1045
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 9th 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.
22 Suite 602
301 South McDowell Street
23 Charlotte, North Carolina 28204
24
25
1046
1 APPEARANCES: (Continued)
2 PAUL J. WILLIAMS, Esq.
Suite 801
3 301 South McDowell Street
Charlotte, North Carolina 28204
4
5 ---
6 (Charge conference held 2/6/98)
7 THE COURT: Good morning, everyone. We have passed out
8 the proposed verdict form to both sides. Is there any question
9 about that from the government side?
10 MR. CONRAD: No, sir.
11 THE COURT: How about the defense?
12 MR. LAUGHRUN: Judge, we reviewed that this morning when
13 we got here. We had some objections and you heard us on Friday.
14 THE COURT: All right, there is no changes other than
15 what we --
16 MR. LAUGHRUN: Other than what we objected to on Friday,
17 Judge, at this point we have no objections, if Your Honor
18 please -- well, other than the objections we previously made.
19 THE COURT: Okay, that's fine. We will have the
20 instructions for you I hope at the next break. We had some
21 numbering problems on the pages after we put some other stuff in
22 there.
23 As I understand it, each side wants three hours, that's
24 opening and closing, and you can divide it between the two
25 attorneys on each side any way you want to, and I guess we are
1047
1 about ready to go. Is everybody ready?
2 MR. CONRAD: Yes, sir.
3 THE COURT: Do we have 12 jurors? Call the jury.
4 (The jury returned to the courtroom.)
5 THE COURT: Good morning, ladies and gentlemen. I hope
6 all of you had a very pleasant weekend. Now, I have to ask you
7 the standard question one more time: Have any of you seen,
8 heard or read anything about this case over the weekend?
9 (Jurors shake heads.)
10 THE COURT: Anybody tried to talk to you about the
11 case?
12 (Jurors shake heads.)
13 THE COURT: Have you talked to anybody about the case?
14 (Jurors shake heads.)
15 THE COURT: Has anybody talked to you, I asked you if
16 they tried to, but has anybody talked to you about the case?
17 (Jurors shake heads.)
18 THE COURT: All right, it's a sunny day. I hope this
19 will be the last day except for your deliberations. You might
20 run over to tomorrow on that and maybe even longer, I don't
21 know, that's up to you.
22 Now, you remember when I told you in the very beginning
23 that the attorneys will sum up to you at this time what they
24 believe the evidence in this case has shown. The attorneys'
25 recollection of the evidence may be different than yours. If
1048
1 you think that it is, or if you feel that it is and you remember
2 the evidence differently than the attorneys, it's your
3 recollection that counts, not the attorneys'. Listen closely to
4 the statements of the attorneys on both sides, and they will
5 point out some things to you you may have overlooked or maybe
6 help you to recall them as you remember them. And as I say,
7 just listen closely to the statements.
8 Now, each side has a certain amount of time. I will
9 keep time on the attorneys. It's rather lengthy. I don't mind
10 telling you that, because it's a right lengthy bit of evidence.
11 So listen closely, and we will open with the government. The
12 government has the opening and closing arguments, because they
13 have the burden of proof on these issues. All right, the
14 government will open.
15 MR. WALKER: Thank you, Your Honor.
16 I have often wondered what it is that I would say to you
17 at this moment. I am humbled with the responsibility to stand
18 before you and to ask for justice on behalf of Donnie Allen and
19 Robin Williams. I am confident that if they were here, if they
20 could speak to you that, they would do a much better job than I
21 could ever do in asking for justice in this case. But they are
22 not here. We have their photographs, but they are not here, And
23 so I stand up on their behalf and I ask you for justice on their
24 behalf.
25 The defense attorneys in the case will argue for life.
1049
1 They will say emotionally charged statements like, choose life
2 over death. They will tell you that there's been enough death
3 in this case, choose life. They may try to get you to second
4 guess your decision. They may even try to hint at whether you
5 will be able to live with yourselves if you make the appropriate
6 decision in this case. I ask you when they make those
7 arguments, when they ask you for mercy for the one who has shown
8 no mercy, when they plead for the life of the one who
9 deliberately and viciously killed so that he could deliberately
10 and viciously kill again, ask yourself when they make those
11 arguments to you, are they really, are they really trying to get
12 me to follow the law in this case, are they really trying to get
13 me to do my duty in this case, are they really trying to get me
14 to honestly weigh the evidence as the evidence should be weighed
15 in this case?
16 This perhaps will be one of the most difficult decisions
17 you have ever made, but I submit to you that even though it's
18 difficult, it is necessary. I submit to you that days from now
19 when you may talk about this experience, you may think to
20 yourself, this was a horrible, painful expense that I went
21 through serving on that jury. But even though you will say that
22 it was difficult, even though you will say that it was a hard
23 decision perhaps, I ask you today, will you also be able to say
24 that you did your duty? I submit to you that based on the
25 evidence in this case and these two cold-blooded, cruel murders,
1050
1 that the evidence in this case overwhelmingly supports that the
2 defendant should be sentenced to die.
3 I want to go over with you briefly the process that you
4 will go through as to each of Counts 7, 8 and 11. I cannot
5 stress to you enough that this is a decision that you should
6 make based on the evidence and based on the law as Judge Potter
7 will instruct you on what the law is, and I trust that you will
8 make your decision based on those things.
9 I told you before that the government is seeking the
10 death penalty for each of Counts 7, 8 and 11. You will have to
11 consider the aggravating and mitigating factors as to each of
12 those counts separately and make your decision separately as to
13 each of those counts. There is a process, a step by step
14 process that you will have to go through that the Judge will
15 instruct you on, and I want to briefly summarize that process
16 with you.
17 You will first be required to find whether the defendant
18 was at least 18 years old at the time that he committed these
19 offenses. You remember back in the guilt phase we proved that,
20 the defendant even stipulated to that. I submit to you that you
21 will check yes to that question on each of the three verdict
22 forms.
23 The next issue will require you to consider the
24 defendant's intent at the times of the killings. The government
25 has to prove to you beyond a reasonable doubt one or more, only
1051
1 one or more of the following four things: one, did the
2 defendant intentionally kill his victims. I submit to you that
3 there is evidence beyond any reasonable doubt that he
4 intentionally killed his victims. I submit that you can check
5 yes to that question; two, did the defendant intentionally
6 inflict serious bodily injury which resulted in death; three,
7 did the defendant intentionally engage in conduct intending that
8 the victim be killed and/or that lethal force be used against
9 the victim which resulted in the death of the victim. I submit
10 that you ought to be able to answer based on this evidence yes
11 to two and three as well; and lastly, four, did the defendant
12 intentionally engage in conduct which the defendant knew would
13 create a grave risk of death and which conduct resulted in the
14 victim's death. Based on the evidence in this case, you will
15 answer yes to all four of those issues.
16 At that point, you will then consider the aggravating
17 factors, the statutory aggravating factors that the government
18 submits are applicable as to each of these counts. The
19 government will prove those to you and has proven those
20 statutory aggravating factors beyond a reasonable doubt. I will
21 in a few moments summarize that evidence with you.
22 Once you have found the existence of the statutory
23 aggravating factors, you will then look at and consider the
24 existence of any nonstatutory aggravating factors, and I submit
25 to you that the government has proven those to you beyond any
1052
1 reasonable doubt as well.
2 Once you reach that stage in your process, you will then
3 weigh those against any mitigating factors you may have found on
4 behalf of the defendant, and I cannot stress to you enough that
5 it's not a matter of numbers, it's a matter of weight. Ask
6 yourself before you give this defendant a life sentence whether
7 any of his mitigating factors really mitigate what he has done
8 to these two victims, ask yourself that.
9 As to Count 7, the government has proven the following
10 statutory aggravating factors beyond any reasonable doubt: one,
11 that the defendant killed after substantial planning and
12 premeditation to cause the death of Donnie Allen. The
13 government is going -- the Judge is going to instruct you on
14 what substantial premeditation and planning is, and I believe
15 that he will instruct you as follows: Planning means mentally
16 formulating a method for doing something or achieving some end.
17 Premeditation means thinking or deliberating about something and
18 deciding whether to do it beforehand. Substantial planning and
19 premeditation means a considerable or significant amount of
20 planning and premeditation above and beyond the minimum required
21 for the commission of the offense. And I want to talk to you
22 for a few moments about the amount of planning and premeditation
23 that the defendant put into his carjacking and killing of Donnie
24 Allen.
25 You see, the minimum amount of planning to commit a
1053
1 carjacking offense would have been just for him to walk outside
2 of his house out on West Boulevard with the first shotgun that
3 he had bought and carjack and kill someone, leave them there and
4 drive the car to Roanoke. But he didn't do it that way, he
5 didn't do it that way. That was not his plan. His plan was he
6 first bought the first shotgun and when he got it home, I submit
7 to you that he realized that he could not tape the flashlight to
8 the barrel of this gun. Think about the planning that is going
9 through his mind when he makes that decision. This gun could
10 not have a flashlight taped to it like the murder weapon,
11 because you have to pump this gun for it to work. And so he is
12 thinking in his mind at that point when he is out there at his
13 chosen destination to commit this murder that he needed the
14 flashlight, so he takes that gun back and he buys the second
15 murder weapon.
16 Think about the amount of planning, now, that is going
17 through his mind about taping the flashlight to the barrel of
18 that gun, then sawing off the barrel of that gun, and then
19 coloring the lens of that flashlight red. That alone, I submit
20 to you, is considerable substantial planning and premeditation
21 to cause the death or whoever it would have been who approached
22 that intersection at that time. Think about how he not -- he
23 didn't pick a car that was going up and down West Boulevard. He
24 had thought that out in advance as well. He wanted the darkest
25 intersection he could find, an intersection which at the time
1054
1 had no street lights, an intersection that was some several,
2 several feet away from his house and he walked to that
3 location.
4 Think about the planning that went into, he just didn't
5 want any old intersection, he wanted an intersection where it
6 would be dark and he could be secluded. That is substantial
7 planning and premeditation. He walked to that location with his
8 gun loaded, walking, walking, walking, thinking, thinking that
9 he was going to kill so that he could kill again. And when he
10 got to that location, what did he do? He secluded himself in
11 the high grass. And does he act immediately? No, he waits 30
12 more minutes, thinking again, planning again, who will be his
13 victim, which car will finally pull up to the red light that had
14 the driver's side window rolled down? That, my friends, is
15 substantial planning and premeditation.
16 He marched Donnie Lee Allen out of the car, off the
17 road, feet down off the roadway into the drainage ditch area
18 there where he shot him three times from less than 5 feet and
19 then he dragged the body up into the woods to conceal the body.
20 Those are all steps that he took. That was his plan, and that
21 was the plan that he executed. That was plan that he came up
22 with, and that was the plan that he executed.
23 The second statutory aggravating factor that the
24 government has proven to you beyond any reasonable doubt as to
25 Count 7 is the statutory aggravating factor of pecuniary gain.
1055
1 The Judge will read to you the definition of pecuniary gain, but
2 I submit to you that the government proven beyond any doubt that
3 the defendant randomly killed Donnie Allen for two reasons: the
4 car, that's the expectation of pecuniary gain, and his wallet
5 and money, the expectation of pecuniary gain. He killed a
6 complete stranger to get that car and to get the money that
7 person might have in their wallet in case he might need it for
8 gasoline. That is killing for pecuniary gain, and I submit to
9 you that killing Donnie Lee Allen for pecuniary gain after this
10 amount of substantial planning and premeditation outweighs any
11 mitigating factor you could possibly find on behalf of this
12 defendant. That alone justifies a sentence of death in this
13 case, and I ask you to do that as to Count 7.
14 The government will also submit to you and we have
15 proven to you beyond any reasonable doubt the nonstatutory
16 aggravating factors. Future dangerousness, and I ask you to use
17 your common sense when you consider whether the defendant is a
18 danger in the future. You know, Dr. Cunningham came in here and
19 he spent some 15 or 16 hours with the defendant and he wants you
20 to believe that he knows exactly what the defendant will or will
21 not do in the future. What does your common sense tell you
22 about that? You think the defendant may have been on his best
23 behavior when he met with his doctors? Don't you think he was?
24 Is it some big deal that he has behaved himself in prison while
25 awaiting these charges? Don't you think he behaved himself in
1056
1 prison while awaiting these charges so that he could tell you
2 that he behaved himself in prison while awaiting these charges?
3 Don't get that -- don't give that evidence any weight that
4 Dr. Cunningham gave you. Use your own common sense.
5 What would Natasha Heard say if you asked her if the
6 defendant is a danger in the future? Remember, she is the girl
7 that testified under oath. She said, I've blocked so much of
8 this out because, quote, I've just been through so much. What
9 would she say if she had to answer the question about the
10 defendant being a danger in the future?
11 What would Crystal Dennis say if you asked her, what
12 would her two- and five-year-old children say, the two- and
13 five-year-old that inflicted -- beaten up by the defendant in
14 these photographs? If you had to ask them if the defendant was
15 a danger in the future, what do you think they would say?
16 What do you think the witnesses would say if you asked
17 them who saw the defendant holding a knife to the throat of
18 Alesha Chambers? They would say, of course this man is
19 dangerous, and I submit to you that we have proven beyond any
20 reasonable doubt that he is dangerous and that he will be a
21 danger in the future.
22 I want to now turn your attention to Count 8. Count 8
23 also deals with the murder of Donnie Lee Allen, but you will
24 also have to reconsider and refind the existence of the
25 statutory and nonstatutory aggravating factors just as you had
1057
1 in Count 7. You will reconsider those issues again, and I
2 submit to you that you can use the same process that I just
3 explained to you and that you should be able to find beyond any
4 reasonable doubt that as to Count 8, the following two statutory
5 aggravating factors have been proven beyond any possible doubt:
6 substantial planning and premeditation and pecuniary gain.
7 Those statutory aggravating factors have been proven as to Count
8 8 and I submit outweigh anything you could possibly find about
9 this defendant in mitigation.
10 I now want to turn your attention to Count 11 and the
11 statutory aggravating factors that are applicable, which the
12 government has proven are applicable as to Count 11. First is
13 substantial planning and premeditation. There has never been a
14 murder that was more thoroughly planned out than this
15 defendant's cold-blooded murder of Robin Williams. This plan
16 and his intent to kill her started perhaps with he left her
17 apartment when he moved back to Charlotte, but it for sure
18 started the night that he called her and he heard Bennie Greene
19 in her apartment. I told you before in the guilt phase that the
20 fuse at that point was lit and this defendant was on a one track
21 mission, and that was to kill Robin Williams.
22 His intent to kill her, his plan to kill her started way
23 back even as he drove up to commit the fire bombing. You can
24 consider the fire bombing as his intent to kill her. You can
25 consider that as substantial planning and premeditation to cause
1058
1 her death. Think about this defendant yelling "Die, bitch, die"
2 as he threw that fire bomb into her apartment. That was his
3 intent was to kill her. And when that first attempt did not
4 work, what did he do? He waited, he waited. What did he wait
5 for? For her to get out of the burn center, that's what he
6 waited for.
7 He wants you to believe that he was at home waiting to
8 be arrested, but do you really believe that? We have proven
9 that he was in Roanoke stalking Robin Williams, leaving notes on
10 her car. The lady from Camelot even told you that she saw him
11 there in Roanoke a couple of weeks before the fire bombing and
12 that he seemed fine. This defendant would have you believe that
13 he was at home, depressed, waiting on the police to arrest him.
14 Does your common sense tell you that's true when we know we have
15 proven to you that he was in Roanoke stalking her, leaving notes
16 on her car which her brother found? He testified to you about
17 those things.
18 Think about the defendant, after killing Donnie Allen,
19 driving three and a half hours to Roanoke, Virginia to finish
20 the job that he didn't finish when he did the fire bombing.
21 What do you think is in his mind as he makes that drive? He's
22 thinking, he's planning, he's premeditating, well above and
23 beyond even substantial planning and premeditation. We have
24 proven that as to Count 11.
25 The second statutory aggravating factor that the
1059
1 government has proven as to Count 11 is grave risk of death to
2 more than one person other than the homicide victim. In other
3 words, the government has proven to you that not only did he
4 kill Robin Williams, but during the course of killing Robin
5 Williams, he created a grave risk of death to I submit to you
6 three other people. Who were those three people? The first I
7 submit to you is Bertha Williams, the second is the grandchild,
8 the eight-month-old grandchild that she had in her hands when
9 the defendant first confronted her and pointed the shotgun at
10 her and said, where is Robin, and the third person that was in a
11 grave risk of death is Sonji Hill, the neighbor that was outside
12 on the phone.
13 I want to read to you what Ms. Williams said on the
14 witness stand. I got up around 6:00 o'clock, came downstairs.
15 She was -- we went out on the porch. We went out on the porch
16 and sit and wait on my grandbaby. She was supposed to have been
17 there at 6:30, she was late. So I was reading the paper. After
18 she came, I went on back inside, sat her down in the den in
19 front of the TV. She was eight months old. I went in the
20 kitchen and made a batch of brownies, put those in the stove and
21 it was about 7:00 o'clock. I remember looking at the clock,
22 because I had to time my brownies.
23 And after I put the brownies in the stove, I walked in
24 the den and sat down and I heard a big bang, and I said, God
25 Almighty, my stove must be blowing up. I didn't know at the
1060
1 time. Well, I got up and I looked and I sat back down and heard
2 a bang again. Well, I didn't get up that time. Then I heard
3 another bang, and I got up and looked. And as I said to myself,
4 somebody must be shooting at my door, by the time I turned
5 around, Robin was at the bottom of the steps and she said, Mama,
6 what is it? And I said, I don't know, somebody is shooting at
7 the door. And I said -- I picked up my baby and stepped out the
8 front door and looked around, but I couldn't see the back door.
9 And as I said, I don't know what it is, Robin, it must be Mark.
10 And she started turning around and around.
11 Think of the fright and the absolute terror she had at
12 that moment, after having endured those grafts at the burn
13 center, at home where she is supposed to be safe with her
14 mother, she realizes at the point that Mark has come back to get
15 her, this defendant has come back to finish the job and kill
16 her. And Robin is in hysterics, turning around and around in
17 circles, asking her mother, Mama, what should I do? This is
18 what Ms. Williams said she told her: And I said, I don't know,
19 baby, I said, run, just run. And as I was standing in the door
20 holding my grandbaby, out the door she went. And when I turned
21 around, there was Mark looking at me, at my face. He had that
22 gun in his hand and he did like that, and she indicated how he
23 held the gun at her, and he it this way. And I said, Mark,
24 don't shoot my baby. He said, where is she, and I said, she's
25 gone running, leave her alone. And out the door he took.
1061
1 I submit to you we don't have to prove that he intended
2 to kill Miss Williams, we don't have to prove that to you. What
3 we do have to prove to you that was the defendant in such a mind
4 set at that point that he was willing to kill Robin Williams and
5 whoever got in his way was in a grave risk of death? Of course
6 they were. You think about this defendant, armed with this
7 sawed-off shotgun, confronting Mrs. Bertha Williams in the
8 hallway of her home while she held that eight-month-old baby,
9 pointing the gun at her saying, where is Robin? That is a
10 substantial risk, a grave risk to Ms. Williams and that
11 eight-month-old grandbaby.
12 I said, Mark, leave her alone. I said, you have already
13 disfigured her for life, leave her alone. And he was just
14 pulling her by the hair and he said, I'm going to kill her. He
15 said, I'm going to kill you, I'm going to kill myself. And then
16 he started talking about the police. He started talking about
17 some attempted murder. Do you think that the defendant, when he
18 had that shotgun in his hand, when he told Ms. Williams, I'm
19 going to kill you, that put her in a grave risk of death? You
20 should find that beyond any reasonable doubt in this particular
21 case.
22 Think about what happened next. I walked across the
23 grass. They were stopped at the utility box, and I walked
24 across the grass, walked over to Robin and got her by the arm.
25 And Ms. Williams has her daughter by the arm at that point, and
1062
1 it's at that point that the defendant shoots at Robin with a
2 sawed-off shotgun. Did that put Ms. Bertha Williams in a zone
3 on danger that she might have been killed as well? Of course it
4 did, of course it did. Two witnesses told that you Ms. Williams
5 was right beside her. Mrs. Williams told you that Robin fell at
6 her feet when she was shot, when the second shot was fired.
7 Sonji Hill told you that Ms. Williams was close enough to touch
8 her daughter at the time her daughter hit the ground.
9 Think about what went through Sonji Hill's mind when she
10 is on the phone that morning talking to a coworker, minding her
11 own business, and she hears the shots. Mr. Conrad asked her
12 about that. She said, I called 911. Why did you do that?
13 Because Ms. Williams asked me to. What did you do next, what
14 did you see next? Well, I said they passed me, she came to the
15 bottom of the steps, and then once he caught her over the hill,
16 they came back down and they were parallel to me. And then he
17 asked her the location of her apartment.
18 Then Mr. Conrad asked Sonji Hill, and what did you see
19 when you were on your porch? From my porch, I could have turned
20 to my right and he had brought her back parallel to me. He had
21 her by her hair and he was dragging her back down. Listen to
22 this answer. Did there come a time when you called 911?
23 Answer, yes. When I was on the phone with 911, I guess he
24 realized that I was calling. And I was asking what was his
25 name, what was his name, and then when he realized that I had
1063
1 the phone in my hand, he pointed the gun up to me and told me if
2 I didn't hang the motherfucking phone up, that he was going to
3 shoot me, and then I hung up the phone. Do you think she was in
4 a grave risk of death? Of course she was, of course she was.
5 What was your reaction to that? My reaction was I hung the
6 phone up and went in my home. Why did you do that, did you
7 think he was going to shoot you? Yes, I did. Think about
8 those -- think about that evidence when you decide whether the
9 government has reached its burden of proof. I submit to you
10 that we have as to proving that statutory aggravating factor.
11 The nonstatutory aggravating factors as to Count 11 have
12 also been proven beyond a reasonable doubt, future dangerousness
13 of this defendant, the impact of the murder on the Williams
14 family. And you will also consider that as a nonstatutory
15 aggravating factor as to Counts 7 and 8, and that is the harmful
16 impact of these horrible murders on the Allen family as well.
17 And the law allows you to consider those harmful impacts, and if
18 you conclude that we have proven that beyond a reasonable doubt,
19 you can give that aggravating factor as much weight as you want
20 to give it, and I submit to you that you should give it a
21 tremendous amount of weight.
22 The defendant put up Dr. Sultan, the first expert in the
23 defendant's case. Do you really believe that Dr. Salton came in
24 here as an objective credible witness, or do you think that she
25 has an agenda, that she already has her mind made up in advance
1064
1 about how she is going to testify in a death penalty case? Of
2 course she does. You shouldn't give her testimony any weight at
3 all.
4 And then there was Dr. Halleck, and I'm sure Dr. Halleck
5 is a nice person and he seemed like a nice person, but I submit
6 to you he didn't do anything on this case. I respectfully argue
7 to you that he didn't do anything on this case. I asked him,
8 you indicated that you reviewed his medical records, is that
9 right? That's correct, his high school records and employment
10 records, yes. And I believe you also reviewed autobiographical
11 information prepared by Mr. Barnette. Then I asked him, did you
12 review the discovery in this case? Answer, I don't think I
13 did. Question, you didn't look at any of the arrest reports by
14 members of the Charlotte-Mecklenburg Police Department? He
15 answered, I did review the confessions. And the only thing he
16 has reviewed is what the defendant has told him is what it
17 amounts to.
18 And then I said, but my question specifically is, did
19 you review any other police documents other than the statements
20 the defendant made to the police? And he answered, I don't
21 believe so, I don't believe so. This is a person who is telling
22 you under oath that he knows this defendant yet he doesn't
23 bother to really research what the defendant has done in this
24 case. Is that somebody you can rely on in reaching your
25 decision? I said, did you speak to Tasha Heard? No. Did you
1065
1 speak with Crystal Dennis? No. How about Ms. Dennis's two
2 children? No. Did you speak to Alesha Chambers? No. How
3 about Jasper Chambers? No. Did you speak with an individual
4 named Brian Ard about the defendant? No. Did you ever speak
5 with Derrick Barnette about the defendant? Here was his
6 answer: We shared about two words while waiting for my
7 testimony, but we never really discussed the defendant.
8 Question, so you never discussed with Derrick Barnette the
9 allegations that the defendant made about him? Answer, I never
10 discussed it with him, no.
11 Then I asked him this question, and I ask you to think
12 about this over and over again when you make your decision in
13 this case. I said, Dr. Halleck, question, you made no mention
14 of Donnie Allen in your report, why is that? Answer, there was
15 no particular reason. One reason is I had no way of trying to
16 explain what happened there. The reason he left Donnie Allen
17 out of his report is because he can't explain it, and I submit
18 to you that they can't explain it either. And it can be
19 explained only by one reason, and that is this defendant decided
20 in his mind that he would kill a complete stranger so that he
21 could go and kill again. You remember what Dr. Halleck said
22 before you decide to give this defendant a life sentence.
23 I want to make a couple of things as perfectly clear as
24 I know how to make them in my concluding remarks to you. I want
25 you to see this defendant for how he really is, and what he is
1066
1 is a combination of liar and killer, and that's the most deadly
2 combination. He has lied to and manipulated people's emotions
3 his entire life, and he now is attempting to do that to you.
4 This is the defendant who hoodwinked his probation officer, his
5 probation officer thinking that he was living here when, in
6 fact, he was in Roanoke, Virginia living a separate life. He
7 lied to his probation officer. I submit to you he will also lie
8 to you.
9 This is the defendant who Brian Ard said was the best
10 talker, the best interviewer he had ever seen. He fooled Brian
11 Ard; don't let him fool you, don't let him fool you. This is
12 the man, this is the defendant who doesn't even lose his
13 appetite at lunch when he talks about killing a stranger in cold
14 blood. What type of punishment is appropriate for a person such
15 as that? I submit to you that there is only one form of
16 punishment and that based on the law and the evidence in this
17 case, that is a sentence of death for each of Counts 7, 8 and
18 11. Thank you.
