is going to have to decide what the real facts are.
If you were on the jury, and if we get to that penalty phase, can you fairly and impartially consider the evidence presented by both sides, and make a fair determination as to whether the death penalty should be imposed, or life imprisonment should be imposed, or do you feel like you would be pretty much pointed toward one outcome or the other?
Juror Brown: I think I could make a fair judgment in the individual case from the evidence.
The Court: okay. Thank you. You may go up to the jury assembly room, and we will be with you as soon as we can.
(Tr. Yol. 3, at 430-31).
Juror Jeffares
The Court: You indicated in your questionnaire that you very strongly favor the death penalty.
Juror Jeffares: Yes, I do.
The Court: The jury that is selected in this case will first have to make a decision as to whether the Defendant is guilty or not guilty. Of course, if he is found not guilty, that will end the case. If he is found guilty, we will go on to the penalty phase of the case, and at that time it appears to me that both sides will be presenting evidence.
The government will be presenting the evidence that it considers to be aggravating in nature, things that tend to suggest that the death penalty should be imposed. The defense will be presenting evidence mitigating in nature, evidence that they believe will show that the death penalty would not be appropriate in this case, and that some other sentence; for example, life imprisonment might be the right sentence.
It appears to me that both sides’ evidence is going to be contradicted by the other side. The jury is going to have to decide that the true facts are, and make a determination as to what penalty should be imposed.
If you are picked for the jury, can you listen to all of the evidence and give fair consideration to both of the penalty options that are presented in this case, or do you think your feelings about the death penalty would tend to make you predisposed toward one outcome rather than the other?
Juror Jeffares: I believe I can listen to the evidence and make a decision based on that.
The Court: Can you make a decision that is fair to both sides?
Juror Jeffares: Yes, I believe I could.
The Court: okay. You may go on up to the jury assembly room, and we will he with you as soon as we can.
(Tr. Yol. 3, at 434-35).
Juror Alexander
The Court: You indicated that you were strongly in favor of the death penalty.
Juror Alexander: Yes.
The Court: I want to ask you this question: If we get to the penalty phase of the trial—of course, if the Defendant is found not guilty at the initial phase, that would end it, but if he is found guilty and we go on to the penalty phase of the trial, each side will have a chance to present additional evidence. Based on what the lawyers have told me, I believe the government is going to present evidence that they consider aggravating in nature, evidence that would tend to point toward the death penalty. The defense on the other hand has indicated that they intend to present mitigating evidence, evidence that would point away from the death penalty and toward the imposition of some other penalty; for example, life in prison; there will be disputes as to each sides’ evidence. None of it will be undisputed, I don’t believe. So, the jury will have to decide what evidence to credit during the penalty phase.
If you were on the jury, could you carefully consider the evidence presented by both sides and make a fair determination as to which penalty should be imposed, or do you feel like you are pretty well pointed toward one out come or the other such that it would be hard for you to fairly consider the options?
Juror Alexander: I think I can be fair even though, like I said, I definitely am in favor of the death penalty.
The Court: Right.
Juror Alexander: But, yeah, I could be fair with the information given to me.
The Court: Right. It’s not a problem if a juror either favors or disfavors the death penalty. I mean everybody has got a point of view, but we must have jurors who could return either verdict at the penalty phase.
Juror Alexander: I could.
The Court: And who have the ability to fairly consider all of the options, and not tend to screen one out because of some predisposition, if you understand what I’m saying.
Juror Alexander: Yes, I could do that.
The Court: All right. Thank you. You are excused for lunch until 1:15. Please be back in the jury assembly room at 1:15.
(Tr. Vol. 3, at 464-66).
Juror Belcher
The Court: You indicated that you are very strongly in favor of the death penalty, and that causes me to ask you some more questions.
Juror Belcher: Okay.
The Court: If you are picked for the jury in this ease, the first thing that you will need to do is determine whether the Defendant has been proven guilty, or whether, on the other hand, he is not guilty. If he is found not guilty, that will end everything, but if he is found guilty, we will go on to the penalty phase of the trial.
