UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHADRICK EVAN FULKS, Defendant-Appellant.
No. 04-33
United States Court of Appeals for the Fourth Circuit
July 27, 2006
Argued: May 23, 2006. PUBLISHED.
Appeal from the United States District Court for the District of South Carolina, at Florence. Joseph F. Anderson, Jr., Chief District Judge. (CR-02-992)
Before WIDENER, WILLIAMS, and KING, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opinion, in which Judge Widener joined. Judge Williams wrote a concurring opinion.
COUNSEL
OPINION
KING, Circuit Judge:
Chadrick Evan Fulks appeals from the death sentence imposed on him in the District of South Carolina on his federal convictions for carjacking and
I.
A.
Fulks, who grew up in the tri-state area around Huntington, West Virginia, began dating an exotic dancer named Veronica Evans in April 2002. Shortly thereafter, Fulks, who was then twenty-five years old, began living with Evans and her three-year-old son Miles in the eastern Kentucky community of Lewisburg. On June 11, 2002, Fulks and Evans were married. Fulks supported his new family in the same way he had supported himself for years — by breaking into cars and stealing. And as he had with other women, Fulks often became violent with Evans, sometimes beating her severely and assaulting her sexually.
Branden Basham had been housed at the HCDC on bad check charges for over a year when Fulks arrived in late August 2002. According to guards at the prison, Basham was disruptive and annoying, often pestering his fellow inmates. In order to protect him from other prisoners, Basham was frequently reassigned cell mates, and, in mid-October 2002, he was placed in a cell with Fulks. On November 3, 2002, after about two months in custody, the Kentucky State Police served Fulks with an indictment charging him with first degree abuse of a child aged twelve years or younger (Miles). The next evening, at approximately 6:30 p.m., a jailer released Fulks and Basham, at Basham‘s request, into an outdoor recreation area. The jailer became diverted administering medication to other inmates, and when she returned at about 8:00 p.m. to check on Fulks and Basham, they were gone. They had escaped from the HCDC through the ceiling of the recreation area by using a makeshift rope made of blankets and sheets.
By the following day, November 5, 2002, Fulks and Basham had made their way on foot to the residence of James Hawkins, about eight to twelve miles from the HCDC. Basham approached the residence and, after using the phone, persuaded Hawkins to drive him and Fulks to a nearby convenience store. Shortly after departing from the house, Hawkins agreed to drive Fulks and Basham to their car, which they claimed to be located about forty miles away in Robards, Kentucky. At some point, Basham pulled a knife on Hawkins, and Fulks ordered Hawkins to pull to the side of the highway so that Fulks could drive. Soon thereafter, Fulks stopped the truck on a remote state road, intending to abandon Hawkins. Basham started to tie Hawkins to a tree, but Fulks, dissatisfied with Basham‘s effort, soon took over the job. Once Fulks was convinced that Hawkins would be unable to escape, he and Basham departed in Hawkins‘s truck. Hawkins freed himself some fifteen hours later, hailed a passing motorist, and called the police. According to Hawkins‘s testimony at trial, although Basham held him at knifepoint throughout the carjacking incident, Fulks remained in charge, with Basham merely following Fulks‘s orders.
After leaving Hawkins, Fulks and Basham drove to Portage, Indiana, where, on November 6, 2002, they abandoned Hawkins‘s truck at a hotel and proceeded on foot to a trailer shared by Tina Severance and Andrea Roddy. Fulks had met Severance at the Westville (Indiana) Correctional Institute in 2001, while he was serving time there and she was working as a correctional officer. After a few hours in the trailer, Fulks and Basham became very nervous, and the four of them (Fulks, Basham, Severance, and Roddy) travelled in Severance‘s van to the Sands Motel in northern Indiana, where they spent the next two nights. At some point while at
The four of them then drove Severance‘s van to Sturgis, Michigan, where they rented a motel room. Basham and Roddy spent the night of November 8, 2002, at the motel, while Fulks and Severance spent that night in Goshen, Indiana, smoking marijuana and methamphetamine with Fulks‘s brother, Ronnie Fulks. The next day, Fulks and Severance returned to the Sturgis motel to find Basham crouched on the floor holding a gun. Apparently convinced that the authorities had caught up with them, Basham was highly agitated, repeatedly asserting that he was going to shoot a police officer. He eventually calmed down, and the four then drove to the Indiana home of Ronnie Fulks, where they spent the night.
On November 10, 2002, Fulks, Basham, Severance, and Roddy, with Fulks driving Severance‘s van, travelled to Piketon, Ohio, where they checked into a Town and Country Motel. They then drove to a nearby Wal-Mart, where Basham wrote bad checks for items that Roddy later returned for cash. Also on November 10, 2002, at a K-Mart in Piketon, Ohio, Fulks met a young woman with a butterfly tattoo (later determined to be Heather Jacobi) with whom he used drugs. On that same date, Fulks stole a purse and cell phone belonging to nineteen-year-old Amy Ward from a vehicle parked at a Wal-Mart in Waverly, Ohio. On the following day, Fulks, Basham, Severance, and Roddy drove to Kenova, West Virginia, and rented a room at the Hollywood Motel. Fulks and Basham then left the motel, not to return until the early morning hours of November 12, 2002.
