*1 qualifies as a strike malicious and thus 1915(g). example, This is but one
under other situations may
and there well be would warrant the circumstances
where of an action
treating as a strike dismissal ex- prisoner
filed who did first administrative remedies. Rou-
haust his solely on the fact
tine dismissals based however, occurred, has not exhaustion § 1915(g). as strikes under qualify
do not
III. reasons,
Accordingly, foregoing for the conclude that a routine dismissal of a
we
prisoner’s complaint for failure exhaust qualify does not
administrative remedies PLRA. purposes
as a strike for We motion for leave to grant
therefore Green’s
proceed pre-payment without fees.
MOTION GRANTED. America,
UNITED STATES of
Plaintiff-Appellee, FULKS,
Chadrick Evan Defendant-
Appellant.
No. 04-33. of Appeals,
United States Court
Fourth Circuit.
Argued May July
Decided *3 error,
contentions of each of which relate capital sentencing his trial Co- (1) lumbia: the district court erroneously permitted present testi- mony from two witnesses not included (2) list; pretrial witness the court qualifying abused its discretion in three jurors unconstitutionally prone who were (3) impose penalty; the death the court denying abused its discretion Fulks a *4 juror’s new trial on the basis of failure to disclose voir dire that her first III, Blume, Henry ARGUED: John murdered; (4) husband had been the court School, Ithaca, York, for Law New Cornell ju- in qualifying abused its discretion two Schools, Newton Assis- Appellant. Scott experiences rors whose life rendered them Attorney, tant Executive Of- United States incapable impartially deciding D.C., Attorneys, Washington, For fice (5) case; the court abused its discretion in Wey- BRIEF: Keir M. Appellee. for ON excluding testimony concerning poly- three Columbia, ble, L.L.C., Weyble, Blume & (6) Fulks; graph the court examinations IV, Carolina; Nettles, F. South William in permitting abused its discretion Dono- Defender, Federal Public Office Assistant van’s sister to read to the a 1990 Florence, Defender, Public Of The Federal her; that Donovan had written letter Carolina, Reginald I. Appellant. for South (7) concluding in the court erred Lloyd, Attorney, States Jonathan United evidentiary applicable relaxed standard Gasser, States Attor- S. Assistant United capital sentencing proceedings is constitu- Duane, ney, Assistant John C. United below, reject explained tional. As we Attorney, Hagins, Todd Assis- States C. these contentions and affirm. Attorney, tant United States Office Columbia, Attorney, South United States I. Carolina, Appellee. A. WIDENER, WILLIAMS, and Before Fulks, up in the tri-state areа grew who
KING, Judges. Circuit Huntington, Virginia, began around West dating dancer named Veronica an exotic Judge by published opinion. Affirmed thereafter, Shortly in April Evans in King opinion, Judge wrote the which old, twenty-five years then who was joined. Judge Williams wrote Widener living Evans and her three- began with concurring opinion. year-old Kentucky in the eastern son Miles community Lewisburg. On June OPINION and Evans were married. Fulks KING, Judge. Circuit family new supported Fulks his supported himself for appeals way Evan from the same he had Chadrick Fulks stealing. years by breaking him in Dis- into cars imposed death sentence on — women, Fulks on con- And as he had with other trict of South Carolina his federal Evans, some- carjacking re- often became violent with kidnapping victions for assaulting severely and beating in the death of Alice Donovan in times her sulting sexually. By appeal, Fulks makes seven 5, 2002, By following day, November August Fulks directed Ev- On way Basham had made their on buy a Fulks and a stolen credit card to ans use Hawkins, residence of Madisonville, foot to the James at a necklace Wal-Mart from eight about to twelve miles store, Ev- Kentucky. Upon entering the approached Basham the residence HCDC. that Fulks was reported police ans and, using phone, persuaded after gun and that she parking lot with him Hawkins to drive and Fulks to near- police kill her. The was afraid he would Shortly by convenience store. after de- car, dis- responded and searched Evans’s house, agreed to parting from the Hawkins covering, among things, other stolen credit car, to their drive Fulks and Basham subse- pistol. cards and a The officers they which claimed to be located about quently arrested Evans and Fulks and Robards, away Kentucky. forty miles transported Hopkins County them to the pulled a point, At some Basham knife (the “HCDC”). Detention Center Three- Hawkins, and Fulks ordered Hawkins to year-old placed Miles was foster care. pull highway tо the side of the so that August agreed coop- On Evans thereafter, could drive. Fulks Soon government erate with the and was re- road, truck stopped the on remote state leased from the detention center. On the *5 intending to abandon Hawkins. Basham home, basis of evidence seized from their tree, started to tie Hawkins to a but ultimately charged Fulks was with twelve effort, dissatisfied with Basham’s soon Hopkins in counts credit card fraud job. took con- over the Once Fulks was County, Kentucky. vinced Hawkins would be unable to Branden Basham had been housed at in escape, departed he and Basham Haw- charges the HCDC on bad check for over a truck. kins’s Hawkins freed himself some year August when Fulks arrived in late later, passing fifteen hours hailed a motor- According guards prison, at the ist, police. According and called the disruptive annoying, trial, Basham was and of- although Hawkins’s at pestering ten his In order him knifepoint throughout fellow inmates. Basham held at incident, protect prisoners, carjacking him from other Fulks remained in Bas- mates, charge, merely following with Basham frequently reassigned ham was cell and, Fulks’s orders. 2002, in placed mid-October he was in a cell with Fulks. On November Hawkins, leaving After Fulks and Bas- custody, after in about two months Indiana, where, Portage, ham drove to on Kentucky Police State served with 6, 2002, they November abandoned Haw- charging an indictment him with first de- proceeded kins’s truck at a hotel and gree aged years of a child abuse twelve foot to a trailer shared Tina Severance (Miles). younger evening, ap- The next at Roddy. and Andrea Fulks had met Sever- jailer proximately p.m., 6:30 released (Indiana) ance at the Westville Correction- Basham, request, Fulks and at Basham’s serving al Institute in while he was jailer into an outdoor recreation area. working time there and she was as cor- administering became diverted medicаtion rectional officer. After a few hours inmates, to other and when she returned trailer, very Fulks and Basham became at p.m. nervous, (Fulks, about 8:00 check on Fulks and and the of them four Bas- Basham, they gone. They ham, Severance, were had es- Roddy) and travelled in caped through ceiling from the HCDC Severance’s van to the Sands Motel Indiana, by using they of the recreation area a makeshift spent northern where rope At at nights. point made blankets and sheets. next two some while Motel, belonging nineteen-year-old Amy Fulks told Severance Ward the Sands from a at a parked vehicle Wal-Mart prison from because escaped that he had Waverly, following day, Ohio. On the prison sentence on the lengthy he feared Severance, Fulks, Basham, Roddy and charges. During then- child abuse pending Kenova, Virginia, drove to and West rent- Motel, Fulks night at the Sands second Hollywood a room the ed Motel. Fulks they if she knew where asked Severance motel, and Basham then left the not to replied that a firearms. She could obtain early morning return until the hours of Talsma, friend, at his kept firearms Robert November nearby Michigan City, Indiana. home 8, 2002, in November morning On the According to statements Fulks made to preconceived plan, with a Sev- accordance FBI in after he and Basham left Roddy away lured Talsma erance and Hollywood Motel on November into his 2002, Fulks and Basham broke they methamphetamine while and smoked firearms, Mall, and several as well as home stole then drove to the Barboursville near ring Huntington, Virginia, intending checks. some West purses. break into cars and steal When