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Nos.
93-4005, 93-4006, IN
THE UNITED
STATES COURT OF APPEALS
UNITED
STATES OF AMERICA, v. RICHARD
TIPTON, COREY JOHNSON, AND
JAMES ROANE, On
Appeal from the United States District Court
BRIEF
FOR APPELLANT Scott
L. Nelson David
Baugh Counsel for Appellant James H. Roane
SUBJECT MATTER AND APPELLATE JURISDICTION This case involves consolidated challenges to James Roane's conviction and to the sentence of death imposed on him under 21 U.S.C. § 848. Mr. Roane was convicted on February 3, 1993, and sentenced on June 1, 1993. On June 9, 1993, he filed a timely Notice of Appeal of his conviction (DE 596).1 Pursuant to 21 U.S.C. § 848(q)(1), Mr. Roane filed a separate Notice of Appeal from the sentence of death on June 10, 1993 (DE 597). This Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 21 U.S.C. § 848(q).
ISSUES PRESENTED FOR REVIEW2 1. Whether the district court's plain error in conducting voir dire outside the defendants' presence requires reversal. 2. Whether the district court erred in excluding for cause venire members who expressed reservations about the death penalty but did not state that they were "irrevocably committed" to vote against the death penalty or that their views would "prevent or substantially impair" their ability to follow the court's instructions. 3. Whether the district court improperly treated venirepersons differently, depending upon the views they expressed toward capital punishment 4. Whether the district court abused its discretion in limiting voir dire on issues relating to racial prejudice to a single conclusory question. 5. Whether the district court abused its discretion in refusing to conduct or permit voir dire on issues relating to the specific mitigating and aggravating factors the jury would be asked to consider. 6. Whether the prosecution exercised its peremptory strikes so as to deliberately exclude women from the jury. 7. Whether the district court abused its discretion in denying Mr. Roane's motion to sever his trial from that of his codefendants. 8. Whether the district court erred in denying Mr. Roane's motion to exclude evidence regarding the New Jersey activities of his codefendants or, alternatively, his request for an instruction that the jury not consider this evidence against Mr. Roane. 9. Whether the district court erred in refusing to instruct the jury, notwithstanding the government's charge, it could find that not one but three conspiracies had been proven, only one of which included Mr. Roane. 10. Whether Mr. Roane's "Continuing Criminal Enterprise" ("CCE") conviction must be reversed because the prosecution failed to prove, as required by the statute, that Mr. Roane committed a "continuing series of violations" or that he "organize[d], supervise[d] or manage[d]" five or more persons in the alleged CCE. 11. Whether the district court committed plain error in failing to instruct the jury of the elements of 21 U.S.C. § 848(a). 12. Whether the district court committed plain error in instructing the jury that, in determining whether or not James Roane "engaged" in a CCE, it could consider murders that were allegedly committed "in furtherance" of the CCE and that were not charged as part of the "continuing series of narcotics violations". 13. Whether the district court erred in failing to advise the jury that in order to convict Mr. Roane of having engaged in a CCE, it must unanimously agree on how each element of the CCE was satisfied as to Mr. Roane. 14. Whether reversal of Mr. Roane's conviction on Count Two is required because the prosecution failed, in the indictment or otherwise, to specify the facts underlying the CCE charge against him. 15. Whether the district court committed plain error in failing to instruct the jury that in order to convict Mr. Roane on capital murder, it was required to find that a nexus existed between the murders and the CCE. 16. Whether Mr. Roane's conviction under 21 U.S.C. § 848(e) for the murder of Douglas Moody must be reversed because there was insufficient evidence of a nexus between that murder and the CCE. 17. Whether Mr. Roane's conviction under 18 U.S.C. § 1959 must be reversed because the prosecution failed to prove that the attacks alleged in those counts were committed while "engaged in racketeering activity." 18. Whether the district court committed plain error in failing to instruct the jury on an essential element of 18 U.S.C. § 1959 C i.e., that the government has proven the existence of a RICO enterprise C and whether the prosecution adequately proved this element. 19. Whether a new trial is required because, contrary to 18 U.S.C. § 3432 and the district court's order, the prosecution improperly withheld from the defense the addresses of critical prosecution witnesses. 20. Whether a new trial is required because the prosecution improperly interfered with defense counsel's attempts to interview critical prosecution witnesses. 21. Whether the district court abused its discretion is refusing to permit defense counsel to elicit from prosecution witnesses their refusal to meet with or be interviewed by defense counsel. 22. Whether the district court abused its discretion in refusing to excuse a juror who had read a newspaper article describing efforts the defendants allegedly made while incarcerated to have prosecution witnesses killed. 23. Whether the district court erred in denying appellants' motions to dismiss the indictment on the ground that the court could not ensure their statutory "right . . . to justice without discrimination." 24. Whether, if this Court affirms defendants' CCE convictions, the Double Jeopardy Clause requires the Court to vacate their conspiracy convictions. 25. Whether the district court abused its discretion in refusing to grant defendants' motions for separate sentencing trials. 26. Whether the (n)(8) statutory aggravating factor, which applies to murders committed after "substantial planning and premeditation," is unconstitutionally vague, both on its face and as applied by the district court in this case. 27. Whether the district court committed plain error in failing to instruct the jury that under (n)(8) "substantial . . . premeditation" requires more than a finding of intentional killing. 28. Whether the government failed to adduce evidence sufficient to permit this Court, under 18 U.S.C. § 848(q)(3)(B), to affirm the jury's finding that Mr. Roane murdered Douglas Moody after "substantial planning and premeditation." 29. Whether the (n)(1) statutory aggravating circumstance is constitutional, both on its face and as applied in this case, because it improperly designates as an "aggravating" factor weighing in favor of death a finding which the Eighth Amendment requires as a prerequisite to any death sentence. 30. Whether the district court created a constitutionally unacceptable bias in favor of death by instructing the jury that it could find the existence of all four mental states specified in Section 848(n)(1) simultaneously as to every capital offense, and weigh those in favor of death. 31. Whether the district court erred in defining the term "intentionally killed", as that term is used in Section 848(n)(1), to include principles of vicarious liability, which are inapplicable in capital sentencing. 32. Whether the district court erred in refusing to define "reasonable doubt" for the jury at the sentencing phase of the trial. 33. Whether the prosecution's designation of the defendants' supposed "substantial criminal histor[ies]" as an aggravating factor, and the district court's failure to define those terms, violated the Eighth Amendment. 34. Whether the government failed to adduce evidence sufficient to permit this Court, under 21 U.S.C. § 848(q)(3)(B), to affirm the jury's finding that the defendants had "substantial criminal histor[ies]." 35. Whether Section 848 unconstitutionally delegates legislative power to the executive and increases arbitrariness in capital sentencing by vesting prosecutors with unlimited discretion to create nonstatutory aggravating factors. 36. Whether the district court's refusal to exclude evidence introduced by the prosecution at the penalty phase in support of its specified aggravating factors requires reversal when the prosecution violated both the notice provision of Section 848(j) and the district court's orders by failing to provide pretrial notice of this evidence and when the evidence was unrelated to any specified aggravating factor. 37. Whether Mr. Roane's sentence must be reversed under Section 848(q)(3)(B) because the jury failed to find, notwithstanding unrebutted evidence, that James Roane had an I.Q. of approximately 85. 38. Whether the district court erred in refusing to instruct the jury that the defendants' mental and neurological impairments could be considered only as mitigating factors. 39. Whether the prosecution's arbitrary abandonment of its avowed intention to seek the death penalty against the defendants' "partner," after the defendants were sentenced, requires resentencing.
