Huseby, Inc.
 

                                                                          1211

 

 

          1                   UNITED STATES DISTRICT COURT

 

          2            FOR THE WESTERN DISTRICT OF NORTH CAROLINA

 

          3                        CHARLOTTE DIVISION

 

          4

               UNITED STATES OF AMERICA     )

          5                                 )

                                            )

          6            vs.                  )  File No. 3:97CR23-P

                                            )

          7    AQUILIA MARCIVICCI BARNETTE, )  SENTENCING PHASE

                                            )

          8            Defendant.           )

                                            )

          9

 

         10

 

         11                 Transcript of proceedings before the Honorable

 

         12    ROBERT D. POTTER, Senior United States District Court Judge,

 

         13    before Scott A. Huseby, Official Court Reporter and Notary

 

         14    Public, on the 10th day of February, 1998.

 

         15    APPEARANCES:

 

         16    For the United States:

 

         17       ROBERT J. CONRAD, JR.

                  THOMAS G. WALKER

         18       Assistant United States Attorneys

                  227 West Trade Street, Suite 1700

         19       Charlotte, North Carolina  28204

 

         20    On Behalf of the Defendant:

 

         21       GEORGE V. LAUGHRUN, Esq.

                  Suite 602

         22       301 South McDowell Street

                  Charlotte, North Carolina  28204

         23

 

         24

 

         25

 

 

 

 

 

 

                                                                          1212

 

 

          1    APPEARANCES: (Continued)

 

          2       PAUL J. WILLIAMS, Esq.

                  Suite 801

          3       301 South McDowell Street

                  Charlotte, North Carolina  28204

          4

 

          5                              ---

 

          6

 

          7            THE COURT:  Let's see, where is the defendant?  We've

 

          8    got the court reporter here.

 

          9            (Defendant enters the courtroom.)

 

         10            THE COURT:  Call the jury.

 

         11            (The jury returned to the courtroom.)

 

         12            THE COURT:  Good morning, ladies and gentlemen, hope you

 

         13    had a nice evening.  We've got the sun shining.

 

         14            JUROR:  Yes.

 

         15            THE COURT:  Getting ready to go back to your

 

         16    deliberations.  Again I have to ask you the standard question,

 

         17    anybody seen, heard or read anything about this case overnight?

 

         18            JURORS:  No, sir.

 

         19            THE COURT:  Anybody talking about it?

 

         20            JURORS:  No, sir.

 

         21            THE COURT:  All right, fine, go back and start your

 

         22    deliberations.  Thank you so much.  Are you comfortable back

 

         23    there, how's the temperature?

 

         24            JUROR:  It's fine.

 

         25            (Jurors nod heads.)

 

 

 

 

 

 

                                                                          1213

 

 

          1            THE COURT:  Is it all right?  Good, thank you.

 

          2            (The jury left the courtroom.)

 

          3            THE COURT:  All right, let's see what happens.

 

          4            (Deliberations.)

 

          5            (Question from the jury.)

 

          6            THE COURT:  Where are the -- I'm going to read the

 

          7    question and we can decide whether or not you need to have your

 

          8    client here.  I don't think it's necessary.  First

 

          9    question -- it's not a question really, it's a request, we would

 

         10    like the transcript of portions of testimony.  Do we ask for

 

         11    specific testimony or may we -- do we ask for specific testimony

 

         12    or do we have to -- or do we have the entire transcript?  I

 

         13    would suggest the specific testimony.  I mean, if you give them

 

         14    the trial transcript, how many volumes do we have?

 

         15            MR. CONRAD:  The trial transcript is in evidence, 65A, B

 

         16    and C.  We introduced that at the beginning of the sentencing

 

         17    phase, so --

 

         18            THE COURT REPORTER:  I filed the all transcripts.

 

         19            THE COURT:  I don't think -- they asked for the trial

 

         20    transcript.  It says, we would like the testimony -- I mean, the

 

         21    transcript of portions of testimony.  Do we ask for specific

 

         22    testimony or may we have the entire transcript?  I assume this

 

         23    is all -- we'll have to ask them, I guess.

 

         24            MR. WILLIAMS:  Judge, we don't know what part of the

 

         25    transcript they are asking for.

 

 

 

 

 

 

                                                                          1214

 

 

          1            THE COURT:  I think that's what we probably want to call

 

          2    them and ask them that.  And the next one, we would like to have

 

          3    a copy of the time line book.  Is there a time line book on this

 

          4    thing?

 

          5            MR. LAUGHRUN:  Judge, the green book you have in front

 

          6    of you there is the time line book.  It was admitted without the

 

          7    genogram and the life history.  What was admitted was the time

 

          8    line and the artwork.

 

          9            THE COURT:  All right, sir.  Do you want your client

 

         10    here for this?

 

         11            MR. LAUGHRUN:  No, sir, no objection to that.

 

         12            THE COURT:  Okay.  Let me find out what part of the

 

         13    transcript they want, so call them out here and let's ask them

 

         14    that.

 

         15            MR. LAUGHRUN:  Judge, if you are going to bring the jury

 

         16    out, I think we probably ought to have the defendant, if you're

 

         17    going to bring the jury out to do that.

 

         18            THE COURT:  Well, get him in here then.

 

         19            MR. CONRAD:  Your Honor, if they have asked for --

 

         20            MR. LAUGHRUN:  Judge, one of the green notebooks for the

 

         21    record only which was the big --

 

         22            THE COURT:  Let's make sure what notebook we are talking

 

         23    about before we give it to them.

 

         24            MR. CONRAD:  Your Honor, if they are asking for the time

 

         25    line, I would suggest to take the artwork out of the book.

 

 

 

 

 

 

                                                                          1215

 

 

          1            THE COURT:  What is the artwork, is this the artwork?

 

          2            THE CLERK:  What is the number?

 

          3            MR. CONRAD:  There's a time line, and then at the back

 

          4    of that notebook there is some artwork that the defendant --

 

          5            THE COURT:  Oh, that, yeah, okay, I remember that, yeah.

 

          6    I guess the time line is all they want.

 

          7            THE LAW CLERK:   I think 54 was the one that was

 

          8    admitted for the record only.

 

          9            THE COURT:  You have the time line on a board, don't

 

         10    you, wouldn't that be better than the book?

 

         11            MR. CONRAD:  Yes, sir.

 

         12            THE COURT:  I'll ask them if they wouldn't rather have

 

         13    that.

 

         14            MR. WILLIAMS:  I'm just getting this in case.

 

         15            THE CLERK:  The time line is 43.

 

         16            THE COURT:  Is that the whole thing, Paul, on one board,

 

         17    is that what it is, the whole thing from beginning to end?

 

         18            MR. WILLIAMS:  Yes, sir.

 

         19            THE COURT:  Well, the board would be better, because

 

         20    they have to go through all those pages.

 

         21            All right, call the jury.

 

         22            (Defendant present in the courtroom.)

 

         23            (The jury returned to the courtroom.)

 

         24            THE COURT:  Let's see, Mr. Schudel, are you still the

 

         25    foreperson?

 

 

 

 

 

 

                                                                          1216

 

 

          1            JUROR:  I think so.

 

          2            THE COURT:  You have a note here, we would like the

 

          3    transcript of a portion of testimony, do we ask for specific

 

          4    testimony or do we have -- may we have the entire transcript?

 

          5    Could you ask for specific testimony, it would make it a lot

 

          6    simpler for you to find it, can you do that?  I mean, can you

 

          7    tell us what you want and then we can get it for you, or do you

 

          8    want the entire transcript?

 

          9            JUROR:  Of his great aunt, Mabel Johnson.

 

         10            THE COURT:  What?

 

         11            JUROR:  His great aunt, Mabel Johnson's testimony.

 

         12            THE COURT:  Well, why don't we -- the trouble is I don't

 

         13    think you could find it if you just get the whole transcript.

 

         14    How many volumes are there, Scott, do you know, three, three

 

         15    volumes?  The penalty phase is what you want, isn't it, not the

 

         16    trial transcript, the penalty phase?

 

         17            JUROR:  Correct.

 

         18            THE COURT:  All right, we can get that for you,

 

         19    Ms. Grier has it right here.  So that's all you want right now?

 

         20    Okay, let's do that then, we'll get that for you.

 

         21            JUROR:  Okay.

 

         22            THE COURT:  And you also would like to have a copy of

 

         23    the time line book.  I assume you are talking about this green

 

         24    book with the circles on it and so forth?

 

         25            JUROR:  Yes.

 

 

 

 

 

 

                                                                          1217

 

 

          1            THE COURT:  Okay, we'll get that for you.

 

          2            MR. LAUGHRUN:  Judge, I believe they have copies there.

 

          3            JUROR:  We do, but we -- can we use ours?

 

          4            THE COURT:  You do have it?  All right, you have that,

 

          5    then, just take that back there with you.  We will get the

 

          6    transcript portion you want right now.  You can go on back now

 

          7    and continue -- we'll get that to you as soon as we can get it

 

          8    together.

 

          9            (The jury left the courtroom.)

 

         10            MR. LAUGHRUN:  Judge, if I may while the jury is out,

 

         11    I'm not sure you can send them the entire transcript back and I

 

         12    would like to be heard briefly.

 

         13            THE COURT:  All right.

 

         14            MR. LAUGHRUN:  A lot of stuff that went on outside the

 

         15    jury's presence is in the transcript.

 

         16            THE COURT:  Oh, that's right, I forgot about that.

 

         17            MR. LAUGHRUN:  Bench conferences and the like, so that's

 

         18    not proper.

 

         19            THE COURT:  You are right.

 

         20            MR. CONRAD:  Your Honor, Government's Exhibit 65A, B and

 

         21    C, what we introduced into evidence as our first exhibit is a

 

         22    transcript of the trial testimony, the guilt phase, and it's

 

         23    absent any of the bench conference outside the presence of the

 

         24    jury stuff.  It's pure testimony.

 

         25            THE COURT:  Well, I think they want the guilt phase.

 

 

 

 

 

 

                                                                          1218

 

 

          1            MR. CONRAD:  If they want the guilt phase, they have it

 

          2    sanitized already in evidence.

 

          3            THE COURT:  You mean there are no bench conferences in

 

          4    that part?

 

          5            MR. CONRAD:  There are no bench conferences, there is

 

          6    nothing, there is no voir dire outside the presence of the jury,

 

          7    it's just pure testimony.  That's what we introduced as

 

          8    Government's Exhibit 65A, B and C.

 

          9            THE COURT:  I think that's what Ms. Grier has gone to

 

         10    get right now.

 

         11            MR. CONRAD:  Well, I've got the transcripts that we

 

         12    introduced into evidence and these transcripts don't have any

 

         13    bench conferences, don't have any --

 

         14            THE COURT:  Well, let defense counsel look at them and

 

         15    make sure they're satisfied with them.

 

         16            MR. LAUGHRUN:  Judge, all they asked for was one

 

         17    person's testimony.

 

         18            THE CLERK:  They asked for one specific testimony.

 

         19            MR. LAUGHRUN:  Right, all they asked for was Mabel

 

         20    Johnson's 20 pages of testimony.

 

         21            THE COURT:  Okay, let's see if we can find it.

 

         22            MR. CONRAD:  All I'm saying, Judge, if they do ask for

 

         23    the guilt phase later on, Mr. Laughrun's argument that there is

 

         24    other stuff in there is not correct as to the guilt phase.