At that time the government will be presenting evidence that they consider is aggravating in nature, evidence that they contend points toward the imposition of the death penalty. The defense, on the other hand, will be presenting evidence that they consider mitigating in nature, evidence that would point away from the death penalty and toward the imposition of another penalty; for example, one possibility would be life in prison without parole.
The jury will be asked to consider the evidence presented by both sides. There will probably be a lot of conflicts in the evidence. The jury will have to decide what the true facts are.
If you were picked for the jury, could you give fair consideration to the various penalty options that will be presented to the jury, or do you feel you are already pretty well pointed in one direction as far as what penalty should be imposed?
Juror Belcher: I can be fair.
The Court: And do you have an open mind as to what penalty you would pick in this case?
Juror Belcher: Yes.
The Court: And is it fair to say that you won’t shut out consideration of any of the options?
Juror Belcher: Yes.
The Court: Can you keep an open mind until all of the evidence is presented?
Juror Belcher: Yes, Ma’am.
The Court: Okay. You are excused for lunch until 1:30. Please be back in the jury assembly room at that time.
(Tr. Vol. 3, at 475-77).
Juror Moore
The court: In answering your questionnaire, you indicated essentially that you favor the death penalty only in certain very limited cases.
Juror Moore: Yes.
The Court: Is that correct?
Juror Moore: Uh-huh.
The Court: And what I want to ask you is if we do get to the death penalty phase, I think there is going to be evidence put on by both sides. The government will be putting in evidence that they think is aggravating in nature which tends to suggest the death penalty, but the Defendant will be putting in mitigating evidence, evidence that would tend to suggest that the death penalty should not be imposed, but rather some other penalty. Would you be able to consider both the aggravating and the mitigating evidence and make a fair decision between the penalty options that are available in this case?
Juror Moore: I believe I probably could.
The Court: Well, how sure are you?
Juror Moore: I’m very sure.
The Court: Okay. Okay. Thank you. You are excused for lunch until 1:30.
(Tr. Vol. 3, at 479-80).
Juror Foil
The Court: Mr. Foil, in your jury questionnaire you indicated that you favored the death penalty very strongly.
Juror Foil: Right.
The Court: So, I want to ask you some more questions.
Juror Foil: Okay.
The Court: My question is this: If you are picked for the jury, and if we get to the stage of the trial where the penalty has to be decided, I anticipate that the government is going to present evidence of what it considers to be aggravating circumstances, circumstances which the government contends point toward the death penalty, and the defense on the other hand is going to be presenting mitigating evidence, evidence which they feel tends to indicate that the death penalty should not be imposed, and that the jury should pick another option, perhaps, for example, life in prison without parole. The evidence presented by both sides may very well be contradicted by the other side. The jury is going to have to decide what the true facts are.
If you are on the jury, and if we get to the penalty phase, could you give fair consideration to both the aggravating and mitigating evidence presented by both sides, and make a fair choice between the various penalty options, or on the other hand, do you feel like you would be pretty well pointed toward one outcome rather than the other without consideration of the evidence?
Juror Foil: I don’t believe I would have any problem taking all the information into consideration.
The Court: And do you feel at this point that you have an open mind as to the various options?
Juror Foil: Yes, ma’am.
The Court: All right. Thank you. You are excused for lunch until 1:30. Please be in the jury assembly room at that time.
(Tr. Vol. 3, at 482-83).
Juror Adams-Connor
The Court: If this case gets to the penalty phase, if the Defendant is found guilty—
Juror Adams-Connor: Yes, ma’am.
The Court: The jury is going to have to make the decision as to whether the death penalty should be imposed, or whether another penalty; for example, life in prison without parole should be imposed.
To assist the jury in making its decision, the parties will be presenting additional evidence at the penalty phase. The government will be presenting evidence which it considers to be aggravating in nature. The defense will be presenting evidence which it considers to be mitigating in nature. Based on the consideration of the evidence, the jury will need to choose the appropriate penalty option. Now, I noticed when you answered your questionnaire, you indicated that you strongly favor the death penalty.