According to statements Fulks made to the FBI in 2003, after he and Basham left the Hollywood Motel on November 11, 2002, they smoked methamphetamine and then drove to the Barboursville Mall, near Huntington, West Virginia, intending to break into cars and steal purses. When they arrived at the mall, they split up. The next time Fulks saw Basham, he was driving a car up and down the rows of the parking lot and yelling Fulks‘s name. In the passenger seat was the owner of the car, a nineteen-year-old Marshall University student named Samantha Burns. After spotting Basham, Fulks returned to Severance‘s van and followed Basham and Burns to a Foodland grocery store, where Fulks left the van and began driving Burns‘s car. They then visited several automatic teller machines and withdrew cash from Burns‘s account. They later returned to the Foodland to retrieve the van, at which point Basham announced that he wanted to find a place to rape Burns. Fulks then followed Basham in Severance‘s van to a secluded area by the Ohio River. Fulks parked some distance from Burns‘s car, and in such a way that his view of the passenger side of the car was obstructed. He observed Basham exit the driver‘s side of the car and walk around to the passenger‘s side. He saw nothing else until about twenty minutes later when Basham — alone — drove Burns‘s car to where Fulks was parked and informed Fulks that he wanted to burn the vehicle in order to remove any fingerprints. After buying gasoline, Basham set fire to Burns‘s car on
On November 12, 2002, Fulks, Basham, Severance, and Roddy drove the van to Little River, South Carolina, where Fulks had lived during the late 1990s. During their trip to Little River, Basham repeatedly taunted Severance by asking whether she wanted to go “swimming” in the Ohio River. Fulks eventually ordered Basham to stop teasing Severance, and Basham complied. When the four of them arrived at Little River, they checked in at the Lake Shore Motel. Fulks and Basham spent the following day, November 13, 2002, breaking into cars and stealing purses. On November 14, the four left Little River for the Beach Walk Hotel in Myrtle Beach, South Carolina. After checking in, Fulks and Basham left the hotel in Severance‘s van.
At around 2:00 p.m. on November 14, 2002, Carl Jordan stumbled upon Fulks and Basham burglarizing his son‘s residence outside Conway, South Carolina. According to Jordan, both Fulks and Basham fired gunshots at him, with Fulks shooting out the back window of Jordan‘s truck.2 Jordan then attempted to retreat in his truck, with Fulks and Basham following in Severance‘s van. Fulks and Basham eventually gave up the chase, abandoned Severance‘s van, and stole a white pickup truck. They then made their way to a Wal-Mart store in Conway, South Carolina, where, according to Fulks‘s 2003 statements to the FBI, they planned to steal a car.
At 2:37 p.m. that same day, a Wal-Mart surveillance camera recorded a blue BMW driven by Alice Donovan enter the Wal-Mart parking lot, with Fulks and Basham following closely behind. As Donovan parked, Basham exited the truck and approached the BMW while Fulks circled the row of vehicles and parked opposite the BMW. Both vehicles then began moving again, travelling outside the range of the cameras. Fulks soon abandoned the pickup truck and began driving the BMW, with Basham and Donovan in the back seat. After leaving the Wal-Mart parking lot, Fulks and Basham made several (some successful) attempts to withdraw money from Donovan‘s account at various automatic teller machines. At some point, they crossed into North Carolina and stopped at a cemetery, where first Basham and then Fulks raped Donovan. According to Fulks‘s statements to the FBI, he did not want to rape Donovan but felt pressure from Basham to do so. They then reentered South Carolina and, according to Fulks, Basham ordered him to stop along a dirt road so that they could leave Donovan tied up, in order to prevent her from contacting the authorities. Fulks complied with this request and Basham, carrying a gun but no rope or tape that Fulks could see, began leading Donovan away from the car. Donovan implored Fulks to convince Basham to leave the gun in the car, but Basham refused to do so. Basham then led Donovan into the woods and out of Fulks‘s sight. He returned
Fulks and Basham then returned to the Beach Walk Hotel in Myrtle Beach, where they informed Severance and Roddy that the police were in possession of the van, and that Fulks and Basham needed to return to West Virginia alone. According to Fulks, it was on their return journey to West Virginia that Basham first informed him that he had killed Burns and Donovan. On November 15, 2002, Fulks and Basham arrived in Huntington, West Virginia, and spent the next two nights smoking crack cocaine at the residence of Beth McGuffin, a friend of Fulks. McGuffin testified that, during the time she spent with Fulks and Basham, Fulks controlled what he and Basham did.
Two days after arriving at McGuffin‘s home, on November 17, 2002, Fulks and Basham drove to the Ashland Mall in nearby Ashland, Kentucky, where they planned to break into cars. At around 7:30 p.m., in the Ashland Mall parking lot, Basham attempted to carjack Deanna Francis and her fifteen-year-old daughter. After Francis reported the incident, a police officer spotted Basham and began to pursue him on foot. Basham initially eluded the officer by running behind some railcars, but he was apprehended at around 9:00 p.m. that evening, hiding across the railroad tracks in the Ohio River.
Fulks returned to McGuffin‘s home late that same evening and was there when the television stations reported Basham‘s arrest. The following day, November 18, 2002, Fulks left Huntington in Donovan‘s BMW for his brother‘s home in Goshen, Indiana. That evening, an Ohio State Trooper, having observed the BMW and ascertained that it was stolen, attempted to apprehend Fulks at a rest area near Marion, Ohio. Following a highway chase reaching speeds of 130 miles per hour, Fulks narrowly escaped. He arrived at his brother‘s home in Indiana on the evening of November 19, 2002, and, on the morning of November 20, 2002, hid the BMW in a barn near Bristol, Indiana. Police officers had earlier set up a surveillance operation at Fulks‘s brother‘s home and, on the afternoon of November 20, 2002, after a brief foot chase, Fulks was finally apprehended.