then The four of them drove Severance’s mall, they they split up. at the arrived they rent- Sturgis, Michigan, van to where Basham, The next time Fulks saw he was Roddy ed a motel room. Basham driving up a car and down the rows of the spent night of November parking yelling lot and Fulks’s name. motel, Fulks and Severance while passenger seat was the owner of the Goshen, Indiana, night smok- spent car, nineteen-year-old Marshall Universi- marijuana methamphetamine with ing ty Burns. After student named Samantha brother, Ronnie Fulks. The next *6 Basham, spotting Fulks returned to Sever- returned to the day, Fulks and Severance ance’s van and followed Basham and Burns find crouched on Sturgis motel to Basham store, grocery to a Foodland where Fulks gun. Apparently a con- holding the floor began driving left the van and Burns’s car. caught up vinced that the authorities had They automatic teller then visited several them, highly agitated, with Basham was machines and withdrew cash from Burns’s to repeatedly asserting going he was They account. later returned to the Food- police eventually officer. He shoot van, point to retrieve the at which land down, and the four then drove to calmed that he wanted to find Basham announced Fulks, the Indiana home of Ronnie where place rape Burns. Fulks then fol- night. they spent the van to a lowed Basham Severance’s 10, 2002, Fulks, Basham, On November by the River. Fulks secluded area Ohio Severance, Roddy, driving Fulks and with car, from parked some distance Burns’s van, Piketon, Severance’s travelled of the way and in such a that his view Ohio, they checked into a Town and where car was passenger side of the obstructed. Country They then drove to a Motel. side He observed Basham exit the driver’s Wal-Mart, where Basham wrote nearby passen- car and walk around to the of the Roddy for items that later nothing bad checks else until ger’s side. He saw 10, for cash. Also on November twenty returned minutes later when Bas- about Piketon, Ohio, at a Fulks car to where K-Mart ham—alone—drove Burns’s Fulks that young butterfly parked woman with a tattoo Fulks and informed met Jacobi) (later in order to to be Heather he to burn the vehicle determined wanted buying After drugs. any fingerprints. that same remove with whom he used On car fire to Burns’s date, gasoline, Basham set purse phone Fulks stole a and cell Carolina, where, Lavalette, Virginia, according a rural road near West FBI, and Fulks returned to the Kenova they planned and he to the statements forward, point motel. From that Basham car. steal a neck, wore, on a chain around his a heart- p.m. day, At that same 2:37 Wal-Mart shaped ring that was later determined to surveillance camera recorded blue BMW belong Although to Burns. both Fulks driven Alice Donovan enter the Wal- that Burns is and Basham have admitted lot, parking Mart with Fulks and Basham dead, body has recovered.1 never been closely following behind. As Donovan 12, 2002, Fulks, Basham, On November ap- Basham exited the truck and parked, Severance, Roddy drove the van to proached the while Fulks circled the BMW River, Carolina, Little South where Fulks parked opposite row of vehicles and During 1990s. had lived late began moving Both vehicles then BMW. River, trip their to Little Basham re- again, travelling range outside the by asking peatedly taunted Severance pick- cameras. Fulks soon abandoned the go “swimming” in whether she wanted to BMW, up began driving truck and with eventually the Ohio River. Fulks ordered Basham and Donovan the back seat. Severance, stop teasing Basham to lot, leaving parking After the Wal-Mart complied. Basham the four of them When (some Fulks and Basham made several River, they arrived at Little checked in at successful) attempts money to withdraw the Lake Shore Motel. Fulks and Basham from Donovan’s account at auto- various following day, spent November matic At point, teller machines. some into breaking stealing purs- cars and they crossed into North Carolina es. On November the four left Little stopped cemetery, at a where first Basham in Myrtle River for the Beach Walk Hotel in, Bеach, raped and then Fulks Donovan. checking South Carolina. After Accord- FBI, ing Fulks and Basham left the hotel in to Fulks’s statements to the he Sever- ance’s van. rape did not want Donovan but felt pressure They from Basham to do so. p.m. At around 2:00 on November and, then reentered South Carolina ac- upon Carl Jordan stumbled him cording to Basham ordered *7 burglarizing and Basham his son’s resi- stop along they a dirt road could so Conway, dence outside South Carolina. up, prevent leave Donovan tied in order to Jordan, According to both Fulks and Bas- contacting her from the authorities. Fulks him, gunshots ham fired at with Fulks Basham, complied request with this and shooting out the back window of Jordan’s carrying gun rope tape but no truck.2 attempted Jordan then to retreat see, could began leading Fulks Donovan truck, in his with Fulks and fol- Basham away from car. implored Donovan lowing in and Severance’s van. Fulks Bas- gun Fulks to convince Basham to leave the chase, eventually gave up ham aban- car, in van, but Basham refused to do so. doned and stole a white Severance’s pickup They truck. Basham then led Donovan into the woods way then made their in Conway, sight. to Wal-Mart store South and out of Fulks’s He returned death, expert 1. In connection with Burns's Basham 2. A at defense testified trial that and Fulks each received sentences of life im- trajectory of the bullet that shattered the win- prisonment in Southern District West dow of Jordan's truck belied Jordan’s belief Virginia, pleading guilty after to the federal that Fulks had fired the shot. death, carjacking resulting offense of in in § contravention of 18 U.S.C. 2119. later, left in Huntington alone. As with Fulks Donovan’s twenty minutes Burns, Goshen, Basham have ad- Fulks and for his brother’s home in both BMW killed, her Donovan was but mitted that evening, Indiana. That an Ohio State never been found. body has Trooper, having observed the and BMW stolen, attempted ascertained that it was then returned to thе Fulks and Basham at a area apprehend Fulks rest near Beach, Myrtle Hotel in where Beach Walk Marion, Following highway Ohio. chase Roddy that and they informed Severance hour, reaching speeds per of 130 miles van, possession in police were narrowly He escaped. arrived Fulks and Basham needed to and that his brother’s home Indiana on the eve- Virginia According alone. return to West 2002, and, journey ning return of November their 20, 2002, that Basham first informed Virginia hid morning West November Donovan. him that he had killed Burns and Bristol, BMW a near Indiana. Po- barn 15, 2002, Fulks and Basham On November up lice officers had earlier set a surveil- Virginia, and Huntington, arrived West operation lance Fulks’s brother’s home nights smoking crack spent the next two and, on the afternoon of November McGuffin, cocaine at the residence of Beth chase, after brief foot Fulks was a friend of Fulks. McGuffin testified finally apprehended. spent the time she with Fulks
Basham, Fulks controlled what he B. did. Basham days arriving after at McGuffin’s