19 THE COURT: Mr. Conrad, are you going to talk now?
20 MR. CONRAD: In rebuttal, yes, sir.
21 THE COURT: Defense?
22 MR. LAUGHRUN: Thank you, Judge Potter.
23 I like Thomas, and I've known him a long time. I've
24 wondered what would I say to you folks, and I am inadequate to
25 say it and Mark deserves better and I apologize for that. I've
1067
1 been doing this 18 years. Paul has been doing it 30 years. Am
2 I scared to death? You bet, and I apologize for that. A man's
3 life is on the line, and I apologize if I don't come across as
4 eloquent as Mr. Walker does. But let me start off by telling
5 you there are absolutely no excuses for what Mark did. And what
6 Paul Williams and I talk to you about this morning is not
7 offered as an excuse, it's offered to try in some way to give
8 you a reason for what happened.
9 What do you say to these folks sitting out here, the
10 Allen family, the Williams family? I don't know. This is their
11 time again to grieve for their loved ones. What do you tell
12 them about the pain, the sorrow, the anger that they must feel?
13 I don't know what you tell them, I don't have an answer for
14 that. How do you explain the lack of birthdays and Christmases
15 with the family members being gone? It's natural to have those
16 feelings, folks, but your verdict can't be based on that,
17 because Judge Potter will tell you your verdict can't be based
18 on sympathy, it can't be based on anger or hate for the
19 defendant, it can't be based on that, and if you do that you
20 violate your oath.
21 January 29th was a Friday afternoon that you folks heard
22 from the Williams family and the Allen family up there, and I
23 can tell you from sitting at this table right here with Paul,
24 that was the toughest day of my professional life and I'm sure
25 Paul's, too. When you hear these folks get up here and tell you
1068
1 what a loss they've suffered, you saw the video of Christmases,
2 what good families those folks come from.
3 We don't have Christmas videos, we don't have family
4 pictures after age 15 showing a happy, stable childhood. We
5 don't have the Allen and Williams closeness. We don't have
6 that, because it's not there. Don't you know we would have
7 liked to put up Christmas past for the Barnette family? Instead
8 we put up evidence that the house reeked of alcohol. That's
9 what Mark grew up with, not a warm, nurturing, loving
10 environment like Donnie and Robin grew up in, we don't have
11 that, and that's important. All of you know a home life is
12 stability, role models for parents, that's important. We don't
13 have it. Is that an excuse for what happened? Oh, no. Is that
14 an excuse to take these two people's lives? Absolutely not. Is
15 it a reason? Sure, it is.
16 What do you say to the Barnette family sitting here?
17 They are victims, too, but not near to the magnitude, not near
18 to the extent and not near to the loss that the Allen and
19 Williams families have suffered, but they are victims, too.
20 Their loved one is going to leave federal prison in a coffin,
21 period. The only question is when, when.
22 This case is about punishment. Paul Williams told you
23 the first day he had opening statements that Wednesday
24 afternoon, Wednesday morning. He said, we are not going to
25 contest much of the government's case, and we haven't, except
1069
1 now, except now. What good will become of executing that young
2 man sitting there? None. This case is not about an eye for an
3 eye, a tooth for a tooth. It's not about vengeance, it's not
4 about revenge, it's about punishment. And if executing Mark
5 Barnette by putting him in the electric chair or the gas chamber
6 or lethal injection or whatever would bring back these two
7 folks, don't leave the jury box, vote right now. But it won't,
8 it won't. So your verdict can't be based on vengeance, it can't
9 be based on anger or revenge, because if you do, you lose and
10 violate your oath.
11 You have spoken. You have said that the government's
12 proven to me individually and as a group of jurors that Donnie
13 Lee Allen and Robin Williams died at the hands of Mark
14 Barnette. Paul Williams said it better than I could on
15 January 29th, he says there's been enough death, and he is so
16 right, he is so right. You have already sentenced Mark Barnette
17 as we said earlier to die in federal prison. The question is
18 when, and that's what you have to decide today or tomorrow.
19 Now, let's talk about what life without the possibility
20 of release means, and all of you know what it means. This isn't
21 State Court, folks, you don't get a life sentence and get out in
22 20 years. You've heard the Senior Judge of this district tell
23 you what it meant, it means he will die in federal prison. He
24 is away from society, he is away from the everyday people, he is
25 away from working people, he is away from the good families, he
1070
1 is caged in federal prison for life, no hope of release.
2 There is a sign at one federal prison that reads,
3 abandon hope all ye who enter, and that prison is hell. And
4 that's where that quote comes from, abandon hope all ye who
5 enter, and that's where he is. He has no hope, he has no hope
6 of going to McDonald's, walking the streets, watching a ball
7 game, eating what meals he wants, what clothes to wear. It's
8 gone. Does he deserve that? You bet he does. This case is not
9 about excuses. That's what he -- he deserves to think about
10 Robin and Donnie every day of his life and of what he did to
11 them and the pain he's caused their families. He deserves to
12 think about it, because isn't that the worst punishment of all?
13 It's like going to a dentist and hearing the drill. You think
14 it's worse when you think about it over and over and, God, I've
15 got to get my tooth filled, whatever, over and over you think
16 about it. Every day of his life when he looks out and sees the
17 sun through these windows, he'll never breathe that fresh air,
18 and he doesn't deserve to, a constant reminder of what he has
19 done.
20 Why should you do that? Thomas Walker gave an excellent
21 argument, and I'm sure Bob Conrad will give you an equally good
22 argument for the government. But let's think about this, when
23 do you learn your values and morals and how you view people?
24 You learn that at ages 13 through 15, the formative years,
25 teenage years. Mark's mom and the man he thought was his father
1071
1 divorced, separated at 13, divorced at 15. And you heard what
2 Paul Williams told you in his opening about what his father told
3 him at age 15, what he -- number one, stopped coming around,
4 two, stopped paying child support, stopped being there for him.
5 When the blood tests came back, he was not his father, he said,
6 it's like your girlfriend having babies with another man.
7 Now, let's think about that. You are 13, your mom and
8 dad divorce, dad still stays around a couple of years. At 13,
9 he comes home and said, Mark and Mario, let's go out to dinner.
10 And then the bottom falls out. Be suspicious of women, is what
11 he is telling Mark, you can't trust what they do. And these are
12 the formative years, folks. That's his role model, Derrick
13 Barnette. And up until that time, did Mark have any problems at
14 all? No. No juvenile record, no problems at school, home life
15 wasn't perfect. But that's what happened. That's why he can't
16 deal with women. Be suspicious is what Rick told him.
17 And you heard what Faye Sultan -- whether Thomas Walker
18 or Bob Conrad liked Faye Sultan or not is not an issue here.
19 What she told you was she is an expert in domestic violence.
20 She told you domestic violence is learned behavior. You
21 don't -- you are not born in this world mean, you are not born
22 in this world abusive to women, men, children, whatever, you are
23 not. But he saw it on a regular basis. He saw it every day of
24 his life. You heard Sonia tell you about that, said that Rick
25 came home one day in front of Mark, what he did do? He hit her
1072
1 in the head with a hammer. I'm sure that didn't go on in the
2 Allen and Williams families. But it was a day, it was a fact of
3 life that Mark lived with every day.
4 He told Tasha Heard about it, and you heard Mr. Williams
5 ask Tasha Heard those questions. We would sometimes cry in the
6 closet for what we had been through. That's not normal
7 behavior. You heard Tasha Heard tell you about what they had
8 been through in their lives. Both talked about the beatings
9 that Mark witnessed. Mark saw domestic violence live and in
10 person. He didn't read about it on -- see it on TV, he didn't
11 read about it in the paper. He was there, and he saw it and he
12 lived it, and is that an excuse for what happened? Absolutely
13 not, but it's a reason things happen.
14 Why did Mario turn out so good? You heard Mario
15 testify, and the reason was that Mark protected his younger
16 brother. Mark was the adult for Mario's purpose. He protected
17 his younger brother. The picture shows it; that sums it up
18 right there.
19 You heard Sonia tell about the beatings Mark endured.
20 What did she tell you last Monday morning on that stand up
21 there? She said, it got so bad I went downstairs and shut the
22 door (indicating). Not with your hand, not with a switch, but
23 with a belt. For what? For making a bad grade. That young man
24 lived domestic violence. He had no chance, folks, because in
25 the formative years, the man he thought was his father is gone
1073
1 through a separation. Okay, people get through separations and
2 divorce. But then two years later for him to say, I'm not your
3 dad, I still love you, son, I'm not going to pay child support,
4 I'm not going to come see you, he is gone. And then there is
5 Mark left with the home situation that you heard about.
6 You read Tina Davis's statement about home life. Tina
7 is the one who's got cancer, dying as we speak. You hard her
8 statement about the family.
9 Mark Barnette is abusive to women. All of the evidence
10 shows that. Faye Sultan told you that. She told you that
11 domestic violence is in generations, it's in the family. Mark
12 had two grandmothers murdered. How much more domestic violence
13 can you have? Crystal Dennis, no excuse for that. All domestic
14 related. Tasha Heard, domestic related. Alesha Chambers,
15 domestic related. Anthony Britt, the man who was killed in
16 Newnan for picking on the wrong person that Mark had an
17 altercation with, domestic related. Joanna Baldwin who
18 testified last week, sexual harassment at work. Again, it goes
19 to the root of the problem. Mark Barnette has never, for
20 whatever reason, formalized or come to grips with or learned
21 about his relationships with females. Does that fit in the
22 DSM-4 analysis? No, but it's a reason for what happened. Is it
23 an excuse? Absolutely not, because there are no excuses. You
24 don't have to worry about that in federal prison, there are no
25 coed federal prisons.
1074
1 Why do you think he does so well in federal prison?
2 Because there is not that pressure of those relationships
3 there. And there is no evidence at all beyond a reasonable
4 doubt, the greater weight of the evidence, that Mark's
5 suspicions were true, but we believed them to be true. You
6 don't need to kill him for that. You can isolate him away in
7 society.
8 Thomas Walker doesn't like Seymore Halleck. Let's talk
9 about that for a minute. Dr. Halleck is the, my words, older
10 grandfatherly like gentleman who testified for us last week.
11 Paul Williams asked him, Dr. Halleck, is there any bias in those
12 reports? He gave you the most honest answer, and Paul is going
13 to talk to you about that in a few moments. There is bias in
14 every report, Mr. Williams. That's the most honest answer from
15 any expert. And he didn't get up here and say, well, yes, I'm a
16 psychiatrist and I've made this diagnosis that Mark Barnette is
17 mentally ill such that he didn't know what he was doing and he
18 was insane. That's not what happened. Dr. Halleck got up here
19 and told you just like Dr. Sultan did that he does not fit the
20 DSM-4. You know, that's the big red book that Dr. Duncan,
21 Cunningham and Salton talked about, the Bible if you will of
22 psychology. He doesn't fit that analysis.
23 Now, if those experts were going to get up here and give
24 you as Bob Conrad probably may call a dog and pony show, why
25 wouldn't they come in here and say he is so mentally ill, he
1075
1 didn't know what he was doing at this time. That's not what
2 they told you, folks. You heard their testimony. They told
3 you, yes, he was suffering some symptoms, but he was not insane
4 at the time this happened, he did not know right from wrong.
5 The most important thing you need to glean from that testimony,
6 folks, is Dr. Halleck told you about the illness he suffered and
7 that he would do well in a federal prison.
8 And let's think about that for a minute. Mark's
9 problems deal with women. You take alcohol from an alcoholic,
10 you have no problem. You take drugs from a drug addict, you
11 have no problem. You eliminate slot machines for a gambler, you
12 eliminate the problem. You eliminate the female sides that Mark
13 Barnette's been exposed to, you eliminate the problem, and
14 that's what life in federal prison will due.
15 Now, why else should you give Mark Barnette life? On
16 your verdict form that you are going to get, there is a blank
17 space that says you individually as a juror can decide there is
18 a mitigating factor that ought to be considered, and let me tell
19 you about one that we've proven beyond any doubt. Two people
20 are dead because of the negligence of the Charlotte police
21 department. Is that an excuse for what that young man did? No,
22 absolutely not, but it's a reason. On Defense Exhibit 10, on
23 May 2nd, '96, our police department sent to Roanoke, Virginia a
24 note, a telex, 3413 West Boulevard Charlotte is not a valid
25 address. What other evidence do you need that it is?
1076
1 We know that on January 10th, '93, they answered the
2 first call for service out there. You can see all of the calls
3 for service. They answered at what address? 3413 West
4 Boulevard. And you know that, you know that beyond any
5 reasonable doubt and that's not our burden. You know they've
6 been out there. You've seen the pictures of the mailbox that
7 was still out there then. Is that an excuse for what happened?
8 No, no and no. Is it a reason to give him life in prison?
9 Sure, it is, because if somebody else had done their job, the
10 evidence was Mark moped around the house during that period of
11 time. He wasn't there 24 hours a day, 7 days a week.
12 But if you think about this, he is wanted for this fire
13 bombing incident that is horrific. One of to the telexes talked
14 about he is wanted for two counts of attempted capital murder.
15 Instead of doing DWI check points and speeding check points,
16 don't you think our Charlotte police should have sat out there
17 and waited on the house to arrest this man, and that is
18 something that you have a duty the consider, and they dropped
19 the ball. Is that an excuse for what Mark did? Again, folks,
20 no, but a reason.
21 You know Thomas Walker spent 31 minutes talking to you
22 about substantial planning and planning and planning. If it was
23 such a good plan, why did he come turn himself in, why didn't he
24 keep going? Would he have been caught eventually? Probably.
25 But not only did he drive back to Charlotte. He didn't park it
1077
1 in a place open to the general public, he parked it behind a
2 shopping center, walked home, and his mom was there when Dick
3 Womble the FBI agent called and said, Mark is here.
4 Now, let's think about that for a minute. Here is
5 someone we know has been wanted on all of these fire bombing
6 counts, someone who has committed two murders. Does our police
7 department again send a blue and white zone car out there ASAP?
8 Of course not. They had so much confidence in Sonia Barnette
9 and her ability to handle her son at that point because of her
10 cooperation with them, Dick Womble got in the car and drove out
11 there, gave him some time with his family, and he turned himself
12 into the police. Is that a mitigating factor? Sure, it is. Is
13 it is an excuse for what happened? Absolutely not.
14 Not only did he turn himself in, he confessed three
15 times, and he told them where Mr. Allen's body was, drew them a
16 diagram. Are all of those mitigating factors? Sure, they are.
17 Do they take away from the bad things that he did? No. Is it
18 an excuse for what he did? No. But he made the U.S. Attorney's
19 job and the police department's job easy. He didn't hide behind
20 a lawyer and say, I want a lawyer before I talk to you, I want
21 to talk to somebody about my rights. All of the evidence was he
22 confessed three times. And we played the tape for you, the
23 government didn't play it, we played the tape for you last week
24 because we wanted you to see the remorse, the crying that he
25 went through.
1078
1 Thomas Walker made a big deal a few minutes ago to say,
2 well, when he was talking with Duncan and Grant, he still ate
3 his cheeseburger. Folks, you tell a version of what happened so
4 many times to so many people, think about the number of times he
5 had to tell this. Don't put any weight in that emotional
6 argument, he is trying to get your emotions all riled up.
7 Evidence also is that when Mark was in Knoxville,
8 Tennessee he prayed for the victim's family, also that he told
9 Investigator Womble, when you talk to the Allen family, tell
10 them I prayed for Donnie. What do you make of that? I don't
11 know. Is that the sounds and the signs of a cold-blooded,
12 hopeless, let's execute him, murderer, or does it show somebody
13 who has got some compassion and a heart, as small as it might
14 be? Sure, it does, sure, it does.
15 The area is, why should we give him life? Folks, when
16 Mark was in jail in Newnan, Georgia and here in Charlotte, he
17 made a perfect adjustment and I calculated 587 days as of
18 today. Now, in those 587 days, haven't we all done several
19 things that your boss doesn't like, that your wife, your
20 husband, your boyfriend, your girlfriend doesn't like? And they
21 have said, you were late, you talked back to someone, you talked
22 back to your employer, you were late for work? Sure.
23 And he is not in jail, folks, with choir people or
24 people that sing in the Baptist church choir. He is in jail
25 with the worst of the worst. And no jailer from Butner or the
1079
1 Mecklenburg County jail came in here and told you, oh, yeah,
2 Mark gets in fights all the time over there, he is disrespectful
3 to the guards, he won't do what we ask him to do. And again, if
4 you are in jail with your best friends, that will happen. If
5 you are in jail with people you go to church with, that will
6 happen. But he is in jail with the worst of the worst and not
7 one single writeup, not one single infraction, not one complaint
8 about his conduct, not only here but the federal correctional
9 facility, a federal prison. But, in fact, he did so good there,
10 they moved him out of the seclusion area. That's the type of an
11 adjustment to jail that that young man can make, and you know
12 why? Because there is no female relationships to deal with,
13 there are none. And when you take away the disease, you take
14 away the problem.
15 Mark's got two children, and I'm not about to tell you
16 he is a good farther to those children, he is not. He is an
17 awful father to those children. He didn't pay child support,
18 didn't sent them a card at Christmas, didn't send them a card on
19 their birthday. But one day those kids are going to want
20 answers. Tasha Heard told you about the difficulty she had
21 dealing with all this. They are going to want answers, and the
22 only person that can give them those answers is the man sitting
23 at the table, and if he is gone, he can't give those kids
24 answers to why. Why, Dad, why, Mark, why did you not have
25 anything to do with us, why did you desert us, Mark, why? Tasha
1080
1 can't answer those. That right there is something that you
2 ought to consider in deciding whether or not to execute that man
3 sitting there.
4 A reason to save his life, you heard Dr. Halleck, you
5 heard Dr. Cunningham. Let he tell you a little bit about
6 Dr. Cunningham. If you were facing heart surgery or eye surgery
7 or cancer surgery, you would want the best, and he is the best
8 at what he does. What you heard from him, and he didn't get up
9 here and tell you like Dr. Duncan did, and I'm going to talk
10 about him in just a minute, take my word for it. He said, the
11 numbers bear it out. Paul is going to talk to you about that in
12 a few minutes, and you know, Paul is right, the numbers did bear
13 out Mark Cunningham. You didn't hear the government come out
14 and say any stats that he used or anything of that was wrong.
15 In fact, most of his statistics were BOP, Bureau of Prison
16 statistics. And his goal in all of this was to say, I'm going
17 to do a risk assessment, and he said that Mark Barnette would do
18 fine in federal prison.
19 Bob Conrad took about a 5-inch binder and said, didn't
20 you testify in this certain case? I sure did. Nobody came in
21 and said his testimony in any of those other cases were anything
22 less than credible. So that's something that you can believe.
23 And Thomas is right, we are going to ask you for mercy.
24 What is mercy? Southern Baptists call mercy unmerited favor,
25 something you don't really deserve but you get anyway. Is there
1081
1 no glimmer of goodness in him? Mercy trumps justice, folks.
2 An old Greek saying says, you choose hope over despair,
3 compassion over retaliation and mercy over revenge. So yes, we
4 are going to ask you for mercy, because there is a glimmer in
5 that young man's life that doesn't need to be extinguished.
6 Let's talk about what the government is trying to show
7 you. In State Court, there is a jury instruction that talks to
8 jurors at the end of the case and it says, as a juror, you are
9 not to base your verdict on sympathy, bias or prejudice, you
10 have no enemy to punish, no sorrow to assuage, no friend to
11 reward and no anger to appease. These are emotional cases,
12 folks. There are potentially three deaths involved here. There
13 is the death of Robin and Donnie and the potential death of that
14 young man sitting right there. Don't let your sympathy for the
15 Allens and the Williams' decide this case. More has to happen
16 than just the convictions of two weeks ago. You are never, and
17 His Honor will tell you this, you are never required to impose a
18 death sentence, never.
19 The government sits there and tells you that he is a
20 future danger to society. Folks, there is no evidence that he
21 is future danger to society except form one person, Dean
22 Duncan. Dean Duncan, whose bread I eat and whose song I sing,
23 he gets his paycheck from the same place those two prosecutors
24 get their paychecks. And the evidence was that he got up here,
25 and you talk about hoodwinking in Mr. Walker's word, hoodwinking
1082
1 this jury, he told you in spite of the evidence introduced by
2 Mr. Williams, I work for Judge Potter. Folks, he was asked to
3 do a report by the government, and for him to get up here and
4 try to underscore his credibility saying he works for the Senior
5 Judge in this district, ought to make you look twice.
6 Would you buy a used car from him? Of course you
7 wouldn't. And you ought to look at that testimony for what it
8 is. It's bought and paid for testimony by a government employee
9 who got up here, and they can't say anything else about Mark
10 because that's not -- it's in controversy to the real experts,
11 so he comes in here and talks to you about a PCL-R report or
12 test that he is buying into. And Paul offered this article that
13 you can look at. It talks about how invalid and improper it
14 is. And it is such a bad test, it's not even in the DSM-4
15 psychology Bible.
16 Now, who knows what goes on up here, but don't you think
17 if it was such a reliable instrument, the publishers, American
18 Psychological Association or whoever writes the DSM-4, would
19 have put the PCL-R in there and say, look, use it, learn it,
20 it's got some restrictions, but use it. And that's all that
21 Dean Duncan could tell you about. And it's in controversy to
22 Dr. Sally Johnson, the head of psychiatry, a psychiatrist
23 herself at FCI Butner, came in here and told you, well, the
24 government didn't call her, and she gets her paycheck the same
25 place that Dean Duncan, Mr. Walker and Mr. Conrad get theirs.
1083
1 She came in here and told you that when he was there, he was a
2 model inmate and here's what he told me.
3 I noticed they didn't ask her about the PCL-R. Don't
4 you know why? You don't ask a question, you don't either like
5 the answer or you don't know what the answer is going to be.
6 And if it's such a reliable instrument and measure of
7 psychopathy, why in the world didn't they go out and hire some
8 independent psychologist and come in and tell you about it. The
9 burden of proof is on this table. Or is it because the only
10 person who buys into that is a U.S. penitentiary psychologist
11 based in Atlanta who would have no independent knowledge?
12 Wouldn't you want to hear from an independent person? Sure, you
13 would.
14 The government made a lot of points to try to tell you
15 that after Donnie was murdered at the drainage ditch at Billy
16 Graham and Morris Field, that he drug the body further.
17 Remember all of that testimony? We offered these photographs,
18 they didn't, and what it shows, folks, every red arrow is a
19 place where blood was found in Mr. Allen's Honda, 32 at my last
20 count, 32 places, about the clothes that the defendant wore, and
21 yet nowhere on there can they show you one drop of Donnie Lee
22 Allen's blood.
23 Why is that important? You heard Detective Bob Holl
24 testify. He said yes, they got Mr. Allen's blood, they got the
25 defendant's blood, and they have a serologist at the crime lab
1084
1 who can match it up. When I asked him, question, if they tried
2 to wipe it, talking about the blood, off, you'd still get traces
3 of it with the luminol process, is that right? That's correct.
4 Luminol, remember what he told you, when you spray something on
5 it to tell you if blood has been wiped off, and there is not one
6 speck of blood that they can show that was in Donnie's car, that
7 was his, on the defendant's clothes. So folks, don't buy into
8 this when Mr. Conrad said, well, he planned it so he drug the
9 body down there. There is no evidence of that, and the burden
10 of proving that is on the government beyond a reasonable doubt.
11 No DNA, none of that.
12 Let's talk about what the government contends is sexual
13 harassment at work. It's there. It's part and parcel of the
14 disease that Mark has, and the disease is he can't deal with
15 relationships with women. And you heard what Brian Ard said.
16 Brian, what kind of employee was he? Excellent worker, knew the
17 product. Any history of him being less than honest about
18 changes in the register, money being short, products, CD's,
19 cassettes being short? Absolutely not. He can't deal with
20 women.
21 Let's talk about this Alesha Chambers incident. You
22 heard about this, and the evidence is that she says that she was
23 raped by the defendant. I hope the government is not telling
24 you that our elected District Attorney's office is so busy that
25 won't prosecute a solid rape case. You saw the evidence, you
1085
1 saw it, it's in evidence. The DA rejected that case, two
2 officers. What does rejected mean? There is not enough
3 evidence to go forward with it. And don't you know why? Here
4 is a lady who after the defendant was raped -- raped her, her
5 version, says, I will meet you at the Motel 6 at 8:30 in the
6 morning for consensual sexual intercourse. Now, don't buy into
7 what she tells you. Did she have some problems with the
8 defendant? You bet, but they're not to the scope and magnitude
9 that the government contends they are.
10 The government told you that Mark does haven't a very
11 good probation record. Folks, he is not going to get probation,
12 he is not going to get probation. The fact that he's lied to
13 various people, the fact that he's lied on job applications, the
14 fact that he lied to get the shotgun, you will not see on the
15 aggravating sheet verdict form the defendant is a liar. You
16 won't see that.
17 Judge Potter is going to tell you what the law is.
18 Listen to those statements. He will tell you time and time
19 again, you are never required to impose a death sentence. The
20 burden of proof is entirely on this table. You are never
21 required to execute him.
22 You know, I thought last night I wonder what would
23 happen if Mark Barnette had a heart attack right now? How many
24 people do you think would rush to his aid to do CPR, mouth to
25 mouth, whatever, and do you know why that is? Because in human
1086
1 nature, we are taught to preserve life. You can consider that
2 when you decide what ought to happen. Is he the worst of the
3 worst that deserves elimination from society? You can do that
4 by giving him life without the possibility of release. Let him
5 think about what he has done the rest of his life.