Juror Adams-Connor: I do.
The Court: You said, “I favor the death penalty strongly for certain heinous crimes and/or premeditated.”
Juror Adams-Connor: Correct.
The Court: So, what I want to know is if you were picked for the jury, could you keep an open mind and listen to all of the evidence, whether it be aggravating or mitigating evidence, and make a fair choice as to what penalty should be imposed in this case?
Juror Adams-Connor: Yes.
The Court: Do you feel like in light of the fact that you strongly favor the death penalty, do you think that you are already kind of pointed in that direction, or do you think you have an open mind?
Juror Adams-Connor: I would have to think very hard before I voted to take someone’s life. So, even though I’m very much in favor of the death penalty, it would have to be—I would have to have the evidence, and, you know, in other words, I favor like Ted Bundy’s death penalty, things like that that are just so open and shut on crime sprees and stuff like that. I wouldn’t go into the courtroom thinking well, this person is going to get the death penalty, you know, in my mind. First of all, I would have to know the law and what is recommended in that particular situation.
The Court: You are excused for lunch until 1:45. Please be in the jury assembly room at that time.
(Tr. Yol. 3, at 490-91).
Juror Falany
The Court: If you were picked for the jury in our case, could you make a decision based only on the evidence you hear in court?
Juror Falany: I think so.
The Court: What is the degree of your certainty?
Juror Falany: Certain people have definite feelings about capital punishment. Unlike most people in my particular degreed profession, I have a very conservative view about capital punishment from the stance that although I’m aware of the literature in the area as far as its use as a deterrent, I am thoroughly convinced that there are times when it should be imposed, and I feel very strongly about that, and I have actually conducted discussions on a college campus where I took that position.
The Court: Well, we are looking for jurors who can, if we get to the penalty part of the case—of course, if the Defendant is found not guilty, we won’t get there, but if we do, we are looking for jurors who can fairly consider the different penalty options. We don’t want people who say it’s going to be the death penalty for sure, or people who say I would never return the death penalty. We are looking for people who have an open mind.
What is going to happen at the death penalty phase, if we get there, is that the government is going to be presenting evidence that they consider is aggravating in nature. The defense is going to be presenting mitigating evidence, evidence that they contend would indicate that the death penalty should not be imposed, but instead another option should be chosen, one possibility being life in prison without parole, okay? and we are looking for jurors that could come to that part of the trial with an open mind and make a fair choice between the options, jurors who could truly consider each of the options and not automatically or even semi automatically go for one instead of the other. Now, could you fairly consider the evidence and make a real choice between the options?
Juror Falany: I think I could.
The Court: Well, what is the degree of your certainty about that?
Juror Falany: At our school I started a criminal justice program when I was dean, and I taught in that program, and I became convinced during those years when I was doing that that the country was going the wrong way when we talk about victims and the rights of persons who had committed crimes, and I haven’t seen anything in what has happened in this country to convince me that we have changed our mind in that area. It seems like, as the law enforcement community convinced me at that time, the one reason why we have so much crime is because the jurisprudence system does not punish the people who commit crimes, and when I say I think I could be objective, I think I would try very hard to weigh the evidence and certainly be fair to the persons involved, but I couldn’t say I didn’t have a bias in that area simply because of that experience.
The Court: Well, is it fair to say, and again, we are leapfrogging over the guilt/innoeence phase. That has got to come first, and you said you could be fair as far as deciding whether the Defendant is guilty or not guilty, but we are assuming now that we are getting to the penalty phase, and is it fair to say that the option of life imprisonment is an option that is open in your mind at this time?
Juror Falany: Yes, I think so.
The Court: Okay. You are excused for lunch until 2:15. Be in the jury assembly room at that time.
(Tr. Vol. 3, at 501-03).
