|
NO.
96-31171
IN
THE UNITED
STATES COURT OF APPEALS
FOR
THE FIFTH CIRCUIT
UNITED
STATES OF AMERICA,
Plaintiff-Appellee,
v.
PAUL
HARDY, also known as P, also known as Cool;
and
LEN
DAVIS,
Defendants-Appellants
Appeal
from the United States District Court
for
the Eastern District of Louisiana
ORIGINAL
BRIEF ON BEHALF OF DEFENDANT-APPELLANT
PAUL
HARDY
SUBMITTED BY:
HERBERT V.
LARSON, JR.
ATTORNEY AT
LAW
700 Camp
Street
New Orleans,
Louisiana 70130
(504)
528-9500
Louisiana Bar
No. 8052
DANIEL J.
MARKEY, JR.
ATTORNEY AT LAW
5559 Canal Boulevard
New Orleans, Louisiana
70124
(504) 482-4566
Louisiana Bar No. 8917
CERTIFICATE OF INTERESTED PERSONS
The
undersigned counsel of record certify that the following listed persons have an
interest in the outcome of this case. These representations are made in order
that the judges of this court may evaluate possible disqualification or
recusal.
1.
Len Davis
2.
Paul Hardy
3.
Damon Causey
__________________
Herbert
V. Larson, Jr.
Counsel
for appellant Paul Hardy
STATEMENT
REGARDING ORAL ARGUMENT
Appellant
Paul Hardy respectfully requests oral argument in this matter for the following
reasons:
1.
This is a capital case, in which the death penalty has been imposed upon two of
the appellants, Len Davis and Paul Hardy.
2.
In addition, this appeal raises numerous complex legal issues, at least two of
which are res nova in this Circuit. Accordingly, appellant Hardy
respectfully requests that this matter be assigned a Class IV screening
classification, and that each appellant in this matter be given twenty
(20) minutes for oral argument.
TABLE OF CONTENTS
TABLE
OF AUTHORITIES
I.
STATEMENT
OF JURISDICTION
II.
STATEMENT
OF ISSUES PRESENTED
III.
STATEMENT
OF THE CASE
A.
Course of proceedings and disposition in the court below
B.
Statement of
facts
IV.
SUMMARY
OF ARGUMENT
V(a).
ARGUMENT
A.
Whether Paul Hardy
was acting under “color of law,” either as a matter of law, or as a matter of
fact, as is required in prosecutions for violations of 18
U.S.C. § 241 and 18 U.S.C. § 242, the offenses alleged in the first two counts of the superseding
indictment.
B.
Whether the evidence
at trial was sufficient to convict Paul Hardy of count 3 of the indictment.
C.
Whether it was error
for the trial court to fail to instruct the jury regarding an element of the
offense charged in Count 3, this element being that the “law enforcement
officer” with whom communications were prevented must be a federal law
enforcement officer.
D.
Whether the prosecution’s challenges to
certain prospective jurors were impermissibly based upon race, in violation of Batson
v. Kentucky.
E.
Whether the improper
admission of large quantities of highly prejudicial and irrelevant evidence at
Hardy’s trial so affected his substantial rights that he is entitled to a new
trial.
F.
Whether it was error
for the district court to fail to sever the entirety of Paul Hardy’s trial from
the trial of Len Davis.
V(b).
THE SENTENCING ISSUES
G.
Whether Paul Hardy’s
sentence of death is invalid because the only statutory aggravating factor upon
which it rests, commission of the offense after “substantial planning and
premeditation,” is unconstitutionally vague.
H.
Whether
it was error for the district court to permit the introduction of unadjudicated
offenses into the penalty phase of Paul Hardy’s trial.
I.
Whether
it was error to permit the government to rely upon non-statutory aggravating
factors at the penalty phase of Paul Hardy’s trial, because such non-statutory
aggravating factors failed to adequately channel the jury’s discretion and are
statutorily inconsistent.
J.
Whether
it was error for the district court to fail to grant Paul Hardy’s motion for a
separate sentencing jury; i.e., a jury other than the one that had
previously imposed a sentence of death upon co-defendant Len Davis, because
improper procedures and erroneously admitted evidence prevented the jury from
properly weighing the aggravating and mitigating factors.
VI.
CONCLUSION
CASES
Arave
v. Creech, 507 U.S. 463, 113 S. Ct. 1534 (1993)
Batson
v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986)
Clemons
v. Mississippi, 494 U.S. 738, 110 S. Ct. 1441
(1990)
Davis
v. Executive Dir. of Dep’t of Corrections, 100 F.3d 750
(10th Cir. 1996) cert.
denied, Davis v. Zavaras, __ U.S. __,
117 S. Ct. 1703 (1997)
Dobbs
v. Zant, 506 U.S. 357, 113 S. Ct. 835 (1993)
Edmunson
v. Leesville Concrete Co., 500 U.S. 614, 111
S. Ct. 2077 (1991)
Enmund
v. Florida, 458 U.S. 782, 102 S. Ct. 3368 (1982)
Ford
v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595
(1986)
Georgia
v. McCollum, 505 U.S. 42, 112 S. Ct. 2348 (1992)
Gochicoa
v. Johnson, 118 F.3d 440 (5th Cir.
1997)
Godfrey
v. Georgia, 446 U.S. 420, 100 S. Ct. 1759 (1980)
Gregg
v. Georgia, 428 U.S. 153, 96 S. Ct. 2909 (1976)
Hernandez
v. New York, 500 U.S. 352, 111 S. Ct. 1859 (1991)
Holtan
v. Black, 838 F.2d 984 (8th Cir. 1988)
J.E.B. v. Alabama, 511 U.S. 127, 114 S. Ct. 1419
(1994)
Jurek
v. Texas, 428 U.S. 262, 96 S. Ct. 2950 (1976)
Lewis
v. Jeffers, 497 U.S. 764, 110 S. Ct. 3092 (1990)
Milton
v. Procunier, 744 F.2d 1091 (5th Cir.