 

         25            MR. LAUGHRUN:  I wasn't talking about the guilt phase,

 

 

 

 

 

 

                                                                          1219

 

 

          1    Judge, I was talking about the sentencing portion of the trial

 

          2    which has not been sanitized or whatever.

 

          3            THE COURT:  All right, sir.  I'll tell you, give that to

 

          4    them, Mike, and let them look at it, the two of them together,

 

          5    defense counsel and the government, to see what they want.  Just

 

          6    give it to them and let them figure it out what they want,

 

          7    defense counsel and the government.  Mr. Conrad, you and

 

          8    Mr. Walker want to look at what they are doing over there?

 

          9            MR. CONRAD:  Judge, we have our copy tabbed and we can

 

         10    find it pretty quickly.

 

         11            THE COURT:  Okay, if you have them, fine, let them look

 

         12    at them and if they are satisfied, we'll send that back.

 

         13            MR. LAUGHRUN:  Judge, we've got it right here.

 

         14            THE COURT:  Let Mr. Conrad see that.

 

         15            MR. CONRAD:  We have looked at it in our copy.

 

         16            THE COURT:  Okay.

 

         17            MR. LAUGHRUN:  Judge, it's Pages 444 to 458 of the

 

         18    transcript.

 

         19            THE COURT:  444 to 458, is that what you are talking

 

         20    about?

 

         21            MR. CONRAD:  No, it ends at 448, Judge.

 

         22            MR. LAUGHRUN:  I'm sorry, Judge, that's right.

 

         23            THE CLERK:  What are the numbers?

 

         24            MR. CONRAD:  444 to 448.

 

         25            THE COURT:  444 to 448.

 

 

 

 

 

 

                                                                          1220

 

 

          1            MR. LAUGHRUN:  You want us to take it out?

 

          2            THE COURT:  Is that all, four pages?

 

          3            MR. LAUGHRUN:  That's right.

 

          4            THE COURT:  All right, we are going to have copies made

 

          5    of Pages 444 through 448 and send that back to the jury, is that

 

          6    satisfactory to both sides?

 

          7            MR. CONRAD:  Yes, sir.

 

          8            THE COURT:  Let's make three copies for --

 

          9            MR. CONRAD:  Your Honor, when you do that, there is a

 

         10    portion of Page 444 that's not relevant.  There's about

 

         11    two-thirds of the page that is some other testimony.

 

         12            THE COURT:  Loretta, can you take care of that for me,

 

         13    take that part of the page out?

 

         14            MR. CONRAD:  Just the Mabel Johnson.

 

         15            THE COURT:  Ask Mr. Conrad what he is talking about and

 

         16    make sure.

 

         17            (Discussion among attorneys for the government and the

 

         18    defendant.)

 

         19            THE COURT:  All right, is everybody satisfied?

 

         20            MR. CONRAD:  Yes, sir.

 

         21            MR. LAUGHRUN:  Yes, sir.

 

         22            THE COURT:  All right, we'll send that back.  We are

 

         23    going to send back the time line pages.

 

         24            THE MARSHAL:  They've already got the books.

 

         25            THE COURT:  Have they already got the book?  Okay.

 

 

 

 

 

 

                                                                          1221

 

 

          1            MR. WILLIAMS:  If they want that big board, of course,

 

          2    they can have that, if the Court permits it.

 

          3            MR. LAUGHRUN:  Judge, for the record, too, I've reviewed

 

          4    Government's Exhibit 65A, B and C and it is as Mr. Conrad --

 

          5            THE COURT:  65A, B and C.

 

          6            MR. LAUGHRUN:  The trial transcript, yes, sir.

 

          7            THE COURT:  That's what we're sending back, A, B --

 

          8    they've already got it, you say, A, B and C.

 

          9            MR. LAUGHRUN:  Judge, they never asked for that.  That's

 

         10    the trial testimony.

 

         11            THE COURT:  Okay.

 

         12            (Note from the jury at 10:45 a.m.)

 

         13            THE COURT:  Note from the jury, we need a copy of the

 

         14    divorce decree and the paternity test documents.  Do we have

 

         15    those?

 

         16            (Attorneys review documents.)

 

         17            MR. LAUGHRUN:  Judge, that's Defendant's Exhibit 33.

 

         18            THE COURT:  All right, just be sure the government sees

 

         19    it and everybody is happy, just let him look at it.  Is that the

 

         20    paternity test documents, too, Mr. Laughrun?

 

         21            MR. LAUGHRUN:  It's attached as part of the lawsuit,

 

         22    yes, sir.

 

         23            THE COURT:  Just give it to the marshal.

 

         24            (Marshal takes documents to the jury.)

 

         25            (Note from the jury at 11:24 a.m.).

 

 

 

 

 

 

                                                                          1222

 

 

          1            THE COURT:  All right, the question -- well, I guess you

 

          2    call it a question, may we please have a legal definition of

 

          3    duress as used in mitigating factors, factor two on Page 7.

 

          4    (The Court reviews documents.)  I don't see any factor two on

 

          5    Page 7.

 

          6            MR. LAUGHRUN:  Judge, on your verdict sheet, it looks

 

          7    like it is on the verdict sheet on Page 7.

 

          8            THE COURT:  I'm sorry, I was looking at the wrong thing.

 

          9            MR. LAUGHRUN:  Yes, sir.  The, I believe and I'm just

 

         10    speculating, the second statutory aggravator talks about the

 

         11    defendant was under unusual --

 

         12            THE COURT:  The defendant was under unusual and

 

         13    substantial duress regardless of whether the duress was of such

 

         14    degree as to constitute a defense to the charge.  You want to

 

         15    give them the Black's legal dictionary definition?

 

         16            MR. LAUGHRUN:  Well, what does it say first?  I mean, I

 

         17    don't know what it says because I don't have Black's in front of

 

         18    me.

 

         19            THE COURT:  I've got it right here.  Do you want your

 

         20    client here for this?

 

         21            MR. LAUGHRUN:  Are you going to bring the jury out?

 

         22            THE COURT:  Well, I'm going to have to give them the

 

         23    definition.  Let's go over it first.  Duress, any unlawful

 

         24    threat or coercion used by a person to induce another to act or

 

         25    to refrain from acting in a manner he or she otherwise would not

 

 

 

 

 

 

                                                                          1223

 

 

          1    have done, or would not have, or would, subjecting a person to

 

          2    improper pressure which overcomes his will and coerces him to

 

          3    comply with a demand to which he would not yield if acting as a

 

          4    free agent.  There's a lot more to it, I'll go ahead and read it

 

          5    all.  Application of such pressure or constraint as compels man

 

          6    to go against his will, takes away his free agency, destroying

 

          7    power of refusing to comply with unjust demands of another.  A

 

          8    condition where one is induced by wrongful act or threat of

 

          9    another to make a contract or perform a tortious act under

 

         10    circumstances which deprive him of exercise of his free will.

 

         11    Includes any conduct which overpowers will and coerces or

 

         12    constrains performances of an act which otherwise would not have

 

         13    been performed.  And it goes on for the rest of page.  I don't

 

         14    know whether we need anymore than that or not, do we, are you

 

         15    satisfied with that much of it?

 

         16            MR. LAUGHRUN:  Judge, could I suggest that given the

 

         17    hour, would you consider recessing for lunch, let the jury go to

 

         18    lunch and let us see if we can find a definition?

 

         19            THE COURT:  I don't think you are going to find any

 

         20    better definition than this, but if you want to, that's fine.

 

         21    I'm not going to tell them to go to lunch, Mr. Laughrun.  If

 

         22    they want to go to lunch, that's fine.

 

         23            MR. LAUGHRUN:  I didn't know what your policy was going

 

         24    to be during this time or not.

 

         25            THE COURT:  That's up to them, because they -- they'll

 

 

 

 

 

 

                                                                          1224

 

 

          1    be here.  Anything else, will that satisfy?

 

          2            MR. LAUGHRUN:  Judge, I hate to say it would, because I

 

          3    don't have anything to look for for a definition.  I don't know

 

          4    if there's something in like the Fifth Circuit pattern

 

          5    instruction about that not, I just don't know.

 

          6            THE COURT:  Well, as a matter of fact, I think there

 

          7    is.  I will get that, I'll find it, I know where it is, Mike.

 

          8            (Brief recess.)

 

          9            THE COURT:  All right, Penal Code, Section 2.09 defines

 

         10    duress as follows:  It is an affirmative defense that the actor

 

         11    engaged in the conduct charged to constitute an offense because

 

         12    he was coerced to do so by the use of or threat to use unlawful

 

         13    force against his person or the person of another, which a

 

         14    person of reasonable firmness in his situation would have been

 

         15    unable to resist.  The defense -- well, we don't need to get

 

         16    into that.

 

         17            Devitt and Blackmar, duress or necessity as to defense,

 

         18    duress or necessary of it is a defense to the crime of escape.

 

         19    They're talking about one thing here.  In order to find the

 

         20    defense of duress or necessity in this case, you must determine

 

         21    that, one, there was an immediate and specific threat of bodily

 

         22    harm to the defendant, the defendant had no time to complain to

 

         23    authorities about his danger or the making of such a complaint

 

         24    would have been useless or futile, and three, force or violence

 

         25    was not used in the escape, and four, the defendant intended to

 

 

 

 

 

 

                                                                          1225

 

 

          1    report immediately to the proper authorities as soon as the

 

          2    threat of bodily harm had lost its coercive force or made a good

 

          3    faith effort.  I think we better take the dictionary, do you

 

          4    agree.

 

          5            MR. CONRAD:  We agree.

 

          6            MR. LAUGHRUN:  Judge, neither one of those apply.

 

          7            THE COURT:  Pardon?

 

          8            MR. LAUGHRUN:  Neither one of those apply.

 

          9            THE COURT:  I know they don't.  That's what I say, they

 

         10    need to take the dictionary, the common meaning of it.  I mean,

 

         11    you're not going to get an instruction that doesn't have to do

 

         12    with some particular case.

 

         13            MR. LAUGHRUN:  Right.  Why don't you just tell them to

 

         14    use their common sense, the term is self -- just like on

 

         15    reasonable doubt, it's --

 

         16            THE COURT:  I'm going to define it.  They asked me to

 

         17    define it and I'm going to define it.  All right, take Black's

 

         18    Dictionary, that's the one we're going to use.

 

         19            MR. LAUGHRUN:  Judge, before the jury comes out, we also

 

         20    have an objection to the government piling on evidence at that

 

         21    table, to give you an idea.

 

         22            THE COURT:  No, sir, you cannot.  That's been there the

 

         23    whole trial.

 

         24            MR. LAUGHRUN:  Judge, no, sir, it hasn't.  Let me tell

 

         25    you if I can, Judge, the other shotgun, the second shotgun was

 

 

 

 

 

 

                                                                          1226

 

 

          1    added today.  The government didn't --

 

          2            THE COURT:  Take the shotgun off.  I don't know why it's

 

          3    over there.  They were using it in final argument, I guess.

