879
1 UNITED STATES DISTRICT COURT
2 FOR THE WESTERN DISTRICT OF NORTH CAROLINA
3 CHARLOTTE DIVISION
4
UNITED STATES OF AMERICA, )
5 )
)
6 vs. ) File No. 3:97CR23-P
)
7 AQUILIA MARCIVICCI BARNETTE, ) SENTENCING PHASE
)
8 Defendant. )
)
9
10
11 Transcript of proceedings before the Honorable
12 ROBERT D. POTTER, Senior United States District Court Judge,
13 before Scott A. Huseby, Official Court Reporter and Notary
14 Public, on the 5th day of February, 1998.
15 APPEARANCES:
16 For the United States:
17 ROBERT J. CONRAD, JR.
THOMAS G. WALKER
18 Assistant United States Attorneys
227 West Trade Street, Suite 1700
19 Charlotte, North Carolina 28204
20 On Behalf of the Defendant:
21 GEORGE V. LAUGHRUN, Esq.
Suite 602
22 301 South McDowell Street
Charlotte, North Carolina 28204
23
24
25
880
1 APPEARANCES: (Continued)
PAUL J. WILLIAMS, Esq.
2 Suite 801
301 South McDowell Street
3 Charlotte, North Carolina 28204
4
5 ---
6 THE COURT: I believe we're here this morning on a
7 motion in limine filed by the defendants this morning to the
8 effect that the PCL-R test has not been sufficiently
9 standardized to the black population based on recognized
10 literature and has not been sufficient standardized on the
11 institution population or sufficiently standardized in the
12 population post middle age. All right, Mr. Laughrun or
13 Mr. Williams, you want to speak to that?
14 MR. WILLIAMS: Yes, Your Honor. I would like to present
15 on this motion brief testimony from Dr. Cunningham with regard
16 to that motion, will be very brief. I mean, I can argue it, but
17 I can tell you that if Dr. Cunningham were to testify --
18 THE COURT: Let's go ahead and argue it.
19 MR. WILLIAMS: He would testify that he has written two
20 articles that have both been peer reviewed by the professionals
21 in his group of professionals, the American Psychological
22 Association. Both of the articles refer to, one in particular
23 was written by Salekin, S-A-L-E-K-I-N, Rogers and Sewell,
24 S-E-W-E-L-L, of the University of North Texas. There was an
25 article written --
881
1 THE COURT: Well, just tell me what the articles say,
2 let's don't worry about when they were written. We have got a
3 short time, Mr. Williams, we have a short time. I don't have
4 juries come up here 50 or 60 miles and sit here and wait while
5 we argue.
6 MR. WILLIAMS: The article says, Your Honor, that it's
7 not been standardized, that the PCL-R test has not been
8 standardized for blacks, it has only been used with regard to
9 whites and generally in a white population. It has not been
10 standardized, substantially standardized for blacks or in a
11 prison population. And we argue, therefore, that it's an
12 improper test. You will note that none of the other experts
13 used it.
14 THE COURT: Is that all you have, what Dr. Cunningham
15 has written two articles on, is that what you have?
16 MR. WILLIAMS: Yes.
17 THE COURT: What does the government say about this?
18 MR. CONRAD: Your Honor, that's all proper stuff for
19 cross-examination as this is testing that's reasonably relied
20 upon in the field. Dr. Duncan relied upon it. He was able to
21 testify to it. It's relevant to the testimony they put on
22 yesterday that we have to rebut about future violence.
23 THE COURT: All right, motion is denied. Call the jury.
24 MR. LAUGHRUN: Judge, one other thing, too.
25 Dr. Cunningham is here. We may want to --
882
1 THE COURT: Well --
2 MR. LAUGHRUN: Judge, if you'll hear me a minute,
3 please, we are early. He may testify at surrebuttal. We want
4 to make sure --
5 THE COURT: You have already, I think -- I believe you
6 said you rested yesterday. Are you going to rest in front of
7 the jury this morning?
8 MR. LAUGHRUN: That's what I'm saying, Judge. We are
9 resting in front of the jury. Just hear me out if you would,
10 please. We were going to rest in front of the jury. We want to
11 make sure it's okay he stays in the courtroom in case we want to
12 offer surrebuttal to the government's rebuttal. We have a right
13 to offer surrebuttal.
14 MR. CONRAD: Stay in the courtroom?
15 MR. LAUGHRUN: That's why we bring it up now, Judge.
16 THE COURT: You wouldn't let their -- you didn't want
17 their experts to stay in the courtroom.
18 MR. LAUGHRUN: He has already testified.
19 THE COURT: He cannot stay in the courtroom.
20 MR. LAUGHRUN: That's fine, that's why we bring it up
21 now, Judge.
22 THE COURT: Call the jury.
23 (The jury returned to the courtroom.)
24 THE COURT: Good morning, ladies and gentlemen. I
25 believe at this time, the defendant is ready to rest, is that
883
1 right, Mr. Laughrun?
2 MR. LAUGHRUN: That's correct, Judge Potter, thank you.
3 THE COURT: Defendant rests, and you've already checked
4 all of your exhibits and are certain that they're in evidence.
5 MR. LAUGHRUN: Yes, sir.
6 THE COURT: All right.
7 MR. LAUGHRUN: Thank you, Your Honor.
8 THE COURT: Government call its first witness.
9 MR. WALKER: Thank you, Your Honor. The government
10 would call Brian Ard, if I may go back and retrieve him.
11 BRIAN ARD,
12 being first duly sworn, was examined and testified as follows:
13 REBUTTAL DIRECT EXAMINATION
14 BY MR. WALKER:
15 Q. Sir, will you state your full name for the jury?
16 A. My name is Brian Ard.
17 Q. Mr. Ard, what is your current occupation?
18 A. I'm an assistant manager of The Disney Store in Roanoke,
19 Virginia.
20 Q. Prior to being the assistant manager of The Disney Store
21 in Roanoke, Virginia, what did you do for a living?
22 A. I was the store manager at Camelot Music.
23 Q. How long did you work as -- how long did you work for
24 Camelot Music store there in Roanoke?
25 A. In Roanoke, I worked for a little over four years, and
884
1 previously I worked for three years for them in Atlanta.
2 Q. What were your responsibilities and general duties as a
3 store manager of the Camelot Music store?
4 A. Basically just the day-to-day operations of running the
5 store, watching the inventory, hiring and training and just
6 general upkeep duties.
7 Q. Do you know the defendant in this case, Mark Barnette?
8 A. Yes, I do.
9 Q. How do you know the defendant in this case?
10 A. I hired him to work for me at Camelot Music.
11 Q. Did you interview the defendant before you hired him to
12 work for you?
13 A. Yes, I did. I interviewed him I believe in March, and
14 he --
15 Q. Let me ask you some questions about the interview
16 process before I ask you about him in particular. What does the
17 interview process entail?
18 A. The applicants turn in applications and then we call
19 back based on the type of experience they have. And then I
20 usually take them to a section in the mall and talk about what
21 their aspirations are and their qualifications and any
22 particular reasons they may want to work for me there.
23 Q. And did you go through those steps with Mark Barnette,
24 the defendant in the case?
25 A. Yes, I did.
885
1 Q. And you eventually hired him, is that right?
2 A. Yes, I did.
3 Q. What did you -- when you initially hired the defendant,
4 in what capacity was he hired?
5 A. He was hired as a regular associate, which is a
6 part-time position working on stock, cashiering and other
7 duties.
8 Q. When you met with the defendant to interview him, what
9 was your impression of him?
10 A. He was a very bright young man. He was -- it was the
11 best interview I had ever had. He was very bright. He was very
12 particular about what his goals are, what he wanted to do in his
13 life, the type of work he wanted to be in. He answered every
14 question the way it was supposed to be answered. He did all of
15 the talking, which is one of the best signs of any interview.
16 Q. Did he appear to be a self-confident person to you?
17 A. He was very confident.
18 Q. Pursuant to that interview --
19 MR. WALKER: May I approach the witness, Your Honor?
20 THE COURT: Yes, sir.
21 BY MR. WALKER:
22 Q. Mr. Ard, pursuant to that interview, let me show you a
23 Camelot Music form for employment that the defendant filled out
24 in the case, it's already into evidence. Let me refer your
25 attention to some of the questions which you ask your potential
886
1 employees. Are your potential employees ever asked whether they
2 have any prior convictions?
3 A. Yes, they are.
4 Q. And was the defendant asked that on his particular
5 application?
6 A. Yes, he was.
7 Q. And how did he respond to that question?
8 A. He checked the no box.
9 Q. Would you have hired the defendant if you had known at
10 the time that he was a convicted felon?
11 MR. LAUGHRUN: Objection.
12 THE COURT: Overruled.
13 THE WITNESS: No, I don't believe I would have.
14 BY MR. WALKER:
15 Q. The whole time that he was working for you, did he ever
16 tell you that he was a convicted felon?
17 A. No, he didn't.
18 Q. Did he ever tell you that he was on probation in the
19 State of North Carolina?
20 A. No, he didn't.
21 Q. Did you ever learn the whole time that he worked for you
22 that he was a convicted felon?
23 A. No, I didn't.
24 Q. Would you explain to the members of the jury -- did
25 there come a time when his employment with Camelot Music ended?
887
1 A. Yes, it ended in January of '96.
2 Q. Will you tell the members of the jury how that -- were
3 you the still the store manager when that occurred?
4 A. Yes, I was.
5 Q. Did you play a role in the termination of his
6 employment?
7 A. Yes, I did.
8 Q. Would you tell the members of the jury what happened?
9 MR. LAUGHRUN: Objection, would like to be heard at the
10 bench briefly.
11 THE COURT: Come on up.
12 (Bench conference not recorded.)
13 THE COURT: Objection is overruled.
14 BY MR. WALKER:
15 Q. Mr. Ard, if you would, indicate to the members of the
16 jury what steps you took and what happened when the defendant's
17 employment was terminated.
18 A. Okay, one night I had an employee call me. Her name was
19 Renee Wergan.
20 MR. LAUGHRUN: Objection to what --
21 THE COURT: Sustained as to what an employee told you.
22 As a result of the conversation with the employee, he did what.
23 BY MR. WALKER:
24 Q. As a result of that conversation -- well, who was Renee
25 Wergan, who was she?
888
1 A. She was an employee of the store.
2 Q. Was she working there at the same time the defendant was
3 working there?
4 A. Yes, she was.
5 Q. And she called you at home?
6 A. Yes.
7 Q. Based on what she told you, what did you do?
8 A. I -- that night?
9 Q. Yeah, just tell the jury what happened after you had
10 this conversation.
11 A. I made some phone calls to decide whether or not
12 something had happened. I called another employee there to look
13 into whether or not he had committed sexual harassment at the
14 store.
15 Q. Did you talk to various employees when you conducted
16 that investigation?
17 A. Yes, I did. That night I talked to one other employee,
18 but throughout the next week I talked to all of the employees at
19 the store.
20 Q. Who was the employee, the additional employee that you
21 talked to that first night?
22 A. Joanna Baldwin.
23 Q. Was she also working at the store?
24 A. Yes, she was.
25 Q. After you talked to Joanna Baldwin that night, what
889
1 other steps did you take in your investigation?
2 A. The next day, I brought Mark into the office in the back
3 there and told him what had come to light and what he was being
4 accused of.
5 Q. What did you tell him, tell the jury what you told the
6 defendant.
7 A. I asked him whether or not it was true as to whether or
8 not he had actually touched the two female employees on their
9 behinds, and he admitted that he had but that it was in a joking
10 manner, a jesting manner. And when he had admitted to that, I
11 told him that I needed to do an investigation because he was
12 possibly going to be investigated for sexual harassment. When I
13 told him this -- when I told him that he was being accused of
14 this, he got upset and started to cry and he said he wanted to
15 go home at that point. So I let him go home, I let him out the
16 back door, and then I started my investigation as to talking to
17 each employee, one at a time, one on one. And I also asked
18 Joanna and Renee to write statements on what had happened
19 regarding the sexual harassment issue. We --
20 Q. At what, let me ask you a question, at what point when
21 you were talking with the defendant about the allegations, at
22 what point in particular did he start to cry?
23 A. Well, I just -- when he admitted to doing it and really
24 when the accusations came to light and I mentioned that these
25 were accusations, that's when he started to cry.
890
1 Q. What did he say, if anything?
2 A. He said, this isn't fair, this isn't fair. He said, I
3 want to go home.
4 Q. Is that when he started to cry?
5 A. Yes.
6 MR. WALKER: May I have just a moment, Your Honor?
7 THE COURT: Yes.
8 MR. WALKER: Judge, I don't have any other questions of
9 Mr. Ard.
10 THE COURT: Cross?
11 REBUTTAL CROSS-EXAMINATION
12 BY MR. LAUGHRUN:
13 Q. Good morning, Brian. You and I know each other, do we
14 not?
15 A. Yes, we do.
16 Q. We met in Roanoke the day after Christmas, I think, is
17 that right?
18 A. Correct.
19 Q. Kind enough to meet me after work on probably one of the
20 busiest shopping days, is that right?
21 A. That's correct.
22 Q. Let me ask you a few questions. When you hired Mark,
23 what type of worker was he?
24 A. He was an excellent worker.
25 Q. Good with customers?
891
1 A. He was an excellent salesman, he was very good with
2 customers.
3 Q. Knew the product?
4 A. Beg your pardon?
5 Q. Knew the product?
6 A. He was astounding in product knowledge.
7 Q. Only African-American working in the store, is that
8 right?
9 A. I beg your pardon?
10 Q. Only African-American working in the store at that time,
11 is that right, was Mark?
12 A. I believe so.
13 MR. CONRAD: Objection, relevance.
14 BY MR. LAUGHRUN:
15 Q. Now, no problems with the cash drawer being short?
16 A. Never.
17 Q. Under Mark's term there?
18 A. Never.
19 Q. Honest employee?
20 A. He was an honest employee.
21 Q. No product with products being -- CD's, tapes, cassettes
22 being missing or anything, was there?
23 A. Huh-uh.
24 Q. Okay. Now, let me show you a couple photographs, and I
25 think you and I went over these in December. Let me show them
892
1 to you.
2 MR. LAUGHRUN: Approach the witness, Your Honor?
3 THE COURT: Yes, sir.
4 BY MR. LAUGHRUN:
5 Q. Brian, I'm going to show you what I've marked as
6 Defendant's Exhibits 60, 61 and 62, and ask if you saw those in
7 December when you and I met up in Roanoke?
8 A. Yes, I did.
9 Q. The first picture is you and Joanna, is that right?
10 A. Correct.
11 Q. King of horsing around, is that correct?
12 A. Uh-huh.
13 Q. The next picture at the bottom left is a picture of
14 Joanna, is that right?
15 A. Correct.
16 Q. And the one in the middle is you at the office, is that
17 right?
18 A. That's right.
19 Q. And there's a picture there on the wall. Did Mark use
20 that desk also?
21 A. Yes, he did.
22 Q. Who is that a picture of?
23 A. That's a picture of his two children, little Mark and, I
24 believe her name was Angeline.
25 Q. Angelica?
893
1 A. Angelica.
2 Q. And that's a picture on the wall that was at Mark's
3 desk, is that right?
4 A. Correct.
5 Q. Now, when he applied for a job at the Saturn dealer, you
6 got a call about that, didn't you?
7 A. Yes, I did.
8 Q. Gave him an excellent reference, didn't you?
9 A. Yes, I did.
10 Q. He got promoted, didn't he, Brian, from sales to
11 assistant manager?
12 A. To assistant manager, that's correct.
13 MR. LAUGHRUN: Thank you, sir. That's all, Your Honor.
14 MR. WALKER: Just briefly.
15 REBUTTAL REDIRECT EXAMINATION
16 BY MR. WALKER:
17 Q. Mr. Ard, would you have given that recommendation for
18 the defendant if you had known that he was a convicted felon?
19 A. I don't think so.
20 Q. And you indicated -- did he ever tell you that he had
21 been convicted of felonious cruelty to children, did he ever
22 tell you that?
23 A. No, he did not.
24 Q. You referred to him as an honest employee. Did he ever
25 volunteer to you that he was on probation in North Carolina and
894
1 not supposed to move out of the State of North Carolina?
2 A. No, he didn't.
3 Q. Pardon me?
4 A. No, he did not.
5 MR. WALKER: I don't have any other questions, Your
6 Honor.
7 THE COURT: All right, call your next witness. Step
8 down, thank you, sir.
9 Members of the jury, I neglected to ask you again this
10 morning the standard question, have you seen, heard or read
11 anything about this case overnight?
12 (Jurors shake heads.)
13 THE COURT: Nobody tried to talk to you about the case?
14 (Jurors shake heads.)
15 THE COURT: Have you discussed it with anyone else?
16 (Jurors shake heads.)
17 THE COURT: You all indicate you have not, you answered
18 no to all of those questions.
19 One other thing, of course, the defendant has rested his
20 case. This is rebuttal by the government. I neglected to tell
21 you that, too. I was thinking about something else when y'all
22 came in. Call your next witness.
23 MR. WALKER: Your Honor, the government would call
24 Shirley Williams.
25 SHIRLEY DENISE WILLIAMS,
895
1 being first duly sworn, was examined and testified as follows:
2 REBUTTAL DIRECT EXAMINATION
3 BY MR. WALKER:
4 Q. Ma'am, if you would speak up and tell the members of the
5 jury what your full name is.
6 A. Shirley Denise Williams.
7 Q. And Ms. Williams, how old are you at the present time?
8 A. I'm 19 years old.
9 Q. Ms. Williams, do you currently live in Roanoke,
10 Virginia?
11 A. Yes, I do.
12 Q. Have you lived there your whole life?
13 A. Yes.
14 Q. Do you know the defendant in this case, Mark Barnette?
15 A. Yes, I do.
16 Q. I want to take your attention back to when you first met
17 the defendant. Were you in Roanoke, Virginia when you first met
18 the defendant?
19 A. Yes.
20 Q. Will you tell the members of the jury the circumstances
21 or how that happened, where you were when you first met the
22 defendant?
23 A. I was in Valley View Mall and I walked into Camelot
24 Music where he was employed. And I was looking inside the
25 gospel area looking for a particular CD or whatever, and he came
896
1 over to help me find what I was looking for. And we started to
2 talk about gospel music and church, and our conversation led to
3 me not having a job and I left with an application.
4 Q. How old were you at the time when you first met the
5 defendant?
6 A. I was 16.
7 Q. You say you talked about church with the defendant?
8 A. Right.
9 Q. Did there come a time -- and then you left with an
10 application for employment?
11 A. (Witness nods head.)
12 Q. Did you ever come back with the application for
13 employment completed?
14 A. Yes.
15 Q. How much longer after or how much later was that from
16 when you first met the defendant?
17 A. Within weeks, I can't remember.
18 Q. Okay. Did you get hired there at Camelot Music?
19 A. Yes, I did.
20 Q. And was the defendant still working there at the time
21 you were working there?
22 A. Yes, he was.
23 Q. Tell the members of the jury what your relationship was
24 with the defendant during working hours there at Camelot Music
25 store?
897
1 A. It was on a business level.
2 Q. Tell the members of the jury the nature of your
3 relationship with him outside of business.
4 MR. LAUGHRUN: Objection to the relevance again.
5 THE COURT: Overruled.
6 BY MR. WALKER:
7 Q. You can answer the question.
8 A. I went to his house twice and we had sex once.
9 Q. I want to ask you about that. When you say you went to
10 his house, where was that located there in Roanoke?
11 A. Keswick.
12 Q. Keswick Apartments?
13 A. Uh-huh.
14 Q. And you say you went to Keswick Apartments two times?
15 A. Yes.
16 Q. And you had sex with the defendant inside the Keswick
17 apartment?
18 A. Yes.
19 Q. Did the defendant ever tell you that he had a girlfriend
20 named Robin Williams living there at his apartment with him?
21 A. Yes, he did.
22 Q. When did he tell you that?
23 A. (Shakes head.)
24 Q. You don't remember?
25 A. No, I don't.
898
1 MR. WALKER: Judge, I don't have any other questions for
2 her.
3 THE COURT: Cross?
4 REBUTTAL CROSS-EXAMINATION
5 BY MR. LAUGHRUN:
6 Q. Ms. Williams, what kind of employee was he at Camelot?
7 A. He was a manager at the time.
8 Q. Was he a good manager?
9 A. Yes.
10 Q. You and I have never talked, have we?
11 A. No.
12 Q. Was he a hard worker?
13 A. Yes.
14 Q. Didn't harass you at work?
15 A. No.
16 Q. I believe you told Mr. Walker you had a businesslike
17 relationship at work, is that right?
18 A. Yes.
19 Q. Nothing inappropriate?
20 A. No.
21 MR. LAUGHRUN: Thank you, Judge, that's all.
22 MR. WALKER: Just briefly, Your Honor.
23 REBUTTAL REDIRECT EXAMINATION
24 BY MR. WALKER:
25 Q. How would you describe the defendant's personality when
899
1 you knew him up in Roanoke?
2 A. He was an outgoing person, calm, cool, collect, I
3 mean --
4 MR. WALKER: I don't have any other questions, Your
5 Honor.
6 THE COURT: Thank you, ma'am, come down. Call your next
7 witness. Thank you, you may step down.
8 MR. WALKER: Your Honor, the government calls Joanna
9 Baldwin.
10 JOANNA PAIGE BALDWIN,
11 being first duly sworn, was examined and testified as follows:
12 DIRECT EXAMINATION
13 BY MR. WALKER:
14 Q. Ma'am, would you state your full name?
15 A. Joanna Paige Baldwin.
16 Q. And Ms. Baldwin, how old are you at the present time?
17 A. 22.
18 Q. Where do you live?
19 A. Salem, Virginia.
20 Q. How far is Salem, Virginia from Roanoke, Virginia?
21 A. Four miles.
22 Q. What do you do for a living there, or are you a student
23 in Virginia?
24 A. Uh-huh, I'm a senior at Roanoke College.
25 Q. In the past, have you worked at the Camelot Music store
900
1 in Roanoke, Virginia?
2 A. Yes.
3 Q. How long did you work there, do you recall?
4 A. I worked there from July 28th, '95 until the second week
5 of January last year.
6 Q. When you worked there, did you meet the defendant in
7 this case, Mark Barnette?
8 A. Yes.
9 Q. Did you interact with the defendant while you were
10 working there?
11 A. All the time; he was assistant manager.
12 Q. What was -- tell the members of the jury anything that
13 you remember about what he would say to you when you were an
14 employee at the Camelot Music store.
15 MR. LAUGHRUN: Objection again to the relevance.
16 THE COURT: Overruled.
17 MR. WALKER: You can answer the question.
18 THE WITNESS: Okay. Mark was a very flirtatious person
19 overall. When I first met him, he would ask me to go with him
20 to Applebee's for drinks. And it started out with comments
21 about dress and that type of thing, and then it progressed from
22 there.
23 BY MR. WALKER:
24 Q. Tell the members of the jury what he would say to you.
25 A. At first he would just ask me to go out with him or he
901
1 would make comments about my body, that type of thing. Towards
2 the end, it became more lewd and crude. Like I said, it
3 progressed through the months. Just before he left Camelot, he
4 would make lots of lewd sexual comments. The worst case, he
5 told me that he wanted to put -- I needed to have --
6 MR. LAUGHRUN: Objection, would like to be heard.
7 THE COURT: Come on up and be heard.
8 (Bench conference not recorded.)
9 THE COURT: Objection overruled.
10 BY MR. WALKER:
11 Q. Ms. Baldwin, you were indicating one comment in
12 particular that you remember the defendant saying to you. Tell
13 the members of the jury what that was.
