571
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
) CHARGE CONFERENCE
7 AQUILIA MARCIVICCI BARNETTE, )
)
8 Defendant. )
)
9
10
11 Transcript of proceedings before the Honorable
12 ROBERT D. POTTER, Senior United States District Court Judge,
13 before Scott A. Huseby, Official Court Reporter and Notary
14 Public, on the 26th day of January, 1998.
15 APPEARANCES:
16 For the United States:
17 ROBERT J. CONRAD, JR.
THOMAS G. WALKER
18 Assistant United States Attorneys
227 West Trade Street, Suite 1700
19 Charlotte, North Carolina 28204
20 On Behalf of the Defendant:
21 GEORGE V. LAUGHRUN, Esq.
Suite 602
22 301 South McDowell Street
Charlotte, North Carolina 28204
23
24
25
572
1 APPEARANCES: (Continued)
PAUL J. WILLIAMS, Esq.
2 Suite 801
301 South McDowell Street
3 Charlotte, North Carolina 28204
4
5 ---
6 (Charge conference, 2:00 p.m., January 26, 1998, in the
7 jury room.)
8 MR. LAUGHRUN: I guess there are a couple of things we
9 want to put on the record. We have talked to our client and
10 waived his presence. And also tomorrow in closing, there are
11 probably going to be some more additions similar to what Paul
12 made. You can ask the defendant if he wants it, he's aware of
13 that, and if there is any objection to that.
14 THE COURT: What kind of admissions?
15 MR. LAUGHRUN: To a certain extent, there is going to be
16 a lot of admissions consistent with Paul's opening that he gave,
17 and we not going to argue long. We're going to argue 15, 20
18 minutes, maybe, is all.
19 THE COURT: I want to know what kind of admissions you
20 are talking about.
21 MR. LAUGHRUN: We are not going to deny all of a
22 allegations in a bill of indictment.
23 THE COURT: Are you going to deny any of them?
24 MR. LAUGHRUN: Some of them, yes, sir. But like
25 consistent with Paul's opening, there is going to be some
573
1 admissions by us, and the defendant is aware of that, because I
2 know you asked him before Paul's opening, we asked --
3 THE COURT: All right. Okay, we got one here, just got
4 a few minutes ago, request for special instruction. What is
5 this about?
6 MR. LAUGHRUN: Judge, we made an argument to you Friday
7 afternoon about jurisdiction for Counts 1, 2 and 3 three. A
8 only evidence, Judge, and I brought a transcript that Mr. Huseby
9 was kind enough to provide us, about a only evidence where this
10 incident took place in Counts 1, 2 and 3 are from Steve Austin,
11 best friend who was called to testify. When asked what
12 happened, or where it happened, Page 152 of a January 21st
13 transcript, question by Mr. Conrad, I don't want you to tell me
14 what you guess he was doing, I want you to tell me what he told
15 you. Answer, All right, he said he got his brother's car and
16 drove to Virginia from Charlotte, and he said he stopped at a
17 gas station to get some gas, he had a bat, a baseball bat and
18 some gloves and filled the container up, he went with gas, I
19 guess he went to Virginia, got to the apartment, parked a car
20 around a corner, et cetera. There is nothing that happened in
21 the Western District of North Carolina in those counts, and we
22 would ask you to deny their motion.
23 THE COURT: He travelled from Charlotte, North Carolina.
24 MR. LAUGHRUN: Right, but a actual fire incident itself
25 is one of those substantive counts. And I think you have got to
574
1 have a jurisdictional finding there, and we would ask that that
2 be a factual determination made by the jury. You denied our
3 motion as a matter of all. Now what we are requesting is that
4 the jury make that factual determination, and if they do, they
5 do. And that's why we ask you to give a instruction as we have
6 prepared it.
7 THE COURT: What do you say, prosecution?
8 MR. CONRAD: Your Honor, a special verdict form, which
9 is a last page on a three-page submission, asked that the jury
10 make a specific finding that a Western District of North
11 Carolina has jurisdiction to try the defendant. That's a
12 finding that a Court makes, not the jury. And so I would
13 contend that a request that they are making is something that
14 the jury is not entitled to find. They made a venue challenge
15 prior to trial and you overruled it. They made a Rule 29 motion
16 on this basis and you overruled that. Those are matters of law
17 that were properly presented to the Court and denied. So I
18 would contend to Your Honor that these offenses are continuing
19 offense crimes and for the reasons cited in our briefs when a
20 venue motion was made.
21 There is venue to try these cases in any jurisdiction
22 where the offense began, continued or was completed, so that
23 those offenses could be tried in the Western District of North
24 Carolina or a Western District of Virginia. And the Court was
25 correct in its legal ruling on that point, and it shouldn't be
575
1 submitted to the jury as a question of fact.
2 THE COURT: Okay, I will deny your motion on that,
3 Mr. Laughrun. Let's move on to the instructions.
4 You gave me a set of instructions which is boilerplate.
5 MR. LAUGHRUN: Yes, sir.
6 THE COURT: There's nothing wrong with them. The
7 government has given me set of instructions which looks like are
8 more or less copied from what I've been doing for 17 years now
9 as far as boilerplate is concerned. Any objection to that?
10 MR. LAUGHRUN: No, sir. That's where most of ours came
11 from, too, Your Honor.
12 THE COURT: Let's go to a statutes which are alleged to
13 have been violated. I spent Saturday getting those ready, and
14 the government comes in here and gives me practically a same
15 thing I had before. We just need to make sure where we stand.
16 Is there any objection to the first count instructions,
17 2261(a)(1) and 2261(b), Page 23, Count 1 -- 2, I guess.
18 Anything wrong with 22, Page 22 of a instructions, interstate
19 domestic violation, 2261(a)(1).
20 MR. LAUGHRUN: No, sir, I don't think so.
21 THE COURT: The only thing I've added on Page 23 is that
22 the defendant committed such acts knowingly and willfully, just
23 to make sure we cover the law on that.
24 MR. LAUGHRUN: Judge, the only thing with regard to
25 Paragraph 1, a way I recall that statute reading, you had to be
576
1 intimate partners at the time a offense took place.
2 MR. CONRAD: Your Honor, on the next page, 2266(a), an
3 intimate partner includes a spouse, a former spouse, a person
4 who shares a child in common with the abuser, who cohabits or
5 has cohabited.
6 MR. WILLIAMS: Well, it says or has cohabited with the
7 abuser as a spouse, and I guess that's a issue. They weren't
8 married.
9 THE COURT: But they sure were cohabiting.
10 MR. WILLIAMS: They sure were, but they weren't married.
11 MR. CONRAD: 2266(a).
12 THE COURT: Oh, I asked him that. A spouse, a former
13 spouse who shares a child in common with the abuser, and a
14 person who cohabits or has cohabited with a abuser as a spouse.
15 That doesn't mean that they were married, but it means same
16 thing as a spouse.
17 MR. LAUGHRUN: But, Judge, it doesn't say who has
18 cohabited with the abuser as a cohabitant or as anything else.
19 It particularly references, as Paul said, as Mr. Williams said
20 to spouse, and I think that's a problem with that statute, that
21 it doesn't cover what you once were. If that's the case, five
22 years down the road if something like that happened, you would
23 still fall under a, quote, intimate partner definition of 2266.
24 MR. CONRAD: I believe that's right.
25 MR. LAUGHRUN: I'm not sure that was a Congressional
577
1 intent, because there has got to be some limitation on it.
2 THE COURT: What is the limitation?
3 MR. LAUGHRUN: I think you have to fall within a purview
4 of what it says. If not a spouse or a former spouse or you
5 don't have a child in common, a person who cohabits. All a
6 evidence is, Your Honor, 30 days plus before this happened, and
7 the government even offered a rental truck records, that he
8 loaded up and moved back to Charlotte.
9 MR. CONRAD: 20 days before.
10 MR. LAUGHRUN: 20 days before.
11 THE COURT: Or has cohabited with the abuser.
12 MR. WILLIAMS: I think the key language, Judge, is, as a
13 spouse, and the issue is whether or not there is sufficient
14 evidence that they were spouses or as a spouse.
15 THE COURT: By spouse, you mean contractually married,
16 is that what you're talking about?
17 MR. WILLIAMS: Well, a legal definition of a spouse
18 is --
19 THE COURT: Common law spouse, that's not a contractual
20 marriage.