 

          4            MR. LAUGHRUN:  Well, they didn't use it in final

 

          5    argument, that's my point, and what they've done is they've put

 

          6    stuff on over there --

 

          7            THE COURT:  All right, take the shotguns off.

 

          8            MR. CONRAD:  Can we turn those pictures around that the

 

          9    defense attorneys prominently displayed right there for the

 

         10    jury.

 

         11            MR. WILLIAMS:  Sure.

 

         12            THE COURT:  All right, take the shotguns off and let's

 

         13    call the jury and get this over with.  Now, this comes from

 

         14    Black's Law Dictionary, Sixth Edition, Centennial Edition, 1891,

 

         15    1991, call the jury.

 

         16            MR. WILLIAMS:  If you're going to take those pictures

 

         17    down, we would ask that the other pictures be taken down.

 

         18            THE COURT:  Just take it all off the table.

 

         19            (The jury returned to the courtroom.)

 

         20            THE COURT:  Somebody must have called to turn up the

 

         21    heat, we're going to have to get rid of that right now.

 

         22            All right, members of the jury, I'm going to read to you

 

         23    from Black's Law Dictionary.  I had picked up several other

 

         24    sources, but I think this is more authoritative than anything we

 

         25    can get for the common word "duress."  This is Black's Law

 

 

 

 

 

 

                                                                          1227

 

 

          1    Dictionary, Sixth Edition, and it states that duress, any

 

          2    unlawful threat or coercion used by a person to induce another

 

          3    to act or to refrain from acting in a manner which he or she

 

          4    otherwise would not have, or would, subjecting person to

 

          5    improper pressure which overcomes his will and coerces him to

 

          6    comply with a demand to which he would not yield if acting as

 

          7    free agent.  Application of such pressure or constraint as

 

          8    compels man to go against his will and takes away his free

 

          9    agency, destroying power or of refusing to comply with unjust

 

         10    demands of another.  A condition where one is induced by a

 

         11    wrongful act or threat to a -- excuse me, a condition where one

 

         12    is induced by a wrongful act or threat of another to make a

 

         13    contract or perform a tortious act under circumstances which

 

         14    deprive him of exercise of his free will.  Includes any conduct

 

         15    which overpowers will and coerces or constrains performances of

 

         16    an act which otherwise would not have been performed.  Duress

 

         17    may be a defense to a criminal act, breach of contract or tort

 

         18    because of an act to be criminal of one -- or one which

 

         19    constitutes a breach of contract or a tort must be voluntary to

 

         20    create liability responsibility.

 

         21            I think that's about as far we need to go on that.  IS

 

         22    there anything else you need, you want me to go over it again?

 

         23    It's forcing someone to do something, I think, is the way I

 

         24    interpret it.

 

         25            All right, thank you very much.  When y'all are ready to

 

 

 

 

 

 

                                                                          1228

 

 

          1    go to lunch, just let us know and you'll be able to go.

 

          2            JURORS:  We're ready.

 

          3            THE COURT:  You want to go now?  All right, everybody

 

          4    agrees to go now.  What time do you want to come back?  It's in

 

          5    your hands now.  It's 1:00 o'clock now, what time, 2:00 o'clock?

 

          6            JUROR:  2:00 o'clock.

 

          7            THE COURT:  2:00'clock.

 

          8            JUROR:  2:00 o'clock is fine.

 

          9            THE COURT:  Okay, fine.  Do not discuss the case among

 

         10    yourselves while you are out, do not discuss it with anyone

 

         11    else, and do not -- if one or two of you come back in here in

 

         12    the jury room, don't discuss it until everybody is there, do you

 

         13    understand that?  All right, 2:00 o'clock, then, we'll be back.

 

         14    Thank you.

 

         15            (The jury left the courtroom.)

 

         16            MR. LAUGHRUN:  Judge, if I may, we would object to that,

 

         17    Judge.  The definition of forcing someone to do something, I

 

         18    respectfully object because that's not the way it's used in that

 

         19    context and would ask if over the lunch break I can present the

 

         20    Court with another definition.  Would the Court consider that,

 

         21    if I go back to our offices and try to find that over the lunch

 

         22    break and present that to Your Honor, would you consider that

 

         23    and maybe reinstructing them on that if I come up with a

 

         24    definition?

 

         25            THE COURT:  Anything, all right, just so as long as we

 

 

 

 

 

 

                                                                          1229

 

 

          1    define duress.  Thank you.

 

          2            MR. LAUGHRUN:  Thank you, Judge Potter.

 

          3            THE COURT:  Recess until 2:00 o'clock.

 

          4            (Lunch recess.)

 

          5            THE COURT:  On the record, both counsel for the

 

          6    defendant and for the government were present at 2:00 o'clock,

 

          7    at which time we directed the court security officer to direct

 

          8    the jury to recommence their deliberations, is that right?

 

          9            MR. LAUGHRUN:  That's correct.  Before that too, Your

 

         10    Honor, you had asked us if we found any other definitions of

 

         11    duress.  For the record, at the break we called David Brook who

 

         12    is resource counsel for the federal death penalty resource

 

         13    center.  He said there is no definition in Title 18 for duress.

 

         14    We also looked at Devitt and Blackmar and got the same

 

         15    instruction Your Honor got.  We also looked at Magistrate Judge

 

         16    Horn's federal jury instructions for the Fourth Circuit authored

 

         17    by Magistrate Judge Horn, 1997 edition.  There is no duress

 

         18    definition in those.

 

         19            THE COURT:  Are you satisfied with Black's Law

 

         20    Dictionary?

 

         21            MR. LAUGHRUN:  I'm satisfied with it, but we understand

 

         22    you gave and we renew our objection to it, but you've already

 

         23    ruled on that.

 

         24            THE COURT:  Okay.

 

         25            MR. LAUGHRUN:  Thank you, Judge.

 

 

 

 

 

 

                                                                          1230

 

 

          1            THE COURT:  All right.

 

          2            (Verdict at 4:23 p.m.)

 

          3            (The defendant enters the courtroom.)

 

          4            THE COURT:  Ready for the jury, call the jury.

 

          5            (The jury returned to the courtroom.)

 

          6            THE COURT:  Mr. Schudel, has the jury reached a verdict

 

          7    in this matter?

 

          8            JUROR:  Yes, we have, Your Honor.

 

          9            THE COURT:  Would you hand that to the marshal, please?

 

         10            (Juror hands verdict form to the marshal, marshal hands

 

         11    verdict form to the Court.)

 

         12            THE COURT:  Members of the jury, this is a right

 

         13    complicated verdict, I guess you'd say.  I need to go over this

 

         14    with counsel before we announce it in court if you understand

 

         15    that.  If you will be more comfortable, you may go back to the

 

         16    jury room.  It will take us a few minutes to go through here.

 

         17    Thank you so much.  We will get you out here in just a few

 

         18    minutes.

 

         19            (The jury left the courtroom.)

 

         20            THE COURT:  I want to go over this with counsel and make

 

         21    sure that we're all set.  Let's go back here into this room

 

         22    first.

 

         23            (In-chambers conference.)

 

         24            (Defendant not present.)

 

         25            THE COURT:  Going through this thing, and I think it's

 

 

 

 

 

 

                                                                          1231

 

 

          1    all right, count 7 age of the defendant, yes, mental state, yes,

 

          2    section 2, that is paragraphs one and two, due -- I will read

 

          3    the verdict, do you the jury understandly find government proved

 

          4    beyond a reasonable doubt the defendant intentionally killed

 

          5    Donald Lee Allen, count 7, answer yes; number two, do you the

 

          6    unanimously find the government proved beyond a reasonable doubt

 

          7    the defendant intentionally inflicted series bodily injury which

 

          8    resulted in the death of Donald Lee Allen in Count 7, answer

 

          9    yes; number 3, do you the jury unanimously find the government

 

         10    proved beyond a reasonable doubt the defendant intentionally

 

         11    engaged in conduct intending that Donald Lee Allen be killed and

 

         12    or that lethal force be employed against Donald Lee Allen which

 

         13    resulted in the death of Donald Lee Allen in Count 7, answer is

 

         14    yes; number 4, do you the jury unanimously find that the

 

         15    government proved beyond a reasonable doubt that the defendant

 

         16    intentionally engaged in conduct which the defendant knew

 

         17    created grave risk of death to a person other than one of the

 

         18    participants in the offense and resulted in death of Donald Lee

 

         19    Allen in Count 7, answer is yes; section 3, statutory

 

         20    aggravating factors, number one, paragraph one, number one, yes;

 

         21    paragraph two, number 2, yes; nonstatutory aggravating factors,

 

         22    section 4, paragraph 1, yes; paragraph two, yes; number 3, yes.

 

         23    Mitigating factors -- do we need to go through all of those, I

 

         24    mean?  Well, paragraph one --

 

         25            MR. LAUGHRUN:  Judge, can we go off the record for a

 

 

 

 

 

 

                                                                          1232

 

 

          1    minute?

 

          2            THE COURT:  Yes.

 

          3            (Off-the-record discussion.)

 

          4            THE COURT:  Death sentence, yes.  Let's go on back to

 

          5    the other.

 

          6            MR. CONRAD:  Can you tell us what page 13 is on count 8

 

          7    and 11.

 

          8            THE COURT: Page 13, everyone signed it death sentence,

 

          9    yes.

 

         10            MR. CONRAD:  On count 7, how about count 7, 8 and 11.

 

         11            THE COURT:  That's what I'm getting to right now.  Death

 

         12    sentence, yes; count 8, death sentence, yes, and on count 11.

 

         13    Jurors all signed it, y'all want the look at it?

 

         14            MR. LAUGHRUN:  I would like to look at it.

 

         15            (Court hands verdict form to Mr. Laughrun.)

 

         16            MR. CONRAD:  I will look over your shoulder.

 

         17    (pause.)

 

         18            MR. LAUGHRUN:  Do you want to see it?

 

         19            MR. WILLIAMS:  (Shakes head.)

 

         20            THE COURT:  I will read the whole verdict out there

 

         21    before the jury.

 

         22            MR. LAUGHRUN:  Judge, I don't know if you want to do

 

         23    this, I don't particularly want you to go through every line by

 

         24    line.

 

         25            THE COURT:  I'm going to have to put it on the record.

 

 

 

 

 

 

                                                                          1233

 

 

          1            MR. LAUGHRUN:  You have to?

 

          2            MR. WILLIAMS:  Why can't he read the verdict and offer

 

          3    the verdict sheet into evidence, it's part the record?

 

          4            THE COURT:  Well, I will ask is this your verdict to the

 

          5    whole panel.

 

          6            MR. CALLOWAY:  I think he has to read the whole thing.

 

          7            (The jury returned to the courtroom.)

 

          8            THE COURT:  Members of the jury, I want to thank you so

 

          9    much for your time and patience.  I know it's been hot and cold

 

         10    and everything else, but we'll get around to that in just a

 

         11    little bit.

 

         12            Now, I am going ahead and read the entire verdict so

 

         13    that everyone will know exactly what we have and so y'all will

 

         14    hear that and understand that.  At the end of this, the

 

         15    defendants may want you to be polled, that is, to ask each one

 

         16    of you individually, even though you've signed this, if this is

 

         17    your verdict and still your verdict just as you did in the guilt

 

         18    phase, do you understand that?  There's nothing unusual about

 

         19    that, it's the usual procedure.