Two home, 17, 2002, Fulks and on November initially Fulks and Basham were indict- in near- Basham drove to the Ashland Mall ed in the District of South Carolina on Ashland, Kentucky, they planned where 23, 2003, April December On p.m., into cars. At around 7:30 break grand jury superseding returned a indict- lot, Mall Basham at- parking the Ashland charging ment Fulks and Basham with carjack Francis and tempted to Deanna setting forth eight separate offenses and fifteen-year-old After Fran- daughter. imposition special findings supporting incident, a officer reported police cis on the first two penalty of the death him spotted began pursue Basham and carjacking resulting Donovan’s counts: initially the offi- on foot. Basham eluded (18 2119), kidnapping § death U.S.C. railcars, by running behind some but cer (18 resulting in Donovan’s death U.S.C. apprehended p.m. at around 9:00 he was 3571).3 evening, hiding across the railroad in the River. tracks Ohio *8 September On its intention nоtified Fulks and Basham of home late Fulks returned McGuffin’s penalty against the death them on to seek evening that same and was there when kidnapping counts. carjacking and reported Basham’s ar- television stations 18, Thereafter, 29, 2004, January the dis- following day, on rest. The November carjacking kidnap- in furtherance of a crime of to the and to use firearms 3. In addition (18 924(o)); (4) offenses, § of a U.S.C. use ping Fulks and Basham were indict- violence (1) during a crime of following firearm and in relation to ed for the offenses: interstate (5) (18 924(c)(1)(A)); (18 being § transportation vehicle violence U.S.C. of a stolen motor (18 2312); (2) possession of firearms U.S.C. conspiracy § to commit nu- felons in U.S.C. offenses, (6) 922(g)(1)); possession § of stolen fire- including carjacking and and merous (3) (18 (18 371); 9220). conspiracy § § kidnapping arms U.S.C. U.S.C. identity, hung the caller’s he granted trict court Fulks and Basham ascertain up. May trial March Donna also told at the severance. On Skidmore alia, denying, an order inter meeting court issued that she believed the penalty person Fulks’s motion to strike the death caller to be the same who had Amy’s purse phone. that the Federal Death Penal- and cell Al- basis stolen Act, ty rendering the Federal Rules of he though Skidmore claims notified capital sentencing lawyers inapplicable Evidence Fulks’s of the November Ward, proceedings, phone they contravened constitutional call to Donna have no process. due such recollection. 4, 2004, pleas May
On Fulks tendered of Jury in the dis- selection was conducted guilty eight supersed- all in the counts May May trict court from 10 to 2004. regard the car- ing here, indictment. With challenged for As relevant Fulks on which jacking kidnapping and counts venirepersons Richard Goehring, cause seeking pen- was the death Sylvia Harvey, Lisa Allison on the alty, plea colloquy Fulks admitted ground strength of their beliefs raping any knowl- Donovan but disсlaimed penalty favor death rendered each of edge participation her murder. unwilling of any mitigat- them to consider The substance of his admission tracked his ing evidence that he offer. Fulks FBI, in 2003 statements to the which he challenged venirepersons also for cause generally his involvement in the admitted Novinger Plyler, con- Joni Elizabeth spree crime but claimed that Basham had tending personal experiences their killed both Burns and Donovan without his incapable impartially rendered them knowledge. accepted district court jury. serving Specifically, on his 7,May guilty pleas Fulks’s Novinger’s ability asserted that to be im- partial by fact that impaired 10, 2004, May prosecution, On as sister been the of a had victim sexual required provided 18 U.S.C. assault, Plyler’s and that impartiality was Fulks with list the names and address- impaired daughter because she and her potential es of trial Among witnesses. roughly ages (respectively) were the same Ward, potential Amy those witnesses was that Donovan and Burns had been when purse phone and cell whose Fulks had they reject- killed. were The district 10, 2002, Waverly, stolen on November challenges qualified ed each of these 21, 2004, May investiga- Ohio. On defense venirepersons these five over Fulks’s ob- tor Amy Pete Skidmore met with Ward jections. mother, Ward, and her Donna seeking to Amy young determine whether was the butterfly
woman with the tattoo with whom Fulks drugs sentencing had used Fulks’s trial commenced on 1, 2004, escapade. meeting, At this Donna advised prosecution’s open- June with the phone ing opening, prose- Skidmore that she had received a statement. In its cution, call anticipating strategy on November from a man purportedly seeking Amy to meet at a casting with Basham as the leader of their *9 murderer, evening local hardware store that actual spree 10:30 crime fore- p.m. job her recent it applicаtion discuss cast the evidence would introduce to Donna, active, Amy with the store. that that an if knowing played demonstrate Fulks job application, leading, had submitted no such be- not role in the criminal entire suspicious, attempted Among things, pros- came but when other enterprise. she vately polygraph administered examina- jury that it would hear ecution advised tions, the results of which indicated that spree touched on that the crime evidence truthfully knowledge Fulks had disclaimed Fulks —not Basham— which places with of, in, familiar, participation the murders of shortly prison after their that was Burns and Donovan. The where escape Fulks had asked Severance presented testimony that Fulks had tied then from the first of guns, he could obtain approximately a hundred witnesses that it the tree where he was aban- Hawkins to presentation called its three-week doned, that Fulks and Basham both he discovered of evidence. had fired at Jordan when burglarizing his son’s residence.
them Ward, Amy testify who scheduled to 11, 2004, in countered on June arrived South Carolina response, defense counsel 10, accompanied by of on June her father statement a forecast opening with Byron prior Amy’s Just testimo- present, sug- it Ward. planned the evidence Byron, talk ny, engaged than Fulks— while small gesting that Basham —rather leader, Agent Bruning, FBI mentioned and killer. For with Jeff instigator, was the phone call his wife jury the November example, defense counsel advised regarding Amy’s pur- received that Basham had lured Donna had it would learn job application at the hardware ported home and held him at Hawkins from his Agent Bruning began soon investi- gun throughout store. knifepoint, had carried whether the call could be traced to expressed gating had his inten- spree, the crime Fulks, and, with the assistance of the officer in the killing police tion of while room, company, discoverеd that Sprint telephone Sturgis motel had asked Severance using a “swimming” phone placed in the call had been go whether she wanted pos- prepaid phone card found day River the after Burns was the Ohio murdered, at his arrest. With further investi- ring Burns’s session and had worn that the call had gation, In addition to the evi- was established around his neck. leader, placed p.m. at 8:38 on November as the de- been depicting dence Basham hiding from mitiga- 2002. Because Basham was outlined its case for fense counsel very at that tion, police in the Ohio River jury that the would hear explaining moment, appeared of the call timing was a victim of Fetal Alcohol Fulks Fulks, acting Disorder, conclusively establish and had been raised Spectrum alone, alcoholic, placed had the call. On June par- abusive abject poverty education, court that Donna Ward and encour- neglected ents who his ruled Bruning testify regarding could Agent him aged criminality, provide and failed to though they had not been includ- Finally, call even with the basic necessities life. prosecution’s pre-trial points together, main de- ed witness tying its two Fulks three- list. The court then offered counsel asserted once the fense life, prepare hiatus so that he could background, day trial learned more of Fulks’s testimony, criminal but Fulks’s counsel history, it understand meet their would offer, three-day stating of Donovan and Burns declined that the murders point in the be useless at have commit- recess would were crimes trial. on his own. ted witness, 2, 2004, present- final prosecution’s commence- prior
On June to the case-in-chief, was Donovan’s sister ed on June prosecution’s ment of the Ezell, impact wit- Judy Ezell. a victim motion to granted prosecution’s ness, concerning the primarily testified concerning pri- three exclude *10 pregnant and while she was with their and Donovan had suf- ried sexual abuse she selection, Allison, jury Prior to as children at the hands of their child. fered objection, jurors, was along prospective with all other father. Over jury juror ques- a required complete Ezell to read to the letter to a written permitted her, here, congratulat- Allison left Donovan had written to tionnaire. As relevant confronting Question inquired their father about which into ing her on blank any that Donovan relatives had explaining the abuse and whether she or close her husband had decided to leave abusive been a crime victim. a life.