6 I'm almost through, folks, and I'm scared to sit down.
7 I'm afraid if I sit down, I'll sit down and think of something
8 else that I ought to tell you about, something that touches a
9 nerve in your heart that says -- and if I keep talking, maybe I
10 will do that, but I can't. And it's tough for you folks. I
11 don't have to make the decision, you folks do.
12 And let me apologize to you if Paul or I either one have
13 said anything to any witness or voir dire'd any of you jurors
14 that we offended. I apologize, hold it against us, don't take
15 it out against him, he deserves better.
16 Let me leave you with a quote. It's a quote out of the
17 New Testament. Set before you this day are life, death,
18 blessings and cursings. Choose life and everybody will be
19 served. Thank you.
20 THE COURT: Members of the jury, we will take a recess.
21 You have no objection to that, do you?
22 MR. WILLIAMS: (Shakes head.)
23 THE COURT: Take a recess at this time. Do not discuss
24 the case among yourselves while you're out, please, it is not
25 over yet. Thank you.
1087
1 (The jury left the courtroom.).
2 THE COURT: Are the marshals going to need to take the
3 defendant downstairs?
4 MR. LAUGHRUN: No, sir.
5 THE COURT: In that case, recess until 10:55.
6 (Brief recess.)
7 THE COURT: Both sides, my secretary is bringing --
8 Ms. Healy is bringing out the revised jury instructions that are
9 revised, checking them out over the weekend. As you'll note,
10 I've added Pages 2A and 2B, and those are the ones which had to
11 do with definitions. I caution y'all about that, because
12 neither one of you have seen that. I also have added Pages 20A,
13 35A and 52A, which were the mitigating circumstances. And I
14 left out the original things, so don't worry about those.
15 That's all on the front page. At any rate, you'll have over the
16 lunch period to go over those.
17 All right, are we ready for the jury?
18 MR. CONRAD: Yes, sir.
19 THE COURT: Call the jury.
20 (The jury returned to the courtroom.)
21 THE COURT: Members of the jury, the defense now has the
22 last -- not the last argument, but their last argument. Go
23 ahead, Mr. Williams.
24 MR. WILLIAMS: This is very, very difficult to say the
25 least. I don't matter how many times a lawyer gets up here and
1088
1 talks about something like this, it gets tougher every time.
2 If killing Mark Barnette, if putting him in the death
3 chamber, if executing him would bring back Donnie Allen, would
4 bring back Robin Williams, so be it, wouldn't have a problem.
5 If putting Mark Barnette in the execution chamber, sentencing
6 him to the ultimate penalty on this earth would stop the pain
7 and the grief of Robin Williams' family, Bertha Williams,
8 brothers, uncles, and if that would stop the pain and the grief
9 of Donald Lee Allen's family, so be it, wouldn't have a problem
10 with that. But killing Mark Barnette, putting him in the death
11 chambers, sentencing him to death, is not going to stop that,
12 it's not going to change that.
13 So you have to go through some process to make some
14 sense out of this, to try to make some sense out of this, and I
15 think Thomas Walker said it correctly. I think when he said we
16 talk about justice, and when he began this argument a long time
17 ago in opening at the first phase and said the crimes and the
18 murders cry out for justice, they do. But what is that
19 justice? That's what you are grappling with. What do we do,
20 how do we bring the justice, and you are justice. You are the
21 ones who make that individual decision in your heart, in your
22 soul, that moral judgment of what is justice.
23 Someone a long time ago said about justice or talked
24 about justice and said it far better than I could ever say it,
25 in the context of a capital case, if there is such a thing as
1089
1 justice, it could only be administered by one who knew the
2 inmost thoughts of the man to whom he was meting it out, who
3 knew the father and mother and the grandparents and the infinite
4 number of people back of him, who knew the origin of every cell
5 that went into the body, who could understand the structure and
6 how it acted, who could tell how the emotions that swayed a
7 human being affected that particular frail piece of clay. It
8 means more than that. It means that you must appraise every
9 influence that moves men, the civilization where they live and
10 all society which enters into the making of the child or the
11 man. If you can do it, you are wise, and with wisdom goes
12 mercy. No one with wisdom and with understanding, no one who is
13 honest with himself and with his own life, whoever he may be, no
14 one who has seen himself a prey in the sport and the play thing
15 of the infinite forces that move man, no one who has tried and
16 who has failed, and we have all tried and we have all failed, o
17 one can tell what justice is for someone else or for himself.
18 And the more he tries and the more responsibility he takes, the
19 more he clings to mercy as being the one thing which he is sure
20 should control his judgment of men.
21 Yes, we talk of mercy. Mr. Walker said why should you
22 give mercy, why should we even talk about mercy, he gave no
23 mercy to Donald Allen, he gave no mercy to Robin Williams. But
24 are we -- are you to be the same as that Mark Barnette? Are you
25 to be that same person and think that same way? Of course not.
1090
1 You are way above and beyond Mark Barnette. And mercy, we talk
2 about mercy, his life in prison for the rest of your life where
3 you die and you do what you do in a federal prison, is that
4 mercy, is it really mercy? It is a severe, severe punishment
5 for which this young man should suffer. Was it Dr. Duncan who
6 said there are even some prisons that you lock them down for 23
7 hours out of a 24 hour day. That is severe punishment.
8 In trying to determine what this justice is -- and I'm
9 not going to go through all of this, I'm going to try to do this
10 as directly as I can, but I have a few things I want to say so
11 just please bear with me -- in going through this concept of
12 justice and looking at the individual and the person that you
13 are having to judge, you don't know me, you don't know
14 Mr. Laughrun or these lawyers over here for the government, you
15 certainly know Mark Barnette until you walked into this
16 courtroom. And Lord knows, how difficult it is for a lawyer to
17 come into this courtroom and try to present to you his entire
18 life in a day or two or three, and that's what we have had to
19 do. That's what that life history is about. It's not excuses,
20 there is no excuse for what this young man did, there's no
21 justification for what this young man did, but we have some
22 responsibility to help you, to guide you in your decision, the
23 important one you will ever make in your life, to know something
24 about Mark Barnette, to know something about how to get to
25 justice, how to reach that plateau, climb the mountain, get
1091
1 there. And you've got to do some things before you get to
2 justice. You got to do the things before you get to the top of
3 that mountain, don't you? Sure, you do. You have got to try to
4 find out something about the person you're judging.
5 I'm not going to go into Mark's life in great detail,
6 you have heard it. But let me ask you this question, and this
7 is what plagues me as a person, not as a lawyer, I don't want to
8 be a lawyer right now, I just want to talk to you about this,
9 when we are born into this world and the doctor slaps you on the
10 butt and that child of God who is a creation of God, who is
11 creation of the love and affection and, yes, passion of two
12 human beings, when that baby starts crying and the umbilical
13 cord is cut, is the baby crying because he got smacked on the
14 butt or is it because he wants to go back into mama's womb where
15 it's safe and warm and secure?
16 Something has the happen to that child of God.
17 Something has to happen to that child when he comes out of
18 mama's womb, like Mark Barnette. And he comes out into this
19 world, he is innocent. He is a child of God at that point, we
20 all know that. He is not a killer when he is born. He is not a
21 killer when this picture is taken of him holding his brother.
22 He is not a killer at this time in his life. He is not a killer
23 when this photograph is taken of this young man going through
24 life, coming out trying to survive. He is not a killer when he
25 did that. He is not a killer when he gets a little bit older.
1092
1 The point is, something has to happen to him and something did.
2 You don't create a Mark Barnette by cutting the umbilical cord
3 and putting him in this world.
4 So that's what in reaching justice, that's what his life
5 history is about and that's why we presented it to you, to tell
6 you something about him, try and give you some flavor of what
7 happened to him and how he got from this to this (indicating)
8 and to the killing of two people. How do you get from here to
9 there? Isn't that what this is all about, isn't that what we
10 are talking about? And it's our responsibility to try. God
11 knows it's difficult in the time we have to help you understand
12 how he got from there to there. No excuses, no justification,
13 just give you some reason, some concept, an idea to explain it
14 to you as best and as humbly and probably as poorly as we can or
15 do, inadequately.
16 Now, I can't think, we hear about abuse and neglect and
17 all of these things and it happens to lots of people, but
18 growing up subjected to what he was subjected to, it has to have
19 an affect on that young child. It has to affect him every day
20 of his life. Some are more affected by others -- than others.
21 Being subjected to alcohol and drugs and not only being abused
22 by the father, but being -- seeing mama abused, beaten up, hit
23 over the head with a hammer or being subjected to that kind of
24 abuse. Terrible thing for a child to see, a child of God that
25 begins one place and ends up another. That has to have an
1093
1 affect on you. And I can't think of anything more disastrous to
2 the identity, to the soul of a human being who is told, that's
3 your daddy, that's your daddy, that's your daddy, and you grow
4 up in this lie of who you are and where you came from. It's a
5 lie. And in his formative years, before age 15, there were not
6 any problems with Mark Barnette basically. We don't see it.
7 Dr. Sally Johnson says in her Butner report, before age 15, no
8 problems of any substance other than some -- I mean, there are
9 some emotional things going on in Mark, but I'm talking about
10 him getting into trouble with the law or manifesting itself
11 other than potential suicide attempts or some concerns and
12 psychological problems that are going on. But then all of a
13 sudden, his world collapsed as I told you in the opening
14 statement, his identity disappears, it goes into destruction.
15 Daddy takes them out to the steakhouse and says, I'm not
16 your daddy, I'm not your daddy, and not only am I not your
17 daddy, I'm not Mario's daddy. Can you imagine one of you or
18 someone you know taking your child out to a steakhouse and
19 telling them that? The effect, the explosion on the identity?
20 And then it's the beginning of the end, because he tells him,
21 well, what I mean by that is it's like if you had girlfriends
22 who went out and had babies by someone else. And yes,
23 Mr. Laughrun has gone into that and I'm not going to go into
24 that again. But can't you see, can't you see the destruction
25 path that is beginning here on a young man getting into young
1094
1 adulthood, adolescence, whatever you call it at the age of 14,
2 almost 14, his daddy said that to him? And that's his
3 introduction to women, that's what he thinks about women, from
4 his supposed daddy who is not his daddy.
5 So from then on, he doesn't trust women. He thinks
6 they're are all running around on him, he thinks they are all
7 having babies. Anger develops. Anger turns to rage. Not only
8 was Mark Barnette angry in building a rage, he was angry with
9 women but he was angry with his mother, another female in his
10 life who was drinking and doing drugs, having men come in and
11 out of the house. What a role model, what a great role model
12 his dad and his mom were. That's how children learn, and some
13 of them survive it and some of them don't.
14 The United States government has told you about
15 aggravating factors and I'm going to go through those very
16 quickly, because they say these aggravating factors, ladies and
17 gentlemen, are the reason you should execute this young man, put
18 him in the gas chamber or whatever, take him off the face of
19 this earth because of these reasons, and they don't add up. The
20 problem the government has here, I argue to you respectfully, is
21 that there is not a beyond a reasonable doubt here. They can't
22 get over the mountain top. They can't get over this highest
23 burden.
24 They can allege things, but you know that this isn't a
25 situation -- it's not every first degree murder case, you see.
1095
1 You knew that, you were told that when we questioned you to
2 begin with. You don't give the death penalty in every first
3 degree murder case, there has got to be something much more,
4 much beyond that. And this is what they say is much beyond
5 that, because in every first degree murder case there is a
6 victim. There is a victim's family and there is grief and there
7 is pain in every first degree murder case. But you've got to
8 find that it's just so beyond in this case to even consider the
9 death penalty.
10 They say that as to Count 7, pecuniary value, Mark
11 Barnette committed the offense in expectation of the receipt of
12 something of pecuniary value. Now, can you imagine being asked
13 to execute somebody for pecuniary value? It's not right.
14 People steal cars and steal money, they don't get executed for
15 it. But the government is saying one reason you ought to
16 execute this young man is because of pecuniary value. No
17 weight. Sure, it happened, but no weight.
18 Substantial planning, well, without going through all of
19 the substantial planning, I think there are a number of
20 explanations for that, but you have already found that in the
21 guilt phase, don't you see? Don't let the government get you
22 confused here or don't you get confused. You have already found
23 premeditated murder in the guilt, phase which we didn't give you
24 much fuss about. Okay, you have already done, premeditation,
25 you have already found that. Now they want to say substantial
1096
1 planning, substantial planning.
2 Dr. Duncan, the government psychologist, their witness,
3 paid for, paid by the government, employed by the government,
4 chosen by the government to come in here and testify, and he
5 said, Mark Barnette's antisocial personality traits include,
6 government witness, impulsivity or failure to plan ahead. Well,
7 what is wrong here? The government gives you a psychologist, a
8 government psychologist who says he can't plan ahead, and yet
9 they want you to put him in the gas chamber or the execution
10 chamber because he's done substantial planning. How is that
11 beyond a reasonable doubt, how does that go to the top of the
12 mountain in making that decision?
13 Harm to the family, absolutely, absolutely, we talked
14 about that. Don't get caught up in the emotions of that. I
15 told you in my opening statement the profound emotional impact
16 of that kind of testimony. We have to sit there and take it,
17 and we understand it, we empathize with it. Don't let that
18 emotionalize you into a verdict.
19 Acts of violence in the future, I mean, this just isn't
20 true, and for the government to sit here and argue to you that
21 he is a future danger is with all due respect ridiculous. Why?
22 Dr. Cunningham's testimony, Dr. Cunningham came in here as a
23 risk assessment expert and presented to you slides. They make
24 fun of him and they say it's a slide slow. There's nothing
25 funny about that. We are trying to educate you. We are trying
1097
1 to give you some facts, some studies. We don't want -- we are
2 not trying to give you emotionalism to make your decision. Here
3 are some facts, ladies and gentlemen. Here are some studies by
4 the Bureau of Prisons, by the Department of Justice, facts. Did
5 they dispute them? No, not once. Did they bring any experts?
6 Don't you know the United States government has the financial
7 wherewithal to hire God knows how many experts to come in here
8 and say Dr. Cunningham is full of baloney, that those facts and
9 figures and studies aren't worth anything. Did they do it? No,
10 because they can't, can't argue with the facts.
11 Dr. Cunningham says he's not a future danger.
12 Dr. Halleck says he is not a future danger. Real quick,
13 Dr. Halleck, one last question, based upon your interviews of
14 Mark Barnette and the materials that you have reviewed and based
15 upon your opinions and diagnosis, do you have an opinion as to
16 how Mark would do in a federal prison? He has adjusted
17 extremely well, this is his answer, he had adjusted extremely
18 well in the Charlotte jail, at the federal correctional
19 institution. I think Mark's problems are primarily with women,
20 and I think as long as he is not involved in these kinds of
21 contentious relationships with women, he will not be violent in
22 a correctional setting. That's two witnesses who says he is not
23 a future danger.
24 The jail deputies came in and told you he is not a
25 future danger, over a year and a half, said, oh, he is trying to
1098
1 fool this jury, he's trying to fool everybody, he is just being
2 a nice guy while he's in jail. Not one infraction, not one
3 discipline. That's a fact, that's not emotion.
4 And then Dr. Sally Johnson talks about his adjustment,
5 in federal prison. So all of those things go to prove that he
6 is not a future danger. And remember, it's not being a future
7 danger in a federal prison context, not out in society. He is
8 not going to be in society, so he is not a future danger.
9 Killing two people, they talk about. They talk about
10 killing two people as a reason to now kill him.
11 MR. CONRAD: Objection.
12 MR. WILLIAMS: Or to now execute him or have him
13 executed.
14 THE COURT: Wait just a minute. There was an objection,
15 right?
16 MR. CONRAD: Yes, sir.
17 THE COURT: Objection to which phrase?
18 MR. CONRAD: I'm objecting to him saying we're trying to
19 kill him and execute him.
20 THE COURT: Sustained.
21 MR. WILLIAMS: Well, sentence him to death. That's -- I
22 mean, that's what we are doing. But you have already found he
23 killed two people. See, and again, it's going beyond what you
24 have already found at the guilt phase. You found that he killed
25 two people; you've already done that. Now you've got to find
1099
1 something beyond that to sentence him to death, and those
2 aggravating factors are the same and reiterated throughout.
3 I want to say a couple more things about emotionalism.
4 Who was it that said, President Roosevelt, Franklin Roosevelt
5 said, the only thing we have to fear is fear itself, many years
6 ago, World War II. The fear I have as Mark Barnette's lawyer is
7 for you to emotionalize this verdict, get back there and get so
8 stirred up because you just don't like this man. I'm not asking
9 you to like him, but don't get so caught up in the anger and the
10 emotionalism of what's going on here to return a verdict based
11 on that. Why do I say that? Tell you why I said that. For
12 good reason I say that. Not only the victim impact testimony
13 which we talked about, but bringing in all of these women that
14 he had relationships with. You don't execute someone, you don't
15 sentence someone to death because he had bad relationships with
16 women. That's not a substantial aggravating factor. They argue
17 that because it shows his future dangerousness, I assume, but
18 you don't sentence somebody to death because they've had bad
19 relationships with women or that they've been abusive to them.
20 Brian Ard, sexual harassment, you don't sentence
21 somebody to death for sexual harassment. Shirley Williams,
22 Joanna Baldwin, fear, emotionalism. What do I mean? The
23 government puts this young lady on the witness stand to tell you
24 what she told you about what Mark Barnette told her about
25 putting part of his anatomy in her. Now, if that's not
1100
1 emotionalism, if that's not an attempt to interject a racial
2 statement into this case, I don't know what is. And why do I
3 say that? I say it for a good reason. When you get through
4 deciding this case and reach that plateau of justice and you
5 have climbed the mountain, you have got to sign a certificate,
6 that's what the law says. The law says you have got to sign a
7 certificate that says your verdict is not based on race,
8 discrimination, any of those things. That's why I mention
9 this. I'm not interjecting it, it's there, it's part of this
10 case. And their trying to get you stirred up by putting a young
11 lady on the stand for that kind of intolerable conduct is
12 emotionalism.
13 Dr. Duncan, I guess, and I'm getting close to being
14 done, I guess Dr. Duncan, I guess the government is going to get
15 up here and tell you that Dr. Duncan is the man that you can use
16 to put Mark Barnette -- to sentence him to death, because he
17 gave him a test, PCL-R test, therefore, he is a psychopath.
18 Emotionalism is what that is, emotionalism, a test. It's not a
19 very good one, it's guarded in its use, and interestingly enough
20 I'm arguing to you that they are using that for emotionalism,
21 for emotionalist reasons, not future dangers, but trying to get
22 you so stirred up to say this man is a psychopath, you better
23 put him to death. That test is no good, and you score him, you
24 score him, I'll give him a one or two for this, a one or a two
25 for this, subjective scoring by a man who is paid by the
1101
1 government, chosen by the government, employed by the
2 government, and the government wants to ask you to rely on that
3 to sentence this man the death. That's frightening.
4 And lastly, the PCL-R test, does anybody in this entire
5 courtroom from any witness other than Dr. Duncan mention it?
6 No. Capital N, capital O. Their own government psychiatrist,
7 Dr. Sally Johnson, finally, from Butner, examined him, the
8 government. Any mention by her of the PCL-R test? No.
9 Dr. Halleck? No. Dr. Fay Salton? No. And where is Dr. Grant,
10 the government psychiatrist? All you heard from was this
11 Dr. Duncan. Where is Dr. Grant, why didn't they bring him in
12 here? You see, dangerousness, emotion.
13 Let me leave you with these thoughts. Does Mark
14 Barnette, and I have jotted down some notes and I am going to
15 refer to them and then I will leave you and let you decide this
16 terrible decision, make this terrible decision, does Mark
17 Barnette want to be this person who killed two people, who beat
18 his girlfriends or abused them in other ways? Why has he
19 attempted suicide throughout his life, why did he try to kill
20 himself after killing Donald Allen and Robin Williams? Because
21 he does not want to be this person. He is ashamed of being this
22 person. He prayed to Jesus and asked Jesus to forgive him. He
23 is not remorseful, he's cold-blooded the government says, prayed
24 the Jesus to ask him -- when he comes out of this thing he is
25 in, this horrible thing he goes through and this horrible thing
1102
1 he did to these people, and he asks and begs Jesus to forgive
2 him. He said on the video, this is not me. I remember a quote,
3 he doesn't want to be this person. It's a shame what he has
4 become.
5 He is not a monster or an animal as the government would
6 have you believe, he is a product of his life. He never got the
7 substance, the needs, the base, the nurturing so necessary.
8 They want you to execute him for what he did in a two-month
9 period of his entire life. What do we say about the other 23
10 years and 10 months of his life, is it all so bad that he must
11 die? Because you must look at his entire life, you must
12 consider it all. There is a way to severely punish Mark
13 Barnette without saying that he must die. That's life without
14 the possibility of release. Who can we save, what reaction will
15 there be in his family if he dies, his mother, his grandfather,
16 his brother, what about his two children, do we save them? Will
17 we save them by telling them that their father was executed,
18 sentenced by 12 jurors individually to die in the -- in the
19 death chamber, or do we tell them that their father will be in
20 prison for the rest of his life?
21 Will society be protected, will all of the women in the
22 world be safe from Mark Barnette if you sentence him to life
23 without the possibility of release? They will be. There are no
24 women where he is going. Mark's life history is not intended to
25 excuse, justify or diminish the significance of what he has
1103
1 done, but to help explain it and explain it in a way that has
2 some relevance to the decision you must make about sentencing.
3 Life histories are not excuses, they are explanations. No jury
4 can render justice in the absence of an explanation of how Mark
5 Barnette has been shaped and influenced by the events in his
6 life to reach the point he did. Children need dependable
7 attachment, protection, guidance, stimulation, nurturing and
8 some ways of coping with that adversity. Without self worth,
9 any sense of their own value, they become angry, and yes, some
10 become destructive.
11 Abandonment, neglect, abuse, cycle of violence, effect
12 of witnessing violence and abuse. Look at Mark's criminal
13 sentences, what was done to get him help or put him in a therapy
14 program. Not everybody who goes through this does this. It's
15 the combination of all in that human being. Like a bad mix of
16 toxic chemicals, a life is an accumulation of interacting
17 variables. We can't simplify it. Not everyone responds to the
18 same to risk factors. Mark Barnette did not choose his
19 experiences as a child. He did not choose to move about, he did
20 not choose to be abused, he did not choose to be neglected, he
21 did not choose to be separated from his father, he did not
22 choose to learn his values by his father, and he did not choose
23 the emotional consequences of having to grapple with it.
24 So we take the sum of that life, the terrible turns that
25 it took into account in deciding how to punish him. We do not
1104
1 excuse him no do we sentence him to death, we understand life
2 without the possibility of release is a severe punishment and it
3 is enough, it is enough.
4 THE COURT: Mr. Conrad?
5 MR. CONRAD: Thank you, Your Honor. Thank you, ladies
6 and gentlemen. I'm the fourth lawyer you have heard from this
7 morning, and I apologize for that. No one should have to endure
8 that, but I beg your indulgence and I ask for your attention.
9 I'm not the orator that Paul Williams is or that Thomas
10 Walker or George Laughrun are. I'm not very good at giving
11 speeches. I don't intend to give you a speech today, but I
12 promise you with the time that I have left to talk to you that I
13 will attempt to bring back into focus the two people who have
14 sort of disappeared from focus in the last couple of hours and
15 the two people who have sort of disappeared in the last week of
16 this trial, and, of course, I'm talking about Robin and Donnie.
17 But before I do that, I do want to address the issue
18 that Mr. Williams brought up at the end, and I had thought that
19 we would get through this trial without a lawyer playing what I
20 call the race card, and that is trying to make you feel guilty
21 about doing something, making an important decision because of
22 the race of the defendant. We almost got there, but we didn't.
23 And you heard Mr. Williams tell you that the only reason we
24 brought Joanna Baldwin into this courtroom was to inject race
25 into this case and to inject emotionalism, and I flatly deny
1105
1 that.
2 Mr. Williams said to you in opening that when Robin
3 Williams broke up with Barnette, his life ended. Joanna Baldwin
4 testify in the part of the trial called rebuttal, and when they
5 put up evidence that his life ended when Robin Williams broke up
6 with him, we are entitled to rebut that. And we rebutted that
7 by showing that when Robin was hard at work at the hospital,
8 this defendant was taking a 16-year-old back to Robin's
9 apartment and having sex with her there. And he was at work
10 harassing people at work, and it has nothing to do with race.
11 And I resent that playing the race card, I resent the insult it
12 is to your intelligence and I would ask you to see the evidence
13 we presented to you for what it is. It shows a defendant who is
14 not remorseful, it shows a defendant whose life did not end.
15 The people whose lives are really significant in this
16 case, the people who lost their lives because of the defendant,
17 were symbolically reduced to a single red circle on Page 14 of
18 the defendant's life line. The two people whose sole worth to
19 this defendant were in the case of Donnie Lee Allen someone to
20 eliminate just to get a car, an opportune victim in order to
21 obtain a car to murder someone else, and in the case of Robin
22 Williams, a person who dared to defy him, to dare to tell him
23 no, someone he would make pay. And that, ladies and gentlemen,
24 is the very simple, unadulterated truth in this case, the
25 execution of Donald Lee Allen for his car and the murder of
1106
1 Robin Williams because she dared to tell him no; and yes, I am
2 here at this time to ask you for the ultimate punishment for
3 these ultimate crimes.
4 I will not offer you a slick, color-coded time line, nor
5 a generic one size fits all slide presentation. While those
6 things may be worthy of our ad crazy age, I contend and submit
7 to you they are not worthy of this courtroom. You will not hear
8 me defend Cynthia Maxwell, a self-described mitigation
9 specialist, who is qualified for what? To put together these
10 multicolored notebooks, notebooks of deception that omit the
11 most important facts surrounding your decision and reduce Donnie
12 and Robin to a single red circle. Who fails to list the acts of
13 violence committed by this defendant throughout his life. Why?