21 MR. LAUGHRUN: Well --
22 THE COURT: Isn't that recognized in Virginia?
23 MR. CONRAD: No.
24 MR. LAUGHRUN: If it is, there is no evidence of it.
25 MR. WILLIAMS: It's not recognized in North Carolina.
578
1 MR. LAUGHRUN: Right, and there is no evidence of it if
2 it is.
3 THE COURT: What do y'all say about that?
4 MR. CONRAD: I think, Judge, the statute, because it
5 talks about a spouse in the first clause and then talks about a
6 person who cohabits or has cohabited with a abuser as a spouse,
7 intends to bring within a purview of a statute people who are
8 formerly included as a spouse or someone who has cohabited in
9 that fashion. That's the whole purpose of the statute.
10 THE COURT: If in the fashion is the way I interpret a
11 thing.
12 MR. LAUGHRUN: Judge, there is a definition, the index
13 says spouse, see husband and wife. That's what a definition in
14 the rules say.
15 THE COURT: That's what I said. Has cohabited as
16 husband and wife.
17 MR. LAUGHRUN: Right. And I think you are right, it is
18 restrictive.
19 MR. CONRAD: The only issue in the element is whether at
20 the present tense situation or present and past tense, and I
21 think that statutory definition shows that Congress intended
22 both present and past tense. Otherwise, they wouldn't have used
23 the language --
24 THE COURT: Or has cohabited.
25 MR. CONRAD: If Congress intended it to be solely a
579
1 present tense, they would have left out a phrase, or has
2 cohabited.
3 THE COURT: That's a way I interpreted it from a very
4 beginning, Mr. Laughrun, when this thing came up. That's the
5 way I highlighted it and that's the way I've looked at it.
6 MR. LAUGHRUN: Judge, in looking at other statutes that
7 deal with spouses, there is a provision that talks about
8 influence, peddling, a federal official, whatever, it talks
9 about immediate family member means spouse, parent, brother or
10 sister, child or person who he stands in loco parentis with, or
11 any other person living in his household related to him by
12 marriage, which means that technically, I guess, if Mr. Walker
13 or Mr. Conrad or Your Honor or anybody were cohabiting, you
14 could not be guilty of that provision, okay. If you go back and
15 look at a way they defined spouse here, it says, as a spouse.
16 And clearly like Paul said, I think it's restrictive to present,
17 and that's why we made a motion, Judge, pretrial about that
18 particular statute and again on Friday at the Rule 29 stage,
19 because spouse isn't defined, I don't believe, or husband and
20 wife isn't defined. If it is, I haven't found it. And it's a
21 strict instruction, and as Your Honor knows, strictly construed
22 against a United States.
23 MR. WILLIAMS: I guess a issue also, Judge Potter, would
24 be why did a Congress add a language, as a spouse, unless it had
25 some purpose, because it says after a last comma, and a person
580
1 who cohabits or has cohabited, which is the factual situation
2 here, with a abuser as a spouse. In other words, why didn't
3 they just put a period after, with a abuser, and not even use a
4 words, as a spouse? I think by using a last three words,
5 Congress intended to limit it to that particular factual
6 situation.
7 THE COURT: You mean they had to be married?
8 MR. WILLIAMS: Right.
9 THE COURT: I don't think so.
10 MR. WILLIAMS: That's the argument.
11 THE COURT: That's an argument you can take up with a
12 Fourth Circuit if you want to. Congress doesn't change a
13 statute if they -- all right, travel across state line, any
14 objection to that?
15 MR. LAUGHRUN: No, sir.
16 THE COURT: Bodily injury, carrying a destructive
17 device?
18 MR. LAUGHRUN: No, sir.
19 THE COURT: Page 28, carrying a firearm, Page 29,
20 firearm defined. Let's see one thing, one thing I have and I
21 don't know whether it's necessary here or not, but I'll throw it
22 out to you, is they talk about incendiary. The term explosive
23 or incendiary material means any incendiary bomb, or grenade,
24 fire bomb or incendiary device, including a device which, one,
25 consists of or includes a breakable container, including a
581
1 flammable liquid or compound and a wick composed of any material
2 which when ignited is capable of igniting such flammable liquid
3 or compound and when thrown by one individual acting alone. I
4 think that was in the statute as I recall. I think that's the
5 way it is.
6 MR. CONRAD: I think that would be a definition of a
7 Molotov cocktail.
8 THE COURT: That's what they are trying to do. I had
9 this p at Statesville about 20 years ago, the question about
10 whether or not there was that purpose, 844. How do you feel
11 about it, do you think that's necessary?
12 MR. CONRAD: I'm indifferent to it, Judge. I think the
13 instruction I gave you came from a case defining an incendiary
14 device as a device composed of a combustible material capable of
15 producing sufficient heat to destroy property, and that is the
16 definition that I like.
17 MR. LAUGHRUN: Judge, we don't object to that one that
18 Mr. Conrad and Mr. Walker submitted.
19 THE COURT: Okay, fine. Mr. Laughrun, next page, Page
20 30, crime of violence, I think that's pretty well defined. Page
21 32, Page 33, use of an explosive to commit a felony. Count 3,
22 is that right, Count 3, whoever uses, 844(h), Page 34?
23 MR. LAUGHRUN: I don't think there is any problem,
24 Judge.
25 THE COURT: Okay, 35, 36, 37, 38, 39, 40, 41, Page 42,
582
1 Page 43, and 43 I added a conservative word, knowingly, to
2 knowingly ship or transport. Now, I know you have to cover it
3 back here.
4 MR. CONRAD: Where did you insert "knowingly" again?
5 THE COURT: On Page 43, it shall be unlawful for any
6 person who has been convicted of any crime, and so forth, for a
7 term exceeding one year to knowingly ship --
8 MR. WALKER: Between to and ship, between or and possess
9 or --
10 MR. CONRAD: Yes, sir.
11 THE COURT: Page 44, Page 45, exceeding one year, state
12 law experts.
13 MR. LAUGHRUN: Judge, you are not going to give them the
14 part down there in parentheses, are you?
15 MR. CONRAD: No, I just gave that for the Court's
16 benefit.
17 THE COURT: That's just a reference. Possess, Page 46,
18 Page 47, Page 48, carjacking, 2119, Count 7, Page 49, Page 50,
19 Count 8, Page 51, 924(j). Now, frankly, I didn't catch that. I
20 see y'all have got 924(j) in there.
21 MR. WILLIAMS: What page, Judge?
22 MR. LAUGHRUN: 51.
23 THE COURT: Page 51, 924(j). I saw somewhere in here
24 that it had been consolidated.
25 MR. CONRAD: Yes, 924(C) and 924(j) are a violation of
583
1 the same statute. J just kicks in when the use and carry --
2 THE COURT: Is that in here?
3 MR. CONRAD: It should be in there. It was originally
4 under 924(i)(2)(1), but they had two statutes designated
5 (i)(2)(1).
6 THE COURT: Oh, I have it highlighted, I forget stuff,
7 924(j), 52, 53.
8 MR. LAUGHRUN: Judge, how about on 52, Paragraph 4? The
9 way it's written now, that such murder was committed without
10 legal justification, with malice aforethought and premeditation.
11 THE COURT: What page are you on?
12 MR. LAUGHRUN: I'm sorry, page 52, Your Honor?
13 THE COURT: 52?
14 MR. LAUGHRUN: Yes, sir, Paragraph 4.
15 THE COURT: Paragraph 4, that much murder was committed
16 without legal justification, with malice aforethought and with
17 premeditation.
18 MR. LAUGHRUN: I'd like to add, and deliberation.
19 THE COURT: Is premeditation the same thing as
20 deliberation?
21 MR. CONRAD: I'd say that's redundant.
22 MR. LAUGHRUN: Well, all of the instructions are
23 redundant if you think about it. But I think with malice
24 aforethought and premeditation and deliberation.
25 THE COURT: Premeditation defined, a killing is
584
1 premeditated when it is the result of planning or deliberation.
2 So it's defined back there on Page 54. The amount of time
3 needed for premeditation of a killing depends on the person and
4 the circumstances. It must be long enough for the killer, after
5 forming the intent to kill, to be fully conscious of the intent.
6 So I think that's covered right here, isn't it?
7 MR. LAUGHRUN: Well, I think it probably is, but I think
8 if you say with premeditation and deliberation, whether they're
9 going to remember. The instructions are so lengthy, I would ask
10 if you would still insert "and deliberation" there and in the
11 mandate.