B.
1.
Fulks and Basham were initially indicted in the District of South Carolina on December 17, 2002. On April 23, 2003, the grand jury returned a superseding indictment charging Fulks and Basham with eight separate offenses and setting forth special findings supporting the imposition of the death penalty on the first two counts: carjacking resulting in Donovan‘s death (
On September 12, 2003, the prosecution notified Fulks and Basham of its intention to seek the death penalty against them on the carjacking and kidnapping counts. Thereafter, on January 29, 2004, the district
On May 4, 2004, Fulks tendered pleas of guilty to all eight counts in the superseding indictment. With regard to the carjacking and kidnapping counts on which the prosecution was seeking the death penalty, Fulks admitted in the plea colloquy to raping Donovan but disclaimed any knowledge of or participation in her murder. The substance of his admission tracked his 2003 statements to the FBI, in which he generally admitted his involvement in the crime spree but claimed that Basham had killed both Burns and Donovan without his knowledge. The district court accepted Fulks‘s guilty pleas on May 7, 2004.
On May 10, 2004, the prosecution, as required by
Jury selection was conducted in the district court from May 10 to May 21, 2004. As relevant here, Fulks challenged for cause venirepersons Richard Goehring, Lisa Harvey, and Sylvia Allison on the ground that the strength of their beliefs in favor of the death penalty rendered each of them unwilling to consider any mitigating evidence that he would offer. Fulks also challenged for cause venirepersons Joni Novinger and Elizabeth Plyler, contending that their personal experiences rendered them incapable of impartially serving on his jury. Specifically, Fulks asserted that Novinger‘s ability to be impartial was impaired by the fact that her sister had been the victim of a sexual assault, and that Plyler‘s impartiality was impaired because she and her daughter were roughly the same ages (respectively) that Donovan and Burns had been when they were killed. The district court rejected each of these challenges and qualified these five venirepersons over Fulks‘s objections.
2.
Fulks‘s sentencing trial commenced on June 1, 2004, with the prosecution‘s opening statement. In its opening, the prosecution, anticipating Fulks‘s strategy of casting Basham as the leader of their crime spree and the actual murderer, forecast the evidence it would introduce to demonstrate that Fulks played an active, if not leading, role in the entire criminal enterprise. Among other things, the prosecution
In response, defense counsel countered in its opening statement with a forecast of the evidence it planned to present, suggesting that Basham — rather than Fulks — was the leader, instigator, and killer. For example, defense counsel advised the jury it would learn that Basham had lured Hawkins from his home and held him at knifepoint, had carried a gun throughout the crime spree, had expressed his intention of killing a police officer while in the Sturgis motel room, had asked Severance whether she wanted to go “swimming” in the Ohio River the day after Burns was murdered, and had worn Burns‘s ring around his neck. In addition to the evidence depicting Basham as the leader, defense counsel outlined its case for mitigation, explaining that the jury would hear that Fulks was a victim of Fetal Alcohol Spectrum Disorder, and had been raised in abject poverty by alcoholic, abusive parents who neglected his education, encouraged criminality, and failed to provide him with the basic necessities of life. Finally, in tying its two main points together, defense counsel asserted that once the jury learned more of Fulks‘s life, background, and criminal history, it would understand that the murders of Donovan and Burns were not crimes Fulks would have committed on his own.
On June 2, 2004, prior to the commencement of the prosecution‘s case-in-chief, the court granted the prosecution‘s motion to exclude testimony concerning three privately administered polygraph examinations, the results of which indicated that Fulks had truthfully disclaimed knowledge of, or participation in, the murders of Burns and Donovan. The prosecution then presented testimony from the first of approximately a hundred witnesses that it called during its three-week presentation of evidence.
Amy Ward, who was scheduled to testify on June 11, 2004, arrived in South Carolina on June 10, accompanied by her father Byron Ward. Just prior to Amy‘s testimony, Byron, while engaged in small talk with FBI Agent Jeff Bruning, mentioned the November 17, 2002 phone call his wife Donna had received regarding Amy‘s purported job application at the hardware store. Agent Bruning soon began investigating whether the call could be traced to Fulks, and, with the assistance of the Sprint telephone company, discovered that the phone call had been placed using a prepaid phone card found in Fulks‘s possession at his arrest. With further investigation, it was established that the call had been placed at 8:38 p.m. on November 17, 2002. Because Basham was hiding from the police in the Ohio River at that very moment, the timing of the call appeared to conclusively establish that Fulks, acting alone, had placed the call. On June 17, 2004, the court ruled that Donna Ward and Agent Bruning could testify regarding the call even though they had not been included on the prosecution‘s pretrial witness list. The court then offered Fulks a three-day trial hiatus so that he could prepare to meet their testimony, but Fulks‘s counsel declined the offer, stating that a three-day recess would be useless at that point in the trial.