14 A. Let me back up here a second. In this whole timing,
15 things got worse and worse.
16 MR. LAUGHRUN: Objection, Judge, she needs to answer the
17 question.
18 THE COURT: Sustain that.
19 THE WITNESS: I think I need to say I cried all the
20 time.
21 THE COURT: Just answer the question and then you can
22 tell us anything else.
23 THE WITNESS: The worst thing he said was I needed to
24 have his big black dick in me.
25 BY MR. WALKER:
902
1 Q. Okay. Now, let me ask you a question. Did you ever
2 have a conversation with the store manager, Brian Ard, about any
3 of the comments the defendant would say to you?
4 A. Brian called me that Christmas of '95 and I said that,
5 you know, it bothered me at first, and I was fine with it, and
6 at that point it was bad, but I thought it would stop. And it
7 just got worse, so, yes, I did talk to Brian, but I didn't come
8 forward with everything until the very end. I mean, it's
9 uncomfortable to have someone say things like that to you all
10 the time. I mean, it was every single day.
11 Q. Do you recall the time when the defendant was terminated
12 from Camelot store?
13 A. Yes, it was the end of January '95.
14 Q. I want to refer your attention to the date April 30th of
15 1996. Did you become aware of a fire bombing incident that
16 occurred in Roanoke, Virginia on that particular date?
17 A. Yes, I saw it on 11:00 o'clock news that night.
18 Q. Tell the members of the jury how you became aware of the
19 fire bombing of -- that occurred on April 30th.
20 MR. LAUGHRUN: Objection to the relevance, Judge.
21 THE COURT: Overruled.
22 MR. WALKER: You can answer the question.
23 THE WITNESS: I was watching the news that night, it
24 came on, and I became very upset, like I say, excited, called
25 Brian immediately, Brian Ard.
903
1 BY MR. WALKER:
2 Q. How long had it been since you had seen the defendant
3 before the fire bombing incident, before you heard of the fire
4 bombing incident?
5 A. It hadn't been that long. Mark left Camelot
6 January 25th. He put on a variety show sometime in March. He
7 came into Camelot just prior to that variety show and talked to
8 Brian. He passed out flyers. Robin was with him. One other
9 time, he came in on a Sunday to Camelot. He was dressed in
10 sweat pants, had on a hat, bought a CD or something, turned
11 around and looked at me, walked out. That was it.
12 Q. And that last time that you saw him, about how many days
13 was that prior to the fire bombing incident that you heard
14 about?
15 A. Two to three weeks.
16 Q. Two to three weeks? How do you know that it was two to
17 three weeks, did anything happen in your life that you remember
18 that?
19 A. The fire bomb incident or when that was on the news as
20 the last day of exams my sophomore year of college, and everyone
21 was packing up and going home or whatever.
22 Q. When you heard about the fire bombing incident, having
23 seen the defendant two to three weeks before that, what did you
24 do?
25 A. I was really scared. I panicked. I called the police.
904
1 Q. Why did you do that?
2 MR. LAUGHRUN: Objection.
3 THE COURT: Overruled.
4 BY MR. WALKER:
5 Q. Why did you do that?
6 A. Because I worked for Mark, I was part of the reason he
7 was fired. You know, when we made our comments about the sexual
8 harassment, he lost his job. I figured Mark was probably angry,
9 brewing, and I didn't -- I felt like we were too closely
10 connected at that time.
11 MR. WALKER: No further questions, Your Honor.
12 THE COURT: Cross?
13 REBUTTAL CROSS-EXAMINATION
14 BY MR. LAUGHRUN:
15 Q. Do you recall back a time in November that Mr. Williams
16 and I came to Roanoke and tried to talk with you?
17 A. Yes, I do.
18 Q. Called you on the phone?
19 A. Yes.
20 Q. You were very nice, talked with us?
21 A. Uh-huh.
22 Q. And you told us you wouldn't meet with us until you
23 talked to Mr. Conrad or Mr. Walker, is that right?
24 A. Yes.
25 Q. You never called us back, did you?
905
1 A. No.
2 Q. We left you a hotel number?
3 A. Yes.
4 Q. Several times?
5 A. Yes.
6 Q. Never would talk with us, would you?
7 A. The way I saw it, I was subpoenaed by the prosecution.
8 Q. Did they tell you not to talk to us?
9 A. No, they didn't. I made that choice.
10 Q. Now, you had a prior incident back in high school,
11 didn't you, someone calling and leaving lewd messages on your
12 recorder and things?
13 A. Yes, I did.
14 Q. It wasn't Mark?
15 A. No, it wasn't.
16 Q. Okay.
17 A. I don't see that that pertains to this whatsoever.
18 Q. You were assaulted, weren't you?
19 A. Yes, I was, and that's really why it took me so long to
20 come out with what was going on with Mark, because you don't
21 want to seem like you are overreacting. But his comments became
22 so lewd and crude, I couldn't say, well, he is just flirting.
23 When someone says they want to put their big black dick in you,
24 I think that goes beyond just flirting and maybe just wanting to
25 go out. I mean, it was all the time.
906
1 Q. Now, you told Brian Ard that?
2 A. Yes, I did.
3 Q. He didn't believe you, did he?
4 A. I think Brian believed me.
5 Q. He didn't fire Mark then, did he?
6 A. There had to be an internal investigation, you can't
7 just fire somebody.
8 Q. When you told him that, he still continued to show up
9 for work every day, didn't he?
10 A. No, no, no, no. Brian -- no. Mark was -- Renee Wergan
11 came forward --
12 Q. Answer my question, ma'am.
13 MR. CONRAD: Well, I -- Your Honor, he --
14 THE COURT: Just a minute.
15 BY MR. LAUGHRUN:
16 Q. He continued to work there, didn't he, ma'am?
17 A. No. Renee made her --
18 Q. That's fine, I just need --
19 THE COURT: Let her finish up, Mr. Laughrun.
20 MR. LAUGHRUN: I'm sorry, Judge.
21 THE WITNESS: You are wrong in what happened. The
22 accusations were made. Mark was put on an internal
23 investigation. Brian had to look into it. He had to talk to
24 everyone in Camelot. You just can't go on one person's word
25 against another. Brian couldn't just say, hey, well, Joanna
907
1 said this, Mark, you are fired. We had to make statements.
2 Everybody in the store had to make a statement. Renee and I
3 made written statements. But, yes, Brian believed me.
4 BY MR. LAUGHRUN:
5 Q. Now, wasn't any horsing around at Camelot, was there, it
6 was all business, right?
7 A. Not -- what do you mean? I think we were all friends,
8 yes, we were all friends.
9 Q. Hard work?
10 A. To some. It just depends on what you consider hard work
11 to be.
12 Q. Were you working your way through school there?
13 A. Yes.
14 Q. Working sometimes and going to school full-time, too?
15 A. At that point, my mother was a secretary. She was a
16 single parent. I was paying my way through college. I needed
17 the job.
18 Q. You were working your way through school, weren't you?
19 A. Yes.
20 Q. And Salem College, I believe you -- 15, 20 minutes --
21 A. It's Roanoke College.
22 Q. Roanoke College, 15, 20 minutes from Salem, is that
23 right?
24 A. Yes.
25 Q. Now, when y'all were there in the back, would everybody
908
1 kid around sometimes?
2 A. Yes.
3 Q. Sometimes employees put their hands on other employees?
4 A. No.
5 Q. Let me ask you to look at what's been introduced and
6 marked as Defendant's Exhibit 61, and ask if this is you and
7 Brian Ard with Brian's hands on your head?
8 A. I think by hands on employees that you are talking
9 about, I'm -- Mark was grabbing our butts and that type thing.
10 Q. I'm asking you, is that a picture of you and Brian?
11 A. Yes, this is a picture of Brian Ard and me.
12 Q. Horsing around in the back?
13 A. Yes.
14 Q. Okay. Do you know who took those pictures, Joanna?
15 A. I remember Mark took a picture of Heather Hamlin, a past
16 associate, and me. I'm fairly certain Mark took the picture, I
17 don't remember.
18 Q. I see.
19 MR. LAUGHRUN: Thank you, Judge, that's all.
20 MR. WALKER: Just briefly.
21 REBUTTAL REDIRECT EXAMINATION
22 BY MR. WALKER:
23 Q. Ms. Baldwin, did the defendant ever appear to be
24 depressed to you when you saw him?
25 A. Never. He was very happy go lucky until he was
909
1 crossed. The minute you crossed him, then he turned into a
2 whole other person.
3 MR. WALKER: I don't have any other questions, Judge.
4 THE COURT: Thank you, come down. Call your next
5 witness.
6 MR. CONRAD: The United States would call Thad Johnson.
7 THAD JOHNSON,
8 being first duly sworn, was examined and testified as follows:
9 REBUTTAL DIRECT EXAMINATION
10 BY MR. CONRAD:
11 Q. Would you state your name for the jury?
12 A. Thad Johnson.
13 Q. Mr. Johnson, how are you employed?
14 A. I'm employed with the State of North Carolina as an
15 adult probation and parole officer.
16 Q. How long you been employed by the State of North
17 Carolina as an adult probation and parole officer?
18 A. Nine and a half years.
19 Q. In September of 1994, what were your duties?
20 A. Well, I was employed as an adult probation officer here
21 in Charlotte.
22 Q. What does an adult probation officer do?
23 A. We supervise probationers and parolees here in the
24 state. When someone gets placed on probation, we supervise a
25 probation case to make sure that the court contract is
910
1 enforced. There is a whole list of duties that we have. I'm
2 not sure how specific you would like me to be.
3 Q. When you talk about a court contract, what are you
4 referring to?
5 A. To the probation judgment.
6 Q. Let me approach and hand to you what has been introduced
7 into evidence in the guilt phase of this trial as Government's
8 Exhibit 17, and ask you if you recognize that exhibit?
9 A. Yes, sir.
10 Q. What is Government's Exhibit 17?
11 A. This is one of the probation cases on Mr. Barnette.
12 Q. Okay. Now, did you have -- was there another case as
13 well?
14 A. Yes, sir.
15 Q. And would you take Government's Exhibit 17 and
16 describe -- is that what you are referring to when you're you
17 talking about a court contract?
18 A. Yes, sir. A probation judgment is probably a better
19 word.
20 Q. Is that a --
21 A. That's the proper term.
22 Q. -- judgment and conviction reflecting a felony
23 conviction for felonious restraint?
24 A. Yes, sir.
25 Q. And what is the docket number on that?
911
1 A. It's 93-CRS-076063.
2 Q. And what were the terms of that judgment, if you would
3 tell the jury looking at Government's Exhibit 17?
4 A. Okay, he received a one-year sentence suspended, placed
5 on supervised probation for three years. I'm not sure if you
6 want me to get into each of the regular conditions of probation
7 or not.
8 Q. You indicated that there was also another court contract
9 for which supervision was provided, is that correct?
10 A. That's correct.
11 Q. And what was that for?
12 A. That would be breaking and entering, and it's case
13 number 93-CRS-076062.
14 Q. Let me approach and hand to you what has been introduced
15 into evidence in the guilt phase of this trial as Government's
16 Exhibit 64A, and ask you if you can identify that exhibit?
17 A. Yes.
18 Q. What is that?
19 A. Okay, this is a case too of probation. He received a
20 two-year sentenced, suspended for five years, supervised
21 probation for five years.
22 Q. Now, turning your attention to the first judgment and
23 conviction for the felonious restraint, on Page 2 of that
24 Exhibit 17, is there a list of regular conditions of probation?
25 A. Yes, sir.
912
1 Q. And what -- when I use that, what do I mean when I say
2 regular conditions of probation?
3 A. These are general conditions of probation that apply to
4 anyone who is on supervised probation in the State of North
5 Carolina.
6 Q. And what were the regular conditions of probation that
7 were applicable to Mr. Barnette in September of 1994?
8 A. Each and every one of the conditions listed, 1 through
9 10.
10 Q. And what was condition number 1?
11 A. First condition is commit no criminal offense in any
12 jurisdiction.
13 Q. Number 2?
14 A. Possessing a firearm, explosive device or other deadly
15 weapon listed in General Statute 14269.
16 Q. Are there also conditions of supervised probation in
17 addition to regular conditions of probation?
18 A. Well, these regular conditions of probation apply to
19 anyone who is on supervised probation.
20 Q. Some probationers are on unsupervised probation and only
21 have a certain number of those conditions applicable to them,
22 correct?
23 A. Correct.
24 Q. And others are on supervised probation, and they have an
25 additional set of conditions in addition to the regular
913
1 conditions, correct?
2 A. Right. Actually, anyone who is on supervised or
3 unsupervised, the regular conditions of probation all apply.
4 Q. Okay.
5 A. The special conditions of probation apply. They can
6 also apply to unsupervised as well. Supervised means that you
7 report to a probation officer, and unsupervised means that there
8 is a suspended sentence, but you don't actually report to
9 probation officer.
10 Q. Was Mark Barnette on supervised probation?
11 A. That's correct, yes, sir.
12 Q. What is condition number 5?
13 A. Condition number 5 says, remain within the jurisdiction
14 of the Court unless granted written permission to leave by the
15 Court or his probation officer.
16 Q. What is condition number 6?
17 A. Report as directed by the Court or his probation officer
18 to the officer at reasonable times and places and in a
19 reasonable manner, permit the officer to visit him at reasonable
20 times, answer all reasonable inquiries by the officer, and
21 obtain prior approval from the officer for and notify the
22 officer of any change in address or employment.
23 Q. And condition number 7?
24 A. Notify the probation officer if he fails to obtain or
25 retain satisfactory employment.
914
1 Q. Mr. Johnson, does your office maintain a probation file
2 on Aquilia Marcivicci Barnette?
3 A. Yes, sir.
4 Q. Did you bring it with you today?
5 A. Yes, sir.
6 MR. CONRAD: May I approach, Your Honor?
7 THE COURT: Yes, sir.
8 MR. LAUGHRUN: We would like to take some time to look
9 at it, we haven't seen it, Judge.
10 THE COURT: Pardon?
11 MR. LAUGHRUN: We need to look at it, we haven't seen
12 it.
13 THE COURT: First of all, go ahead and mark it and
14 identify it.
15 MR. CONRAD: Can I identify it and then --
16 THE COURT: Identify it first.
17 BY MR. CONRAD:
18 Q. Would you take the two exhibits I have just showed you,
19 remove them from your file, put your file together and hand it
20 to me?
21 A. (Witness complies.)
22 Q. I'm going to mark for identification as Government's
23 Exhibit --
24 MR. CONRAD: Is it 72, Your Honor?
25 THE CLERK: 72.
915
1 BY MR. CONRAD:
2 Q. A file, and I would ask you, Mr. Johnson, is that a file
3 kept in the regular course of business by the North Carolina
4 probation office?
5 A. Yes, sir.
6 Q. And are the items in that file, is it part of the North
7 Carolina probation officer to keep records such as are contained
8 in that file?
9 A. Yes, sir.
10 Q. Are you someone who is authorized to maintain custody of
11 records kept in --
12 MR. LAUGHRUN: Judge, we will stipulate that's the file.
13 I don't have any objection to that.
14 THE COURT: All right.
15 MR. LAUGHRUN: I would like to see it, we haven't seen.
16 MR. CONRAD: Well, I'm getting to that point.
17 BY MR. CONRAD:
18 Q. Mr. Johnson, are there any regulations concerning your
19 disseminating the contents of that file in court or otherwise?
20 A. Yes, sir.
21 Q. And what are those regulations?
22 A. It's the property of the probation office unless we have
23 a Judge's order to turn it over.
24 MR. CONRAD: Your Honor, would you at this point order
25 this witness to turn his file over for purposes of the trial?
916
1 THE COURT: Yes, sir, turn it over, please.
2 MR. CONRAD: (Hands the file over to defense counsel.)
3 (Pause.)
4 MR. LAUGHRUN: We would like to be heard about some of
5 this material.
6 THE COURT: All right.
7 (Bench conference not recorded.)
8 MR. CONRAD: Mr. Johnson, I'm going to approach and give
9 you back your file.
10 THE COURT: Yes, sir.
11 THE WITNESS: Thank you.
12 BY MR. CONRAD:
13 Q. Does a probation file contain a narrative of the
14 activities that took place during the time period of probation?
15 A. Yes, sir.
16 Q. And what is that called?
17 A. Okay, this is our supervision report contacts form that
18 we use.
19 Q. And describe that form for the jury, would you, please.
20 A. Yes, sir. It's a narrative entry form that we use
21 anytime we have personal contact with a probationer or anytime
22 we have any contact to do with court records, home visits,
23 pretty much any contact that we have, any agency that may be
24 helping us in supervising the client. So any contacts that we
25 have whatsoever involving the probationer, we do write down in a
917
1 narrative file.
2 Q. Is that a file that's dated?
3 A. Yes, sir. It indicates the date, of course, that we had
4 and the type of contact we had, whether it was personal contact,
5 a telephone call or whatever.
6 Q. And are there any codes that are used that would let you
7 know what type of contact or what type --
8 A. Yes, sir, there are codes that we use.
9 Q. What are those codes?
10 A. Well, would you like me to go over each one of them?
11 Q. (Nods head.)
12 A. An HV-1 indicates that we did a home visit on the
13 probationer and they were actually -- actually saw them
14 physically at that residence. An HV-2 means that we did a home
15 visit and someone in the household verifies to us that they live
16 there. An HV-3 means that no one was home or the residence
17 could not be located. An OV indicates an office visit in our
18 office. A PC is a personal contact. A T is a telephone. L is
19 letter, meaning that we mailed a letter in regards to the case.
20 A CV-1 is a family of acquaintance of the probationer. A CV-2
21 is a law enforcement contact or any court record. A CV-3 is an
22 employment contact. A CV-4 is a court or commission hearing.
23 And a CV-5 is a resource contact.
24 Q. Now, is there a part of that -- strike that. Does
25 reviewing that narrative assist you in testifying as to what
918
1 happened during the course of defendant Mark Barnette's
2 probation supervision?
3 A. Yes, yes.
4 Q. What is the first entry, if any, in that report?
5 A. Excuse me one second, make sure I have it here.
6 (Witness reviews documents.) 9-22-94 was the first office visit
7 and personal contact made with Mr. Barnette.
8 Q. Was that two days after the judgment and conviction, the
9 Court contract that you talked about?
10 A. Yes, sir.
11 Q. And what, if any, information was gleaned from the
12 defendant on that day?
13 A. Okay, first of all, it was not a contact made by me.
14 There was another probation officer who had this case at the
15 time.
16 Q. Right.
17 A. Would you like me to read what is written down?
18 Q. Yes.
19 A. Says 9-22-94, OVPC, address 3413 West Boulevard, phone
20 number is listed as 392-9072, employment Courtyard Marriott,
21 indicating that he works 10:45 p.m. to 8:00 a.m. as a night
22 auditor, defendant stated past charges dealt with ex-girlfriend
23 Alesha Chambers at 1524 Penson Street, defendant will report on
24 9-29-94 to the jail. Let's see, PO will resume supervision on
25 10-16-94.
919
1 Q. Now, when you relate this to the jury, if there is a
2 code, would you just go ahead and say what the code is?
3 A. Oh, I'm sorry, yeah. His next office visit was set for
4 10-16-94.
5 Q. Was there any contact on October 4th of '94?
6 A. Yes. He came in on October 4th, same address, 3413
7 listed as West Boulevard, same employment. He told the
8 probation officer the same employment.
9 Q. Did he have a work phone number?
10 A. He did. He gave a work number as 527-5055. And he also
11 had an assault with a deadly weapon charge that was currently on
12 appeal.
13 Q. What is the next entry?
14 A. It's 12-1-94 was the next office visit. He told the
15 probation office that he was still living at 3413 West
16 Boulevard, that he was still employed at the Courtyard
17 Marriott. He told the probation officer that his next court
18 date was in courtroom 3302 for the assault with a deadly weapon
19 charge. He was given a next office visit to return on
20 December 9th at 9:00 a.m. of '94.
21 Q. In that entry, did he list a supervisor at the Courtyard
22 by Marriott, a name?
23 A. Well, he did not. He listed who his attorney was at the
24 time. He told the probation officer Mariah Long was his public
25 defender.
920
1 Q. What's the next entry?
2 A. The next entry is 12-9-94, probation officer called
3 defendant and told him not to come because we did not have any
4 EHA monitors to put him on EHA.
5 Q. What's EHA?
6 A. Which is the electronic house arrest monitor. Probation
7 officer informed unit supervisor of situation. We will attempt
8 to location FMD's, which is the unit that we use to hook up the
9 electric house arrest.
10 Q. Was there an office visit set for January 31st of 1995?
11 A. Actually, there is no narrative entry for the next
12 appointment at that point that the probation officer indicated
13 at that time.
14 Q. Let me turn your attention to December 9th, 1994, and
15 ask you whether or not an office visit was set for January 31st,
16 1995?
17 A. Probation officer does not have when the next
18 appointment is set from December 9th.
19 Q. Turning your attention to January 31st, 1995, is there
20 an entry there?
21 A. He returned to our office -- first of all, to answer
22 your question, there is a narrative entry from 1-31-95.
23 Q. And what, if anything, is reflected there?
24 A. It indicates that he was a no show on 1-31-95.
25 Q. Okay. And what is the next contact?
921
1 A. The next contact was 2-22-95. That's when I had been
2 assigned the case, and I mailed a letter to West Boulevard for
3 him to report on March 6th at 9:30 a.m.
4 Q. And what is the code reflected there?
5 A. It's code CV-2, L, which just documents and dates that a
6 letter was sent on that date.
7 Q. And what does the CV-2 reflect?
8 A. It's just a court -- matter of document and court record
9 that a letter was mailed to West Boulevard on that date for him
10 to report on 3-6-95.
11 Q. What happened on the office visit set for March 6th,
12 1995?
13 A. He did not show up for that appointment.
14 Q. What, if anything, did you do?
15 A. Well, on that same day, I called the phone number that
16 had been given to us previously and the phone was disconnected.
17 Q. So what did you do next?
18 A. On March 20th, I called the Courtyard Marriott and was
19 told he was no longer employed there.
20 Q. What did you do next?
21 A. On March 24th, 1995, I made an HV-3, which indicates
22 that I attempted to locate the residence on West Boulevard and
23 could not locate the residence.
24 Q. And explain your efforts in attempting to locate that
25 residence.
922
1 A. Well, the residence is back off the road and it is
2 difficult to see. I mean, I had to go out there several times
3 before I actually located the residence. But I rode up and down
4 West Boulevard on that day and could not locate the residence.
5 I was unsuccessful in locating it.
6 Q. And on April 26th, did you do the same thing?
7 A. Right, I went back out again and made another attempt to
8 locate the residence, and still at that point I could not locate
9 the residence.
10 Q. Did there come a time in July of 1995 that you made any
11 efforts with respect to this supervision?
12 A. Right, I did. I finally located the residence, and at
13 that point there was a female who came to the door when I
14 knocked on the door who identified herself as his mother. And I
15 identified myself, of course, and she told me that she did not
16 know where he was living at the time, but I indicated to her
17 that I gave her an office visit for him to come in two days from
18 that date. She did indicate that she would have contact with
19 him and could give him my message to report to me on July 19th.
20 Q. Did his mother indicate to you on that day that the
21 defendant comes in from time to time?
22 A. Yes, I have that written, that she -- he is not living
23 there, but he does come in from time to time.
24 Q. But she didn't know where he was?
25 A. That's correct.
923
1 Q. But told you she would give him a message?
2 A. Right, yes, sir.
3 Q. Did she tell you that for the past four months, the
4 defendant had been living in Roanoke, Virginia, did she tell you
5 that on that day?