12 THE COURT: Well, can't I say, which means
13 deliberation?
14 MR. LAUGHRUN: That's fine.
15 THE COURT: Premeditation which means deliberation.
16 MR. LAUGHRUN: Will you do it in the mandate, too, the
17 last paragraph?
18 THE COURT: Okay. Malice aforethought, when we get to
19 premeditation, it says --
20 MR. CONRAD: I think that phrase, "and" in that phrase
21 is redundant, because you define it.
22 THE COURT: It's defined on Page 54. That's the reason
23 I'm saying that.
24 MR. CONRAD: I don't know why you have to put it in on
25 52 when you define it as such on 54.
585
1 THE COURT: Oh, it won't do any harm so let's do it that
2 way. Premeditation is defined as planning or deliberation.
3 Statute violated, number 9, Count 9 rather, Page 55, Page 56,
4 Page 57, Page 58, Count 10.
5 MR. LAUGHRUN: Wait a second, Judge, I'm getting a
6 little ahead of you.
7 THE COURT: Go ahead.
8 MR. LAUGHRUN: That's all right, go ahead, I'm on Page
9 59.
10 THE COURT: I thought you were -- oh, you are ahead of
11 me. Page 59, interstate domestic violence.
12 MR. LAUGHRUN: Again, Judge, we have got an objection to
13 intimate partner where it says were or had been intimate
14 partners.
15 MR. CONRAD: That's the same argument that we made.
16 MR. LAUGHRUN: It's the same argument that you heard.
17 THE COURT: Same arrangement, same thing.
18 MR. LAUGHRUN: Yes, sir.
19 THE COURT: Put your objections on the record.
20 MR. WILLIAMS: What page are you on?
21 MR. CONRAD: 59.
22 THE COURT: Says, or had been intimate partners. You're
23 objecting to had been intimate partners on the same grounds as
24 spouse, as we had before.
25 MR. WILLIAMS: I have a problem with Page 53, but I'm
586
1 lagging behind everybody. I just have a --
2 THE COURT: 63? I'm sorry.
3 MR. WILLIAMS: 53, Judge. I just have a problem --
4 definition of malice aforethought, and it says, to kill with
5 malice aforethought means either to kill another person
6 deliberately and intentionally. That I have no problem with.
7 But I have an objection to the language, or to act with callous
8 and wanton disregard for human life. That language is used in
9 involuntary manslaughter cases in state definitions of
10 homicides, and I just think that is not proper language for a
11 first degree --
12 THE COURT: I think we can take that out and leave
13 deliberately and intentionally. I don't think it really adds
14 anything to it, so just put a period after intentionally.
15 MR. WILLIAMS: Yes, sir, thank you.
16 MR. CONRAD: Can I have a second on that, Judge?
17 THE COURT: What?
18 MR. CONRAD: Can I have a second to look something up?
19 THE COURT: Yes, go ahead. Seems to me I used to define
20 malice somewhere.
21 MR. WALKER: You can have malice in a second degree
22 case.
23 MR. CONRAD: Judge, I know I got that case from --
24 THE COURT: I know you did. At any rate, let's move
25 ahead. Are we on 54?
587
1 MR. CONRAD: We are back up to 59, I think, Judge. We
2 just went back to 53.
3 THE COURT: 59. Paul, have you caught up with us?
4 MR. WILLIAMS: Yes, sir, I apologize, Judge, I'm with
5 you now.
6 THE COURT: 59, no argument with 59?
7 MR. LAUGHRUN: Just our previous objection.
8 THE COURT: About having been intimate partners?
9 MR. LAUGHRUN: Yes, sir.
10 THE COURT: 59, Paragraph 2, defendant objects to had
11 been intimate partners. Intimate partner includes a spouse, any
12 objection to that, or has cohabited?
13 MR. LAUGHRUN: I think it's what the statute says,
14 Judge.
15 THE COURT: Travel across state line, Page 61, Page 62,
16 Page 63, next page 63, Page 64, Page 65.
17 MR. LAUGHRUN: Judge, on Page 65, I think you again see,
18 with premeditation. Do you want to add, which includes
19 deliberation in there also, just to be consistent, Paragraph 4,
20 Page 65?
21 THE COURT: Let's see -- (reviews document). Now, I
22 have inserted in here not the definition of specific intent as I
23 understand the Supreme Court says that that confuses everybody,
24 but this is what I think we probably ought to put in there
25 because we're talking about intentionally.
588
1 MR. CONRAD: What page are you on, where do you insert
2 this?
3 THE COURT: Intent ordinarily may not be proved directly
4 because there is no way of recognizing operations of the human
5 mind, but you may infer the defendant's intent from the
6 surrounding circumstances, you may consider any statement made,
7 done or admitted, all other facts and circumstances in evidence
8 which indicate the state of mind, you may consider it
9 reasonable, draw the inference and find that a person intends
10 the natural and probable consequences of acts knowingly done or
11 knowingly omitted, but you are not required to do so. As I
12 said, it is entirely up to you to decide what facts to find from
13 the evidence.
14 MR. CONRAD: I had actually brought that instruction
15 over to ask you to give it. I did not include that instruction
16 in my set, but I brought it over to ask you to put it in see.
17 MR. WILLIAMS: Where would that go, Judge?
18 THE COURT: Paragraph 14.13.
19 MR. CONRAD: I've got 1707, but it says the same thing.
20 THE COURT: It's been revised, It's the same thing,
21 1707.
22 MR. WILLIAMS: Where would you insert that in your
23 instructions, Judge?
24 THE COURT: Right before we start getting into all these
25 definitions.
589
1 MR. CONRAD: I think Page 68.
2 THE COURT: Malice aforethought defined.
3 MR. CONRAD: Judge, I think you should conclude the
4 definitions for first degree murder and then maybe you want to
5 insert that on Page 68.
6 THE COURT: Well, I have one over here, which I did.
7 MR. CONRAD: What I'm saying is you probably want to
8 insert what you just read on Page 68.
9 THE COURT: 68?
10 MR. CONRAD: Yes, sir.
11 MR. LAUGHRUN: Judge, you got that on 66 before we get
12 to 68.
13 THE COURT: 66, yeah.
14 MR. LAUGHRUN: Again, Paul's objection to malice.
15 MR. CONRAD: Right, and I think we're just saving that
16 for another day.
17 THE COURT: All right, you want to put the intent part?
18 MR. WILLIAMS: Could we get a copy of that, intent?
19 MR. CONRAD: Paul, it's almost the same thing he read.
20 THE COURT: Paul, that's one I had for 15 years.
21 MR. WILLIAMS: Oh, I'm not questioning it, Judge.
22 THE COURT: Well, I guess they've revised it. I mean,
23 that's the reason I said Paragraph 14, 103 or something out of
24 the old book.
25 Let's see, what were we looking for now?
590
1 MR. CONRAD: Just inserting that on Page 68.
2 THE COURT: 68, all right.
3 MR. CONRAD: The instruction you just read to us that
4 you want to include on --
5 THE COURT: Number 10.
6 MR. CONRAD: Yes, sir.
7 THE COURT: You think it ought to be there?
8 MR. CONRAD: Yes, sir.
9 THE COURT: Malice aforethought, premeditation, Page 69,
10 specific intent -- not specific, but intent, Page 70,
11 credibility of witnesses, that's Page 10 of the -- what I have
12 done is take all these -- I think to do what we've done, get the
13 statutes over with and then get back to the other. So I put the
14 credibility of witnesses here, which is Page 10 of their
15 instructions, Page 11 of their instructions, impeachment, now,
16 let's see, I have a -- have you got impeachment in your felony
17 conviction? I have got one page I've been giving for years. A
18 witness may be discredited or impeached by contradictory
19 evidence by showing that he or she testified falsely concerning
20 a material matter, or by evidence that at some other time a
21 witness has said or done something or has failed too say or do
22 something which is inconsistent with a witness's present
23 testimony. If you believe that any witness has been so
24 impeached, then it's your exclusive province to give the
25 testimony of that witness such credibility or weight, if any, as
591
1 you think it deserves. The fact that a witness has previously
2 been convicted of a felony or crime involving dishonesty or
3 false statement is also a factor you may consider in weighing
4 the credibility of that witness. The fact of such conviction
5 does not necessarily destroy the witness's credibility, but it
6 is one of the circumstances you may take into account in
7 determining the weight to be given to his testimony. And did we
8 get any --
9 MR. LAUGHRUN: No, sir, there's no evidence of that at
10 all.