14 She didn't have room on her time line. There wasn't a
15 conviction, or she didn't think it was sufficiently
16 significant. Who didn't even list the defendant's history of
17 probation on his time line. Why? Because she called down a
18 couple times to Georgia and didn't get an answer, even though we
19 all know that the probation was in North Carolina, not Georgia.
20 Who doesn't list on her time line the conduct that you
21 found the defendant guilty of in the guilt phase of this trial,
22 it wouldn't fit. That time line that was presented to you in
23 this case is a onesided distortion not of who this man is and
24 what he has done, but rather how he can be repackaged and
25 presented to you. Painters and lawyers have been known
1107
1 historically as people who can turn black into white, and I
2 would submit to you you should add mitigation specialists to
3 that list as well.
4 I will not ask you to believe in an expert psychologist
5 who comes in and says to you, I quote, I sit before this jury as
6 a psychologist whose obligation and purpose is to present my
7 scientific findings and knowledge about the defendant, but tells
8 a radio audience the very morning she testified in this
9 courtroom that her purpose is to leave you crying. Who when
10 asked about her book under oath in this court told you her book,
11 the book she left off her curriculum, that that book is
12 primarily about child abuse, but later is forced to admit that
13 the week before, she told yet another radio audience that she
14 was touring Europe promoting her book which is, quote, about the
15 death penalty in the United States. Who thinks that it is not
16 important that you should know that she is passionately anti
17 death penalty, who has been sent two reprimand letters from the
18 North Carolina Board of Psychology, not once but twice, one for
19 testifying to a diagnosis that does not exist and one for
20 exploiting her patient. I will not ask you to believe in that
21 witness.
22 I will not ask you to believe in a traveling slide show
23 presenter from Abilene, Texas who testifies all over the country
24 in death penalty cases for a fee, a fee in the case of a death
25 penalty case in Arkansas of $21,000 and then testifies that two
1108
1 shanks possessed by the defendant in jail are just simply works
2 of art, and a club with batteries inside it is a homemade
3 baseball bat. He testified here in Charlotte last week, who
4 knows where he is testifying this week, he has ten cases in the
5 hamper. But what we do know is regardless of the facts, he will
6 testify as he testified here and as he always testifies that the
7 defendant is not a risk of violence. We know that that is his
8 testimony. No tests administered, it's just the same slide show
9 he presents in every jurisdiction he goes. But here, he omitted
10 several slides that he presents in other jurisdictions and we
11 brought that to your attention, and those slides show that this
12 defendant is not part of the group he is testifying about.
13 He had to admit when asked that this defendant was
14 different than 97 percent of the people studied in his previous
15 test. When I asked him why he had omitted that, he told you he
16 wanted to be sensitive to your time, the one slide that dealt
17 with this defendant was omitted because he was sensitive to your
18 time. And he forgot to tell you that some of these prisoners
19 studied after the seven-year period came back and murdered
20 people in jail, forgot to tell you that. You have heard it said
21 statistics don't lie. But liars use statistics. I submit to
22 you, ladies and gentlemen, that that is Dr. Mark Cunningham.
23 For a fee, he describes a group that is so unlike the
24 defendant that he has different characteristics than 97 percent
25 of the group. He doesn't know the average age of the defendants
1109
1 in that study, he does know the backgrounds, doesn't know if any
2 of them were convicted of committing more than one murder in 24
3 hours. Sort of like defining a basketball team to consist of
4 all of the people who had never gone to the University of North
5 Carolina and then telling the person selecting the team next to
6 you that there is no difference between Michael Jordan and the
7 chemistry major next to them, they are all part of the same
8 group. I submit to you that it's an insult to your intelligence
9 not to know the individual characteristics of the person that
10 you're talking about matters the most. But for a Michael Jordan
11 like fee, Dr. Cunningham will testify to anything, and I won't
12 ask you to believe him.
13 I will not ask you to believe the family members who
14 have lied for the defendant in the past, the mother who had
15 misled a probation officer for an entire year that this
16 defendant lived in Charlotte when she knew he didn't live there,
17 the aunt, Sheila Cooper, who verified employment of the
18 defendant at the Courtyard Marriott when he wasn't working there
19 and when he was living in Roanoke and working at Camelot Music
20 store. And most of all, this defendant, who tells his probation
21 officer that he can't come in for an office visit because he's
22 been shot knowing full well that he can't come in to visit
23 because he is living in Roanoke, not Charlotte. I won't ask you
24 to buy that.
25 I would ask you to consider whether the lawyers who
1110
1 present that kind of evidence to you really want you to base
2 your decision on the evidence in this case, on the instructions
3 of the Court and on your oath. I want to focus your attention
4 on the evidence, on your oath, and on the truth, for it has been
5 said that the highest aim of any legal contest is an
6 ascertainment of truth. Somewhere within the facts of every
7 case truth abides. Where truth is, justice steps in. And yours
8 is a solemn duty to speak the everlasting truth. You did that
9 in the guilt phase of the trial, I ask you to do it again now.
10 You are here to do justice. You are here to follow the law and
11 listen to the instructions and base your decision on the law and
12 the facts and to decide on those two factors and those two
13 alone, whether in this case, the ultimate punishment, the
14 ultimate crime receives the ultimate punishment. It is in your
15 hands.
16 When you were sworn in as jurors, Ms. Grier had you put
17 your hands on the Bible, raise your hands and say something like
18 this, you and each of you solemnly swear that you will truly try
19 all of the criminal issues which shall come before you during
20 this term and give true verdicts according to the evidence
21 thereon, so help your God. And y'all said you would. And you
22 said that in the jury selection process, and we told you in that
23 process that we would stand here today and urge you to sentence
24 this man to a sentence of death. And you indicated that you
25 would not shirk from that responsibility of following the law
1111
1 and basing your decision on the evidence.
2 It is ironic in this case to me that Mr. Williams asks
3 you, don't base your decision on emotion, and he spent an hour
4 of giving you an emotional tirade, setting up straw men
5 arguments, such as, if it would bring back Robin and Donnie, so
6 be it. Everybody knows this verdict won't bring anybody back,
7 but that's -- but that's the only condition on which he says you
8 should return a penalty of death, and I would contend to you
9 that you will never hear that limitation in Judge Potter's
10 instructions. He will instruct you that if you find the
11 aggravating factors outweigh the mitigating factors, then you
12 may impose a sentence of death.
13 He says choose life. The defendant chose death. He
14 chose it twice. You are not responsible for his choices. Don't
15 let these attorneys put that burden on you. Your commitment is
16 to your duty to follow the instructions and to render truth.
17 You know the word "verdict" comes from Latin and the word
18 verdict which means to speak the truth. Do your duty, speak the
19 truth. Let your verdict speak the truth to this evidence, to
20 everyone in this courtroom.
21 If your verdict is a sentence of death, the last words
22 this defendant will hear from the Judge and this Court is, May
23 God have mercy on your soul. You are not God. You do not judge
24 this man's soul. That is a matter between him and his creator.
25 Your duty is to judge his conduct, and in that regard, you are
1112
1 sending to Cesar what is Cesar's and you are leaving to God what
2 is God's. They want you to play God, to have mercy on his soul,
3 and his soul is not before you, his conduct is. Don't play
4 God. Being a juror is awesome enough. Be a juror, bound by
5 oath to follow the instructions and to follow the law. Don't
6 let these defendants -- these defense attorneys make you
7 responsible for the defendant's death. Look them in the eye and
8 say to yourselves, I will do my duty, I will follow the
9 instructions where they may lead.
10 If your verdict is a life sentence and you base that
11 verdict on the evidence in this case, on the instructions of the
12 Court and your oath, then I want you to walk out of here with
13 your heads held high that you have done your duty. But if we
14 have done our job and we have convinced you that the aggravating
15 factors outweigh the mitigating factors and you vote for
16 something other than death, you have not been true to your oath,
17 and I don't know how you are going to be able to live life with
18 not being true --
19 MR. LAUGHRUN: Objection.
20 THE COURT: Overruled.
21 MR. CONRAD: To your oath. You know, it seems the last
22 week of evidence and in the last two hours of talk, Robin and
23 Donnie have disappeared. You heard a little bit about both of
24 them. The law permits a glimpse into these two beautiful young
25 people's lives. The law allows you to consider as an
1113
1 aggravating factor the effect of the murders on the victim and
2 the victim's family and the extent and scope of the injuries and
3 loss suffered by the victim and the victim's family. That is
4 not emotionalism, that is the law. That is an aggravating
5 factor. You may decide upon that factor alone. You can find
6 that it sufficiently outweighs any other mitigating factor in
7 the case.
8 So you heard that evidence. You heard that Donnie was
9 born premature, two pounds, some ounces, not expected to live,
10 25 percent chance, but he did live and, oh, how he lived his 22
11 years on this earth. He was the youngest of Bob and Shirley's
12 five kids. He was adored by his older sister. He was a big
13 brother to his older sister's handicapped child.
14 You heard about his love for golf, his love of show
15 trucks and how he picked out that blue Honda because it was his
16 mother's favorite color. His older brother told you of the
17 future business plans that they planned together, and you heard
18 from Shirley and how there is a pain in her mother's heart, a
19 pain that will never go away. And you heard his laugh, Donnie's
20 laugh on the videotape at the family Christmas. But to this
21 man, Aquilia Marcivicci Barnette, Donnie Allen was simply a
22 means to an end, he was nothing more than that, and you have a
23 right to consider that.
24 The last known words of Donnie were pleas for his life
25 as Barnette pushed him down a hill, made him turn around and
1114
1 fired three shots into his back at close range leaving him for
2 dead, and he lay there dying while Barnette drove to the next
3 intersection and counted his money. And you heard how Barnette
4 went up to Roanoke after that and killed Robin and moved on to
5 Tennessee. And you heard about Mr. Allen standing on the side
6 of the road telling the police officer, I'm looking for my son,
7 he has been missing since Friday. You heard about Mr. Allen
8 carrying two thermos bottles of water as he looked for his son
9 in the desperate hope that he would find him tied to a tree and
10 thirsty.
11 Of Robin, you heard a little bit more, because it took
12 this psychopathic killer six weeks to kill her. You learned
13 that Robin was the apple of Ms. Williams' eye, her soul mate.
14 You learned that she wasn't perfect, but she was passionate, and
15 she and her mother and her brothers loved each other and loved
16 each other passionately. And she held a job, was going to
17 school, was loved by everyone, that she had a future probably
18 best expressed by Ms. Williams in her poem, there should have
19 been a college degree, there should have been wedding bells and
20 the patter of little feet, there should have been more laughter,
21 hugs and kisses for me, mommy, but now you are stuck at 23.
22 And you heard her lament in newspaper memorial of the
23 emptiness that lingers still and seems so unreal. Can you
24 imagine the love of that mother for her 23-year-old child, the
25 love that would cause that 23-year-old child still to call her
1115
1 Mommy? And the only voice that is left for Ms. Williams of her
2 daughter Robin is a voice of Robin describing the man who drove
3 to Roanoke, fire bombed her apartment and yelled "Die, bitch,
4 die."
5 (Tape played for the jury.)
6 MR. CONRAD: That voice has been silenced by this
7 defendant. Donnie's voice the, laughter you heard on the
8 videotape, has been silenced by this defendant. He killed
9 Donnie for the simple reason of allowing him to kill Robin.
10 There is nothing complex about that. There is no life line
11 needed to explain that. There is no salesman from Abilene who
12 can explain that. In fact, Professor Halleck did not even
13 include Donnie's name in his report. Donnie Allen's trial for
14 murder, the trial that deals with the murder of Donnie Lee
15 Allen, there is not even a mention of his name in Dr. Halleck's
16 report. And you heard from Thomas Walker about why that is,
17 because his honest answer when asked was, there's no particular
18 reason, one reason is, I had no way of trying to explain what
19 happened there. And what he meant, of course, is there is no
20 favorable explanation he could offer on behalf of the
21 defendant.
22 Oh, ladies and gentlemen of the jury, I beg you to let
23 your verdict explain what happened there. Why was Robin
24 Williams gunned down in front of her mother? I submit to you
25 that the reason she was gunned down is because this was not
1116
1 enough for the defendant. Disfiguring her for life was not
2 enough for him. When she said no to him, she was going to pay
3 and not just with disfigurement, he had to reduce the beautiful
4 young woman to this. That's the penalty Robin Williams paid for
5 crossing this defendant. There is no need for a fancy
6 psychological explanation for that, though if you want an
7 explanation for what happened to Robin Williams, Donnie Allen,
8 you need go no further than the defense's own witness, Tina
9 Davis, the woman who was too sick to come into the courtroom but
10 whose interview was admitted into evidence. Listen to the way
11 that witness describes this defendant. Mark has an attitude
12 where he thinks that everyone owes him something, he is unable
13 to accept responsibility and that he cannot hear no to
14 anything. Their witness, not an expert, not a government
15 witness, but a defense witness describing this psychopathic
16 killer for what he is.
17 Yes, Robin and Donnie's voices are forever silenced.
18 Now you are the voice for the voiceless. Your verdict will
19 speak, and I ask that it speak the truth. We don't know exactly
20 how Donnie died. The defense attorneys would like you to
21 believe he crawled in pain from the point where he was first
22 shot until the point where his body was found laying on his back
23 in the woods under the overgrowth. We know that in an unguarded
24 moment at the crime scene when investigators could not find the
25 body, that the defendant told investigators what happened out
1117
1 there.
2 Now, when Investigator Sanders came back to talk to you
3 -- this is Agent Womble of the FBI testifying earlier in the
4 trial -- and had they found the body, no, they had not, did you
5 say anything to the defendant, I asked him, the defendant, where
6 the body was, he said that he had pulled it back further off the
7 road down towards the drainage ditch.
8 On redirect examination after Mr. Laughrun, here's how
9 the redirect examination went. Agent Womble, Mr. Laughrun
10 paraphrased your response when you were talking with the
11 defendant trying to find the body, and he told you to look
12 farther down in the drainage ditch, I don't believe he gave you
13 the answer to Mr. Laughrun, but why did he tell you to look
14 farther down into the drainage ditch? He said that he had
15 pulled the body further down around the turn and deeper into the
16 wooded area.
17 What they, the defense attorneys are asking you to do is
18 disregard the defendant's own words at the crime scene. That's
19 what the defendant said, it's not what a government witness
20 said, and we know that the crime scene is consistent with that
21 admission. We know that the blood trail starts there and the
22 body is found way back there. We know that there is a heavy
23 pool of blood here and more pools of blood as you go back to
24 where the body was found. The heaviest concentration of blood
25 is here, the point where the defendant was first shot, the
1118
1 heaviest concentration here. More blood pools here until the
2 body is found back in here. We know that the body is found
3 under the overgrowth, hidden, and farther down the trail from
4 where he was shot.
5 Officer Holl, who has investigated hundreds of crime
6 scenes, gave an explanation for what happened. He said that the
7 body fell at the point of impact and stayed there for awhile.
8 He explained that what the defendant probably had done is gone
9 back to that car, gotten it out of the middle of the street,
10 over to the side, and came back and pulled that body to its
11 ultimate resting point. He based that on the blood patterns,
12 the absence of blood on the sneakers and the position of the
13 body when found. All of those things are consistent with the
14 defendant's own explanation of what he did the night of
15 June 22nd.
16 We know that after he murdered brutally and
17 premeditatedly murdered Donald Allen, he took his car and went
18 to Roanoke. Now, he had been to Roanoke. He had been to
19 Roanoke to kill Robin before and he used a Molotov cocktail, his
20 own driver's license, and a pair of pliers to pull the telephone
21 wires. And you saw the damage he did to Robin Williams the
22 night he fire bombed the apartment, yelling "Die, bitch, die".
23 The second time -- first time he failed, second time he
24 wasn't about to fail. He got Donnie's Prelude and he had a fake
25 ID in his brother's name. That ID enabled him to get this
1119
1 (indicating). He bought this at a pawn shop and lied, said he
2 wasn't a fugitive from justice and was not a convicted felon,
3 sawed off the barrel, taped on the flashlight and went out to
4 Morris Field Drive and Billy Graham parkway. This time he had
5 these bolt cutters, not the pair of wire cutters which gave him
6 trouble pulling the phone lines out the first time, but these
7 (indicating), he had a crowbar in case he had to break into the
8 house, he had screwdrivers which I contend he used to steal
9 license plates later on, and he killed Robin Williams. And we
10 know that Robin's last words were denying a romantic
11 relationship that existed solely in this defendant's mind.
12 There is no way I can tell you what happened on Loudon Avenue
13 the same way you heard it on Sonji Hill's 911 tape, and I would
14 ask you to spend a few minutes now listening to the sounds of
15 premeditated murder.
16 (Tape played for the jury. )
17 MR. CONRAD: This is what he did to her that day, that's
18 the shot to the left armpit area, that's the fatal shot that was
19 fired from close range. That's what Bertha Williams held in her
20 arms on June 22nd as she screamed over and over again the name
21 of Jesus. That was a prayer for her daughter's life. I contend
22 to you that was a prayer for justice today.
23 What is the just punishment in this case for these
24 ultimate crimes? That is the decision that you will have to
25 make. About the only thing I agreed with Mr. Williams about in
1120
1 this trial is the statement that he made in the very beginning
2 to judge this man as a human being. I ask you to judge him as a
3 fully human being, fully responsible for the carnage he has
4 brought. Aristotle once said, we become what we are as persons
5 by the decisions that we ourselves make. Aquilia Barnette is a
6 cold-blooded killer by choice. Mario Barnette on the other hand
7 is not, by choice. Mr. Laughrun would say that's because Mark
8 Barnette protected him. Mark Barnette didn't protect anybody
9 but Mark Barnette. Mario Barnette is a not a killer because he
10 chose not to be.
11 It reminds me of the story of the two twins, one is an
12 alcoholic and one a tea totaler and they asked the alcoholic,
13 why are you alcoholic, and his response was my father was an
14 alcoholic. And they asked the tea totaler, the other twin, why
15 are you a tea totaler and his response was, my father was an
16 alcoholic. These two people chose different lives. Barnette
17 chose to be a killer, and on June 22nd, a killer twice over. He
18 is the man who chose to kill an innocent 22-year-old boy just to
19 get his car.
20 Contrast that to Natasha Heard, a girl that he
21 impregnated at a young age, who sat in a closet with him and
22 talked about their mutual difficult upbringing. Natasha Heard
23 was beaten just as this defendant was beaten. Natasha had to
24 raise two kids that this defendant has abandoned. Aquilia
25 Barnette is a man who chose to shoot and kill Donald Lee Allen,
1121
1 chose to reload and shoot through a door on Loudon Avenue, chose
2 to reload and point the gun at Bertha Williams and her
3 eight-month-old grandbaby, chose to shoot and kill Robin
4 Williams, chose to steal a license plate, scrape an inspection
5 sticker off, lie about it later, chose yet again to reload.
6 When the weapon was found, it had two cartridges in it. He was
7 ready. He was trying to avoid apprehension. That's why he
8 stole a license plate, that's why he scraped off an inspection
9 sticker. If caught, he had a shotgun with two cartridges.
10 Contrast that with Kenny and Sidney Williams. Born in
11 poverty to a single parent, grew up with not enough to eat, they
12 chose to become the men that they became, and you heard them
13 testify in the courtroom today. For God's sake, judge this man
14 as a fully human being and impose upon him the ultimate
15 punishment for the ultimate crimes of premeditated murder of
16 Donnie and Robin.
17 That is our case, that's what you have heard from the
18 government. The defendant has put on evidence of what they call
19 mitigating factors, and Mr. Walker explained to you the process
20 you have to go through of weighing. Let's focus on mitigating
21 factors for a bit if we could. It's going to be longer than I
22 like, but I have -- I feel bound to describe the context within
23 which that evidence came to you. When you get into the jury
24 room, will have to decide, one, does the mitigating factor exist
25 or not. If you find it exists, two, does it mitigate anything,
1122
1 does it weigh anything, does it matter. It may exist and have
2 absolutely no weight whatsoever in considering what the
3 appropriate punishment is for cold-blooded murder.
4 One of the mitigating factors that the defendant will
5 contend, has contended, said that he showed remorse by trying to
6 kill himself when he realized what he had done. Remorse in the
7 mind is a gnawing stress arising from a sense of guilt from past
8 wrongs. It does not mean fear of getting caught, fear of
9 getting punished, nor does it mean manipulation of emotion to
10 produce a desired result. Ask yourself, was his remorse
11 consistent with a fear of getting caught and punished, a
12 manipulation of emotion to produce a desired result? He claims
13 to some officers he didn't even know if he shot Donnie Lee Allen
14 and he claimed to other officers he just wanted to talk to Robin
15 Williams. I submit to you that is not remorse.
16 What about the attempted suicide? I just told you he
17 had two rounds in the chamber of his gun driving from Roanoke to
18 Knoxville, Tennessee. He had another round in the console of
19 the car. He had tried the overdose thing before, it hadn't
20 worked. Officer Holl testified to you that he never had been to
21 a carbon monoxide poisoning crime scene that had failed.
22 Remember this defendant's words to Dr. Duncan concerning the
23 Roanoke suicide of several years before, I tried that suicide
24 ploy before. Again, the defendant's words, suicide ploy. The
25 very first witness in the case, Officer Hubbard, responded in
1123
1 June of 1995 to a, quote, attempted suicide by the defendant,
2 and Officer Hubbard testified that this defendant had lied, that
3 the defendant told him he lied about the attempted suicide
4 because he was mad at Robin for threatening to break up.
5 Remember Bertha Williams' testimony. She actually
6 pushed the defendant after he beat her daughter and told him to
7 quit beating her daughter, and she took her daughter out of the
8 house and drove in separate cars away, except there was one
9 problem. The defendant went to an upstairs window and
10 threatened to jump out, and this caused Robin to turn around and
11 to go back to him. He had learned early and repetitively that
12 faked suicides work.
13 Ask yourself this question: Why would he save evidence
14 of his suicide? Why would he make sure that the church bulletin
15 was in the car? Why would he make sure of the Sears receipt was
16 in the car, the garden hose in the car, why would he do that? I
17 submit to you that the man who faked suicide before, who called
18 it a suicide ploy, was planning for this very day when his
19 lawyers could come in here and testify to you about how
20 remorseful he was. The fact that he went to church in
21 Knoxville, that he attempted suicide while at the same time
22 stealing a license plate and scraping an inspection sticker off,
23 is that a mitigating factor, does it weigh anything to you?
24 Is there any evidence anywhere that he ever told Bertha
25 Williams he was sorry? Did he tell one police officer that
1124
1 anywhere in three interviews? He couldn't tell that to a police
2 officer, he wasn't sorry. Bertha Williams had pushed him around
3 and he would show her. He killed Donnie so he could kill again.
4 Ask yourselves, in the hours of recorded interviews, is there
5 any evidence that between Billy Graham and Morris Field Drive
6 and Loudon Avenue, were there any tears of remorse? He is not
7 remorseful, there are no tears, his emotion is based upon his
8 fear of getting caught and punished, and it is manipulative.
9 He engaged in criminal activity over a six-week period
10 of time. That criminal activity was goal directed and
11 methodical. When he got to Loudon and brutally murdered Robin,
12 is there any eyewitness that says that he shed one tear? There
13 was crying and tears and wailing plenty, but it didn't come from
14 him.
15 Another mitigating factor they will contend to you in
16 closing instructions is that he helped the police find Donnie's
17 body. Now, I want you to examine this real carefully. He was
18 arrested at his house on West Boulevard. His house is
19 eight-tenth's of a mile from where Donnie's body had been
20 rotting for three days. When he is arrested, he has told no one
21 about Donnie's death. He hasn't told his mother when he called
22 her from Tennessee, he hasn't told his cousin who he called from
23 Tennessee. And the police show up at his doorstep and there is
24 a body eight-tenth's of a mile down the road and he does not
25 tell them about it. He is not going to tell the police anything
1125
1 they don't know. It's only when the police get him downtown to
2 Charlotte and Agent Womble tells him that they recovered the car
3 and they have evidence linking him to the car and that he used
4 the car to go up to Roanoke, it's only then that he, quote,
5 assisted the police in finding Donnie's body. He draws a map,
6 goes out there with them, tells Agent Womble he pulled the body
7 down the drainage ditch. Isn't it amazing that they now ask you
8 to find mitigation while telling you that he never confessed to
9 dragging the body? Agent Womble testified, he is the agent that
10 had the broken arm, the agent that was very professional and
11 courteous to Sonia Barnette. These lawyers could have asked him
12 about this, are you sure you heard the defendant say he dragged
13 the body? On cross-examination, Mr. Laughrun had every
14 opportunity to ask that question, he chose not to. Yet they
15 want to come in here and find his assistance mitigating.
16 They argue that another mitigating factor is the fact
17 that he voluntarily turned himself in. Well, yeah, after he
18 fled from Roanoke to Knoxville, after he stole a license plate
19 and scraped an inspection sticker, after he ran out of money,
20 came back, hid the car, dumped the evidence, after he didn't go
21 back to his house but drove over to the east side because he
22 knew the FBI had made contact at his house, does this fact that
23 after all of that, he voluntarily turned himself in, dressed up
24 in a tie and a coat, carried his Bible and was ready to mitigate
25 the facts of the murders, does that weigh anything in your minds
1126
1 when you consider the murders of two 22-year-old people?
2 Mr. Laughrun said he made our job easy by confessing to
3 everything. No, he did not. The police already had
4 eyewitnesses to Roanoke, they had the car, they would get the
5 fingerprints, they would get the ballistics match of the two
6 murders. Only thing this defendant did was lead police to a
7 body four days after he murdered an individual. He didn't do
8 that at his mother's house, because he didn't think the police
9 knew he was involved. He didn't call the paramedics after he
10 shot Donnie Lee Allen, he didn't even call 911 after he killed
11 Robin, but he waited four days because he wasn't going to tell
12 anybody anything unless they already had it on him.