1984)
Polk v. Dixie Insurance Co., 972 F.2d
83 (5th Cir. 1992)
cert.
denied, 506 U.S. 1055, 113 S. Ct. 982 (1993)
Powers
v. Ohio, 499 U.S. 400, 111 S. Ct. 1364 (1991)
Purkett
v. Elem, 514 U.S. 765, 115 S. Ct. 1769 (1995)
Richardson
v. Marsh, 481 U.S. 200, 107 S. Ct. 1702 (1987)
Richmond
v. Lewis, 506 U.S. 40, 113 S. Ct. 528 (1992)
Screws
v. United States, 325 U.S. 91, 65 S. Ct. 1031
(1945)
State
v. Bartholomew, 683 P.2d 1079 (Wa. 1984)
rev’d
on other grounds, Wood
v. Bartholomew, ___U.S. ___, 116 S. Ct. 7
(1995)
State
v. Slappy, 522 So.2d 18 (Fla.1988)
Stromberg
v. California, 283 U.S. 359, 51 S.Ct. 532 (1931)
Sullivan
v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078 (1993)
Texas
v. Hopwood, 78 F.3d 932 (5th Cir.)
cert.
denied, __ U.S. __, 116 S. Ct. 258 (1996)
Tison
v. Arizona, 481 U.S. 137, 107 S. Ct. 1676 (1987)
Tuilaepa
v. California, 512 U.S. 967, 114 S. Ct. 2630
(1994)
United
States v. Asibor, 109 F.3d 1023 (5th
Cir. 1997) petition
for cert. filed, (U.S. Aug. 18, 1997) (No.
97-5665)
United
States v. Ballis, 28 F.3d 1399 (5th
Cir. 1994)
United
States v. Beckford, 964 F. Supp. 993 (E.D. La.
1997)
United
States v. Bentley-Smith, 2 F.3d 1368 (5th
Cir. 1993)
United
States v. Berkowitz, 662 F.2d 1127 (5th
Cir. 1981)
United
States v. Buckhalter, 986 F.2d 875 (5th
Cir) cert.
denied, 510 U.S. 873, 114 S. Ct. 203 (1993)
United States v. Castro, 15 F.3d 417
(5th Cir.)
cert.
denied, 513 U.S. 841, 115 S. Ct. 127 (1994)
United
States v. Cavin, 39 F.3d 1299 (5th
Cir. 1994)
United
States v. Classic, 313 U.S. 299, 61 S. Ct. 1031
(1941)
United
States v. Clemons, 941 F.2d 321 (5th
Cir. 1991)
United
States v. Cobb, 975 F.2d 152 (5th
Cir. 1992) cert. denied, 507
U.S. 990, 113 S. Ct. 1596 (1993)
United
States v. Contreras, 950 F.2d 232 (5th
Cir. 1991) cert.
denied, 504 U.S. 941, 112 S. Ct. 2276 (1992)
United
States v. Davis, 912 F. Supp. 938 (E.D. La.
1996)
United
States v. Davis, 904 F. Supp. 554 (E.D. La.
1995)
United
States v. Dean, 722 F.2d 92 (5th
Cir. 1983)
United
States v. De La Rosa, 911 F.2d 985 (5th
Cir. 1990) cert.
denied, 500 U.S. 959, 114 S. Ct. 2275 (1991)
United
States v. Edwards, 36 F.3d 639 (7th Cir. 1994)
United
States v. Fike, 82 F.3d 1315 (5th
Cir.) cert. denied, __
U.S. __, 117 S. Ct. 1280 (1996)
United
States v. Fisher, 106 F.3d 622 (5th
Cir. 1997)
United
States v. Flores, 63 F.3d 1342 (5th
Cir. 1995) cert.
denied, __ U.S. __ 117 S. Ct. 87 (1996)
United
States v. Forbes, 816 F.2d 1006 (5th
Cir. 1987)
United
States v. Galvin, 949 F.2d 777 (5th
Cir. 1991)
United
States v. Gonzalez, 922 F.2d 1044 (2nd
Cir. 1990)
United
States v. Guest, 383 U.S. 745, 86 S. Ct. 1170
(1996)
United
States v. Huey, 76 F.3d 638 (5th
Cir. 1996)
United States v. Hays, 872 F.2d 582 (5th
Cir. 1989)
United
States v. Kirkland, 12 F.3d 199 (11th
Cir. 1994)
United
States v. Koonce, 991 F.2d 693 (11th
Cir. 1993)
United
States v. Krout, 66 F.3d 1420 (5th
Cir. 1995) cert. denied, __U.S.__,
116 S. Ct. 963 (1996)
United
States v. Lanier, 33 F.3d 639 (6th
Cir. 1994), rev’d on reh’g en ban 73
F.3d 1380 (1996) rev’d, __U.S.__, 117 S. Ct. 1219 (1997)
United
States v. McCullah, 76 F.3d 1087 (10th
Cir. 1996) cert.
denied, __ U.S. __, 117 S. Ct. 1699 (1997)
United
States v. McKay, 33 F.3d 489 (5th
Cir. 1994)
United
States v. McKenzie, 768 F.2d 602 (5th
Cir. 1985) cert.
denied, 474 U.S. 1086, 106 S. Ct. 861 (1986)
United
States v. McVeigh, 944 F. Supp. 1478 (D. Colo.
1996)
United
States v. Mmahat, 106 F.3d 89 (5th
Cir. 1997)
United
States v. Neal, 27 F.3d 1035 (5th
Cir. 1994) cert.
denied, 513 U.S. 1179, 115 S. Ct. 1165 (1995)
United
States v. Perkins, 105 F.3d 976 (5th
Cir. 1997)
United
States v. Pettigrew, 77 F.3d 1500 (5th
Cir. 1996)
United
States v. Pofahl, 990 F.2d 1456 (5th
Cir.) cert. denied, 510
U.S 996, 114 S. Ct. 560 (1993)
United
States v. Price, 383 U.S. 787, 86 S. Ct. 1152
(1966)
United
States v. Qualls, 108 F.3d 1019 (9th
Cir. 1997) reh’g en banc granted, __ F.3d __, 1997
WL 557598 (Sept. 3, 1997) (No. 95-50378)
United
States v. Ripinsky, 109 F.3d 1436 (9th
Cir. 1997)
United States v. Roberts,
913 F.2d 211 (5th Cir. 1990) cert.
denied, 500 U.S. 955, 111 S. Ct. 2264 (1991)
United
States v. Romero-Reyna, 867 F.2d 834 (5th
Cir. 1989) aff’d
on remand, 889 F.2d 559 (5th Cir.),
cert.
