Opinion
File No. 1:99-CR-76
January 25, 2002
OPINION
This Court heard oral argument on Defendant Gabrion's penalty phase motions on January 11, 2002. Several of those motions were decided on the record. Two motions were taken under advisement and will be addressed in this written opinion: Defendant's motion to allow allocution without cross-examination (Docket # 262), and Defendant's motion in limine re government's penalty phase evidence (Docket # 263).
I.
Defendant moves for an order allowing him to engage in allocution before the jury during the penalty phase of his trial without subjecting himself to cross-examination. Defendant contends he has a right to such allocution pursuant to FED. R. CRIM. P. 32(c)(3)(C), as well as the Fifth, Sixth and Eighth Amendments of the United States Constitution.
The Federal Rules of Criminal Procedure require the court before imposing sentence to "address the defendant personally and determine whether the defendant wishes to make a statement and to present any information in mitigation of the sentence." FED. R. CRIM. P. 32(c)(3)(C). Rule 32(c)(3)(C) is a codification of the common law right of allocution. United States v. Riascos-Suarez, 73 F.3d 616, 627 (6th Cir. 1996) (citing Green v. United States, 365 U.S. 301, 304 (1961)). There is no constitutional right to allocution under the United States Constitution. Pasquarille v. United States, 130 F.3d 1220, 1223 (6th Cir. 1997) (citing Hill v. United States 368 U.S. 424, 428 (1962)). The Sixth Circuit has held that a trial court's failure to follow Rule 32's mandate to allow allocution is reversible error. Riascos-Suarez, 73 F.3d at 627. "[T]rial judges should leave no room for doubt that the defendant has been issued a personal invitation to speak prior to sentencing." United States v. Chowdbury, 169 F.3d 402, 408 (6th Cir. 1999) (quoting Green, 365 U.S. at 305).
The government does not object to Defendant's request to engage in allocution, but it does object to his request to engage in allocution before the jury. The government contends that Defendant's right to allocution can be satisfied by allowing Defendant to address the Court before it announces sentence.
Federal courts are not in agreement as to how to fulfill the allocution requirements of Rule 32 in a capital case under the Federal Death Penalty Act ("FDPA"), 18 U.S.C. § 3591, et seq., where the sentence is decided by the jury rather than by the judge. Two circuit courts have held that the plain language of Rule 32(c)(3)(C) is satisfied by allowing the defendant to make a statement to the court after the jury has returned its recommendation but before sentence is imposed. See United States v. Barnette, 211 F.3d 803, 820 (4th Cir. 2000); United States v. Hall, 152 F.3d 381, 392 (5th Cir. 1998). Accord, United States v. Johnson, 136 F. Supp.2d 553, 566 (W.D. Va. 2001). The Fifth Circuit reasoned in Hall that an unconditional right to make an unsworn statement to the jury would conflict with the court's gatekeeping role under the detailed provisions of the FDPA to exercise its discretion regarding the admissibility of evidence. 152 F.3d at 393.
To the best of this Court's knowledge, no court has affirmatively held that § 3593 was intended to displace Rule 32(c)(3)(C). See United States v. Hall, 152 F.3d at 392 (declining to decide whether § 3593 was intended to displace Rule 32(c)(3)(C)).
This Court is aware of only one district court that has held that a defendant in a capital case must be allowed an opportunity to allocute before the sentencing jury. United States v. Chong, 104 F. Supp.2d 1232, 1233 1234 n. 5 (D. Hawaii 1999). The Chong court reasoned that because the judge in a capital case has no discretion concerning the appropriate sentence unless the jury recommends a sentence other than death or life imprisonment without possibility of release, 18 U.S.C. § 3594, the right to allocute before a judge in a capital case would be an "empty formality." 104 F. Supp.2d at 1234. Notably, Chong was decided in large part on Ninth Circuit precedent holding that allocution is a right guaranteed by the due process clause of the Constitution. Id. (citing Boardman v. Estelle, 957 F.2d 1523, 1530 (9th Cir. 1992)).
Although the Fourth and Fifth Circuits found no constitutional or statutory right to allocution before the jury in a capital case, those courts did not suggest that the FDPA precludes allocution before the jury. Barnette, 211 F.3d at 820; Hall, 152 F.3d at 393 n. 6.