11 MR. CONRAD: Well, they are going to ask the jury to
12 weigh the credibility of their defendant's statements and he is
13 a convicted felon, so I think --
14 MR. LAUGHRUN: But he is not a witness, Judge. If he is
15 a witness, then our tape of Bob Holl's testimony ought to come
16 in that was previously excluded on Friday, if he is a witness.
17 MR. CONRAD: Those are completely two separate issues, I
18 would contend to you, Your Honor. They are going to ask the
19 jury to give credence to the statements the defendant made and
20 the government offered as evidence in this case, statements he
21 made to Investigator Sanders and statements he made to
22 Investigator Rice. And I think the jury is entitled in
23 examining the credibility of those statements to consider the
24 fact that he is a convicted felon, so I think your instruction
25 as you read it is entirely appropriate.
592
1 THE COURT: Let's see, let's go to definition of malice,
2 a predetermined inclination to commit an act without legal
3 justification or excuse, that's malice. Potentially doing an
4 unlawful act that was determined before it was executed, intent
5 at the time of a killing willfully to take the life of a human
6 being or an intent willfully to act in callous and wanton
7 disregard of the consequences for human life. Malice
8 aforethought does not necessarily imply any ill will, spirit or
9 hatred. I think you added the word "hatred" in yours, didn't
10 you?
11 MR. CONRAD: Yes, that's the definition I have, and
12 that's the definition we asked you to give.
13 THE COURT: Malice aforethought, you have, to kill with
14 malice aforethought means either to kill another person
15 deliberately and intentionally, or to act with callous and
16 wanton disregard for human life. To find malice, you need not
17 be convinced that the defendant hated or otherwise felt ill will
18 toward a victim. In determining whether the killing was with
19 malice aforethought, you may consider the use of a weapon and
20 the manner in which the death was caused.
21 All right, I think that covers the definition, doesn't
22 it?
23 MR. CONRAD: Yes, sir.
24 THE COURT: Y'all have any objection to that?
25 MR. LAUGHRUN: Still object to a callous disregard.
593
1 THE COURT: What is that?
2 MR. LAUGHRUN: We still object to the callous disregard.
3 THE COURT: Well, that's what the thing says.
4 MR. LAUGHRUN: That's just what Black's Law Dictionary
5 says.
6 THE COURT: Intentionally, or to act in a callous and
7 wanton disregard of the consequences for human life.
8 So all right, let's see, you were -- what were we
9 talking about?
10 MR. LAUGHRUN: Fussing about a felony conviction record,
11 Judge.
12 THE COURT: You're talking about 1111, is that what you
13 want to do?
14 MR. CONRAD: No, we are talking about your credibility
15 of a witness's definition or whether you are going to include
16 the felony conviction in there --
17 THE COURT: Oh, okay, all right, I understand. This
18 thing says, the fact that the witness has previously been
19 convicted of a felony or a crime involving dishonesty or false
20 statement is also a factor you may consider in weighing the
21 credibility of that witness. The fact of such a conviction
22 would not necessarily destroy the witness's credibility, but
23 it's one of the circumstances you may take into account in
24 determining the weight to give to his testimony.
25 MR. WILLIAMS: You're talking about a witness?
594
1 THE COURT: What?
2 MR. WILLIAMS: George, do you want that instruction?
3 MR. LAUGHRUN: No.
4 MR. WILLIAMS: I don't think it should be given.
5 MR. LAUGHRUN: He is not a witness, Judge. He's not
6 been sworn, he's not under oath. If that's the -- if the
7 government says give that statement, then I think we have a
8 right under the case law and we argued this about recent
9 fabrication when Bennie Green testified, they got to play Bennie
10 Green's statement and we tried to impeach him with it, and we
11 get to play the Bob Holl tape.
12 THE COURT: Well, they didn't put it in, I put it in.
13 Impeachment by prior inconsistencies then, felony conviction,
14 the fact that a witness has been convicted of a felony, is what
15 they had in here, is another factor you may consider. Did any
16 of the witnesses, any of them been convicted of a crime?
17 MR. LAUGHRUN: No, sir.
18 THE COURT: I don't recall anybody.
19 MR. CONRAD: None of the witnesses.
20 THE COURT: Let's just take it out then. All right,
21 sir, I'm going to take mine out and take out the part on Page --
22 MR. CONRAD: 12.
23 THE COURT: -- 12 of the government's instructions about
24 being convicted of a felony. Okay, defendant not compelled to
25 testify, Page 13 of their instructions. Any objection to that?
595
1 If y'all don't like that one, I have another one. See what
2 y'all say about it, what do you say about it, Page 13?
3 MR. LAUGHRUN: I don't have that much problem with it,
4 Judge. That's exactly the one we proposed.
5 THE COURT: Okay, that's fine, leave it in like it is,
6 not compelled to testify. All right, next page, 15,
7 confessions.
8 MR. LAUGHRUN: I don't have much problem with it.
9 THE COURT: Consciousness of guilt, Page 16.
10 MR. LAUGHRUN: No problem with that either.
11 THE COURT: 17, expert witnesses.
12 MR. LAUGHRUN: No objection to that either.
13 THE COURT: 18, transcripts.
14 MR. LAUGHRUN: That's what you told them, I believe.
15 THE COURT: And concluding instructions. There is one
16 I've been using a lot of times. I don't know if you want it or
17 not. Let me emphasize that a lawyer's question is not
18 evidence. At times, a lawyer may have incorporated a question
19 or statement to assume certain facts to be true and ask a
20 witness if the statement was true. If the witness does not
21 answer or denies the truth of the statement, if there is no
22 evidence in the record proving the same fact is true, then you
23 may not consider a fact to be true something that was contained
24 the lawyer's question. On the other hand, if a witness agrees
25 to the assumed facts in his answer, a witness may be considered
596
1 to have testified to the facts assumed in the question and his
2 testimony is evidence of those facts. Any objection to that?
3 MR. CONRAD: No, sir.
4 THE COURT: Do you want me to put it in or not? I don't
5 care.
6 MR. LAUGHRUN: We don't care either, we don't have any.
7 THE COURT: Don't have any strong feeling one way or the
8 other, do you think it should go in?
9 MR. LAUGHRUN: You've given them 75 pages already,
10 Judge.
11 MR. WILLIAMS: I don't think it's necessary.
12 THE COURT: Leave it out.
13 MR. CONRAD: Judge, I actually had asked you to put that
14 in on Page 6 of my proposed --
15 THE COURT: Page 6 of yours?
16 MR. CONRAD: The second paragraph.
17 THE COURT: You put it in?
18 MR. CONRAD: Yes, sir.
19 THE COURT: I must have missed that.
20 MR. CONRAD: A second paragraph -- oh, no, I'm sorry,
21 it's at the bottom paragraph on that page.
22 MR. LAUGHRUN: Last paragraph of Page 6.
23 THE COURT: Okay, all right. Pick that up from me?
24 MR. CONRAD: Yes, sir, I did.
25 THE COURT: Okay, anything else?
597
1 MR. LAUGHRUN: Judge, we have got a couple in our
2 request. I request --
3 THE COURT: Excuse me, I'm sorry.
4 MR. LAUGHRUN: Separate crime charged in each count of
5 the bill of indictment. I don't believe that's in there unless
6 it's somewhere I missed it. Judge, I will give you my copy.
7 THE COURT: I think I have it back in here. Here's what
8 I use, is this what you said, separate crime or offense charged
9 in each count of the indictment. Each charge and the evidence
10 pertaining to it shall be considered separately. The fact that
11 you may have found the defendant guilty or not guilty as to one
12 of the offenses charged shall not control your verdict as to the
13 other offense charged. I caution you, members of the jury, you
14 are to determine the guilt or the innocence of the accused from
15 the evidence in the case. The defendant is not on trial, and I
16 think that is in here.
17 MR. CONRAD: Yeah, that's exactly what you --
18 MR. LAUGHRUN: I didn't see that in there if it's in
19 there.