denied, 494 U.S 1084, 110 S. Ct. 1818 (1990)
United
States v. Ruiz, 105 F.3d 1492 (1st
Cir. 1997)
United
States v. Scaife, 749 F.2d 338 (6th
Cir. 1994)
United
States v. Stansfield, 101 F.3d 909 (3rd
Cir. 1996)
United
States v. Stedman, 69 F.3d 737 (5th
Cir. 1995) cert.
denied, __ U.S. __, 116 S. Ct. 2512 (1996)
United
States v. Stokes, 506 F.2d 771 (5th
Cir. 1975)
United
States v. Swallow, 109 F.3d 656 (10th
Cir. 1997)
United
States v. Tarpley, 945 F.2d 806 (5th
Cir. 1991) cert.
denied, 504 U.S. 917, 112 S. Ct. 1960 (1992)
United
States v. Terrazas-Carrasco, 861 F.2d 93 (5th
Cir. 1988)
United
States v. Thompson, 827 F.2d 1254 (9th
Cir. 1987)
United
States v. Tipton, 90 F.3d 861 (4th
Cir. 1996) cert.
denied, __ U.S. __, 117 S. Ct. 2414 (1997)
United
States v. Wallace, 32 F.3d 921 (5th
Cir. 1994)
United
States v. Williams, 341 U.S. 70, 71 S. Ct. 581
(1951)
United
States v. Winters, 105 F.3d 200 (5th
Cir. 1997)
Walton
v. Arizona, 497 U.S. 639, 110 S. Ct. 3047 (1990)
Williams
v. New York, 337 U.S. 241, 69 S. Ct. 1079 (1949)
Woodson
v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978
(1976)
Zafiro
v. United States, 506 U.S. 534, 113 S. Ct. 933
(1993)
Zant v. Stephens, 462 U.S. 862, 103 S.
Ct. 2733 (1983)
SECONDARY
SOURCES
Unreliable
& Prejudicial: The Use of Extraneous Unadjudicated Offenses in the Penalty
Phase
of Capital Trials, 93 Colum. L.Rev. 1249 (1993)
I.
STATEMENT
OF JURISDICTION
Jurisdiction is vested with this
Honorable Court pursuant to Title 28, United States Code, Sections 1291 and
1294.
II.
STATEMENT OF THE ISSUES PRESENTED
Because of the procedural structure of
federal capital prosecutions, and the number of issues raised in this appeal,
the issues have been divided into two categories: (1) the “trial” issues, i.e.,
those issues which relate to the prosecution as a whole, or to the guilt
phase of trial, and (2) the “sentencing issues, A i.e., those issues
which pertain to the imposition of the death penalty on Paul Hardy.
With regard to each issue that he has
presented, appellant Paul Hardy, pursuant to FRAP 28(i), specifically adopts
all arguments presented on the same or similar issues by appellant Len Davis
and by appellant Damon Causey. In addition, appellant Paul Hardy specifically
adopts all issues presented by appellants Davis and Causey, where the adoption
of such issues is applicable and appropriate.
A.
THE TRIAL ISSUES
1.
Whether Paul Hardy
was acting under “color of law,” either as a matter of law, or as a matter of
fact, as is required in prosecutions for violations of 18
U.S.C. § 241 and
18 U.S.C. § 242, the offenses alleged in the first two counts of the superseding
indictment.
2. Whether the evidence
at trial was sufficient to convict Paul Hardy of count 3 of the indictment.
3.
Whether it was error
for the trial court to fail to instruct the jury regarding an element of the
offense charged in Count 3, this element being that the “law enforcement
officer” with whom communications were prevented must be a federal law
enforcement officer.
4.
Whether the prosecution’s
challenges to certain prospective jurors were racially motivated, in violation
of Batson v. Kentucky.
5.
Whether the improper
admission of irrelevant but highly prejudicial evidence at Hardy’s trial so
affected his substantial rights that he is entitled to a new trial on all
counts.
6.
Whether it was error
for the trial court to not sever the entirety of Paul Hardy’s trial from the
trial of Len Davis.
B.
THE SENTENCING ISSUES
7.
Whether Paul Hardy’s
sentence of death is invalid because the only statutory aggravating factor upon
which it rests, commission of the offense after “substantial planning and
premeditation,” is unconstitutionally vague.
8.
Whether it was error
for the district court to permit the introduction of unadjudicated offenses
into the penalty phase of Paul Hardy’s trial.
9.
Whether it was error
to permit the government to rely upon non-statutory aggravating factors at the
penalty phase of Paul Hardy’s trial, because such non-statutory aggravating
factors failed to adequately channel the jury’s discretion and are
statutorily
inconsistent.
10.
Whether it was error
for the district court to fail to grant Paul Hardy’s motion for a separate
sentencing jury, i.e., a jury other than the one that had previously
imposed a sentence of death upon co-defendant Len Davis, because improper
procedures and erroneously admitted evidence prevented the jury from properly
weighing the aggravating and mitigating factors.
A.
Course of proceedings, and disposition in the court below
On December 13, 1994, a grand jury
sitting in the Eastern District of Louisiana returned a one count indictment
against Len Davis, Paul Hardy, and Damon Causey. The indictment, which charged
a violation of 18 U.S.C. § 241 (“conspiracy against rights”) generally alleged
that Davis, Hardy and Causey had conspired to deprive Kim Marie Groves of
rights secured to her by the Constitution and the laws of the United States by
killing her.
This indictment was followed by a
superseding indictment on January 17, 1995 (V.2, pp.474-483); a second
superseding indictment on March 24, 1995 (V.2, p.322-327); and a third
superseding indictment on August 18, 1995 (V.5, pp.1185-1189). The third
superseding indictment, which is the indictment on which the defendants stood
trial, contained three (3) counts, and charged violations of 18
U.S.C. § 241
(“conspiracy against rights”)-- count 1;
18 U.S.C. § 242 (“deprivation of rights under color of law”) -- count
2; and 18 U.S.C. § 1512 (a)(1)(C) (“tampering with a witness, victim, or an
informant”) -- count 3. Each defendant was named in each count.