 

         20            As to the first section, do you the jury unanimously

 

         21    find the government has established beyond a reasonable doubt

 

         22    that, one, the defendant was 18 years of age or older at the

 

         23    time of the offense in Count 7, the answer is yes.  Section 2,

 

         24    requisite mental state, do you the jury unanimously find -- now,

 

         25    we're talking about Count 7, I forgot to mention that to you --

 

 

 

 

 

 

                                                                          1234

 

 

          1    number one, do you the jury unanimously find the government has

 

          2    proven beyond a reasonable doubt that the defendant

 

          3    intentionally killed Donald Lee Allen in Count 7, the answer is

 

          4    yes.

 

          5            Number 2 in Section 2, do you the jury unanimously find

 

          6    the government has proved beyond a reasonable doubt the

 

          7    defendant intentionally inflicted serious bodily injury which

 

          8    resulted in the death of Donald Lee Allen in Count 7, the answer

 

          9    is yes.

 

         10            Number 3, do you the jury unanimously find that the

 

         11    government has proven beyond a reasonable doubt that the

 

         12    defendant intentionally engaged in conduct intending that Donald

 

         13    Lee Allen be killed and/or that lethal force be employed against

 

         14    Donald Lee Allen, which resulted in the death of Donald Lee

 

         15    Allen in Count 7, the answer is yes.

 

         16            Number 4, do you the jury unanimously find that the

 

         17    government has proven beyond a reasonable doubt that the

 

         18    defendant intentionally engaged in conduct which the government

 

         19    knew -- excuse me, which the defendant knew would create a grave

 

         20    risk of death to a person other than one of the parties in the

 

         21    offense and resulted in the death of Donald Lee Allen in Count

 

         22    7, the answer is yes.

 

         23            Moving over to the statutory aggravating factors,

 

         24    Section 3, do you the jury unanimously find that the government

 

         25    has established the existence of the following statutory

 

 

 

 

 

 

                                                                          1235

 

 

          1    aggravating factors beyond a reasonable doubt as to Count 7.

 

          2    Paragraph 1, do you the jury unanimously find the government has

 

          3    proven beyond a reasonable doubt that the defendant committed

 

          4    the offense in Count 7, the expectation of the receipt of

 

          5    something of pecuniary value, the answer is yes.

 

          6            Number 2, do you the jury unanimously find that the

 

          7    government has proven beyond a reasonable doubt that the

 

          8    defendant committed the offense in Count 7 after substantial

 

          9    planning and premeditation to cause the death of Donald Lee

 

         10    Allen, the answer is yes.

 

         11            Moving on to Section 4, nonstatutory aggravating

 

         12    factors, do you the jury unanimously find that the government

 

         13    has established the existence of the following nonstatutory

 

         14    aggravating factors beyond a reasonable doubt as to Count 7.

 

         15    Paragraph 1, do -- do you the jury unanimously find the

 

         16    government has proven beyond a reasonable doubt that the

 

         17    defendant caused harm to the family of Donald Lee Allen as a

 

         18    result of the impact of the killing on the family of Donald Lee

 

         19    Allen, the answer is yes.

 

         20            Number 2, do you the jury unanimously find that the

 

         21    government has proven beyond a reasonable doubt that the

 

         22    defendant is likely to commit criminal acts of violence in the

 

         23    future which would been a continuing and serious threat to

 

         24    society, the answer is yes.

 

         25            Number 3, do you the jury unanimously find the

 

 

 

 

 

 

                                                                          1236

 

 

          1    government has proven beyond a reasonable doubt that the

 

          2    defendant intentionally killed two people in that in addition to

 

          3    killing Donald Lee Allen, the defendant also killed Robin

 

          4    Williams, the answer is yes.

 

          5            Mitigating factors, Section 5, the statutory mitigating

 

          6    factors which the defendant contends have been proved by a

 

          7    preponderance are, paragraph one, the defendant's capacity to

 

          8    appreciate the wrongfulness of his conduct or to conform his

 

          9    conduct to the requirements of the law was significantly

 

         10    impaired regardless of whether the capacity was so impaired as

 

         11    to constitute a defense to the charge, the number of jurors who

 

         12    so find, zero.

 

         13            Number 2, the defendant was under unusual and

 

         14    substantial duress regardless of whether the duress was of such

 

         15    degree as to constitute a defense to the charge, the number of

 

         16    jurors who so find, zero.

 

         17            Number 3, the other factors of the defendant's

 

         18    childhood, background and character mitigate against the

 

         19    imposition of the death sentence, the number of the jurors who

 

         20    so find, one.

 

         21            The nonstatutory factors of the defendant's background

 

         22    and character and the circumstances of the crime or other

 

         23    relevant fact or circumstances of mitigation are as follows, the

 

         24    evidence tends to show, number one, the defendant assisted

 

         25    police in locating Donald Allen's body, the number of jurors who

 

 

 

 

 

 

                                                                          1237

 

 

          1    so find, 12.

 

          2            The defendant voluntarily turned himself in, the number

 

          3    of jurors who so find, 9.

 

          4            The defendant had no positive family role model during

 

          5    his teenage years, the number of jurors who so find, 6.

 

          6            Number 4, the defendant grew up in a home which condoned

 

          7    domestic violence and he frequently saw his mother abused, the

 

          8    number of jurors who so find, five.

 

          9            Number 5, the defendant was physically and emotionally

 

         10    abused by his father, the number of jurors who so find, 7.

 

         11            Number 6, the defendant was neglected by his mother when

 

         12    she was drunk and distraught over the breakup of her marriage,

 

         13    number of jurors who so find, 9.

 

         14            The defendant was, number 7, the defendant was never

 

         15    allowed to resolve issues of childhood before he was thrust into

 

         16    a caretaker's role of caring for his mother, aunt, brother and

 

         17    aging grandfather when his mother divorced his father, number of

 

         18    jurors who so find, 3.

 

         19            The defendant has worked consistently since age 15 and

 

         20    many times worked more than one job, number of jurors who so

 

         21    find, five.

 

         22            Number 9, the defendant grew up in a home where alcohol

 

         23    and drugs were used frequently, number of jurors who so find,

 

         24    12.

 

         25            Number 10, the defendant grew up in a home where

 

 

 

 

 

 

                                                                          1238

 

 

          1    violence was prevalent, the number of jurors who so find, 11.

 

          2            Number 11, after the beating in Atlanta, the defendant

 

          3    lost interest in school and stopped going to school, number of

 

          4    jurors who so find, 6.

 

          5            Number 12, the defendant went to church with his

 

          6    grandfather Jessie, number of jurors that so find, 11.

 

          7            Number 13, the defendant pled guilty to two prior

 

          8    convictions and accepted responsibility for them, the number of

 

          9    jurors who so find, 3.

 

         10            Number 14, the defendant confessed to his friend Steve

 

         11    Austin and Steve's mother, Anne Austin, with regard to the fire

 

         12    incident in April of 1996, number of jurors who so find, 11.

 

         13            Number 15, the defendant confessed to the police, the

 

         14    number of jurors who so find, 12.

 

         15            And since his arrest, the defendant has been a model

 

         16    inmate, the number of jurors who so find, 12.

 

         17            Now, other nonstatutory factors which the defendant

 

         18    contends are, number 1, an unstable home life and frequent moves

 

         19    during childhood denied the defendant skills to form normal peer

 

         20    relationships, number of jurors who so find, two.

 

         21            The defendant showed remorse by trying to kill himself

 

         22    when he realized what he had done, number of jurors who so find,

 

         23    one.

 

         24            The defendant prayed for the souls of his victims,

 

         25    number of jurors who so find, four.

 

 

 

 

 

 

                                                                          1239

 

 

          1            Number 4, the defendant exhibited psychological problems

 

          2    as a minor for which his family failed to seek medical attention

 

          3    or treatment, number of jurors who so find, 6.

 

          4            Number 5, the defendant cooperated with the police,

 

          5    number of jurors who so find, 11.

 

          6            Number 6, the defendant will do well in the structured

 

          7    environment that prison will offer, number of jurors who so

 

          8    find, 6.

 

          9            Number 7, the defendant was abandoned by his father at

 

         10    the age of ten due to the separation of his mother and father,

 

         11    number of jurors who so find, 1.

 

         12            Number 8, the defendant was further rejected by his

 

         13    father at age 13 when blood tests revealed Derrick Barnette was

 

         14    not his father or his brother's father, number of jurors who so

 

         15    find, 2.

 

         16            Number 9, the defendant attempted suicide prior to the

 

         17    crimes indicating that he was already having psychological

 

         18    problems, number of jurors who so find, two.

 

         19            Number 10, the age of the defendant at the time of the

 

         20    offense, number of jurors who so find, 2.

 

         21            Number 11, if the defendant is sentenced to life without

 

         22    the possibility of release, he will not be a future danger,

 

         23    number of jurors who so find, 3.

 

         24            Number 12, the defendant's mother, young brother and

 

         25    children will be harmed by the emotional trauma of his

 

 

 

 

 

 

                                                                          1240

 

 

          1    execution, number of jurors who so find, 8.

 

          2            Now, based upon the consideration of whether the

 

          3    aggravating factor or factors found to exist as to Count 7

 

          4    sufficiently outweigh any mitigating factor or factors found to

 

          5    exist to justify a sentence of death, or in the absence of any

 

          6    mitigating factors whether the aggravating factor or factors as

 

          7    to Count 7 are themselves sufficient to justify a sentence of

 

          8    death, indicate your recommendation using either the following

 

          9    forms, A, B or C.

 

         10            Form A, based upon the consideration of whether the

 

         11    aggravating factors found to exist sufficiently outweigh any

 

         12    mitigating factors or factors found to exist to justify a

 

         13    sentence of death, or in the absence of any mitigating factors

 

         14    whether the aggravating factors are themselves sufficient to

 

         15    justify a sentence of death, we recommend by unanimous vote that

 

         16    a sentence of death shall be imposed for the killing of Donald

 

         17    Lee Allen in Count 7, the answer to that is yes, signed by all

 

         18    of the jurors, including the foreperson, dated February 10,

 

         19    1998.

 

         20            Now, moving over to certification, number 7, by signing

 

         21    below, each juror certifies that consideration of the face,

 

         22    color, religious beliefs, national origin or sex of the

 

         23    defendant or the victim was not involved in reaching his or her

 

         24    individual decision, and that the individual juror would have

 

         25    made the same recommendation regarding a sentence for crime or

 

 

 

 

 

 

                                                                          1241

 

 

          1    crimes in question no matter what the race, color, religious

 

          2    beliefs, national origin or sex of the defendant or the victim

 

          3    would have been, signed by all of the jurors and the juror

 

          4    foreperson, dated February 10, 1998.  Is that your verdict so

 

          5    say you all as to Count number 7?

 

          6            (Jurors nod heads.)

 

          7            JUROR:  It is, Your Honor.

 

          8            THE COURT:  All right, moving over to Count Number 8,

 

          9    age of the defendant, defendant was 18 years of age at the time

 

         10    of the offense in Count Number, the answer is yes.

 

         11            Moving over to Section 2, requisite mental state, do you

 

         12    the jury unanimously find the government has proven beyond a

 

         13    reasonable doubt the defendant intentionally killed Donald Lee

 

         14    Allen in Count 8, the answer is yes.

 

         15            Do you the jury unanimously find that the government has

 

         16    proven beyond a reasonable doubt that the defendant

 

         17    intentionally inflicted seriously bodily injury which resulted

 

         18    in the death of Donald Lee Allen in Count 8, the answer is yes.