Allocution is not an empty formality. It serves an important function. Its purpose is to provide a defendant an opportunity to address the sentencing court in his own behalf before pronouncement of sentence to demonstrate why he deserves a lesser penalty than the court would otherwise be inclined to impose. Riascos-Suarez, 73 F.3d at 627 (6th Cir. 1996). Allocution "is designed to temper punishment with mercy in appropriate cases, and to ensure that sentencing reflects individualized circumstances." Id. (quoting United States v. De Alba Pagan, 33 F.3d 125, 129 (1st Cir. 1994)). As noted in Green, neither the right of the defendant to testify on his own behalf nor the right to counsel lessens the need for the defendant, personally, to have the opportunity to present his plea in mitigation. 365 U.S. at 304. "The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself." Id.
If allocution is to serve the articulated purposes of tempering punishment with mercy and ensuring individualized sentencing, it will only be effective if it is presented to the sentencer. In a capital case this is the jury. Accordingly, without deciding whether or not a capital defendant has a right to allocution before the jury, this Court concludes that the better practice is to allow a capital defendant an opportunity to address the jury in allocution.
See 18 U.S.C. § 3594 ("Upon a recommendation under section 3593(e) that the defendant should be sentenced to death or life imprisonment without possibility of release, the court shall sentence the defendant accordingly. Otherwise, the court shall impose any lesser sentence that is authorized by law.").
In arriving at this conclusion the Court is not unmindful of the government's concerns regarding the Court's duty as the gatekeeper in the penalty phase of a capital trial to insure the integrity of the evidence that is presented to the jury. A capital defendant has the right to testify under oath and to present "any information relevant to a mitigating factor." 18 U.S.C. § 3593 (c). "The burden of establishing the existence of any mitigating factor is on the defendant, and is not satisfied unless the existence of such a factor is established by a preponderance of the information." Id. Because the FDPA provides Defendant with an opportunity to present information in mitigation and because the FDPA places the burden on Defendant to establish any such mitigating factor by a preponderance of the information, it appears to this Court that such mitigating evidence should come in under oath and subject to cross-examination. The Court would be ignoring the structure of the FDPA and forsaking its obligation as gatekeeper if it were to give a defendant unlimited license to present evidence to the jury that is neither under oath nor subject to cross-examination. Moreover, allowing such evidence would not increase the accuracy or reliability of the capital-sentencing process. Allocution accordingly will not be permitted for the presentation of evidence on controverted factual issues. A statement of apology, of remorse, or a plea for mercy, on the other hand, is not evidence. That is what allocution is about.
For all the reasons stated, the Court will grant Defendant's motion for allocution subject to the following conditions. The Court will make a determination before allocution that Defendant desires to engage in allocution and is doing so voluntarily. Allocution will be limited to a short plea for mercy or leniency or to show remorse. Allocution will not be used for the introduction of evidence. Allocution is contingent on Defendant's demonstration during the trial that he can and will follow the Court's directions. Allocution will be accompanied by an appropriate limiting instruction explaining to the jury that any statements given by Defendant are not under oath and are not subject to cross-examination. The Court strongly advises that Defendant write out his statement beforehand and discuss it with counsel.
II.
The court turns to Defendant's motion in limine regarding the government's penalty phase evidence. Because Defendant's motion was filed before Defendant received notice of the specific evidence the government intends to introduce at the penalty phase, the motion is necessarily written in general terms about anticipated evidence and tends to be more of an outline of evidentiary considerations rather than a request for specific rulings. Several of the arguments, however, do call for a response.