STANDARD OF REVIEW Mr. Roane's claims concerning the following are reviewed for plain error: (1) the exclusion of appellants from voir dire; (2) the government's discriminatory use of peremptory strikes; (3) the court's failure to instruct on the elements of a CCE; (4) the court's failure to provide a specific unanimity instruction on the elements of a CCE; (5) the district court's amendment of the indictment through its jury instruction regarding proof of a continuing criminal enterprise; (6) the district court's failure to instruct the jury on the elements of 21 U.S.C. § 848(a); and (7) the district court's failure to instruct the jury on the elements of 18 U.S.C. § 1959; (8) the district court's failure to instruct the jury that Mr. Roane's mental impairments could be considered as mitigating factors only, and not as aggravating factors; and (9) the district court's failure to instruct the jury that under § 848(n)(8), "substantial planning and premeditation" requires more than a finding of intentional killing. The following claims are reviewed for abuse of discretion: (1) the district court's denial of appellants' motion to depose government witnesses; (2) challenges to the district court's conduct of voir dire questioning; (3) the district court's failure to sever the defendants' trials and penalty phase hearings; (4) the district court's denial of James Roane's motion for a bill of particulars with regard to the identities of the "other persons" he allegedly organized or supervised; (5) the district court's denial of the motion to excuse juror Edward Cook; (6) Mr. Roane's remaining challenges to the district court's failure to give tendered jury instructions; (7) challenges to the district court's evidentiary rulings; and (8) the district court's denial of appellant's motion for a new trial. Mr. Roane's challenges to the sufficiency of the evidence at the guilt phase are subject to the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 319 (1979) (verdict upheld if construing the evidence most favorably to the verdict, a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt). The death penalty statute, 21 U.S.C. § 848(q) requires this Court to make an independent determination, "consider[ing] the record, the evidence submitted during the trial, the information submitted during the sentencing hearing, the procedures employed in the sentencing hearing, and the special findings returned under this section," that the evidence supports the jury's finding of each aggravating factor and its failure to find any mitigating factor.3 This independent review applies to Mr. Roane's challenges to the jury's finding that the murder to Douglas Moody was committed after "substantial planning and premeditation," and to the jurors' failure to find as a mitigating factor that his I.Q. is approximately 85. Section 848(q) also requires this Court to make a determination that Mr. Roane's death sentence "was not imposed under the influence of passion, prejudice or any other arbitrary factor". Mr. Roane's remaining claims are subject to de novo review.
STATEMENT OF THE CASE On February 3, 1993 James Roane was convicted on fifteen counts of a 33-count indictment alleging a series of offenses relating to a crack cocaine conspiracy. The prosecution alleged that Mr. Roane, along with co-defendants Richard Tipton and Corey Johnson, directed a cocaine enterprise that was responsible for the importation, distribution, and sale of crack cocaine in Richmond, Virginia.4 The prosecution further charged that varying combinations of defendants committed a total of nine murders in furtherance of their drug-related activities. Mr. Roane was charged with and convicted of three of these murders; the government sought imposition of the death penalty for all three.5 The jury recommended that Mr. Roane be sentenced to death for the killing of Douglas Moody (DE 518). The district court sentenced Mr. Roane to death for the Moody murder, to concurrent life terms for the other two CCE murders, and to an additional term of life plus sixty-five years on the remaining counts (DE 594). The district court stated, however, that the sentence of death could not be carried out unless and until Congress specified a means of execution (Tr. 6/2/93 at 4-6). Mr. Roane is incarcerated.
STATEMENT OF FACTS This appeal represents only the second time a defendant has been sentenced to death under the federal death penalty, 21 U.S.C. § 848(e).6 It is the first such appeal in this Circuit, and it is the first appeal in any circuit from a trial in which multiple defendants have been sentenced to death. The case therefore presents several questions of first impression regarding the constitutionality of the federal death penalty, both on its face and as applied in this case, the interpretation of the new statute, and the procedures directed by the district court in this novel proceeding.
The Statutory Scheme The Anti-Drug Abuse Act of 1988, 21 U.S.C. § 848 et. seq., authorizes imposition of the death penalty for the crime of intentionally killing another person while engaged in or working in furtherance of a continuing criminal enterprise. The Act sets forth procedures that must be followed before a defendant can be sentenced to death. If the government intends to seek the death penalty, it must serve notice to that effect upon the defendant "a reasonable time before trial". Id. § 848(h)(1). The government must also give the defendant notice of any statutory or nonstatutory aggravating factors it intends to prove in support of the death penalty. If a defendant is found guilty of an offense under section 848(e)(1), a sentencing hearing must be conducted, usually before the same jury that determined the defendant's guilt. Id. § 848(i). At the capital sentencing hearing, the government must establish beyond a reasonable doubt and to the unanimous satisfaction of the sentencer at least two of the aggravating factors set forth at in section 848(n). One of these aggravating factors must be from among the four listed in section 848(n)(1); these factors are simply the four different mental states that qualify a defendant for the death sentence. The other factor must be from among those listed in section 848(n)(2)-(12). In addition, provided adequate notice is given, the statute permits the government to introduce any other information about the defendant or his crime and characterize it as an aggravating factor. Id. § 848(h). If the jury finds at least two statutory aggravating factors, it must then consider any statutory and nonstatutory mitigating factors submitted by the defendant. Id. § 848(m). A finding of a mitigating factor need not be unanimous, and mitigating factors need be established only by a preponderance of the evidence. Id. § 848(j),(k). The jury must next consider whether the statutory aggravating factors, and any nonstatutory aggravating factors the government has proven, sufficiently outweigh any mitigating factors or, in the absence of any mitigating factors, whether the aggravating factors are themselves sufficient to justify a sentence of death. Id. § 848(k). Even if the jury concludes that the aggravating factors outweigh the mitigating factors, it is never required to impose a death sentence. Id. Although the statute labels a jury's conclusion that the death penalty should be imposed a "recommendation," the jury's conclusion is in fact dispositive; the trial judge must sentence the defendant to death if the jury so recommends. Id. § 848(l). The statute also provides that a defendant has a right to justice without discrimination, and each juror must attest that neither the defendant's nor the victim's "race, color, religious beliefs, national origin, or sex" played any role in his or her sentencing recommendation. Id. § 848(o).