The prosecution‘s final witness, presented on June 22, 2004, was Donovan‘s sister Judy Ezell. Ezell, a victim impact witness, primarily testified concerning the
Fulks presented testimony to the jury from June 22 to June 25, 2002. That testimony consisted primarily of mitigating evidence, detailing Fulks‘s miserable childhood as well as his asserted mental deficiencies. Fulks also presented the testimony of Heather Jacobi and Pete Skidmore, through which Fulks attempted to explain that, by his November 17, 2002 call to Donna Ward, he was not trying to lure a new victim (Amy Ward), but rather was attempting to locate the young woman with the butterfly tattoo with whom he had used drugs. Jacobi, the young woman with the butterfly tattoo, testified that she had met Fulks in November 2002 at a K-Mart parking lot in Portsmouth, Ohio, a city about thirty miles from Waverly, Ohio, where Fulks, on November 10, 2002, had stolen Amy Ward‘s purse and phone from her car. Skidmore‘s testimony served largely to corroborate what Jacobi had said.
The parties delivered their closing arguments to the jury on June 29, 2004. On the following day, the jury returned a unanimous verdict, recommending that Fulks be sentenced to death on both the carjacking and kidnapping counts.
3.
Shortly after the verdict was announced, defense counsel first learned — by virtue of a July 1, 2004 article on Fulks‘s trial in the Myrtle Beach Sun News — that juror Allison‘s husband had been murdered in 1971, six weeks after the couple had been married and while she was pregnant with their child. Prior to jury selection, Allison, along with all other prospective jurors, was required to complete a written juror questionnaire. As relevant here, Allison left blank Question 42, which inquired into whether she or any close relatives had been a crime victim.
On July 9, 2004, Fulks moved for a new trial on the basis of Allison‘s failure to disclose her husband‘s murder. On July 16, 2004, the district court conducted a hearing to ascertain whether Allison had been actually biased against Fulks or whether the circumstances surrounding her husband‘s murder and her failure to disclose it warranted a finding of implied bias. At the hearing, Allison testified that her failure to answer Question 42 was inadvertent. She asserted that her selection for the jury surprised her and that she had hoped her husband‘s murder would lead to her being dismissed from the venire. When asked by the court whether there was “even any remote possibility” that her husband‘s murder “had some influence in [her] deliberations,” Allison responded, “None at all.” J.A. 3046.
On December 20, 2004, the district court denied Fulks‘s motion for a new trial and imposed sentence: death on the kidnapping count, a separate sentence of death on the carjacking count, and a total of 744 months in prison on the remaining six counts, to run consecutively to the two death sentences. Fulks has timely noted this appeal, and we possess jurisdiction pursuant to
II.
By this appeal, Fulks makes seven contentions: (1) the district court committed reversible error in permitting the prosecution to present the testimony of Amy Ward and Agent Bruning despite its failure to include them on the pretrial witness list
A.
Fulks first contends that the district court committed reversible error in allowing the prosecution to present the trial testimony of Donna Ward and Agent Bruning, neither of whom were included on the pretrial witness list it provided to Fulks pursuant to
1.
Pursuant to
A person charged with treason or other capital offense shall at least three entire days before commencement of trial be furnished with a copy of the indictment and a list of the veniremen, and of the witnesses to be produced on the trial for proving the indictment, stating the place of abode of each venireman and witness, except that such list of the veniremen and witnesses need not be furnished if the court finds by a preponderance of the evidence that providing the list may jeopardize the life or safety of any person.5
As the Supreme Court explained many years ago in its leading case on this provision, the purpose of
Fulks first asserts that, in a capital sentencing trial,
Although the Supreme Court has not decided the issue, in Logan it left open the possibility that “particular witnesses, afterwards coming to the knowledge of the government, or becoming necessary by reason of unexpected developments at the trial, might be permitted, on special reasons shown, and at the discretion of the
We agree with the proposition that
That said, it is beyond question that permitting the prosecution to present witnesses not included on the pretrial witness list deprives the defendant of the notice which
In assessing this contention, we are mindful as well of the purpose which
In sum, a witness not included on the prosecution‘s
2.
First of all, Fulks does not assert that the prosecution‘s failure to include Donna Ward and Agent Bruning on its witness list was in bad faith. He does, however, contend that its failure was due to a lack of diligent investigation, and that he was actually prejudiced as a result. We assess these contentions in turn.
a.
With regard to his diligence contention, Fulks contends that, had the Government conducted a diligent investigation prior to trial, it would have discovered the November 17, 2004 call to Donna Ward prior to the expiration of the
First, we reject Fulks‘s contention that a reasonable investigation on the part of the prosecution necessarily would have included a face-to-face, pretrial interview of Amy Ward. As the prosecution points out, Amy was a minor witness, who testified for only about five minutes concerning a matter entirely collateral to the main issues in the case — that her purse and cell phone were stolen from a vehicle in Ohio on November 10, 2002. Moreover, the prosecution had no reason to believe that the Wards had any useful information to offer, beyond the fact that Amy‘s purse and cell phone had been stolen. Finally, because of the considerable distance between Waverly, Ohio (where Amy Ward lived), and Columbia, South Carolina (where Fulks‘s trial was conducted), the prosecution made the decision to conduct a quick pre-testimony interview when Amy and her father arrived in South Carolina for the trial. The district court did not abuse its discretion in concluding that this decision was reasonable under the circumstances.