The Court is aware that the standards for admitting evidence during the penalty phase of a capital trial under the FDPA differ from the standards applicable to criminal trials. During the penalty phase of the trial the FDPA allows both the government and the defense wide latitude to present information, regardless of its admissibility under the rules of evidence, subject only to the requirement that its probative value not be outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury. 18 U.S.C. § 3593 (c). While the defendant may present any information that is relevant to a mitigating factor, the government may only present information that is relevant to an aggravating factor for which notice has been provided. While the nature of the evidence that can be introduced is broader than the evidence allowed in a criminal trial, the Court's discretion to exclude evidence under section 3593(c) is broader than its discretion to exclude relevant evidence under Rule 403 of the Federal Rules of Evidence. This Court is also mindful of the Supreme Court's recurrent instructions that courts exercise extra caution in death penalty cases because of the finality of the penalty. See, e.g., Ford v. Wainwright, 477 U.S. 399, 411 (1986) (plurality opinion) ("In capital proceedings generally, this Court has demanded that factfinding procedures aspire to a heightened standard of reliability. . . . This especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties . . . ."); Lockett v. Ohio, 438 U.S. 586, 604 (1978) ("We are satisfied that this qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed.").
The FDPA provides in pertinent part:
At the sentencing hearing, information may be presented as to any matter relevant to the sentence, including any mitigating or aggravating factor permitted or required to be considered under section 3592 . . . . The defendant may present any information relevant to a mitigating factor. The government may present any information relevant to an aggravating factor for which notice has been provided . . . . Information is admissible regardless of its admissibility under the rules governing admission of evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.18 U.S.C. § 3593 (c).
Under the FDPA information may be excluded if its probative value is "outweighed" by the danger of creating unfair prejudice, confusing the issues, or misleading the jury. Under Rule 403, evidence, although relevant, may be excluded if its probative value is "substantially" outweighed by the danger of unfair prejudice, etc. FED. R. EVID. 403.
In its amended death penalty notice the government has listed as a non-statutory aggravating factor the future dangerousness of the Defendant. The government has indicated that it will support this factor with evidence that Defendant has engaged in a continuing pattern of violent conduct against others, of threatening violent conduct against others, and claims and admissions relating to violent acts. Defendant contends that such evidence is irrelevant to the issue of whether he will be a continuing threat to the safety of others while serving a life sentence in the custody of the Bureau of Prisons. Defendant contends that evidence of future dangerousness should be limited to evidence that Defendant poses a continuing danger to others while serving a sentence of life imprisonment. Defendant contends that speculation about whether or not his behavior would likely create a risk to others if he were not in prison is pure speculation and is not probative of the aggravating circumstance.
This Court previously ruled that it would "not set forth a per se rule prohibiting evidence of future dangerousness outside the prison setting. The admissibility of such evidence will be determined under the Court's traditional gate-keeping powers, as well as the FDPA's rules on the admissibility of evidence." (6/29/01 Opinion Denying Defendant's Motion to Dismiss at 33). The jury will be instructed that a sentence of life imprisonment will be without the possibility of release. Accordingly, the concerns raised in Simmons v. South Carolina, 512 U.S. 154 (1994), and Shafer v. South Carolina, 121 S.Ct. 1263 (2001), will be avoided. The government also intends to present evidence that Defendant poses a risk of escaping from custody. A history of past violence is undoubtedly relevant to the issue of future dangerousness, whether within or outside the prison setting. Defendant's request for a per se ruling excluding evidence of Defendant's history of violent conduct must accordingly be denied.
The government has given notice that it will seek to introduce victim impact evidence. The government intends to show that Defendant caused injury and loss to Rachel Timmerman, and that by so doing he caused injury and loss to her family. The government also intends to show that Defendant caused the death or disappearance of Rachel Timmerman's infant daughter, Shannon VerHage.
Defendant recognizes that the Supreme Court expressly held in Payne v. Tennessee, 501 U.S. 808 (1991), that the Eighth Amendment does not prohibit a capital sentencing jury from considering victim impact evidence. Id. at 827. Defendant nevertheless contends that Payne was erroneously decided and maintains that victim impact testimony will inevitably lead to a violation of the Eight Amendment and the right to a fair trial. This Court is of course bound by the Supreme Court's determination that the Eighth Amendment does not necessarily bar all victim impact evidence.
Defendant suggests in the alternative that victim impact evidence should be strictly limited to avoid a sentence that is based on emotion and to safeguard Defendant's Eighth Amendment rights to a reliable, individualized sentence determination. Defendant suggests that the Court should conduct a hearing to enable the Court to eliminate certain areas of testimony likely to elicit emotional testimony.