and start new 9, 2004, a July On Fulks moved for new testimony jury Fulks to the trial on the basis of Allison’s failure to presented July 22 to 2002. That murder. On from June June disclose husband’s 16, 2004, a testimony primarily mitigat- consisted the district court conducted evidence, had ing detailing hearing Fulks’s miserable to ascertain whether Allison actually against as his asserted mental Fulks or childhood as well been biased surrounding presented deficiencies. Fulks also the tes- whether the circumstances timony of Heather Jacobi and Pete Skid- murder and her failure to her husband’s more, through attempted finding implied which disclose warranted by explain hearing, his November bias. At the Allison testified Ward, trying Question call Donna in- he was her failure answer was Ward), (Amy rather lure new victim but advertent. She asserted her selection attempting young jury surprised to locate woman for the her and she had butterfly hoped with the tattoo with whom he her husband’s murder would lead to Jacobi, drugs. young being had used woman her dismissed from the venire. tattoo, butterfly by with the testified she When asked the court whether there had met 2002 at a K- any possibility” Fulks November was “even remote that her Portsmouth, Ohio, parking Mart lot in “had influence in husband’s murder some deliberations,” city thirty Waverly, responded, about miles from Allison [her] Ohio, 10, 2002, on where November “None at all.” J.A. 3046. Amy purse phone
had stolen Ward’s December the district court On from her car. Skidmore’s denied Fulks’s motion for a new trial and largely served to corroborate what Jacobi imposéd kidnap- sentence: death on the had said. count, separate of death ping sentence count, parties closing argu- carjacking delivered their on the and a total of 744 jury prison remaining ments to the on June 2004. On months in six counts, following day, consecutively returned a to run to the two verdict, recommending timely unanimous sentences. Fulks has noted death possess jurisdiction Fulks be sentenced to death on this and we appeal, both carjacking kidnapping pursuant counts. 28 U.S.C. II. announced,
Shortly
By
appeal,
after the verdict was
Fulks makes seven con-
(1)
defense counsel first
virtue of
tentions:
the district court committed
learned —
July
prosecu-
in permitting
2004 article
Fulks’s trial
reversible error
Beach Sun News—that
juror
Myrtle
present
testimony Amy
Alli-
tion to
Ward
despite
Agent Bruning
son’s husband had been murdered
failure
list
couple
pretrial
six weeks after the
had been mar-
include them on the
witness
*11
(2)
Fulks;
testimony
Agent
trial
of Donna Ward and
the court abused
furnished to
jurors Goehring,
in qualifying
Bruning, neither of whom were included
its discretion
Allison, each of whom Fulks
Harvey, and
pretrial
provided
witness list
unconstitutionally prone to
were
asserts
§
pursuant
to 18 U.S.C.
3432. See
(3)
court
penalty;
the
impose the death
(D.S.C.
v.
United States
CR-02-992
denying
Fulks a
its discretion
abused
2004).
Although
yet
no court has
June
juror
the
of
Allison’s
new trial on
basis
appellate
determined the standard of
re-
murder;
failure to disclose her husband’s
applicable to a trial
view
court’s decision
(4)
in quali-
its discretion
the
abused
permit
capital
in a
case of a
jurors
Plyer, whose
fying
Novinger and
prosecution’s
witness
included
assertedly rendered
personal experiences
list,
pretrial
regarding
decisions
witness
(5)
him;
against
the court
them biased
whether a witness should be allowed to
excluding
evidence
abused its discrеtion
testify
generally
are
for abuse of
reviewed
polygraph
regarding the results of three
discretion.
See Bristol Steel & Iron
Fulks, which indicated
examinations of
Works,
Corp.,
Inc. v. Bethlehem Steel
truthfully
that Fulks had
disclaimed
(4th Cir.1994)
(observing
188-89
mur-
in the
knowledge
participation
of and
testify
that decision to
witness to
allow
(6)
Donovan;
the court
ders of Burns and
though
identity
even
his
had not been re-
permitting
Dono-
abused its discretion
vealed before trial reviewed for abuse of
Judy Ezell to read to the
van’s sister
discretion);
v.
see also United States
had written to her
the 1990 letter Donovan
(4th Cir.2006)
Moreland,
437 F.3d
concerning the abuse she had suffered at
to allow
(noting
expert
decision
testi-
husband;
hands of her father and first
discretion);
mony is reviewed for abuse of
(7)
in upholding
the court erred
Scheetz,
v.
293 F.3d
United States
constitutionality
evidentiary
the relaxed
(4th Cir.2002) (observing that restriction
applicable
capital sentencing
standard
on cross-examination is reviewed for abuse
con-
proceedings. We assess each
these
discretion);
Montgom-
United States
in turn.4
tentions
Cir.2001) (not-
(4th
233, 244
ery, 262 F.3d
A.
testimony from
ing that refusal to allow
sequestration
violates
order is
witness who
Fulks first contends that
the dis
discretion).
reviewed for abuse of
We see
trict court committed reversible error
apply
no
a different standard of
allowing
present
reason
review,
3595(b).
analyzing
§
of such
each of Fulks’s
See
On the basis
In addition
contentions,
appellate
obliged
we are
to "re-
we
that Fulks's sentence was not
conclude
two
view the entire record” and consider
passion, prej-
imposed under the influence of
(1)
raised
whether his
issues not
him:
Indeed,
udice,
any
arbitrary factor.
or
other
imposed
"was
under the influence of
sentence
trial court con-
the record reflects that
arbitrary
passion, prejudice,
any
fac-
or
other
exemplary
proceedings in an
man-
ducted the
tor;”
(2)
supports
evidence
whether the
ner, maintaining
ensuring fair-
decorum and
"special finding
jury's
of the existence of
similarly
throughout.
we
conclude
ness
And
aggravating
required
an
factor
to be consid-
supports
jury's special
that the evidence
ered under
section 3592.” See 18 U.S.C.
death,
injury
finding
or the
that Donovan's
Accordingly,
§
we
reviewed the
have
death,
during
caused her
occurred
case, including
"the in-
entire record in
attempted
or
commis-
Fulks’s "commission
sentencing
during the
formation submitted
of,
flight from[ ]
immediate
sion
his
hearingt,]
procedures employed
...
in the
off,] kidnapping.”
J.A.
See
his commission
[,]
special
sentencing hearing
...
2960;
3592(c)(1).
see also
3593(d).”
findings
under
section
returned
*12
that,
capital
in a
sen
case,
any
Fulks first asserts
especially
in this
since
review
trial,
categorically pre
§ 3432
tencing
court’s applica-
of law in the district
error
testimony
any
the
of
witness not
cludes
§
constitute an abuse of
tion of 3432 would
prosecution’s pretrial
included on the
list
Ebersole,
States v.
discretion. See United
testimony
permitting
and that
such
consti
(4th Cir.2005)
517,
(observing
411
526
F.3d
support
In
per
tutes
se reversible error.
definition,
“[b]y
a court abuses its
on our
proposition,
of this
Fulks relies
of law”
discretion when it makes an error
States,
decision in Hall v. United
where
omitted)).