The Indictment Mr. Roane was initially indicted on April 24, 1992, with superseding indictments filed on May 18, 1992, and July 20, 1992. The grand jury alleged that Mr. Roane, along with co-defendants Richard Tipton and Corey Johnson, were members of a conspiracy to possess with intent to distribute, and to distribute, a controlled substance (Count One). The indictment further charged that the appellants engaged in a "Continuing Criminal Enterprise" responsible for distributing and selling crack cocaine in Richmond, Virginia (Count Two). Nine of the remaining counts charged one or more appellants with intentionally killing individuals "while engaged in and working in furtherance of" a criminal enterprise; six counts charged one or more appellants with using a firearm in relation to a crime of violence or a drug trafficking crime; thirteen counts charged one or more appellants with committing violent crimes in aid of racketeering; and the remaining three counts charged various offenses relating to drug distribution. On May 1, 1992, the prosecution filed a notice of its intention to seek the death penalty against Mr. Roane for the three capital counts with which he was charged (DE 24). The notice stated that the prosecution would rely on all four mental states listed in Section 848(n)(1) as aggravating factors. The other statutory aggravating factors cited were that in the commission of the offense, Mr. Roane knowingly created a great risk of death to one or more individuals other than the victim of the offense (§ 848(n)(5)) and that he committed the offense after substantial planning and premeditation (§ 848(n)(8)). The notice also stated that the prosecution would attempt to prove the following nonstatutory aggravating factors: that Mr. Roane committed multiple murders; that he had a substantial criminal history; that he recruited a minor to participate in the murders; that he seriously wounded an individual in the course of committing his offenses; and that he was a member of a conspiracy which had as one of its goals murders other than for those for which he was charged.
Pretrial Proceedings and Jury Selection Mr. Roane promptly moved to sever his trial from that of his co-defendants (DE 157), and to sever defendants' penalty-phase hearings (DE 323). These motions were denied (DE 204, 389). In addition, Mr. Roane filed a motion objecting to the government's attempt to use simultaneously all four (n)(1) aggravating factors, and asked that the government be compelled to elect among the factors (DE 206). This motion was also denied (DE 338), as was Mr. Roane's motion to dismiss the death penalty as a potential punishment on the ground that the district court could not guarantee the defendants justice without discrimination as mandated by the statute (DE 227, 388). Several months prior to trial, pursuant to 18 U.S.C. § 3432, the defendants moved for production of a list of the names and addresses of the government's witnesses, and for in camera production and deposition of any such witnesses who might be in the Witness Protection Program. The court denied the motion for depositions, but ordered the government to produce a list of names and addresses no later than ten days prior to trial (DE 204). Eleven days before trial, the government produced a list containing the names of 99 witnesses. On the first day of trial, in violation of § 3432 and the district court's order, the government produced another witness list, with 21 additional names. Fewer than half the listed witnesses testified at trial. Although 18 U.S.C. § 3432 requires capital defendants to be provided with witnesses' addresses, both of the government's lists withheld the addresses of 18 witnesses, 17 of whom ultimately testified, proving to be the government's critical witnesses. The witnesses whose addresses were withheld were identified either as participants in the Witness Protection Program, "In Protection," or in "Protective Custody." On the strength of the government's representations regarding the Witness Protection Program, the district court denied defendants' motion to compel disclosure of the addresses, and stated that it would "make arrangements for defense counsel to meet with such witnesses before they testify" (DE 397). Later, defense counsel's efforts to conduct courthouse interviews of government witnesses during trial were impaired by the prosecution's presence. Voir dire began on January 11, 1993. Because of the procedures employed by the district court in conducting the voir dire, the defendants were unable to observe the potential jurors or to hear any of the answers given by them during voir dire. Although the defendants were never advised of their right to be present or asked if they waived this right, they were also excluded entirely from that portion of the voir dire concerning the jurors' attitudes toward the death penalty and any racial prejudices. The district court also refused to ask any of the proposed questions submitted by the defendants concerning the jurors' racial attitudes; instead, the judge asked each juror only the conclusory question whether they harbored any racial prejudices (Tr. 168-75). In questioning potential jurors about their attitudes toward the death penalty, the district judge manifested an effort to retain jurors who favored capital punishment and to disqualify veniremembers who expressed qualms. The court also severely circumscribed the efforts of defendants' counsel to conduct voir dire on matters related to the aggravating and mitigation factors at issue in the case.