 

         19            Number 3, do you the jury unanimously find that the

 

         20    government has proven beyond a reasonable doubt that the

 

         21    defendant intentionally engaged in conduct intending that Donald

 

         22    Lee Allen be killed and that the lethal force he employed

 

         23    against Donald Lee Allen which resulted in the death of Donald

 

         24    Lee Allen in Count 8, the answer to that is yes.

 

         25            Number 4, do you the jury unanimously find that the

 

 

 

 

 

 

                                                                          1242

 

 

          1    government has proven beyond a reasonable doubt that the

 

          2    defendant intentionally engaged in conduct which the defendant

 

          3    knew would create a grave risk of death to a person other than

 

          4    one of the participants in the offense and resulted in the death

 

          5    of Donald Lee Allen in Count 8, the answer to that is yes.

 

          6            Statutory aggravating factors, do you the jury --

 

          7    Section 3, do you the jury unanimously find that the government

 

          8    has established the existence of the following statutory

 

          9    aggravating factors beyond a reasonable doubt as to Count 8,

 

         10    number 1, do you the jury unanimously find the government has

 

         11    proven beyond a reasonable doubt that the defendant committed

 

         12    the offense in Count 8 in expectation of the receipt of

 

         13    something of pecuniary value, the answer is yes.

 

         14            Do you the jury, number 2, do you the jury unanimously

 

         15    find the government has proven beyond a reasonable doubt that

 

         16    the defendant committed the offense in Count 8 after substantial

 

         17    planning and premeditation to cause the death of Donald Lee

 

         18    Allen, the answer is yes.

 

         19            Moving over to Section 4, nonstatutory aggravating

 

         20    factors, paragraph 1, do you the jury unanimously find the

 

         21    government has proven beyond a reasonable doubt that the

 

         22    defendant caused harm to the family of Donald Lee Allen and as a

 

         23    result of the impact of the killing -- and as a result of the

 

         24    impact of the killing of the family of Donald Lee Allen, the

 

         25    answer is yes.

 

 

 

 

 

 

                                                                          1243

 

 

          1            Paragraph 2, do you the jury unanimously find the

 

          2    government has proven beyond a reasonable doubt that the

 

          3    defendant is likely to commit criminal acts of violence in the

 

          4    future which would be a continuing and serious threat to

 

          5    society, the answer is yes.

 

          6            Number 3, do you the jury unanimously find the

 

          7    government has beyond a reasonable doubt that the defendant

 

          8    intentionally killed two people in that in addition to killing

 

          9    Donald Lee Allen, the defendant also killed Robin Williams, the

 

         10    answer to that is yes.

 

         11            Now, as the mitigating factors, I don't believe it's

 

         12    necessary that we go through all of those, is it, do you want me

 

         13    to do that?

 

         14            MR. LAUGHRUN:  Judge, for the record, as long as you

 

         15    file the verdict sheet, we have no objection to whatever the

 

         16    jury found that the mitigators be, the findings of fact.

 

         17            THE COURT:  We will do that, then.  I think they are all

 

         18    probably the same as they were in Count 7, aren't they?

 

         19            (Jurors nod heads.)

 

         20            THE COURT:  Moving over to determination, based upon the

 

         21    consideration of whether the aggravating factor or factors found

 

         22    to exist as to Count 8 sufficiently outweigh any mitigating

 

         23    factor or factors found to exist to justify a sentence of death,

 

         24    or in the absence of any mitigating factors whether the

 

         25    aggravating factor or factors as to Count 8 are themselves

 

 

 

 

 

 

                                                                          1244

 

 

          1    sufficient to justify a sentence of death, indicate your

 

          2    recommendation using either the following form, A B, or C, death

 

          3    sentence, Section A, based upon the consideration of whether the

 

          4    aggravating factors found to exist sufficiently outweigh any

 

          5    mitigating factor or factors found to exist to justify a

 

          6    sentence of death, or in the absence of any mitigating factors

 

          7    whether the aggravating factors are themselves sufficient to

 

          8    justify a sentence of death, we recommend by unanimous vote that

 

          9    the sentence of death shall be imposed for the killing of Donald

 

         10    Lee Allen in Count 8, the answer to that is yes, signed by all

 

         11    of the jurors and the foreperson, dated February 10, 1998.

 

         12            Moving over to Count Number 11, first of all the

 

         13    certification, Section 7 in Count 8, signed by all of the jurors

 

         14    dated February 10, 1998.

 

         15            Now, let's move over to Count Number 11, paragraph 1, do

 

         16    you the jury unanimously find the government has established

 

         17    beyond a reasonable doubt that the defendant was 18 years of age

 

         18    or older at the time of the offense in Count 11, the answer to

 

         19    that is yes.

 

         20            Requisite mental state, Section 2, do you the jury

 

         21    unanimously find that the government has proven beyond a

 

         22    reasonable doubt that the defendant intentionally killed Robin

 

         23    Williams in Count 11, the answer to that is yes.

 

         24            Number 2, do you the jury unanimously find the

 

         25    government has proven beyond a reasonable doubt that the

 

 

 

 

 

 

                                                                          1245

 

 

          1    defendant intentionally inflicted serious bodily injury which

 

          2    resulted in the death of Robin Williams in Count 11, the answer

 

          3    is yes.

 

          4            Paragraph 3, do you the jury unanimously find the

 

          5    government has proven beyond a reasonable doubt that the

 

          6    defendant intentionally engaged in conduct intending that Robin

 

          7    Williams be killed and/or that lethal force be employed against

 

          8    Robin Williams which resulted in the death of Robin Williams in

 

          9    Count 11, the answer is yes.

 

         10            Number 4, do you the jury unanimously find that the

 

         11    government has proven beyond a reasonable doubt that the

 

         12    defendant intentionally engaged in conduct which the defendant

 

         13    knew would create a grave risk of death to a person other than

 

         14    one of the participants in the offense and resulted in the death

 

         15    of Robin Williams in Count 11, the answer is yes.

 

         16            Moving over to statutory aggravating factors, do you the

 

         17    jury unanimously find that the government has established the

 

         18    existence of the following statutory aggravating factors beyond

 

         19    a reasonable doubt as to Count 11, Paragraph 1, do you the jury

 

         20    unanimously find that the government has proven beyond a

 

         21    reasonable doubt that in the commission of the offense in Count

 

         22    11, the defendant knowingly created a grave risk of death to one

 

         23    or more persons in addition to the intended victim of the

 

         24    offense, the answer is yes.

 

         25            Do you the jury unanimously find, number 2, do you the

 

 

 

 

 

 

                                                                          1246

 

 

          1    jury unanimously find that the government has proven beyond a

 

          2    reasonable doubt that the defendant committed the offense in

 

          3    Count 11 after substantial planning and premeditation to cause

 

          4    the death of Robin Williams, the answer is yes.

 

          5            Nonstatutory aggravating factors, do you the jury

 

          6    unanimously find the government has established the existence of

 

          7    the following nonstatutory aggravating factors beyond a

 

          8    reasonable doubt as to Count 11, paragraph 1, do you the jury

 

          9    unanimously find the government has proven beyond a reasonable

 

         10    doubt that the defendant caused harm to the family of Robin

 

         11    Williams as a result of the impact of the killing on the family

 

         12    of Robin Williams, the answer is yes.

 

         13            Paragraph Number 2, do you the jury unanimously find the

 

         14    government has proven beyond a reasonable doubt that the

 

         15    defendant is likely to commit criminal acts of violence in the

 

         16    future which would be a continuing and serious threat to

 

         17    society, the answer to that is yes.

 

         18            Paragraph Number 3, do you the jury unanimously find the

 

         19    government has proven beyond a reasonable doubt that the

 

         20    defendant intentionally killed two people in that in addition to

 

         21    killing Robin Williams, the defendant also killed Donald Lee

 

         22    Allen, the answer to that is yes.

 

         23            Mitigating factors, we will file that with the Clerk and

 

         24    also, of course, put it into the record.

 

         25            Moving on over to determination, then, Section 6, based

 

 

 

 

 

 

                                                                          1247

 

 

          1    upon the consideration of whether the aggravating factor or

 

          2    factors found to exist as to Count 11 sufficiently outweigh any

 

          3    mitigating factor or factors found to exist to justify a

 

          4    sentence of death, or in the absence of any mitigating factors

 

          5    whether the aggravating factor or factors as to Count 11 are

 

          6    themselves sufficient to justify a sentence of death, indicate

 

          7    your recommendation using either of the following forms, A B or

 

          8    C, the jury has chosen, A, death sentence based upon the

 

          9    consideration of whether the aggravating factors found to exist

 

         10    sufficiently outweigh any mitigating factor or factors found to

 

         11    exist to justify a sentence of death, or in the absence of any

 

         12    mitigating factors whether the aggravating factors are

 

         13    themselves sufficient to justify a sentence of death, we

 

         14    recommend by unanimous vote that a sentence of death shall be

 

         15    imposed for the killing of Robin Williams in Count 11, the

 

         16    answer to that is yes.  All of the jurors signed the

 

         17    certification, death sentence recommendation rather, dated

 

         18    February 10, 1998.

 

         19            Certification, Section 7, by signing below, each juror

 

         20    certifies the consideration -- that consideration of the race,

 

         21    color, religious beliefs, national origin or sex of the

 

         22    defendant or the defendant -- or the victim was not involved in

 

         23    reaching his or her individual decision and that the individual

 

         24    juror would have made the same recommendation regarding a

 

         25    sentence for the crime or crimes in question no matter what the

 

 

 

 

 

 

                                                                          1248

 

 

          1    race, color, religious beliefs, national origin or sex of the

 

          2    defendant or the victim would have been, all signed by the

 

          3    jurors and the foreperson, dated February 10, 1998.

 

          4            Members of the jury, I can't tell you how much we

 

          5    appreciate your participating in this procedure.  It's been a

 

          6    long process for you, I know that, it's taken you away from your

 

          7    business and your homes, it's been hold hot and it's been cold

 

          8    and everything else in here, and we do appreciate everything you

 

          9    have done.

 

         10            Mr. Laughrun, did you stand up for something?

 

         11            MR. LAUGHRUN:  Judge, under Rule 31, would you poll the

 

         12    jury individually, if Your Honor please?

 

         13            THE COURT:  Yes, sir, getting ready to do that right

 

         14    now.

 

         15            Members of the jury, as to the Count Number 7, you have

 

         16    heard the entire reading of all of the sections involved in

 

         17    that, and we are going to read to you at this time Section

 

         18    Number A in Count Number 7.

 

         19            Based upon the consideration of whether the aggravating

 

         20    factors found to exist sufficiently outweigh any mitigating

 

         21    factor or factors found to exist to justify a sentence of death,

 

         22    or in the absence of any mitigating factor whether the

 

         23    aggravating factors are themselves sufficient to justify a

 

         24    sentence of death, we recommend by unanimous vote that the

 

         25    sentence of death shall be imposed for the killing of Donald Lee

 

 

 

 

 

 

                                                                          1249

 

 

          1    Allen in Count 7, the answer to that is yes.  Mr. Wallace, is

 

          2    that your verdict?