13 To understand his cooperation with the police, you have
14 got to understand his background with the police and others. He
15 always wins by telling his side of the story. Recall early on
16 that he told Investigator Yarbrough that the reason he beat the
17 children with the coat hangers was because the three-year-old
18 took his laces out of his shoe, couldn't remember why he beat
19 the five-year-old. But now when the defense psychiatrist comes
20 into the picture, the battery of psychiatrists and psychologists
21 they presented to you, then all of a sudden it's different, all
22 of a sudden he beat them because of inappropriate sexual
23 contact. I contend to you that those two statements can't both
24 be true.
25 He told psychiatrists in the case that he told Crystal
1127
1 right away that he beat her kids and admitted the severity of
2 it, and it was only when Crystal's mother got involved that
3 there was a problem. You heard Crystal testify that it was her
4 kids that told her about the beatings, not Barnette, and she
5 took those kids to her mother's house for protection. And then
6 she got severely beaten up by this defendant.
7 Remember Officer Joye? The defendant told Officer Joye
8 that he did not kick in the door at Alesha Chambers' uncle's
9 house. You heard from Jasper Chambers who said he kicked it in
10 not once, but twice. He told the psychiatrist about having a
11 knife on him when employees at Bojangles' came out which he used
12 in self-defense. You heard from Brent McCrickard, an eyewitness
13 to the knifing incident, and she testified that he held a knife
14 to Alesha Chambers' throat. You don't have to depend on
15 Alesha's Chambers for this. Brent McCrickard testified to this,
16 that he held it to her throat and threatened to kill her, not
17 self-defense. And when employees came out to assist her, he
18 swung his knife wildly at those employees. Ask yourself why the
19 defendant had a butcher knife on him on that occasion, the day
20 after he got out of jail, if it wasn't to assault Alesha
21 Chambers and not in self-defense.
22 I'm not asking you to consider Alesha Chambers to be a
23 very credible witness, I'm not asking you to do that. But when
24 I talk to you about the rape incident, I talk to you for this
25 reason: Was the defendant truthful with police in his responses
1128
1 to their questions when they came out there and arrested him for
2 the rape, was he truthful? He told the police he had not been
3 with Alesha Chambers that night. He told the police that the
4 black bra found in his bedroom was the bra that Alesha Chambers
5 left in the hotel the week before and he just brought it back.
6 Picture that in your mind, ladies and gentlemen of the jury.
7 The woman walks into a hotel room and leaves her bra and he
8 leaves with her and brings her bra back to his house on 3413
9 West Boulevard. Doesn't make sense.
10 Broken fingernail and torn shirt in his car, Alesha
11 Chambers must have tampered with the car because she planted
12 that evidence. That's what he told Investigator Brandon. Is
13 the defendant telling the truth? Alesha Chambers has no car,
14 she driven everywhere she goes by either the manager of the
15 store or by this defendant, but she must have planted that
16 evidence.
17 But fast forward to 1998 and when he is talking to the
18 psychiatrist. What does he tell Dr. Duncan? Yes, we had
19 consensual sex that night, but it wasn't forced. The story is
20 completely different. And you know what? He got away with it.
21 Alesha Chambers is a 16-year-old girl who had had consensual sex
22 with him the week before, and that's in a rape case, you have
23 one witness. Against that the defendant had evidence from his
24 family that he was there all by himself, and his testimony he
25 had not had sex with her. Of course that case can't be
1129
1 prosecuted. But years later, he admits for the first time that
2 he had consensual sex on that night.
3 Told the probation officer a series of lies, that he
4 lived in Charlotte when he lived in Roanoke, that he worked for
5 Courtyard by Marriott. When they called and found out he wasn't
6 working there, he said, no, I'm working for Temp World. They
7 called and found out he wasn't working there. And then he got
8 his aunt Sheila Cooper to lie for him. And the probation
9 officer verified through Sheila Cooper that he worked at the
10 Courtyard by Marriott. Said that he couldn't come in for office
11 visits because he had had a gunshot seven months before, doesn't
12 tell the probation officer that. The gunshot wound did not
13 prevent him from moving to Roanoke, getting a job at Camelot and
14 living a hidden life in Roanoke, but it does prevent him from
15 showing up for the office visits. The day he is supposed to be
16 in the probation officer's office he is out getting a fake ID,
17 told his brother he was going to the store, that's why he needed
18 his car. His brother lends him his car and he goes to Roanoke
19 and fire bombs the apartment. Supposedly between the fire
20 bombing and the murder, he is listless, sitting on a can in his
21 driveway doing nothing, waiting for the police to pick him up.
22 But what is he really during that time period? He's hiding out
23 at Shonda Nero's house for a few days. That's why Steve Austin
24 picks him up on the east side of town, carries him back to the
25 west side of town, talks with him, doesn't bring him home on the
1130
1 west side of town but brings him back to the east side. He is
2 hiding out for a few days, going up to Roanoke and stalking
3 Robin. He is buying two shotguns. That's no sitting on a can,
4 ladies and gentlemen, at the end of your driveway.
5 He never told the mitigation specialist that he had been
6 up to Roanoke to stalk Robin, to leave cards on her windows, he
7 never told her that, it's not in the time chart, denied doing
8 that to Dr. Duncan. But you have seen those letters and the
9 scribbled notes on each of those letters.
10 Ladies and gentlemen of the jury, as Thomas walker told
11 you, this is man who murders and lies, and that's what you've
12 got to realize as you consider his, quote, confession on
13 June 25th and June 28th. I want to run through those
14 confessions briefly with you if I can.
15 One thing he tells Investigator Sanders is, I didn't
16 mean to hurt him, but I knew he was hurt because I shot him real
17 close. Of course he meant to hurt him, he meant to kill him, he
18 meant to take his car. The second part of this, I knew I hurt
19 him because I shot him real close. Think of this, this is the
20 first interview by Sanders on the 25th. In his evolving
21 confession, you will see this dramatically change. He tells
22 Robin, don't worry, I've got one for you, one for me and one for
23 you. What does he do? Shoots her twice. Reloads his gun with
24 two rounds in case he is stopped.
25 This is the single most important statement of the
1131
1 defendant I submit to you in analyzing his remorse. Why the
2 month not talking to each other? This is Investigator Rice, who
3 has no idea that there was a prior incident, prior fire bombing
4 in Roanoke on April 30th. Why the month not talking to each
5 other? What is the obvious answer from a remorseful defendant?
6 I can't call her, I don't have any money, I have to get a
7 calling card to call her and I didn't have any money, I didn't
8 have any money. Isn't that the obvious answer, when six weeks
9 ago you fire bombed her apartment and sent her to the hospital
10 for skin grafts? Isn't the obvious answer why he hadn't talked
11 because he didn't have a calling card? How can this possibly be
12 remorse?
13 They brought up in cross-examination and in argument
14 that the investigators never asked about the fire bombing so he
15 never told them. Why the month? Isn't the obvious answer,
16 well, I fire bombed her apartment, did I tell you about that?
17 There is no remorse in the man sitting in Investigator Rice's
18 interview room answering questions.
19 This is almost as bad, what was your purpose, what was
20 your purpose of buying the shotgun? And you remember his
21 answer, don't you? I bought the shotgun for the protection of
22 the house. And later on he says, I've been shot in the house
23 that had varmits and snakes around the house, that's the reason
24 I bought that gun. Now, you will recall the testimony in this
25 case that in January of 1995, he had a rifle, he was in the
1132
1 company of his mother, this is his mother testifying, and he
2 shot up a radio in his cousin's shack. You remember that
3 testimony. The family had a rifle for protection. But you know
4 you can't saw off the barrel of the family rifle. He needed a
5 new weapon, a weapon he could saw the barrel off, tape a
6 flashlight to and kill somebody else with it. That rifle had
7 nothing to do with protection of the house. They had a rifle at
8 the house already.
9 This defendant would have you believe that he was
10 waiting to turn himself in to the police during this time
11 period. Why this sudden interest in home protection? I would
12 submit to you that there is only one and only one reason he
13 bought the shotgun and sawed it off, had nothing to do with
14 snakes and varmits. If that is true, if you find that to be
15 true, how can you possibly consider this defendant remorseful?
16 Investigator Holl doesn't get a chance to talk to
17 Barnette until three days later. Barnette is in the jail with
18 three days to consider what kind of answers he is going to give
19 to Investigator Holl, and I want you to compare the answers he
20 gives to Holl with the answers he gave to Sanders. Holl asked
21 him what kind of car he was in. He said it was a black Honda,
22 that's all I could tell, I knew it was a Prelude, but it was
23 really blurry, I had drank like six beers, and I know it was a
24 black Honda, that's about all I got out of it.
25 Recall when Sanders and Womble brought him back to the
1133
1 law enforcement center, like that (indicating) he picked out the
2 vehicle. He said, that's the blue Honda, and he described it,
3 that's it. This is a man who drove 660 miles in this car, and
4 all he can remember about it is it was black. This is a man who
5 stole a license plate and screwed it on the back of the car, but
6 everything was really blurry because he had drank six beers.
7 After the psychiatrist team gets together, all of a sudden it's
8 beer and vodka and everything else. There was no inability of
9 this defendant to recall what he did that night in detail, but
10 when he is talking to Holl, he is minimizing.
11 Remember he told Sanders, I knew I hurt him because I
12 shot him real close. Three days later, I don't know if I hit
13 him or not, I just shot where he was standing. How the story
14 has changed. Is that remorse, is that compassion? Dr. Duncan
15 testified this man doesn't seen know the definition of
16 compassion. He got a zero on that question during the Butner
17 examination. When you got back in the car and you headed toward
18 Wilkinson Boulevard, did you ever stop to call the police or to
19 call a medic? No, I was scared. I didn't think I really had
20 shot him. You know, if I thought I had shot him, I thought he
21 would -- you always hear about people getting shot, and then
22 where that traffic was, I thought maybe he'll get up and
23 somebody will see him. Didn't even know if he had shot him,
24 when three days earlier he knew he had hurt him real bad because
25 he was so close.
1134
1 He is able to pick up a wallet and a duffel bag. He is
2 able to recall everything he did that night. The testimony from
3 Officer Holl, Investigator Holl is that the crime scene is
4 consistent with dragging the body down into the drainage ditch,
5 but three days later he doesn't even know if he shot him.
6 Doesn't know if he shot him, doesn't know why he shot him. Is
7 there anybody in this courtroom that doesn't know why the
8 defendant shot Donnie Lee Allen? You recall Investigator Rice
9 asking him earlier why he fled from Roanoke, and his answer was,
10 I don't know. Is that remorse?
11 This is a lengthy extract from the Holl interview in
12 which he talks about the reasons for -- he talks about his
13 suicide and the reason for why he did that, and he said he
14 couldn't just sit there and kill myself selfishly, that he had
15 to go to church, but he knew that they might arrest him before
16 he got a chance to go to church. And so that's why he took a
17 tag off of another car in the hotel parking lot. He stole the
18 tag so he could go to church. Of course he did. It would have
19 been selfish for him to turn himself in, to tell the police
20 where Donnie's body was and to end the Allen agony. A tag
21 stayed on a car a long time after he went to church. It helped
22 elude arrest, helped him to hide the car behind the shopping
23 center and dispose of the evidence.
24 Then Holl asks him about the inspection sticker, and I
25 don't know if you recall that the way in which this defendant
1135
1 answered that question, but no one else asked him about the
2 inspection sticker and he certainly hadn't told anybody that
3 when he was trying to commit suicide and go to church, that he
4 scraped the inspection sticker off the car. And when Holl
5 confronted him with that on side A, he said oh, yeah, and then
6 confessed to scraping the sticker off. But what was the reason
7 for it? Again, he couldn't kill himself if the police stopped
8 him, so he scraped the inspection sticker off so he could kill
9 himself. Steals the license plate to go to church, scrapes the
10 inspection sticker offer to kill himself, and he never admitted
11 once that the reason he did those things was to avoid arrest.
12 Was that remorse?
13 The final point I want to draw your attention to is the
14 reasons why he hid the car behind the shopping center and put
15 the stuff in the dumpster, and I'm sure that the first thing
16 that comes to your mind is he did that so he could store
17 everything in a safe place, because that's where, I'm sure, you
18 would all store something that you wanted to store in a safe
19 place. This double murderer all of a sudden is concerned with
20 someone picking up the shotgun, so he stores it in a safe place,
21 a dumpster. He parked the car behind a shopping center
22 according to him so the police could find it. Now, he's been
23 down to the law enforcement center several times in his young
24 adult life. He knows where that is. If he were concerned about
25 safety and returning the car to the police and turning himself
1136
1 in and helping, there is an easy way to do that and it's not
2 parking behind a shopping center and it's not putting the burden
3 weapon in the dumpster.
4 So you have to ask yourself, this assistance to the
5 police, this confession, does it mitigate anything, does it take
6 one iota away from the substantial premeditation and planning,
7 the killing of Donnie Lee Allen so he could kill Robin
8 Williams? The aggravating factor of Donnie Lee Allen's death on
9 the murder of Robin Williams, two murders within a 24-hour
10 period, do these confessions mitigate that, murdering just to
11 get a car and a wallet, pointing a gun at Mrs. Williams and her
12 baby, pointing a gun at Sonji Hill and threatening to kill her?
13 The loss to these victim families that you have heard about,
14 does it mitigate? I submit to you that Uncle Ray had it about
15 right when this defendant is stalking Robin Williams, trying to
16 find out where she is, tells him he didn't have anything to do
17 with her injuries. Uncle Ray had it about right, he hung up the
18 phone calling him a goddamn liar.
19 I submit to you that every mother who ever had a
20 daughter preyed upon by this predator had it about right when
21 that mother tried everything she could to keep him away from
22 their daughter.
23 I'll talk briefly about this whole notion of the police
24 failing him. See, everybody is responsible for Mark Barnette
25 except Mark Barnette. His family has failed him, the police
1137
1 failed him by not coming by West Boulevard, even though he
2 wasn't there as the evidence showed. The gun dealer failed him
3 because he didn't verify the truth of what he was saying. The
4 probation officer failed him because he didn't check the
5 computer to see if he was lying to him. And the most
6 mild-mannered psychologist imaginable, Dr. Scott Duncan, is
7 accused by Mr. Paul Williams of working with the government to
8 send him to the gas chamber. That's an outrageous improper
9 cross-examination question, and the Judge sustained an objection
10 to it and asked you not to consider it. But what I would ask
11 you to consider is why the desperate finger pointing. Is that
12 the kind of argument counsel makes when they want you to follow
13 the evidence, listen to the instructions and obey your oath?
14 There is a lot more concerning their mitigating evidence
15 that I wanted to explore with you, but I think you have heard
16 enough and I think you have heard in detail the description of
17 these two callous, brutal murders by this defendant, and now you
18 must decide whether the ultimate punishment should be given for
19 these ultimate crimes. It's an awesome responsibility, but one
20 you are capable of bearing up to and performing. Listen to
21 Ralph Waldo Emerson as he says, so near is God to man when duty
22 whispers low, thou lust, that youth replies, I can't. I ask you
23 to speak the truth, to be a voice for the voiceless in this
24 trial. I ask you to impose the death penalty on this defendant
25 because that is the only sanction that will serve justice and
1138
1 truth in this case, and I urge you to impose it. Thank you.
2 THE COURT: Members of the jury, we will let you go to
3 lunch at this time, ask you to come back at 2:00 o'clock.
4 You've got an hour and 15 minutes. It's very important you do
5 not discuss this case among yourselves while you are out.
6 Obviously, you're not to discuss it with anyone else, and
7 obviously you are not to read anything about it. I don't know
8 whether there is anything you can read about it, but in any
9 event, don't read anything about it or listen to anything about
10 it. See you back here at 2:00 o'clock.
11 Now, when you come back in, you're going to be back
12 there by yourselves. I'm ordering you, and I'm sure you will
13 abide by it, do not discuss this case until after you hear the
14 instructions. Talk about anything you want. See you at 2:00
15 o'clock, thank you so much.
16 (The jury left the courtroom.)
17 MR. LAUGHRUN: Judge, I would like to object and move
18 for a mistrial on the characterizations by Assistant U.S
19 Attorney Bob Conrad, challenging the jury twice to be the,
20 quote, voice for the voiceless. That is improperly putting the
21 jury as a participant or party in this case. It's highly
22 prejudicial and inflammatory. It's also improper. I move for a
23 mistrial at this time and ask Your Honor to sentence the
24 defendant to life imprisonment under Counts 7, 8 and 11, and in
25 the alternative bring the jury in and ask them to disregard
1139
1 those last two challenges by the government, if Your Honor
2 please.
3 THE COURT: Do you want to say anything, Mr. Conrad?
4 MR. CONRAD: No, sir.
5 THE COURT: All right, thank you. Mr. Laughrun, I
6 disagree with you, deny your motion.
7 Now, we have the instructions. If you have any
8 objections to anything, either side, let me know in the next 15
9 or 20 minutes, because I'm not going to change anything except
10 in pencil if you want to do that, but I don't think there is
11 anything there to be changed. Page 2A and 2B which I have added
12 is nothing more than a description of the statutory mitigating
13 circumstances and the statutory aggravating circumstances and so
14 forth.
15 All right, we'll see you at 2:00 o'clock then, recess
16 until 2:00 o'clock.
17 MR. LAUGHRUN: Judge, do you want us back a few minutes
18 earlier in case we did have any --
19 THE COURT: Yeah, if you have anything, let me know.
20 What time did I tell you, 2:00 o'clock? 1:50 ought to be plenty
21 of time.
22 (Lunch recess.)
23 MR. LAUGHRUN: Before you do, Judge, I had asked Mike,
24 we had made a request Friday for a supplemental instruction. My
25 notes indicate that you were going the give the majority of it,
1140
1 and so --
2 THE COURT: I thought I said no, Mr. Laughrun.
3 MR. LAUGHRUN: I was getting ready to ask Mr. Huseby.
4 THE COURT: If you say so, I will look at it and see.
5 MR. LAUGHRUN: My recollection was you were going to
6 give part of it, not exactly the way we drafted, but a certain
7 extent. I was just getting ready to ask him if he could punch
8 up -- we did that before the charge conference started on
9 Friday, and my recollection was you were going to give part of
10 it, and that was my recollection.
11 THE COURT: What recollection -- what did I say I was
12 going to do, what did I say I was going to do as far as --
13 MR. LAUGHRUN: Judge, I don't recall to be exact. I
14 thought you were going to give some modification of that.
15 THE COURT: What do y'all recall about this? I thought
16 I said we weren't going to do it.
17 MR. CONRAD: I thought that's what you said. I thought
18 it was factually wrong that they hadn't excluded anybody from
19 the courtroom.
20 MR. LAUGHRUN: Judge, maybe Scott --
21 THE COURT: Well, I don't want to take the time to do
22 that. I'm just going to say the victim's family is allowed in
23 under the rules of the Court, okay?
24 MR. CONRAD: Thank you, sir.
25 MR. LAUGHRUN: All right, sir.
1141
1 THE COURT: There's no provision for the defendant's
2 family.
3 MR. LAUGHRUN: Also, Judge, about the lesser sentence
4 objection we had, I didn't know how you wanted to handle that.
5 For the record, we objected to that on the verdict form. It
6 appears three places, at Roman numeral, or denominated as C --
7 THE COURT: Lesser sentence instead of other sentence?
8 MR. LAUGHRUN: We would like to have other sentence
9 instead of lesser sentence.
10 THE COURT: All right, I'm going to say other sentence
11 such as a lesser sentence.
12 MR. LAUGHRUN: Also, Judge, at this time, I think we
13 have to renew our allocution motion that you've denied.
14 THE COURT: Yes, sir.
15 MR. LAUGHRUN: We would renew that request at this time.
16 THE COURT: Thank you, sir, the request is denied. Call
17 the jury.
18 (The jury returned to the courtroom.)
19 THE COURT: All right, members of the jury, this is the
20 first sunny day you've had for lunch. I think it's rained every
21 day. Maybe things are looking up for us.
22 Before we begin, I am going to ask the Clerk to hand out
23 to you, each one of you, a copy of the indictment and a copy of
24 the verdict form. Now, do not start thumbing through it until
25 you get to each part of it, because you won't be paying
1142
1 attention to anything else that's going on. So just go ahead
2 and take that and keep it on your lap and then we'll get to it
3 in just a minute.
4 Now, members of the jury, first thing before I forget
5 it, I want to inform you, noticed, of course, the victims'
6 family, that is, Mr. Allen's family and Ms. Williams' family
7 have been in the courtroom. The rules of the Court allow that,
8 the rules of the -- the Federal Rules allow that. It says
9 nothing about the defendant's family. Ordinarily, witnesses are
10 sequestered in a trial to keep those from hearing -- those who
11 have come in to hear what those who are testifying have had to
12 say. I did want to let you know the reason the victims'
13 families were in here was because the rules provide for that,
14 and it says nothing about the other and so they were excluded.
15 Now, each of you have a copy of the indictment there
16 before you, and I'm going to try to go down the indictment and
17 the instructions and tie the two together for you. The verdict
18 form which you also have has very explicit instructions as to
19 how you are to proceed. For example, on the first page of the
20 verdict form, starts out the age of defendant, do the jury
21 unanimously find that the government has established beyond a
22 reasonable doubt that the defendant was 18 years of age or older
23 at the time of the offense in Count 7, yes or no, you just check
24 yes or no. Now, if you check yes, you go on. Do you follow me,
25 on the first page of the verdict form. The verdict form is up
1143
1 underneath the indictment, which you have a copy of. If you
2 check yes, of course, you go ahead. If you check no, he is not
3 18 years of age, we don't have anything for you to go further
4 on. That's just an example.
5 Now, let's go ahead, then, with the instructions, and I
6 will, as we get to each part of it, I'll explain it to you
7 hopefully as well as it is explained in the verdict form
8 itself.
9 Now, as far as the instructions are concerned, members
10 of the jury, you have unanimously found the defendant guilty of
11 the offense in Counts 7, 8 and 11 of the indictment, and we'll
12 go over those with you in just a moment. You must now consider
13 whether imposition of a sentence of death is justified as to any
14 one, two or all three of those counts, or whether the defendant
15 should be sentenced to life imprisonment without the possibility
16 of release or as provided by law for the commission of these
17 crimes. You must make this decision separately for each count.
18 You are not required to make the same decision on each count and
19 your deliberations must be separate as to each count.
20 The law leaves this decision exclusively to you, the
21 jury. If you determine that the defendant should be sentenced
22 to death, or to life imprisonment without the possibility of
23 release, the Court is required to impose that sentence. If you
24 recommend the defendant be sentenced to a sentence as provided
25 by law, then the Court will sentence the defendant as provided
1144
1 by law. I will now instruct you as to the process you must
2 follow separately in making your verdict, and this process must
3 be followed as to each of Counts 7, 8 and 11 separately.
4 Now, there are two terms that you have heard and will
5 hear throughout these instructions. Those are the aggravating
6 factors and mitigating factors. These factors have to do with
7 the circumstances of the crime or personal traits, character or
8 background of the defendant and/or victims.
9 The word "aggravate" means to make worse or more
10 offensive, to intensify. The word "mitigate" means to make less
11 severe or to moderate. An aggravating factor is a fact or
12 circumstance which would tend to support imposition of the death
13 penalty. A mitigating factor is an aspect of defendant's
14 character or background, any circumstances of the offense or any
15 other relevant fact or circumstance which might indicate that
16 the defendant should not be sentenced to death.
17 In the death penalty statute, aggravating factors are
18 listed, and these are called statutory aggravating factors and
19 will be referred to both in the verdict form and in the
20 instructions as statutory aggravating factors. As I instructed
21 you earlier, you may consider imposition of the death penalty
22 for any one, two or all three of Counts 7, 8 or 11 -- before you
23 may consider that, you must find that the government proved at
24 least one of the aggravating factors specifically listed in the
25 death penalty statute, and your finding must be unanimous and
1145
1 beyond a reasonable doubt.
2 Now, there also may be nonstatutory, and there are in
3 this case, nonstatutory aggravating factors listed, which are
4 those not specifically set out in the death penalty statute.
5 Again, your finding that any nonstatutory aggravating factor
6 exists must be unanimous and beyond a reasonable doubt. You
7 must determine the existence of the aggravating factors
8 separately for each of Counts 7, 8 and 11, and you are not
9 allowed to make -- to take an aggravating factor from one count
10 and apply it to another count unless I so instruct you.
11 Now, the defendant has the burden of proving any
12 mitigating factors. However, there is a different standard of
13 proof as to mitigating factors. You need not be convinced
14 beyond a reasonable doubt about the existence of a mitigating
15 factor; you need not be convinced beyond about a reasonable
16 doubt -- excuse me, I'll start over, I missed a sentence there.
17 You need not be convinced beyond a reasonable doubt about the
18 existence of a mitigating factor; you need only be convinced
19 that it's more likely true than not true in order to find that
20 it exists. A unanimous finding is not required, and any one of
21 you may find the existence of a mitigating factor.
22 Now, if you have found at least one statutory
23 aggravating factor exists, you must then weigh the aggravating
24 factors you found to exist against any mitigating factors you
25 found to exist to determine the appropriate sentence. I will
1146
1 give you detailed instructions regarding the weighing of
2 aggravating and mitigating factors before you begin your
3 deliberations. However, I instruct you now that you must not
4 simply count the numbers of aggravating factors and mitigating
5 factors and reach a decision based on which number is greater.
6 That is, if there are 10 of one and 12 of the other, you don't
7 just say the 12 won, that must be it. You must consider and
8 weigh the value of each factor.