The Guilt Phase of the Trial Following three days of voir dire, the jury was impaneled and the parties delivered opening statements. The government presented evidence of three separate and distinct drug conspiracies. It began its presentation of evidence with witnesses who testified about the 1989-91 activities of the "New York Boyz" C a group in Trenton, New Jersey, that included Mr. Tipton and Mr. Johnson, but not Mr. Roane. These witnesses testified in graphic detail about various acts of violence committed in Trenton by the New York Boyz; for example, one drug dealer testified that Mr. Tipton and Mr. Johnson attacked him with razor blades. They also testified that the New York Boyz operation was shut down in June 1991. The second conspiracy revealed at trial involved a group of cocaine dealers in the Central Gardens neighborhood of Henrico County, outside of Richmond. The evidence suggested that while Mr. Tipton was involved with the New York Boyz in Trenton, he independently began to supply drugs in Central Gardens. The Central Gardens group dealt there exclusively, and engaged in no drug-related violence. The third conspiracy involved the "Newtown Gang," which was the focus of the indictment in this case. Of the three conspiracies, there was evidence of Mr. Roane's involvement only in the Newtown group. Mr. Roane never lived or worked in New Jersey and was not even acquainted with his co-defendants at the time of their activities there. Nor was there evidence that Mr. Roane had any connection to the Central Gardens conspiracy. Nevertheless, the district court refused to instruct the jury that evidence of the New Jersey matters could not be considered against Mr. Roane. It also refused a proffered instruction which would have permitted the jury to decide whether the government had proved the single conspiracy alleged in the indictment, or multiple conspiracies. The government sought to prove that the defendants had engaged in a "continuing criminal enterprise," in violation of 21 U.S.C. § 848. However, it failed to charge that Mr. Roane committed the requisite number of narcotics violations needed to prove such an enterprise. Moreover, it failed to prove that Mr. Roane "organized," "supervised" or "managed" five or more other persons in Newtown, as required by the statute. The prosecution also presented evidence about its allegations that, between them, the defendants had committed a total of ten murders while engaged in drug activities. The first murder allegedly committed by Mr. Roane for which the government sought the death penalty was that of Douglas Moody, who was shot and stabbed on the evening of January 13, 1992. Mr. Moody had been purchasing drugs from Corey Johnson (Tr. 1700-01), and one witness testified she had overheard Mr. Tipton saying that Moody had come after him with a gun on the night he was killed (Tr. 1701-02). Mr. Roane was also charged with the murder of Peyton Maurice Johnson, a distributor of crack cocaine (Tr. 2119) who was shot on the evening of January 14 as he sat on a couch inside a "nip joint". There was no allegation that Mr. Roane actually shot Mr. Johnson or even that he was present during the shooting; instead, the evidence showed only that Mr. Roane had stopped by the nip joint to inquire whether it was open a few minutes before two other men entered the room and shot the victim (Tr. 2111-13). The prosecution theorized that Mr. Roane had been acting as a lookout to ascertain that Mr. Johnson was indeed present (Tr. 803). Finally, Mr. Roane was also charged with the murder of Louis Johnson, a bodyguard for a drug dealer (Tr. 2168, 2336-37), who was allegedly shot by a group of men on the evening of January 29.7 In his defense Mr. Roane presented the testimony of, among others, an eyewitness who supported his claim that he was not the individual that stabbed Douglas Moody (Tr. 2900-12). Ms. Gina Taylor, a nursing student who lived in the area where Mr. Moody was killed, testified that she saw an individual leaning over Mr. Moody and stabbing him. She stated that although she had been unable to see the face of the individual stabbing Mr. Moody, she was able to ascertain that the assailant was short and thin. In particular, she stated that James Roane was not the individual stabbing Mr. Moody. The jury returned a guilty verdict on all counts of the indictment against Mr. Roane, including the capital counts.
The Penalty Phase of Appellant's Trial On the first day of the penalty phase, the prosecution offered testimony from four witnesses, whose testimony concerned threats against potential trial witnesses allegedly made by the defendants while in prison. Three of the four witnesses offered no testimony whatsoever about James Roane. Near the conclusion of the government's case, the defendants moved for a mistrial based on the prosecution's opening statement, in which the prosecution, ignoring repeated admonitions by the trial court, had persistently sought to lump all three defendants together by referring to them en masse as "they" or "these people." The motion was denied (Tr. 3376-78). After the prosecution rested, the court dismissed the aggravating factor that Mr. Roane had recruited a minor to participate in the murders (Tr. 3411). The court denied Mr. Roane's motion to dismiss the substantial planning and premeditation aggravating factor on the ground that the terms were so vague and nebulous that they left the jury with unfettered discretion in deciding whether to impose the death penalty (Tr. 3403-04, 3411). Each defendant then took a full day to present his case in mitigation. Mr. Roane, who was the last defendant to put on his case, presented extensive evidence that he suffered from serious neurological and psychological problems, including organic brain syndrome and attention deficit disorder, from at least the age of six. He also presented evidence that he had been subjected to emotional and sexual abuse as a child and had grown up in an impoverished and violent environment. Witnesses also testified that Mr. Roane had adapted well in the past to structured environments.
Verdicts and Sentencing After deliberating for four days, the jury recommended that Mr. Roane be sentenced to death for the murder of Douglas Moody (DE 518), but not for the murders of Peyton Maurice Johnson and Louis Johnson (DE 519-20). The jury concluded that the prosecution had established all four (n)(1) aggravating factors (that Mr. Roane intended to kill Douglas Moody, intentionally inflicted serious bodily injury upon him, intentionally engaged in conduct intending that he be killed, and intentionally engaged in conduct which he knew created a grave risk of death) and the (n)(8) aggravating factor (that Mr. Roane killed Moody after substantial planning and premeditation). The jury also found that the prosecution had established three nonstatutory aggravating factors: that Mr. Roane had committed multiple murders, that he had a substantial criminal history, and that he was knowingly and willfully a member of a conspiracy that had as one of its goals the murder of individuals other than those for which Mr. Roane was charged. The jurors unanimously found that Mr. Roane had established two statutory mitigating factors: that an equally culpable defendant would not be punished by death and that the victim had consented to the criminal conduct which resulted in his death. A varying number of jurors found that Mr. Roane had established seven different nonstatutory mitigating factors (DE 517).8 The defendants subsequently filed motions for a new sentencing hearing because of improper weighing of aggravating circumstances (DE 572) and because of the government's post-trial decision to abandon its effort to obtain the death penalty against Lance Thomas. They also moved to bar imposition of the death penalty because of the absence of a congressionally authorized method of execution (D 573). The district court denied the motions (DE 585), but stated at the sentencing hearing that the death sentences could not be implemented unless and until Congress specified a method of execution. The court specifically found that regulations promulgated by the Attorney General setting forth a method for federal executions were "ultra vires and with no legal force or effect."