Juror Fields
The Court: I just wanted to ask you a few more questions about the matter of the death penalty.
Juror Fields: Uh-huh.
The Court: You indicated in your answers that you are very much in favor of the death penalty.
Juror Fields: Yes, ma’am.
The Court: Okay. We are looking for jurors in this case who can keep an open mind about what penalty, if any, should be imposed in this case. Of course, the jury will first have to decide whether the Defendant is guilty or not guilty. If he’s not guilty, that will be the end of it, but if he’s guilty, then we will go on to the penalty phase, and if we get to that phase, we are looking for jurors who can be fair in determining what penalty should be imposed in this case.
If we get to that point, the government will present evidence of what it considers to be aggravating factors, and they will argue that the death penalty should be imposed. The defense on the other hand will be presenting evidence of mitigating factors, evidence that they contend means that it is more appropriate for another penalty to be imposed; for example, one possibility would be life imprisonment without parole. Okay?
Now, if you were picked for the jury, could you fairly evaluate the evidence presented by the parties?
Juror Fields: Yes, ma’am.
The Court: And is it fair to say that options other than the death penalty are open options in your mind?
Juror Fields: Oh, yes. I didn’t mean to be like just positive, yes, death penalty, but yes, I’m fairly open-minded, I believe.
(Tr. Vol. 3, at 511-12).
Juror Rudasil
The Court: You indicated in your questionnaire that you were very strongly in favor of the death penalty. Of course, the jury in our case is first going to have to decide if the Defendant is guilty or not guilty. If he is not guilty, then there will be no occasion for the jury to consider what penalty would be appropriate, but if he is found guilty, then the jury is going to have to decide on the penalty, and we are looking for jurors who can give fair consideration to all of the possible options, one being the death penalty, but there would be other options as well including, for example, the option of life imprisonment without parole.
If you were on the jury, do you think you could give fair and impartial consideration to all of the options?
Juror Rudasil: Yes, I do, because I am a very logical person, and I have to hear things, and I don’t go on emotions. I’m not an emotional person.
The Court: Okay. You are free to go on home for the rest of the day.
(Tr. Vol. 3, at 522).
Juror Cody
The Court: You indicated in your questionnaire that you are very strongly in favor of the death penalty.
Juror Cody: Correct.
The Court: Now, of course, the jurors that we pick are first going to decide whether the Defendant is guilty or not guilty, and if the Defendant is found not guilty, then we will never get to the penalty phase of the trial, but if he is found guilty, the jury is going to have to decide on the penalty, and we are looking for jurors who can give fair consideration to • all of the available options. One of the available options, of course, is the death penalty, but one of the other available options, for example, is life in prison without parole.
If we get to that part of the trial, the government is going to be presenting evidence that it considers to be an indication that the death penalty is the right choice. Evidence of aggravating circumstances is what the government would be presenting. On the other hand, the Defendant at that stage would be presenting evidence of mitigating circumstances, evidence which the defense feels would tend to indicate that life in prison, for example, would be a more appropriate penalty.
I anticipate that the evidence presented at all stages of the trial including that phase is going to be conflicting evidence. The jury is really going to have to decide what the facts are.
If you were on our jury, and if we get to that penalty phase of the trial, could you give fair consideration to all of the available options?
Juror Cody: Yes, I could.
The Court: Is it fair to say that you are not at this point already predisposed toward one of the options?
Juror Cody: I am not predisposed.
The Court: Okay. I’m going to go ahead and let you go home for today. Please be in the jury assembly room at 9:30 tomorrow morning. Remember not to discuss the case with anybody overnight, and avoid any media reports. Thank you.
(Tr. Vol. 3, at 525-26).
Juror Cobb
The Court: If we do get to the death penalty phase of the trial; in other words, if the jury finds that the Defendant is guilty of committing premeditated murder, then the jury is going to have to decide what the penalty is going to be in this case, and there are a number of penalties that are potentially applicable, one being the death penalty, another possibility being life in prison without parole, as well as others, and we are looking for jurors who can give fair consideration to each option.