20 THE COURT: What I said was a separate crime for
21 offenses charged in each count of the indictment. Each charge
22 and the evidence pertaining to it should be considered
23 separately. The fact that you may find the defendant guilty or
24 not guilty as to one of the offenses charged shall not control
25 your verdict as to any other offense charged. I caution you --
598
1 I caution you, members of the jury, that you are here to
2 determine the guilt or innocence of the accused from the
3 evidence in the case. The defendant is not on trial for any act
4 or conduct or offense not raised in the indictment. You will
5 not be called upon to return a verdict as to the guilt or
6 innocence of any other person or person not on trial in this
7 case. Also the punishment provided by law for the offense
8 charged in the indictment is a matter exclusively --
9 MR. LAUGHRUN: You don't want to give that, Judge, in
10 this case probably.
11 THE COURT: Doesn't apply here, does it?
12 MR. LAUGHRUN: We would be happy to let Your Honor
13 sentence him.
14 (Laughter.)
15 MR. WILLIAMS: Is there an instruction about not
16 deciding the case on passion or prejudice or emotion?
17 THE COURT: At the very beginning, or there should be.
18 MR. WILLIAMS: Okay, I'm sorry, Judge, I missed that.
19 MR. WALKER: On the bottom of Page 2.
20 THE COURT: All right, what kind of schedule do we
21 have --
22 MR. LAUGHRUN: I have one more, Judge, not required to
23 accept uncontradicted testimony.
24 MR. CONRAD: That's in there.
25 MR. LAUGHRUN: Is it in there? Okay.
599
1 THE COURT: All right, Mike just handed me a case here.
2 This is Gilbert versus Moore, 1998 Westlaw 19936, Fourth
3 Circuit. In it's popular sense, the term "malice" conveys the
4 meaning of hatred, ill-will, or hostility toward another. In
5 its legal sense, however, as it is employed in the description
6 of murder, it does not of necessity import ill-will toward the
7 individual injured, but signifies rather a general malignant
8 recklessness of the lives and safety of others, or a condition
9 of the mind which shows a heart regardless of social duty --
10 regardless of social duty and fatally bent on mischief; in other
11 words, a malicious killing is where the act is done without
12 legal justification, excuse, or extenuation, and malice has been
13 frequently substantially so defined as consisting of the
14 intentional doing of a wrongful act toward another without legal
15 justification or excuse.
16 What do you have?
17 MR. CONRAD: That's consistent with the definition.
18 THE COURT: Okay.
19 MR. LAUGHRUN: (Nods head.)
20 THE COURT: That's Gilbert versus Moore, Fourth Circuit.
21 MR. CONRAD: 1998, that's the first time a '98 case has
22 been cited.
23 THE LAW CLERK: January 22nd, 1998.
24 MR. LAUGHRUN: Judge, we've also got a matter we need to
25 discuss with you. You had entered an order, your document
600
1 number 154.
2 THE COURT: I've got it all in the office.
3 MR. LAUGHRUN: Filed October 28th. It says that you are
4 going to give us a preliminary hearing to determine if the
5 victim impact that the government intends to introduce is unduly
6 prejudicial or inflammatory and thus violative of the due
7 process clause in the Fourteenth Amendment. Therefore, the
8 Court will grant the defendant's motion to require a pretrial
9 review of all victim impact evidence the government intends to
10 offer at the sentencing.
11 THE COURT: We are not into that yet.
12 MR. LAUGHRUN: Right, but I mean for scheduling
13 purposes, I didn't know, I wanted to bring that up to Your
14 Honor.
15 THE COURT: All right, when do you want to do that?
16 MR. CONRAD: Judge, I had understood that to be some
17 type of ex parte presentation without witnesses testifying.
18 Part of my concern is that the witnesses shouldn't have to
19 testify twice.
20 THE COURT: You want a proffer of what they're going to
21 say?
22 MR. CONRAD: Yes, sir.
23 THE COURT: What do y'all say?
24 MR. LAUGHRUN: We would like them under oath, Judge, so
25 that they understand that.
601
1 MR. CONRAD: I don't think the defendant is entitled to
2 have our witnesses testify under oath and to preview their
3 testimony. The concern is for the Court not to let in unduly
4 prejudicial evidence, and the Court can do that on a proffer.
5 MR. LAUGHRUN: I guess our problem is, Judge, if they do
6 it in such, and understandably so because of the loss these
7 families have suffered, if it comes out, it's going to be
8 emotional and it's going to be things you can say, members of
9 the jury, disregard it. You can't disregard such emotional
10 testimony at all.
11 MR. CONRAD: Emotional is not the measure, Judge. Of
12 course, it's going to be emotional, it's victim impact
13 testimony. The measure is whether it's unduly prejudicial. And
14 if you look at Payne v. Tennessee and the other cases dealing
15 with victim impact evidence, that evidence is always emotional.
16 THE COURT: How many witnesses are you going to have?
17 MR. CONRAD: I don't think many, Judge, I think two to
18 three with respect to Mr. Allen and two to three with respect to
19 Robin Williams.
20 MR. LAUGHRUN: We filed a motion last week, Judge, a
21 second motion in limine about that also, about an instruction to
22 give before that testimony.
23 THE COURT: I would hate for them to come up here at the
24 last minute and say anything.
25 MR. WILLIAMS: May I ask a question?
602
1 THE COURT: Yes.
2 MR. WILLIAMS: Does the government intend to offer with
3 the victim impact witnesses any other type of evidence such as
4 videos or movies or that kind of evidence, because if they do,
5 then I think we need to clearly review that evidence. I just
6 don't know what their intent is, and I don't want us to get
7 caught in the of the courtroom with not knowing about that.
8 MR. CONRAD: What I would prefer doing, Your Honor, is
9 proffering to the Court what my evidence would be at that point.
10 THE COURT: Well, proffering in one way doesn't really
11 help me if you get some emotional person on there. That's why I
12 would kind of like to see before we get into this thing. I'm
13 not talking about cross-examination or anything, I just want to
14 hear what they are going to say, no cross-examination.
15 MR. WILLIAMS: I agree, oh, I agree.
16 MR. LAUGHRUN: Judge, I'll be candid with you, there is
17 not going to be any cross. I know at that hearing we are not
18 entitled to that, and that's fine.
19 MR. CONRAD: Judge, I'm fighting hard for my witnesses
20 on this point, because I think that the defendants are not
21 entitled to put them through two levels of testimony like that.
22 And I think the Court needs to be satisfied that the evidence is
23 proper and admissible, but I don't think the Court needs to have
24 them testify twice in order for --
25 THE COURT: How are we going to do it?
603
1 MR. CONRAD: By proffer.
2 MR. WILLIAMS: Well, the only problem with a proffer,
3 Judge, with all due respect, is granting the emotional aspect of
4 the evidence and putting the victim's family through it, nobody
5 wants to do that, but we are in this trial, we have got no
6 choice, is if it's proffered on paper and you are reading this
7 off of a piece of paper, you can't get any feel for it, whereas
8 if it's offered live, that's what we are talking about when we
9 are trying to meet the due process aspect of the Fourteenth
10 Amendment to grant the -- to ensure the defendant of a fair
11 trial under the Fourteenth Amendment.
12 MR. CONRAD: Judge, I think the gloves have to come off
13 on this point. No one has more to lose on this point than the
14 government. If the government is wrong in presenting this
15 evidence, then the whole conviction is set aside. So there are
16 restraints on the type of decisions we will make that are
17 inherent in this process. What they want is to hear that
18 evidence so that they can best counter it, and I don't think
19 they are entitled to it just to --
20 MR. WILLIAMS: Well, we agree that we want to hear it.
21 We certainly would not have any right to ask any questions, and
22 we wouldn't want to, but I think we have a right to hear it so
23 that we can ensure that the due process rights of our client are
24 protected before it's too late and a motion for mistrial is made
25 and it's too late.
604
1 MR. CONRAD: I would argue to Your Honor that in cases
2 across the country, that I'm not aware of courts making the
3 government present their --
4 THE COURT: I agree with you on that. I was just
5 thinking if I could hear what they had to say. I don't want to
6 get out there and start putting in a lot of things that we
7 shouldn't put in.
8 MR. LAUGHRUN: Well, Judge, we could do it in the jury
9 room, in here.
10 THE COURT: No.
11 MR. LAUGHRUN: At least it's not as intimidating as
12 sitting up there.