SUMMARY OF ARGUMENT "Great cases, like hard cases, make bad law." Northern Securities Co. v. United States, 193 U.S. 197, 400-01 (1904) (Holmes, J., dissenting). The defendants' trial C the first federal capital trial of multiple defendants in the modern era, and a trial replete with complex issues, gruesome evidence, and enormous public attention C was both "great" and "hard," and it precipitated bad law on a number of issues. As a result, the defendants C and particularly James Roane C are entitled to reversal and a new trial. This brief, which addresses all issues common to two or more appellants, as well as issues unique to Mr. Roane, is divided into three parts.9 Part One addresses errors in connection with the jury selection process. Part Two discusses the errors relating to the guilt-innocence phase of the bifurcated trial. Part Three sets forth the reasons why each of the appellants, but particularly Mr. Roane, is entitled to a new sentencing proceeding.
Voir Dire. During the jury selection process, the district court erred in five respects, each of which mandates a new trial for all three appellants. First, the court improperly conducted the entire voir dire outside the presence of any of the defendants. In this Circuit, the defendant's presence can never be waived in a capital case, and in any event, none of the defendants in this case knowingly and voluntarily waived his constitutional right to participate in this critical stage of the trial. Second, the court improperly excluded venire members who, although they expressed reservations about the death penalty, did not state unequivocally that they were "irrevocably committed" to vote against the death penalty or that their views would "prevent or substantially impair" their abilities to follow the court's instructions or honor their oaths. Third, the district court improperly treated venirepersons differently, depending upon the views they expressed toward capital punishment C using leading questions which had the systematic effect of qualifying jurors who were inclined toward the death penalty and disqualifying jurors who were inclined against it. Fourth, the court improperly circumscribed voir dire on issues relating to potential racial prejudice within the jury venire, limiting voir dire on this subject to a single conclusory question that was completely ineffective in revealing any information at all on this issue of particular concern under the federal statute, see 21 U.S.C. § 848(o). Fifth, the court similarly erred in refusing to conduct or permit voir dire on issues relating to the specific mitigating and aggravating circumstances with which the jury would be confronted C preventing defense counsel and the court from learning which members of the venire would be unable to consider in mitigation evidence that the statute requires be considered as such. Finally, there is substantial statistical evidence that the prosecution exercised its peremptory strikes so as to deliberately exclude women from the jury.
The Guilt-Phase Trial. Several errors at Mr. Roane's trial require reversal. First, in addition to evidence concerning the Newtown conspiracy detailed in the indictment, the prosecution introduced extensive testimony about criminal activities in Trenton, New Jersey, and Central Gardens C activities in which Mr. Roane was not remotely involved. Notwithstanding this, the district court denied Mr. Roane's motion for a trial severance, his motion in limine to exclude the New Jersey evidence, and his request for an instruction advising the jury that this evidence should not be considered against Mr. Roane. The court also improperly refused to instruct the jury that, notwithstanding the indictment, it could find that not one but three conspiracies were proven, only one of which included Mr. Roane. Second, the defendants' convictions under the "Continuing Criminal Enterprise" ("CCE") counts must be reversed for several reasons. The prosecution violated Mr. Roane's constitutional rights to notice by refusing, in the indictment or elsewhere, to specify which constituent offenses or which "five other persons" it was relying on with respect to the charge against Mr. Roane. The district court filed properly to instruct on the essential elements of the CCE offense, and it erroneously instructed the jury that it could consider murders allegedly committed "in furtherance of" the CCE in determining whether a CCE existed in the first place. In addition, the prosecution failed to advise the jury of the need for unanimity as to which constituent narcotics offenses Mr. Roane committed and which five or more persons he managed or supervised. Finally, the government simply failed to prove either that Mr. Roane had engaged in a continuing series of narcotics offenses or that he had supervised five or more persons. Third, the court improperly refused to instruct the jury that in order to convict Mr. Roane of capital murder, it was required to find that a nexus existed between the murders and the CCE. In any event, there was insufficient evidence of any such nexus. Fourth, Mr. Roane's convictions on Counts 14 through 16 must be reversed because the prosecution failed to prove that the attacks alleged in those counts were committed while "engaged in racketeering activity", as required by 18 U.S.C. § 1959. In addition, the court failed to instruct the jury that in order to convict under 18 U.S.C. § 1959, the government must prove the existence of a RICO enterprise with an existence independent of the illegal acts comprising CCE; and in fact the government's evidence plainly did not prove the existence of such an independent enterprise. Fifth, a new trial is required for all three appellants because the district court improperly permitted the government to interfere with the defendants' access to and impeachment of the government's principal witnesses. Contrary to the district court's order and 18 U.S.C. § 3432, the prosecution improperly withheld from the defense the addresses, and in some cases even the names, of its most critical witnesses. It then improperly interfered with defense counsel's attempts to interview these witnesses in the courthouse before they testified. When these witnesses testified, the court improperly refused to permit counsel to elicit the fact that, although many had met repeatedly with the prosecution, they had refused to be interviewed by defense counsel. Particularly under the circumstances, it was error to refuse to permit cross-examination on this prototypical form of bias. Sixth, the district court erred in refusing to excuse a juror who had read a newspaper article describing efforts the defendants allegedly made while incarcerated to have prosecution witnesses killed. Seventh, the court also erred in denying the defendants' motions to dismiss the indictment because of the court's inability to ensure their statutory "right . . . to justice without discrimination." Finally, to avoid violating defendants' rights under the double jeopardy clause, if this Court affirms defendants' convictions under Count Two (alleging a CCE), it must vacate their convictions under Count One (alleging a conspiracy) because the latter merged with the former.