 

          3            JUROR:  Yes, sir.

 

          4            THE COURT:  Is that still your verdict?

 

          5            JUROR:  Yes, sir.

 

          6            THE COURT:  Mr. Politowicz, is that your verdict, is it

 

          7    still your verdict?

 

          8            JUROR:  Yes, sir.

 

          9            THE COURT:  Mr. Mattingly, is that your verdict, is it

 

         10    still your verdict?

 

         11            JUROR:  Yes, sir.

 

         12            THE COURT:  Ms. Stafford, is that your -- excuse me,

 

         13    Mr. Owensby, is that your verdict and still your verdict?

 

         14            JUROR:  Yes, sir.

 

         15            THE COURT:  Ms. Stafford, is that your verdict and still

 

         16    your verdict?

 

         17            JUROR:  Yes.

 

         18            THE COURT:  Mr. Schudel, is that the way you pronounce

 

         19    that, Schudel?

 

         20            JUROR:  Yes.

 

         21            THE COURT:  Is that your verdict, is that still your

 

         22    verdict?

 

         23            JUROR:  Yes, sir, Your Honor.

 

         24            THE COURT:  Ms. -- Mrs. Randazzo, is that your verdict

 

         25    and still your verdict?

 

 

 

 

 

 

                                                                          1250

 

 

          1            JUROR:  Yes, sir.

 

          2            THE COURT:  Mrs. Edwards, is that your verdict and still

 

          3    your verdict?

 

          4            JUROR:  Yes, sir.

 

          5            THE COURT:  And Mr. Simpson, is that your verdict and

 

          6    still your verdict?

 

          7            JUROR:  Yes, sir.

 

          8            THE COURT:  Ms. Farris, is that your verdict and still

 

          9    your verdict?

 

         10            JUROR:  Yes, sir.

 

         11            THE COURT:  Ms. Boyette, is that your verdict and still

 

         12    your verdict?

 

         13            JUROR:  Yes, sir.

 

         14            THE COURT:  Ms. Wilson, is that your verdict and still

 

         15    your verdict?

 

         16            JUROR:  Yes, sir.

 

         17            THE COURT:  All jurors have indicated yes.

 

         18    Certification has been signed by all of the jurors, we've been

 

         19    through that before.

 

         20            Moving over to Count Number 8, we've been through the

 

         21    entire verdict with the jury and they have indicated -- now,

 

         22    moving over as far as Count Number 8 is concerned, Section A,

 

         23    based upon consideration of whether the aggravating factors

 

         24    found to exist sufficiently outweigh any mitigating factor or

 

         25    factors found to exist to justify a sentence of death, or in the

 

 

 

 

 

 

                                                                          1251

 

 

          1    absence of any mitigating factors whether the aggravating

 

          2    factors are themselves sufficient to justify a sentence of

 

          3    death, we recommend by unanimous vote that a sentence of death

 

          4    shall be imposed for the killing of Donald Lee Allen in Count

 

          5    Number 8.

 

          6            Now, Mr. Wallace, is that your verdict and still your

 

          7    verdict?

 

          8            JUROR:  Yes, sir.

 

          9            THE COURT:  Ms. Wilson, is that your -- Mr. Wilson, is

 

         10    that your verdict and still -- I'm sorry, wrong one.

 

         11    Mr. Politowicz, is that your verdict and still your verdict?

 

         12            JUROR:  Yes, sir.

 

         13            THE COURT:  Mr. Mattingly, is that your verdict and

 

         14    still your verdict?

 

         15            JUROR:  Yes, sir.

 

         16            THE COURT:  Did you say yes?

 

         17            JUROR:  Yes, sir.

 

         18            THE COURT:  Mr. Owensby, is that your verdict and still

 

         19    your verdict?

 

         20            JUROR:  Yes, sir.

 

         21            THE COURT:  Ms. Stafford, is that your verdict and still

 

         22    your verdict?

 

         23            JUROR:  Yes, sir.

 

         24            THE COURT:  Ms. Randazzo, is that your verdict and still

 

         25    your verdict?

 

 

 

 

 

 

                                                                          1252

 

 

          1            JUROR:  Yes, sir.

 

          2            THE COURT:  Ms. Edwards, is that your verdict and still

 

          3    your verdict?

 

          4            JUROR:  Yes, sir.

 

          5            THE COURT:  Ms. Simpson, is that your verdict and still

 

          6    your verdict?

 

          7            JUROR:  Yes, sir.

 

          8            THE COURT:  Ms. Farris, is that your verdict and still

 

          9    your verdict?

 

         10            JUROR:  Yes, sir.

 

         11            THE COURT:  Ms. Boyette, is that your verdict and still

 

         12    your verdict?

 

         13            JUROR:  Yes, sir.

 

         14            THE COURT:  Ms. Wilson, is that your verdict and still

 

         15    your verdict?

 

         16            JUROR:  Yes, sir.

 

         17            THE COURT:  Mr. Schudel, is that your verdict and still

 

         18    your verdict?

 

         19            JUROR:  Yes, sir, Your Honor.

 

         20            THE COURT:  Moving on to Count Number 11, again you have

 

         21    heard the answers to all of your questions in the verdict form

 

         22    and you have all signed the certification.

 

         23            Section A of Count 11, the death sentence, based upon

 

         24    the consideration of whether the aggravating factors found to

 

         25    exist sufficiently outweigh any mitigating factor or factors

 

 

 

 

 

 

                                                                          1253

 

 

          1    found to exist to justify a sentence of death, or in the absence

 

          2    of any mitigating factors whether the aggravating factors are

 

          3    themselves sufficient to justify a sentence of death, we

 

          4    recommend by unanimous vote that a sentence of death shall be

 

          5    imposed for the killing of Robin Williams in Count 11, the

 

          6    answer to that is yes.

 

          7            Mr. Wallace, is that your verdict and still your

 

          8    verdict?

 

          9            JUROR:  Yes, sir.

 

         10            THE COURT:  Mr. Politowicz, is that your verdict and

 

         11    still your verdict?

 

         12            JUROR:  Yes, sir.

 

         13            THE COURT:  Mr. Mattingly, is that your verdict and

 

         14    still your verdict?

 

         15            JUROR:  Yes, sir.

 

         16            THE COURT:  Ms. Owensby, is -- Mr. Owensby, is that your

 

         17    verdict and still your verdict?

 

         18            JUROR:  Yes, sir.

 

         19            THE COURT:  Ms. Stafford, is that your verdict and still

 

         20    your verdict?

 

         21            JUROR:  Yes, sir.

 

         22            THE COURT:  Mr. Schudel, is that your verdict and still

 

         23    your verdict?

 

         24            JUROR:  Yes, Your Honor.

 

         25            THE COURT:  Ms. Randazzo, is that your verdict and still

 

 

 

 

 

 

                                                                          1254

 

 

          1    your verdict?

 

          2            JUROR:  Yes, sir.

 

          3            THE COURT:  Ms. Edwards, is that your verdict and still

 

          4    your verdict?

 

          5            JUROR:  Yes, sir.

 

          6            THE COURT:  Ms. Simpson, is that your verdict and still

 

          7    your verdict?

 

          8            JUROR:  Yes, sir.

 

          9            THE COURT:  Ms. Farris, is that your verdict and still

 

         10    your verdict?

 

         11            JUROR:  Yes, sir.

 

         12            THE COURT:  Ms. Boyette, is that your verdict and still

 

         13    your verdict?

 

         14            JUROR:  Yes, sir.

 

         15            THE COURT:  Ms. Wilson, is that your verdict and still

 

         16    your verdict?

 

         17            JUROR:  Yes, sir.

 

         18            THE COURT:  Is there anything further as far as this

 

         19    jury is concerned for either side?

 

         20            MR. CONRAD:  Your Honor, before they are excused, do I

 

         21    understand defense counsel to have waived any objection to the

 

         22    complete reading of the special verdict formed?

 

         23            THE COURT:  Is that correct, Mr. Laughrun?

 

         24            MR. LAUGHRUN:  Judge, as long as it's filed as part of

 

         25    the record.

 

 

 

 

 

 

                                                                          1255

 

 

          1            THE COURT:  Pardon?

 

          2            MR. LAUGHRUN:  Yes, as long as you file --

 

          3            THE COURT:  Yes, sir, we're going to file this for the

 

          4    record.

 

          5            MR. LAUGHRUN:  That's correct.

 

          6            THE COURT:  Thank you, sir.

 

          7            Members of the jury, again, we started this process on

 

          8    January 5th with the questionnaires and we are down to

 

          9    February 10th.  I think we got through with it as fast as we

 

         10    possibly could considering the severity of the sentence in this

 

         11    matter and the seriousness of the crimes which have been

 

         12    charged.  I hope you understand this process and that we have

 

         13    not impinged on your time any more than absolutely necessary.

 

         14    You did have a couple of days off during the process because we

 

         15    had some things to do, and again, I think everybody wants to

 

         16    thank you for your consideration.  Obviously, your verdict,

 

         17    determination of your verdict, you did not take it lightly, you

 

         18    worked very hard on it and you've been here every day and done

 

         19    everything you possibly could.

 

         20            I've been telling you all during the trial you are not

 

         21    to talk to anybody or repeat anything or anything else.  You are

 

         22    free now to talk to anybody you want to, or not to talk to

 

         23    anybody you want to.  If anybody wants to ask you some

 

         24    questions, you are free to answer or you are free to say, I

 

         25    don't want to talk about it.  That's up to you.  Same way with

 

 

 

 

 

 

                                                                          1256

 

 

          1    reading about it.  Obviously maybe some of your families have

 

          2    been keeping a few clippings, there haven't been too many, but a

 

          3    few clippings about it and you may want to go back and read

 

          4    those.

 

          5            Again, I can't thank you enough.  Maybe next time you

 

          6    will get on a jury that will get through in a day or two.  Thank

 

          7    you so much, and maybe we'll see you again.  You are excused.

 

          8            (The jury left the courtroom.)

 

          9            THE COURT:  All right, as far as sentencing is

 

         10    concerned, when do we want to do that?

 

         11            MR. CONRAD:  Your Honor, Section 3594, Title 18 says

 

         12    that upon a recommendation under Section 3593(e) that the

 

         13    defendant shall be sentenced to death or life imprisonment

 

         14    without possibility of release, the Court shall sentence the

 

         15    defendant accordingly, and I would ask the Court to do that now

 

         16    on those three counts.

 

         17            THE COURT:  Do it now?

 

         18            MR. CONRAD:  Yes, sir.

 

         19            MR. LAUGHRUN:  Judge, we object to that.  We have got

 

         20    obviously motion to file.  We have got seven days to file that.

 

         21    You've also got eight other counts to sentence the defendant

 

         22    on.  We need to do it all at once, we would contend to Your

 

         23    Honor.  He is not going anywhere, obviously, he is in jail.

 

         24    Nobody is going to be jeopardized by delaying the sentence to

 

         25    give us a chance to file our motion.  We have seven days to file

 

 

 

 

 

 

                                                                          1257

 

 

          1    that obviously.  And I would ask that you do it all at one time

 

          2    instead of doing it piecemeal.  That's what the government is

 

          3    asking you to do is do it piecemeal.  There's nothing to be

 

          4    gained by that, the sentence is what it is.  If you deny our

 

          5    motion for a new trial, or new sentencing, you've got to do what

 

          6    the jury recommended, so nothing is going to change except we

 

          7    come back and do it at one time.  I'd ask that you set a date

 

          8    for sentencing as Your Honor suggested.