9 Now, in making all the determinations you are required
10 to make in this phase of the trial, you may consider any
11 evidence that was presented during the guilt phase of the trial
12 as well as evidence that was presented as this sentencing phase
13 of the trial.
14 In deciding what the facts are, you may have to decide
15 what testimony you believe and what testimony you do not
16 believe. You may believe all that a witness says, or only part
17 of it, or none of it. In deciding that testimony, or what
18 testimony of any witness to believe, consider the witness's
19 intelligence, the opportunity the witness had to be seen or
20 heard about the things he or she testified about, the witness's
21 memory, any motives that the witness may have for testifying a
22 certain way, the manner of the witness while testifying, and
23 whether that witness said something differently at an earlier
24 time, the general reasonableness of the testimony, and the
25 extent to which the testimony is consistent with other testimony
1147
1 that you believe.
2 Now, regardless of any opinion you may have as to what
3 the law may be or should be, it would be a violation of your
4 oaths as jurors to base your verdict upon any view of the law
5 other than that given you in these instructions.
6 Some of the legal principles that you must apply to this
7 sentencing decision duplicate those you followed in reaching
8 your verdict as to guilt or innocence. Others are different.
9 The instructions I am giving you now are a complete set of
10 instructions on the law applicable to the sentencing decision.
11 We have prepared them to ensure that you are clear in your
12 duties at this extremely serious stage of the trial. I have
13 also prepared special verdict forms, which you now have in your
14 hand, and you must complete that as to each of the Counts 7, 8
15 and 11. The forms detail special findings you must make in this
16 case and will help you to perform your duties properly.
17 I told you this was a serious stage of trial. Again, I
18 will ask you the one question I've been asking you. Over the
19 lunch period, did any of you see, hear anything about this case
20 while you were out or read anything about the case?
21 (Jurors shake heads.)
22 THE COURT: I take it from your head, you said no,
23 shaking of the head.
24 Now, before you may consider the imposition of the death
25 penalty, you must first unanimously agree beyond a reasonable
1148
1 doubt, as I said, that the defendant was 18 years of age or
2 older at the time of each of the offenses. If you unanimously
3 make that finding, you should so indicate on the first page of
4 the verdict form and continue your deliberations. If you do not
5 unanimously make that finding, you should so indicate on the
6 appropriate page of the verdict form, which again is Page 1, and
7 no further deliberations will be necessary.
8 Now, I'm going to read to you next Counts 7, 8 and 11,
9 at least Count 7 because they we'll start with Count 7. That's
10 in your indictment and you have a copy of it, but I just want to
11 go over it with you now. On or about June 22, 1996, in
12 Mecklenburg County within the Western District of North
13 Carolina, the defendant, Aquilia Marcivicci Barnette, with
14 intent to cause death or serious bodily harm did knowingly,
15 willfully and unlawfully take by force, violence and
16 intimidation, that is, he shot to death and took from the person
17 of Donald Lee Allen a motor vehicle which had been shipped,
18 transported and received in interstate or foreign commerce, that
19 is, a 1994 Honda Prelude automobile that has the vehicle
20 identification number on it, I'm not going to go through that
21 with you, and that's in violation of Title 18 United States
22 Code, Section 21193.
23 Now, before you may consider the imposition of the death
24 penalty for the commission of Count 7, you must also unanimously
25 find that a reasonable -- beyond a reasonable doubt that the
1149
1 defendant intentionally killed or committed acts resulting in
2 the death of Donald Lee Allen in one or more manners described
3 below. Now, if you unanimously make at least one of these
4 findings as to the murder of Donald Lee Allen in Count 7, you
5 should so indicate on Page 2 of your verdict form. If you look
6 at Page 2 of your verdict form, you will see the requisite
7 mental state right up at the very top. For each of the
8 following, answer yes or no, do you the jury unanimously find
9 that the government has proved beyond a reasonable doubt that
10 the defendant intentionally killed Donald Lee Allen in Count 7.
11 So go ahead and -- not right now, you do that when you get back
12 in the jury room after your deliberations. When I say go ahead,
13 what I mean is go ahead whenever you get back there and check
14 that either yes or no.
15 Now, the second question, do you the jury unanimously
16 find the government has proved beyond a reasonable doubt that
17 the defendant intentionally inflicted serious bodily injury
18 which resulted in the death of Donald Lee Allen in Count 7, and
19 you check yes or no. The third question, on Page 3, do you the
20 jury unanimously find that the government has proven beyond a
21 reasonable doubt that the defendant intentionally engaged in
22 conduct intending that Donald Lee Allen be killed and/or that
23 lethal force be employed against Donald Lee Allen which resulted
24 in the death of Donald Lee Allen in Count 7, again just check
25 yes or no.
1150
1 Now, if you unanimously make at least one of these
2 findings as to the murder of Donald Lee Allen in Count 7, you so
3 indicate as I say on Pages 2 and 3 of the special verdict form
4 and continue your deliberations. If you do not unanimously make
5 at least one of these findings as to the murder of Donald Lee
6 Allen in Count 7, you should so indicate on the appropriate
7 page, 2 or 3, of the special verdict form and no further
8 deliberations will be necessary as to Count 7 in the murder of
9 Donald Lee Allen in Count 7.
10 The government alleges that as to the murder of Donald
11 Lee Allen in Count 7: The defendant, first, the defendant
12 intentionally killed Donald Lee Allen. To establish that the
13 defendant intentionally killed the victim, the government must
14 prove that the defendant killed the victim with a conscious
15 desire to cause the victim's death; number two, the defendant
16 intentionally inflicted bodily injury that resulted in the death
17 of Donald Lee Allen, which resulted in the death on Donald Lee
18 Allen. The government must prove that the defendant
19 deliberately caused serious bodily injury to the victim's body
20 which in turn caused the victim's death. "Serious bodily
21 injury" means a significant or a considerable amount of injury
22 which involves a substantial risk of death, unconsciousness,
23 extreme physical pain, protracted and obvious disfigurement, or
24 protracted loss or impairment of a body member, organ or mental
25 factor.
1151
1 1C of the statute reads, the defendant intentionally
2 participated in an act, contemplating that the life of a person
3 would be the taken or intending that lethal force would be used
4 in connection with a person other than one of the participants
5 in the offense and the victim, Donald Lee Allen, died as a
6 result. The government must prove the defendant deliberately
7 shot Donald Lee Allen with a conscious desire that the victim be
8 killed or that lethal force be employed against the victim. The
9 phrase "lethal force" means an act or acts of violence capable
10 of causing death.
11 And 1D of the statute reads, the defendant intentionally
12 and specifically engaged in an act of violence, knowing that the
13 act created a grave risk of death to the person. Other than one
14 of the participants of the offense -- other than one of the
15 participants in the offense, such that participation in the act
16 constituted a reckless disregard for human life and Donald Lee
17 Allen died as a direct result of the act, by shooting.
18 Now, intent or knowledge may be proved like anything
19 else. You may consider any statements made and acts done by the
20 defendant, and all of the facts and circumstances in evidence
21 which may aid in determining the defendant's knowledge or
22 intent.
23 You may not and are not required to infer that a person
24 intends the natural and probable -- excuse me, you may, but are
25 not required to, infer that a person intends the natural and
1152
1 probable consequences of acts knowingly done or knowingly
2 omitted.
3 Now, if you unanimously find beyond a reasonable doubt
4 that the existence of at least one or more of the requisite
5 mental states as found in the previous section, you must then
6 proceed to determine whether the government has proved beyond a
7 reasonable doubt the existence of any one of the following
8 alleged statutory aggravating factors with respect to the same
9 murder in Count 7.
10 In this case, the government has alleged as statutory
11 aggravating factors as to Count 7 that: one, the defendant
12 committed the offense in Count 7 in an expectation of the
13 receipt of something of pecuniary value; and two, the defendant
14 committed the offense in Count 7 after substantial planning and
15 premeditation to cause the death of Donald Lee Allen.
16 The law permits you to consider and discuss at this
17 point only statutory aggravating factors specifically claimed by
18 the government which the government alleges to exist in Count
19 7.
20 There, first of all, as to the commission of the
21 pecuniary -- of the offense for pecuniary gain, the first
22 aggravating factor contended for by the government is the
23 defendant committed the offense in Count 7 in the expectation of
24 the receipt of anything of pecuniary value, namely a Honda
25 automobile and Allen's wallet and money.
1153
1 To establish that a defendant committed an offense in
2 the expectation of the receipt of anything of pecuniary value,
3 the government must prove, in essence, that the defendant
4 committed the offense in the expectation of anything in the form
5 money, property, or anything else having some economic value,
6 benefit or advantage. There is no requirement that the
7 government prove that something of pecuniary value actually
8 changed hands. The words "receipt or expectation of receipt"
9 should be given their ordinary, everyday meaning which includes
10 obtaining or expecting to obtain something. In this case, the
11 government alleges that the pecuniary pain is the expectation of
12 taking victim Allen's motor vehicle and victim Allen's wallet
13 and money.
14 Now, the next one is commission of the offense after
15 substantial planning and premeditation. The second aggravating
16 factor the government contends is that the defendant committed
17 the offense of carjacking resulting in death as charged in Count
18 7 of the indictment for which you have found him guilty after
19 substantial planning and premeditation to cause the death of
20 Donald Lee Allen. "Planning" means mentally formulating a
21 method for doing something or achieving some
22 end. "Premeditation" means thinking or deliberating about
23 something and deciding whether to do it
24 beforehand. "Substantial planning and premeditation" means a
25 considerable or significant amount of planning and premeditation
1154
1 above the minimum required for the commission of the offense in
2 Count 7.
3 Now, if the government does not satisfy you, each of
4 you, the government does not satisfy each of you beyond a
5 reasonable doubt that at least one of the statutory aggravating
6 factors exists for Count 7 in the murder of Donald Lee Allen,
7 you should enter a finding to that effect as to that particular
8 count on Page 4 of the verdict form and no further deliberations
9 as to that particular count will be the necessary.
10 In the event that you unanimously find that the
11 government has proven beyond a reasonable doubt the existence of
12 at least one of the statutory aggravating factors with respect
13 to the murder of Donald Lee Allen in Count 7, please enter that
14 finding on Page 4 of the special verdict form and continue your
15 deliberations.
16 Page 5 of the verdict form explains that under
17 instructions. I will read that so we will all be on the same
18 page. If you answered no with respect to both aggravating
19 factors in Section 3, then stop your deliberations, cross out
20 Sections 4, 5 and 6 of this form and proceed to Section 7 of
21 this form. Each juror should then carefully read the statement
22 in Section 7 and sign at the appropriate place if the statement
23 accurately reflects the manner in which he or she reached his or
24 her decision. You should then advise the Court that you have
25 reached a decision. If you found the requisite age in Section
1155
1 1, the requisite mental state in Section 2 and answered yes with
2 respect to any one of the statutory aggravating factors in this
3 Section 3, then proceed to Section 4 which follows.
4 Now, the nonstatutory aggravating factors, what are
5 they, you must consider whether the government has proven the
6 existence of any nonstatutory or miscellaneous aggravating
7 factors as to Count 7 and the murder of Donald Lee Allen. As in
8 the case for statutory aggravating factors, you must unanimously
9 agree the government has proved beyond a reasonable doubt the
10 existence of any of the alleged nonstatutory aggravating factors
11 before you may consider such factors in your deliberations on
12 the appropriate punishment for the defendant in this case.
13 The law permits you to consider and discuss only those
14 aggravating factors specifically claimed by the government with
15 respect to Count 7 and listed below. You are not to consider
16 any of the other facts in aggravation which you receive of on
17 your own.
18 The nonstatutory aggravating factors that the government
19 has alleged in this case as to Count 7 are that: number one,
20 the defendant caused harm to the family of Donald Lee Allen as a
21 result of the impact of killing of Donald -- excuse me, as a
22 result of the impact of the killing on the family of Donald Lee
23 Allen; number two, the defendant is likely to commit criminal
24 acts of violence in the future which would be a continuing and
25 serious threat to society; number three, the defendant
1156
1 intentionally killed two people in that in addition to Donald
2 Lee Allen, the defendant also killed Robin Williams.
3 In the event that you unanimously find that the
4 government has proved beyond a reasonable doubt the existence of
5 any of these nonstatutory aggravating factors with respect to
6 Count 7, please enter that finding on Page Number 5 of the
7 verdict form and continue your deliberations. Even if you do
8 not find the existence of any nonstatutory aggravating factor,
9 you should continue your deliberations as to Count Number 7.
10 And you will see that explained to you on Page Number 5 of the
11 verdict form.
12 If you answered no up at the top of the instructions, if
13 you answered no with respect to both the statutory aggravating
14 factors and this Section 3, then stop your deliberation, cross
15 out Sections 4, 5 and 6 and go on and proceed to Section 7.
16 Each juror should then carefully read the statement in Section
17 7, sign in the appropriate place if the statement accurately
18 reflects the manner in which he or she reached a decision. You
19 should then advise the Court you have reached a decision. If
20 you found the requisite age in Section 1, the requisite mental
21 state in Section 2 and answered yes with respect to one or both
22 of the statutory aggravating factors in Section 3, then proceed
23 to Section 4 which follows.
24 Now, Section 4, before we get to that, let's talk about
25 mitigating factors. Before you may consider the appropriate
1157
1 punishment for the commission of Count 7, you must consider
2 whether the defendant has established the existence of any
3 mitigating factors. A mitigating factor is any fact about the
4 defendant's life, background, record or character, or about the
5 circumstances surrounding the intentional killing of Donald Lee
6 Allen or any other relevant fact that would suggest, in
7 fairness, that a sentence of death is not justified.
8 Unlike aggravating factors, which you must unanimously
9 find proved beyond a reasonable doubt in order for you to
10 consider them in your deliberations, the law does not require
11 unanimity with regard to mitigating factors. Any juror may find
12 the existence of a mitigating factor and must consider it in
13 this case. Also unlike aggravating factors, you do not need to
14 find the existence of a statutory mitigating factor before you
15 can proceed to determine the existence of any nonstatutory
16 mitigating factor.
17 It is the defendant's burden to establish any mitigating
18 factors, but only by a preponderance of the evidence. This is a
19 lesser standard of proof under the law than proof beyond a
20 reasonable doubt. A factor is established by a preponderance of
21 the evidence if it's existence is shown to be more likely so
22 than not so. In other words, a preponderance of the evidence
23 means such evidence as, when considered and compared with that
24 opposed to it, produces in your mind the belief that what is
25 sought to be established is, more likely than not, true. In the
1158
1 special verdict form relating to mitigating factors, you are
2 asked to report the total number of jurors that find a
3 particular mitigating factor established by a preponderance of
4 the evidence.
5 If you'll look at Page 7, you'll see what we are talking
6 about on that. That says in the verdict form, a finding with
7 respect to a mitigating factor may be made by any one or more of
8 the members of the jury, and any member of the jury who finds
9 the existence of a mitigating factor must consider such factor
10 in establishing and considering whether or not a sentence of
11 death shall be imposed regardless of the number of other jurors
12 who agree that the factor has been established.
13 The statutory mitigating factors which the defendant
14 contends have been proved by the preponderance are: one, the
15 defendant's capacity to appreciate the wrongfulness of his
16 conduct or to perform his conduct to the requirements of the law
17 was significantly impaired, regardless of whether the capacity
18 was so impaired as to constitute a defense to the charge. There
19 again, whatever number of jurors, if any, find that factor to be
20 established, you would enter that number there.
21 The second one, the defendant was under unusual and
22 substantial duress, regardless of whether the duress was of such
23 a degree as to constitute a defense to the charge, and again,
24 the number of jurors who so find; third, the other factors in
25 the defendant's childhood, background or character mitigate
1159
1 against the imposition of the death sentence, again the number
2 of jurors as to their findings there, just the number of jurors,
3 not their names.
4 I will go over those with you again, the statutory
5 mitigating factors which the defendant asserts he has proved by
6 the preponderance are: number one, the defendant's capacity to
7 appreciated the wrongfulness of his conduct or to conform his
8 conduct to the requirements of the law was significantly
9 impaired, regardless of whether the capacity was so impaired as
10 to constitute a defense to the charge; two, the defendant was
11 under unusual and substantial duress, regardless of whether the
12 duress was of such a degree as to constitute a defense to the
13 charge; and number three, the other factors in the defendant's
14 childhood, background or character mitigate against imposition
15 of a death sentence.
16 Now, the nonstatutory mitigating factors which the
17 evidence tends to show are as follows, and these again are
18 listed on the verdict form:
19 1. The defendant assisted the police in locating Donald
20 Allen's body, number one;
21 2. The defendant voluntarily turned himself in;
22 3. The defendant had no positive family role model
23 during his teenage years;
24 4. The defendant grew up in a home which condoned
25 domestic violence and frequently saw his mother abused;
1160
1 5. The defendant was physically and emotionally abused
2 by his father;
3 6. The defendant was neglected by his mother when she
4 was drunk and distraught over the breakup of her marriage;
5 7. The defendant was never allowed to resolve issues of
6 childhood before he was thrust into a caretaker's role of caring
7 for his mother, aunt, brother and aging grandfather when his
8 mother divorced his father;
9 8. The defendant has worked consistently since age 15
10 and many times worked more than one job;
11 9. The defendant grew up in a home where alcohol and
12 drugs were used frequently;
13 10. The defendant grew up in a home where violence was
14 prevalent;
15 11. After the beating in Atlanta, the defendant lost
16 interest in school and stopped going to school;
17 12. The defendant went to church with his grandfather,
18 Jessie;
19 13. The defendant pled guilty to two prior convictions
20 and accepted responsibility for them;
21 14. The defendant confessed to his friend Steve Austin
22 and Steve's mother, Ann Austin, with regard to the fire incident
23 in April of 1996;
24 15. The defendant confessed to the police;
25 16. Since his arrest, the defendant has been a model
1161
1 inmate.
2 Those are the ones and they are listed on the verdict
3 form, so you don't need to try to memorize all of those right
4 now.
5 Now, other nonstatutory factors which the defendant
6 contends are:
7 1. An unstable home life and frequent moves during
8 childhood denied the defendant the skills to form normal peer
9 relationships;
10 2. The defendant showed remorse by trying to kill
11 himself when he realized what he had done;
12 3. The defendant prayed for the souls of his victims;
13 4. The defendant exhibited psychological problems as a
14 minor for which his family failed to seek medical attention or
15 treatment;
16 5. The defendant cooperated with the police;
17 6. The defendant will do well in the structured
18 environment that prison will offer;
19 7. The defendant was abandoned by his father at the age
20 of 10 due to the separation of his mother and father;
21 8. The defendant was further rejected by his father at
22 age 13 when blood tests revealed Derrick Barnette was not his
23 father or his brother's father;
24 9. The defendant attempted suicide prior to the crimes
25 indicating he was already having psychological problems;
1162
1 10. The age of the defendant at the time of the
2 offense;
3 11. The defendant is sentenced to life without the
4 possibility of -- if the defendant is sentenced to life without
5 the possibility of release, he will not a future danger; and
6 12. The defendant's mother, young brother and children
7 will be harmed by the emotional trauma of his execution.
8 Now, on the special verdict form, you are asked to
9 identify any mitigating factors, statutory or nonstatutory, that
10 any one of you finds has been proved by a preponderance of the
11 evidence, and then you would fill in the number of the jurors
12 who so find that. Remember again it's up to you to find that.
13 This is just a list of the mitigating and aggravating
14 circumstances.
15 Now, with respect to Count 7, if you have found at least
16 one of the four requisite mental states and the existence of at
17 least one statutory aggravating factor and the existence or
18 absence of any statutory and nonstatutory mitigating factors,
19 you will then engage in a weighing process of the statutory and
20 nonstatutory aggravating factors and any statutory and
21 nonstatutory mitigating factors as to Count 7. In determining
22 the appropriate sentence, all of you must weigh the aggravating
23 factor or factors that you unanimously found to exist as to
24 Count 7 whether statutory or nonstatutory, and each of you must
25 weigh any statutory or nonstatutory mitigating factor that you
1163
1 individually found to exist as to Count 7. In engaging in the
2 weighing process, you must avoid any influence of passion,
3 prejudice or undue sympathy. Your deliberations should be based
4 upon the evidence that you have seen and heard and the law on
5 which I have instructed you.
6 The process of weighing aggravating and mitigating
7 factors against each other or weighing aggravating factors
8 alone, if there are no mitigating factors, in order to determine
9 the proper punishment is not a mathematical process. We've been
10 over that before. In other words, you should not simply count
11 the number of aggravating and mitigating factors and reach a
12 decision based on which number is greater; you should consider
13 the weight and value of each factor.
14 The law contemplates that different factors may be given
15 different weights or values by different jurors. Thus, you may
16 find that one mitigating factor outweighs all the aggravating
17 factors combined, or that the aggravating factors proven do or
18 do not standing alone justify imposition of a sentence of
19 death. Each individual juror is to decide what weight or value
20 is to given to particular factor in your decision making
21 process.
22 If you unanimously conclusion that the aggravating
23 factor or factors found to exist sufficiently outweigh any
24 mitigating factor or factors found to exist such that a sentence
25 of death is justified as to Count 7, or in the absence of any
1164
1 mitigating factors, that the aggravating factor or factors are
2 themselves sufficient to justify a sentence of death, you shall
3 record your determination that death is justified an the special
4 verdict form.
5 The jury is never required to vote for a sentence of
6 death. If you determine that death is not justified, you shall
7 complete the special verdict form and you shall then proceed to
8 determine whether the appropriate punishment is life
9 imprisonment without the possibility of release and shall record
10 that determination on the special verdict form. If you do not
11 recommend a punishment of death or life imprisonment without the
12 possibility of release, you may recommend the defendant be
13 punished as provided by law in which case the Court shall
14 sentence tent as provided by law. If you make no
15 recommendation, the Court will sentence the defendant as
16 provided by law up to life without the possibility of release,
17 and only the jury, and not the Court, may sentence the defendant
18 to death.
19 Let's move on to Count Number 8 -- oh, yes, go back to
20 the verdict form just for a minute. Page 12 of the verdict
21 form, the determination which I referred to earlier, of course,
22 is based upon consideration of whether the aggravating factor or
23 factors found to exist as to Count 7 sufficiently outweigh any
24 mitigating factors or factors found to exist to justify a
25 sentence of death, or in the absence of any mitigating factors,
1165
1 whether the aggravating factor or factors as to Count 7 are
2 themselves sufficient to justify a sentence of death. Indicate
3 your recommendation using either the following forms A, B or C.
4 The first form is, A, death sentence, and all of you would have
5 to sign that together with the foreperson. Indicate that by
6 saying yes or no.
7 A sentence of life imprisonment without the possibility
8 of release, based upon consideration of whether the aggravating
9 factors found to exist outweigh any mitigating factor or factors
10 found to exist or to justify a sentence of death, or in the
11 absence of any mitigating factors, whether the aggravating
12 factors are themselves sufficient to justify a sentence of
13 death, we recommend by unanimous vote that a sentence of life
14 imprisonment without the possibility of release shall be imposed
15 for the killing of Donald Lee Allen in Count 7. And again, if
16 yes, sign your names here and then proceed to Section 7. If you
17 answer no, the foreperson alone should sign and you should
18 proceed to Section 6C.
19 Now, the next page, Page 15, has at the top lesser
20 sentence. That should be actually other sentence. I'll just
21 say lesser sentence or other sentence. Based upon consideration
22 of whether the aggravating factors found to exist sufficiently
23 outweigh any mitigating factor or factors found to exist to
24 justify a sentence of death, or in the absence of any mitigating
25 factors, whether the aggravating factors are themselves
1166
1 sufficient to justify a sentence of death, we recommend by
2 unanimous vote that the Court sentence the defendant as provided
3 by law up to life imprisonment without the possibility of
4 release for the killing of Donald Lee Allen in Count 7. And
5 again, yes or no, and all of those who said yes, if you will
6 sign that in the space provided.
7 Now, move on to -- on, yeah, the certification, that's
8 on Section 7, we are still on Count 7. By signing below, each
9 juror certifies the consideration of the race, color, religious
10 beliefs, national origin or sex of the defendant or the victim
11 was not involved in reaching his or her individual decision and
12 that the individual juror would have made the same
13 recommendation regarding a sentence for the crime and crimes in
14 question no matter what the ace, color, religious beliefs,
15 national origin or sex of the defendant or the victim would have
16 been. Again, signed by the foreperson.
17 Now, we're moving on now to Count Number 8, and I will
18 read that out of the indictment before we get into it. Count
19 Number 8, on or about the 22nd day of June, 1996, in Mecklenburg
20 County in the Western District of North Carolina, the defendant,
21 Aquilia Marcivicci Barnette, knowingly used and carried a
22 firearm, that is, a sawed-off Winchester semiautomatic shotgun,
23 during and in relation to a crime of violence, for which he may
24 be prosecuted in a court of United States, that is, the
25 carjacking set forth in Count 7 above, and in the course of this
1167
1 violation caused the death of Donald Lee Allen, through the use
2 of a firearm, which killing is a murder as defined in Title 18,
3 United States Code, Section 1111, in that the defendant, with
4 malice aforethought, did unlawfully kill Donald Lee Allen by
5 shooting him with the firearm willfully, deliberately,
6 maliciously, and with premeditation, in violation of Title 18,
7 United States Code, Sections 924(a)(1) and (i)2(1).
8 All right, once again you have to go through the same
9 process for Count Number 8. You have to decide or determine the
10 age of the defendant and whether or not he is over 18 years of
11 age or older. Skip on over to the mental, requisite mental
12 state and Page Number 2 of the verdict form. I'll go over with
13 you now the process you will follow in respect to your
14 deliberations as to Count Number 8.