As noted in Payne, victim impact evidence may be relevant to the jury's decision as to whether or not the death penalty should be imposed, and there is no reason to treat such evidence differently than other relevant evidence is treated. 501 U.S. at 827. This Court stands by its previous determination that victim impact evidence does not warrant special discovery or pretrial admissibility rulings. (6/29/01 Opinion at 35).
In its amended death penalty notice the government has listed obstruction of justice as a non-statutory aggravating factor. The government intends to show that Defendant committed the offense with the intent to prevent Rachel Timmerman from, and retaliate against her for, providing assistance to law enforcement authorities in regard to the investigation and prosecution of another offense. Defendant objects to introduction of evidence on the non-statutory aggravating factor of obstruction of justice. Defendant contends this non-statutory aggravating factor should not be allowed because it merely alleges the government's underlying theory of murder, and thus provides no rational guidance for the sentencer's exercise of discretion. This Court previously denied Defendant's motion to dismiss this aggravating factor. This Court found no constitutional infirmity in the notice because unadjudicated criminal conduct may properly be used as a non-statutory aggravating factor, the obstruction factor provides rational guidance for the sentencer's exercise of its discretion, and to the extent this factor duplicates the government's theory of motive for the underlying murder charge, this does not constitute impermissible duplication. (6/29/01 Opinion at 36-37).
The Court notes that the government's amended death penalty notice dated July 11, 2001, has removed the citations to federal statutes that this Court questioned in its previous opinion.
Subsequent to Defendant's filing of his motion in limine regarding the government's penalty phase evidence, Defendant received notice from the government of the specific evidence it intends to introduce. Defendant was accordingly able to present more specific arguments regarding the government's evidence at oral argument.
To the extent the government has advised that it intends to rely on proofs from the guilt phase of the trial, Defendant has no objection beyond those he may raise during the guilt phase. Defendant did, however, raise more specific objections to the proposed evidence on the issues of substantial planning and future dangerousness.
With respect to the evidence of substantial planning Defendant has raised a specific objection to the government's introduction of the grand jury testimony of Dennis Cartwright, who is now deceased. According to the government, in 1997 Mr. Cartwright testified before the grand jury that Defendant told him that he felt hostility toward Rachel Timmerman for filing false rape charges against him and that he would get her by throwing her in the lake and letting the turtles eat her. Mr. Cartwright died in an automobile accident in 1999. Defendant contends that because Mr. Cartwright is not available for cross-examination, admission of his grand jury testimony will deprive Defendant of his Sixth Amendment right to cross-examine the witnesses against him.
The government contends that Mr. Cartwright's testimony should be admitted because it meets the circumstantial guarantees of trustworthiness required by the residual exception to the hearsay rule. FED. R. EVID. 807 (formerly Rule 804(b)(5)).
The Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. U.S. CONST. amend. VI. Despite its absolute language, the Supreme Court has held that the Confrontation Clause "permits, where necessary, the admission of certain hearsay statements against a defendant despite the defendant's inability to confront the declarant at trial." Maryland v. Craig, 497 U.S. 836, 847 (1990). To satisfy the Confrontation Clause the government must generally show that the declarant is unavailable and that the hearsay bears sufficient indicia of reliability to enable the trier of fact to evaluate the truth of the prior statement. Ohio v. Roberts, 448 U.S. 56, 65-66 (1980). The "indicia of reliability" requirement can be met in either of two circumstances: where the hearsay statement "falls within a firmly rooted hearsay exception," or where it is supported by "a showing of particularized guarantees of trustworthiness." Id. at 66.
The grand jury testimony does not fall within a firmly rooted hearsay exception because it was never subjected to cross-examination. Cf. FED. R. EVID. 804(b)(1) (former testimony is an exception to the hearsay rule if the party against whom the testimony is now offered had an opportunity to cross-examine). The Court must accordingly determine whether the statement meets particularized guarantees of trustworthiness.