Juror Cobb: I can.
The Court: Now, I think what is going to happen at the death penalty phase, if we get to that point, is the government is going to present evidence of aggravating circumstances. The defense is going to present evidence of mitigating circumstances, and the jury is going to be asked to weigh all of that evidence and decide what penalty is appropriate consistent with the court’s instructions on the law.
Now, given the fact that you indicate that you are strongly in favor of the death penalty, how sure are you that one of the options other than the death penalty would be a realistic option for you?
Juror Cobb: I am in favor of the death penalty because I think the court should have that option, and there again it depends on the evidence that is presented during the case, and how it is deliberated in the jury room, and it would depend on a great deal of what evidence I hear.
The Court: Well, I guess another way to ask my question is can you conceive of a murder case, a case where the defendant has been convicted of murder, but where there might be a good reason not to impose the death penalty?
Juror Cobb: Yes, ma’am.
The Court: Okay. You are excused for the balance of this afternoon. Please be in the jury assembly room at 9:30 tomorrow morning. Avoid any media reports, and don’t discuss the case with anyone.
(Tr. Vol. 3, at 541-42).
Juror Jackson
The Court: Mr. Jackson, thank you for your patience. We appreciate it. You indicated in your answers to the questionnaire that you strongly favor the death penalty, and I wanted to just follow up on that with a few more questions.
As you know, the charge in this case is murder, and, therefore, the first thing the jury is going to have to do is decide whether the Defendant is guilty or not guilty of murder. In order to find the Defendant guilty of murder, the jury is necessarily going to have to find that the Defendant acted intentionally, that it was a premeditated act, that he knew what he was doing, [and] he knew what he was doing was wrong. If the jury finds that, then we will go on to the penalty phase of the trial.
At that phase of the trial both sides will be presenting some more evidence. The government would be presenting evidence of what is called aggravating circumstances, reasons why they think the death penalty is the right penalty. The defense, on the other hand, will be presenting evidence in mitigation, evidence that tends to indicate that some penalty other than the death penalty should be imposed; for example, a possibility would be life in prison without parole.
Now, my question to you is given the fact that you strongly favor the death penalty, could you give fair and serious consideration to the possibility of some penalty other than the death penalty if we get to that point?
Juror Jackson: I could when you get to all the points in it, what you are talking about, what you are trying to cover over the person.
The Court: I’m not sure I understand what you are saying. Could you just repeat that?
Juror Jackson: Well, I guess they are going to have the lawyers speak about this and about that, and from that is what I’m saying.
The Court: And also before the lawyers make their arguments about what the penalty should be, the jury will be hearing evidence.
Juror Jackson: That’s what I mean.
The Court: And what I’m asking you is at this point do you think you have got an open mind? In other words, could you give serious consideration to the arguments made by both sides?
Juror Jackson: Right.
The Court: Do you think you could?
Juror Jackson: I could, yes.
The Court: I mean we are looking for people—we can’t have anybody on the jury that just, you know, says one penalty or the other is just out.
Juror Jackson: Right.
The Court: Okay. And we have to have people who can fairly and conscientiously look at all the available options in the penalty category, and make a fair choice among those penalties. Can you do that?
Juror Jackson: Right, I believe I can do it.
The Court: And are you telling me that you are not already kind of pointed toward the death penalty?
Juror Jackson: Right, right.
The Court: Okay. Mr. Jackson, you are free to go on home for today. Please be in the jury assembly room at 9:30 tomorrow morning. Remember not to discuss the case with anybody, and avoid any media coverage on the case.
(Tr. Vol. 3, at 586-88).
Juror Gravett
The Court: You indicated that you were somewhat strongly in favor of the death penalty.
Juror Gravett: Yes.
The Court: And that you would definitely not want for it to be abolished.
Juror Gravett: Right.