6 A. No, sir.
7 Q. What was your next contact?
8 A. Well, on July 19th, I received a phone call from
9 Mr. Barnette and he told me that he could not come in because he
10 was working for Temp World that day, and that he had also
11 another reason he said that he had not contacted was that he had
12 been recuperating and recovering from a gunshot wound.
13 Q. Okay. So he told you two things?
14 A. Right.
15 Q. And it was a phone call that he initiated to you?
16 A. Right.
17 Q. Do you know where that phone call came from?
18 A. I have no idea.
19 Q. You don't know whether it was from North Carolina or
20 Virginia?
21 A. No, sir, we don't have any equipment on our phone that
22 indicates where the phone call is coming in from.
23 Q. But this was the day that he was supposed to be in for
24 an office visit?
25 A. That was the day that he was supposed to report to me,
924
1 yes, sir.
2 Q. And he told you he was working at Temp World?
3 A. Temp World here in Charlotte.
4 Q. And was he located onsite at Selectron, is that what he
5 told you?
6 A. Right, right.
7 Q. And he said that he was home recovering from --
8 A. A gunshot wound.
9 Q. -- a gunshot wound?
10 A. That's correct.
11 Q. Do you know that -- do you know whether or not the
12 defendant had, in fact, been shot in his home in January of
13 1995, seven months before?
14 A. I did not know that.
15 Q. Did the mother, when you talked to the mother on
16 July 17th, did she tell you that her son was home recovering
17 from a gunshot wound seven months before?
18 A. No, sir.
19 Q. Did anything else happen on that day?
20 A. Well, I also gave -- at that point, I rescheduled his
21 appointment for July 24th of 1995 at 4:00 p.m.
22 Q. Okay. Did you call -- was there any -- telephone
23 contact with his mother on that day?
24 A. His mother called me later that day to confirm his
25 appointment with me on July 24th, 1995 at 4:00 p.m.
925
1 Q. What did you do on July 14th as a result of getting
2 information from the defendant that he was working at Temp
3 World?
4 A. Well, I called Temp World and they told me that he was
5 not employed there.
6 Q. What, if anything, happened on July 24th?
7 A. He did report to my office as scheduled that day. I
8 will just read what I have written down. OVPC, defendant
9 arrived as scheduled, same address, indicating that he would be
10 living at his West Boulevard address. He told me there were no
11 current tickets or arrests that were pending against him. I
12 have a narrative entry, defendant has been recovering from a
13 gunshot wound, he was shot in the leg, femur was shattered,
14 defendant states he did not contact office because of getting
15 shot.
16 Q. Now, did he tell you that being shot happened seven
17 months ago?
18 A. No.
19 Q. Did he tell you that prior to getting shot, he had shot
20 a rifle on the premises at 3413 West Boulevard?
21 A. No, sir.
22 Q. Would possessing a rifle in January of 1995 been a
23 violation of his court contract?
24 A. Yes, sir.
25 Q. Would leaving the State of North Carolina and going to
926
1 Roanoke without your permission have been a violation of his
2 court contract?
3 A. Yes, sir.
4 Q. Would changing residences from 3413 West Boulevard to
5 1616 Keswick Drive in Roanoke, would that have been -- without
6 notifying you, would that have been a violation of his court
7 contract?
8 A. Yes, sir.
9 Q. Did you on that occasion take a photograph of the
10 defendant?
11 A. Yes, sir.
12 Q. And is that maintained in your file?
13 A. That's correct.
14 Q. And is that the first time that you were able to get a
15 hold of him during the time period that you were supervising him
16 in this case?
17 A. That's correct.
18 Q. Did you at that time do a client assessment?
19 A. Yes, sir. I went over the conditions of probation again
20 as I do whenever I meet a client for the first time or I get a
21 case from the very beginning.
22 Q. Did you -- do you have in your file a document entitled,
23 Initial Client Assessment?
24 A. Yes, sir.
25 Q. And would you describe what that is for the jury?
927
1 A. Excuse me one second while I locate the form here. This
2 is an assessment that we use in personally evaluating each
3 person as we meet them which goes into everything as far as
4 their address, their prior convictions, what those prior
5 convictions may be for, their attitude when we are talking with
6 them, when we're dealing with them, their employment, their
7 education, their marital status, and a whole list, financial
8 situation, friends, associates. And they are given a score at
9 that point.
10 Q. Is the score based upon the information provided to you?
11 A. Yes, sir.
12 Q. And what is the purpose of scoring a probation client
13 with an initial client assessment?
14 A. Well, at that point, it's a tool for our office to use
15 as far as whether we feel like what type of probationer they are
16 going to be, whether they are going to be high risk or whatnot.
17 Q. Now, there is an entry on that form, is there not, for
18 felony convictions, prior, current or past felony convictions?
19 A. Yes, sir.
20 Q. And what score did you give him for that?
21 A. A two for one or more.
22 Q. What is that based upon, one or more felony convictions?
23 A. Right.
24 Q. What felony convictions did he tell you about on that
25 day?
928
1 A. He told me that the only felony conviction he had was
2 what he was on probation for.
3 Q. Did he tell you he had a felony conviction in the State
4 of Georgia?
5 A. No, sir.
6 Q. Is there an entry on that assessment form involving an
7 offense involving the use of a weapon, physical force or the
8 threat of force?
9 A. Yes, sir.
10 Q. What score did you give him for that?
11 A. Well, he was given a two, because that is the score
12 that's given to anyone who is convicted of house break-in,
13 breaking and entering, burglary or stolen property.
14 Q. And as for the current and/or past convictions, he was
15 given a two?
16 A. Yes, sir.
17 Q. Now, the next item on the score tabulation, is that for
18 an offense involving use of a weapon, physical force or the
19 threat of force?
20 A. That's -- actually, the very next item is vehicle theft
21 and auto larceny.
22 Q. Okay.
23 A. The very next one is robbery, and following that is
24 forgery, worthless check or fraud -- okay, I'm sorry, you're
25 going to the very -- I follow you now.
929
1 Q. Turning your attention to the item listed offense
2 involving the use of a weapon, physical force or the threat of
3 force, what score did you give him for that?
4 A. Well, he was given a no, a zero, indicating that --
5 Q. Did he tell you that he had a felony conviction for
6 beating two children with a metal coat hanger in the State of
7 Georgia?
8 A. No, he did not.
9 Q. Now, if he had, would that have indicated a different
10 point total?
11 A. Yes, sir.
12 Q. Now, alcohol usage, you gave him a zero for that. Was
13 that based upon the information that he provided to you?
14 A. The conversation.
15 Q. And his attitude, what score did you give him for
16 attitude?
17 A. Well, I put a zero, which indicates motivated or
18 receptive to assistance.
19 Q. And that's how he appeared to you on that day?
20 A. That's how he appeared on me on that day. I mean, he
21 was very cooperative. His mother came with him that day and she
22 was there in support, saying the reason he had not been in to my
23 office was because he had been recuperating from a gunshot
24 wound, et cetera.
25 Q. This is something she hadn't told you in the home visit
930
1 that you had the same month?
2 A. Right, right.
3 Q. Now, is there an entry for prior periods of adult
4 probation parole supervision?
5 A. Yes.
6 Q. And what score was he given for that?
7 A. He was given a zero for that.
8 Q. Indicating no prior adult probation?
9 A. Right.
10 Q. Did he tell you about being put on probation in the
11 State of Georgia for felonious cruelty to children?
12 A. No, sir.
13 Q. And based upon all of those answers, you came up with a
14 final score that would reflect the degree of seriousness this
15 probationer presented on that day?
16 A. That's correct.
17 Q. Now, when you first met with him on July 24th, 1995,
18 where did you think he resided?
19 A. Well, as I looked -- he -- I was told that he was living
20 at West Boulevard part of the time. But at the end of the
21 office visit, I have a narrative entry, defendant cannot give me
22 a set schedule or address at this time.
23 Q. Now, did he tell you he was living in Roanoke, Virginia?
24 A. No, sir, that --
25 Q. Did his mother tell you that?
931
1 A. No, sir.
2 Q. Did he tell you he was working at the Camelot record
3 store in Roanoke, Virginia?
4 A. No, sir.
5 Q. Did his mother tell you that?
6 A. No, sir.
7 Q. Did he tell you he had a Virginia driver's license
8 listing 1616 Keswick Drive as his address?
9 A. No, sir.
10 Q. Did he tell you that he was working at Courtyard by
11 Marriott?
12 A. Yes, sir.
13 Q. Tell this jury who he said was his point of contact at
14 Courtyard by Marriott?
15 A. He told me on July 24th that his supervisor was Sheila
16 Cooper, that he was working at the Courtyard Marriott as a
17 security night auditor from the 11:00 to 7:00 shift, 11:00 p.m.
18 to 7:00 a.m. shift that day.
19 Q. In Charlotte, North Carolina?
20 A. Right, Charlotte, North Carolina.
21 Q. Now, is the name Sheila Cooper familiar to you?
22 A. It turns out that this was his aunt, but at the time I
23 had no idea.
24 Q. Did you know that Sheila Cooper was living at the 3413
25 West Boulevard address at the time he indicated that was his
932
1 supervisor at work?
2 A. He told me that was his supervisor at work.
3 Q. Did you have a contact with him on July 31st?
4 A. Excuse me one second here -- yes, sir.
5 Q. And what, if anything, did the defendant communicate to
6 you on that day?
7 A. On July 31st, defendant arrived as scheduled. He gave
8 me a new address as 1708 Flynwood Drive located here in
9 Charlotte, zip code 28205, phone number 532-9595. He gave me
10 directions, take Central Avenue, past Briar Creek Road.
11 Defendant told me he was still employed with Marriott Courtyard
12 but he did not have a set schedule at that time, but he was
13 working on getting a set schedule.
14 Q. Still employed at the Courtyard by Marriott?
15 A. Right.
16 Q. Did you set a next office visit for August 10th?
17 A. Yes, sir, August 10th of 1995 at 10:00 a.m.
18 Q. And what happened on that day?
19 A. Defendant -- I received a message from defendant stating
20 that he could not come in because he had a doctor's appointment.
21 Q. So what was done at that point?
22 A. I called the defendant's residence and left a message
23 for him to call me immediately.
24 Q. And what happened next?
25 A. I didn't receive a phone call on August 29th. I went
933
1 out to the residence at 1708 Flynwood Drive, verified his
2 residence and spoke with someone who came to the door who told
3 me that he did live there. And I gave him an appointment slip
4 to give to Mr. Barnette to report on August 31st at 12:00 noon.
5 Q. When you say you verified that he was living there, you
6 talked to someone who answered the door and said yes, he does
7 live there?
8 A. That's correct.
9 Q. You didn't see the defendant?
10 A. No, sir.
11 Q. And did there come a time when you had an office visit
12 on August 31st of 1995?
13 A. Right. I gave this gentleman who came to the door who
14 told me he was his cousin to report to my office on
15 August 31st. On August 31st, Mr. Barnette did report to my
16 office.
17 Q. Do you know whether that gentleman's name was Steve
18 Austin?
19 A. I don't have his name written down here.
20 Q. Now, what happened on August 31st?
21 A. August 31st, defendant arrived as scheduled, same
22 address. Defendant stated that he fell and hurt his leg.
23 Q. As a reason for missing the last appointment?
24 A. He gave me the same phone number as 532-9595, and at
25 that point I advised defendant to have all calling features
934
1 taken off of his phone so that we could get his house arrest
2 monitor set up.
3 Q. Was there an appointment set up for September 7th?
4 A. Yes, sir.
5 Q. What happened on that day?
6 A. September 7th 1995, defendant called, stated he could
7 not come in, he had to appear in court. He left a message.
8 Q. What did you do as a result of getting that message?
9 A. On September 21st, I mailed a letter for him to report
10 on October 9th, 1995 at 10:30 a.m.
11 Q. What, if anything, happened on October 9th, 1995?
12 A. He was a no show for that appointment.
13 Q. And what did you do as a result of that?
14 A. Well, I sent out another contact request for him to
15 report on November 6th at 11:15 a.m.
16 Q. And what happened on that day?
17 A. He was a no show.
18 Q. And what did you do as a result of that?
19 A. I called the Courtyard Marriott on November 14th,
20 defendant's place of employment, verified still there, left
21 message for defendant to call as soon as possible.
22 Q. Now, previously in July, he had indicated to you his
23 supervisor there was Sheila Cooper?
24 A. Sheila Cooper, that's correct.
25 Q. And you left a message for him to call as soon as
935
1 possible?
2 A. Right.
3 Q. What happened after that?
4 A. Turn to the next page here, I never heard from him after
5 that.
6 Q. What did you do on December 15th, 1995, if anything?
7 A. December 15th I went back to the Flynwood address,
8 verified once again that he was living there, and left an
9 appointment for him to come in on December 18th.
10 Q. December 18th?
11 A. That's correct.
12 Q. Let me approach and hand you what has been marked for
13 identification as Government's Exhibit 66, and ask you to look
14 at that exhibit and state whether or not a photograph appears
15 there?
16 A. Yes, sir.
17 Q. Is that a photograph of the defendant, Mark Barnette?
18 A. Yes, sir.
19 Q. And what is the date of that photograph, the issue date?
20 A. Issue date is 12-18-95.
21 Q. And is that 12-18-95 the date the defendant was supposed
22 to be in your office in Charlotte, North Carolina?
23 A. Yes, sir.
24 Q. And what is the -- although the photograph is of the
25 defendant, Mark Barnette, what is the customer name listed on
936
1 Government's Exhibit 66?
2 A. Mario Vonkeith Barnette.
3 Q. Does that appear to be a Commonwealth of Virginia
4 identification document?
5 A. Yes, sir.
6 Q. On December 18th when the defendant was supposed to be
7 in your office, he was having his photograph taken in Virginia
8 to obtain an identification card in the name of Mario Vonkeith
9 Barnette?
10 A. Yes, sir.
11 Q. Did he tell you that he missed the appointment on
12 December 18th because he was having a fake I.D. made in the
13 Commonwealth of Virginia?
14 A. No, sir.
15 Q. What did you do at that point?
16 A. At that point, I started proceedings to issue a warrant
17 for his arrest.
18 Q. And why did you do that?
19 A. Because I felt like that I had certainly exhausted
20 everything I knew to do and to work with him and try to get him
21 to comply and get him to come in, and at that point there was
22 nothing else I could really do, because I had been to the
23 residence several times and followed through. And I hadn't had
24 any response from him on the last couple of contacts that I
25 attempted to make.
937
1 Q. And at that time when you started the process to issue a
2 warrant for arrest, did you still believe that he was living in
3 the State of North Carolina?
4 A. Yes, sir, because I had done as I just testified several
5 home visits and was told -- our department does not require that
6 the person has to physically be there, because many times our
7 probationers are at work during the day and whatnot. Just a
8 family member or someone that lives in that household has to
9 physically be there to tell us that they reside there.
10 Q. After having that process started, when is the next time
11 you ever met face to face with the defendant?
12 A. Well, the very next time I met with him was on July 8th
13 of 1996. That was after he was arrested for these charges and I
14 served the probation violation report on him at that point.
15 Q. And you served that in July, the month following the
16 murders of Donnie Lee Allen and Robin Williams?
17 A. Yes, sir.
18 Q. And his attorney at that time was present when you
19 served that paperwork?
20 A. That's correct.
21 Q. Describe the defendant's demeanor on that day.
22 MR. LAUGHRUN: Objection to relevance.
23 THE COURT: Overruled.
24 THE WITNESS: Well, he first walked in and he was like,
25 yeah, you were straight up with me, to use his exact words, you
938
1 were straight up with me, you were fine, I will sign whatever I
2 need to sign. And I explained to him that I was charging him
3 with violating his probation and the warrant had already been
4 served on him, but it is a requirement that we explain to them
5 what they are being charged with as far as violating their
6 probation, and he signed the paperwork.
7 BY MR. CONRAD:
8 Q. Did he seem to understand what you told him?
9 A. He fully understood exactly what I was saying to him.
10 Q. Just roughly two weeks after the killings took place on
11 June 22nd?
12 A. That's correct.
13 Q. Did he -- describe his -- how he appeared to you on that
14 day in terms of personality?
15 A. Well, I mean, he appeared calm. I mean, he didn't
16 appear very upset, he didn't show any signs of remorse to me at
17 all, in fact, because I was rather concerned about his state of
18 mind.
19 MR. LAUGHRUN: Objection.
20 THE COURT: Overruled, go ahead.
21 BY MR. CONRAD:
22 Q. Go ahead.
23 A. In fact, I questioned his lawyer before I went back
24 there as far as his state of mind, because I didn't know what
25 state of mind to expect him in when I served the probation
939
1 violation on him.
2 Q. Did he seem listless to you on that day?
3 A. He seemed listless. I mean, it seemed like it was an
4 everyday thing, it was no big deal. He signed the probation
5 violation report and that was it.
6 Q. Any signs of depression?
7 A. He didn't appear depressed or anything to me at all.
8 MR. CONRAD: Your Honor, that's all I have.
9 THE COURT: Cross?
10 REBUTTAL CROSS-EXAMINATION
11 BY MR. LAUGHRUN:
12 Q. Mr. Johnson, that was down in the courtroom holding cell
13 of 1101, is that right?
14 A. That's correct.
15 Q. 1101 is the probable cause court for State Court, right?
16 A. That's correct.
17 Q. And he was back there. When he showed no remorse, was
18 calm and not upset, there were probably 20 to 30 other inmates
19 there dressed in orange jump suits, is that right?
20 A. No, sir, this was actually in a holding cell that he,
21 Ms. Wegan, his attorney at the time, and myself, just the three
22 of us were exclusively in in the room.
23 Q. And y'all took him out of the big room where other
24 inmates were, is that right?
25 A. Right.
940
1 Q. And the holding cell is open, there's not a door to it,
2 is that right?
3 A. I'm sorry?
4 Q. Where y'all were, were you in the female section?
5 A. We were in the very first holding cell as you go back to
6 where the prisoners are kept, the first room on the right. I'm
7 not sure if that's the female room or not.
8 Q. Benches, steel benches there, is that right?
9 A. That's correct, yes, sir.
10 Q. Door open or closed?
11 A. The door was -- it was cracked, I think. It was almost
12 closed, maybe not completely closed.
13 Q. And you just gave the warrants on him for absconding
14 supervision, is that right?
15 A. That's correct.
16 Q. And you were aware at that time that he had been charged
17 with two counts of capital murder?
18 A. Yes, sir.
19 Q. Carjacking?
20 A. Yes, sir.
21 Q. Had some charges pending in Virginia?
22 A. Yes, sir.
23 Q. And in the scheme of things, this was the least of his
24 worries, would that be fair statement based on your experience,
25 I mean, he's looking at the death penalty, the probation
941
1 violation for a felony is the least of his worries, is that a
2 fair statement?
3 A. Perhaps, perhaps.
4 Q. His lawyer was with him?
5 A. Yes, sir.
6 Q. Susan Wegan?
7 A. Yes, sir, that's correct.
8 Q. Female lawyer from the public defender's office?
9 A. Yes, sir.
10 Q. Now, and I believe he was upbeat with you as far as
11 saying, you were straight up with me, is that right?
12 A. Right.
13 Q. Let's go back a little. When you went and did this
14 initial client assessment sheet that Mr. Conrad asked you about,
15 a lot of that information you get from the computer, do you not,
16 about prior convictions and stuff like that, you just don't rely
17 on what somebody tells you, is that right?
18 A. Well, yes and no. I mean, I depends on when we fill
19 these out, we ask them -- I mean, because we feel it's a better
20 assessment if we ask them personally and that gives us an
21 indication of whether they are being truthful with us or not.
22 Q. And if you found out different, would you go back and
23 change it?
24 A. Yes, sir.
25 Q. Were you aware when you did the assessment sheet in 1984
942
1 that he had been supervised by your office two years earlier?
2 MR. CONRAD: Object to the year.
3 MR. LAUGHRUN: 1993.
4 THE COURT: Overruled.
5 BY MR. LAUGHRUN:
6 Q. September 23rd, '93, were you aware he had been
7 supervised by your office by a probation officer named
8 Michael D. Haley?
9 A. No, sir.
10 Q. You didn't put that in your records?
11 A. Well, that file, I'm sure, had been closed at that
12 point. There was nothing in the file that I had that indicated
13 that.
14 Q. Couldn't punch his name in the computer to see if he had
15 ever been supervised by probation before?
16 A. Yes, we could do that.
17 Q. Let me ask you to look at Defendant's Exhibits 62 and
18 63. And while Mr. Conrad is looking at those, do you know what,
19 these are my words, Mr. Johnson, courtesy supervision is called?
20 A. Yes, sir.
21 Q. Courtesy supervision, and correct me if I'm wrong, one
22 state asks another state to supervise that inmate or that
23 probationer?
24 A. Yes, sir, that's correct.
25 Q. That's through what is called the interstate compact, is
943
1 that right?
2 A. Yes, sir.
3 Q. And what happens is, correct me if I'm wrong, the state
4 that wants the supervision contacts tax the state where the
5 defendant lives and asks to do a background check to see if he
6 would be appropriate to transfer the paperwork, is that right?
7 A. That's correct.
8 Q. And your office here, for example, if the defendant were
9 in Georgia, transferred it up here, you'd do a home visit, do a
10 background check as best you could to see if it would be
11 appropriate to supervise him here, is that right?
12 A. Yes, sir.
13 Q. And if it's done, it's sent back through what is called
14 the interstate compact, probationer, all the paperwork is sent
15 up here and y'all do what is called a courtesy supervision, is
16 that right?
17 A. Yes, sir.
18 Q. Try to enforce all of the terms of that home state
19 probation, is that right?
20 A. Yes, sir, that's correct.
21 Q. And were you familiar with Mr. Barnette being supervised
22 by Mike Haley up here at all?
23 A. Not at that time, I was not, no, sir.
24 Q. The government didn't ask you to bring that file with
25 you, did they?
944
1 A. No, sir.
2 Q. Did they ever ask you about that case at all to your
3 knowledge?
4 A. Briefly, briefly.
5 Q. Okay.
6 THE COURT: Approach the witness, Your Honor?
7 THE COURT: Yes, sir.
8 BY MR. LAUGHRUN:
9 Q. I will ask you, Mr. Johnson, if Defendant's Exhibit 62
10 appears to be an initial client assessment of Mark Barnette that
11 Mr. Haley did 9-23-93?
12 A. Yes, sir.
13 Q. And he scored there a what, a 16?
14 A. Yes, sir.
15 Q. And what did he score with you when you did yours?
16 A. A 17.
17 Q. Now, I would ask you to look at Exhibit 63, and if that
18 appears to be the documents that were from the file that was
19 transferred from Georgia to North Carolina for supervision, and
20 in there is a picture of the defendant holding a placard, is
21 that right, not a very good picture?
22 A. Yes, that looks like his name. It's kind of hard to
23 identify who the person is.
24 Q. There's also a supervision report contact sheet in
25 there, is that right?
945
1 A. Yes, sir.
2 Q. And on the last page of that, it looks like the case was
3 terminated, is that right?
4 A. That's correct.
5 Q. And sent back to Georgia, is that right?
6 A. Yes, sir, 8-1-94.
7 Q. Now, you told us that in October of '94, you were
8 waiting for approval for the EHA, is that right?
9 A. I'm sorry, could you repeat that question for me? I was
10 referring back to my notes. I'm sorry, go ahead.
11 Q. Approximately October '94, was your office awaiting
12 approval for what is called EHA, electronic house arrest?