The Sixth Circuit has held that in determining whether the substance of grand jury testimony possesses "circumstantial guarantees of truthworthiness" the court should consider the declarant's relationship with both the defendant and the government, the declarant's motivation to testify before the grand jury, the extent to which the testimony reflects the declarant's personal knowledge, whether the declarant has ever recanted the testimony, and the existence of corroborating evidence available for cross-examination. United States v. Barlow, 693 F.3d 954, 962 (6th Cir. 1982). In Barlow the Court found sufficient indicia of reliability and found no error in the admission of the grand jury testimony of the defendant's girlfriend.
In United States v. Curro, 847 F.2d 325 (6th Cir. 1988), the Sixth Circuit found no error in the admission of grand jury testimony of an unavailable witness where the testimony was extensively corroborated, was made under oath, was never recanted, involved matters about which the declarant had first-hand knowledge, was made while the declarant had use immunity and thus, additional motivation for telling the truth, and the making of which put the witness at risk.
In United States v. McHan, 101 F.3d 1027 (4th Cir. 1996), the Fourth Circuit acknowledged that grand jury testimony does not necessarily satisfy the reliability requirement, but found in that case sufficient indicia of reliability which, taken together, supported the admission of the grand jury testimony of a witness who had died. Id. at 1038. The court noted in particular that the witness had testified voluntarily, that he had testified from personal knowledge, that he had already been sentenced before his grand jury testimony, that he was gravely ill and expected to die, and, most importantly his testimony was acknowledged by the defendant to be fairly accurate. Id.
The government contends that Cartwright's testimony similarly has sufficient indicia of reliability in that Cartwright had no relationship to the government, bore no hostility toward Defendant, he had no motive to testify falsely, Defendant's statement was a statement against interest, and the statement was corroborated when the body was found in the lake.
The grand jury testimony of Mr. Cartwright is very problematic. The statement meets some indicia of reliability in that it was made under oath and has been corroborated. On the other hand, the evidence has never been subjected to cross-examination. None of the cases cited by the government in support of the admission of grand jury testimony involved capital cases. Upon careful consideration this Court is not satisfied that the grand jury testimony meets the heightened standard of reliability that must be applied to evidence in capital cases. See Ford, 477 U.S. at 411. The Court accordingly will grant Defendant's motion to exclude Mr. Cartwright's grand jury testimony.
The government has identified more than 20 witnesses it intends to call on the issue of future dangerousness. Defendant objects to the evidence on the basis that the large number of witnesses threatens to overwhelm the rational weighing process, and may tend to mislead the jury by focusing it on bad acts and bad character in general, rather than on future dangerousness. Defendant also contends that some of the testimony relates to acts that are remote in time and have little probative value on Defendant's future dangerousness in 2002. Defendant accordingly moves to limit the amount of evidence of future dangerousness so that it is focused more on future dangerousness than on bad character.
This Court will not arbitrarily limit the number of witnesses the government may call on the issue of future dangerousness. While the presentation of many witnesses regarding one episode may be cumulative and prejudicial, the Court cannot prevent the government from presenting an accurate picture of the Defendant's conduct as it bears on an aggravating factor for which notice has been given. Neither can the Court state, as a matter of law, that the evidence from 1991, 1994 or 1995 is so remote in time as to be more prejudicial than probative. Defendant has been in custody since 1997. Evidence regarding his violent conduct, threats or claims in the six years prior to his incarceration in not necessarily so remote in time as to lack probative value. While the Court will not grant Defendant a per se ruling excluding evidence at this time, or limiting the government to a set number of witnesses, Defendant is not precluded from raising objections as to individual witnesses or specific categories of evidence as they are presented. Until the penalty phase is underway, this Court cannot properly determine whether the probative value of particular evidence is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.
Based upon the discussion above, the Court will grant Defendant's motion for allocution, subject to the conditions outlined, and will grant in part and deny in part Defendant's motion in limine re penalty phase evidence.
An order consistent with this opinion will be entered.
ORDER
In accordance with the opinion entered this date,
IT IS HEREBY ORDERED that Defendant's motion to allow allocution without cross-examination during penalty phase (Docket # 262) is GRANTED subject to the conditions set forth in the Court's opinion.
IT IS FURTHER ORDERED that Defendant's motion in limine re government's penalty phase evidence (Docket # 263) is GRANTED IN PART and DENIED IN PART.