The Court: Okay. My question is if you were picked for the jury in this case, and we got to the point where the jury had to decide the penalty; in other words, if the Defendant was convicted of first degree murder, and then we got to the penalty part of the case, both sides would be presenting more evidence. The government would be presenting evidence of claimed aggravating circumstances. The defense would be presenting evidence of alleged mitigation, things that would suggest the death penalty shouldn’t be imposed.
Could you fairly and impartially evaluate that evidence, and make a fair decision as to what penalty option should be chosen in this case?
Juror Gravett: I think I could.
The Court: Well, is it fair to say that if the Defendant was first convicted of first degree murder, that you could still keep an open mind and consider the possibility at the penalty phase of another sentence; for example, life without parole? Would you be able to fairly consider that as an option?
Juror Gravett: Yes, uh-huh.
The Court: You don’t consider that you are already kind of pointed in the direction of the death penalty since you favor the death penalty?
Juror Gravett: Not really, huh-uh.
The Court: Do you think you could make a decision in this case based only on the evidence that you hear in court?
Juror Gravett: Yes.
(Tr. Vol 3, at 590-92).
The court rejects the argument that a juror who “strongly favors” the death penalty is per se disqualified from jury service where he states that he could make a fair, individualized decision based on the evidence, including aggravating or mitigating circumstances, in accordance with the court’s instructions on the law. Such a juror, by definition, is not “substantially impaired” because “substantial impairment” does not refer to mere ideological commitment, but rather refers to the juror’s inability to be a fair and impartial trier of fact, consistent with the law.
The court also rejects Defendant’s argument that inadequate questioning occurred to allow counsel to identify disqualified jurors. The questionnaire, most specifically question No. 57, asked the very question required by Morgan. Because the jurors had been given a fair amount of information about the case, the court considers that the responses to question No. 57 were well-informed responses. In addition, all those jurors .who had stated strong support for the death penalty were orally questioned by the court to probe their commitment to acting as a fair and impartial trier of fact at the sentencing hearing, as envisioned by Witt. Thus, the voir dire was adequate. Because the court was convinced that the jurors identified by Defendant had shown an ability to be fair and impartial, they were properly retained in the pool of prospective jurors.
The Defendant next objects to the insufficiency of the voir dire as to juror Duffy, and the court’s denial of Defendant’s motion to challenge Duffy for cause. Juror Duffy, like the group previously described, had indicated on his questionnaire that if the Defendant were convicted of murder without legal justification, in determining whether or not the death penalty should be imposed, he would “make [his] decision based on consideration of the evidence in this particular case, including evidence of aggravating or mitigating circumstances, and in accordance with the court’s instructions on the law”. Also, Duffy had indicated that he favored the death penalty “very strongly”. Duffy was questioned by government counsel; the court did not allow a question attempted by defense counsel and the court concluded the voir dire questioning of Duffy.
During voir dire questioning by the government, the following questions (among others) were asked:
Q. Assuming that we get to the penalty phase, of course, there is going to be the guilt phase first where the prosecution, which I represent, will be charged with proving the defendant guilty, but for the purposes of this hypothetical question, assume that the jury has found the defendant guilty, and I’m not asking you to make any assumptions about the evidence, just make that assumption for the purpose of the question. You are likely to hear testimony or evidence presented by the prosecution about the defendant, and about things the defendant has done because the prosecution will submit to you that the evidence that you will hear from us is favorable to cause the jury to impose the death penalty, but on the other hand, you are going to hear evidence presented by the defendant both in the penalty phase and perhaps in the guilt phase that the defendant will be arguing should mitigate the punishment and should cause the jury to impose a punishment that would be something other than death, and [the court] is going to instruct you that you are going to have to consider all of this evidence in deciding what the appropriate punishment should be.
If you find the defendant guilty of premeditated first degree murder, do you think you can consider all the evidence both for the prosecution and from the defense in deciding what an appropriate penalty should be in this case?
A. I think so. I wouldn’t have any problem with that.
Q. And even if that evidence that is presented by the defendant is evidence of a reduced mental state or ability, even if it doesn’t rise to th