13 A. Yes, sir.
14 Q. EHA, correct me if I'm wrong, is the band they put on
15 the individual's ankle or ankle bracelet so that they -- you
16 have a certain time that you are supposed to be home, the
17 computer calls them at various times to make sure people are
18 there, is that correct?
19 A. That's correct.
20 Q. And requires a touch tone phone with no call waiting,
21 call forwarding, those type of features, is that correct?
22 A. That's correct.
23 Q. Gives you a certain little -- you go a certain amount
24 before it won't work, is that right?
25 A. Yes, sir, that's correct.
946
1 Q. And I believe you said that you were waiting to get
2 those devices in October of '94, and still you were trying to
3 set that up with Mr. Barnette in November of '95, is that
4 correct?
5 A. That's correct.
6 Q. Still hadn't gotten that approved or set up or whatever,
7 is that right?
8 A. That's correct. In order to set that up, though, you
9 have to have a stable residence. You also have to have a set
10 schedule every day, and he was telling us, of course, that first
11 of all, that he didn't have a set schedule at that time. He
12 told us, I think I testified a couple times that he said he was
13 working at the Marriott but he didn't have a set schedule, that
14 his schedule rotated.
15 Q. That's why you couldn't do the EHA, is that right?
16 A. Well, that was the latter part, but initially we didn't
17 have the equipment to set him up.
18 Q. Because the State of North Carolina didn't fund it, is
19 that a fair statement?
20 A. Well, we had a limited number of monitors at that time.
21 Q. Now, when he was going to do the EHA, that was part of
22 Judge Jessie Caldwell's judgment, was it not?
23 A. Yes.
24 Q. And that judgment never was enforced, was it, never was
25 placed into effect due to what you've just told us about?
947
1 A. Right, that's correct.
2 Q. And he missed some office visits, right?
3 A. (Nods head.)
4 Q. Unstable employment?
5 A. (Nods head.)
6 Q. Unstable residence?
7 A. (Nods head.)
8 Q. Right. Was he paying his money?
9 A. He was not paying his money, no.
10 Q. And you said one time he had to go to court for an
11 assault charge in approximately November of '94?
12 MR. CONRAD: Objection.
13 THE WITNESS: That's correct.
14 THE COURT: Overruled.
15 BY MR. LAUGHRUN:
16 Q. Is that correct?
17 A. That's correct.
18 Q. On any one of those, either whether he was convicted or
19 not, a warrant for a probation violation could have been issued,
20 is that right?
21 A. Well, we don't issue warrants if someone has a pending
22 charge. It's only a violation of the probation if they're
23 convicted at that point.
24 Q. You can bring them back for the conduct even if they may
25 be acquitted for the charge, is that a fair statement,
948
1 technically?
2 A. Well, we can, yes. It just depends on -- I'm sure that
3 you certainly know that as many years as you've been a lawyer
4 here in Charlotte that we don't -- normally we don't report
5 people back unless there is a conviction, prior conviction. On
6 his appointments with me, he was cooperative at the appointments
7 that he did show up. I was working with him the best that I
8 knew how to work with him.
9 Q. In fact, he even said that to you in the holding cell,
10 you were straight up with me?
11 A. Right, right.
12 Q. Those probation violations that you served, Mr. Johnson,
13 on July 8th of '96 are still outstanding as of right now, is
14 that right?
15 A. Yes, sir.
16 Q. They've never been heard, have they?
17 A. Well, they been continued for many, many different
18 reasons at the request of the defense.
19 Q. Right, because of his pending matters down here, is that
20 right?
21 A. That's correct.
22 MR. LAUGHRUN: Thank you, Judge Potter.
23 MR. CONRAD: Just briefly, Your Honor.
24 REBUTTAL REDIRECT EXAMINATION
25 BY MR. CONRAD:
949
1 Q. Mr. Johnson, Mr. Laughrun asked you whether or not the
2 government had asked you any questions about his prior probation
3 with Michael Haley. Are you aware that the government provided
4 the defense with all of the information concerning Michael
5 Haley's previous supervision?
6 A. Yes, sir.
7 Q. And the fact is that this defendant was not under
8 Michael Haley's supervision in 1995, is that correct?
9 A. That's correct.
10 Q. When he indicated he was living at 3413 West Boulevard
11 or 1708 Flynwood in Charlotte, when, in fact, he was living at
12 1616 Keswick Drive in Roanoke, he was under your supervision at
13 that time?
14 A. Yes, sir.
15 Q. And the same is true in 1996 when he killed Donnie Lee
16 Allen and Robin Williams, he was under the supervision related
17 to the felonious restraint here in Charlotte, not supervision
18 related to the felonious cruelty to children out of Georgia?
19 A. That's correct.
20 MR. CONRAD: That's all I have.
21 MR. LAUGHRUN: One question if I may.
22 REBUTTAL RECROSS-EXAMINATION
23 BY MR. LAUGHRUN:
24 Q. Mr. Johnson, you didn't provide that document that you
25 testified from, you were not asked to provide them copies of
950
1 that like you were the other documents, were you?
2 A. The only way that we can provide any file to anyone is
3 if the Court orders us to do that.
4 Q. Do you know if the court order provided the Georgia
5 probation we talked about, do you have any knowledge about that
6 at all?
7 A. No, I have no knowledge about that at all.
8 MR. LAUGHRUN: Thank you, sir. Thank you, Judge Potter.
9 THE COURT: Thank you, sir.
10 Members of the jury, we will take the morning recess at
11 this time. Do not discuss the case among yourselves while you
12 are out, please.
13 (The jury left the courtroom.)
14 THE COURT: Mr. Conrad, Mr. Walker how much more do you
15 have?
16 MR. CONRAD: One witness.
17 THE COURT: One more witness.
18 MR. LAUGHRUN: Judge, if I may, I'd like to put
19 something on the record if I may. We had several bench
20 conferences. Judge, first the government called Brian Ard about
21 a defendant being terminated for sexual harassment, and that was
22 the only purpose they called him. We would object, ask the
23 Court to strike his testimony, move for a mistrial and ask the
24 Court to impose a life sentence, strike his testimony in the
25 alternative because that has nothing to do with what was offered
951
1 by the defense in its case in chief.
2 We would also renew that with regard to Ms. Williams,
3 that there was absolutely nothing she testified to, Judge, that
4 was offered in rebuttal. Your Honor will recall her testimony.
5 We would move again for a mistrial, Judge, with regard to Joanna
6 Baldwin due to the fact that she has through the government's
7 efforts injected race into this matter. The jury is composed
8 entirely of whites, the defendant is African-American, the
9 witness was white. We would again move for a mistrial, would
10 ask Your Honor to impose a life sentence, in the alternative to
11 strike her testimony as being totally irrelevant to the
12 defense's presentation.
13 And also, Judge, with regard to Thad Johnson, who is
14 probably one of best probation officers over there in the state,
15 has nothing to do with what we offered in case in chief. And
16 the government has stricken from its death notice the low
17 rehabilitative factor. They did that last Friday. His
18 testimony had absolutely nothing to do with future
19 dangerousness, et cetera. It's merely brought to arouse the
20 passions of the jury to say, wow, while on probation, the
21 defendant did A, B, C and D and had nothing to do with what we
22 offered in our case in chief and ask Your Honor for a mistrial
23 on that matter and a life sentence, in the alternative to strike
24 his testimony, if Your Honor please journal.
25 THE COURT: Thank you, sir. Do you want to respond,
952
1 Mr. Conrad?
2 MR. CONRAD: Your Honor, all the things Mr. Laughrun
3 objected to were matters we put in after the defense case which
4 involved the character of the defendant's. Our evidence was
5 offered to rebut that.
6 With respect to the injection of race into this matter,
7 Mr. Laughrun's question to Mr. Ard was, was he the only
8 African-American at Camelot Music store, and I objected on
9 relevance grounds to that. But that was his, he is the one that
10 injected race into this case. All that witness was testifying
11 to is what the defendant told her. And so she is entitled to
12 say what the defendant told her.
13 I would contend with respect to Mr. Johnson's testimony
14 it's highly probative, because we spent a week in here with
15 family members telling this jury that the defendant was at home
16 sitting on a bucket waiting for the police to arrest him for six
17 weeks. And Mr. Johnson's testimony is those same family members
18 and the defendant himself on previous occasions had indicated
19 that he was living at a residence when, in fact, he was living
20 in a completely different state. And it goes to their
21 credibility, and it's direct rebuttal evidence of matters
22 brought up into this trial by the defendant during his case in
23 chief.
24 MR. LAUGHRUN: Judge, if I may, were you finished Bob,
25 I'm sorry, I didn't mean to cut you off.
953
1 THE COURT: Are you finished, Mr. Conrad?
2 MR. CONRAD: Yes, sir.
3 MR. LAUGHRUN: Judge, the evidence was the warrant for
4 probation arrest was issued 12-15-95. We'd be happy to call
5 Mr. Johnson back, but the testimony from him, I think, will be
6 once a warrant for arrest of a probationer is issued, they do
7 nothing more. They don't go out there and try to serve it. The
8 evidence we offered was from April of 1996 until June of 1996,
9 that's when the defendant was home, quote, sitting on a bucket
10 waiting for the police to arrive. That's the testimony, sitting
11 in the area. There is no evidence from Mr. Johnson that he ever
12 went out there in April, May or June of 1995. And I can tell
13 you the policy is once a warrant for arrest for state probation
14 is issued, probation washes their hands of it and depends on law
15 enforcement to find the defendants.
16 THE COURT: All right.
17 MR. CONRAD: Your Honor, the fact that someone engaged
18 in similar conduct before is directly relevant to their
19 credibility when they say they -- whey they testify about the
20 same type of situation in the future. This family provided
21 cover for the defendant in the past to help him out on his
22 probation violations, and they came in here and testified as to
23 why it was that he was at home for the six weeks between April
24 and June. It's directly rebutting that testimony.
25 THE COURT: All right, thank you, sir. All of the
954
1 defendant's motions are denied. Recess until 11:10.
2 (Brief recess.)
3 THE COURT: Ready for the jury.
4 MR. CONRAD: Yes, sir.
5 THE COURT: Call the jury.
6 (The jury returned to the courtroom.).
7 THE COURT: They're supposed to be cooling it down for
8 us. All right Mr. Conrad.
9 MR. CONRAD: I had the witness Thad Johnson identify an
10 exhibit with no objection from the defendant, and I wish to move
11 admission now and ask to pass it to the jury, Government's
12 Exhibit 66.
13 THE COURT: 66?
14 MR. LAUGHRUN: That's correct, we have no objection.
15 THE COURT: Let it be admitted. Call your next witness.
16 MR. CONRAD: United States would call Dr. Scott Duncan.
17 DR. SCOTT DUNCAN
18 being first duly sworn, was examined and testified as follows:
19 DIRECT EXAMINATION
20 BY MR. CONRAD:
21 Q. Would you tell the jury your name?
22 A. Scott Duncan.
23 Q. Dr. Duncan, how are you employed?
24 A. I am the forensic coordinator, forensic psychology
25 coordinator at the United States Penitentiary in Atlanta,
955
1 Georgia.
2 Q. How long have you been so employed?
3 A. In that particular position, I have been employed
4 approximately four and a half to five years.
5 Q. Prior to that what was your employment?
6 A. I have been with the federal Bureau of Prisons since the
7 28th of August, 1989. Within my employment with the Federal
8 Bureau of Prisons, I initially came on as a staff psychologist,
9 where I served in that capacity for about four months. And then
10 I was promoted to acting chief psychologist at the federal
11 penitentiary in Atlanta and was subsequently then promoted to
12 the chief position.
13 I remained in that position for approximately two years,
14 and I transferred as the assistant psychology services
15 administrator in our Washington D.C. Office. After that
16 position I transferred back to Atlanta and have been in the
17 position of forensic psychology coordinator since.
18 Q. Prior to 1989 when you became a staff psychiatrist with
19 USP Atlanta, what was your employment?
20 A. As a doctoral level psychologist, I had worked for
21 approximately 11 months at the Mecklenburg, what was then known
22 as the Mecklenburg Community Mental Health Center here in
23 Charlotte. I believe it's currently called the Community Mental
24 Health Center and is part of the Charlotte Hospital Authority,
25 but it was the facilities on Billingsley Road here in Charlotte.
956
1 Q. Now, Dr. Duncan what is your educational background?
2 A. I hold a bachelor's degree in psychology from Oterbine
3 College, I received that in 1983. I hold a masters in clinical
4 psychology from Morehead State University in Morehead,
5 Kentucky. And I hold a doctorate of psychology degree which I
6 received in 1988 from the Florida Institute of Technology in
7 Melbourne, Florida.
8 Q. What types of training have you had other than your
9 educational training in the area of psychology?
10 A. I have had a lot of specialty training particularly in
11 the area of forensic psychology. Forensic psychology is the
12 application of psychological principles to the legal setting.
13 Q. Are you a diplomate with any particular organization?
14 A. Yes, sir, I hold a diplomate with the American Board of
15 Forensic examiners and a diplomate with the American Board of
16 Forensic Medicine.
17 Q. And what is involved in holding a diplomate status with
18 those two organizations?
19 A. The involvement or how one becomes a diplomate in that
20 organization is based on your level of experience. I believe
21 you have to have at least five years of experience in a forensic
22 discipline, and then I believe another qualification is that you
23 cannot have any ethical violations, previous ethical violations
24 against you. And then it's -- they take your experience and
25 it's placed on a point system based on your number of years that
957
1 you have worked in forensics and the forensic area and based on
2 the number of times you have testified. And it's basically
3 based on experience in the area of forensic psychology or in the
4 area of forensic examinations.
5 Q. In addition to your educational background, do you have
6 teaching experience?
7 A. Yes, sir. I am an adjunct professor at the Georgia
8 School of Professional Psychology in Atlanta.
9 MR. CONRAD: Your Honor, I would move at this time to
10 qualify Dr. Duncan as an expert in forensic psychology.
11 THE COURT: The Court will so find.
12 BY MR. CONRAD:
13 Q. As part of your duties with USP Atlanta, do you conduct
14 evaluations in your current position?
15 A. Yes, sir.
16 Q. What type of evaluations do you do?
17 A. We perform evaluations for the federal courts. All of
18 the evaluations that we conduct are conducted based on a court
19 order from a particular federal judge. The typical referral
20 questions that we get at our facility in Atlanta are either the
21 issue of whether the individual is competent to stand trial or
22 whether the person was insane at the time of an offense. We can
23 get other referrals but those are the typical referrals that we
24 get.
25 Q. Are you aware in this case that that's the reason that
958
1 the defendant, Mark Barnette, was sent to Butner for that
2 two-fold evaluation?
3 A. Yes, sir, my understanding was and my review of the
4 Butner records indicated that he was sent to there to the Butner
5 facility prior to our -- Dr. Grant and my evaluation of him.
6 Q. And he was found competent to stand trial?
7 A. That was their opinion, yes, sir.
8 Q. And not insane at the time he committed the offense?
9 A. That was their professional opinion, yes.
10 Q. How many evaluations have you conducted?
11 A. Within the federal system, I don't know that I could
12 give you an exact number, I know in the last -- I've been
13 conducting them for the last eight and a half years, and in that
14 time period I have conducted over 300 such evaluations.
15 Q. And tell the jury how that process works?
16 A. Typically as I communicated before, we get a court order
17 from a federal judge, and then based on what the Court order
18 says, we -- the individual is typically sent to our facility for
19 either a 30 or 45 day period of evaluation. We typically
20 conduct psychological testing and review of any and all
21 information that we can get our hands on, we prepare a report,
22 and we submit it back to the Court.
23 Q. Now, have you ever testified as an expert witness
24 before?
25 A. Yes, sir, I have.
959
1 Q. How many occasions?
2 A. The exact number of occasions, I'm not precisely sure.
3 I know that I have been deemed as an expert witness in 16
4 different states or federal jurisdictions. I have performed
5 forensic evaluations for over 150 different federal judges, and
6 as I said before, I've been doing this for the last eight and a
7 half years.
8 Q. Have you testified as an expert in North Carolina
9 federal court?
10 A. Yes, I have.
11 Q. On how many occasions?
12 A. To the best of my recollection I testified in North
13 Carolina on six occasions.
14 Q. Of those six cases, how many times did you testify for
15 the defense and how many times were you called by the
16 prosecution?
17 A. I have testified in North Carolina three times for the
18 defense and three times for the prosecution.
19 Q. On average, how many times are you called to testify by
20 the defense in the over 150 evaluations that you have done?
21 A. On average, when I am called to testify, I have
22 testified approximately 40 percent of the time for the
23 defendant, and approximately 60 percent of the time for the
24 prosecution.
25 Q. And do I understand your testimony to be that you
960
1 conduct an evaluation as a result of a court order and submit
2 that evaluation to the court?
3 A. Yes, sir. When we have a defendant that we are
4 evaluating, what we tell the defendant is that we are conducting
5 the evaluation upon judge so and so's court order. That in that
6 capacity we are working for the judge, we are not working for
7 the prosecutor, not working for the defense; that anything that
8 we go over in the evaluation or glean from the evaluation is not
9 held confidential and that information could be supplied in a
10 report which goes back to the Judge, and that the prosecutor and
11 the defense attorney will both get copies of that report that
12 goes to the judge.
13 Q. And then it depends on whether you are subpoenaed by the
14 defense attorney or the prosecution as to whether you testify
15 for the defense or for the prosecution?
16 A. Yes, sir. I assume is that it depends on who
17 the -- whoever -- whichever side my report favors.
18 Q. Did you evaluate the defendant, Aquilia Marcivicci
19 Barnette, in this case?
20 A. Yes, sir, I did.
21 Q. And have you ever evaluated a defendant in a death
22 penalty context before?
23 A. Not -- I have not evaluated a defendant in the context
24 of a death penalty case. I did perform a federal evaluation on
25 a defendant, the case was United States versus Thomas Elder, and
961
1 the evaluation I performed was for competency and
2 responsibility.
3 After his federal charges were taken care of I believe
4 he was convicted. The State of Tennessee also brought capital
5 murder charges, and I was asked based on my previous evaluation
6 to go to Tennessee and testify in a sentencing hearing to
7 determine whether Mr. Elder was mentally retarded. And I
8 testified in that capacity which was connected with a capital
9 issue.
10 Q. And that's the extent of your death penalty litigation,
11 if you will?
12 A. Yes, sir.
13 Q. You don't take a slide slow around the country and
14 testify in death penalty cases several times a year?
15 A. No, sir.
16 Q. And how are you paid, Dr. Duncan? I'm not asking for
17 what you are paid.
18 A. That's public knowledge, too. I am paid by the United
19 States Justice Department. I am a salaried employee, salary of
20 G.S. 13, step 10, I believe.
21 Q. Now, are you paid any differently because you are in
22 Charlotte participating in this case than you would be if you
23 were at USP Atlanta doing your job there?
24 A. The only difference in pay that I would realize in being
25 in Charlotte is that I am here in Charlotte and not in Atlanta,
962
1 and I have private practices in Atlanta, so I'm losing a little
2 money by being here. But with regards to the penitentiary pay
3 the pay is no different.
4 Q. Now, you testified that you did exam the defendant in
5 this case?
6 A. Yes, sir.
7 Q. When did you do that?
8 A. The first interview that myself and Dr. Grant had with
9 the defendant was on the 29th of December of 1997.
10 Q. And then did you have a subsequent interview of
11 defendant as well?
12 A. Yes, sir, I believe we reinterviewed him on the 19th of
13 January of this year.
14 Q. What other material did you rely upon in preparation for
15 your testimony today?
16 A. If I may refer to my report. I can be brief and say
17 that we took a look at over, in my count it was 2774 pages of
18 discovery materials involved in the case. In addition to that
19 we interviewed the defendant on two separate occasions for a
20 total of approximately seven hours, one hour of that was
21 psychological testing.
22 Q. Did you conduct any third party interviews?
23 A. Yes, sir. I was personally involved in a face-to-face
24 interview with Natasha Heard, the -- an ex-girlfriend of the
25 defendant and mother of his two children. Dr. Grant interviewed
963
1 Keesha Heard, the sister of Natasha, on the telephone and he and
2 I had extensive conversation about that interview.
3 Dr. Grant also interviewed Crystal Dennis, who was an
4 ex-girlfriend of the defendant, and he also interviewed
5 face-to-face with Alesha Chambers, who was an ex-girlfriend of
6 the defendant. I have reviewed the Butner evaluation and record
7 based on his --
8 THE COURT: Could you gentlemen come up here just a
9 moment please.
10 (Bench conference not recorded.).
11 THE COURT: Excuse me.
12 BY MR. CONRAD:
13 Q. I believe you just testified that you had reviewed the
14 psychiatric report at Butner FCI?
15 A. Yes, sir.
16 Q. And what other reports did you review?
17 A. I reviewed the report and raw test data of Dr. Faye
18 Sultan, I reviewed the report of Dr. Cunningham, and the report
19 of Dr. Halleck, also the reports of and subsequent test data of
20 Dr. Tyson, I believe.
21 Q. Let me approach and hand to you what's been marked for
22 identification as Government's Exhibit 70, and ask you to turn
23 to the medical records section of that three-ring binder and I
24 will ask you if you reviewed all of the medical records
25 contained in that section?
964
1 A. Yes, sir, this looks like the -- I actually reviewed
2 this entire binder.
3 Q. Dr. Duncan, did you review anything else other than what
4 you just testified to?
5 A. I believe I also reviewed the defendant's probation
6 records, the defendant's school records, I inspected the
7 Charlotte crime scene, the Donald Allen crime scene on two
8 separate occasions. I did an inspection, if you will, from the
9 road, I drove by Mr. Barnette's house where he was living prior
10 to the times that -- his mother's house. And I also observed
11 from the road the apartment complex that he identified that he,
12 his mother and brother lived in after the parents divorced, the
13 Wendover Road Apartments. I inspected the scene where the car
14 was left following the murders, and I think off the top of my
15 head that's the majority of the material that I reviewed.
16 Q. Did you, based on that review and the examinations that
17 you conducted on two occasions with this defendant, did you
18 arrive at a diagnosis of the defendant?
19 A. Yes, sir, Dr. Grant and I both arrived at a diagnosis.
20 Q. And did you prepare a written report which contained
21 your findings with respect to that diagnosis?
22 A. Yes, sir, we did.
23 Q. Now, when was that report prepared?
24 A. I think the final copy was prepared and submitted on the
25 29th of January of this year.
965
1 Q. Subsequent to preparation of that report, did you
2 continue to do interviews and assessment of data and
3 information?
4 A. Yes, sir, we continued to do interviews and with so much
5 material involved in the case, we continued to go back through
6 the material an re-read it and pick up information the second
7 and third time. We were reviewing over 3000 pages.
8 Q. And did any of that change your opinion as that is
9 reflected in your report that you said was filed January 29th?
10 A. The only thing that I did change, it did not change my
11 diagnosis, the only thing that it did change was the score that
12 I reported in the report, on an instrument called the
13 psychopathy check list revised.
14 MR. WILLIAMS: Objection, Your Honor, for the previous
15 reasons for the record.
16 THE COURT: Overruled.
17 THE WITNESS: I believe I reported in the report that he
18 obtained a score of 32. When we gleaned more information, or
19 when I gleaned more information and went back and rescored the
20 test the defendant scored a total score of 35.
21 BY MR. CONRAD:
22 Q. Now, that's a psychopathy checklist PCL-R?
23 A. Yes, sir.
24 Q. What is a PCL-R?
25 A. The PCL-R is an instrument that is designed to measure
966
1 the theoretical concept called psychopathy. The concept has
2 been in existence since the late 1950's, early 1960's, and it
3 has changed a bit. The PCL-R was devised by a psychologist by
4 the name of Dr. Robert Hare who is professor at the University
5 of British Columbia in Canada, and Dr. Hare has spent over 25
6 years researching psychopaths and developed the instrument known
7 as the PCL-R.