On July 31, 1995, between the second
superseding indictment, and the third superseding indictment, the government,
acting pursuant to 18 U.S.C. § 3591, et seq. (The Federal Death Penalty Act
of 1994 -- the FDPA), filed two “Notice[s] of Intent to Seek the Death Penalty”
-- one directed to Len Davis, the other directed to Paul Hardy (V.5,
pp.1227-1230).
Numerous pre-trial and trial motions were filed on behalf of Paul
Hardy and the other defendants,including the following, which are germane to this appeal: defendants’ joint
“Motion to Dismiss Government’s Notice of Intent to Seek the Death Penalty,”
with an accompanying memorandum (V.5, p.1169-1176), which relied upon Eighth
Amendment grounds for dismissing the death penalty notice; Hardy’s “Motion to
Dismiss Counts 1 & 2 of Indictment,” with accompanying and incorporated
memorandum of law, (V.6, pp. 1401-1411), which sought the dismissal of Counts 1
& 2 on the grounds that: (1) the statutes were unconstitutionally vague;
(2) the statutes failed to provide adequate notice; and (3) the activities
alleged were not done “under color of law”; Hardy’s “Motion to Declare the
Capital Punishment Procedures of the Crime Control and Law Enforcement Act of
1994 Unconstitutional,” which sought to invalidate these procedures on five
separate grounds -- one of which was that “the death penalty is being used in
an unconstitutional, racially biased manner”(V.6, p.1394); the
“Second Motion of Paul Hardy to Declare Unconstitutional the Penalty Provisions
of Violent Crime Control and Law Enforcement Act of 1994;“
and Hardy’s “Motion for Severance,” which alleged that Hardy was entitled to a
severance from Davis because:
In June of this year during a hearing
on a Motion To Continue the trial of this matter the defendant, Len Davis,
testified under oath that he did not care about the verdict of the jury
concerning the “punishment” phase of this trial and that during the “guilt”
phase he intended to testify and tell the jury that if they determined him to
be guilty that he wants them to put him to death. In other words, he
will tell the jury that he wants them to impose the death penalty upon him with
or without a hearing of the “punishment” phase of the trial.
This total disregard for human life and
such a callous statement to the jury will inflame them and make it impossible
to render a fair and impartial verdict as to the defendant, Paul Hardy, in
either phase of this trial. (V.6, pp.1368-1369)(emphasis in original).
In addition, Hardy filed a “Motion to
Disallow Use of Information Regarding Unadjudicated Offenses,” (V.8,
pp.1890-1899), which was filed in response to the government’s “Notice of
Non-Statutory Aggravating Factors Upon Which the Government Will Rely in
Support of the Death Penalty” (V.7, p.1546).
Generally speaking, all motions were
subsequently denied by the district court, with the exception of Hardy’s motion
regarding the government’s use of non-statutory aggravating factors, which was
denied in part, and granted in part (V.8, pp.2031-2042, 1944-1951, 1923-1940 V.
9, pp.2131-2156).
Trial on the merits began on Monday, April 8, 1996. On April 24,
1996, the jury returned a verdict of guilty as charged on all counts for Len
Davis and Paul Hardy. Damon Causey was found guilty on counts 1 and 2, but the
jury was unable to reach a verdict on count 3 with regard to him. Because the government was seeking the death
penalty for Davis and Hardy, the district court conducted sentencing hearings,
pursuant to 18 U.S.C. § 3593. Following these hearings, the jury first determined
that Davis should receive the death penalty (V.49, p.161).
The Davis sentencing hearing concluded
on April 26, 1996 -- a Friday. On Monday, over the objection of defense
counsel, the trial jury, which was also the jury that had sentenced Davis to
death, began its consideration of the aggravating and mitigating evidence
regarding Paul Hardy. On Wednesday, May 1, 1996, the jury also sentenced Paul
Hardy to death (V.54, p.303).
Post-trial motions were filed on behalf
of Davis, and Hardy, (who adopted Davis’s motions) including a post-trial
motion for judgment of acquittal, Hardy’s “Motion and Incorporated Memorandum
to Set Aside the Death Penalty Verdict Based on Insufficient Evidence of
Defendant’s Future Dangerousness or that Defendant Committed Other Violent
Acts,” and Hardy’s “Motion for a New Penalty Phase Trial.” All motions were
denied by the district court (V.14, p.3493). Thereafter, the district court, in
accordance with the sentence of the jury, sentenced Len Davis and Paul Hardy to
death on November 6, 1996 (V.14, pp.3480-3481). As can be seen from the
judgment and commitment order entered by the district court, the sentence of
death was imposed concurrently on all three counts (V.14, p.3481). Significantly,
however, the jury’s sentence of death was a general sentence, and not tied to
any particular count of conviction (V.12, p.2888). On November 14, 1996, Paul Hardy timely filed a notice of appeal
to this Court. The notice of appeal was filed pursuant to both Rule 4(b)
of the Federal Rules of Appellate Procedure, and Title 18 United States
Code, Section 3595.
B. Statement of facts
1.
Introduction
No one has ever disputed that Kim Groves was murdered. The
question was, and is, whether she was murdered by Paul Hardy, acting at the
behest of Len Davis and in concert with Damon Causey -- as the government
contended -- or whether she was murdered by someone else, such as her boyfriend,
Jimmie Jones -- as the defense contended. But to properly understand this
question, and the “trial facts” offered to answer it, and all of the attendant
legal issues in this appeal, it is necessary to place those facts into their
proper, larger context.