(internal
marks
quotation
“[provision
cap
that
for [the]
we observed
mandatory,
pro
failure to
ital list is
capital
ordinarily
vide it in a
case is
revers
18,
pros-
§to
3432 of Title
the
Pursuant
(4th
653,
410
660
Cir.
ible error.”
F.2d
obliged to furnish Fulks with a
ecution was
Lee,
1969); see also
States v.
374
United
days
three
before his
witness list
least
(8th Cir.2004)
(citing
651
Hall
sentencing
began.
specifically,
trial
More
proposition);
for same
United States
§
provides:
3432
Cir.1971)
(5th
Crowell,
442 F.2d
348
charged
A
with treason or other
person
(concluding
provide
that failure to
witness
capital offense shall at least three entire
error”);
“plain
list
Amsler v.
is
United
days
commencement of trial be
before
(9th Cir.1967)
States,
381 F.2d
45
copy
with a
of the indictment
furnished
(same).
case, however,
prose
In this
the
veniremen,
and a list of the
and of the
timely provide
cution did not fail to
Fulks
trial
produced
witnesses to be
list; indeed,
pretrial
pro
it
with
witness
indictment,
proving
stating
place
the
the
of
a full
vided Fulks with the list witnesses
witness,
of abode of each venireman and
Instead,
prior
three weeks
to trial.
the
of
except
such list
the veniremen
prosecution sought
present
to
the testimo
need not be
if
and witnesses
furnished
ny
only
it
of two witnesses
discovered
after
by
preponderance
the court finds
of
provided
with the witness list
had
may
that providing
the evidence
the list
providing
and after the deadline for
the
safety
any
the
or
jeopardize
per-
life
expired.
prosecution
list
had
Whether
son.5
permitted
present
should be
the testi
mony of these after-discovered witnesses
Supreme
explained many
As the
Court
§
question
is a
on which
3432 is silent.
years ago
leading
provi-
in its
case on this
sion,
§
purpose
3432 is “to inform
not
Although
Supreme
Court has
testimony
of the
he
defendant
which
issue, Logan
open
decided the
it left
meet,
will have to
and to enable him to
witnesses,
possibility
“particular
af-
prepare
Logan
his defence.”
v. United
coming
knowledge
terwards
States,
263, 304,
144
12
U.S.
S.Ct.
36 government,
becoming necessary by
(1892).
words, §
L.Ed.
unexpected developments
other
reason
designed
prevent
trial,
is
trial
might
permitted,
special
ambush
be
rea-
shown,
where a defendant’s life is at stake.
sons
and at the discretion of the
clear,
prosecution
§
5. As
3432 makes
witness after-discovered (permitting F.2d a. could testify where defendant witness to diligence con regard to his With 90 F.3d Tipton, prejudice); not show cf. tention, had the contends Gov to include (concluding that failure at 889 investigation diligent conducted a ernment not mandate does addresses of witnesses trial, have discovered the it would prior showing prejudice); of absent reversal call to Donna Ward November Hall, (allowing at 661 trial testi- 410 F.2d § dead expiration the of the prior to included on list mony of witnesses not Spe of the witness list. provision line for knowledge they had where defendant prosecution the cifically, he asserts ruling, emphasize testify). In so we would trial, things prior to have done two should prejudice inquiry is that the focus of the have led to the of which would either the after-discover- not the extent to which (1) travelled to discovery phone of the call: damaging be would ed witness’s Ohio, Waverly, to con home in the Wards’ case; rather, preju- the defendant’s (who Amy an interview of Ward duct from the lack notice dice must result (2) list), and fol included on the witness testify. that the witness would found in phone on the card up lowed his ar at the time of sum, possession on Fulks’s In not included witness conclud explicitly court witness rest. The district pretrial prosecution’s ed, however, was not prosecution that the testify only permitted be list should call and dilatory discovering рhone capital prosecution trial in a case when the would not investigation a reasonable to include that its failure has demonstrated trial the call. Because the faith have discovered good list was in the witness on the to evaluate a position in the best diligent lack of court is not the result of a and because then, investigation, party’s pretrial if investigation. Even the defendant of the inquiry part forms a resulting diligence prejudice actual can demonstrate permit on whether to court’s decision notice that pretrial from the lack wit testimony of an after-discovered trial testify, the trial witness would ness, determination review the court’s testifying we preclude the witness from should diligent for abuse prosecution was adjournment trial that the unless brief Rack & Fix- S. States these of discretion. prejudice. cure the With Cf. Co., ture, Tracing Inc. v. Sherwin-Williams the calls Fulks made (4th Cir.2003) however, (observing spree, crime easily could have led information, to individuals and unknown that determination whether nondisclosure prosecution, that would justified” light have shed “substantially of evidence was Indeed, Fulks’s role in the offenses. under Federal Rule of Civil Procedure prosecution 37(c)(1) would have discovered the is reviewed for abuse of discre Ward, November 2002 call to Donna if tion). it had up phone followed on the card. First, reject we Fulks’s contention that Nevertheless, the prosecution points as investigation part reasonable out, presented this trial unique challenges necessarily in- prosecution would have everyone, in that spree the crime face-to-face, pretrial cluded interview of spanned several states and touched over a Amy out, prosecution points Ward. As the hundred prosecution individuals the ex- witness, Amy was a minor who testified for pected to call as witnesses. these cir- only сoncerning about five minutes a mat- cumstances, we are unable to conclude that entirely ter collateral to the main issues the district court abused its discretion purse the case—that phone and cell concluding was dili- were stolen from a vehicle Ohio on gent in pretrial investigation, despite its Moreover, prose- November failure to up follow on the calls using made *15 cution had no reason to believe that the phone the card. offer, any Wards had useful information to beyond Amy’s the fact that purse and cell b. phone Finally, had been stolen. because Fulks also asserts that the lack of of the considerable distance between Wa- pretrial notice that Donna and Ward (where verly, lived), Amy Ohio Ward and Agent Bruning testify would prose for the (where Columbia, South Carolina Fulks’s cution irreparably prejudiced his defense. conducted), trial prosecution was the made Again, vantage point because trial court’s the a quick pre-testi- decision conduct ability enhances its to discern prejudice to mony interview Amy when and her father a party’s presentation, trial and because arrived South Carolina for the trial. prejudice inquiry the part forms of the The district court did not abuse its discre- court’s determination of an whether after- tion in concluding that this decision was discovered permitted witness should be reasonable under the circumstances. testify, we review for abuse of discretion