13 MR. CONRAD: What I would ask the Court for is to allow
14 me to brief the issue of what courts have allowed in the past
15 with respect to victim impact evidence and what I intend to
16 offer at that stage in the trial. I don't -- procedurally, I
17 think --
18 THE COURT: Well, let me think, you do that, let me
19 think a minute. How are we going to schedule this? Tomorrow we
20 have this. How long do y'all --
21 MR. LAUGHRUN: Judge, in addition to that, we filed
22 another motion on the same issue last week. You should have
23 it.
24 Judge, as far as our argument goes, 15, 20 minutes.
25 THE COURT: Your argument is 15, 20 minutes?
605
1 MR. LAUGHRUN: Yes.
2 MR. CONRAD: What motion are you talking about?
3 MR. LAUGHRUN: We put it on your desk last week about
4 victim -- emotional victim impact. I put it on your desk last
5 week. We filed it last Tuesday or Wednesday about -- it goes
6 through the pain analogy, what is allowed, a brief glimpse into
7 the background --
8 THE COURT: The government has got a lot to cover. How
9 long are y'all going to take?
10 MR. WALKER: For closing arguments tomorrow, I wouldn't
11 think more than 25 minutes.
12 THE COURT: Gracious, we will be through here early.
13 MR. LAUGHRUN: Is it your argument, Bob, Thomas, are
14 y'all both going to argue?
15 MR. CONRAD: Your Honor, we had asked for more time than
16 that, I think. We won't use more --
17 MR. WILLIAMS: Judge, may I make a suggestion?
18 THE COURT: Yes, sir.
19 MR. WILLIAMS: With regard to scheduling, I have a
20 suggestion that after a verdict comes back at the guilt phase,
21 which in all likelihood will be Tuesday afternoon, we don't
22 anticipate the verdict will take very long, what we are going to
23 ask for is that you give us a day in between the guilt phase and
24 the penalty phase so that we are off on Wednesday and would
25 start the penalty Thursday morning.
606
1 The reason for the request, Judge, is as you know,
2 pursuant to your order, we are required within 24 hours of a
3 guilty verdict to give the government reconfirmation of our
4 notice to offer mental health evidence. When that is done, the
5 parties have to exchange or get from the sealed portion of the
6 record the various reports from the experts, and I assume Butner
7 reports, and have a chance to review those. We don't mind
8 giving that notice in less than 24 hours in order to move things
9 along, but then use that day, Wednesday, to go ahead and
10 exchange that information and study it and prepare it for the
11 penalty phase. I don't think the government would have an
12 objection to that, I don't think so, Bob, would you?
13 MR. CONRAD: What, a day between the --
14 MR. WILLIAMS: Yeah, so --
15 MR. CONRAD: No, I need some time, because I have not
16 seen this.
17 THE COURT: You want two days, Wednesday and Thursday?
18 I mean, y'all haven't seen some of these reports.
19 MR. WILLIAMS: We haven't seen them either.
20 THE COURT: I haven't seen them.
21 MR. LAUGHRUN: Well, Judge, I can tell you how -- for
22 the record, we met with all of our experts yesterday, and none
23 of them talked about the Butner report. We made it clear to
24 them that we could not know the contents of the Butner report.
25 They have seen the Butner report, but we have no idea what's in
607
1 it. That's a fair statement. We met with their experts
2 yesterday.
3 MR. WILLIAMS: Yes, sir.
4 THE COURT: Well, if y'all want to take two days; I'm
5 not pushing.
6 MR. CONRAD: I'm just asking for a day.
7 MR. LAUGHRUN: I think a day is enough, Judge.
8 THE COURT: What do you say?
9 MR. CONRAD: I'm asking for a day.
10 THE COURT: A day?
11 MR. CONRAD: Yes, sir.
12 THE COURT: Assuming we get through tomorrow afternoon,
13 then, we will take Wednesday off, start back on Thursday
14 morning. Is that going to give everybody enough time? I'm not
15 pushing you on this thing.
16 MR. CONRAD: I do have a procedural question. As I read
17 Payne v. Tennessee and other victim impact cases, it appears
18 that the government is entitled to present that type of evidence
19 in rebuttal to any character evidence, any evidence of the
20 defendant's good character. As I read Payne v. Tennessee, that
21 victim evidence comes in as rebuttal to that type of evidence.
22 And if Your Honor is intending to proceed along those lines,
23 then the issue of the victim impact evidence doesn't even come
24 up until after the defense has put up --
25 MR. LAUGHRUN: Judge, I'm not sure that's rebuttal
608
1 evidence. I mean, we filed a motion early on to limit rebuttal
2 testimony, didn't we?
3 MR. WILLIAMS: They've alleged this as a nonstatutory
4 aggravating factor.
5 MR. LAUGHRUN: Right, it's a nonstatutory aggravating
6 factor. Victim impact is one of the things that makes this
7 defendant deserving of death. If that's the case, that's not
8 rebuttal evidence. They can't -- the victim's family is not
9 going to be able to rebut the defendant's background, social
10 history, whatever, they know nothing about him. So it's not
11 rebuttal in that regard, it's a statutory factor.
12 THE COURT: Well, I'm not excluding them from putting on
13 rebuttal, but you better put that on to start with.
14 MR. CONRAD: You want us to put it before their
15 evidence?
16 THE COURT: Yes. You are not precluded from putting on
17 rebuttal evidence. Obviously, they are going to have people
18 that your experts might want to dispute.
19 MR. CONRAD: Payne v. Tennessee just talks about the
20 jury being entitled to get a glimpse of the victim impact having
21 heard so much evidence about the defendant and his
22 characteristics and all that, and so that does indicate that
23 that type of evidence is --
24 THE COURT: So as far as scheduling is concerned,
25 tomorrow afternoon after a verdict, I will let you proffer to me
609
1 what you have. I might change my mind, but I'm going to look at
2 it see.
3 MR. CONRAD: When do you want that?
4 THE COURT: Tomorrow, if you can do it tomorrow, just a
5 general description of what it is.
6 MR. WILLIAMS: Do we get to look at that?
7 THE COURT: Sure, he can put it on the record out there
8 in you want to. All right.
9 MR. LAUGHRUN: Also, Judge, maybe Bob can tell me, do
10 y'all have any rough idea about how long y'all's evidence will
11 last, just a rough idea. We're trying to line up our folks.
12 We've got some folks from out of state, and that's what we are
13 trying to line up. If we start Thursday, will y'all be through
14 by Friday?
15 MR. CONRAD: If what now?
16 MR. LAUGHRUN: If we start tomorrow -- Thursday with
17 your evidence -- well, you are going to give us opening
18 statements in the victim -- give us opening statements in the
19 penalty phase, too, right?
20 THE COURT: Still thinking, George, about this
21 schedule. If y'all start on Thursday, how long is it going to
22 take y'all?
23 MR. CONRAD: We have a couple of days' worth of
24 evidence.
25 THE COURT: Two days, Thursday and Friday.
610
1 MR. CONRAD: Yes. But I said that before and it got
2 done in a day. We have at least a day of evidence.
3 THE COURT: It's going to take y'all at least two days,
4 too, isn't it?
5 MR. WILLIAMS: Two or three days.
6 MR. LAUGHRUN: Maybe four days.
7 THE COURT: I figured the penalty would be longer than
8 the trial.
9 MR. LAUGHRUN: Right.
10 THE COURT: I'm just thinking about jury instructions,
11 I'm a little concerned about those, but I know there is no
12 secret about it, I've never had the experience of a death
13 penalty trial and I want to be sure that the instructions --
14 MR. LAUGHRUN: Judge, we have got a notebook probably of
15 proposals already drafted that we will try to get you early on.
16 This gives you a basis. A lot of these come from other cases
17 that have been heard all over. I'm sure the government has
18 probably got some of the same ones.
19 THE COURT: Are you going to give me proposed
20 instructions?
21 MR. WILLIAMS: Yes, sir.
22 THE COURT: When are you going to do that?
23 MR. WILLIAMS: They're long and difficult, they really
24 are.
25 THE COURT: I know they are.
611
1 MR. LAUGHRUN: Could we get them to you by Friday of
2 this week?
3 THE COURT: I like to have things over the weekend.
4 It's quiet and I can come up here and read those things without
5 having interruptions.
6 MR. LAUGHRUN: Judge, the problem we're going to have
7 with ours, when you get to the nonstatutory mitigating, there
8 are going to be a lot of blanks there until we put on our
9 evidence, but we can get -- isn't that right where we are, Paul?