On September 7, 1994, acting on
allegations that Len Davis, a New Orleans Police Department (NOPD) officer, and
other NOPD officers were involved in cocaine trafficking, involvement which
purportedly included providing “protection” for traffickers, the government
obtained judicial authorization to place a wiretap on Davis’s cellular
telephone (V.36, pp. 70-72). Accompanying the wiretap was a PIN register, which
enables persons monitoring the tapped phone to determine the date, time,
duration of any intercepted calls, together with the number being called by the
tapped phone, if the call is an outgoing call (V.36, p.72). The original
authorization was for 30 days. It was renewed for an additional 30 days on
October 6, 1994, and for yet another 30 days on November 4, 1994. The wiretap
concluded on December 5, 1994 (V.36, p. 72). It was during the course of this
drug trafficking investigation, which later gave rise to another indictment of
Len Davis -- for drug trafficking in the Eastern District of Louisiana -- that
the government intercepted certain conversations which ultimately led to the
charges in this proceeding. As will be see in the issues raised in this appeal,
the existence of this other wholly unrelated investigation and prosecution was
problematic for this proceeding, particularly with regard to Paul Hardy.
2.
Jury Selection
Although jury selection in this case formally began on April 8,
1996 (V.26), it actually had begun much earlier, with a questionnaire that was
sent to all potential jurors. See, e.g., letter from the district
court to all counsel regarding unqualified members of the venire (V.11,
pp.2800-2801). For
purposes of this appeal, the most significant aspect of the questionnaire is
that in question 6, prospective jurors were asked to provide their “Race/ethnic
background”. Voir dire continued to April 15, when the prosecution and defense
exercised their peremptory challenges. It is the fashion in which the
government exercised its challenges which gives rise to the fourth issue in
this appeal.
Following opening arguments, the
government began its presentation of evidence.
3.
The Evidence at Trial - The Guilt Phase
(a)
The government’s evidence
The government began this phase of its case with
Sergeant Joseph Hebert, of the Public Integrity Division (formerly the Internal
Affairs Division) of the NOPD (V.35.pp.112-114). Sergeant Hebert, who is
responsible for investigating misbehavior by police officers, testified that he
was contacted at approximately 7:00 p.m. on October 11, 1994 by another officer
from his office, who put him [Hebert] in touch with two complainants: Tonya
Amos and Sharon Norwood. Sergeant Hebert said that he was told by Amos that
Nathan Norwood, "while at a store on North Claiborne Avenue, had been
approached by two police officers, Len Davis, and his partner [Sammie Williams],
that Officer Davis had punched Nathan Norwood in the stomach and that Len
Davis’ partner had hit Nathan Norwood in the head with his pistol” (V.35,
p.115).
Although these allegations were not true, a fact discussed infra,Sergeant Hebert was unaware of their falsity at the time. Consequently, he
began to investigate the complaint (V.35, p.115). On the night of October 11,
1994, Sergeant Hebert visited the scene of the alleged beating -- outside of
the Top Shop Food Mart at 6016 North Claiborne Avenue, New Orleans; he visited
the hospital to which Nathan Norwood had been taken for treatment, and he took
statements from Nathan Norwood and Tanya Amos (V.35, p.118). The following
night, October 12, Sergeant Hebert took statements from three alleged witnesses
to the beating: Kim Groves, Corey Groves, and Raynell Banks (V.35,
pp.119-120).
Kim Groves told Sergeant Hebert that
she had seen Len Davis and Sammie Williams questioning Nathan Norwood outside
the Top Shop Food Mart, and that she had seen Davis punch Norwood in the
stomach, and that Sammie Williams had hit Norwood in the head with his pistol,
which caused Norwood to hit his head against a phone booth (V.35, p.123).
Sergeant Hebert said that Kim Groves “actually name[d] Len Davis by name,” as
she had met him previously (V.35, p.124).
The other two alleged witnesses were
then interviewed by Sergeant Hebert, who finished the interviews shortly after
11:00 p.m. on the night of the 12th (V.35, p.124).
The following day, Sergeant Hebert
prepared a photographic line-up containing pictures of Officers Davis and
Williams (V.35, p.126). At approximately 8:00 p.m. on the evening of the 13th,
Sergeant Hebert took the line-up to Sharon Norwood’s house in Algiers (a suburb
of New Orleans) where it was shown to a number of persons, including Kim Groves
(V.35, p.128). Kim Groves identified Williams as the officer who had hit
Norwood on the head with his pistol, and she identified Davis as the officer
who had punched Norwood in the stomach (V.35, pp.128-129). Sergeant Herbert
left Sharon Norwood’s house at approximately 9:00 p.m. (V.35, p.129).
Although Sammie L. Williams was called by the government towards
the end of its case in chief, it is Williams who actually provided the crux of
government’s version of the events leading up to the murder of Kim Groves.
Williams, who was 29, had been an officer with the NOPD since 1990 (V.37,
p.294). He resigned in 1994, because he had been indicted on federal drug
charges (V.37, p.294). As of the time he testified at Hardy’s trial, Williams
had entered a plea of guilty to the drug charges, but had not been sentenced.
According to Williams, he had no plea agreement with the government, although
he acknowledged that he was “hoping that the government informs the judge of my
cooperation and, as a result, he will give me a lesser sentence than he
otherwise might impose on me” (V.37, p.297).
Williams testified that he had known
Len Davis as long as he had been a police officer, and that he became Davis’s
partner in January or February of 1994, because “it would be more convenient
for us to be partners, given the other things that we were involved in” (V.37,
p.302). Williams also said he knew Paul
Hardy, having met him when he [Williams] became partners with Davis (V.37,
p.302). Williams described Hardy as
having a “crew,” i.e., a group of individuals who worked for and with
him in his drug dealing (V.37, p.315).
According to Williams, Davis and Hardy
had “a very close and trusting relationship” (V.37, p.305). Williams also told
the jury that he knew that Hardy owned firearms, because he had discussed his
guns with Davis in Williams’ presence (V.37, p.314). Williams said that on one
occasion, Hardy talked about changing the barrel on a gun to “disguise it”
(V.37, p.314).
Williams testified that he first met Kim Groves on about October
10, 1994, when he and Len Davis were conducting a search for an individual
wanted in connection with a murder (V.37, p.316). During the course of the
search, Williams and Davis stopped a vehicle in which Nathan and Nathaniel
Norwood were riding. While Williams and Davis were questioning the Norwoods,
who were twins, Kim Groves approached them and demanded to know why her nephews
were being questioned (V.37, p.317). Although this precipitated an argument between
Groves and Davis, Groves left without further incident (V.37, p.317).