The Penalty Phase Trial. There are nine independent reasons why Mr. Roane is entitled, at a minimum, to a new sentencing trial; many of these reasons apply to his codefendants as well. Some relate to errors by the district court or misconduct by the prosecutor; others stem from constitutional deficiencies in the death penalty statute itself. First, the court erred in compelling the defendants to participate in a joint sentencing trial, a procedure virtually without precedent that flew in the face of the fundamental constitutional requirement of individualized consideration in capital sentencing. In addition, use of both the (n)(8) and (n)(1) statutory aggravating factors C the only factors alleged against Mr. Roane C violated the Eighth Amendment. The (n)(8) factor, which applies to murders committed "after substantial planning and premeditation," is unconstitutionally vague, and the trial court's instructions did nothing to cure this deficiency. In addition, the court failed to instruct the jury that under (n)(8) "substantial . . . premeditation" requires more than a finding of intentional killing. Moreover, however these terms are defined, the evidence did not support a finding that the murder of Douglas Moody was committed after "substantial planning and meditation." Therefore, under the special appellate review provision of 18 U.S.C.' § 848(q), this Court must vacate Mr. Roane's sentence of death for this offense. The (n)(1) aggravating factor is unconstitutional both on its face and as applied in this case. It is facially unconstitutional because it improperly designates as an "aggravating" factor weighing in favor of death what is, in fact, merely the threshold finding necessary under the Eighth Amendment to sentence any defendant to death. Moreover, in this case, the court not only permitted but encouraged the jury to find that not one but all four subparts of (n)(1) applied to each offense, thereby creating an constitutionally unacceptable bias in favor of the death penalty. Finally, in instructing the jury on the meaning of "intentionally killed" under (n)(1), the court improperly imported notions of vicarious liability which have no place in capital sentencing. Section 848 is also unconstitutional because, by vesting prosecutors with unlimited discretion to create and charge nonstatutory aggravating factors, it delegates legislative power to the Executive and increases arbitrariness in capital sentencing. Resentencing is also required because the prosecution's designation of the defendants' alleged "substantial criminal histor[ies]" as an aggravating factor violated the Eighth Amendment. The term "substantial criminal history" was never defined, and without definition it was unconstitutionally vague C permitting the prosecution to argue, and the jury to find, the factor established even in the virtual absence of any prior convictions. Resentencing is thus also required under § 848(q) because there was insufficient evidence to support the jury's finding. Defendants' sentences must also be reversed because the prosecutor improperly prevented them from establishing the existence of the (m)(8) mitigating factor C "that another defendant equally culpable in the crime, will not be punished by death." Lance Thomas, who was at least as culpable as any of the defendants, was arbitrarily released from the government's death notice immediately following C but only following C the jury's return of sentencing verdicts against the defendants. Finally, the court erred in refusing to instruct the jury as to the meaning of "reasonable doubt" at the sentencing phase. While this Circuit does not require that these terms be defined for a jury adjudicating guilt or innocence, special considerations applicable to capital sentencing require that the jury be instructed as to the meaning of those terms before conducting the required weighing of aggravating and mitigating factors.
ARGUMENT Errors During the Voir Dire Portion of Appellants' Trial I. Exclusion of the Defendants from the Entire Voir Dire Constituted Plain Error. I. Exclusion of the Defendants from the Entire Voir Dire Constituted Plain Error. The district court conducted the voir dire in two stages. In the first stage, the court asked the entire panel a series of preliminary questions, such as whether any venireperson was familiar with the case or whether any member of the venire had ever been the victim of a crime. See, e.g., Tr. at 37-41. If a member of the venire answered yes to one of these questions, that juror was instructed to approach the bench, where he was questioned on these preliminary matters C out of the hearing of the defendants and the rest of the venire C by the judge and counsel. After twelve members of the venire had been questioned in this fashion, Mr. Roane's counsel reminded the court that under Rogers v. United States, 853 F.2d 249 (4th Cir. 1988),10 the court needed to secure from the defendants a waiver of their right to be present during voir dire (Tr. 53). After summarily conferring with his client, each defense counsel stated that his client waived his right of presence. Id. Following this initial stage of voir dire, the trial judge moved the proceedings to his chambers where, over the course of 3 days, he questioned each potential juror about his or her feelings toward the death penalty and racial prejudices. See, e.g., Tr. at 175-77. Although counsel for the prosecution and defense were present, the defendants were not. They were sent back to the courthouse lock-up, where their attorneys were inaccessible to them (Tr. 174-75). No effort was made to secure from defendants a waiver of their right to be present during this second, critical stage of voir dire.11 As a result of their exclusion from the entirety of this two-stage process, the defendants were unable to observe potential jurors or to hear them answer any of the questions posed during voir dire. Because trial counsel failed to object to the complete exclusion of the defendants from the voir dire process, this Court reviews the exclusion for plain error. Fed. R. Crim. P. 52(b). The Supreme Court recently clarified the standard for plain error review in United States v. Olano, 113 S. Ct. 1770 (1993). In order for the appellate court to correct an error not noticed in the district court, the error must be plain, and it must affect substantial rights. Id. at 1777-78. If these requirements are satisfied, the decision whether to correct the error is left to the "sound discretion" of the court of appeals, which must consider whether the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. at 1779 (citing United States v. Atkinson, 297 U.S. 157 (1936)). Excluding the defendants from the entirety of the voir dire process constituted plain error because a defendant has a well-established right to be present at all stages of his trial, including the impaneling of the jury. United States v. Camacho, 955 F.2d 950, 952 (4th Cir. 1992). While the right of presence is largely rooted in the Confrontation Clause, Illinois v. Allen, 397 U.S. 337 (1970), it is also "protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him." United States v. Gagnon, 470 U.S. 522, 526 (1985) (per curiam). "An accused 'has a [constitutional] right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings.'" Camacho, 955 F.2d at 952-53 (quoting Faretta v. California, 422 U.S. 806, 819 n. 15 (1975)). As this Circuit has recognized, the impaneling of the jury is a stage of the trial in which the defendant's absence frustrates the fairness of the proceedings, because the defendant is unable to give suggestions to his attorney concerning potential jurors or effectively exercise his peremptory challenges. Id. United States v. Gordon, 829 F.2d 119, 123-24 (D.C. Cir. 1987); see also Diaz v. United States, 223 U.S. 442, 455 (1912). In addition, "Federal Rule of Criminal Procedure 43(a) gives a defendant an explicit right to be present `at every stage of the trial including the impaneling of the jury.'" Camacho, 955 F.2d at 953. "Rule 43 has traditionally been