10 MR. WILLIAMS: We can propose the ones that we can
11 propose.
12 THE COURT: All right, then, tomorrow closing arguments,
13 verdict, Tuesday, Wednesday we take off, and you give me
14 sometime by Wednesday, either in writing or stand up in the
15 courtroom and do it. Which way do you want to do it? I'd
16 rather for them to hear it.
17 MR. LAUGHRUN: Let me ask you this, Judge, I'm just
18 making this as a proposal, Bob, and tell me --
19 THE COURT: Could you do that tomorrow afternoon?
20 MR. CONRAD: I would prefer Wednesday. I'd prefer to
21 give it to you by Wednesday.
22 MR. LAUGHRUN: We would prefer to do it back here
23 without a family hearing what you've got to say.
24 MR. CONRAD: Much rather do it in chambers.
25 THE COURT: Okay. I hate to take Wednesday, y'all are
612
1 going to be busy getting ready for the penalty phase. How long
2 is it going to take, just a proffer?
3 MR. LAUGHRUN: Judge, we've got a branch office here,
4 we're going to be here. We've got a branch office out here, so
5 Paul and I will be here.
6 THE COURT: Everybody is going to be busy Wednesday and
7 I don't want to take all day long on something like this, but
8 you understand that there is no cross-examination, whatever he
9 proffers, that's it.
10 MR. WILLIAMS: I think if we could do it Tuesday
11 afternoon or while the jury is deliberating, that might be a
12 good time.
13 THE COURT: Where are we going to do it? We could do it
14 in my office.
15 MR. CONRAD: I would prefer a -- see, I didn't know I
16 was going to have to -- I thought my victim impact evidence was
17 coming in on the rebuttal side of case. All I'm saying is put
18 it altogether by Tuesday afternoon, preparing for.
19 THE COURT: You want Wednesday and Thursday?
20 MR. CONRAD: No, I don't -- no, if I could just present
21 to you what my victim impact evidence is on Wednesday, that's
22 what I --
23 THE COURT: Wednesday would be fine. Do y'all
24 understand that?
25 MR. LAUGHRUN: Sometime Wednesday, whatever.
613
1 THE COURT: 10:00 o'clock Wednesday morning, is that too
2 early for you?
3 MR. CONRAD: That's great.
4 MR. LAUGHRUN: Could we do this, can we tentatively set
5 it, Judge? The jury may still be deliberating.
6 THE COURT: I know that. You never can tell, might have
7 one on there. And another thing, I'm going to keep all of the
8 alternates through the penalty phase to be available. They're
9 not going to be back there deliberating with the other jurors.
10 I want them available to come back for the penalty phase. I
11 don't want to have to go through all this again.
12 MR. LAUGHRUN: I have got a problem with that.
13 MR. WILLIAMS: I do, too.
14 MR. LAUGHRUN: I don't see how they could sit on the
15 penalty phase if they didn't deliberate the guilt innocence
16 phase.
17 THE COURT: Why?
18 MR. LAUGHRUN: Let's say for example from the
19 government's perspective they thought the guy was not guilty and
20 was not going to vote guilt. They couldn't -- I don't think
21 they could sit, Judge, unless they participated in the actual
22 guilt innocence part. They can be impaneled then just to try
23 the sentencing part.
24 THE COURT: What happens if something happens to one of
25 the other jurors?
614
1 MR. LAUGHRUN: Unfortunately I think what Paul said, we
2 are at a mistrial. I think once the 12 come back to deliberate,
3 we are stuck with those 12 jurors and hope to goodness they are
4 here for the whole proceedings. I'm not sure you can put the
5 alternates back to deliberate.
6 THE COURT: I think you can from what I've been reading.
7 MR. WALKER: You can do that through the guilt phase at
8 least.
9 MR. LAUGHRUN: Right, you can do it through the guilt
10 phase, no question. There's no question about the guilt phase.
11 What they have to do is go back and redeliberate. That's what
12 happens if --
13 MR. WALKER: And keep the alternates sequestered.
14 MR. LAUGHRUN: Keep the alternates sequestered. If
15 something happens in the guilt phase, then you excuse juror
16 number five, bring in an alternate and he starts the
17 deliberative process all over with the other 11 jurors. I think
18 with the four, you can't let them, since they didn't decide
19 whether he was guilty or not, they can't deliberate.
20 MR. CONRAD: Do you have any case law on that?
21 MR. LAUGHRUN: It's all state law.
22 MR. WILLIAMS: There is a recent case, I think, in the
23 State Court that I remember seeing and I'll see if I can't find
24 it. Of course, it wouldn't apply to a federal case, but it
25 might be of some assistance. I remember seeing a case about
615
1 that.
2 MR. LAUGHRUN: We just hope the other jurors hang in
3 there for the next six, seven days.
4 MR. WILLIAMS: They wouldn't have a benefit of the other
5 jurors' thoughts and process of reaching the penalty phase,
6 because they didn't participate in that. And, of course, the
7 jurors can consider evidence at the guilt phase for purposes of
8 the penalty phase. And if they don't participate in that
9 discussion, I think you have got a problem.
10 THE COURT: We've got a problem, too, if anything
11 happens to one of those jurors. I was so happy when I saw 16 of
12 them show up.
13 MR. LAUGHRUN: Judge, I think Paul is right that one of
14 their arguments the government is going to argue is
15 substantial -- involving more than one person and things like
16 that, and that's obviously something they are going to discuss
17 even at the guilt phase. And the government can stand up and
18 argue, they could conceivably not put on any evidence at the
19 sentencing hearing if they want to and argue there is
20 aggravating factors.
21 So I just think that's a real problem if you put an
22 alternate that didn't deliberate in the guilt innocence. I
23 guess we'll across that bridge if we come to it.
24 THE COURT: David that used to be up here, had a wreck
25 last Tuesday night.
616
1 MR. LAUGHRUN: David Brown?
2 THE COURT: Yeah, David Graham.
3 MR. CONRAD: David Graham.
4 THE COURT: He was in the hospital. He's out now.
5 MR. CONRAD: David Graham.
6 THE COURT: David Graham, excuse me, David Graham.
7 That's the sort of thing that can happen to any one of these 12
8 jurors, I mean.
9 MR. LAUGHRUN: Is he okay, is he going to be okay?
10 THE COURT: He is home. He is sore and everything, I
11 understand. That's the one thing that really concerns me, boy,
12 I tell you.
13 MR. WILLIAMS: I think we will be all right, Judge.
14 This thing is moving along pretty well.
15 THE COURT: Yes, but Lord knows if we have to go through
16 this thing again.
17 MR. LAUGHRUN: Will you tell them Wednesday or tomorrow,
18 Judge, after the verdict and after you poll them, will you tell
19 them that Wednesday that there are some things you have to take
20 up with us, not put the blame on one side or the other for
21 Wednesday? The jury is going to think, and I'm just thinking as
22 a lay person, gosh, we didn't work Monday, those guys had Monday
23 off, they came back and argued now they've got Tuesday off.
24 THE COURT: I'll just tell them that we are not taking
25 the day off, we are working. You think Thursday is all right to
617
1 start with the penalty phase, everybody happy with that, or do
2 you wait until Friday?
3 MR. LAUGHRUN: Judge, if they start Thursday, can we
4 start -- as soon as they finish, we want to start. Friday
5 afternoon, if they get through at noon Friday, we are going to
6 have our folks ready to go Friday afternoon.
7 THE COURT: Do you have any idea how long it's going to
8 take you?
9 MR. CONRAD: I think couple of days, Judge.
10 THE COURT: So they won't start until Monday.
11 MR. CONRAD: If it took a couple of days.
12 THE COURT: I assume you have people.
13 MR. CONRAD: I don't know, cross-examination might be
14 different in the penalty phase.
15 MR. LAUGHRUN: What did you say a few minutes ago, the
16 gloves are off? We will -- we've got our out of town people
17 scheduled to be here Monday anyway.
18 THE COURT: What about in case they get through?
19 MR. WILLIAMS: We have some local people.
20 THE COURT: So we'll figure Thursday and Friday for the
21 government, that's what they are telling me, start on Monday
22 with yours. If y'all want to start at 5:00 o'clock Friday
23 afternoon, we are not going to do that.