15 Before you may consider the imposition of the death
16 penalty for the commission of Count 8, you must also unanimously
17 as to that specific count find beyond a reasonable doubt that
18 the defendant intentionally killed or committed acts resulting
19 in the death of Donald Lee Allen in one or more of the manners
20 described below. That's one or more of the manners described
21 below. And if you unanimously make at least one of these
22 findings as to the murder of Donald Lee Allen in Count 8, you
23 should so indicate on the appropriate page of the special
24 verdict form and continue your deliberations. If you do not
25 unanimously make at least one of these findings as to the murder
1168
1 of Donald Lee Allen in Count 8, you should so indicate on the
2 appropriate page of the special verdict form and no further
3 deliberations will be necessary on that count.
4 Now, the government alleges as to the murder of Donald
5 Lee Allen in Count 8:
6 1A, Paragraph 1A, the defendant intentionally killed
7 Donald Lee Allen. To establish the defendant intentionally
8 skilled the victim, the government must prove that the defendant
9 killed the victim with a conscious desire to cause the victim's
10 death;
11 1B, the defendant intentionally inflicted serious bodily
12 injury that resulted in the death of Donald Lee Allen, which
13 resulted in the death of Donald Lee Allen. The government must
14 prove that the defendant deliberately caused serious injury to
15 the victim's body which in turn caused the victim's
16 death. "Serious bodily injury" means a significant or
17 considerable amount of injury which involves a substantial risk
18 of death, unconsciousness, extreme physical pain, protracted and
19 obvious disfigurement, or protected loss or impairment of a body
20 member, organ or mental faculty;
21 1C, the defendant intentionally participated in an act,
22 contemplating that the life of a person would be taken or
23 intending that lethal force would be used in connection with a
24 person, other than one of the participants in the offense, and
25 the victim, Donald Lee Allen, died as a result. The government
1169
1 must prove that the defendant deliberately shot Donald Lee Allen
2 with a conscious desire that the victim be killed or that lethal
3 force be employed against the victim. The phrase "lethal force"
4 means an act of violence or acts of violence capable of causing
5 death;
6 1D, the defendant intentionally and specifically engaged
7 in an act of violence, knowing that the act created a grave risk
8 of death to a person, other than one of the participants in the
9 offense, such that the participation in the act constituted a
10 reckless disregard for human life and Donald Lee Allen died as a
11 direct result of the act, by shooting.
12 Intent or knowledge again may be approved like anything
13 else. You may consider any statements made and acts done by the
14 defendant, and all the facts and circumstances in evidence which
15 may aid in a determination of the defendant's knowledge or
16 intent.
17 You may, but are not required to, infer that a person
18 intends the natural and probable consequences of acts knowingly
19 done or knowingly omitted.
20 Now, if you unanimously find beyond a reasonable doubt
21 the existence of at least one or more of the requisite mental
22 states as found in the previous section, you must then proceed
23 to determine whether the government has proved beyond a
24 reasonable doubt the existence of any of the following alleged
25 statutory aggravating factors with respect to the same murder in
1170
1 Count Number 8. These are, again, on Page Number 4 of your
2 verdict form in that section. Now, this is Count Number 8.
3 Each count has a -- starts with Page Number 1. This is Page 4
4 of Count Number 8.
5 Now, if you unanimously find beyond a reasonable doubt
6 the existence of at least one or more of the requisite mental
7 states as found in the previous section, you must then proceed
8 to determine whether the government has proven beyond a
9 reasonable doubt the existence of any of the following alleged
10 statutory aggravating factors with respect to the same murder in
11 Count 8. In this case, the government has alleged as statutory
12 aggravating factors as to Count 8 that: one, that the defendant
13 committed the offense in Count 8 in expectation of the receipt
14 of something of pecuniary value; and two, the defendant
15 committed the offense in Count 8 after substantial planning and
16 premeditation to cause the death of Donald Lee Allen.
17 The law permits you to consider and discuss at this
18 point only statutory aggravating factors specifically claimed by
19 the government which the government alleges are contained in
20 Count 8.
21 The first aggravating factor contended for by the
22 government is the defendant committed the offense in expectation
23 of receipt of anything of pecuniary value, in this case, a Honda
24 automobile and Allen's wallet and money. To establish that a
25 defendant committed an offense in the expectation of the receipt
1171
1 of anything of pecuniary value, the government must prove, in
2 essence, that the defendant committed the offense in the
3 expectation of anything in the form of money, property, or
4 anything having some economic value, benefit or advantage.
5 There is no requirement that the government prove that something
6 of pecuniary value actually changed hands. The words "receipt
7 or expectation of receipt" should be the given their ordinary,
8 everyday meaning which includes obtaining or expecting to obtain
9 something. In this case, the government alleges that the
10 pecuniary gain is the expectation of taking the victim Allen's
11 motor vehicle and the victim of Allen's wallet and money.
12 Commission of the offense after substantial planning and
13 premeditation, the second aggravating factor the government
14 contends is that defendant committed the offense of murder as
15 charged in Count 8 of the indictment for which you have found
16 him guilty, after substantial planning and premeditation to
17 cause the death of Donald Lee Allen. "Planning" means mentally
18 formulating a method for doing something or achieving some
19 end. "Premeditation" means thinking or deliberating about
20 something and deciding whether to do it
21 beforehand. "Substantial planning and premeditation" means a
22 considerable or significant amount of planning and premeditation
23 above and beyond the minimum required for the commission of the
24 offense in Count Number 8.
25 If the government does not satisfy each of you beyond a
1172
1 reasonable doubt that at least one of these statutory
2 aggravating factors exists for Count 8, you should enter a
3 finding to that effect as to that particular count on the
4 special verdict form, and no further deliberations as to that
5 particular count will be necessary.
6 In the event that you unanimously find that the
7 government has proven beyond a reasonable doubt the existence of
8 at least one of the statutory aggravating factors with respect
9 to the murder of Donald Lee Allen in Count 8, please enter that
10 finding on the special verdict form and continue your
11 deliberations.
12 Now, again, looking at your verdict form, Page 4 as to
13 this count, Section 3, statutory aggravating factors, each of
14 you for each of the following answer yes or no, do you, the
15 jury, unanimously find the government has established the
16 existence of the following statutory aggravating factors beyond
17 a reasonable doubt as to Count 8:
18 1. Do you, the jury, unanimously find the government
19 has proven beyond a reasonable doubt that the defendant
20 committed the offense in Count 8 in expectation of the receipt
21 of something of pecuniary value, just check yes or no.
22 2. Do you, the jury, find that the government has
23 proven beyond a reasonable doubt that the defendant committed
24 the offense in Count 8 after substantial planning and
25 premeditation did cause the death of Donald Lee Allen, again yes
1173
1 or no, and signed, of course, by the foreperson. The
2 instructions for that are over on Page 5. If you answered no
3 with respect to both of the statutory aggravating factors in
4 this Section 3, then stop your deliberations, cross out Sections
5 4, 5 and 6 of the form and proceed to Section 7 of the form.
6 Each juror should then carefully read the statement in Section 7
7 and sign in the appropriate place if the statement accurately
8 reflects the manner in which he or she reached their decision.
9 You should then advise the Court that you have reached a
10 decision. If you found that the requisite age in Section 1,
11 requisite mental state in Section 2 and answered yes with
12 respect to any one of the statutory aggravating factors in
13 Section 3, then you proceed to Section 4 which follows. Section
14 4 has to do with nonstatutory aggravating factors.
15 You must then consider whether the government has proven
16 the existence of any nonstatutory or miscellaneous aggravating
17 factors as to Count 8. As in the case of statutory aggravating
18 factors, you must unanimously agree that the government has
19 proven beyond a reasonable doubt the existence of any of the
20 alleged nonstatutory aggravating factors before you may consider
21 such factors in your deliberations on the appropriate punishment
22 for the defendant in this case.
23 The law permits you to consider and discuss only those
24 aggravating factors specifically claimed by the government with
25 respect to Count 8 and listed below. You are not free to
1174
1 consider any other facts in aggravation which you conceive of on
2 your own.
3 The nonstatutory aggravating factors that the government
4 has alleged in this case as to Count 8 are that, one, and these
5 are again listed in your verdict form on Page 6, I believe --
6 well, Page 5 and 6, Pages 5 and 6;
7 1. The defendant caused harm to the family of Donald
8 Lee Allen as a result of the impact of the killing on the family
9 of Donald Lee Allen;
10 2. The defendant is likely to commit criminal acts of
11 violence in the future which would be a continuing and serious
12 threat to society;
13 3. The defendant intentionally killed two people in
14 that in addition to killing Donald Lee Allen, the defendant also
15 killed Robin Williams.
16 In the event that you unanimously find that the
17 government has proved beyond a reasonable doubt the existence of
18 any of these nonstatutory aggravating factors with respect to
19 Count Number 8, please enter the finding on the special verdict
20 form and continue your deliberations. Even if you do not find
21 the existence of a nonstatutory aggravating factor, you should
22 continue your deliberations as to Count Number 8.
23 Now, the mitigating factors, and that's on your verdict
24 form on Page 6 down at the bottom. Before you may consider the
25 appropriate punishment for the commission of Count 8, you must
1175
1 consider whether the defendant has established the existence of
2 any mitigating factors. A mitigating factor is any fact about
3 the defendant's life, background, record or character, or about
4 the circumstances surrounding the intentional killing of Donald
5 Lee Allen or any other relevant fact that would suggest, in
6 fairness, that a sentence of death is not justified.
7 Unlike aggravating factors, which you must unanimously
8 find proved beyond a reasonable doubt in order to for you to
9 consider them in your deliberations, the law does not require
10 unanimity with regard to mitigating factors. Any juror may find
11 the existence of a mitigating factor and must consider it in
12 this case. Also unlike aggravating factors, you do not need to
13 find the existence of a statutory mitigating factor before you
14 can proceed to determine the existence of any nonstatutory
15 mitigating factor.
16 It is the defendants's burden to establish any
17 mitigating factors, but only by a preponderance of the evidence.
18 This is a lesser standard of proof under the law than proof
19 beyond a reasonable doubt. A factor is established by a
20 preponderance of the evidence if its existence is shown to be
21 more likely so than not so. In other words, a preponderance of
22 the evidence means such evidence which considered as, when
23 considered and compared with that opposed to it, produces in
24 your mind the belief that what is sought to be established is
25 more likely than not true. In the special verdict form relating
1176
1 to mitigating factors, you are asked to report the total number
2 of jurors that find a particular mitigating factor established
3 by a preponderance of the evidence. Those instructions, I
4 think, are on Page Number 6, and then you go on over to Page
5 Number 7 in your verdict form.
6 A finding with respect to the mitigating factor may be
7 made by any one or more of the members of the jury, as I've told
8 you, and any member of the jury who finds the existence of a
9 mitigating factor must consider such factor in establishing and
10 considering whether or not a sentence of death shall be imposed
11 regardless of the number of jurors who agree that the factor has
12 been established.
13 Now, the statutory mitigating factors which the
14 defendant contends have been proved by a preponderance of the
15 evidence are:
16 1. The defendant's capacity to appreciate the
17 wrongfulness of his conduct or to conform his conduct to the
18 requirements of the law was significantly impaired, regardless
19 of whether the capacity was so impaired as to constitute a
20 defense to the charge;
21 2. The defendant was under unusual and substantial
22 duress, regardless of whether the duress was of such a degree as
23 to constitute a defense to the charge;
24 3. The other factors in the defendant's childhood,
25 background or character mitigate against the imposition of the
1177
1 death sentence.
2 And again, you put in the number of jurors. If any so
3 find, you put in the number, whether it's zero, 1, 2, 3 or
4 whatever. In other words, complete the form.
5 Now, the nonstatutory mitigating factors which the
6 evidence tends to show are as follows:
7 1. The defendant assisted police in locating Donald Lee
8 Allen's body;
9 2. The defendant voluntarily turned himself in;
10 3. The defendant has no positive family role model, had
11 no positive family role model -- excuse me, the defendant had no
12 positive family role model during his teenage years;
13 4. The defendant grew up in a home which condoned
14 domestic violence and he frequently saw his mother abused;
15 5. The defendant was physically and emotionally abused
16 by his father;
17 6. The defendant was neglected by his mother when she
18 was drunk and distraught over the breakup of her marriage;
19 7. The defendant was never allowed to resolve issues of
20 childhood before he was thrust into a caretaker's role of caring
21 for his mother, aunt, brother and aging grandfather when his
22 mother divorced his father;
23 8. The defendant has worked consistently since age 15
24 and many times worked more than one job;
25 9. The defendant grew up in a home where alcohol and
1178
1 drugs were used frequently;
2 10. The defendant grew up in a home where violence was
3 prevalent;
4 11. After the beating in Atlanta, the defendant lost
5 interest in school and stopped going to school;
6 12. The defendant went to church with his grandfather,
7 Jessie;
8 13. The defendant pled guilty to two prior convictions
9 and accepted responsibility for them;
10 14. The defendant confessed to his friend Steve Austin
11 and Steve's mother, Anne Austin, with regard to the fire
12 incident in April of 1996;
13 15. The defendant confessed to the police;
14 16. Since his arrest, the defendant has been a model
15 inmate.
16 Again, you put in the number of jurors who found each
17 one of those.
18 Other nonstatutory factors which the defendant contends
19 are:
20 1. An unstable home life and frequent moves during
21 childhood denied the defendant skills to form normal peer
22 relationships;
23 2. The defendant showed remorse by trying to kill
24 himself when he realized what he had done;
25 3. The defendant prayed for the souls of his victims;
1179
1 4. The defendant exhibited psychological problems as a
2 minor for which the family failed to seek medical attention or
3 treatment;
4 5. The defendant cooperated with the police;
5 6. The defendant will do well in the structured
6 environment that prison will offer;
7 7. The defendant was abandoned by his father at the age
8 of 10 due to the separation of his mother and father;
9 8. The defendant was further rejected by his father at
10 age 13 when blood tests revealed Derrick Barnette was not his
11 father or his brother's father;
12 9. The defendant attempted suicide prior to the crimes
13 indicating that he was already having psychological problems;
14 10. The age of the defendant at the time of the
15 offense;
16 11. If the defendant is sentenced to life without the
17 possibility of release, he will not be a future danger;
18 12. The defendant's mother, young brother and children
19 will be harmed by the emotional trauma of his execution.
20 On the special verdict form, you are asked to identify
21 any mitigating factors, statutory or nonstatutory, that any one
22 of you finds has been proved by a preponderance of the
23 evidence.
24 Now, with respect to Count 8, with respect to Count 8,
25 if you have found at least one of the four requisite mental
1180
1 states and the existence of at least one statutory aggravating
2 factor and the existence or absence of any statutory and
3 nonstatutory mitigating factors, you will then engage in a
4 weighing process of the statutory and nonstatutory aggravating
5 factors and any statutory and nonstatutory mitigating factors as
6 to Count 8. In determining the appropriate sentence, all of you
7 must weigh the aggravating factor or factors that you
8 unanimously found to exist as to Count 8, whether statutory or
9 nonstatutory, and each of you must weigh any statutory or
10 nonstatutory mitigating factor that you individually found to
11 exist as to Count 8. In engaging in the weighing process, you
12 must avoid any influence of passion, prejudice or undue
13 sympathy. Your deliberations should be based upon the evidence
14 that you have seen and heard and the law on which I have
15 instructed you.
16 The process of weighing aggravating and mitigating
17 factors against each other or weighing aggravating factors alone
18 if there are no mitigating factors in order to determine the
19 proper punishment is not a mechanical process. In other words,
20 you should not simply count the number of aggravating and
21 mitigating factors and reach a decision based on which number is
22 greater, you should consider the weight and value of each
23 factor.
24 The law contemplates that different factors may be given
25 different weights or values by different jurors. Thus, you may
1181
1 find that one mitigating factor outweighs all aggravating
2 factors combined, or that the aggravating factors proved do not,
3 standing alone, justify imposition of a death sentence. Each
4 individual juror is to decide what weight or value to be given
5 to a particular factor in your decision making process.
6 If you unanimously conclude that the aggravating factor
7 or factors found to exist sufficiently outweigh any mitigating
8 factor or factors found to exist such that a sentence of death
9 is justified as to Count 8, or in the absence of any mitigating
10 factors, that the aggravating factor or factors are themselves
11 sufficient to justify an sentence of death, you shall record
12 your determination that death is justified on the special
13 verdict form on the appropriate page.
14 If you determine that the death is not justified, you
15 shall --
16 MR. LAUGHRUN: Judge, you skipped a sentence.
17 THE COURT: Pardon?
18 MR. LAUGHRUN: You skipped a sentence. I'm sorry to
19 interrupt you; you skipped the sentence above that.
20 THE COURT: I'm sorry, I will go back and read the whole
21 paragraph.
22 If you unanimously conclude that the aggravating factor
23 or factors found to exist sufficiently outweigh any mitigating
24 factor or factors found to exist such that a sentence of death
25 is justified as to Count 8, or in the absence of any mitigating
1182
1 factors that the aggravating factor or factors are themselves
2 sufficient to justify a sentence of death, you shall record your
3 determination that death is justified on the special verdict
4 form. I believe that's on Page 13 of the verdict form, you can
5 look at that later and see.
6 A jury is never required to vote for a sentence of
7 death.
8 If you determine that death is not justified, you shall
9 complete the special verdict form, and you shall then proceed to
10 determine whether the appropriate punishment is life in prison
11 without the possibility of release and shall record that
12 determination on the special verdict form. If you do not
13 recommend a punishment of death or life imprisonment without the
14 possibility of release, you may recommend the defendant be
15 punished as provided by law in which case the Court shall
16 sentence the defendant as provided by law. If you make no
17 determination, the Court will sentence the defendant as provided
18 by law up to life imprisonment without the possibility of
19 release, and only the jury and not the Court may sentence the
20 defendant to death.
21 I will now instruct you, going on over to Page Number
22 11. First of all, let's go on and finish up this verdict form.
23 We've done all of the aggravating and mitigating factors, Pages
24 9 10 and 11. And we get over to Page 12, Section 6, which is
25 the determination and you determine whether the sentence and
1183
1 following forms on A, B and C, A being the death sentence, yes
2 or no, and if you answer yes, sign your names and then proceed
3 to Section 7. If you answer no, the foreperson alone should
4 sign and you should proceed on to Section 6B. I think those
5 instructions are pretty clear. B, the sentence of life
6 imprisonment without the possibility of release, again, yes or
7 no. If you answer yes, you sign your names and proceed to
8 Section 7. If you answer no, the foreperson alone should sign
9 as to Section 6C.
10 Lesser -- other sentence or lesser sentence, we'll call
11 that other sentence if you want, based upon consideration of
12 whether the aggravating factors found to exist sufficiently
13 outweigh any mitigating factor or factors found to exist justify
14 a sentence of death, or in the absence of any mitigating factors
15 whether the aggravating factors are themselves sufficient to
16 justify a sentence of death, you would recommend by unanimous
17 vote and sentence -- the Court sentence the defendant as
18 provided by law up to life in prison without the possibility of
19 release for the killing of Donald Lee Allen in Count 8, again,
20 yes or no. Certification, again, on Page 16, as you did in the
21 prior count, would be completed by you and signed by all of the
22 jurors and the foreperson.
23 Let's move on over to Count Number 11. Count Number 11
24 in the indictment reads that will on our about the 22nd day of
25 June, 1996, in Mecklenburg County in the Western District of
1184
1 North Carolina and in the Western District of Virginia, the
2 defendant, Aquilia Marcivicci Barnette, knowingly used and
3 carried a firearm, that is, a sawed-off Winchester semiautomatic
4 shotgun, during and in relation to a crime of violence, for
5 which he may be prosecuted in a court of the United States, that
6 is, the act of interstate domestic violence set forth in Count
7 10 above, and in the course of this violation caused the death
8 of Robin Williams through the use a firearm, which killing is a
9 murder as defined in Title 18, United States Code, Section 1111,
10 in that the defendant, with malice aforethought, did unlawfully
11 kill Robin Williams by shooting her with a firearm willfully,
12 deliberately, maliciously and with premeditation, in violation
13 of Title 18, United States Code, Section 924(c) and (i)1(1).
14 Again, you will see the same thing on Count Number 11 as
15 to the age of the defendant. We've been over that, I don't
16 believe we need to go through that with you again.
17 Go to the requisite mental state. Before you may
18 consider the imposition of the death penalty for the commission
19 of Count 11, you must unanimously agree as to that specific
20 count find beyond a reasonable doubt -- I'll start the sentence
21 again, I think I skipped a word or two -- before you may
22 consider the imposition of the death penalty for the commission
23 of Count 11, you must also unanimously as to that specific count
24 find beyond a reasonable doubt that the defendant intentionally
25 killed or committed acts resulting in the death of Robin
1185
1 Williams in one or more of the manners described below. If you
2 unanimously make at least one of these findings as to the murder
3 of Robin Williams in Count 11, you should so indicate on the
4 appropriate page of the special verdict form and continue your
5 deliberations. If you do not unanimously make at least one of
6 these findings as to the murder of Robin Williams in Count 11,
7 you should so indicate on the appropriate page of the special
8 verdict form and no further deliberations will be necessary as
9 to that count.
10 The government alleges that as to the murder of Robin
11 Williams in Count 11:
12 1. That the defendant intentionally killed Robin
13 Williams. To establish that the defendant intentionally killed
14 the victim, the government must prove that the defendant killed
15 the victim with a conscious desire to cause the victim's death;
16 1B. The defendant intentionally inflicted serious
17 bodily injury that resulted in the death of Robin Williams by
18 shooting, which resulted in the death of Robin Williams. And
19 the government must prove that the defendant deliberately caused
20 serious injury to the victim's body which in turn caused the
21 victim's death. "Serious bodily injury" means a significant or
22 considerable amount of injury which involves a substantial risk
23 of death, unconsciousness, extreme physical pain, protracted and
24 obvious disfigurement, or protracted loss or impairment of a
25 body member, organ or mental faculty;
1186
1 1C. The defendant intentionally participated in an act,
2 contemplating that the life of a person would be taken or
3 intending that lethal force would be used in connection with a
4 person, other than one of the participants in the offense, and
5 the victim, Robin Williams, died as a result. The government
6 must prove that the defendant deliberately shot Robin Williams
7 with a conscious desire that the victim be killed or that lethal
8 force be employed against the victim. The phrase "lethal force"
9 means an act or acts of violence capable of causing death.
10 1D. The defendant intentionally and specifically
11 engaged in an act of violence, knowing that the act created a
12 grave risk of death to a person, other than one of the
13 participants in the offense, such that the participation in the
14 act constituted a reckless disregard for human life and Robin
15 Williams died as a result of the act, by shooting.
16 Intent or knowledge may be proved like anything else.
17 You may consider any statements made and acts done by the
18 defendant, and all the facts and circumstances in evidence which
19 may aid in a determination of defendant's knowledge or intent.
20 You may, but aren't required to, infer that a person
21 intends the natural and probable consequences of acts knowingly
22 done or knowingly omitted.
23 Now, if you unanimously find beyond a reasonable doubt
24 the existence of at least one or more of the requisite mental
25 states as found in the previous section I've just been over with
1187
1 you, you must then proceed to determine whether the government
2 has proven beyond a reasonable doubt the existence of any of the
3 following alleged statutory aggravating factors with respect to
4 the murder in Count 11.
5 In this case -- let me catch up with you on the verdict
6 form -- in this case, the government has alleged as statutory
7 aggravating factors as to Count 11 that:
8 1. In the commission of the offense in Count 11, the
9 defendant knowingly created a grave risk of death to one or more
10 persons in addition to the intended victim;
11 2. The defendant committed the offense in Count 11
12 after substantial planning and premeditation to cause the death
13 of Robin Williams.
14 The law permits you to consider and discuss at this
15 point only statutory aggravating factors specifically claimed by
16 the government which the government alleges exist as to Count
17 11.
18 Now, the first aggravating factor contended for by the
19 government is the commission of the offense -- in the commission
20 of the offense in Count 11, the defendant knowingly created a
21 grave risk of death to one or more persons in addition to the
22 intended victim.
23 To establish the existence of this factor, the
24 government must prove that the defendant knowingly created a
25 grave risk of death to one or more persons in addition to the
1188
1 victim of the offense in committing the offense. "Persons in
2 addition to the victim" include bystanders in the zone of danger
3 created by the defendant's acts, but does not include other
4 participants in the offense. "Grave risk of death" means a
5 significant and considerable possibility that another person
6 might be killed. "Knowingly" creating such a risk that the
7 defendant was conscious and aware -- excuse me, knowingly
8 creating such a risk means that the defendant was conscious and
9 aware that his conduct in the course of committing the offense
10 might have this result. In other words, the defendant had a
11 reckless disregard or extreme indifference for human life.
12 Knowledge may be proved like anything else. You may
13 consider any statements made and acts done by the defendant, and
14 all the facts and circumstances in evidence which may aid in a
15 determination of the defendant's knowledge.
16 Statutory aggravating factors, the second aggravating
17 factor the government contends is that the defendant committed
18 the offense as charged in Count 11 of the indictment for which
19 you have found him guilty, after substantial planning and
20 premeditation to cause the death of Robin Williams. "Planning"
21 means mentally formulating a method for doing something or
22 achieving some end. "Premeditation" means thinking or
23 deliberating about something and deciding whether to do it
24 beforehand. "Substantial" planning and premeditation means a
25 considerable or significant amount of planning and premedication
1189
1 above and beyond the minimum required for the commission of the
2 offense in Count Number 11.
3 If the government does not satisfy each of you beyond a
4 reasonable doubt that at least one of the statutory aggravating
5 factors exists for Count 11, you should enter a finding to that
6 effect as to that particular count on the special verdict form
7 and no further deliberations as to that particular count will be
8 necessary.
9 In the event that you unanimously find the government
10 has proven beyond a reasonable doubt the existence of at least
11 one of the statutory aggravating factors with respect to the
12 murder of Robin Williams in Count 11, please enter that finding
13 on the special verdict form and continue your deliberations.