understood to codify both a defendant's constitutional right and his common law right to presence." Id. Its protective scope is therefore broader than the constitutional right alone. Id.; United States v. Alessandrello, 637 F.2d 131, 138 (3d Cir. 1980). The proceedings in the district court thus clearly deviated from the well-established legal rule, founded both in the Constitution and the Federal Rules of Criminal Procedure, that requires a defendant's presence at all stages of his trial where his absence might affect the fairness of the proceedings. In this Circuit, a capital defendant cannot waive his right to be present at his trial. Near v. Cunningham, 313 F.2d 929, 931 (4th Cir. 1963) (right to presence in capital trial so fundamental it cannot be waived); see also Diaz v. United States, 223 U.S. 442, 455 (1912) ("one who is charged with a capital offense [is] incapable of waiving the right" to presence) (dictum); United States v. Gregorio, 497 F.2d 1253, 1257 n.2 (4th Cir. 1974) (same).12 Because this Court considers the right of presence in a capital case so fundamental that it may not be waived, any purported waiver by the defendants of their constitutional rights is void. Even if this Circuit did permit a capital defendant to waive his right to presence at voir dire, in this case there was no "'intentional relinquishment or abandonment of a known right.'" Olano, 113 S. Ct. at 1777 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). It is one thing to conclude that a defendant who engages in affirmative misconduct in the courtroom or who voluntarily fails to attend may forfeit his right to presence. It is quite another to conclude that a defendant who is both available and well-behaved in the courtroom may be excluded from a critical portion of his trial without any personal and on-the-record indication that he is waiving his right in an informed, knowing and voluntary manner. The waiver of rights inherent in a guilty plea requires personal inquiry by the court, on the record. Fed R. Crim. P. 11(c). For the same reasons, i.e., importance of the rights waived, the need for an informed and voluntary waiver, and the need for a record of the waiver in the event of later challenge, courts have held that the waiver of the right to counsel should be accompanied by similar procedures. Strozier v. Newsome, 926 F.2d 1100, 1104 (11th Cir. 1991); United States v. Garcia, 517 F.2d 272, 277-78 (5th Cir. 1972). In United States v. Gordon, 829 F.2d 119, 125 (D.C. Cir. 1987), the District of Columbia Circuit held that a defendant had not effectively waived his right to be present during the impaneling of the jury because "the court should have held an on-the-record hearing to advise Gordon of his right to be present at voir dire and obtained a personal waiver in open court" (emphasis added). See also Larson v. Tansy, 911 F.2d 392, 396 (10th Cir. 1990) ("[n]ormally the court obtains a waiver of a defendant's presence at trial from the defendant personally, in open court, and on the record").13 In Campbell v. Wood, No. 89-35210, 1994 U.S. App. LEXIS 1964 (9th Cir., Feb. 8, 1994), in which the en banc Ninth Circuit concluded that a capital defendant validly waived his right to presence, the trial judge had: (a) held a hearing about the defendant's personal, written request not to attend the voir dire; (b) engaged in an extended colloquy with the defendant himself about his right of presence; and (c) secured a written waiver from the defendant. In this case, not only did the district court fail to secure a personal waiver from the defendants regarding the portion of the voir dire conducted at the bench, but the record reflects that the defendants were not even asked if they consented to the conduct of the most critical portion of the voir dire in the judge's chambers while the defendants were removed to the lock-up where they had no opportunity to consult with their attorneys. The attempted partial "waiver" by defense counsel was plainly insufficient to waive the defendants' constitutional rights.14 As demonstrated above, the error in this case was clear under current law: defendants had a well-established right to be present at all stages of the voir dire process, and the purported waiver here, even if presence could be waived, was insufficient. Thus the error was "plain". Moreover, the error plainly affected the defendants' "substantial rights." The complete exclusion of a defendant from the entirety of the voir dire is an error so fundamental that it may be presumed prejudicial even in the absence of a specific showing. See Olano, 113 S. Ct. at 1778. "[T]he defendant's presence [at voir dire] is fundamental to the basic legitimacy of the criminal process." United States v. Washington, 705 F.2d 489, 497 (D.C. Cir. 1983). This Court has recently acknowledged that a defendant's right to presence during voir dire is so important that "[n]o case, so far as we are aware, has held that a defendant's absence from the entire jury selection process constituted harmless error." Camacho, 955 F.2d at 956; see also Gordon, 829 F.2d at 127 (same). The defendants' exclusion `seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings." Olano, 113 S. Ct. at 1779 (citing United States v. Atkinson, 297 U.S. 157, 160 (1936)). As noted above, this Court repeatedly has recognized that presence is critical to ensuring the fundamental fairness of a criminal trial -- particularly a capital trial. A defendant who is excluded from voir dire is unable to offer suggestions to his lawyers or to effectively exercise his peremptory challenges. Camacho, 955 F.2d at 953. In addition, the jurors may have drawn negative inferences about the defendants by virtue of their absence from the voir dire process. Id. at 957; United States v. Alikpo, 944 F.2d 206, 210-11 (5th Cir. 1991). For example, the jurors may have concluded that the defendants were excluded because they were dangerous or likely to retaliate against jurors. Because the presence of the defendants was basic to ensuring the fundamental fairness of the proceedings against them, the plain error in their exclusion from the courtroom in the absence of an effective waiver justifies reversal. Even if defendants were required to demonstrate prejudice, that prejudice was patent in this case. Concurrent with the filing of this brief, appellant Roane has filed a motion to supplement the record with declarations of Mr. Roane and his trial counsel which demonstrate, inter alia:
These declarations manifest both the absence of anything remotely approaching a valid waiver and the prejudice suffered by Mr. Roane as a result of his exclusion.15
II. II. The Trial Court Erred in Excluding from
the Jury Prospective Jurors
Who Expressed Reservations about the Death Penalty. The Trial Court Erred in Excluding from
the Jury Prospective Jurors In Witherspoon v. Illinois, 391 U.S. 510 (1968), the Supreme Court held that a trial court infringes a capital defendant's right under the Sixth Amendment when it excuses for cause members of the venire who express conscientious objections to capital punishment. A prospective juror may be excluded for cause from a capital jury only upon a showing that he or she is "irrevocably committed to . . . to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings," id. at 522 n.21, or that his or her views "would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath,'" Wainwright v. Witt, 469 U.S. 412, 424 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)). Jurors may not be excluded simply because they express some disagreement with the death penalty. Gray v. Mississippi, 481 U.S. 648, 658 (1987) (citing Lockhart v. McCree, 476 U.S. 162 (1986)). During voir dire in appellants' trial, the district court excluded three prospective jurors in the absence of the showing required under Witherspoon and Witt. The defendants were thus improperly convicted and sentenced to death by "a jury uncommonly willing to condemn a man to die." Witherspoon, 391 U.S. at 521. This error cannot be deemed harmless. Gray, 481 U.S. at 648, 668.