8 Q. And why did you rescore the test as you previously
9 indicated?
10 A. Well, the first time that I had scored the test, the
11 PCL-R was after our first interview of the defendant. Then as
12 more information came in and as we were able to talk with his
13 previous girlfriends and re-read back through the 3000 plus
14 pages, it became apparent that there were some items that I had
15 missed the first time around.
16 So I felt that it was important to rescore the PCL-R,
17 and when I did I felt that in three specific areas I did miss
18 items which increased his score.
19 Q. I see. The first time you interviewed the defendant,
20 you did not go into the facts surrounding the murders of Donnie
21 Lee Allen and Robin Williams?
22 A. We tried.
23 MR. LAUGHRUN: Objection, would like to be heard.
24 BY MR. CONRAD:
25 Q. My question is you didn't go into the facts?
967
1 A. No, sir.
2 THE COURT: You have an objection?
3 MR. LAUGHRUN: I don't object to that.
4 THE COURT: Go ahead.
5 BY MR. CONRAD:
6 Q. In the second interview you did go into the facts with
7 the defendant, is that correct?
8 A. Yes, the second interview was approximately two and a
9 half hours in length, and 99 percent of that time was spent
10 discussing the crimes, from the fire bombing until the Williams
11 murder in Roanoke, Virginia.
12 Q. Now, would you tell the jury what your conclusions were
13 as a result of all of the examination and investigation in this
14 case?
15 A. With regards to his diagnosis or --
16 Q. In regards to his diagnosis.
17 A. We felt that he had a diagnosis -- several diagnoses
18 that we made. I probably should preface that by saying the
19 instrument or the text that we used in diagnosing was the
20 Diagnostic and Statistical Manual, Fourth Edition, otherwise
21 known as the DSM-4, and in that diagnosis manual we diagnosed
22 the defendant with adult antisocial behavior of axis one and
23 borderline personality disorder with antisocial narcissistic
24 traits on axis two. Apart from that I also felt that the
25 defendant met the criteria both from the PCL-R and from observed
968
1 behavior of being a psychopath.
2 Q. Now, the mentioned the word axis, would you tell the
3 jury what that means, axis one, axis two, three, four?
4 A. Axis one is out of the DSM-4 is designed to -- it's the
5 place where you put all mental health diagnoses with the
6 exception of personality disorders and mental retardation.
7 Personality disorders and mental retardation are reflected in
8 axis two, but everything else goes in axis one.
9 Q. What is a personality disorder?
10 A. A personality disorder -- well, let me first say that
11 personality is -- it's those characteristics that we all have
12 that make us who we are. It's those things that make us unique
13 and that we use to interact with people, and otherwise known to
14 people as whether somebody's got a good personality or a bad
15 personality. Given that, a personality disorder is those
16 characteristics, but those characteristics that an individual
17 has are so inflexible and rigid that it causes personal problems
18 in their every day life. It causes them problems on the job, it
19 causes them problem in their relationships, causes them problems
20 often times in the legal system.
21 But we are also not talking about a single event where
22 you go in you have a bad day and you have an argument with your
23 boss, we are talking about a lifelong pattern of the way an
24 individual interacts with their environment. And that's
25 basically what a personality disorder is. The DSM-4 identifies
969
1 10 separate personality disorders.
2 Q. Does a personality disorder prevent a person from
3 knowing right from wrong?
4 A. No, sir.
5 Q. What is a -- is borderline personality disorder one of
6 the 10 personality disorders listed in DSM-4?
7 A. Yes, it is.
8 Q. What is borderline personality disorder?
9 A. The basic characterization of borderline personality
10 disorder is one who has a difficult time in relationships. A
11 very difficult time, not just in one relationship but they show
12 relationship problems throughout their adult life.
13 There are nine specific criteria or symptoms listed in
14 the DSM-4 under borderline personality disorder. In order to
15 meet the diagnosis you have to have at least five. It could be
16 any five but you have to have at least five of those specific
17 criteria.
18 Q. And did the defendant meet at least five of those
19 criteria?
20 A. In Dr. Grant's and my opinion, he met six out of the
21 nine.
22 Q. And what symptoms were those?
23 A. The first category was frantic efforts to avoid real or
24 imaged abandonment. The second was impulsivity. In at least
25 two areas in we felt that he was impulsive; in the area of
970
1 having multiple sexual partners and having recurrent bouts with
2 alcohol use -- abuse. The third area was recurrent suicidal
3 behavior, gestures or threats, although we didn't find any
4 evidence that -- collateral evidence that the defendant ever
5 engaged in suicidal behavior.
6 He did report having threats of suicide, and we got
7 collateral information that he had threatened suicide. The
8 fourth area was what is called affective instability due to
9 marked reaction of mood. And what that basically is is, does
10 the individual's behavior change a lot in their mood, is it very
11 fluctuating at times. We observed that in our interviews, and
12 we got that information both from the defendant as he described
13 his past and from collateral information.
14 The fifth area was inappropriate intense anger or
15 difficulty controlling anger. We got that from the interview
16 from the defendant and other people. And then the sixth one was
17 transient stress-related paranoid thoughts. The defendant
18 reported, as well as his previous girlfriends, that he would
19 often accuse them of being unfaithful to him and be paranoid
20 about their stepping out on him in relationships.
21 So we felt that he meet those six criteria, and again we
22 needed to meet five of those in order to give the diagnosis.
23 Q. Is the term antisocial trait familiar with you?
24 A. Yes, sir.
25 Q. What is an antisocial trait?
971
1 A. Well, there is a separate diagnosis, personality
2 disorder, one of the 10 is called antisocial personality
3 disorder. Under that disorder, like borderline personality, it
4 has a list of traits or symptom characteristics. In the
5 personality disorders, if someone meets some of the traits but
6 doesn't have enough of the traits to meet the full blown
7 disorder, then you can specify that they have either antisocial
8 traits or in his case antisocial and narcissistic traits.
9 Q. Did the defendant have antisocial and narcissistic
10 traits?
11 A. Yes, he did.
12 Q. Describe what you mean by that to jury?
13 A. The antisocial personality disorder has seven different
14 categories of traits, and of those seven, Mr. Barnette, we felt
15 fit all seven of them, but we did not diagnosis him with
16 antisocial personality disorder because you have to have three
17 of the seven, but you have to show that they have at least three
18 of those since the age of 15.
19 We were able to document that he had the behaviors, all
20 seven of the behaviors since the age of 18, but could not go
21 back to age of 15. So therefore we downgrade it to antisocial
22 traits rather than the full blown disorder.
23 Q. And with respect to narcissistic traits?
24 A. We felt that he met four of possible nine traits with a
25 narcissistic personality disorder. In order to make that full
972
1 blown disorder you have to have five.
2 Q. Now, what is narcissistic traits?
3 A. Narcissistic traits, the specific one that he had --
4 that we felt that he had, one was that he requires excessive
5 admiration. And we got that a lot from his interviews with his
6 ex-girlfriends. Second one, he has a sense of entitlement, that
7 was very prevalent during our interviews of the defendant. The
8 third one was, he has -- he is interpersonally exploitative. He
9 takes advantage of others. And the fourth one is he lacks
10 empathy. And again, we observed that during our interviews of
11 the defendant.
12 Q. Now, was there anything with respect to your diagnosis
13 of borderline personality disorder or analysis of antisocial and
14 narcissistic traits, anything about that make you conclude that
15 the defendant did not know right from wrong?
16 A. No, sir, there are no symptoms in any of those which
17 would preclude one from knowing the difference between right or
18 wrong.
19 Q. Or to be able to control one's behavior and know what he
20 is doing when he is committing a crime?
21 A. That's correct. None of those symptoms would suggest
22 that an individual wouldn't know what they were doing or be able
23 to control what they were doing.
24 Q. Let me turn your attention back to the conclusion you
25 drew that the defendant was a psychopath based upon the PCL-R?
973
1 A. Yes, sir.
2 Q. And I will ask you how you came to that conclusion?
3 A. The conclusion --
4 Q. Before you tell us how you came to that conclusion, will
5 you describe for the jury what a psychopath is?
6 A. Certainly. In general, a psychopath is an individual
7 who lacks the ability to feel at the same level and have the
8 intensity of what feelings are as compared to nonpsychopathic
9 individuals. Typically they are very callous, manipulative,
10 calculating, individuals that will often exploit other people.
11 There is research to suggest that biologically, they do not
12 respond to what nonpsychopaths view as fear and anxiety which
13 are two emotions that make up what we refer to as remorse or
14 guilt. The psychopath is an individual that has little if any
15 ability to feel remorse or guilt for behavior they engage in.
16 Q. Now, did you come to the conclusion in your report and
17 as you testified today that the defendant is a psychopath?
18 A. That was based on the behavior that we saw during our
19 interviews of the defendant, also based on a review of the
20 material that I had cited earlier and based on how he eventually
21 scored out on the Hare Psychopathy Checklist Revised.
22 Q. Is psychopathy a formal diagnosis?
23 A. No, sir, it is not a diagnosis formally listed in the
24 DSM-4.
25 Q. Why is it important to establish whether or not a
974
1 defendant is a psychopath?
2 A. Well, psychopaths are -- criminal psychopaths are twice
3 as likely to engage in future criminal behavior when compared to
4 noncriminal psychopaths. Criminal psychopaths are three times
5 as likely to engage in violent future criminal behavior when
6 compared to nonpsychopathic criminals. Although in any prison
7 population only about 20 percent of that population typically
8 are psychopaths, they are responsible for over 50 percent of
9 violent crimes that are committed. Also, identifying someone as
10 a psychopath helps institutions to be able to place them either
11 in a maximum or lower security penitentiary based on what they
12 score out.
13 Also it helps us to know, psychopaths are typically very
14 resistent to changing their behavior. And there is some
15 evidence to suggest that if we try traditional forms of
16 psychotherapy with psychopaths it will actually make them
17 worse. So a lot of that information becomes important in being
18 able to identify whether one has psychopathic characteristics or
19 not.
20 Q. Now, in assessing someone as a psychopath, does it make
21 you conclude that that person is somehow less accountable for
22 the crimes he has committed than others?
23 A. No, sir, there is nothing about a person being a
24 psychopath that would make them in my opinion at all less
25 accountable for the behavior they engage in their behavior with
975
1 full knowledge of what they are doing, they just don't seem to
2 care.
3 Q. Would you tell the jury how you conducted the PCL-R
4 checklist and what the items are that go into that check list?
5 A. The PCL-R is a rating scale. First you are to do an
6 extensive interview of the individual and a collateral review of
7 collateral information, certain other sources of information.
8 And then based on that you go through and there are 20 different
9 categories, and you go through each of the categories and you
10 see how that individual compares on that category. If he
11 didn't -- he or she doesn't have any of the symptoms on that
12 category they get a score of zero. If they have some of the
13 symptoms but not all of the symptoms they get a score of one.
14 And if they have a large number of the symptoms in that
15 particular category they get a score of two. And you do that
16 for the 20 categories with a total possible point -- total
17 possible points of 40.
18 Q. And did you do that with the defendant?
19 A. Yes, sir.
20 Q. What 20 categories did you go over with him?
21 A. The categories, the first category is entitled glibness
22 and superficial charm. I scored the defendant a two on that
23 one. Grandiose sense of self worth is the second category, I
24 scored the individual one on that category. Item three is need
25 for stimulation or proneness to boredom, the defendant scored a
976
1 two. Four is pathological lying. Originally I scored the
2 defendant 1 on that, but when I got -- had a chance to talk with
3 other individuals and go back through the material and compare,
4 he was upgraded from a one to a two.
5 Item five was conning, and it's called conning and
6 manipulating. I scored him a one. Number six, lack of remorse
7 or guilt, I scored a two. Number seven, shallow affect,
8 originally scored a one, but after the interviews and then going
9 back through additional information, I upgraded him to a two.
10 Eight is callousness or lack of empathy. He scored a two. Nine
11 is parasitic life style he scored two. 10 is poor behavior
12 controls, he scored two. 11 is promiscuous sexual behavior, he
13 scored two. 12 was early behavior problems and he scored a 1.
14 13 lack of realistic long-term goals, he scored two. 14 was
15 impulsivity, he scored two. 15 was irresponsibility, which he
16 scored two. 16 was failure to accept responsibility for his own
17 actions, he scored two. 17, called many short-term martial
18 relationships, but marital relationship is identified in the
19 manual as, and I'm quoting here a live in relationship that
20 involves some degree of commitment from one or both partners.
21 Originally I scored him one, but in gleaning more
22 information he scored out as two. On 18 it's juvenile
23 delinquency. On this the individual has to have contact with
24 the juvenile courts before the age of 12, and we didn't see any
25 contact before the age of 12, so he got a zero. 19, was
977
1 revocation of conditional release which includes behavior that
2 would violate probation if the individual is on probation, and
3 he scored two. And then 20 was criminal versatility, and in
4 that category the PCL-R lists about 20 different types of
5 crimes, and if the individual has six or more of that specific
6 type of crime then he score scores a two. And the defendant
7 scored two on that.
8 Q. Now, do psychopaths look any different than other
9 people?
10 A. No, sir. The psychopath, probably one of their best
11 assets and probably one of the greatest fears of nonpsychopaths
12 is their ability to look normal. We would all like to be able
13 to think that we can pick out the psychopaths from the
14 nonpsychopaths in the community, but none of us are immune to
15 that.
16 I was duped by a psychopath a couple of years ago --
17 MR. WILLIAMS: Well, objection Your Honor.
18 THE COURT: I will sustain that.
19 THE WITNESS: The psychopath, as I say, has the ability
20 to look very normal. However, if you know what you are looking
21 for, it is kind of like seeing a bowel of fruit, and you say to
22 yourself, gosh that bowl of fruit looks wonderful, it looks very
23 good. But when you get close to the bowel of fruit and pick it
24 up you realize that it's fake fruit. And the psychopath is a
25 lot that way. And they look very, very normal, but when you
978
1 know what to look for, you can see things in their behavior, not
2 their appearance necessarily as much as things in their
3 behavior, which identify them as psychopaths.
4 Q. Did Mr. Barnette display any of these behavior symptoms
5 to you in the course of your six or so hours of interviewing and
6 examining him?
7 A. Yes, sir.
8 Q. Would you relate that to the jury?
9 A. I can relate some examples. One was just a very
10 occasional description of, particularly in the second interview,
11 where all we talked about were the murders and the fire
12 bombing. And during that entire two and a half hour interview,
13 the defendant presented the material when he was describing what
14 he did and his actions in a very callous way, that if you were
15 not careful you would walk away from the conversation thinking
16 that you had had a conversation about a football game.
17 MR. LAUGHRUN: Objection.
18 MR. WILLIAMS: Objection Your Honor, that is conclusory.
19 THE COURT: Overruled, he is an expert.
20 THE WITNESS: An example of that was in the individual
21 showing his behavior or showing his emotions in the two and a
22 half interview where he discussed in great detail his actions
23 during the murders and fire bombing. He didn't show any
24 emotion. Occasionally he would put his hand over his head and
25 look down. But he didn't show any change of his emotion or
979
1 affect.
2 There was one exception to that, and that was when Dr.
3 Grant had indicated that his description of his own depression
4 wasn't consistent with his behavior. And the defendant took
5 that as Dr. Grant saying this he did not believe him to be
6 suicidal, and he got -- it was kind of like flipping a switch.
7 He got very angry, his voice increased, he got up on the edge of
8 his chair. I was sitting on the side of the table holding a big
9 binder, and I felt the need to put the binder down in case he
10 was going to go further than the edge of his chair and at that
11 point he restrained himself, and he started to tear up and cry a
12 little bit. But that was the only point during the interview
13 where he got emotional when he thought we were suggesting that
14 he was not suicidal.
15 I don't know whether -- when the defendant was talking
16 about the murders, and none of us had had lunch, and the prison
17 guards brought in a sack lunch for the defendant. And I was
18 struck by the defendant's ability to sit and discuss his actions
19 during the murders and at the same time he was not missing a
20 bite on his bologna and cheese sandwich.
21 MR. LAUGHRUN: Objection to relevance.
22 THE COURT: Overruled.
23 THE WITNESS: That's the kind of callousness and
24 indifference that a psychopath typically will show, and those
25 are some characteristic symptoms of psychopath that I observed.
980
1 BY MR. CONRAD:
2 Q. Did the defendant in that interview express feeling of
3 fear or anger or motivation with respect to the Donald Lee Allen
4 murder?
5 A. Yes, that was another telling issue to me, that perhaps
6 who I was dealing with was a psychopath. Psychopaths have a
7 very difficult time feeling fear. As I indicated before, fear
8 and anxiety, which is the premise for remorse and guilt, and
9 often times a psychopath will be able to tell you that I feel
10 this or I feel that, but won't be ability to describe what those
11 feelings are because they don't have the basis to be able to
12 describe them.
13 When the defendant was talking about the Donnie Allen
14 murder scene, initially we asked him how he felt and he said
15 that he didn't know. And then later we asked him the same
16 question and he said that he felt an extreme amount of fear,
17 which is what I recall he indicated to the police officers
18 during his interviews. And then he later changed that to state
19 that he was feeling a great amount of anger and was afraid that
20 if he did not disable in some way Mr. Allen that Mr. Allen would
21 prevent him from getting to Virginia.
22 But if you take a look at his description of feeling
23 fear and the conditions in which that happened, what you have is
24 a man that is holding a shotgun that he knows that works with
25 shells in the shotgun holding another man, the other man
981
1 according to Mr. Barnette, Mr. Allen never was aggressive
2 towards him, the only behavior he showed was to plead not for
3 Mr. Barnette not to hurt him. So you have this situation where
4 Mr. Allen is taken to the side of the road and eventually shot.
5 You have to -- I had to walk away from that and say, what about
6 this particular context would make Mr. Barnette fearful?
7 And I suppose the only explanation I came up with was
8 fear of being caught, but obviously that was not a great fear or
9 the behavior wouldn't have been engaged in to begin with. So
10 it's mixing up those feelings and not knowing how one,
11 particularly in the feelings of fear, not being able to
12 experience fear like the rest of us experience fear.
13 Q. Now, did you review any testing or analysis dealing with
14 the issue of compassion?
15 A. Yes, sir, although I -- it was interesting to me, I
16 didn't put a great deal of evidence or weight on it, but it was
17 interesting to me in reviewing his previous test results, the
18 test results I believe from Butner was on the IQ test; one of
19 the IQ tests is vocabulary knowledge, knowledge of words, and
20 one of the words was for the defendant to define compassion. On
21 that particular definition, the defendant scored a 0, he didn't
22 have a correct answer for compassion. And in reviewing that
23 later it kind of in my mind lended support to one's ability to
24 really understand what feelings are.
25 Q. Dr. Duncan, your assessment of the defendant as a
982
1 psychopath, is that the only thing that you relied upon in
2 coming to your conclusions in this case?
3 A. No, sir, the opinion -- my opinion of his being a
4 psychopath was important, I gleaned that not only from the PCL-R
5 but from the interviews and from the extensive information that
6 we had got from other sources and the over 3000 pages that we
7 reviewed, but it was one of three ways to take a look at the
8 defendant's ability to or possibility of being violent in the
9 future. And it was one of three ways that we look at the issue.
10 Q. Do you have an opinion as to whether the defendant is a
11 significant risk of future violence?
12 MR. WILLIAMS: Objection, he's not been declared an
13 expert in the area of risk assessment.
14 MR. CONRAD: Your Honor, you don't --
15 THE COURT: Overruled, he is a psychiatrist.
16 THE WITNESS: Yes, I do.
17 BY MR. CONRAD:
18 Q. What is that opinion?
19 A. Let me first preface that --
20 MR. LAUGHRUN: Objection, Judge, he asked for his
21 opinion.
22 THE COURT: All right, let him explain it, overruled.
23 Go ahead, sir.
24 THE WITNESS: Let me first preface it by saying that
25 mental health professionals cannot tell for sure 100 percent
983
1 certainly whether anyone will ever be violent in the future.
2 There are different ways of establishing whether someone might
3 be at a higher risk for being violent in the future.
4 We looked at three different ways to establish whether
5 or not the defendant, Mr. Barnette might be at increased risk
6 for being violent in the future. One was the use of the
7 Psychopathy Checklist Revised. The second way was to look at
8 the particular items that had been borne out in the research
9 which would suggest their ability the predict future
10 dangerousness. And those items were from Dr. John Monahan, who
11 is considered one of experts in the field. And the third way
12 was to take a look at what we call an actuarial approach where
13 we take a look at a number of characteristics of the individual
14 and we try to find a group of people that are very similar. And
15 I took a look at that as well.
16 Q. Okay. And you have already testified about the PCL-R,
17 what about the research items contained in the Monahan report,
18 what did they tell you?
19 A. There are 11 items that Dr. John Monahan has identified
20 as being items to look at in predicting whether someone will be
21 a future danger. The first item is their prior arrests for
22 violent crimes. And this is probably the most predictive.
23 Now, he is talking about arrests, he is not talking
24 about convictions. A common saying in the field is, the best
25 way to predict someone's future behavior is to look at their
984
1 past behavior. And Mr. Barnette had, in my opinion, an
2 extensive history of arrests for violent actions. And what we
3 found out during the interviews, that a lot of his violent
4 action had actually gone unreported. Item number two is the
5 individual's current age. The research demonstrates that there
6 is a strong relationship between being younger and acting in a
7 violent way. At 24 years of age, the defendant is still
8 considered fairly young with regard to the research.
9 The third area was age at first serious offense. And as
10 you might suspect, the earlier an individual engages in criminal
11 and violent behavior, the more likely they are to engage in that
12 in the future.
13 In the review of our records, the age at which we were
14 able to find the first violent offense was at the age of 18.
15 The fourth area was area of sex. The research suggests that
16 males are much more likely to be violent than females. The next
17 was race. The research suggests that African Americans are at a
18 higher risk than other races to engage in violent behavior. The
19 next one, the sixth area was social economic status and
20 employment stability.
21 The -- an individual that comes from higher -- from a
22 higher SES or social economic status and has more stable
23 employment history is less likely to engage in violent behavior
24 in the future. The best that we could address about the
25 defendant at the time of the crimes that he was in the lower
985
1 social economic statuses, and that was particularly true from
2 the defendant's self report after his father and mother
3 divorced.
4 And he did report to us in a six year period from the
5 age of 17 to the age of 23 he had had 14 different jobs. The
6 next area was opiate and alcohol abuse. Abusers of alcohol and
7 drugs are at a higher risk for being violent in the future. The
8 defendant had described periodic alcohol abuse. The next area
9 is family environment, if someone comes from a stable supportive
10 family, that's associated with having a lower risk.
11 We were not able to interview the defendant's mother or
12 father, and so we were not able to get that kind of collateral
13 information, but based on the defendant's self report, on one
14 hand he described his mother as being very loving and very
15 caring and being very financially supportive of the family, and
16 on the other hand he described her as a dysfunctional alcoholic
17 who would drink to the point of stumbling.
18 So I think it was fair for us to be able to say based on
19 the defendant's description that his family support was less
20 than optimal. The next area was peer environment, we were not
21 able to glean much if any information about Mr. Barnette's
22 peers. What the research suggests, if you hang out with bad
23 people, you have a greater likelihood of engaging in violent
24 behavior in the future.