 

          9            MR. CONRAD:  Your Honor, with respect to the eight other

 

         10    counts, there has to be a presentence report prepared.  That

 

         11    will be a 60-day delay on those eight counts.  I don't think

 

         12    there is sufficient evidence in the record to waive the

 

         13    presentence report.  There is all sorts of enhancement issues

 

         14    dealing with the armed career criminal status and other

 

         15    sentencing issues.  So eight counts will have to take 60 days or

 

         16    more before sentencing can occur.  I would ask the Court, the

 

         17    Court has been patient with defense counsel's requests for

 

         18    delays throughout this trial.

 

         19            MR. LAUGHRUN:  I object to that, if Your Honor please.

 

         20            MR. CONRAD:  I would ask -- and the Court has bent over

 

         21    backwards to accommodate those requests.  This jury has done

 

         22    their duty, they have rendered a verdict, and now it is

 

         23    incumbent upon the Court to sentence this defendant.  There is

 

         24    nothing gained by waiting a day to do that.  We sat here, heard

 

         25    the evidence, you read the jury's verdict, and I ask you to

 

 

 

 

 

 

                                                                          1258

 

 

          1    impose sentence on Counts 7, 8 and 11.

 

          2            MR. LAUGHRUN:  Judge, what is going to happen, if you

 

          3    impose -- first of all, I resent the fact that the government

 

          4    says that delays that we have caused.  I would contend that if

 

          5    there were any delays, we didn't run out of witnesses at all

 

          6    like the government did.  Be that as it may, that's not an

 

          7    issue.  If you enter judgment today, we have ten days to file a

 

          8    notice of appeal with the Fourth Circuit on those three counts.

 

          9    Time starts running the minute you impose judgment.

 

         10            What is going to happen, the Fourth Circuit is going to

 

         11    get the record of three counts, not get the record for eight

 

         12    counts, and we are going to get letters from staff counsel up

 

         13    there saying, we can't process the appeal that's going to come

 

         14    up in two stages, because the ten days runs as of right now, if

 

         15    you impose judgment, we have got ten days to file it.  It's

 

         16    going to be -- by the time the appellate counsel gets it -- the

 

         17    transcripts are done, because Mr. Huseby has done such an

 

         18    excellent job of keeping all the transcripts up.  The

 

         19    transcripts are virtually finished, so as a practical matter you

 

         20    could get a briefing schedule for the first three counts, Counts

 

         21    7, 8 and 11, before sentence is imposed on the other eight

 

         22    counts.  That's going to cause all sorts of appellate problems.

 

         23    There is nothing to be gained by that.

 

         24            Judge, Rule 32 says that you can make a finding to waive

 

         25    the presentence report.  I dare say in the 18 years I've been

 

 

 

 

 

 

                                                                          1259

 

 

          1    practicing before Your Honor that you don't have as much

 

          2    sentencing information in this case than you've had in any case

 

          3    Your Honor has ever presided over.  We spent a week on

 

          4    sentencing and you never do that.  In all the cases you've tried

 

          5    that I've been involved in and you've tried in general, I dare

 

          6    say there has not been anything more about Mr. Barnette than

 

          7    anybody out there has got to say.  And you can make that

 

          8    finding.  In a capital case under Title 18, presentence reports

 

          9    are not required.  And I think Your Honor has enough information

 

         10    to make that information available without doing a presentence

 

         11    report, and I would ask you to find that there is enough to

 

         12    waive that and sentence him all at one time to keep all of the

 

         13    cases together, because, Judge, it's going to create enormous

 

         14    havoc when the appeal process starts if you have to appeal two

 

         15    separate portions of this case, and I'd ask you to do all at one

 

         16    time.

 

         17            MR. CONRAD:  Your Honor, there is no appellate problem

 

         18    whatsoever in sentencing on these three counts today, sending a

 

         19    single letter to the Fourth Circuit requesting a delay until the

 

         20    eight other counts have been sentenced.  That's an

 

         21    administrative detail that is routine, and it is not cumbersome

 

         22    at all and it won't delay anything and won't cause any confusion

 

         23    at all.  Mr. Laughrun and I have participated in many appellate

 

         24    cases with multiple defendants and briefing schedules stayed

 

         25    until transcripts are prepared.  There should be no reason to

 

 

 

 

 

 

                                                                          1260

 

 

          1    delay sentencing in this case.  These families have been here

 

          2    for a month.  It won't have any impact on the appellate process

 

          3    whatsoever.

 

          4            THE COURT:  What was the section of the statute you read

 

          5    to me a minute ago, 35?

 

          6            MR. CONRAD:  3594.

 

          7            MR. LAUGHRUN:  Judge, all that says is what everybody in

 

          8    this courtroom knows, that you have to do what the jury says.

 

          9    That's all it says.  It doesn't say when you have to do it.

 

         10    With all due respect to Mr. Conrad, Judge, it creates enormous

 

         11    problems.  And I wish I could say a letter to the Fourth Circuit

 

         12    would suffice, it's not, because you've got to get everything

 

         13    together at once.  Because once a notice of appeal is filed with

 

         14    the Fourth Circuit, then counsel gets a request to raise issues,

 

         15    and what is going to happen is all sorts of correspondence is

 

         16    going to go back and forth that's irrelevant, it's going to be

 

         17    duplicative of the appeal of the other eight counts.  So there

 

         18    is nothing to be gained.  We know what the sentence is going to

 

         19    be.  You have to do what the jury says you have to do.  Whether

 

         20    we like it or not, you are bound by Title.  And instead of

 

         21    coming back two sentencing, do it all at one time.  We know what

 

         22    you have to do on those three counts.

 

         23            MR. WALKER:  Judge, if I may address the Court just

 

         24    briefly, that's the reason that 3594 is written the way that it

 

         25    is, so that Your Honor can impose those sentences of death

 

 

 

 

 

 

                                                                          1261

 

 

          1    directly after the jury makes that recommendation.  This jury

 

          2    was told that all during voir dire by defense counsel and

 

          3    counsel by the government, and that's why that statute is

 

          4    written exactly the way it is, so that Your Honor can impose

 

          5    those sentences right after the jury recommends them, and we

 

          6    would ask that you do just that, Your Honor.  There is no reason

 

          7    to delay sentencing this defendant to death on Counts 7, 8 and

 

          8    11.  Mr. Laughrun might like to think there is a reason to do

 

          9    that for some reason up in Richmond that they can't get the file

 

         10    straight, but, Your Honor, there is no reason for you to delay

 

         11    sentencing this defendant to death based on 3594.  That's the

 

         12    reason it's written the way it's written, I would submit to Your

 

         13    Honor, and I would ask you to do that.

 

         14            MR. LAUGHRUN:  Judge, if I may.

 

         15            THE COURT:  All right, sir.

 

         16            MR. LAUGHRUN:  When Tim McVeigh was sentenced to death

 

         17    for probably the worst crime in this country's history, the

 

         18    judge delayed it out there to let counsel file pretrial motions

 

         19    and do it all at one time.  168 death associated with that.

 

         20            Now, I dare say if the government had had a verdict

 

         21    adverse to its interest, they wouldn't be sitting here saying,

 

         22    well, sentence him to life today or if the jury came back on

 

         23    Section C, let you sentence him to a sentence less than death,

 

         24    they're going to want all the time they can to pile it on.  And

 

         25    for them to piecemeal and cut and paste three of the counts

 

 

 

 

 

 

                                                                          1262

 

 

          1    sentenced today and not the others, it makes absolutely no

 

          2    difference.  Your Honor has to do what the jury says unless you

 

          3    agree with our motion.  If you go ahead and sentence him, we

 

          4    have lost our right to file a motion for a new sentencing

 

          5    hearing because you've already sentenced him.

 

          6            THE COURT:  File a motion for what?

 

          7            MR. LAUGHRUN:  Motion for new sentencing hearing, motion

 

          8    for a new trial as a practical matter on this issue.

 

          9            THE COURT:  Well, you've already filed one of those, I

 

         10    think, haven't you?

 

         11            MR. LAUGHRUN:  On the guilt innocence part.  On this

 

         12    part, we have seven days from today to file that.  If you

 

         13    sentence him, our pretrial motions are cut off, because once the

 

         14    sentence is imposed, the only way a case can come back is on a

 

         15    Rule 35 motion, which isn't coming, or ineffective assistance of

 

         16    counsel motion.  Once you impose sentence, all pretrial -- all

 

         17    trial -- once you sentence him, all motions in this court are

 

         18    gone.  Post-trial motions now go to the Fourth Circuit, because

 

         19    you have no jurisdiction at that point.

 

         20            The statute says that we have got seven days to file

 

         21    that motion under -- if you'll give me just a minute, Judge -- I

 

         22    believe it's Rule 33, Your Honor.  Under Rule 33, Judge, we have

 

         23    got a right seven days after the verdict to file a motion for a

 

         24    new trial, and that would include a new sentencing hearing I

 

         25    would contend.  If you impose judgment, we don't have that

 

 

 

 

 

 

                                                                          1263

 

 

          1    right.  We have lost the right to come back to Your Honor to

 

          2    show Your Honor why we deserve a new sentence hearing.  Your

 

          3    Honor may deny that motion, but that's a right that Title 18,

 

          4    3594 is not taken away, it's still there.  We have a right to

 

          5    file that as I said earlier.  If you impose judgment today, you

 

          6    don't have jurisdiction to hear our motion.

 

          7            So that's what Rule 33 talks about and that's why Rule

 

          8    33 is there, because if you impose judgment, there is nothing

 

          9    that this court has left to do in Counts 7, 8 and 11, if Your

 

         10    Honor please.

 

         11            MR. CONRAD:  Your Honor, Rule 33 speaks to a new trial.

 

         12    It says nothing about a sentencing hearing.  Mr. Laughrun knows

 

         13    that the time for filing his notice of appeal runs from the

 

         14    issuance of the J and C, not what you do here today.  Your

 

         15    Honor, I would contend those are reasons without basis for

 

         16    delaying this imposition of sentence.  The Court shouldn't delay

 

         17    it any further.

 

         18            THE COURT:  Well, what about the -- the government does

 

         19    not feel that I should take into consideration Rule 33?

 

         20            MR. CONRAD:  No, sir, I think that refers to a motion

 

         21    for a new trial, not a new sentencing hearing.

 

         22            THE COURT:  I'm sure that's what they are probably

 

         23    planning on doing.

 

         24            MR. CONRAD:  But this is not a trial, this is a

 

         25    sentencing.

 

 

 

 

 

 

                                                                          1264

 

 

          1            THE COURT:  I understand that.

 

          2            MR. CONRAD:  And 3591 et sec controls what happens in

 

          3    the sentencing hearing.  Rule 33 deals with the guilt phase of

 

          4    the trial.  The Court has never had a Rule 33 motion for a new

 

          5    sentencing hearing.