The following day, Williams and Davis
continued their search, and were approaching the corner of North Claiborne and
Tupelo Street, when an individual who had been standing on the corner began to
flee upon seeing the police car. Believing that this was the individual wanted
in connection with the murder, Williams gave chase on foot, while Davis used
the police car (V.37, p.318). Davis eventually apprehended the fleeing individual,
who turned out to be Nathan Norwood. During the course of apprehending him,
Williams
hit Norwood on the back of the head with his gun, which caused Norwood to hit
his nose on the railing of a porch next to where Norwood was caught (V.37,
pp.318-319). At no time did Davis ever hit Norwood (V.37, p.322).
Kim Groves arrived on the scene again,
". . . and started asking what have we done to her nephew and
'[w]hy do y’all
have him’ or why was he bleeding because he had a cut on his nose’” (V.37,
p.323). Although Williams “had words” with Groves on this day, Davis did not
(V.37, p.323).
Williams testified that early on the
morning of October 13, 1994, he got a telephone call from Davis, who told him
that he [Davis] had been told by his cousin 'Little June’ that Kim Groves
had filed a complaint with the Internal Affairs Division (IAD) of the New
Orleans Police Department against both Davis and Williams, for “beating up her
nephews” (V.37, p.324). A recording of this conversation was introduced into
evidence as G.E. C-1.
Williams told the jury that he went to work at approximately 2:25
p.m. that day, and that he and Davis began patrolling “across the [Industrial]
[C]anal” (V.37, p.326). According to Williams, Davis was angry -- both with Kim
Groves, and with the IAD (V.37, p.326). At about 5:00 p.m. that day, while
still on patrol, Davis and Williams saw Kim Groves, who was riding in a car
with Nathan and Nathaniel Norwood, and their mother (V.37, p.327). Upon seeing
Groves, who was pointing at Davis and Williams, Davis became “real angry”
(V.37, p.327). According to Williams, Davis said: "I could get Paul to do that
whore and we could handle the 30" (V.37, p.327). The government’s
recording of this statement was introduced into evidence as G.E. C-2 (V.37, p.328).
At trial, Williams interpreted this statement as meaning ”. . . that [Davis]
could get Paul Hardy to come kill here (sic) and we will handle the
police report, meaning that we will write the report whereby any evidence or
any involvement with Paul Hardy would be eliminated” (V.37, p.328). Over the next hour or so, Davis
paged Hardy twice.
Hardy responded to the second page. Their conversation, which was recorded, was
introduced into evidence as G.E. C-3, and played for the jury. In this
conversation, Davis described Kim Groves, and made the following statements:
Davis:
. . . the bitch got light brown eyes, the bitch got on like a black sweat top
with some faded like black jeans with light brown . . . I know the whore now.
When I see the bitch . .
Hardy:
Uh.
Davis:
I know the fuck out that bitch. But the whore hanging out down there now. What
you mean, nigger. You know what I wanna do.
Hardy:
Well, bitch you ain’t say nothing.
Williams testified that about one-half hour after this
conversation, Davis spoke with Damon Causey, to arrange to meet Causey and
Hardy at the Fifth District police station (G.E.C-4). According to Williams,
when he and Davis arrived at the station at a little after 7:00 p.m., Hardy was
already there, with Damon Causey, Morgan Ricks and Jermaine (l.n.u.)(V.37,
p.335). Williams said that Steve Jackson was not at the station with Hardy and
the others (V.37, p.336).
According to Williams, the group looked
at homicide scene photographs for a while, and then left. Williams said that
when Hardy left, he took Davis’s telephone with him (V.37, p.336).
Williams testified that he and Davis
then got back into their police car, and went back “across the [Industrial]
canal” to try and locate Kim Groves -- but without success (V.37, pp.339-341).
According to Williams, they were joined in the car by Hardy at approximately
7:45, in response to a call from Davis (V.37, p.340; G.E. C-9). Williams said
that the three of them “drove around” looking for Groves, again without
success. According to Williams, during the drive, Davis asked Hardy if he had a
gun with him, and Hardy responded by “pull[ing] up” a black 9 mm pistol (V.37,
p.342).
Williams said Hardy got out of the car
after approximately 20 or 30 minutes (V.37, p.343). Between the time Hardy got
out of the car, and 9:45 p.m., Davis did not speak with Hardy (V.37, p.344). At
9:49, Davis spoke with Hardy again (G.E.C-10). Following this conversation,
Williams and Davis went back across the Industrial Canal, to resume their
search for Groves (V.37, p.345). At approximately 10:00 p.m., they saw her, “.
. . standing in the middle of Alabo Street, . . talking to another individual”
(V.37, p.345). Davis called Hardy at 10:10 p.m. to tell him this (G.E.C-11).
Between 10:10 and 10:30, there were no
communications between Davis and Hardy. At 10:30, Williams got off work. At the
time he left, Williams believed that nothing would come of Davis’s threats
against Groves:
Williams: Well, at this time I’m about to get
off and all day long Len has been planning -- calling Paul and asking him to
come over there, handle and kill Kim for him, look for the twins and stuff, but
throughout the day it was more like Paul was procrastinating with the matter
and he hadn’t gone over there. So I’m thinking at this point, while I’m getting
off, that it’s not going to actually happen tonight.
(V.37,
p.347).
When
Williams left work at 10:30, he went home (V.37, p.348).
As government’s exhibit C-12
demonstrates, at 10:43 p.m., Hardy spoke with Davis again, who again described
Groves’ clothing, and said “After it’s done, go straight uptown and call
me.” At 11:10 p.m., Davis called
Williams (G.E.C-13). As the recording indicates, Davis said: “Signal 30. NAT.”
According to Williams, Signal 30 is police code for murder, and NAT means
“necessary action taken” (V.37, pp.348-349). In this conversation, Davis told
Williams that he was at Flynn’s Den, a bar on Chef Menteur Highway. Williams
agreed to go to the bar to meet Davis.
Immediately following this
conversation, Davis called the Fifth District police station. While speaking
with Officer Rickey Hunter at the station, he simultaneously received a
telephone call from Hardy (G.E. C-14):
Davis: Yeah, hello.
Hardy: What’s up, nigger?
Davis: What’s up?
Hardy: Sch, schobocka (phonetic), huh?
Davis: In uh, I know, I’m listening,
uh.