Fulks’s second contention in this re- its conclusion that preju Fulks suffered no gard prosecution the should have dice from the lack of notice that —that Donna up followed phone the card found on Agent Ward and Bruning testify. arrest, Fulks at the time of his over nine- Fixture, S. States Rack & 318 F.3d Cf. prior teen months to trial —is more trou- (observing that decision whether non ble-some to us than his first contention. disclosure of evidence was un “harmless” part, For its asserts that it der Federal Rule of Civil Procedure had no indication that inquiry 37(c)(1) an into the reviewed abuse of discre calls using phone tion). made card would And, matter, as an initial we ob primary objectives further the of pre- court, denying serve that the district investigation: trial proving that Fulks was Fulks’s motion to exclude the understating his role in multiple of- Agent Bruning, Donna and Ward offered fenses committed spree the crime a three-day prepare Fulks hiatus to countering mitigation. and his case for testimony, meet their an offer Fulks de- Perhaps most Thus, spree. ner the crime inquiry our focus-
dined as useless. damagingly, both Hawkins McGuffin Fulks any prejudice to was on whether es that took orders from testified Basham of the only outright exclusion such continually Fulks and that Fulks was was warranted. after-discovered witnesses of them did. Fur- charge of what the two Fulks, strategy trial According to his thermore, prosecution presented evi- the insti- to cast Basham as was twofold: instigated Fulks suggesting dence murderer, present and to gator and sole Kentucky prison break because he was mitigation on Fulks’s strong case based being lengthy to a afraid of sentenced problems and troubled childhood. mental imprisonment on child term of abuse Thus, statement opening counsel’s defense day he charges that learned before suggesting emphasized numerous facts escape. And Tina Severance testified volatile, dangerous, was that Basham more Fulks, Basham, approached controlling, and it outlined evi- obtaining shortly about firearms after detailing Fulks’s miserable child- dence escape. also fired Although their Basham and asserted mental deficiencies. hood shots when Jordan discovered two of case-in-chief, prosecution’s Throughout home, Jordan burglarizing them his son’s manner lawyers crafted the fired at him as testified Fulks well. they cross-еxamined witnesses to which Finally, throughout spree, the crime Fulks strategy. contends that further this Fulks places only and Basham travelled with testimony concerning the November familiar, they Fulks did so which phone completely call undermined the wheel. testi- with behind tending strategy by half of this the first mony November concerning the Fulks, acting independently show certainly damag- to Donna call Ward was Basham, victim, attempted another to lure case, to Fulks’s but viewed in the ing Amy according And Ward. *16 suggesting context of trial evidence of the received that tardiness notice he leading spree, in the crime it role Bruning Agent Donna Ward and would hardly the bullet Fulks makes it was silver prosecution impossi- it testify for the made out to be. pursue him to switch and a gears ble for Moreover, present Fulks was able strategy. He contends had different explanation why an jury with alternative prior prose- to trial that the he been aware called on he had Donna Ward November Donna cution intended call Ward and Although lawyers his defense Bruning, pursued he have Agent days by offered felt three strategy. perhaps trial He would different prepare court was insufficient to Fulks to mitigation, exclusively have focused on call, present- Fulks testify concerning the (a on perhaps impulsiveness focused his and testimony ed from both Jacobi Skid- it down- trait defense counsel claimed Fulks, in suggesting making more at trial inconsistent played because was call, trying young to contact the wom- theory), Basham-as-instigator or with butterfly an with the tattoo with whom he guilty plea adhered to not perhaps his drugs, attempting lure had used and not prove forced the the entire- Amy Perhaps importantly, Ward. more ty of its case. story prosecution’s version of the —that out, however, Amy prosecution points As the Fulks was to lure Ward to the trying pursue strategy hardly paints chose to his trial Fulks an hardware as store— if predator. of an of evidence cast- Even Fulks had the face abundance effective equal, leading, part- persuade an if able to Donna Ward that ing Fulks as been
427
job
for a
daughter
applied
had
B.
store,
had an
hardware
she
inter-
Fulks next asserts that
the court
unlikely
position
view for the
hour
erroneously qualified jurors Goehring,
p.m., Amy presumably
of 10:30
would have
Harvey, and
objection.
Allison over his
applied
known that she had not
for such a
Fulks,
According to
the district court was
job
up
and would not have shown
for the
obliged
jurors
to excuse these
for cause
Fulks,
purported
acting
“interview.” That
responses
because their
questions
on
alone,
bungled
attempt
made such
to bait
voir dire revealed
they
would not
victim might
actually
another
have
bol-
properly
mitigation
consider the
evidence
position
stered Fulks’s
he could not
by
offered
rendering them disquali
have committed the offenses he was ac-
fied to
sit
his
under the Supreme
cused of on his own.
Illinois,
Morgan
Court’s decision in
v.
Finally, the fact that the defense team
U.S.
For
foregoing
good
the
the district
“will fail in
faith to consider the
court did not abuse its discretion in con-
... mitigating
evidence of
circumstances
do,”
cluding
prejudice
that
require
Fulks suffered no
as
as the instructions
him to
he
prosecution’s
Morgan,
result of the
failure to in-
is excludable for cause.
U.S.
2222;
Agent Bruning
Boyde
clude Donna Ward and
on at
see also
S.Ct.
370, 377-78,
pretrial
Accordingly,
California,
witness list.
the
494 U.S.
(1990)
in permitting
(observing
did not err
them to
give effect to”
ton,
(noting
Morgan
“pro-
asserted that he would consider and
F.3d at 878
jurors
who
Id.
mitigating
the exclusion
cess”
evidence.
at 583.
requires
uniformly reject any and all evi
Fulks’s
Goehring over
qualified
“would
The court
factors,
how
mitigating
no matter
objection.
dence of
law”).
the
And
even
“[i]f
on
instructed
may
close,
the issue
be
Although
juror
empaneled
is
and the death
one such
the
not
its discretion in
сourt did
abuse
is disen-
imposed,
State
sentence
on
Goehring to serve
qualifying
Morgan,
to execute
sentence.”
titled
jury.