 

          6            MR. LAUGHRUN:  The Court has never had -- this district

 

          7    has never had a jury be the sentencing authority either.  Judge,

 

          8    when Rule 33 was drafted, the death penalty statute for Federal

 

          9    Court didn't exist.  Rule 33 wasn't abrogated by Title 18,

 

         10    3594.  And again, I cite the Court to the McVeigh case.  In the

 

         11    McVeigh case, a 60 some page motion for new trial was filed out

 

         12    there.  Judge Mattach out there denied that motion and then went

 

         13    ahead and sentenced the defendant.

 

         14            As I said, if the government's position is Rule 33

 

         15    doesn't apply to a sentencing hearing, that's fine.  If they

 

         16    want to argue that at the Fourth Circuit, that's fine.  I'd ask

 

         17    the Court to allow us to file that motion.  We have a right to

 

         18    file that motion, whether they like it or not and after

 

         19    responding to it or not.  There's nowhere in Title 18 death

 

         20    penalty statute that says that the Federal Rules of Criminal

 

         21    Procedure don't apply to sentencing hearings.  It doesn't say

 

         22    that.

 

         23            MR. CONRAD:  I'm saying Rule 33 doesn't apply to a

 

         24    sentencing hearing.  There's no basis for it.  Rule 33 applies

 

         25    to a new trial.  They filed that motion already.  There is no

 

 

 

 

 

 

                                                                          1265

 

 

          1    more motions to file.

 

          2            MR. LAUGHRUN:  Judge, let's assume, and I'm going to

 

          3    hush after this, let's assume that on appeal the defendant gets

 

          4    a new sentencing hearing.  That is a trial, whether you call it

 

          5    a sentencing hearing or a trial, it's an adversarial process,

 

          6    witnesses are sworn, jury is impaneled, it is a trial, period.

 

          7    You can call it a sentencing hearing all you want, it's an

 

          8    adversarial proceeding and it's a trial.  And the government,

 

          9    the government has got the verdict it wants, there is absolutely

 

         10    nothing that the government gains by sentencing this defendant

 

         11    today.

 

         12            MR. CONRAD:  Finality for these families that have been

 

         13    here for a month.  There is nothing in a motion they could file

 

         14    with you that you gives you the authority to do something any

 

         15    different than what the jury recommended.  It's mandatory, it's

 

         16    binding, the Court has to impose it.  There is no motion they

 

         17    could file with you to release you from that directive.  These

 

         18    families have been here for a month, and to delay it any further

 

         19    is not right.  There is no basis for it.

 

         20            MR. LAUGHRUN:  Judge, let's assume during our motion

 

         21    that you read the transcripts and listen to our briefs and

 

         22    decide, yes, I made an error of law in that case.  Now, I don't

 

         23    have any brief to file with you today, I don't.  If you do, we

 

         24    are entitled to a new sentencing hearing.  You have the inherent

 

         25    discretion to set that verdict aside.  You always have the

 

 

 

 

 

 

                                                                          1266

 

 

          1    discretion to set a verdict aside, always.  In your inherent

 

          2    powers as a United States District Court Judge, if you think

 

          3    it's against the greater weight of the evidence, whatever, an

 

          4    error of law was committed, an error of fact was misinterpreted

 

          5    by the jury, you always have that inherent authority, always

 

          6    have that.  And the government saying Rule 33 doesn't apply,

 

          7    that's fine, but it does whether they like it or not, it

 

          8    applies.  Thank you, Judge.

 

          9            THE COURT:  All right, Mr. Laughrun, I have listened to

 

         10    you and I have also listened to this trial.  I think we actually

 

         11    started the evidence on January 13th, I believe, may have been

 

         12    the 12th, the 13th.  As I made a statement I think sometime

 

         13    during the trial, I do not believe that there were any errors in

 

         14    this trial so far.  There may be, but that will be decided by

 

         15    the appellate court, and I really believe that there is really

 

         16    no justification at this time to delay sentencing in the

 

         17    matter.  Therefore, I will do that at this time.  Does the

 

         18    defendant want to say anything before I start?

 

         19            MR. LAUGHRUN:  Judge, if you are going to impose

 

         20    sentence, I would ask you to impose sentence on all 11 counts.

 

         21            THE COURT:  I am.

 

         22            MR. LAUGHRUN:  You have got enough evidence before you

 

         23    that you've got, I mean, you couldn't have any more evidence

 

         24    than you've got about this young man, what you've heard from

 

         25    both sides in the last week and a half.  The rule number is

 

 

 

 

 

 

                                                                          1267

 

 

          1    32(b).  You can make that finding.  There is enough evidence to

 

          2    sentence him, we will in open court waive the presentence

 

          3    report.  Now is the time to get completely finished.

 

          4            MR. CONRAD:  You can't sentence on the other eight

 

          5    counts.  They are subject to the guidelines.  There has been no

 

          6    guideline analysis.  Those eight counts cry out for the

 

          7    presentence report.

 

          8            MR. LAUGHRUN:  Which I can tell the Court we are not

 

          9    going to cooperate on.

 

         10            THE COURT:  All right, if you will, ask your client if

 

         11    he wants to say anything, Mr. Laughrun, I'm going ahead with the

 

         12    sentencing today.

 

         13            THE DEFENDANT:  Since this trial started, I haven't had

 

         14    a chance to address the families, and I wanted to very badly.

 

         15    And I would just like to tell you that I've stared in your eyes

 

         16    and I've felt your pain.  No matter what these guys say, I'm

 

         17    hurting.  This shouldn't have happened, none of this should have

 

         18    happened.  I'm ashamed of myself.  I used to be able to look

 

         19    people in the eye, but I can't do it anymore.

 

         20            You might listen to these guys, they want my life,

 

         21    that's fine, because I don't know, you know, if I want to keep

 

         22    my life because it shouldn't have happened.  They said a lot of

 

         23    bad things about me, you've heard a lot of bad things about me,

 

         24    but you haven't heard any good, and that's fine, because nobody

 

         25    deserves to hear any good about what I did to you.  I took

 

 

 

 

 

 

                                                                          1268

 

 

          1    something from you that you very much deserved to keep, and I

 

          2    hurt because I know you hurt, and I know what you lost.

 

          3            Bertha, I loved your daughter more than anything in this

 

          4    world, and it hurts me that she is not here.  It hurts.

 

          5    Mr. Allen, I know I did not know your son, but I know how you

 

          6    feel.  You may not believe it, you may never believe it, but

 

          7    that's the truth.  They called me a liar, they called me

 

          8    everything, but I know how I feel.

 

          9            They've sentenced me to death, that's fine.  The worst

 

         10    thing they could have done is sentence me to life, because I

 

         11    live every day in a little block and think about what I did, and

 

         12    that is painful.  That hurts worse than anything I've ever felt,

 

         13    and I feel it every day.  And I can only imagine what you are

 

         14    going through.

 

         15            I may have done a lot of bad things, but I've never done

 

         16    anything like that.  And to think about what I've done to you,

 

         17    both families, and to my family, it hurts, and I'm very sorry.

 

         18            I can't and I will never ask you to forgive me, because

 

         19    I don't deserve to be forgiven.  I would never ask you for mercy

 

         20    because I don't deserve it.  You don't deserve a second chance.

 

         21            They have said a lot of things that I agree with.

 

         22    Regardless of what my attorneys have tried to do, I've agreed

 

         23    with the prosecution on a lot of stuff, because I was wrong.

 

         24            And I want you to know straight from me that I do feel

 

         25    for you, and I do feel for the pain, and I still pray every day,

 

 

 

 

 

 

                                                                          1269

 

 

          1    and I will never stop because I know you won't.

 

          2            To my family, I am sorry, and I love you all.

 

          3            Thank you, Your Honor.

 

          4            MR. LAUGHRUN:  Thank you, Judge Potter.

 

          5            THE COURT:  Thank you, Mr. Barnette.

 

          6            In the matter of Aquilia Marcivicci Barnette, docket

 

          7    number 3:97CR23-P, Count Number 7, the jury having found that

 

          8    based upon the consideration of whether the aggravating factors

 

          9    found to exist sufficiently outweigh any mitigating factor or

 

         10    factors found to exist to justify a sentence of death, or in the

 

         11    absence of any mitigating factors whether the aggravating

 

         12    factors are themselves sufficient to justify a sentence of

 

         13    death, have recommended by unanimous vote that a sentence of

 

         14    death shall be imposed for the killing of Donald Lee Allen in

 

         15    Count Number 7, the Court will impose that sentence upon the

 

         16    defendant at this time.

 

         17            Moving on over to Count Number 8, based upon the

 

         18    consideration of whether the aggravating factors found to exist

 

         19    sufficiently outweigh any mitigating factor or factors found to

 

         20    exist to justify a sentence of death, or in the absence of any

 

         21    mitigating factors whether the aggravating factors are

 

         22    themselves sufficient to justify a sentence of death, the jury

 

         23    has recommended by unanimous vote that the sentence of death

 

         24    shall be imposed for the killing of Donald Lee Allen in Count

 

         25    Number 8.  The Court will impose that sentence at this time.

 

 

 

 

 

 

                                                                          1270

 

 

          1            Moving over to Count Number 11, the jury having found

 

          2    that based upon the consideration of the aggravating factors

 

          3    found to exist sufficiently outweigh any mitigating factor or

 

          4    factors found to exist to justify a sentence of death, or in the

 

          5    absence of any mitigating factors whether the aggravating

 

          6    factors are themselves sufficient to justify a sentence of

 

          7    death, the jury has recommended by unanimous vote that a

 

          8    sentence of death shall be imposed upon the killing of Robin

 

          9    Williams in Count Number 11.  Therefore, the Court will impose a

 

         10    sentence of death upon the defendant for Counts Number 7, 8, and

 

         11    11, and may God have mercy on your soul.

 

         12            I'm sorry, Mr. Laughrun, I really can see no reason to

 

         13    defer this any longer.  It's something none of us want to do,

 

         14    but it's something we have to do.

 

         15            MR. LAUGHRUN:  Judge, pursuant to that, we would

 

         16    respectfully enter notice of appeal to the Fourth Circuit and we

 

         17    will file that within ten days in writing, if Your Honor please,

 

         18    and we will get that filed.

 

         19            THE COURT:  Okay, fine, thank you, sir.

 

         20            Okay, we'll recess, I guess that's -- well, we'll

 

         21    adjourn at this time.

 

         22            (Court in recess.)

 

         23

 

         24

 

         25

 

 

 

 

 

 

                                                                          1271

 

 

          1

 

          2    UNITED STATES DISTRICT COURT

 

          3    WESTERN DISTRICT OF NORTH CAROLINA

 

          4    CERTIFICATE OF REPORTER

 

          5

 

          6

 

          7

 

          8

 

          9            I, Scott A. Huseby, Official Reporter and Notary Public

 

         10    certify that the foregoing transcript is a true and correct

 

         11    transcript of my original stenographic notes transcribed under

 

         12    my direction.  This 13th day of February, 1998.

 

         13

 

         14

 

         15                           ____________________

                                      SCOTT A. HUSEBY

         16                           NOTARY PUBLIC,

                                      OFFICIAL COURT REPORTER,

         17                           REGISTERED PROFESSIONAL

                                      COURT REPORTER,

         18                           CERTIFIED COURT REPORTER.

 

         19

 

         20

 

         21

 

         22

 

         23

 

         24

 

         25

 

 

 

 

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