Fulks‘s second contention in this regard — that the prosecution should have followed up on the phone card found on Fulks at the time of his arrest, over nineteen months prior to trial — is more troublesome to us than his first contention. For its part, the prosecution asserts that it had no indication that an inquiry into the calls made using the phone card would further the primary objectives of its pretrial investigation: proving that Fulks was understating his role in the multiple offenses committed during the crime spree and countering his case for mitigation. Tracing the calls Fulks made during the crime spree, however, could easily have led to individuals and information, unknown to the prosecution, that would have shed light on Fulks‘s role in the offenses. Indeed, the prosecution would have discovered
the November 17, 2004 call to Donna Ward, if it had followed up on the phone card. Nevertheless, as the prosecution points out, this trial presented unique challenges for everyone, in that the crime spree spanned several states and touched over a hundred individuals the prosecution expected to call as witnesses. In these circumstances, we are unable to conclude that the district court abused its discretion in concluding that the prosecution was diligent in its pretrial investigation, despite its failure to follow up on the calls made using the phone card.
b.
Fulks also asserts that the lack of pretrial notice that Donna Ward and Agent Bruning would testify for the prosecution irreparably prejudiced his defense. Again, because a trial court’s vantage point enhances its ability to discern prejudice to a party’s trial presentation, and because the prejudice inquiry forms part of the court’s determination of whether an after-discovered witness should be permitted to testify, we review for abuse of discretion its conclusion that Fulks suffered no prejudice from the lack of notice that Donna Ward and Agent Bruning would testify. Cf. S. States Rack & Fixtures, 318 F.3d at 597 (observing that decision whether nondisclosure of evidence was “harmless” under
According to Fulks, his trial strategy was twofold: to cast Basham as the instigator and sole murderer, and to present a strong case of mitigation based on Fulks’s mental problems and troubled childhood. Thus, defense counsel’s opening statement emphasized numerous facts suggesting that Basham was more volatile, dangerous, and controlling, and it outlined the evidence detailing Fulks’s miserable childhood and asserted mental deficiencies. Throughout the prosecution’s case-in-chief, Fulks’s lawyers crafted the manner in which they cross-examined witnesses to further this strategy. Fulks contends that the testimony concerning the November 17, 2004 phone call completely undermined the first half of this strategy by tending to show that Fulks, acting independently of Basham, attempted to lure another victim, Amy Ward. And according to Fulks, the tardiness of the notice he received that Donna Ward and Agent Bruning would testify for the prosecution made it impossible for him to switch gears and pursue a different strategy. He contends that, had he been aware prior to trial that the prosecution intended to call Donna Ward and Agent Bruning, he would have pursued a different trial strategy. He would perhaps have focused exclusively on mitigation, perhaps focused on his impulsiveness (a trait defense counsel claimed it downplayed at trial because it was inconsistent with the Basham-as-instigator theory), or perhaps adhered to his not guilty plea and forced the prosecution to prove the entirety of its case.
As the prosecution points out, however, Fulks chose to pursue his trial strategy in the face of an abundance of evidence casting Fulks as an equal, if not leading, partner in the crime spree. Perhaps most damagingly, both Hawkins and McGuffin testified that Basham took orders from Fulks and that Fulks was continually in charge of what the two of them did. Furthermore, the prosecution presented evidence suggesting that Fulks instigated the Kentucky prison break because he was afraid of being sentenced to a lengthy term of imprisonment on child abuse charges that he learned of the day before the escape. And Tina Severance testified that Fulks, not Basham, approached her about obtaining firearms shortly after their escape. Although Basham also fired shots when Jordan discovered the two of them burglarizing his son’s home, Jordan testified that Fulks fired at him as well. Finally, throughout the crime spree, Fulks and Basham only travelled to places with which Fulks was familiar, and they did so with Fulks behind the wheel. The testimony concerning the November 17, 2002 call to Donna Ward was certainly damaging to Fulks’s case, but viewed in the context of the trial evidence suggesting Fulks’s leading role in the crime spree, it was hardly the silver bullet Fulks makes it out to be.
Moreover, Fulks was able to present the jury with an alternative explanation of why he had called Donna Ward on November 17, 2002. Although his defense lawyers felt that the three days offered by the court was insufficient to prepare Fulks to testify concerning the call, Fulks presented testimony from both Jacobi and Skidmore suggesting that Fulks, in making the call, was trying to contact the young woman with the butterfly tattoo with whom he had used drugs, and not attempting to lure Amy Ward. Perhaps more importantly, the prosecution’s version of the story — that Fulks was trying to lure Amy Ward to the hardware store — hardly paints Fulks as an effective predator. Even if Fulks had been able to persuade Donna Ward that
Finally, the fact that the defense team had notice, as early as May 21, 2004, of the November 17, 2002 phone call, further undermines Fulks’s claim of prejudicial surprise. As spelled out above, defense investigator Pete Skidmore learned of the call during his interview of Donna Ward on May 21, 2004, when he travelled to Waverly, Ohio, seeking to determine whether Amy was the girl with the butterfly tattoo. Although the defense lawyers do not recall being notified of the call, they do not dispute that Skidmore advised them of the call via email. To be sure, of course, our inquiry under
For the foregoing reasons, the district court did not abuse its discretion in concluding that Fulks suffered no prejudice as a result of the prosecution’s failure to include Donna Ward and Agent Bruning on its pretrial witness list. Accordingly, the court did not err in permitting them to testify on behalf of the prosecution at trial.
B.