recognized, Morgan
As we have
Thus,
if
The court people.” killed two Id. at 650. The court voir dire examination the same manner qualified Harvey then objec- over Fulks’s began Goehring’s, explaining as it to her tion. looking jurors
that it was for between the The facts with respect juror Harvey’s always extremes of those who would or voir dire examination serve to underscore impose penalty. never the death It then why appellate provide courts the dis- inquired whether she could miti consider trict courts substantial latitude on the defendant, gating by evidence offered qualification jurors. of trial As best we hearing after evidence the prosecu from can surmise from the transcript of the voir responsible tion that the defendant was for dire proceedings, Harvey by was confused responded murders. two She she questions from both the court and by could. In response questioning de counsel, entirely defense and it is not clear counsel, Harvey fense first asserted that that her by confusion had dissipated impose penalty she would the death end of her voir dire Al- examination. any knowing killing, and intentional but though gave plainly she some answers that just depends then said “it on what satisfy standard, the Morgan certain other inqui facts are.” J.A. 644. After further suggested may answers that she have been ry, automatically she stated that she would unwilling to consider mitigating evidence impose penalty the death if the defendant in the face of evidence that Fulks had murders, committed two but she seems to committed two murders. In qualifying questioning. have been confused however, Harvey objection, over Fulks’s Although entirely the record is not clear call, the court remarked that “[i]t’s a close point, Harvey on this appears did said, demeanor, just but as I hearing her I case, juror not as a understand think her answers were the she could best permitted she would be to consider evi given do limited education. She dence of a second murder though even person struck me as an honest who would only being tried for one. For sincerely try job in way to do her she’s example, lawyer explained when Fulks’s supposed to.” J.A. 665. Given the diffi- concerning she would hear evidence culty gleaning anything constitutionally murders, Harvey “I responded, two transcript relevant from the cold of Har- doing.” be for the case we are Id. at 647. examination, vey’s voir dire the court’s de- And when the asked her whether point termination on this is entitled to our hearing about two murders would “cause Harvey deference. And because ultimate- prejudiced against to become so [her] ly impose asserted that she would not defendant that go would not forward [she] penalty solely death of two basis mitigation and hear his case in before murders, court did abuse its dis- mind,” making up Harvey responded, [her] in qualifying cretion her to sit on Fulks’s “No, no, no, mean, just I no. No. because jury. people, listening he killed two I would be all basing the facts but it on the one *19 3. that trying.” By we were Id. at 648. the juror exchange, Harvey began end of this seemed to The court voir dire of grasp fact legally Goehring the that she would be Allison as it had with and Har- only reading to those indi- her dire statements
vey, explaining her that Fulks is voir middle,” literally. as Viewing “in those who too her examination the not viduals whole, unlikely think that always highly the death a we it impose never would to of the word jury. imply, by could J.A. 708- Allison meant use penalty, serve on “listen,” that she to listen to the During exchange, Allison assured intended 09. it. The willing entirely disregard that to consider evidence but the court she was in evidence, trial court—which us was questioned when unlike mitigating position to Allison’s demeanor the death best view impose whether she would about credibility her convinced murder, and assess respond- a she penalty for double —was evi- carefully weigh that she would all the ed, go to “I—I would have to —listen That an- finding, given dence. Allison’s case, just I on whole wouldn’t decide dire, on voir to deference. swers is entitled ques- response Id. at 714. In that.” Fulks trial court Finally, asserts that the tioning by lawyers, Allison as- defense disqualified because should have Allison automatically not serted she would equivocated on could hold she whether she death impose penalty, explaining a position opposed by true to her fellow willing to is “I’m listen to whatever said jurors. Her later to the court statement time, decision, my at that and make that’s unpopular that she could hold firm to an you.” I tell at 722. all can Id. When entirely if position convinced of its correct- inquired defense counsel whether she ness, however, any deficiency cures her firm to pоsition opposed could hold equivocating earlier As a re- statement. jurors, but equivocated, her fellow she she sult, juror appellate contentions later told the court she could stick with rejected.7 Allison must also be “entirely if she convinced” position was at position that her was correct. Id. 726. C. qualified The court Allison over Fulks’s objection.
Fulks contends
because Allison
next
the dis
asserts
only
lawyers
advised his
that she would trict court erred in
motion for
denying his
evidence,
mitigating
“listen” to
she never
juror
a new trial on the
Allison’s
basis
meaningfully considering
committed to
failure
disclose her husband’s murder
however,
In
contending,
timely
such evidence.
manner.
so
See United States
challenging
cally impose
penalty,
addition to
district
death
see id. at
qualification Goehring, Harvey,
spell
types
court's
it did
out the
Allison,
questioning
required.
Fulks asserts that
the manner
voir dire
In our
decision, however,
Tipton
district
their
which the
court conducted
voir
we ruled that in-
deprived
quiring
always
juror
dire examinations
him of
fair trial.
into
"would
whether
Specifically,
impose
penalty
every
he
case
maintains
court's
vote
death
Morgan.
questions
general
satisfy
guilty
capital
were too
where a defendant
of a
is found
establishing
capital
satisfy
In addition to
that a
de-
would be
offense”
sufficient to
jury
Morgan principle.
is entitled
fendant
to a
that will consider
In this
878-79.
evidence,
case,
mitigating
Morgan
juror
con-
the Court
the court asked each
whether he
such
re-
automatically impose
cluded that
a defendant must also
or she would
the death
murder,
"adequate”
penalty
capital
inquired
ceive the benefit of
dire
a voir
into how
identify unqualified jurors.
juror
See 504 U.S.
evi-
each
vote when faced with
murder,
Although
permitted
not
‘foreclose the
Turner,
v.
389
asserting that
See United States
is
cause.
party
to a
who
available
Cir.2004)
(4th
(observing
impartial
111,
of an
F.3d
115
not have the benefit
he did
”
Greene,
357,
challenges
qualifications
v.
150 F.3d
jury.’ Fitzgerald
that we review
(4th Cir.1998)
discretion).
McDonough,
(quoting
our
jurors
of
As
363
of
for abuse
(Blackmun,
556,
clear,
of her husband’s murder was surrounding
the circumstances
the nondis-
2.
a
support
finding
closure would not
challenge
Fulks’s
qualifica
The district court thus did
implied bias.
juror Plyler
tion of
on
age
centers
denying
abuse its discretion
Fulks’s
Plyler
similarities between
daugh
and her
for a new trial.
motion
ter,
hand,
on the one
and Donovan and
Burns, on the other. At
the time of
D.
trial, Plyler
Fulks’s
was the same age as
Donovan had been when she was killed
concerning
final
his
contention
old)
(forty-four years
Plyler’s
and
daugh
case,
jurors in
his
Fulks asserts
ter was close to the same age as Burns
qualified jurors
improperly
district court
had been
(twenty-one
when she was killed
objection.
Novinger
Plyler
and
over his
years
and
respectively).
nineteen
old
above,
explained
As
we review a district
questioned
concerning
When
on voir dire
juror
qualification
prospective
court’s
of a
ability
impartial, Plyler initially
her
to be
discretion,
may
for abuse of
and we
find
equivocated,
advising
“[r]ight now I
if
only
per
such an abuse
a
se rule re-
say
could
I
being
would be fine with
neu
juror’s
quired
disqualification
a
or if the
tral,
getting
being
but
there and
in front
disregard
court
a clear
“demonstrate[d]
hearing everything,
I don’t know.
juror.
for the actual
bias”
See
you
way, maybe
it that
put
When
not. But
Turner,
tive are In order for me to continue on this path, that the the conclusion dis- compels Goins major I yet have made another decision its discretion trict court did abuse my George life. [Donovan’s first hus- re- denying Fulks’s motion to admit the I getting are divorced. I band] polygraph his examinations. sults of cannot and will not live with his abuse. short, ha-ha, long story To make a he F. sexually got very violent with me. He Fulks next contends that district also threatened to kill me he when Ezell, permitting Judy Don- court erred and, course, in July, done. This was witness, and a ovan’s sister drunk. he was And this is not the first jury a letter from aloud to the read lay time he done that. As I has there We, course, to Ezell. also Donovan crying waiting to see what he would *24 ruling the district court’s on this review next, promise do I myself made that evidentiary for abuse of discretion. issue it would be the last time that he would Forrest, (observing at 79 See 429 F.3d again, ever hurt me whether he killed rulings admissibility we review on of evi- Well, me or I I am survived. here to discretion). dence for abuse of write, I do not deserve to in be abused above, briefly As discussed any way, shape, or form. IAnd won’t concerning heard from Ezell by any again. man be sexual abuse she and Donovan had suf- fered at the hands of their father. Ezell 1990, in she had sent a letter
testified confronting him about the their father Judy, my time in I for the first life have expressing willingness abuse and her taken back what was taken from me as a him. forgive copy She sent a of the letter I my small child. am control of life Donovan, replied and Donovan in a let- great, powerful feeling. and that is a read, objection, over Fulks’s ter Ezell J.A. 2544-47. part, In the letter jury. pertinent to the
stated as follows: Fulks now contends the dis you
The letter that wrote and sent to permit trict court abused its discretion You powerful. Leo was so must be ting Ezell to read Donovan’s letter to the I I high. an emotional know am. jury, asserting prej that the letter was so you me. I including Thank for cried deny process. udicial as to him due In again. I when read over and over We Tennessee, Payne Supreme v. Court— you I healing. Judy, are wish were abrogating prior precedents in Booth v. here. 496, 2529, Maryland, 482 U.S. 107 S.Ct. 96 (1987),
L.Ed.2d
South Carolina
Gathers,
2207,
U.S.