24 MR. LAUGHRUN: Oh, no, no, no. But if the government
25 says they are through at lunch Friday, we don't want to waste
618
1 Friday afternoon, we will be ready to go with our folks.
2 THE COURT: And tomorrow -- on Wednesday, we will set a
3 time, say 9:30, 10:00.
4 Anything else to take up now?
5 MR. LAUGHRUN: After the government's rebuttal, will you
6 give us a time like this to go over the jury instructions before
7 we rest?
8 THE COURT: To do what?
9 MR. LAUGHRUN: Like we had a day to do instructions.
10 THE COURT: Oh, yeah.
11 MR. LAUGHRUN: Because those are going to be a lot more
12 complicated.
13 THE COURT: Oh, yes.
14 MR. LAUGHRUN: We have got two sets, and we'll try to
15 get them to you.
16 THE COURT: Let me have them over the weekend, that's
17 what I'm interested in. I know you are going to be busy.
18 MR. CONRAD: That will be great.
19 THE COURT: I have to do some digging on this stuff.
20 MR. CONRAD: There are a couple more matters that I
21 would like to bring up on the record, if the Court would hear
22 from me.
23 I had a couple of motions in limine. One was triggered
24 by some correspondence that we had in which Mr. Laughrun and
25 Mr. Williams compared this case to some other cases nationally
619
1 in which either the government did or did not seek the death
2 penalty. And, you know, there is nothing improper at all about
3 that correspondence, but I would ask the Court to prohibit any
4 comparative judgements like that from being expressed to the
5 jury.
6 THE COURT: Don't talk about the other cases in State,
7 Federal or whatever.
8 MR. LAUGHRUN: We are not going to do that.
9 THE COURT: I didn't think you would.
10 THE COURT: All right, what else?
11 MR. CONRAD: Then the second thing is both Mr. Laughrun
12 and Mr. Williams have very rightly expressed concern for the
13 victim families and have done that with the victim families in
14 the hallway outside the courtroom and in response to when Bertha
15 Williams was finishing testifying, Mr. Williams didn't
16 cross-examine her but he apologized to her twice. And I think
17 that's -- the feelings of the lawyers expressed to the jury are
18 not relevant to any issue in the case. And to the extent
19 lawyers would indicate their own personal feelings about a case
20 to the jury, I think it's inappropriate and improper and I would
21 ask the Court to restrict.
22 THE COURT: Don't make any remarks either side.
23 MR. WILLIAMS: That was a natural --
24 MR. CONRAD: I'm not saying it wasn't.
25 THE COURT: Let's don't do that. You can tell them
620
1 outside the hearing of the jury, I don't care what you say.
2 Anything else?
3 MR. WILLIAMS: I won't say I'm sorry anymore.
4 MR. WALKER: Judge, there was one item, and Mr. Laughrun
5 correct me if I'm wrong, but there was the interview with Tony
6 Rice which the government put into evidence, we put a transcript
7 of that interview into evidence and we also put the cassette
8 tape, the audio cassette tape of that interview into evidence.
9 And if I understood counsel correctly, they wanted to put a
10 videotape of that Tony Rice interview into evidence. They also
11 wanted to put in a videotape of a third interview that we didn't
12 even offer any evidence concerning.
13 MR. WILLIAMS: Audiotape.
14 MR. WALKER: Audiotape. The government is agreeable and
15 would not object if the defendant wants to put in the Tony Rice
16 videotape. We remain steadfast in our strenuous objection to
17 the third confession, because that was not even delved into by
18 the government and would still be hearsay evidence. But we
19 don't object if the defense wants to move that videotape of the
20 Rice interview into evidence.
21 And Your Honor may recall there was initial testimony by
22 Investigator Sanders, who did one of the first interviews with
23 the defendant, and he said the audiotape, the audio portion of
24 the videotape was so low. We don't object to that one coming in
25 either, it's just you can't see anything or hear anything on
621
1 it. But we are not objecting to those two videotapes coming
2 into evidence.
3 MR. LAUGHRUN: We are going to play it at the penalty
4 phase, Judge. And if we can do it without objection, it would
5 save having a witness be called back. I think you and I have
6 mentioned something, Bob, that you stipulate that's the tape.
7 MR. CONRAD: Right, there is no authenticity objection
8 at all.
9 MR. LAUGHRUN: Right, we got it from those guys.
10 THE COURT: Let me make sure I understand. We are going
11 to have an audiotape which was not played because of the fact
12 that we couldn't hear it.
13 MR. WALKER: Right, and I don't know if they are going
14 to try to play that one.
15 MR. LAUGHRUN: It's a videotape, Your Honor.
16 THE COURT: Videotape.
17 MR. CONRAD: With an audio portion.
18 MR. WALKER: It is not any good to look at or listen to
19 really, but, I mean, go ahead.
20 MR. LAUGHRUN: There is a remorse factor in it.
21 MR. WILLIAMS: To clarify for the Court what we are
22 talking about, we are interested in introducing the only
23 videotape that's ever been made in this case. There is only one
24 videotape, and that deals with the Tony Rice interview on
25 June 25.
622
1 THE COURT: What's wrong with it, can't see it, too
2 dark?
3 MR. WILLIAMS: You can see -- no, there is nothing wrong
4 with it visually, Your Honor. It has -- during some of it, it's
5 difficult to understand what the defendant is saying. But you
6 can see it fine, and you can observe his demeanor or how he acts
7 and he's crying or whatever he's doing. It shows his demeanor
8 and it shows remorse and so on and so forth. The other tape is
9 an audiotape of Investigator Holl's June 28th confession, and we
10 want to introduce that. So those are the two items that we want
11 to introduce at penalty with regard to, at that time, what would
12 be remorse issue and possibly some other issues. And I now am
13 hearing that they at least don't have an objection to the
14 videotape, am I correct?
15 MR. WALKER: Well, the Rice interview, which is the
16 videotape that you can watch, and you guys wanted to put that in
17 during the guilt, during your guilt evidence my understanding
18 was, and I was just saying we don't object to that.
19 THE COURT: What about the third confession?
20 MR. WALKER: Well, we do object to that being put into
21 evidence at this point, because it would be hearsay evidence.
22 MR. WILLIAMS: We are going to offer both of those at
23 penalty.
24 THE COURT: Oh, I know that. They have no objection to
25 it at penalty.
623
1 MR. LAUGHRUN: No, they objected to it on the guilt.
2 They're agreeing, Judge, we can put the audiotape in guilt
3 innocence.
4 MR. WALKER: Right, the Rice interview, right.
5 THE COURT: That's the one you are talking about, the
6 audiotape of the third confession?
7 MR. WALKER: No, Your Honor, the third confession is
8 only going to be played during the next phase of this trial.
9 THE COURT: That's what I'm talking about, the penalty
10 phase.
11 MR. WALKER: Yes, sir. I'm sorry, I misunderstood Your
12 Honor.
13 MR. LAUGHRUN: And Judge, we've made arrangements to get
14 VCR and a TV, we did that this morning, to play the videotape.
15 We'll have somebody come set it up. It's not going to be as
16 professional as the government's stuff, but we are going to try
17 to get it done.
18 THE COURT: You're talking about the penalty phase.
19 Now, the third confession, they want to put that in, and you're
20 objecting to that?
21 MR. LAUGHRUN: At guilt innocence, they objected to it.
22 THE COURT: You are not objecting to it on penalty
23 phase?
24 MR. CONRAD: No, sir, because I think that --
25 THE COURT: That's what I understood.
624
1 MR. LAUGHRUN: Let me ask you guys this, we've got
2 Investigator Holl subpoenaed.
3 THE COURT: Well, you are not putting in anything today.
4 MR. LAUGHRUN: No, I know, but for penalty. He is in a
5 seminar. He is in a class in Monroe all next week. Can we do
6 it without calling him, or do you want us to call him as a
7 witness -- never mind, we will call him, that's okay.
8 THE COURT: So you don't object to them putting it in at
9 the penalty phase?
10 MR. LAUGHRUN: Right.
11 MR. CONRAD: Correct, we never have.
12 MR. WALKER: I'm sorry, Judge.
13 THE COURT: All right, gentlemen, I heard some good
14 arguments.
15 (End of charge conference.)
16 (Court in recess.)
17
18
19
20
21
22
23
24
25
Back to the Aquilia Barnette page
Back to the Huseby, Inc. homepage