Fulks next asserts that the court erroneously qualified jurors Goehring, Harvey, and Allison over his objection. According to Fulks, the district court was obliged to excuse these jurors for cause because their responses to questions on voir dire revealed that they would not properly consider the mitigation evidence offered by Fulks, rendering them disqualified to sit on his jury under the Supreme Court’s decision in Morgan v. Illinois, 504 U.S. 719 (1992). “[B]ecause [the] inquiry turns in a large part on assessments of demeanor and credibility we cannot duplicate,” we review for abuse of discretion the determination of whether a juror is excludable for cause. United States v. Barnette, 211 F.3d 803, 812 (4th Cir. 2000).
The Supreme Court has ruled that a juror should be excluded for cause if his “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) (internal quotation marks omitted). And, in a capital sentencing proceeding, a juror’s duties include giving meaningful consideration to any mitigating evidence that the defendant can produce. See Eddings v. Oklahoma, 455 U.S. 104, 114 (1982) (observing that sentencer may not refuse to consider any mitigating factor). Thus, where voir dire examination reveals that a juror “will fail in good faith to consider the evidence of . . . mitigating circumstances as the instructions require him to do,” he is excludable for cause. Morgan, 504 U.S. at 729; see also Boyde v. California, 494 U.S. 370, 377-78 (1990) (observing that jury must “be able to consider and
1.
The court commenced voir dire of juror Goehring by explaining that an individual at the extremes, who would either always or never impose the death penalty, is ineligible to serve on the jury. The court advised Goehring that it needed jurors “in the middle” who could base their decision on the law and the facts. J.A. 573. Goehring assured the court that he could do so. In response to questions by defense counsel, however, Goehring asserted that he would automatically impose the death penalty on a defendant who had committed a knowing and intentional murder. But when defense counsel inquired about “circumstances presented about the defendant’s life and background, unrelated to the offense,” Goehring responded that such circumstances would “weigh[ ] into my decision.” Id. at 577-78. He expressed his belief that “abuse” and like circumstances were relevant, but that “say 90 percent of the time, I mean unless its something outrageous,” he would vote for the death penalty. Id. at 578. Where there was evidence that the defendant was responsible for two murders, he asserted that mitigating factors would “become less.” Id. at 579. In response to questions by the prosecution, Goehring again asserted that he would consider and “process” mitigating evidence. Id. at 583. The court qualified Goehring over Fulks’s objection.
Although the issue may be close, the court did not abuse its discretion in qualifying Goehring to serve on Fulks’s jury. As we have recognized, Morgan only requires the exclusion of jurors who would categorically reject any mitigating evidence offered by the defendant. See Tipton, 90 F.3d at 878; see also Yeatts v. Angelone, 166 F.3d 255, 265 (4th Cir. 1999) (observing that only those jurors who would fail to consider mitigating evidence must be removed for cause). Although Goehring initially advised defense counsel that he would automatically impose the death penalty on any defendant who committed a knowing and intentional murder, he also repeatedly asserted that he would consider mitigating evidence. Nevertheless, according to Fulks, Goehring’s statement that he would vote for the death penalty “90 percent of the time” belies the truth of his assertions that he would consider mitigating evidence and demonstrates a strong predisposition toward imposing the death penalty. We agree with Fulks that Goehring’s “90 percent” statement reveals that only a strong case for mitigation would convince him that a convicted murderer deserves mercy. That fact alone, however, did not require his exclusion, for although a juror must be willing and able to consider mitigating evidence, he is entitled to “determine the weight to be given” to any such evidence. Eddings v. Oklahoma, 455 U.S. 104, 115 (1982). Taken as a whole, Goehring’s statements demonstrate that he was willing to consider the mitigating evidence that Fulks could muster. That he might not accord such evidence as much weight as his fellow jurors
2.
The court began juror Harvey’s voir dire examination in the same manner as it began Goehring’s, explaining to her that it was looking for jurors between the extremes of those who would always or never impose the death penalty. It then inquired whether she could consider mitigating evidence offered by the defendant, after hearing evidence from the prosecution that the defendant was responsible for two murders. She responded that she could. In response to questioning by defense counsel, Harvey first asserted that she would impose the death penalty for any knowing and intentional killing, but then said “it just depends on what the facts are.” J.A. 644. After further inquiry, she stated that she would automatically impose the death penalty if the defendant committed two murders, but she seems to have been confused by the questioning. Although the record is not entirely clear on this point, it appears that Harvey did not understand that, as a juror in this case, she would be permitted to consider evidence of a second murder even though Fulks was only being tried for one. For example, when Fulks’s lawyer explained that she would hear evidence concerning two murders, Harvey responded, “I would be for the case we are doing.” Id. at 647. And when the court asked her whether hearing about two murders would “cause [her] to become so prejudiced against the defendant that [she] would not go forward and hear his case in mitigation before making up [her] mind,” Harvey responded, “No, no, no, no. No. I mean, just because he killed two people, I would be listening to all the facts but basing it on the one that we were trying.” Id. at 648. By the end of this exchange, Harvey seemed to grasp the fact that she would be legally permitted to consider both murders, and she ultimately assured the court that she would impose the death penalty if warranted by the facts, “but not just because he killed two people.” Id. at 650. The court then qualified Harvey over Fulks’s objection.