25 Availability to victims, the defendant's typical -- on
986
1 the surface his typical victims were the females that he had
2 relationships with. But when we looked at that closer we also
3 saw that he was willing to engage in violent acts towards other
4 individuals. There is a gentleman that he had shot in Georgia,
5 there were the two children that he whipped with a coat hanger,
6 other acts of violence. And then of course, the Donald Lee
7 Allen murder.
8 So we found that the victims that he engaged in, there
9 were a number of different kinds of victims, but to the extent
10 that his victim pool is available to him, he would have a
11 greater likelihood of being violent.
12 And then the last one was availability of alcohol and
13 weapons, and as someone is incarcerated, we would like to think
14 that they have less opportunity to have alcohol and weapons
15 available to them. And I believe that that is perhaps true. On
16 the other hand having worked in a federal prison for the last
17 eight and a half years, I also know that they make alcohol and
18 they make weapons so, to the extent that Mr. Barnette would have
19 available to him alcohol and weapons, that would increase or
20 decrease his likelihood of being a future danger.
21 Q. With respect to your actuarial approach, have you
22 reviewed the research concerning violence in federal prisons?
23 A. Yes, sir, I have reviewed the research and also did some
24 research of my own.
25 Q. Would you relate to jury the research you did.
987
1 A. As I said before, the actuarial approach I go out and
2 find a group of people that is similar to your person in a
3 variety of different ways, not just one or two but in a variety
4 of different ways. And so my line of thinking was that at
5 minimum, I knew from talking with the prosecutor that the -- if
6 the defendant was convicted, he would be facing life in prison.
7 So I took a look at -- and if that were the case, then I
8 also knew that he would end up in the general population at one
9 of our six federal penitentiaries. So I took a look at the
10 violence rate at our federal penitentiaries for the 25 months,
11 or six of the federal penitentiaries in the last six months.
12 And what I found is for every 5000 inmates you have on average
13 1776 violent acts for every 5000 inmates each year. Again that
14 was over the last two years. And then I tried to compare that
15 against what the violence rate was within the general
16 community.
17 And the comparison rate that I was able to glean was
18 statistics from 1992, which showed that on average, in 1992, for
19 every 5000 individuals, there was 250 violent crimes. I think
20 it would be fair to say that that even though that that's not
21 present day, it's fairly applicable, since crime has supposed to
22 have reduced in the last several years. So if you take a look
23 at the 250 violent acts with the general population and compare
24 that to 1776 violent acts in our six federal penitentiaries
25 where the defendant might go, what you find is there is over
988
1 seven a times greater likelihood of that group being violent.
2 So based on actuarial statistics, I think I could say with all
3 three comparisons that we used, I think I could say with a
4 reasonable degree of medical or psychological certainty that I
5 feel that the defendant is at a much greater risk of being
6 violent in the future.
7 Q. Now, do you know of any research using the PCL-R which
8 predicts future dangerousness?
9 A. Yes, sir. I think I indicated before that people who
10 score 30 or above on the PCL-R are identified as psychopaths and
11 have twice as likely of a chance to commit criminal acts than
12 criminals who score less than 30 on the PCL-R, nonpsychopaths.
13 They are also three times -- or criminal psychopaths, scores of
14 30 or above, are three times as likely as noncriminal
15 psychopaths to engage in violent criminal behavior in the
16 future.
17 Q. Now, in doing this research, did you speak with Robert
18 Hare, the originator of the PCL-R?
19 A. Yes, sir.
20 Q. Did he indicate anything to you with respect to the
21 statistical validity of that instrument regardless of race?
22 A. Yes, sir, Dr. Hare has pointed --
23 MR. WILLIAMS: Objection to Dr. Hare.
24 MR. CONRAD: Your Honor, he is an expert reasonably
25 relied upon in the field.
989
1 THE COURT: All right, overruled.
2 THE WITNESS: Dr. Hare point out in his manual, which I
3 have reviewed, that at the time back in 1990, 1991, there was
4 not a great deal of research on the PCL-R and the African
5 American population. So he suggested in the manual that you be
6 cautious when you use it on the African American population.
7 In speaking with Dr. Hare recently, he told me of a
8 great deal of research that has been done in the last two years
9 that suggests that although African American individuals on
10 average will score two points higher than nonAfrican American
11 individuals, when you take a look at the PCL-R's ability to
12 predict whether they will be violent or not and use a cut off
13 score of 30, it predicts that just as well in African American
14 males as it does in nonAfrican American males. So although it
15 -- African American males do score slightly higher on the test,
16 it seems to be -- the test seems to be working clinically the
17 same whether you are African American or nonAfrican American.
18 Q. Are you familiar with Dr. Henry Richards?
19 A. Yes, sir.
20 Q. Who is Dr. Henry Richards?
21 A. Dr. Henry Richards a psychologist at the Patuxent
22 Institute which is a maximum security prison outside of
23 Baltimore, Maryland. I spoke with Dr. Richards because he has
24 ongoing research looking at the issue of African American versus
25 nonAfrican American on the PCL-R, and their population at
990
1 Patuxent is approximately 80 percent African American. And his
2 research, which will come out soon, they have actually done the
3 taping on the -- I think it's NBC's Dateline, suggest what I was
4 saying earlier, that although you do see a two point increase
5 with African American males you can still use a cut off score of
6 30 to be able to predict future dangerousness.
7 Q. In your opinion is the PCL-R a reliable instrument for
8 predicting future dangerousness?
9 A. In my opinion, it is a -- if you want to look at a
10 single instrument to predict future dangerousness, which I don't
11 necessarily advocate, that's why we looked at three different
12 areas, but if you wanted to look at a single instrument it's
13 heads and above any other instrument that we currently have in
14 predicting future dangerousness.
15 Q. Now, Dr. Duncan, I want to turn your attention briefly
16 to your interview of the defendant in the case and ask you
17 whether or not he talked with you about an incident involving
18 his arrest for the rape of Alesha Chambers, did he talk to you
19 about that?
20 A. Yes, sir.
21 Q. What if anything did he tell you about that incident?
22 A. To the best of my recollection he -- there were three
23 different incidents with Ms. Chambers. The issue of the rape, I
24 believe, was the third incident. He had told us that she had
25 gone to his house on a consensual visit, and that a rape
991
1 actually never occurred.
2 Q. So he indicated to you that sex occurred on that night
3 but it was consensual, not forced?
4 A. Yes, yes.
5 MR. CONRAD: Your Honor, that's all I have of this
6 witness at this time.
7 THE COURT: Cross.
8 CROSS-EXAMINATION
9 BY MR. WILLIAMS:
10 Q. Dr. Duncan?
11 A. Yes, sir.
12 Q. My name is Paul Williams, I appreciate it if you answer
13 some of my questions.
14 A. Yes, sir.
15 Q. Let me first try to make clear, are you suggesting to
16 this jury that Judge Potter asked you to perform these
17 interviews of Mr. Barnette?
18 A. What I am telling the jury is had Judge Potter not
19 signed -- Judge Potter or a federal judge not signed a court
20 order for us to conduct the evaluations, we would not have
21 conducted the evaluation.
22 Q. I understand. My question, sir, you are not suggesting
23 to this jury that Judge Potter himself appointed you and asked
24 you to do these examinations of Mr. Barnette, that's not
25 correct, is it?
992
1 A. Yes, sir. When I do an evaluation, I do it based on the
2 court order, and in that sense I am working for the federal
3 judge that's signs the Court order.
4 Q. I would appreciate if you'd answer my question, Dr.
5 Duncan. Isn't it true that the United States government's chose
6 you to do these examinations and not Judge Potter?
7 A. I don't -- the United States government approached me
8 and asked if we would be willing to engage in the evaluation.
9 What I told the United States attorney, I should say, was that
10 we would only do the evaluation upon a court order, that when we
11 do an evaluation we work for the Judge, we don't work for either
12 side. So technically, I guess that the United States Attorney's
13 Office approached us first, yes, sir, if that's what you are
14 asking.
15 Q. Well, you are not suggesting to this jury, are you, sir,
16 that you are working for Judge Potter?
17 A. Yes, sir, I am.
18 Q. Oh, you are.
19 MR. WILLIAMS: Well, may I approach, Your Honor.
20 THE COURT: Yes.
21 BY MR. WILLIAMS:
22 Q. Isn't it true that you are working for the United States
23 of America in trying to put this man in the gas chamber, isn't
24 that true?
25 MR. CONRAD: Objection.
993
1 THE COURT: Sustain that objection.
2 MR. CONRAD: I would ask that the court instruct --
3 THE COURT: Members of the jury, disregard that remark
4 from the defense attorney.
5 BY MR. WILLIAMS:
6 Q. I will show you an order signed by His Honor, Judge
7 Robert Potter, on December 3rd, 1997?
8 A. Yes, sir.
9 Q. It is denominated document number 199. On page 10 of
10 that document, subparagraph B, does it not say, if such
11 notice is given, the defendant shall be examined by a
12 psychiatrist or other mental health professional selected by the
13 government?
14 A. Yes, sir, that's what you just read, it says that, yes.
15 Q. Were you in fact selected by the government?
16 A. I was asked if I would, as I said before, I was asked if
17 I would be willing to do the evaluation, and my response was I
18 would be willing to do it if I was working for the judge.
19 Q. And let me also show you an order signed by His Honor,
20 Judge Robert Potter, dated January 16, 1998, I believe Your
21 Honor its document number 277, which the first paragraph says
22 this matter is before the Court on the government's request that
23 their experts be allowed to complete their examination of the
24 defendant. Isn't that what it says?
25 A. Yes, sir, I did not draft that order, though.
994
1 Q. I understand. Is that what Judge Potter's order says?
2 A. Yes, sir.
3 Q. The next sentence says, the Court will grant the
4 government's request and order the defendant to submit to the
5 examination by Dr. Duncan and Dr. Grant, isn't that what Judge
6 Potter's order says?
7 A. Yes, sir.
8 Q. Have you, sir, had any conversations with His Honor,
9 Judge Potter, personally before you conducted any examinations?
10 A. No, sir, I have not.
11 Q. How many conversations have you had with the United
12 States Attorney's Office before you conducted any examinations
13 of my client -- our client?
14 A. There have been several, several discussions with the
15 Attorneys Office. As I indicated before, I talked with both the
16 U.S. Attorney's Office and yourself and Mr. Laughrun requesting
17 any and all information, so we typically have -- we typically
18 ask both sides for any information that we can get.
19 Q. Dr. Duncan, you are employed by the United States
20 government?
21 A. Yes, sir, I am.
22 Q. In a federal prison?
23 A. Yes, sir.
24 Q. So you are a federal employee?
25 A. Yes, sir.
995
1 Q. And your job in the past has always been or usually
2 been, correct me if I'm wrong, to evaluate inmates or people
3 charged with crimes for the purpose of competency or insanity?
4 A. Yes, sir, that would encompass probably 95 percent of
5 the referral requests that we get, yes, sir.
6 Q. And there has never been a request by you to examine
7 Mark Barnette for competency or insanity, was there?
8 A. No, sir, I believe that was done in Butner.
9 Q. And you know -- strike that.
10 You are board certified as a diplomate in forensic
11 psychology, I believe you said, and I believe you were asked the
12 question, what do you have to accomplish or do in order to
13 receive that position. Have you ever heard of the term within
14 your profession, vanity board?
15 A. Number one, if I can address, there is no board
16 certification, so that would not be accurate. And number two,
17 no, I'm not familiar with the concept of vanity board.
18 Q. Are you saying to this jury that you are board
19 certified?
20 A. No, sir, as I psychiatrist there is not such a thing as
21 board certification.
22 Q. Do you know anything about an oral examination for board
23 certification of forensic psychologists?
24 A. For board certification?
25 Q. Yes, sir.
996
1 A. No, sir.
2 Q. Do you know of an oral examination where there is a 40
3 percent failure rate for board certification?
4 A. Well, as I indicated before, there is not board
5 certification for psychologists, there's board certification for
6 psychiatrists, and that may be what you are talking about but
7 I'm a psychologist.
8 Q. And you don't know anything about a board certification
9 for a forensic psychologist?
10 A. No. There is a diplomate given in the area of forensic
11 psychology, but it's not board certification.
12 Q. All right. Have you ever taken any oral examination or
13 taken any exams of any kind to be determined to be a board
14 certified psychologist?
15 A. Well, the answer to that is no, because I'm suggesting
16 that there is not board certification for psychology.
17 Q. All right, sir.
18 MR. WILLIAMS: May I approach the witness, Your Honor.
19 THE COURT: Yes, sir.
20 BY MR. WILLIAMS:
21 Q. Just trying to understand from your vita sheet, Dr.
22 Duncan, -- so with regard to your professional affiliations that
23 you listed in your vita sheet, there is no oral examination or
24 testing procedures that you have to go through to get those, is
25 that correct?
997
1 A. Not for the diplomate. As a forensic examiner or a
2 diplomate in forensic medicine, I'm currently sitting on a
3 committee which is designing a diplomate in forensic psychology
4 underneath the board or the college of forensic examiners, and
5 we are in the preparation or in the process of developing an
6 exam for the diplomate in forensic psychology. But there is no
7 examination for the diplomate in forensic medicine or forensic
8 examiners.
9 Q. As a psychologist employed by the federal government,
10 and in the position where you normally do evaluations within the
11 prison system in your capacity as a federal employee, regarding
12 competency and insanity, do you not feel that there is some
13 ethical dilemma that you are in by coming into this courtroom
14 and testifying on behalf of the United States government with
15 regard to your opinions and personal diagnosis of a person who
16 is on trial facing the death penalty?
17 A. Well, I think that any time that you do, regardless of
18 who you are employer is, that any time you do an evaluation on
19 an issue as serious as issues surrounding the death penalty,
20 that you need to hold yourself at a higher level and make
21 certain about what you are saying. So I think any of us as
22 expert witnesses hold an ethical responsibility in that
23 capacity.
24 How that might be different as a government employee, in
25 my mind, where I get my paycheck is irrelevant in how I do an
998
1 evaluation. As I said before, the reason I like doing
2 evaluations at the federal penitentiary is I can work as a
3 neutral source. I'm not hired by the defense and I'm not hired
4 by the prosecution. And in my evaluations of defendants, and
5 this is what we tell the defendants when we evaluate them, we
6 are working for the judge and that keeps us in a neutral
7 capacity.
8 Q. So is it your testimony under oath to this jury that you
9 have done a neutral impartial fair evaluation in this case?
10 A. Yes, sir and that's my personal feeling, yes, sir.
11 Q. Let me ask you, sir, have you read the transcripts of
12 the testimony or any of the transcripts of the prior testimony
13 in this case?
14 A. No, sir, I believe the Judge's order was to sequester
15 information, so I have not.
16 Q. Let me ask you a question or tell me whether -- let me
17 ask you --
18 MR. WILLIAMS: May I approach, Your Honor.
19 THE COURT: Yes, sir.
20 BY MR. WILLIAMS:
21 Q. Whether or not you agree with a statement by a previous
22 witness in this case, page 715 of the transcript, Dr. Halleck,
23 Dr. Seymore Halleck, testified, and let me show it to you to
24 make sure that you agree with what the question and the answer
25 is, and I want to ask you if you agree with it.
999
1 Question on page 715 was, in your opinion was the
2 evaluation of the psychiatrist, Dr. Duncan, and you are Dr.
3 Duncan?
4 A. But I'm psychologist.
5 Q. A fair independent unbiased report, that's the question
6 and the objection was overruled, and I said you may answer, and
7 Dr. Seymore Halleck testified under oath, let me preface that by
8 saying there is generally some pieces in any report no matter
9 who you are working for, and it is hard particularly if you are
10 employed by one side or another to come up with a completely
11 objective report. I felt that their report was singularly
12 lacking in objectivity, much more so than the ordinary report
13 that I see no matter whose side one is on. In other words, I
14 felt that they were exaggerating certain things, that they were
15 argumentative at times and in many ways the report looked more
16 like a brief, like a legal statement against Mr. Barnette and
17 didn't carry the usual kind of neutrality you want to see in a
18 psychiatric report.
19 Now, my question to you, sir, is, do you agree with that
20 or do you disagree with that statement?
21 A. In general I disagree with that statement, there are
22 specific reasons why. Dr. Halleck is indicating that you have
23 to work for one side or the other. That is the, I guess in my
24 mind, the enviable position that I'm in. I don't work for
25 either side, I work for a neutral source, that being the Judge
1000
1 that signs the court order. I don't believe Dr. Halleck's
2 evaluation was done on a court order.
3 Whether or not our report looked like a legal brief, I
4 guess we are dealing in the area of forensic psychology, and my
5 job is to take the material, psychological material and apply it
6 to the legal system. So I don't take particular offense to that
7 statement. It is a legal proceeding, and I am operating under
8 legal statutes. That's how I do my evaluations. I don't
9 believe that it was biased, and I don't believe it was
10 one-sided, but perhaps it does look more like a legal brief.
11 I'm not sure I know exactly what a legal brief is, but it is in
12 my mind something that can be entered into the record and
13 therefore is a legal document.
14 Q. Well, I guess my question, Dr. Duncan, is directed
15 towards the fact that no matter which side you are on, or what
16 you are being asked to do, it's your job, is it not, to testify
17 about opinions to this jury and to be as neutral as you possibly
18 can in developing that opinion and not make personal statements
19 with regard to your opinions in that report, isn't that fair an
20 accurate to say?
21 A. I again, I -- you prefaced your question by saying that
22 regardless of what side you are on. Again I don't agree that I
23 am on any side. I do believe that even if you are hired by one
24 side or the other, if that is the case, it is your job -- it's
25 my job as a psychologist or anyone's job as a psychologist or
1001
1 psychiatrist to give an unbiased opinion, if we are asked to
2 give opinions, professional opinions. And I think one of your
3 questions was about giving personal opinions. Well, they are my
4 personal opinions in the report, but my personal professional
5 opinions.
6 Q. But isn't it proper standard procedure within the mental
7 health profession that when a psychologist or a psychiatrist
8 does an evaluation that that person or persons who is doing it
9 should remain totally neutral and not attempt to point out in
10 their reports things that are particularly, from a personal
11 standpoint, right or wrong. In other words, remarking about
12 factual statements, do you understand my question?
13 A. I'm not certain that I do.
14 Q. Let me give you a specific example.
15 MR. WILLIAMS: If I may approach the witness.
16 THE COURT: Yes.
17 BY MR. WILLIAMS:
18 Q. If you are trying to be a neutral evaluator, isn't it
19 appropriate and as part of your ethical standard --
20 THE COURT: Excuse, me what are you reading from.
21 MR. WILLIAMS: I'm approaching with his report, Your
22 Honor.
23 THE COURT: Okay, thank you.
24 MR. WILLIAMS: The Duncan, Grant report Your Honor.
25 BY MR. WILLIAMS:
1002
1 Q. Isn't it the ethical standard of your profession not to
2 make personal comments about whether someone is, that you are
3 evaluating is telling you the truth or not, but you are simply
4 reporting what he is saying and you are making a diagnosis based
5 on the history, isn't that what is proper?
6 A. Reporting what he is saying -- I'm not certain that I'm
7 following the question, I'm sorry.
8 Q. Let me show you page 23. You report under, for
9 instance, Natasha Heard's report of relevant psychological
10 history?
11 A. Yes.
12 Q. That's your caption?
13 A. Yes.
14 Q. When you say psychological history, you are reporting
15 what she is telling you, is that correct?
16 A. Reporting what she had discussed with Dr. Grant in an
17 interview that we felt was relevant for psychological issues,
18 yes, sir.
19 Q. And at the end of the first paragraph, you say in
20 reference to what Mr. Barnette told you he allegedly told
21 Natasha that his first paycheck had to go back to the company
22 where it would be held in accordance with company policy, and
23 then you make a comment, "that's a lie"?
24 A. Yes, I think it says that was a lie, that's what Keesha
25 Heard told us we are reporting.
1003
1 Q. That was a lie is that your statement or her statement?
2 A. Her statement.
3 Q. Her statement?
4 A. Yes, sir.
5 Q. Well, you don't have it in quotes, do you?
6 A. No, sir, but I don't have in quotes the preceding
7 comment he allegedly told Natasha -- I'm sorry -- he allegedly
8 told Natasha that his first paycheck had to go back to the
9 company where it would be held in accordance with company
10 policy. I don't believe any of that is in quotes.
11 Q. And you throughout your evaluation, in your report, you
12 are taking statements from Mr. Barnette, you make comments
13 either in parenthesis or otherwise throughout the evaluation and
14 with regard to those statements, whether or not you felt that
15 they were true or not true?
16 A. Yes, we quoted Mr. Barnette as we quoted other
17 individuals in the report. Based on -- at times we would take a
18 look at his quotes and compare that to what he had said to
19 either of the evaluators or police officers or things from the
20 record and determine then that it was either -- at one point it
21 was either a lie with us or not the truth with us or not the
22 truth back when.
23 Q. Are you telling -- is it your statement to this jury
24 that you did not think he was reliable in what he was telling
25 you?
1004
1 A. There were a number of incidents where the defendant
2 either contradicted himself or was contradictory when you
3 compare his statements with us with other sources of
4 information. So in that sense, I would not have considered him
5 an extremely reliable individual with the information that he
6 gave us.
7 Q. Did you talk with Mr. Sally Johnson about her Butner
8 report?
9 A. I had talked with Sally about sending the material down
10 to Atlanta, I didn't discuss the report with Dr. Johnson.
11 Q. Who is Dr. Sally Johnson?
12 A. Dr. Sally Johnson is a psychiatrist at the federal
13 correctional institute in Butner.
14 Q. And did you ask her if she, if Mr. Barnette was a
15 reliable historian to her?
16 A. No, sir. As I said I talked with Dr. Johnson prior to
17 getting any of the information in this case. The information
18 was sealed by court order. The only reason that I talked with
19 Dr. Johnson was to try to have Butner send the material to us
20 that had by court order been requested to be sent to us.
21 Q. Do you feel that Mark Barnette was a reliable historian?
22 A. I think there were some occasions where he was telling
23 the truth, and I think there were some occasions where it was
24 very clear that he was fabricating. It's -- when that is the
25 case, it's difficult to say unless you can go back and check
1005
1 every statement made, what was the truth and what wasn't.
2 Q. You are not an expert in risk assessment, are you?
3 A. Psychological risk assessment or dangerousness?
4 Q. Yes.
5 A. Yes, I believe I would perhaps qualify as an expert in
6 risk assessment, I'm very familiar with the research in that
7 area.
8 Q. Tell me what research you are familiar with?
9 A. Well --
10 Q. I know you referred to Monahan?
11 A. Yes, sir.
12 Q. In your testimony, you are familiar with Dr. Monahan?
13 A. Yes, sir, Dr. John Monahan who is a -- who is at the
14 University of Virginia, and he is one of the leading experts in
15 the area of dangerousness prediction.
16 Q. Risk assessment?
17 A. Yes, sir.
18 Q. And who else -- what other research are you familiar
19 with in that area?
20 A. In the area of risk assessment, you have a number of
21 individuals Dr. Carl Lacono who is chief of psychology at the
22 federal correctional institute in Bastrop, Texas, you have Dr.
23 Reed Maloy, you have Dr. Robert Hare, you have as I said before,
24 Dr. Henry Richards, you have Dr. McCannon at the Patuxent
25 Institute, Dr. Kluver, who is a Dutch psychologist, Dr. David
1006
1 Cook, who is a Scottish psychologist that does a lot of cultural
2 studies with psychopathy and risk assessment, use of the PCL-R.
3 You have Dr. John Newman at the University of Wisconsin, Madison
4 who is -- does a lot of research in risk assessment and the
5 PCL-R, Dr. Kosson. I have got citings if you want of over 160
6 different articles. I guess I could read you those.