Williams testified that when he reached
Flynn’s Den, Davis had his telephone in one hand, and his police radio in the
other (V.37, p.353). According to Williams, when Davis
". . . got confirmation
from Gary Washington that Kim Groves was dead, he then slammed the phone down
on the car, on his car, and started jumping up and down in joy, real happy,
like dancing and stuff like that” (V.37, p.355).
At 11:22 p.m., both Davis and Williams
spoke to Hardy:
Williams: It’s confirmed, daddy.
Hardy: It’s handled?
Williams: Huh?
Hardy: It’s handled, right?
Davis: I heard somebody just got shot
on Alabo Street. Say she dead, too.
Hardy: Oh yeah?
Davis: Yeah, bro, some bitch, I just
had to have, happened to have the radio on.
Hardy. Yeah.
Davis: Say it was three niggers in a
champagne-colored ninety-three Maxima.
Hardy: Oh man, that’s fucked up, a
broad?
Davis:
Oh, some broad, bro, got shot, uh say three niggers in a Maxima. Fled up
Robertson
Street. Three niggers in a champagne-colored Maxima.
(G.E.C-17).
The
conversation concluded with Hardy telling Davis that he would come to Flynn’s
Den.
According to Williams, Hardy got to
Flynn’s Den shortly thereafter. Williams said that he and Davis spoke with
Hardy, who described the events of that night:
Williams: As I was leaving the club to go
with my girlfriend home, Len, Paul and myself walked outside, and that’s where
Paul told him exactly what had happened with Kim Groves. * *
* He told him that
when him and his boys drove across the canal and parked the vehicle, he got
out, walked up to Kim, who was standing in the block with another guy; he
pointed the gun at her, at which time Kim told him, “Here, baby. You can have
this coat.” Then he pulled the trigger and shot her in the head, and the guy
that was standing with her just walked off. He then ran back to the vehicle.
(V.37, p.365).
Williams saw Davis the next day
(October 14, 1994). Williams told the jury that he and Davis received
“something of value” that day, this being $16,000 in cash (V.37, p.368). As
Davis and Williams were dividing up the money, “Len was telling me [Williams]
that he wanted also to have Paul kill the twin [Nathan Norwood] and then I told
him -- I talked him out of doing so” (V.37, p.368). The government also relied upon the testimony of Steven Jackson
as part of its evidence against Davis, Hardy, and Causey. Jackson, who was 27
at the time of the trial, had a 12th grade education, and was testifying
pursuant to a plea agreement with the government (V.36, p.113), told the jury
that he had met Paul Hardy through Hardy’s girlfriend, Toni Van Buren (V.36,
p.98). According to Jackson, he had known Hardy for about six years, and he
also knew Damon Causey (V.36, p.99). Jackson testified that he had a “business
relationship” with Hardy, which consisted of selling drugs for him (V.36,
p.100). Jackson further said that he had seen Hardy with a gun; that Hardy had
several guns, which he kept at different houses (V.36, p.102).
Jackson also testified that he knew Len
Davis, and that he had seen Davis and Hardy together on a number of occasions
(V.36, p.104), including one occasion on which both guns and drugs (in the form
of “crack” cocaine) were present (V.36, p.105).
Jackson admitted, on direct examination, that the first time he
was interviewed by FBI agents, he had told the agents that he knew nothing
about the murder of Kim Groves (V.36, p.109). Jackson told the agents the same
thing the second time he was interviewed (V.36, p.110). Jackson said that he
decided to recant, and admit his involvement, when he learned that a friend of
his, Jermaine Pinson, had been arrested by the FBI, and would, if he gave a
statement, undermine Jackson’s denials. At trial, Jackson testified that on October 13, 1994, while Jackson was
at his house with his common-law wife and Jermaine Pinson, Hardy came over to
his house and asked if one of the people there would “take [him] over by this
girl” (V.36, p.116). Jackson said he would.
Jackson said that from his house the
two of them drove in his car, a sky blue 1991 Nissan Maxima, to Damon Causey’s
house (V.36, p.116). Upon arriving there, Hardy got out of the car, and went
into Causey’s house, while Jackson remained in the car (V.36, p.117). After
several minutes, Causey and Hardy came out of the house. According to Jackson,
Hardy had a black “Starter” jacket in his arm, and was putting a 9 millimeter
pistol in his pants (V.36, p.118). Causey got into the front passenger’s seat,
and Hardy got into the back seat. Hardy then gave Jackson directions “to go
across the canal” (V.36, p.118). Jackson testified that the route he took
“across the canal” was the one illustrated on G.E. 33 (V.36, p.119).
Jackson said that while en route, Hardy
was saying that “he gots to do this for his nigger, he got to [do] this for a
nigger” (V.36, p.120). According to Jackson, during the trip, Hardy put the
jacket on, pulled the hood up, and checked the pistol to see if it was loaded
(V.36, p.120).
Jackson stated that he stopped the car on Charbonnet Street, in
front of the house indicated on G.E. 34A (V.36, p.122). Jackson said Hardy got
out of the car while he and Causey remained in it, listening to the radio
(V.36, p.122). Jackson told the jury that after Hardy had been gone for an
unspecified period of time, he “came back running. He jumped in the car and he
told me to speed up” (V.36, p.123). According to Jackson, as they drove off,
Hardy said: "I hit the bitch. I hit the bitch.” (V.36, p.123). Jackson said
that Hardy then added: "I hit the bitch one time in the head. She thought I was
trying to rob her. She was trying to give me her coat.” Jackson also stated
that Hardy threatened to kill him, or somebody in his family if he told anybody
about the shooting (V.36, p 123).
Jackson testified that Hardy was giving
directions on where to go, directions which took the car back across the
Industrial Canal. According to Jackson, Hardy was fumbling with his gun in the
back seat, trying to take the barrel out of it (V.36, p.124). Jackson told the jury
that Hardy succeeded in switching the barrels on the gun, and that as the car
“”rolled past the bridge, [Hardy] threw the barrel in the canal (V.36, p.124).