A. Pamela Ellis During voir dire, prospective juror Pamela Ellis denied having strong feelings for or against the death penalty, but responded, "I don't know" when asked whether she could listen to the court's instructions and the evidence "and then make an objective and reasoned, fair decision about whether or not the death penalty should be imposed" (Tr. 521-22). When asked the basis for this response, Ms. Ellis stated, "I'm not sure at this time if I could give the death penalty" (Tr. 522-23). The prosecutor, Howard ("Toby") Vick, then asked Ms. Ellis whether her personal opinion could "substantially impair [her] service as a juror," and Ms. Ellis stated, "It might" (Tr. 523). The following colloquy then occurred between Ms. Ellis and David Baugh, counsel for James Roane (Tr. 523-24):
A: No. Mr. Vick then stated, "[y]ou have told me that you think your personal opinions might impair your functioning as a juror." Ms. Ellis explained her earlier answer to Mr. Vick (Tr. 524-25):
Despite the responses Ms. Ellis provided Mr. Baugh, and her clarification of any apparent inconsistency between those responses and the response she had earlier given Mr. Vick, the trial court excused Ms. Ellis without any motion by the prosecution. The following exchange occurred between the trial judge and defense counsel (Tr. 525-26):
Ms. Ellis' voir dire had revealed her to be competent to serve, and the trial court erred in dismissing her. Although she indicated initially that she was "not sure at this time" whether she could impose the penalty, she then stated unambiguously that she "could consider imposition of the death penalty in an appropriate case." Turner v. Bass, 753 F.2d 342, 346-47 (4th Cir. 1985), rev'd on other grounds, 476 U.S. 28 (1986). Even a venireperson who initially provides a response that would clearly disqualify her under the Witherspoon/Witt analysis should not be excused if further examination shows her to be qualified. See generally Bunch v. Thompson, 949 F.2d 1354, 1367 (4th Cir. 1991); see also Gray, 481 U.S. at 662-63 (discussing need for follow-up questioning of jurors potentially excludable for opposition to death penalty, since they "might have clarified their positions upon further questioning and revealed that their concerns about the death penalty were weaker than they originally stated"). Ambiguous responses cannot be ground for disqualification when additional questioning reveals the juror to be qualified. Nor does any apparent inconsistency between Ms. Ellis' responses to Mr. Baugh (in which she indicated that she could impose the death penalty in an appropriate case) and her initial response to Mr. Vick (in which she stated that her personal opinions "might" "substantially impair" her) permit her disqualification. After Mr. Baugh questioned Ms. Ellis, Mr. Vick asked her to explain the apparent contradiction between her responses. Ms. Ellis' response demonstrated that there was in fact no such contradiction. She clearly stated that, in agreeing that her personal opinions "might" "substantially impair [her] service as a juror," she intended to indicate only that her personal opinions might "affect how I might go," and not to indicate that those opinions would "substantially impair" her as the term "substantially impair" is defined in the case law.16 A juror who disagrees with the death penalty may not be excluded for cause merely because her personal opinion "might . . . affect how [she] might go." See Adams v. Texas, 448 U.S. at 49-50. Rather, such a juror may be excused only if her opposition to the death penalty would disable her from following her instructions and oath, or render her incapable of impartiality. Stamper v. Muncie, 944 F.2d 170, 176 (4th Cir. 1991); Turner, 753 F.2d at 346. Ms. Ellis' second response to Mr. Vick makes clear that her initial response was not intended to communicate that she was so disabled. Moreover, the record demonstrates that in excusing Ms. Ellis, the trial court acted not on the basis of its interpretation of her responses, but on the basis of an erroneous understanding of what those responses were. First, the court stated that its decision was based on Ms. Ellis' responding "No, I don't think I can do that" to the court's question whether she could listen to the evidence and instructions and "make an objective and reasoned, fair decision about whether or not the death penalty should be imposed" (Tr. 525-26). In fact, Ms. Ellis' response had been "I don't know" (Tr. 522). Second, the trial court appeared to base its decision on the apparent inconsistency between Ms. Ellis' responses to Mr. Baugh and Mr. Vick, stating "[s]he gave a right answer for Toby when he asked it, she gave a right answer for David when he asked it" (Tr. 525). In fact, as explained above, Ms. Ellis' responses were not inconsistent. Since the trial court's decision was based on an incorrect factual assumption, that decision is not entitled to the deference normally paid to "the trial judge who sees and hears the juror." Witt, 469 U.S. at 426. In Keeten v. Garrison, 742 F.2d 129, 135 (4th Cir. 1984) (emphasis added), this Court held that "[t]he trial judge was in the best position to observe [the juror] and to determine the true meaning of the words she used." Here, however, the trial court's decision was not based on an assessment of the "true meaning" of Ms. Ellis' words, but rather on a misperception of what those words were.17 In Witt, 469 U.S. at 434, the Supreme Court held that "the question is not whether a reviewing court might disagree with the trial court's findings, but whether those findings are fairly supported by the record." The basis of the court's finding here -- that Ms. Ellis stated that she "did not think" she could obey the law and her oath C is not only not "fairly supported" by the record: it is contradicted by the record. Ms. Ellis' initial statement of uncertainty as to whether she could impose the death penalty indicated only that she had some misgivings toward the penalty. Such misgivings, standing alone, are not grounds for disqualification. Even "those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law." Lockhart v. McCree, 476 U.S. 162, 176 (1986). "The fact that a juror may be opposed to the death penalty does not provide grounds to strike him for cause as long as he could consider imposition of the death penalty in an appropriate case." Turner v. Bass, 753 F.2d at 346. Ms. Ellis stated clearly and unambiguously that she could do so, and the trial court erred in excusing her.
B. Mr. Beazley In response to the trial court's question whether he could render a verdict based solely on the evidence and the law, disregarding his own views as to what the law is or ought to be, Mr. Beazley responded, "I doubt it," explaining that "[i]f I get on the jury and I have to give a death sentence, I don't think I could live with it, giving anybody the death penalty" (Tr. 231). He then told the prosecutor that he "d[id]n't believe" he could bring himself to impose the death penalty (Tr. 232). However, in response to questioning by defense counsel, Mr. Beazley clearly responded "[y]es" when asked if he could "imagine there being a crime that is so severe in your estimation you would give the death penalty" (Tr. 232). When asked if multiple murders as alleged in this case would justify the death penalty, he stated "I would think so, yes" (Tr. 232). Asked if he could impose the death penalty for "a cold-blooded murder for profit," Mr. Beazley stated, "I feel yes, but like I say, I'm just a nervous person. If I could live with it after I done it, I just wonder" (Tr. 232-33). Over defense counsel's objection, the trial court excused Mr. Beazley for cause (Tr. 233). |