7 Q. Did you research the various articles, did you read all
8 of the articles before you made any determination in this case?
9 A. Well, I think it would be impossible in any area of
10 psychology to read all of the articles. There are probably
11 hundreds and hundreds of articles out there. I don't know that
12 I have read every one.
13 Q. Well, can you tell me what articles you have read in
14 this case about risk assessment and what studies you have
15 reviewed in this case about risk assessment before you filed
16 your report on January 29th?
17 A. Well, that would include all of the information that I
18 have reviewed over the years in the area of risk assessment. I
19 can cite a number of different studies that is in Robert Hare's
20 book, Without Consciousness. Some of the other studies, key
21 reference article by Dr. Hare, Psychopathy and the PCL-R/PCL-SV,
22 Evaluating the Construct, Validity of Psychopathy in Black and
23 White Male Inmates, Three Preliminary Studies, Performance of --
24 that was done by Dr. Kossan, Smith and Newman out of the
25 University of Wisconsin. Another study, Performance of Criminal
1007
1 Psychopathy on Selected Neuropsychological Tests, done by
2 Drs. Hart, Forth and Hare out of the University of British
3 Columbia in Vancouver, a study done by -- entitled, Violence,
4 Criminals, Psychopaths and their Victims, done by
5 Drs. Williamson, Hare and Wong.
6 Q. Now, these are articles you read before you did your
7 report in this case or as part of your evaluation in this case,
8 you read those articles?
9 A. Well, these are articles that I have read in the past.
10 By -- are not the -- do not encompass all of the articles I have
11 read. Do you want me to go on?
12 Q. Have you read any -- I mean, reread or researched any
13 articles in this case other than the ones you may have read in
14 the past, yes or no?
15 A. Yes, sir.
16 Q. Have you read Dr. -- are you familiar with Dr. Mark
17 Cunningham?
18 A. Not until his involvement in this case, and I know of
19 him from his involvement in this case.
20 Q. Are you familiar with the base rate of violence in
21 capital sentencing?
22 A. Yes, sir, to some degree, I am.
23 Q. Have you researched that with regard to risk assessment?
24 A. I'm not sure I understand your question.
25 Q. Well, you mentioned Monahan, you told this jury you made
1008
1 a risk assessment here with regard to my client, our client, is
2 that correct?
3 A. Yes, sir.
4 Q. And you talked about Monahan. Do you know Morris and
5 Miller's study in 1985?
6 A. Not off of the top of my head, no, sir.
7 Q. You didn't review that one?
8 A. I may have. If you could present it to me, I could
9 probably tell you whether I've reviewed it or not.
10 Q. Did you review the Holl study in 1987?
11 A. Mr. Williams, I have reviewed a number of the studies,
12 and I don't know that it would be possible for me to say, yes,
13 I've reviewed that one, or no, I've -- if you produce those to
14 me, I could.
15 Q. I'm just asking you, sir, asking you, Dr. Duncan, if
16 before you came into this courtroom, after you interviewed our
17 client, Mr. Barnette, after you reviewed all of discovery in the
18 case and reviewed all of the records, I'm asking you, sir,
19 before you testified under oath about your opinion, did you read
20 or study these particular articles?
21 MR. CONRAD: Your Honor, I'd object, he's asked and
22 answered the question. He's asked the attorney to produce the
23 article so he could answer it.
24 MR. WILLIAMS: I'm asking him if he has read it.
25 THE COURT: Wait a minute, we have been over this
1009
1 before, I believe, and he said he has read a number of
2 articles. If you want to specify which ones by showing them to
3 him, show them to him and he can make up his mind whether he has
4 seen them or not. I'm sure there are hundreds of them.
5 BY MR. WILLIAMS:
6 Q. Are you familiar with the Serin and Amos study in 1995?
7 A. I have read, I mean, there are a lot more than one Serin
8 and Amos studies in 1995, particularly with Serin.
9 Q. With regard to base rates?
10 A. Mr. Williams, I have read so many articles in the last
11 couple of weeks, I don't know that I would be able to -- if you
12 could show it to me, I would be able to tell you yes or no. I'm
13 sorry.
14 Q. Did you talk with Dr. Mark Cunningham about this case?
15 A. Just -- I don't know that we discussed the case. We
16 talked just briefly about getting -- I asked Dr. Cunningham if
17 he had gotten or if he had conducted any psychological testing,
18 and if he had, could I look at the raw test data, which I had
19 done with the Butner evaluation and some other evaluations. And
20 I believe he referenced some research articles that -- during
21 that conversation.
22 Q. And did he -- has he provided you through the government
23 a number of articles on risk assessment?
24 A. Yes, sir, I believe -- well, there was overhead --
25 copies of overheads and a few articles, yes, sir.
1010
1 Q. And you reviewed those?
2 A. Yes, sir, I believe I have those, if you like.
3 Q. Have you reviewed the risk, or have you reviewed your
4 opinion of, I guess you said future dangerousness, is that what
5 you're talking about, in the context of Mr. Barnette being in a
6 federal prison as opposed to being out in the free society?
7 A. I believe I had addressed that earlier when I discussed
8 the comparison of the six penitentiary within the last 25
9 months, the violence rate at the six penitentiaries compared to
10 the violence rate in the community, if that's what you are
11 asking.
12 Q. Okay. Your report on Page 33, do you have your report
13 with you, Dr. Duncan?
14 A. Yes, sir.
15 Q. Would you please turn to Page 33?
16 A. Certainly, yes, sir.
17 Q. With regard to the borderline personality disorder, it
18 is true, is it not, that the DSM-4 manual which you have just
19 reached for, I believe, on Page 652?
20 A. Yes, sir, thank you.
21 Q. I'll give you a chance the turn to it.
22 A. Okay.
23 Q. At the bottom of the page under course, the first
24 sentence there is, there is considerable variability in the
25 course of borderline personality disorder, is that correct?
1011
1 A. Yes, sir, that is what that says.
2 Q. The next sentence says that the most common pattern is
3 one of chronic instability in early adulthood with episodes of
4 serious affective and impulsive discontrol and high levels of
5 use of health and mental health resources.
6 A. Yes, sir.
7 Q. And the next sentence says, the impairment from the
8 disorder and the risk of suicide are greatest in the young adult
9 years and gradually wane with advancing age.
10 A. Yes, sir.
11 Q. And then the final sentence under that paragraph says,
12 during their 30's and 40's, the majority of individuals with
13 this disorder attain greater stability in their relationships
14 and vocational functioning, is that correct?
15 A. Yes, sir, that what it says.
16 Q. Do you agree with that?
17 A. Yes, sir, for an individual with strictly borderline
18 personality disorder. That doesn't take into account other
19 traits such as the defendant has with narcissistic and
20 antisocial traits. I think that might skew those statements a
21 little bit.
22 Q. Now, the DSM-4 is not an exact science, is it?
23 A. No, sir, I'm not aware of any exact science.
24 Q. So really when psychologists and psychiatrists are using
25 the DSM-4, they are really giving as in this case their opinion
1012
1 to a jury of 12 people, simply their opinion based on their
2 experience, and there is no -- is that correct?
3 A. Yes, sir, I would agree with that, and I feel that
4 that's a point that I would like to make today, is this is my
5 opinion.
6 Q. Yes, sir. And there is no certainty that the opinion
7 that you give is correct?
8 A. That is absolutely true.
9 Q. And under your diagnosis and prognosis in this case, on
10 Page 33, you do not use the word "psychopath," do you?
11 A. Not on Page 33. As I indicated before, psychopath or
12 psychopathy is not a formal diagnosis in the DSM-4.
13 Q. I understand. It's not even a formal diagnosis in the
14 DSM-4, is that correct?
15 A. No, sir, it's a theoretical construct.
16 Q. And theoretical construct, what does that mean?
17 A. Well, the DSM-4 in its history, the previous editions
18 used to be more theoretical in nature when you were diagnosing
19 someone. But as it has been revised over the years, they have
20 tried to go to being able to diagnose someone based strictly on
21 behavioral things that you can see, did this happen, did that
22 happen, you know, and they have gotten away from theoretical
23 constructs such as psychopathy or theoretical underline of any
24 of the disorders. And that has been one major criticism of the
25 DSM-3, particularly as it applies to psychopathy and antisocial
1013
1 personality disorder.
2 Q. On Page 34 of your report, Dr. Duncan, you have a part
3 here that says, Mr. Barnette's borderline personality disorder
4 features include, and you list them. Is that your opinion that
5 you are giving?
6 A. Yes, sir, it is.
7 Q. And number 3 is, it's your opinion that one of those
8 features is recurrent suicidal behavior gestures or threats, is
9 that correct?
10 A. Yes, sir, the --
11 Q. Is that correct?
12 MR. CONRAD: Your Honor, the witness is trying to
13 explain. He said yes, sir.
14 MR. WILLIAMS: Well, he's -- yes or no.
15 THE COURT: Wait just a second. You can answer that yes
16 and then explain.
17 THE WITNESS: Yes, sir. I think what I testified to
18 earlier was that based on collateral information and a review of
19 his medical records, et cetera, we could not come up with any
20 collateral information to suggest that he had ever attempted
21 suicide. He had made statements that he had, but we didn't have
22 outside sources to prove that. So suicidal behavior wasn't
23 nearly as influential in putting that in as was his suicidal
24 threats, because not only did he say that he made threats, but
25 we got that from a variety of other different sources.
1014
1 BY MR. WILLIAMS:
2 Q. And then under your Mr. Barnette's antisocial
3 personality traits include, you have listed as number 3,
4 impulsivity or failure to plan ahead. That was your opinion?
5 A. Yes, sir. The defendant not only in our interview
6 showed impulsivity when he became very angry on the one
7 occasion, but he is going through the, the research has shown,
8 impulsive behavior. He has also shown other planned behavior,
9 but some of his behavior has been impulsive.
10 Q. But you say, and this is your opinion in this document,
11 is that correct?
12 A. Well, that is one -- the way you make antisocial
13 personality traits is if the individual has a history of
14 engaging in impulsive behavior, then that is one example. That
15 doesn't mean that they always engage in impulsive behavior, that
16 they just do that on occasion.
17 Q. I understand. But you are giving your opinion to this
18 jury based on your examination that one of his traits there is,
19 in fact, failure to plan ahead?
20 A. Yes, sir.
21 Q. Pardon, is that right?
22 A. That -- at times, he does show an inability or a lack of
23 ability to plan, make specific plans ahead.
24 Q. Now, this PCL-R test that you talked about to this jury,
25 you have reviewed Dr. Halleck's report, correct?
1015
1 A. Yes, sir.
2 Q. There is no reference in his report to a PCL-R test, is
3 there?
4 A. No, sir.
5 Q. You reviewed Dr. Sultan's report and you've reviewed her
6 testing and raw data, correct?
7 A. Yes, sir.
8 Q. There is no reference in there to a PCL-R test, is
9 there?
10 A. No, sir.
11 Q. You reviewed Dr. Cunningham's report and his raw data,
12 and there is no reference to a PCL-R test in there, is there?
13 A. No, I don't think Dr. Cunningham or Dr. Halleck
14 conducted any tests.
15 Q. And Dr. Sultan, same thing, I believe you said, no PCL-R
16 test?
17 A. No PCL-R. She did conduct some tests.
18 Q. And you've reviewed the Butner report by Dr. Sally
19 Johnson, and there was no reference to any PCL-R test in there
20 either, was there?
21 A. That is correct, yes, sir.
22 Q. So you are the only person who has come into this court
23 or provided this court with a report that even mentions PCL-R or
24 psychopathy, isn't that true?
25 MR. CONRAD: Objection as to what he knows who came into
1016
1 the court. He has been sequestered the whole time.
2 THE COURT: Sustained the way the question was phrased.
3 BY MR. WILLIAMS:
4 Q. Well, you reviewed all of these reports, and based upon
5 your reviewing all the reports and information, Dr. Duncan, you
6 know that you are the only person from a mental health
7 standpoint that has mentioned the PCL-R test or referred to the
8 word "psychopath"?
9 A. Yes, sir, based on what I have reviewed, yes, sir.
10 Q. And you know that in the opinion that you have rendered,
11 that when you list certain key indicators to be valuable in
12 predicting the increase and likelihood of a person to act in a
13 violent manner in the future that you list on Page 36 and you
14 went through prior arrests, race, and those various things,
15 those are all common factors that relate to risk assessment in a
16 free society or in a free community, not in the prison system,
17 isn't that correct?
18 A. Well, these are list factors that are produced primarily
19 by Dr. John Monahan's research, and they would be more
20 applicable to society in general. But they are not -- they are
21 not not used in the prison setting. There are a number of these
22 that go into factoring within our federal prison system into
23 factoring what is called a total security score, and a number of
24 these are reflected in there. Probably the one that shows about
25 30 to 40 percent, approximately 35 percent of the ability to
1017
1 predict is someone's age. We can, in the federal prison system,
2 we can predict just based on someone's age at a greater -- 35
3 percent greater likelihood of future violence.
4 Q. And when you talk about -- and you know from the tests
5 that with age, a person's future violence declines, you have
6 seen those tests, haven't you?
7 A. Yes, sir.
8 Q. And that's true, isn't it, with age, the person declines
9 with regard to violence?
10 A. That is true with people in general. However, the
11 research also points out that psychopaths tend to as they grow
12 older tend to have less of a risk of recidivating. However, the
13 research also suggests that violent psychopaths don't drop
14 nearly as quick and they have a higher rate of acting violently
15 than either nonviolent psychopaths or criminals in general, or
16 the general public.
17 Q. Tell the jury how many different prisons, prison type
18 security systems are available in the federal prison system with
19 regard to low risk, high risk, that kind of thing?
20 A. We have our minimum security camps, we have our low
21 security institutions, we have our medium security institutions,
22 we have our penitentiary or higher security, maximum security
23 institutions, we have administrative facilities such as
24 metropolitan correctional institutes that can hold all security
25 levels, we have psychiatric hospitals that typically are either
1018
1 low, medium or high or are administrative, and we have what is
2 called an administrative maximum security facility. The main
3 one is in Florence, Colorado, but they also have one in Marion,
4 Illinois.
5 Q. And is that sometimes referred to as a Super Max
6 facility?
7 A. I have heard it referred do as a Super Max. We refer to
8 it as the ADX.
9 Q. And that's one of the highest security prisons in the
10 country under the federal system?
11 A. Yes, sir.
12 Q. And is that where if somebody were in that place, they
13 would be locked away in their cell for like basically 23 hours a
14 day and only be able to come out once a day?
15 MR. CONRAD: Objection.
16 THE COURT: Sustained.
17 MR. WILLIAMS: If you know.
18 MR. CONRAD: Objection.
19 THE COURT: Overruled if he knows. Do you know that?
20 THE WITNESS: Yes, sir. Yes, they are locked in their
21 cells 23 hours a day.
22 BY MR. WILLIAMS:
23 Q. And only get to come out one hour a day?
24 A. Yes, sir.
25 Q. Let me ask you if you are familiar with the article, I
1019
1 think you mentioned --
2 MR. WILLIAMS: I'm almost through, Your Honor.
3 THE COURT: I was going to say that we need to take a
4 little recess.
5 MR. WILLIAMS: No, I'm almost through, Your Honor.
6 May I approach the witness?
7 THE COURT: Yes.
8 BY MR. WILLIAMS:
9 Q. Let me ask you if you are familiar with an article
10 written in 1996 by the American Psychological Association,
11 Clinical Psychology, Science and Practice, that I will show you
12 that is entitled, A Review and Meta-Analysis of the Psychopathy
13 Checklist and Psychopathy Checklist-Revised: Predictive
14 Validity of Dangerousness, are you familiar with that article?
15 A. Let me double check here, sir. (Witness reviews
16 document.) Yes, sir, I have the Journal -- its the Journal of
17 Clinical Psychology, it's not the American Psychological
18 Association.
19 Q. And that is an article that was written in 1996,
20 American Psychological Association?
21 A. No, sir, it was --
22 Q. Is that what's written at the bottom of page?
23 A. Yes, sir, that's what is written at the bottom of the
24 page. It was actually in the clinical psychology journal.
25 Q. Right, Clinical Psychology, Science and Practice?
1020
1 A. Yes, sir.
2 Q. Fall of 1996?
3 A. Yes, sir.
4 Q. And that was a study of the PCL-R, PCL and PCL-R
5 revised?
6 A. Yes, sir.
7 Q. And on Page 207, it says under the generalizability of
8 the PCL, are you with me?
9 A. Yes, sir.
10 Q. At present, the generalizibility of the PCL-R to
11 differing populations in clinical settings remains largely
12 untested. The efforts to evaluate the reliability and validity
13 of the PCL/PCL-R are almost exclusively limited to forensic
14 populations within the Canadian criminal justice system. This
15 population is primarily composed of white males, resulting in
16 limited information regarding its applicability to minority
17 populations, e.g., Asian Americans, African Americans, and
18 Hispanic Americans. Is that an accurate statement?
19 A. Yes, sir, it is.
20 Q. Down at the bottom of the page, it says, a sole study,
21 Kosson, Smith and Newman in 1990, addresses psychopathy in
22 African-American inmates. Kosson and his colleagues found that
23 there are substantial differences between African Americans and
24 Anglo-Americans in (a), the distribution of psychopathy scores,
25 (b) the relation of psychopathy to measures of impulsivity,
1021
1 (c) the congruence of the underlying factor structure of the PCL
2 across these ethnic groups. Regarding prior criminal behavior,
3 though, the authors found that both Anglo-American and
4 African-American samples manifest similar differences between
5 psychopaths and nonpsychopaths. Despite Kosson and colleagues
6 cautious optimism, we do not believe the existing validity data
7 justify the use of the PCL-R with minority groups. Is that what
8 that article says?
9 A. That's what this article says, yes, sir.
10 Q. And also, does it say in the same page, the
11 generalizability of the PCL requires formal investigations with
12 groups other than Anglo-American male inmates in the Canadian
13 criminal justice system, is that correct?
14 A. Yes, sir.
15 Q. And lastly it says, however, until more specific
16 information regarding these studies is available, clinicians are
17 cautioned against using the PCL with groups other than those
18 that have been investigated formally and more thoroughly, is
19 that correct?
20 A. Yes, sir, that's what this article --
21 Q. Is that what that 1996 article says?
22 A. Yes, sir.
23 Q. And the last sentence of this article says on Page,
24 whatever it is?
25 A. 212, I believe, 213.
1022
1 Q. We recommend that psychologists only employ the PCL with
2 caution when making risk assessments beyond Anglo-American
3 offenders. Is that what it says?
4 A. Yes, that's what this article says.
5 MR. WILLIAMS: Thank you very much.
6 THE COURT: Redirect?
7 MR. CONRAD: Yes, sir.
8 REBUTTAL REDIRECT EXAMINATION
9 BY MR. CONRAD:
10 Q. Have you used caution in applying the PCL-R in this
11 case?
12 A. Considerable caution. Since that particular study has
13 come out, there have been a number of additional studies. That
14 study was a very good study, because it prompted people to come
15 out and take a look at those concepts and problems. And that
16 was what I was referring to earlier with Dr. Richard --
17 Dr. Henry Richards's work at the Patuxent Institute that will be
18 presented on "Dateline" and in future journals to come, I talked
19 with him the other day.
20 Dr. Kluver, who is a Dutch psychologist. Just published
21 a book which addresses that issue, it's called Psychopathy -- I
22 don't know the, off the top of my head the actual title.
23 Dr. Hare has chapters in that book along with other leading
24 experts, and that addresses the issue of African-American
25 populations and use of that on the PCL-R.
1023
1 Q. And what is the conclusion with respect to the use in
2 that situation?
3 A. The conclusion of everything that I could find the most
4 update information that even is currently in press, including
5 John Monahan's work which will come out in Science Magazine
6 later this year, is that, yes, indeed, as I stated earlier, yes,
7 indeed, the PCL-R, on average, African-American males or African
8 Americans will score approximately two points higher on the
9 PCL-R. However, when you take a look at using it in a clinical
10 setting, it still scores -- it still is able to predict African
11 Americans just as well as it does non-African Americans with a
12 cutoff score of 30.
13 Q. If you took two points away from the defendant
14 Barnette's score, would he still be in the above 30 range?
15 A. Well, that's what I did, is if you allow two points from
16 the cutoff of 30, if you allow two points, that brings you up to
17 32 for the defendant being African American. If you -- the
18 PCL-R has what we call a three-point standard error of
19 measurement, and even if you go and -- even if you exercise
20 extreme caution and go three points above one standard error of
21 measurement, you still come up with a score of 35.
22 Now, a score of 35 on the PCL-R is at the 98th
23 percentile, so that is an extremely cautious score. When you
24 factor both of those things in there and then factor in the most
25 recent research since the 1996 article, you find that even a
1024
1 score of 35 still predicts very well whether someone, as a
2 single predictor, predicts very well whether someone will be
3 violent in the future.
4 But that's not the only method that we use, we used a
5 three-method approach; so I think I exercised a great deal of
6 caution before making the statement that I feel the defendant is
7 potentially future -- future is dangerous.
8 Q. Now, Mr. Williams asked you about the impulsivity
9 finding. Based upon your examination of the defendant and your
10 review of the collateral information, do you have an opinion as
11 to his ability to have planned the crimes that he committed in
12 this case?
13 A. Yes, sir.
14 Q. And what is that opinion?
15 A. In review of everything, in review of his diagnosis, in
16 review of -- and in view of the issue of being a psychopath, in
17 review of everything, he has in my professional opinion
18 demonstrated the -- has the definite ability to plan and --
19 Q. Now, you were asked about the threat of suicide as one
20 of the factors you used in making your diagnosis. Can I turn
21 your attention to Page 16 of your report?
22 A. Yes, sir.
23 Q. And ask you whether or not the defendant reported taking
24 pills on one occasion in Roanoke but did not believe it was a
25 serious suicide attempt, he prefaced his statement by stating
1025
1 that he had, quote, the whole suicide ploy, dot dot dot, end of
2 quote, would you tell the jury about that conversation?
3 A. Yes, sir. We had asked the defendant about his history
4 of being suicidal and the different occasions, and he was
5 relating different occasions where he talked about ingesting
6 pills. And he had on one of those occasions as you had pointed
7 out in the report, he referred to his behavior of being suicidal
8 as, quote, the whole -- using the whole suicide ploy.
9 Q. Now, did you ask him a series of questions related to
10 whether or not he had ever returned to Virginia between the time
11 of the fire bombing and the time of the murders?
12 A. Yes, sir, I did.
13 Q. And tell the jury about that.
14 A. Well, I initially did not get a direct answer from the
15 defendant.
16 MR. LAUGHRUN: Objection to the conclusion.
17 MR. CONRAD: That's not a conclusion.
18 THE COURT: Overruled, go ahead. He is characterizing
19 an answer that he is giving, go ahead, overruled.
20 THE WITNESS: He stated that he wanted to go visit
21 Ms. Williams in the hospital, and I'm paraphrasing, he said that
22 he wouldn't know what to say to her, he wanted to say he was
23 sorry but really wouldn't know what to say. And I had to ask
24 him -- I believe Dr. Grant had asked him that question initially
25 and I had to ask him several times afterwards, did you go up to
1026
1 Virginia after the fire bombing, and he told me that, no,
2 indeed. After a couple of times, he finally said, no, I didn't.
3 MR. CONRAD: That's all I have.
4 THE COURT: Thank you, sir, been a long day. Thank you,
5 sir, you may step down.
6 Members of the jury, if you'll excuse us for a few
7 minutes, we've got to figure out a schedule and we'll call you
8 back. That's the reason we have held you here instead of
9 sending you to lunch, so you might be able to take off. Do not
10 discuss the case among yourselves while you are out.