14 Now, go on over to the nonstatutory aggravating factors,
15 and those appear on Page 5 of your verdict form as to Count 8
16 Section 4. You must then consider whether the government has
17 proven the existence of any nonstatutory or miscellaneous
18 aggravating factors as to Count 11. As in the case for
19 statutory aggravating factors, you must unanimously agree that
20 the government has proved beyond a reasonable doubt the
21 existence of any of the alleged nonstatutory aggravating factors
22 before you may consider such factors in your deliberations on
23 the appropriate punishment for the defendant in this case.
24 The law permits you to consider and discuss only those
25 aggravating factors specifically claimed by the government with
1190
1 respect to Count Number 11 and listed below. You are not free
2 to consider any other facts in aggravation which you conceive of
3 on your own.
4 The nonstatutory aggravating factors that the government
5 has alleged in this case as to Count 11 are that:
6 1. The defendant caused harm to the family of Robin
7 Williams as a result of the impact of the killing on the family
8 of Robin Williams;
9 2. The defendant is likely to commit criminal acts of
10 violence in the future which would be continuing and serious
11 threat to society;
12 3. The defendant intentionally killed two people in
13 that in addition to killing Robin Williams, the defendant also
14 killed Donald Lee Allen.
15 In the event that you unanimously find that the
16 government has proved beyond a reasonable doubt the existence of
17 any of these nonstatutory aggravating factors with respect to
18 Count 11, please enter that finding on the special verdict form
19 and continue your deliberations. Even if you do find the
20 existence of any -- do not find, excuse me, do not find the
21 existence of any nonstatutory aggravating factors, you should
22 continue your deliberations as to Count Number 11. Nonstatutory
23 aggravating factors on Page 5 -- 6 of your verdict form as to
24 Count 11.
25 Now, moving on to mitigating factors, which appear
1191
1 starting on Page 6 and 7 of this particular count -- excuse me,
2 6 and 7 of your verdict form, before you may consider the
3 appropriate punishment for the commission of the crime charged
4 in Count 11, you must consider whether the defendant has
5 established the existence of any mitigating factors. A
6 mitigating factor is any fact about the defendant's life,
7 background, record or character, or about the circumstances
8 surrounding the intentional killing of Robin Williams or any
9 other relevant fact that would suggest, in fairness, that a
10 sentence of death is justified or that a lesser sentence is the
11 appropriate punishment.
12 Unlike aggravating factors, which you must unanimously
13 find beyond a reasonable doubt in order for you to consider them
14 in your deliberations, the law does not require unanimity with
15 regard to mitigating factors. Any juror may find the existence
16 of a mitigating factor and must consider it in this case. Also
17 unlike aggravating factors, you do not need to find the
18 existence of a statutory mitigating factor before you can
19 proceed to determine the existence of any nonstatutory
20 mitigating factor.
21 It is the defendant's burden to establish any mitigating
22 factor, but only by a preponderance of the evidence, and this is
23 a lesser standard of proof under the law than proof beyond a
24 reasonable doubt. A factor is established by a preponderance of
25 the evidence if its existence is shown to be more likely so than
1192
1 not so. In other words, a preponderance of the evidence means
2 such evidence as, when considered and compared with that opposed
3 to it, produces in your mind the belief that what is sought to
4 be established is more likely true than not true. And in Part 5
5 of the special verdict form relating to the mitigating factors,
6 you are asked to report the total number of jurors that find a
7 particular mitigating factor established by a preponderance of
8 the evidence.
9 Once again, we will enumerate the mitigating factors,
10 the statutory mitigating factors which the defendant asserts he
11 has proved by a preponderance of the evidence are:
12 1. The defendant's capacity to appreciate the
13 wrongfulness of his conduct as to -- or to conform his conduct
14 to the requirements of the law was significantly impaired,
15 regardless of whether the capacity was so impaired as to
16 constitute a defense to the charge;
17 2. The defendant was under unusual or substantial
18 duress, regardless of whether the duress was of such a degree as
19 to constitute a defense to the charge;
20 3. The other factors in the defendant's childhood,
21 background or character mitigate against the imposition of the
22 death sentence.
23 Now, the nonstatutory mitigating factors which the
24 evidence tends to show are as follows:
25 1. The defendant assisted police in locating Donald
1193
1 Allen's body;
2 2. The defendant voluntarily turned himself in;
3 3. The defendant had no positive family role model
4 during his teenage years;
5 4. The defendant grew up in a home which condoned
6 domestic violence and he frequently saw his mother abused;
7 5. The defendant was physically and emotionally abused
8 by his father;
9 6. The defendant was neglected by his mother when she
10 was drunk and distraught over the breakup of her marriage;.
11 7. The defendant was never allowed to resolve issues of
12 childhood before he was thrust into a caretaker's role of caring
13 for his mother, aunt, brother and aging grandfather when his
14 mother divorced his father;
15 8. The defendant has worked consistently since age 15
16 and many times worked more than one job;
17 9. The defendant grew up in a home where alcohol and
18 drugs were used frequently;
19 10. The defendant grew up in a home where violence was
20 prevalent;
21 11. After the beating in Atlanta, the defendant lost
22 interest in school and stopped going to school;
23 12. The defendant went to church with his grandfather,
24 Jessie;
25 13. The defendant pled guilty to two prior convictions
1194
1 and accepted responsibility for them;
2 14. The defendant confessed to his friend Steve Austin
3 and Steve's mother, Anne Austin, with regard to the fire
4 incident in April of 1996;
5 15. The defendant confessed to the police;
6 16. Since his arrest, the defendant has been a model
7 inmate.
8 Other nonstatutory factors which the government contends
9 are:
10 1. An unstable home life and frequent moves during
11 childhood denied the defendant the skills to form normal peer
12 relationships;
13 2. The defendant showed remorse by trying to kill
14 himself when he realized what he had done;
15 3. The defendant prayed for the souls of his victims;
16 4. The defendant exhibited psychological problems as a
17 minor for which his family failed to seek medical attention or
18 treatment;
19 5. The defendant cooperated with the police;
20 6. The defendant will do well in the structured
21 environment that prison will offer;
22 7. The defendant was abandoned by his father at the age
23 of 10 due to the separation of his mother and father;
24 8. The defendant was further rejected by his father at
25 age 13 when blood tests revealed Derrick Barnette was not his
1195
1 father or his brother's father;
2 9. The defendant attempted prior suicide -- excuse me,
3 number 9, the defendant attempted suicide prior to the crimes
4 indicating that he was already having psychological problems;
5 10. The defendant -- the age of the defendant at the
6 time of the offense;
7 11. If the defendant is sentenced to life without the
8 possibility of release, he will not be a future danger; and
9 12. The defendant's mother, younger brother and
10 children will be harmed by the emotional trauma of his
11 execution.
12 On the special verdict form, you're again asked to
13 identify any mitigating factors, statutory or nonstatutory, that
14 any one of you finds has been proved by a preponderance of the
15 evidence as to this count.
16 Once again, weighing aggravation and mitigation, with
17 respect to Count 11, if you have found at least one of the four
18 requisite mental states and the existence of at least one
19 statutory aggravating factor and the existence or absence of any
20 statutory or nonstatutory mitigating factors, you will then
21 engage in the weighing process of the statutory and nonstatutory
22 aggravating factors and any statutory and nonstatutory
23 mitigating factors as to Count 11. In determining the
24 appropriate sentence, all of you must weigh the aggravating
25 factor or factors that you unanimously found to exist as to
1196
1 Count 11, whether statutory or nonstatutory, and each of you
2 must weigh any statutory and nonstatutory mitigating factors
3 that you individually found to exist as to Count 11. In
4 engaging in the weighing process, you must avoid any influence
5 of passion, prejudice or undue sympathy, and your deliberations
6 should be based upon the evidence that you have seen and heard
7 and the law on which I have instructed you.
8 The process of weighing aggravating and mitigating
9 factors again each -- excuse me, the process of weighing
10 aggravating and mitigating factors against each other or
11 weighing aggravating factors alone if there are no mitigating
12 factors in order to determine the proper punishment is not a
13 mechanical process. In other words, you should not simply count
14 the number of aggravating and mitigating factors and reach a
15 decision based on which number is greater, you should consider
16 the weight and value of each factor.
17 The law contemplates that different factors may be given
18 different weights or values by different jurors. Thus, you may
19 find that one mitigating factor outweighs all aggravating
20 factors combined, or that the aggravating factors proven do or
21 do not, standing alone, justify imposition of a sentence of
22 death. Each individual juror is to decide what weight or value
23 is to be given to a particular factor in your decision making
24 process.
25 If you unanimously conclude that the aggravating factor
1197
1 or factors found to exist sufficiently outweigh any mitigating
2 factor or factors found to exist such that a sentence of death
3 is justified as to Count 11, or in the absence of any mitigating
4 factors that the aggravating factor or factors are themselves
5 sufficient to justify a sentence of death, you shall record your
6 determination that death is justified on the special verdict
7 form.
8 The jury is never required to vote for a death sentence.
9 If you determine that the death is not justified, you
10 shall complete the special verdict form, and you shall then
11 proceed to determine whether the appropriate punishment is life
12 imprisonment without possibility of release and shall record
13 that determination on the special verdict form. If you do not
14 recommend a punishment of death or life imprisonment without the
15 possibility of release, you may recommend that the defendant be
16 punished as provided by law. If you make no determination, then
17 the Court will sentence the defendant as provided by law up to
18 life imprisonment without the possibility of release, and only
19 the jury and not the Court may sentence the defendant to death.
20 I believe that completes, members of the jury, the
21 verdict form way you proceed, and again, the instructions are
22 all in the verdict form and I don't think we need to go over
23 those again. And again I remind you on Page 15, the last one,
24 the lesser or other sentence, other sentence or lesser sentence
25 is what was meant by that. Again, you are to sign the
1198
1 certification on the last page for all of these counts.
2 The rules of evidence provide that if scientific,
3 technical or other specialized knowledge might assist the jury
4 in determining the evidence or in determining a fact in issue, a
5 witness qualified as an expert by knowledge, skill, experience,
6 training or education may testify and state his opinion
7 concerning such matters.
8 You should consider each expert opinion received in
9 evidence in this case and give it such weight as you think it
10 deserves. If you should decide that the opinion of an expert
11 witness is not based upon sufficient education and experience,
12 or if you should conclude that the reasons given in support of
13 the opinion are not sound, or that the opinion is outweighed by
14 other evidence, then you may disregard the opinion entirely.
15 Now, at the end of your deliberations, if you
16 unanimously recommend that the defendant be sentenced to death
17 or to life imprisonment without the possibility of release for
18 any or all of the Counts 7, 8 or 11, the Court is required to
19 impose that sentence for that count. Your recommendation does
20 not have to be consistent with each count.
21 If you unanimously recommend that the defendant should
22 be sentenced by the Court to a sentence as provided by law for
23 any or all of Counts 7, 8 or 11, or if you cannot unanimously
24 agree on any recommendation for any or all of Counts 7, 8 or 11,
25 the Court will sentence the defendant to a sentence other than
1199
1 death as provided by law which for that count may be
2 imprisonment for up to life without the possibility of release.
3 The Court will determine what the sentence should be, and you
4 should not speculate on the sentence the defendant might
5 receive. You should understand that only you, the jury, and not
6 the Court can recommend the defendant be sentenced to death.
7 The jury is never required to impose a sentence of death.
8 Any verdict that you reach must represent the considered
9 judgment of each juror. In order to return a verdict, it is
10 necessary that each juror agree thereto. In other words, your
11 verdict must be unanimous.
12 It is your duty as jurors to consult with one another
13 and to deliberate in an effort to reach an agreement if you can
14 do so without violation to individual judgment. Each of you
15 must decide the case for yourself, but only after an impartial
16 consideration of the evidence in the case with your fellow
17 jurors. In the course of your deliberations, do not hesitate to
18 re-examine your views and change your opinion if you are
19 convinced it is erroneous. But do not surrender your honest
20 conviction as to the weight or effect of the evidence solely
21 because of the opinion of your fellow jurors, or for the mere
22 purpose of returning a verdict.
23 Remember at all times that you are not partisans, you
24 are judges of the facts, and your sole interest is to seek the
25 truth from the evidence in the case.
1200
1 In your consideration of whether the death sentence is
2 justified for the commission of either Counts 7, 8 or 11, you
3 shall not consider race, color, religious beliefs, national
4 origin, or sex of either the defendant or the victims. You are
5 not to recommend a sentence of death unless you have concluded
6 that you would recommend a sentence of death for the crime in
7 question no matter what the race, color, religious beliefs,
8 national origin or sex of either the defendant or any of the
9 victims would have been.
10 To emphasize the importance of this consideration,
11 Section 7 of the special verdict contains a certification
12 statement for each count. Each juror should carefully read the
13 statement and sign in the appropriate place if the statement
14 accurately reflects the manner in which each of you reached your
15 decision.
16 The defendant did not testify. The law gives him that
17 right. There is no burden upon the defendant to prove that he
18 should not be sentenced to death. The burden is entirely on the
19 prosecution to prove that a sentence of death is justified.
20 Accordingly, the fact that the defendant did not testify must
21 not be considered by you in any way, or even discussed, in
22 arriving at your decision.
23 The verdict forms, which we've been over, have been
24 prepared to assist you during your deliberations. You are
25 required to record your determinations on those forms. Remember
1201
1 your deliberations must be separate as to the possible
2 punishment for each of Counts 7, 8 and 11.
3 Section 1 of each of the special verdict forms contains
4 space to record your written findings of the defendant's age;
5 Section 2 of each form contains space to record your written
6 findings on the requisite mental state; Section 3 on each form
7 contains space to record your written findings on the statutory
8 aggravating factors; Section 4 on each form contains space to
9 record your written findings on nonstatutory aggravating
10 factors; and Section 5 of the special verdict form contains
11 space to record your written findings on mitigating factors.
12 You are required to sign each decision form.
13 If you want to, as we told you before in the guilt phase
14 of the trial, if you have any communications you want to make
15 with the Court, have your foreperson to write those, press the
16 buzzer, and if I believe it can be answered with a yes or no, I
17 will write the answer on the paper that you send in to me. If
18 it requires any further instructions, obviously I would have to
19 bring you back into the courtroom for that purpose. Again, do
20 not tell us, if you do come back in the courtroom at any time
21 before your final verdict, do not tell us if you are divided in
22 any particular way on any particular count in this matter.
23 Is there anything that I have overlooked or should have
24 stated?
25 MR. CONRAD: No, sir.
1202
1 THE COURT: All right, members of the jury, we are going
2 to give you the verdict form. You already have the verdict
3 form, but we are going to give you a clean one. So those of who
4 have verdict -- all of you have verdict forms, you can mark on
5 those any way you want to, but the one that Ms. Grier gives will
6 be for the foreperson. That will be the verdict which will be
7 filed in court. The ones you have, you can mark them, doodle on
8 them, whatever you want to do, they're all yours. You can take
9 them home if you want to. I don't know whether you want to or
10 not, but you may.
11 Now, it's 3:30 almost, 3:25. You can stay here tonight
12 as long as you want to. If you can't finish up tonight, then
13 obviously you can come back in the morning. We'll leave that up
14 to you, it's in your hands. Stay with you as long as you want
15 us to, we'll go home as early as you want to go home, either way
16 is all right.
17 It's time for you now to deliberate. The Clerk will
18 give you the clean verdict form and the copy of the indictment
19 for the foreperson to use. If you want any exhibits, we are not
20 going to send the exhibits back, because there are so many
21 exhibits, the courtroom would be full of them. We've done that
22 before, but in this case if you want a particular exhibit
23 anyway, again, just let us know by note or something and we'll
24 be glad to send that back in there to you.
25 All right, you may begin your deliberations, thank you
1203
1 so much.
2 (The jury left the courtroom.)
3 THE COURT: Mr. Laughrun?
4 MR. LAUGHRUN: Judge, I have got three pages of
5 objections to your instructions. If you'd be patient with me,
6 I'll go through these.
7 THE COURT: Well, haven't we done those in jury
8 conference?
9 MR. LAUGHRUN: I think I have to renew them for the
10 record, Judge.
11 THE COURT: You want to put them on again?
12 MR. LAUGHRUN: I believe I have to.
13 THE COURT: Okay, go ahead, that's fine.
14 MR. LAUGHRUN: With regard to Rule 30 to Count 7,
15 verdict sheet Page 3 and the instruction Page 7, we object to
16 Your Honor giving the instruction on the grave risk of death to
17 one or more persons in regard to the Donald Allen count.
18 Page 4 of Count 7, verdict sheet, Page 11 of the
19 instructions on pecuniary gain. Page 4, the verdict sheet, Page
20 13 of the instructions, substantial planning and premeditation,
21 we objected to that on Friday, we object to it again today based
22 on the fact that that was an element of the offense for one of
23 the homicides that the jury convicted the defendant of.
24 Page 5 of the verdict sheet, Page 15 in the instructions
25 on nonstatutory victim impact evidence, which we objected to.
1204
1 Page 6 of the verdict sheet, Page 50 on the instructions on
2 future dangerousness, we objected to.
3 Page 6 of the verdict sheet, Page 16 of the instructions
4 on the defendant killed two people. We previously objected to
5 that in the fact that we asked that the Court order the
6 government to make an election and they did not.
7 Finally, for Count 7, on Page 23 we objected about the
8 U.S. versus Jones issue we previously discussed. Your Honor
9 overruled all of those Friday, we renew those for the record.
10 Also, Judge, before I get into Count 8, we had objected
11 and asked the Court to order the government to elect under
12 Counts 7 or 8, both of those.
13 MR. WILLIAMS: I'm sorry, did you want to say
14 something?
15 (Bench conference with the Clerk and the Court.)
16 THE COURT: Go ahead, we'll take care of this, go ahead.
17 MR. LAUGHRUN: Judge, we had asked that the government
18 elect under either Count 7 or 8 which homicide they wished to
19 proceed on because they both involved the victim Donnie Lee
20 Allen. Your Honor overruled that objection.
21 With regard to Count 8, Page 3 of the verdict form and
22 Page 24, the grave risk of harm to more than one person. Page 4
23 of the verdict form, Page 27, your instruction on pecuniary gain
24 we objected to. Page 4 of the instructions, Page 27,
25 substantial planning, we argued that that was a double jeopardy
1205
1 issue since the jury already decided that in the guilt innocence
2 phase of the trial.
3 Page 5 of the verdict form, Page 31 of the instructions,
4 victim impact evidence which we objected to and have objected to
5 from the start. Page 6 of the verdict form, Page 31 of the
6 instructions, future dangerousness, we objected to. Page 6 of
7 the verdict form and Page 31 of the instructions where the
8 defendant killed two people, we objected as that is violation of
9 due process in that there were two homicides involved total.
10 And Page 38 of the instructions, Judge, again, United States
11 versus Jones issue that we addressed with Your Honor on Friday.
12 Finally, Judge, on Count 11, Page 3 of the verdict
13 sheet, Paragraph 4, Page 40 of your instructions, risk of death
14 to more than one person, we objected to. Page 4 of the verdict
15 form, Page 42 of instructions, grave risk of harm to more than
16 one person, again, we objected to those. Page 4 of the verdict
17 form, Page 42 and 45, substantial planning and premeditation, we
18 objected to the -- that being a violation of due process in that
19 the jury convicted the defendant in the first phase of
20 premeditation and deliberation as the elements of the offense.
21 Page 5 of the verdict sheet, Page 47 of the instructions
22 on victim impact, which we've objected to throughout the course
23 of the trial. Page 6 of the verdict sheet, Page 47 of the
24 instruction on future dangerousness that we objected to. Page 6
25 of the verdict sheet, Page 47 of the instructions where the
1206
1 defendant killed more than one person, you've heard our
2 objection on that. Page 55 and 57 of your instructions, Your
3 Honor, talk about the United States versus Jones issue that we
4 have continually objected to there.
5 And finally, Judge, under Rule 32, before the jury
6 begins its deliberations, we renew our request to let the
7 defendant allocute before the jury, if Your Honor please, and I
8 think Mr. Williams has one, Judge.
9 THE COURT: Wait a minute before he starts. On Page 6
10 of the verdict form, nonstatutory aggravating factors, Page 6 of
11 Count 11, we had Paragraph 5. Obviously it would be Paragraph
12 3. I have renumbered it Paragraph 3 and initialed it. Do you
13 see where I am, Page 6 of the verdict form, Count 11?
14 MR. LAUGHRUN: Yes, sir.
15 THE COURT: That's supposed to be Paragraph 3, not 5. I
16 have renumbered it and sent it back to the jury. Thank you,
17 Sammy. Wait just a second, Mr. Williams, before -- you can take
18 that on back there if you want to.
19 Pretty sharp, they caught that right away. None of
20 y'all caught it, neither did I.
21 MR. LAUGHRUN: Who caught it, Judge?
22 THE COURT: The jury.
23 Okay, Mr. Williams.
24 MR. WILLIAMS: If Your Honor please, on Page 6 of
25 the -- excuse me, on Page 17 of the instructions under Section
1207
1 6.01, mitigating factors, on the -- in the first paragraph,
2 fourth line down, where it talks about and uses the
3 word "intentional," that word we object to. The sentence reads,
4 a mitigating factor is any fact about the defendant's life,
5 background, record or character, or about the circumstances
6 surrounding the intentional killing of Donald Lee Allen or any
7 other relevant fact that would subject, in fairness, that a
8 sentence of death is not justified. Our objection is based on
9 the fact that in the previous section, 4.02, under the finding
10 of requisite mental state, the jury is instructed that the
11 government has the burden to prove that intentional act beyond a
12 reasonable doubt, and that's one of the requirements under the
13 mental state section.
14 So it would be improper since that is a burden on the
15 government to prove, it would be improper to later on under the
16 mitigating factors section to allege that as a fact as if it had
17 been -- had occurred.
18 THE COURT: Why didn't you bring that to my attention
19 while we were doing it?
20 MR. WILLIAMS: Why didn't I?
21 MR. CONRAD: Judge, may I be heard on that?
22 THE COURT: Okay, go ahead.
23 MR. CONRAD: Your Honor, it's called that because they
24 never get to that point to even consider mitigation unless
25 they've found that it's been intentional. So that's why it's
1208
1 called intentional killing in that part of the instructions.
2 THE COURT: I wanted you to put it on the record, thank
3 you very much. Anything else?
4 MR. WILLIAMS: No, Your Honor, thank you, Judge Potter.
5 THE COURT: All right, everybody can relax.
6 (Court in recess, awaiting verdict of the jury.)
7 (Question from the jury.)
8 THE COURT: Do you want the defendant here first?
9 MR. LAUGHRUN: We want to see what the question is
10 first.
11 THE COURT: Okay, the question number four,
12 clarification of the other than one of the participants in the
13 offense. Is Donald Lee Allen one of the participants in the
14 offense? I think I can write no, because he is not one of
15 participants in the offense.
16 MR. CONRAD: That's correct.
17 THE COURT: That thing is designed for more than one --
18 MR. LAUGHRUN: Judge that's an issue I know we debated
19 Friday.
20 THE COURT: I know, I didn't want to change what the
21 statute says, it just doesn't make sense to say --
22 MR. CONRAD: Your Honor, the legally correct answer is
23 no.
24 THE COURT: That's what I'm going to tell them. Any
25 objection?
1209
1 MR. CONRAD: No, sir.
2 MR. LAUGHRUN: May I have a moment Your Honor.
3 THE COURT: That is designed for drug cases, I think, I
4 don't know why they didn't correct it. The question number
5 four, clarification of request, quote, other than one of the
6 participants in the offense, is Donald Lee Allen one of the
7 participants in the offense.
8 MR. CONRAD: Answer is clearly no.
9 MR. LAUGHRUN: Judge I'm not sure that it's clearly --
10 MR. CONRAD: It's without a doubt no.
11 MR. WILLIAMS: We object.
12 MR. LAUGHRUN: We object to that.
13 THE COURT: You object to my telling them that?
14 MR. LAUGHRUN: I would object to that, if you made your
15 decision we respect it but we object.
16 THE COURT: Objection is overruled, and I will give it
17 to them. There is no other answer to that.
18 MR. WILLIAMS: Can we put that sheet or ask that that
19 sheet be preserved for the record.
20 THE COURT: Oh, yes, we will do that.
21 MR. LAUGHRUN: You want to bring the jury out to answer
22 that.
23 THE COURT: No, I wrote no, that's a yes or no
24 question. Do you still want the defendant here?
25 MR. LAUGHRUN: If you are not going to bring the jury
1210
1 out no.
2 THE MARSHAL: I already sent for him.
3 THE COURT: Send him back down.
4 MR. WILLIAMS: There he is now.
5 (Awaiting verdict of the jury.)
6 (Note from the jury at 4:45 p.m.)
7 THE COURT: Call the jury.
8 (The jury returned to the courtroom.)
9 THE COURT: Members of the jury, I understand you want
10 to recess until tomorrow morning at 9:30, is that correct?
11 (Jurors nod heads.)
12 THE COURT: That's fine. Do you have any other
13 questions or anything like you did a few minutes ago? Let me
14 know and we will help any way we can. Did the answer I gave you
15 satisfy you?
16 (Jurors nod heads.)
17 THE COURT: All right, recess until 9:30. It's very
18 important that you not discuss this case with anybody outside of
19 the courtroom, don't read anything about it, don't listen to
20 anything about it, I hate to keep telling you to do that because
21 I'm constrained to do that, so we will see you tomorrow morning
22 at 9:30. Have a nice evening.
23 (The jury left the courtroom.)
24 THE COURT: Recess until tomorrow morning at 9:30.
25 (Court in recess.)
Back to the Aquilia Barnette page
Back to the Huseby, Inc. homepage