The facts with respect to juror Harvey’s voir dire examination serve to underscore why the appellate courts provide the district courts substantial latitude on the qualification of trial jurors. As best we can surmise from the transcript of the voir dire proceedings, Harvey was confused by the questions from both the court and defense counsel, and it is not entirely clear that her confusion had dissipated by the end of her voir dire examination. Although she gave some answers that plainly satisfy the Morgan standard, certain other answers suggested that she may have been unwilling to consider mitigating evidence in the face of evidence that Fulks had committed two murders. In qualifying Harvey over Fulks’s objection, however, the court remarked that “[i]t’s a close call, but as I said, just hearing her demeanor, I think her answers were the best she could do given her limited education. She struck me as an honest person who would sincerely try to do her job in the way she’s supposed to.” J.A. 665. Given the difficulty in gleaning anything constitutionally relevant from the cold transcript of Harvey’s voir dire examination, the court’s determination on this point is entitled to our deference. And because Harvey ultimately asserted that she would not impose the death penalty solely on the basis of two murders, the court did not abuse its discretion in qualifying her to sit on Fulks’s jury.
3.
The court began voir dire of juror Allison as it had with Goehring and Harvey,
Fulks contends that, because Allison only advised his lawyers that she would “listen” to mitigating evidence, she never committed to meaningfully considering such evidence. In so contending, however, Fulks is reading her voir dire statements too literally. Viewing her examination as a whole, we think it highly unlikely that Allison meant to imply, by use of the word “listen,” that she intended to listen to the evidence but entirely disregard it. The trial court — which unlike us was in the best position to view Allison’s demeanor and assess her credibility — was convinced that she would carefully weigh all the evidence. That finding, given Allison’s answers on voir dire, is entitled to deference. Finally, Fulks asserts that the trial court should have disqualified Allison because she equivocated on whether she could hold true to a position opposed by her fellow jurors. Her later statement to the court that she could hold firm to an unpopular position if entirely convinced of its correctness, however, cures any deficiency in her earlier equivocating statement. As a result, Fulks’s appellate contentions on juror Allison must also be rejected.7
C.
1.
Fulks next asserts that the district court erred in denying his motion for a new trial on the basis of juror Allison’s failure to disclose her husband’s murder in a timely manner. See United States v. Fulks, CR-02-992 (D.S.C. Dec. 23, 2004). We review a district court’s denial of a motion for a new trial for abuse of discretion. See United States v. Stokes, 261 F.3d 496, 502 (4th Cir. 2001). As discussed above, each prospective juror completed a written questionnaire prior to jury selection. Question 42 of the questionnaire inquired whether the prospective juror or a close relative had ever been the victim of a serious crime. Although her husband had been murdered in 1971, just after the couple was married, Allison left Question 42 blank. Unfortunately, neither the court nor the lawyers for either party inquired during voir dire into why Allison had failed to answer Question 42.8
Fulks first learned of the murder of Allison’s husband by virtue of a July 1, 2004 article in the Myrtle Beach Sun News. On July 9, 2004, Fulks moved for a new trial, asserting that Allison’s failure to disclose her husband’s murder and the related circumstances demonstrated that she had been biased against him. The district court conducted a hearing on the issue on July 16, 2004, in order to ascertain whether Allison had been actually biased against Fulks or whether the circumstances surrounding her husband’s murder and her failure to disclose it warranted a finding of implied bias. At the hearing, Allison advised that her failure to answer Question 42 had been inadvertent. Moreover, she asserted that she was surprised that she had been selected for the jury and had hoped that her husband’s murder would lead to her dismissal from the venire. When the court asked whether there was “even any remote possibility” that her husband’s murder “had some influence in [her] deliberations,” Allison responded, “None at all.” J.A. 3046.
By its order of December 23, 2004, the court denied Fulks’s motion for a new trial. Applying the test established by the Supreme Court in McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984), the court first found that, had Allison fully answered Question 42, it would not have excluded her for cause. In this respect, the court observed that it had qualified a juror, over Fulks’s objection, who had been robbed at gunpoint and another whose relative had been the victim of a murder-suicide. The court also noted that, in Basham’s trial, it had qualified over objection a juror whose daughter had been raped twenty-four years earlier. Based on its explicit finding that Allison honestly believed she had disclosed her husband’s murder, the court further concluded that Fulks had failed to show that Allison was actually biased. Finally, the court ruled that the circumstances surrounding her husband’s murder and her failure to disclose it were not extreme enough to warrant a finding of implied bias.
2.
Under the McDonough test, a party is entitled to a new trial on account of a prospective juror’s nondisclosure on voir dire if it can
first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. The motives for concealing information may vary, but only those reasons that affect a juror’s impartiality can truly be said to affect the fairness of a trial.
464 U.S. at 556. As we have heretofore recognized, the Supreme Court, in spelling out the McDonough test, did
Fulks first contends that he is entitled to relief under McDonough. As discussed above, the district court concluded that Fulks failed to satisfy the second part of the McDonough test (that a correct response would have provided a valid basis for a challenge for cause) because the court would not have excused Allison for cause even if she had fully answered Question 42. Given this explicit conclusion, Fulks’s McDonough claim necessarily fails unless the court would have committed reversible error — that is, abused its discretion — in failing to dismiss Allison for cause. See United States v. Turner, 389 F.3d 111, 115 (4th Cir. 2004) (observing that we review challenges to qualifications of jurors for abuse of discretion). As our precedent makes clear, a failure to excuse a prospective juror for cause constitutes an abuse of discretion in only two situations: (1) where a per se rule of disqualification applies; and (2) where the court “demonstrates a clear disregard for the actual bias” of the juror. Id. at 115 (internal quotation marks omitted). Because there is no per se rule requiring the exclusion of a juror whose close relative was a victim of a crime similar to that with which a defendant is being tried, see United States v. Jones, 608 F.2d 1004, 1008 (4th Cir. 1979), Fulks is obliged, in order to prevail on his McDonough claim, to establish that the court clearly disregarded Allison’s actual bias against Fulks.