11 (The jury left the courtroom.)
12 THE COURT: Anything more from the government?
13 MR. CONRAD: Your Honor, I think there is an exhibit
14 that we have not yet -- well, no, nothing more from the
15 government.
16 THE COURT: Defense?
17 MR. LAUGHRUN: Yes, we have a surrebuttal witness.
18 THE COURT: This is Dr. Cunningham?
19 MR. LAUGHRUN: Yes, sir.
20 THE COURT: All right, I'll hear from the government on
21 that.
22 MR. CONRAD: Your Honor, I would object to the
23 surrebuttal of Dr. Cunningham. He testified here yesterday.
24 These attorneys asked their experts questions about their
25 evaluation of Dr. Duncan and Grant's report, and again today,
1027
1 the expert Halleck's opinions of those reports were quoted.
2 They have had Dr. Duncan and Grant's reports. They had
3 Dr. Cunningham up on the stand --
4 THE COURT: When did they get the report?
5 MR. CONRAD: I think it was filed -- let me see.
6 MR. LAUGHRUN: January 3rd.
7 MR. CONRAD: His report was filed January 29th.
8 MR. LAUGHRUN: We got it the 30th, Your Honor.
9 MR. CONRAD: They asked some of their experts to
10 critique Dr. Duncan and Grant's report and Dr. Halleck did, and
11 again, it was used today. They strategically chose not to ask
12 Dr. Cunningham that. They had him on the witness stand, subject
13 to cross-examination. They want a second bite at the apple,
14 Judge. They could have done that yesterday. They made a
15 strategic choice not to and to file a motion in limine to get
16 the Court to rule that was inadmissible. They could have filed
17 that motion in limine January 30th, Judge. They chose this
18 morning after Dr. Cunningham got off the stand. They chose this
19 morning to file that motion, hoping you would rule in their
20 favor. You ruled against them, and the evidence came in and
21 it's not an excuse for not asking Dr. Cunningham yesterday those
22 questions. And it was a strategic choice they made, and I would
23 contend to Your Honor that this jury has been presented with
24 evidence from defense and the government, and it's time to argue
25 this case and have a decision.
1028
1 THE COURT: All right.
2 MR. LAUGHRUN: Judge, rebuttal is just what it says, you
3 rebut what the other side puts up. What if we had asked
4 Dr. Cunningham, tell us about this PCL-R, and the government
5 doesn't offer it? It's not rebuttal. They could object, number
6 one, but the report is not in evidence. It's not Your Honor's
7 report, it's the government's report. Regardless of what
8 Dr. Duncan said, it's the government's report.
9 Now, we have a right to rebut their rebuttal evidence.
10 We could put up witnesses to say, he didn't get fired from
11 Camelot Music, he quit voluntarily, if we wanted to. We are not
12 doing that. We have got one witness who's going to talk about
13 the PCL-R and the PCL-R only, about how it's questionable in the
14 science. There will be a brief witness, it's not going to be
15 long, we're not going through a slide show, none of that. He is
16 going to talk about the PCL-R and how invalid. And it's not a
17 questionable -- it's a questionable instrument in the field of
18 psychology. Judge, this jury is being left with the impression
19 that that's the Bible, that psychopathy checklist is the Bible
20 when it's not. It's in controversy, and they need to hear that.
21 MR. CONRAD: Judge?
22 THE COURT: I don't think so, Mr. Laughrun. Go ahead.
23 MR. CONRAD: He was crossed on that. They crossed him
24 thoroughly on that.
25 THE COURT: I was going to say, Mr. Williams thoroughly
1029
1 cross-examined him, this witness, on the American Psychological
2 Association article, Science and Practice, Volume 3 I guess it
3 is, Number 3, Fall of 1996, article by Randall T. Salekin,
4 S-A-L-E-K-I-N, Richard Rogers and Kenneth W. Sewell,
5 S-E-W-E-L-L, University of North Texas. I think it was pretty
6 well pointed out in pages in this article, Pages 207, 208, there
7 was some question about the use of it. Let's see 207, 208,
8 213. Finally getting down to Page 213, it wound up, although
9 these results are encouraging, until specific information
10 regarding these findings is provided and additional reverse is
11 conducted, we recommend that psychologists only employ the PCL
12 with caution when making risk assessments beyond Anglo-American
13 offenders. Page 207 and 208 very clearly points out, which was
14 read by Mr. Williams on the cross-examination of Dr. Duncan, a
15 sole study, Page 207, a sole study, Kosson, Smith and Newman,
16 1990, addresses psychopathy in African-American inmates. Kosson
17 and his colleagues found that there are substantial differences
18 between African Americans and Anglo-Americans in (a) the
19 distribution of psychopathy scores, (b) the relation of
20 psychopathy to measures of impulsiveness -- impulsivity, and
21 (c) the congruence of the underlying factor structure of the PCL
22 across these ethnic groups. Regarding prior criminal behavior,
23 though, the authors found that the Anglo-American and
24 African-American samples manifest similar differences between
25 psychopaths and nonpsychopaths. Despite Kosson and colleagues
1030
1 cautious optimism, we do not believe the existing validity data
2 justifies the use of the PCL-R with minority groups.
3 Like data available on the usefulness of the PCL-R with
4 adolescent offenders, and so forth. All of that was put into
5 evidence before the jury by Mr. Williams, and I just don't see
6 that anything additional needs to be said about it at this time.
7 Motion will be denied.
8 MR. LAUGHRUN: Judge, we would like to offer that as an
9 exhibit in rebuttal.
10 THE COURT: All right, sir, go ahead -- what is that?
11 MR. LAUGHRUN: This article that you just read, we would
12 like to offer that as an exhibit in rebuttal.
13 THE COURT: You want to put this into evidence?
14 MR. CONRAD: No objection.
15 THE COURT: No objection, put it in.
16 MR. LAUGHRUN: I have got it marked, Number 60.
17 THE COURT: All right, put it in.
18 MR. LAUGHRUN: We would also like to proffer, Judge,
19 maybe not now because the jury is here, maybe after lunch, what
20 Dr. Cunningham would say in rebuttal for the record.
21 THE COURT: For the record.
22 MR. LAUGHRUN: Right, not in front of the jury because
23 you've already overruled our objection.
24 THE COURT: We are not going to wait until after lunch,
25 we're going to do it as soon as I send that jury home right now.
1031
1 MR. LAUGHRUN: That's fine, that's fine. I'm not trying
2 to not keep them, is what I'm trying to do, not hold them up,
3 Judge.
4 THE COURT: You want to put that in evidence when they
5 come back in, is that correct?
6 MR. LAUGHRUN: We can do it --
7 THE COURT: This article, you have to put it in before
8 the jury.
9 MR. LAUGHRUN: That's fine, we can do it before the jury
10 comes in, that's fine.
11 THE COURT: Pardon?
12 MR. LAUGHRUN: I don't want the jury to sit there and
13 read it all.
14 THE COURT: No, I'm not going to do that.
15 MR. LAUGHRUN: We can tender it to Sammy. I want to
16 make sure -- we have got some markings. I want to get a clean
17 copy, Judge.
18 THE COURT: Well, I have got a -- I don't think I marked
19 it up, I just took notes on it. I have got a clean copy right
20 here. Put a sticker on it and we will give it to her,
21 Mr. Laughrun.
22 MR. LAUGHRUN: Judge, I just flipped through mine, it's
23 a clean copy. We have also got an Exhibit Number 61 and 62 that
24 we offer.
25 THE COURT: Pictures or something?
1032
1 MR. LAUGHRUN: That Brian Ard identified. Judge, this
2 exhibit, the psychopathy article will be 64. I apologize, I got
3 the wrong number.
4 THE COURT: What number is that article going to be?
5 MR. LAUGHRUN: 64, Judge Potter.
6 THE COURT: 64?
7 MR. LAUGHRUN: Yes, sir. I would like to offer those to
8 the Clerk if I may, Judge.
9 THE COURT: Okay. That's the article or the pictures?
10 MR. LAUGHRUN: Article and the pictures.
11 THE COURT: I thought you had that one marked up. I
12 have already given her a clean one she can use. You got a clean
13 one? Okay, just so it's clean.
14 All right, we're going to call the jury in -- no, wait a
15 minute, got to get the scheduling part of it. Defense attorneys
16 say they want to wait until Monday, government wants to go
17 ahead, I'm ready to go ahead, but I'll hear a little bit more
18 from both of you on that score.
19 MR. LAUGHRUN: Judge, it is now 1:30. By the time we
20 put up the proffer, it's going to be 2:00 roughly. We still
21 have a list of mitigating factors that we have cut and pasted in
22 the last couple of days. Mr. Williams was with Dr. Cunningham
23 until 9:30 last night going over anticipated testimony today.
24 We are just not ready to give you our proposed mitigating list
25 based on the schedule we got from you on Monday.
1033
1 Now, the government's wanted to argue today, basically.
2 The charge conference is going to take a while, it's lengthy.
3 We are not ready. We just got the government's amended
4 instructions Monday morning. I know Mr. Walker worked on them
5 all day Saturday.
6 THE COURT: Well, they took out the very part I was
7 really concerned about. They took out the part, I think, about
8 the aggravating factors -- whatever it was, they have taken that
9 out, I know that, but I don't know about the rest of it.
10 All right, sir, I understand what you are talking about.
11 Anything else?
12 MR. LAUGHRUN: I would ask if you will let us argue
13 first thing Monday morning, we'll be ready to go Monday morning,
14 because the problem is going to be if you let us argue tomorrow,
15 this jury is going to get the case sometime after lunch
16 probably, and in all likelihood, due to the complicated nature
17 of the verdict sheet, not because you're making it complicated,
18 it's just a complicated item, that they may be deliberating two
19 hours and go home.
20 THE COURT: Well, aren't they going to do the same thing
21 on Monday?
22 MR. LAUGHRUN: Well, they might. They could be here all
23 day Monday and have a verdict without being interrupted or
24 whatever.
25 THE COURT: Not interrupting tomorrow, are we?
1034
1 MR. LAUGHRUN: Well, but they are going to be here for a
2 couple hours. We are not going to be ready, Judge, to be candid
3 with you, get our mitigating factors --
4 THE COURT: All right, defense counsel is not ready is
5 what you are telling me.
6 MR. LAUGHRUN: Yes, sir, that's correct.
7 THE COURT: What does the government say?
8 MR. CONRAD: Your Honor, I mean, our first jury
9 instructions were submitted at the beginning of the sentencing
10 phase. The amended jury instructions are slightly different.
11 They have had full opportunity to look at that. Everybody knew
12 the charge conference was going to end when the evidence ended,
13 and everybody knew that the evidence was going to end today at
14 noon, now 1:30. So everybody has had plenty of time to prepare
15 for the charge conference. This is the second charge conference
16 in the case, we know how long it's going to take based upon what
17 happened before. There is no reason at all to waste a day and
18 to start on Monday.
19 THE COURT: My big concern is that we only have 12
20 jurors and we also have an opportunity to lose one over the
21 weekend. Let me ask you this, if we do this, would you agree to
22 11 jurors in case something happens?
23 MR. LAUGHRUN: No, sir.
24 THE COURT: All right, sir.
25 MR. LAUGHRUN: But, Judge, I'll say we relied on what --
1035
1 the case is moving faster than everybody thought. On Monday, we
2 set the tentative schedule. You said we'll have Friday -- and
3 this is tentative, I understand, and that's how we planned. We
4 figured, okay, we've got these mitigating factors we've got to
5 submit to you, we are going to put that on the back burner
6 because we've got to put on our evidence this week. And the
7 government knows how difficult it is to work and try to
8 coordinate witnesses, experts, people from out of town, out of
9 state, whatever, and try to inconvenience them as least as
10 possible. We tried to do that. We've got mitigating factors
11 that have cut and pasted all over Paul Williams' conference room
12 that we can't come to you right now this afternoon in 30 minutes
13 and say, well, John Doe said this is a mitigating factor, here
14 it is in the transcript. That's why we've been trying to do and
15 that's why we wanted daily transcripts because when we argue to
16 Your Honor a mitigating factor is there, we can say, on
17 February 2nd, this witness testified to that. And it puts us at
18 a real disadvantage and we relied on the schedule that we
19 tentatively -- the government didn't say early this week, well,
20 I object to that, let's argue Friday. Everybody was in
21 agreement, the case would get through sometime today, we have
22 tomorrow to do the charge conference and argue on Monday.
23 That's what we -- there was no objection from the government
24 then.
25 MR. CONRAD: Judge, what we agreed to, we had asked
1036
1 George Laughrun to bring Dr. Cunningham on Tuesday so Dr. Doctor
2 Cunningham could testify Tuesday, but they scheduled him to come
3 or to come in Monday so he could testify Tuesday afternoon,
4 scheduled him to come in Tuesday. We wasted time in putting him
5 on in the morning, we said instead of Tuesday we had days
6 between the guilt phase and trial phase, additional days to give
7 them time to prepare, and we shouldn't waste a day and make the
8 families come back. And we had an extra day because the
9 defendant wanted to start on Monday instead of tomorrow.
10 MR. LAUGHRUN: Judge, it's ironic at the sentencing
11 phase, we wanted to start at 9:30 Thursday morning. Mr. Conrad
12 asked Your Honor, we need until 2:00 o'clock, Judge. Those were
13 his exact words.
14 MR. CONRAD: Because we didn't get the information we
15 were entitled to before that.
16 MR. LAUGHRUN: Well, and I'll tell you this, Judge,
17 about Dr. Cunningham, we had him come in four hours early, he
18 had to change his ticket to come in because the government was
19 fussing they didn't have all his information, he flew in early
20 and brought it to them in person. So you are right, we have had
21 to coordinate, and Your Honor knows, you've sat at tables, you
22 know how it is to coordinate people, it's difficult to do. For
23 us to come in -- we are talking about the most important part of
24 this case. Guilt innocence phase was important, it's not the
25 critical issue of this case. Your Honor knows that from our
1037
1 pleadings and everything else. And to have us come in at the
2 last minute arguing for this man's life and have to cut and
3 paste mitigating factors together in 30 minutes, 45 minutes,
4 that's extremely unfair. This case is a week and a half ahead
5 of schedule.
6 THE COURT: All right, Mr. Laughrun, we're wasting
7 everybody's time. I'm going to go ahead and go along with you.
8 I've denied and I'll make sure you understand that, I've denied
9 the motion in limine, denied your letting Dr. Cunningham come
10 back again, and we will go ahead and wait until Monday.
11 Mr. Conrad, I just feel like -- I know we're bending
12 over backwards on this thing. They've had an opportunity, but
13 they also have some problems, I understand that. So we'll go
14 ahead and tell the jury to take tomorrow off and come back on
15 Monday.
16 I was disappointed that you wouldn't agree to the 11
17 jurors, though, because that's the one thing that's concerning
18 me most, Mr. Laughrun.
19 MR. LAUGHRUN: Judge, I respect your opinion. I've
20 appeared before Your Honor since 1982, I respect that. I
21 respectfully have to disagree with you.
22 THE COURT: All right, sir, call the jury.
23 (The jury returned to the courtroom.)
24 THE COURT: Members of the jury, you been very patient.
25 I know y'all are getting hungry, ready to get your lunch. We
1038
1 wanted to get through as much as we could so that we could let
2 you go ahead and go home today.
3 Now, we have some things to take up tomorrow, and like
4 we did before, we will let you have Friday off and come back on
5 Monday. Everybody agree to that all right?
6 (Jurors nod heads.)
7 THE COURT: Monday morning at 9:30, at which time we
8 will have the final arguments by the attorneys, the Court's
9 instructions and you will commence your deliberations, hopefully
10 sometime by 12:00 or 1:00 or 2:00 o'clock in the afternoon.
11 I'll tell you then and I'll tell you now, of course, that you
12 can take as long or short a time as you want in your
13 deliberations. Just be sure whenever you do deliberate that you
14 give thorough consideration to all of the evidence which is in
15 before you now.
16 Now, it's extremely important particularly, it's always
17 important, but it's extremely important now -- by the way, the
18 government hasn't rested yet.
19 MR. CONRAD: We rest.
20 THE COURT: Have you rested too?
21 MR. LAUGHRUN: Yes, sir, we do, Your Honor.
22 THE COURT: Something else, you have an exhibit you
23 wanted to put in evidence?
24 MR. LAUGHRUN: Yes, sir, Numbers 60, 61, 62, Judge, and
25 if we can pass that to the jury, it will just take them a second
1039
1 to peruse it before they leave.
2 THE COURT: One of those is that article that Dr. Duncan
3 was being cross-examined about this afternoon.
4 MR. LAUGHRUN: Judge, we can do that -- we don't have to
5 even pass it to them.
6 THE COURT: I'm not going to do it now, I'm just letting
7 them know what it was. You're talking about 60, 61 and 62.
8 THE CLERK: 60, 61 and 62.
9 MR. LAUGHRUN: We don't need to pass it now, we can show
10 it to them at some point.
11 THE COURT: We are not going to pass it today, I tell
12 you, they're ready to go home.
13 MR. LAUGHRUN: That's fine.
14 THE COURT: In any event, that was one of the exhibits
15 that Dr. Duncan was cross-examined on by Mr. Williams.
16 I think I was telling you, extremely important at this
17 time you do not discuss the case with anyone. Do not look at
18 any newspaper articles about it. Fortunately, there hasn't been
19 much, I don't think. I don't read the Charlotte paper, but I
20 don't think there's been any publicity, I haven't heard about
21 any. But do not read anything about it. Do not let anybody
22 tell you what they saw in the paper. Do not look at any TV. Do
23 not listen to anybody tell you what they learned about the case,
24 and do no discuss the case or any of the facts with anyone
25 else. Do you all understand that?
1040
1 (Jurors nod heads.)
2 THE COURT: See you back here Monday morning at 9:30 and
3 hopefully we will be able to present it to you by 2:00 o'clock
4 anyway Monday afternoon. Thank you so much for your patience,
5 have a nice weekend.
6 (The jury left the courtroom.)
7 THE COURT: All right, do we need to have a break before
8 we go into this proffer?
9 MR. LAUGHRUN: Judge, we're ready. Mr. Huseby is
10 probably exhausted. I'm not advocating for him, but he's been
11 going at it the whole time when we've been --
12 THE COURT: You want to take a short break?
13 MR. LAUGHRUN: We're ready, whatever the Court's
14 pleasure.
15 THE COURT: Do you want to take a short break before we
16 do that, Dr. Cunningham's evidence you're going to proffer?
17 MR. LAUGHRUN: That's all.
18 THE COURT: Well, I mean, do you want to take a short
19 break before that?
20 MR. LAUGHRUN: Whatever Your Honor --
21 THE COURT: How about the government?
22 MR. CONRAD: Let's go.
23 THE COURT: No from the government. Ready to go?
24 MR. CONRAD: I would like to go forward now if we
25 could.
1041
1 THE COURT: Okay. Are you ready?
2 THE COURT REPORTER: Yes, sir.
3 THE COURT: In that case, let's go ahead.
4 MR. LAUGHRUN: I'm looking for him.
5 THE COURT: He is not going to testify now. You said
6 that you were going to proffer this evidence.
7 MR. WILLIAMS: We are going to put him on and ask him
8 questions, Your Honor.
9 THE COURT: No, sir.
10 MR. WILLIAMS: So we can put it in the record.
11 MR. CONRAD: I thought we were going to proffer it.
12 THE COURT: I thought it was a proffer by you. You want
13 to do it now, fine. If you don't want to do it, we'll do it
14 tomorrow sometime.
15 MR. WILLIAMS: Okay, that's fine.
16 THE COURT: I'm not going to have going through the
17 whole testimony on this witness because it's not going to add
18 anything to this at all.
19 MR. LAUGHRUN: Judge, all we wanted to do was ask him
20 his professional opinion of the PCL-R, why he thought the
21 results were invalid, that's all. Were not going through the
22 whole testimony, no, sir, we have no intention of doing that.
23 MR. CONRAD: Your Honor, apparently Mr. Williams spent
24 until 9:30 last night with him as we heard a few minutes ago. I
25 don't know why he couldn't proffer it right now.
1042
1 THE COURT: Proffer the evidence and let's go, one way
2 or the other.
3 MR. WILLIAMS: Just to make the record clear, I'm not
4 arguing with the Court, I'm just trying to make myself clear,
5 Your Honor, is Your Honor refusing to allow us to recall
6 Dr. Cunningham to ask him questions on the record?
7 THE COURT: That's exactly correct. What I'm telling
8 you to do and what I understood you were going to do was to
9 proffer the evidence, the testimony that he is going to give.
10 MR. WILLIAMS: Dr. Cunningham will testify to the
11 invalidity of the PCL-R test with regard -- with regard to its
12 applicability to African Americans, that it's not been
13 sufficiently standardized with regard to African Americans, that
14 it's not been sufficiently standardized for the black population
15 based on recognized literature, and has not been sufficiently
16 standardized on an institutional population or sufficiently
17 standardized in a population post middle age.
18 He would also testify that it is an inappropriate test
19 to use for a person such as Mark Barnette, my client. He would
20 also testify that once he received, though, the report of
21 Drs. Grant and Duncan and learned of their reference to the
22 PCL-R test, he did his own scoring to see what he would come up
23 with using the same method that they used with regard to the
24 scoring, and he would testify that he came up with a score of
25 20. That would be his testimony, which would -- in his opinion,
1043
1 he would testify that Mr. Barnette was not a psychopath and did
2 not meet the standards of the underlying opinion of a
3 psychopath. And he would testify that he knows of no other
4 recent studies in those regards other than the study of a
5 Dr. -- the article by Drs. Salekin, Rogers and Sewell that has
6 been tendered into evidence as Defendant's Exhibit Number 63 and
7 is not familiar with any other articles or research since that
8 time. Anything else? 64, I'm sorry, I think it's 64.
9 THE COURT: Well, whatever it is.
10 MR. WILLIAMS: Whatever it is. Thank you, Your Honor.
11 THE COURT: You did a good job of it. You summarized
12 the whole thing in three minutes.
13 All right, we are going to recess until tomorrow morning
14 and we'll come back in here at, say, what time you want to
15 start, 9:00, 9:30?
16 MR. CONRAD: Whatever the Court prefers.
17 THE COURT: See what time they say. What time you want
18 to start in the morning, 9:00 or 9:30?
19 MR. WILLIAMS: We're at the Court's pleasure, Your
20 Honor.
21 THE COURT: Let's start at 9:00 o'clock and get through
22 with it, in the jury room.
23 MR. LAUGHRUN: Judge, also for the record, I've
24 discussed with Mark whether he wants to --
25 THE COURT: Oh, yes, I'm sorry, you're always able to
1044
1 put that on. What was the bench conference about?
2 MR. LAUGHRUN: My discussion with Mark, Judge, about the
3 fact whether or not he wanted to be here tomorrow. He says he
4 does not and will waive his presence for the charge conference
5 tomorrow.
6 THE COURT: Thank you, sir.
7 MR. LAUGHRUN: So we can do it in the jury room.
8 THE COURT: We also have had a couple of bench
9 conferences. You want to be sure to put those on the record, I
10 think.
11 MR. LAUGHRUN: Judge, I don't think we've had any since
12 the break.
13 THE LAW CLERK: You got them all on the record.
14 THE COURT: In any event, he waives any presence at the
15 bench conferences we've had, is that correct?
16 MR. LAUGHRUN: Yes, sir, and for tomorrow also, to be
17 clear.
18 THE COURT: All right, fine. We'll see y'all in the
19 morning at 9:00 o'clock.
20 (Court in recess.)
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