S.Ct.
(1989)
left,
stopped
say
Eighth
Before Mom
she
L.Ed.2d 876
—ruled
bye....
that I car-
no
se bar to the
My
anger
per
fear and
Amendment erects
impact
ried for her has
lifted.
I feel love
of victim
evidence
been
admission
my
capi
I
of a defendant’s
accept
sentencing phase
heart for her. And
herself,
I wаnted her to tal trial.
111 S.Ct.
someone
See
(1991).
In
rul
my
be.
I will be that mother to
inner
Ring v.
U.S.
S.Ct.
G.
(2002),
that a defendant
factor,
aggravating
of an
jury finding
foregoing,
to the
Fulks’s con-
Pursuant
protections applicable
guilt-or-inno-
rejected,
of error are
and the
tentions
trial,
it does not follow
eenсe
of the district court is affirmed.
judgment
protections
to the
defendant is entitled
AFFIRMED.
the Evidence Rules. The Evidence Rules
param
“do not set forth the constitutional
WILLIAMS,
Judge, concurring:
Circuit
evidence,
eters of admissible
nor does
by
I
reached
agree
judgment
with the
criminal defendant have a constitutional
majority
I and
and concur
Parts
right
to have the [Evidence Rules]
majority opinion.
II.A.2.b.-—III
Fell,
v.
place.” United States
360 F.3d
agree
I
with the result reached
While
Cir.2004).
(2d
Indeed,
135, 144
gener
as a
remainder,
disagree
my good
I
with
matter,
provide
Rules
al
the Evidence
colleagues’ interpretation of 18 U.S.C.A.
greater protection than that which is con
(West 2000).
I
hold
would instead
See,
stitutionally
e.g., Dowling
mandated.
court contravened the
the district
States,
342, 352-54, 110
v. United
493 U.S.
by allowing
statute
Donna Ward and
(1990)
(ruling
ation.2
case,
provided
In this
Government
ultimately
list of most of the witnesses it
only
abso-
exception
to the statute’s
produced
proving
for
the indictment
listing
of “the witnesses
lute rule that
ample time
the statute. The
under
stat-
proving
...
the indictment” shall be
ute, however, requires that
the defendant
to trial is where
provided
days prior
three
provided
be
with a list “of the witnesses to
production
may jeopardize
of “the list
any
produced
prоving
trial for
safety
person.”
life or
18 U.S.C.A.
be
son,
(as
(D.C.
1880).
deciding
party
I
without
neither
indictment.” 18 U.S.C.A.
gress’s relatively
willingness
recent
to
added). Thus,
no more
sis
the statute is
explicit excep-
statute with an
amend this
question
of after-discovered
“silent”
against
reading
counsels
tion further
prove
that are offered to
the
witnesses
exceptions into the statute.
judge-made
indictment,
concludes,
majority
ante
as the
1994,
exception
to
Congress added the
422,
question
than it
“silent” on the
of
is
mandatory
the statute’s
directive for when
prior-discovered witnesses that are offered
production of “the list
witnesses and
[of
speaks only
It
of
prove
the indictment.
may jeopardize the life or safe-
veniremen]
witnesses,
definite
using
the
the
ty
any person.”
Violent Crime Control
exception,
article “the” without relevant
1994,
Act
and Law Enforcement
Pub.L.
language calls for a list
plain
the statute’s
103-322,
VI,
60025,
§
Tit.
108
No.
Stat.
every
produced
of each and
witness to be
(1994).
fact
1982
recent Con-
indictment,” id.,
proving
at trial “for
the
willing
§
gress was
to amend
3432 with
proving the indict-
not “the witnesses for
allay
exception
should
fears
Con-
ment that to date have been discovered.”
if
gress will fail to act
the future
it—like
most of the Article III
courts
have
unmistakingly
is
clear that if
The statute
question
considered the
—concludes
the
to call a witness for the
Government is
application
plain meaning
of the
indictment,
purpose
proving
unnecessarily
statute “would
subvert
provided
name of that witness must be
truth-seeking
proceed-
function of criminal
capital
defendant at least three entire
Moreover,
ings.” Ante at 423.
when
trial un-
days prior to commencement of
“Congress explicitly enumerates certain
providing
jeopardize
exceptions
general prohibition,
name would
to a
addi-
less
exceptions
tional
not
be
implied,
are
safety.
Goldsby v.
personal
United
Cf.
contrary legis-
absence of
of a
evidence
States,
216,
160 U.S.
16 S.Ct.
40
Smith,
lative intent.”
v.
United States
(1895) (allowing
L.Ed. 343
an undisclosed
160,
1180,
U.S.
113 L.Ed.2d
testify
rebuttal witness to
because the
(1991) (emphasis
added and internal
phrase
statute’s
“the
combination of
omitted).
quotation marks
proving
phrase
witnesses” with the
“for
majori
I
I
Finally,
note that
share the
clearly
the indictment”
to the wit-
refer[s]
ty’s
exception
recog
instinct that
it
upon
by prosecution
nesses relied
grounded
judgment
nizes is
sound
charge [and does]
establish
extend
perfect
policy
makes
sense as a
matter.
may
to such witnesses as
be rendered
Nonetheless,
Congress’s
I believe it
is
necessary
(empha-
for
purposes.”
rebuttal
place
if it
policy
ours—to make
—not
added)).
sis
Unless the result reached from
chooses,
statute,
so
amend the
as
has
following Congress’s plain language is ab-
willingness
recently
shown a
to do as
as
(which
not),
surely it
I think it
surd
is
best
Co.,
Sigmon
Apfel,
See
Coal
Inc.
“interpret[
the Court to
3432 ‘liter-
]
(4th
Cir.2000), aff'd,
226 F.3d
ally’,”
n.
especially
ante at 423
when that
U.S.
S.Ct.
often witness, as a rebuttal witness
discovered contends it could have Government
as the (See Br. at Appellee’s in this case.
done Bruning “would that Ward and (arguing only appropriate, but also
have made witnesses”)).
devastating, rebuttal short, I district would hold in allowing
court erred the two witnesses not included on the witness list
that were testify during prosecution’s case-in- Nonetheless, I would find the error
chief. undertaking a traditional
harmless after 52(a) analysis in
Rule harmlessness order prej-
“to determine whether the error was Olano, States v. 507 U.S.
udicial.” United
725, 734, 113
(1993). Government, as I believe that the majority’s by persuasive dis-
evidenced in Part II. prejudice
cussion of lack of
A.2.b., harm- proving has met its burden I Accordingly, concur in the
lessness. majority. reached
judgment GARCIA, Petitioner-Appellee,
Andrew QUARTERMAN, Director,
Nathaniel Department of Jus
Texas Criminal
tice, Institutions Divi Correctional
sion, Respondent-Appellant. 05-50382.
No. Appeals,
United States Court
Fifth Circuit.
June