Jackson said the three of them
(Jackson, Hardy, and Causey) then returned to the Florida housing development,
where Hardy gave Causey the gun. Hardy and Causey then got out of the car, and
went into “Morgan’s house” (V.36, p.126). Jackson told the jury that he did not
see Hardy again until the next day, when Hardy again told Jackson not to “tell
nobody, that . . . he had to do this for his nigger, Lenny kept bothering him
about doing this” (V.36, p.127).
The government also offered the
testimony of Larry Smith, a former New Orleans Police Officer who resigned as a
result of his indictment and conviction for cocaine trafficking (V.39, p.99).
Smith described himself as a close friend and “confidant” of Davis. Smith, who
was testifying pursuant to a plea agreement with the government, stated that on
the morning of October 13, 1994, Davis met with him, and told him that “some
bitch had made a complaint at IAD that he had beat somebody up” (V.39, pp.
103-104). According to Smith, Davis subsequently telephoned him on the morning
of October 15, and said: "I had that bitch handled, taken care of” (V.39, p.104).
Gary Washington was the first New Orleans Police Officer to reach
Kim Groves after she was shot (V.37, pp. 436-438). In response to a 34-S
(aggravated battery by shooting) radio call at 10:58 p.m., Washington and his
partner went to the 6100 block of North Robertson street, which is right around
the corner from the 1400 block of Alabo Street (V.37, p.438). Washington said he saw one bullet casing on
the scene, and the body, which had a towel wrapped around the head (V.37,
p.441). Washington interviewed two persons at the scene, one of whom was Roland
Smith. Washington testified that Smith told him that “there was a black male
that ran from the crime scene after one single shot was fired and that the car
exited the scene going down North Robertson.” Washington said that Smith
described the car as a “champagne color Maxima, approximately a >93"
(V.37, p.442).
According to Washington, he received
further information while on the scene, this being “that the car that sped away
from the scene was a blue Maxima” (V.37, p.446).
It appears that Kim Groves died at the
scene of the shooting. Dr. Susan M. Garcia, a forensic pathologist with the New
Orleans Coroner’s Office, said that Kim Groves died from a single gunshot wound
to the left side of her head (V.35, p.151). Based on the stippling found around
the entry wound, Dr. Garcia estimated that the shot was fired from a distance
of more than two inches, but not more than 12 to 18 inches (V.35, p.152). Dr.
Garcia also informed the jury that a bullet jacket fragment, and bullet
fragments were recovered from behind the right ear of the skull of Kim Groves
(V.35, p.155; G.E. 3). Finally, Dr. Garcia testified that a chemical analysis
of Kim Groves’ blood revealed the presence of cocaine, and its metabolites
(V.35, p.155).
Officer Jimmy Ducos of the NOPD crime
laboratory arrived at the crime scene at approximately 11:45 p.m. on the night
of the 13th (V.35, p.161). According to Officer Ducos, shortly after his
arrival, Detective Zenon of the NOPD pointed out a 9 millimeter casing to him.
Officer Ducos placed the casing into glassine envelope, which was in turn
placed into an evidence packet (V.35, p.163). This casing was introduced into
evidence as G.E. 6 (V.35, p.172).
On November 2, 1994, Damon Causey’s apartment was searched by the
FBI (Vol.39, p.8). Among other items, agents seized a Beretta 9 millimeter
semi-automatic pistol, which was introduced into evidence as G.E. 17. According
to FBI Agent Donald Dixon, Causey told agents that the gun belonged to Hardy
(V. 39, p.16). As can be see from G.E. 43b, the serial number on the receipt
for the purchase of the gun from Chalmette Sporting Goods, a receipt in the
name of Paul Hardy, does in fact match the serial number on the gun found in
the search of Causey’s apartment (V.39, pp.24-26).
Some ten months after the search of
Causey’s apartment, the government began searching the Industrial Canal.
Kenneth Fechtler, a professional diver for Bisso Marine, testified that he had
been hired by the government to search the Industrial Canal by the bridge
described by Jackson, to “locate a metal object approximately four inches long
and about a half-inch in diameter” (V.36, p.236). Fechtler said that there had
been dives on September 25, 1995, October 18, 1995, and again on November 28.
Fechter informed the jury that on the 28th, he found a 9 millimeter gun barrel
in the canal (V.36, p.242).
This gun barrel was subsequently
examined by William Tobin, an agent with the FBI. At trial, Tobin was qualified
as an expert in the field of forensic metallurgy (V. 39, p.67). Agent Tobin
testified that he examined the gun barrel found in the Industrial Canal (G.E.
28), and that "...the weapon part, the gun barrel could have been exposed to
the environment which was represented to me from the local water authority, I
believe, on the order of thirteen months” (V. 39, p.68).
On cross-examination, Agent Tobin conceded that “...[he] would
not have any serious difficulties with a range of six months to maybe eighteen
months, maybe two years” (V.39, p.74). James Churchman, the supervisor for the physical evidence unit of the
Louisiana State Police Laboratory, was the last witness called by the
government in its case-in-chief. Churchman was qualified as an expert in
firearms and tool marking identification (V.39, p.128). According to Churchman,
“...this casing [G.E 6, the casing found on the scene at the shooting of Kim
Groves] was fired in this Beretta pistol to the exclusion of any other weapon”
(V.39, p.135). He could not determine, however, whether the bullet recovered
from the body of Kim Groves “...was or was not fired in this pistol [the same
Beretta pistol] as submitted” (V.39, p.145).
Churchman further testified that the
barrel found on the Beretta when it was seized by the FBI had been manufactured
by Taurus, not Beretta (V.39, p.154). According to Churchman, the barrel found
in the Industrial Canal had also been manufactured by Taurus; was also a 9
millimeter barrel, and would have fit onto the Beretta pistol before it [the barrel]
became corroded (V.39, pp.153-156). At the conclusion of the government’s
evidence, all defendants moved for a judgment of acquittal on all counts,
pursuant to Rule 29 of the Federal Rules of Criminal Procedure (V.40, pp.2-5).
The motion was denied (V.40, p.7), and the defendants began presenting their
witnesses.
(b)
The defense evidence
Collectively, Davis, Hardy and Causey
offered four forms of evidence in their defense: (1) evidence which impeached
the credibility of government witnesses, much of which was adduced through
cross-examination; (2) evidence which contradicted government |