On this point, Fulks contends that inconsistencies in Allison’s testimony at the July 16, 2004 hearing demonstrated her actual bias against him. Specifically, he asserts that her explanation for the nondisclosure — that she believed she had answered Question 42 and was thus surprised that she was chosen for jury service — is not credible, and reveals that she deliberately concealed her husband’s murder in order to serve on Fulks’s jury. The district court, however, explicitly found, based on her “demeanor and body language,” that Allison honestly believed she had disclosed her husband’s murder. J.A. 3119. That finding is not clearly erroneous and is entitled to deference. Fulks is thus not entitled to a new trial under McDonough.
Moreover, the district court correctly concluded that the circumstances surrounding the murder of Allison’s husband, and her failure to disclose it, did not warrant a finding of implied bias. Because it is generally within a trial court’s discretion
D.
In his final contention concerning the jurors in his case, Fulks asserts that the district court improperly qualified jurors Novinger and Plyler over his objection. As explained above, we review a district court’s qualification of a prospective juror for abuse of discretion, and we may find such an abuse only if a per se rule required a juror’s disqualification or if the court “demonstrate[d] a clear disregard for the actual bias” of the juror. See Turner, 389 F.3d at 115.
1.
On her written questionnaire submitted prior to the jury selection proceedings, Novinger indicated that her sister had been a victim of sexual assault. When questioned on voir dire, Novinger assured the court that she could be fair, notwithstanding her sister’s experience. The court then qualified Novinger over Fulks’s objection. As discussed above, there is no per se rule requiring the exclusion of a juror whose close relative was a victim of a crime similar to that with which the defendant is charged. See Jones, 608 F.2d at 1008. Thus, the court abused its discretion in qualifying Novinger only if it “demonstrated a clear disregard for [her] actual bias” against Fulks. Turner, 389 F.3d at 115. As noted, Novinger assured the court that she could be fair, and Fulks can point to nothing other than her sister’s sexual assault to suggest otherwise. Accordingly, the court did not abuse its discretion in qualifying Novinger as a juror in Fulks’s trial.
2.
Fulks’s challenge to the qualification of juror Plyler centers on the age similarities between Plyler and her daughter, on the one hand, and Donovan and Burns, on the other. At the time of Fulks’s trial, Plyler was the same age as Donovan had been when she was killed (forty-four years old) and Plyler’s daughter was close to the same age as Burns had been when she was killed (twenty-one and nineteen years old respectively). When questioned on voir dire concerning her ability to be impartial, Plyler initially equivocated, advising that “[r]ight now I could say I would be fine with being neutral, but getting there and being in front and hearing everything, I don’t know. When you put it that way, maybe not. But right now sitting here I say I could.” J.A. 613. When pressed on whether the age similarities between her and Donovan, and her daughter and Burns, would influence her decisions as a juror, Plyler asserted that “I would think that, ‘Oh my gosh, my daughter is that age. Well, gosh, I’m that age,’ that kind of thing, but I think I — I still feel like I could be fair.” Id. at 613-14. The court then qualified Plyler over Fulks’s objection.
As no per se rule requires the exclusion of jurors who have been victims (or whose close relatives have been victims) of a crime similar to that with which the defendant is charged, see Jones, 608 F.2d at 1008, it follows a fortiori that closeness in age between a prospective juror and her
E.
Fulks next asserts that the district court erroneously excluded testimony concerning three polygraph examinations administered to him prior to trial. See United States v. Fulks, CR-02-992 (D.S.C. July 7, 2004). The results of those examinations indicated that Fulks’s 2003 statements to the FBI had been truthful and that he neither knew of nor participated in the murders of Burns and Donovan. We review for abuse of discretion a trial court’s rulings concerning the admissibility of evidence. See United States v. Forrest, 429 F.3d 73, 79 (4th Cir. 2005).
Unfortunately for Fulks, his contention on this point is foreclosed by our decision in Goins v. Angelone, 226 F.3d 312 (4th Cir. 2000), abrogated on other grounds by Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000). In that case, Goins asserted that the prosecutor had committed a Brady violation by failing to disclose the results of a polygraph test taken by Barry Scott, who, according to Goins, had committed the murders with which Goins was charged. See 226 F.3d at 325. In disposing of Goins’s Brady claim, we first concluded that, because the record did not reveal which questions Scott had answered untruthfully, there was no basis on which to conclude that the polygraph results were favorable to Goins. Id. We also ruled, however, that Goins could not demonstrate that the polygraph results were “material” because polygraph results were inadmissible for any purpose under Virginia law. Id. As relevant here, Goins asserted that the Constitution mandated the admissibility of polygraph results during the sentencing phase of his capital trial. We disposed of this contention in a footnote: “[a]s the district court noted, . . . ‘[U]nder current controlling precedent, the Constitution does not mandate admission of polygraph results in capital sentencing proceedings.’” Id. at 326 n.7 (quoting Goins v. Angelone, 52 F. Supp. 2d 638, 675 (E.D. Va. 1999)). The district court in Goins had derived this conclusion from United States v. Scheffer, where the Supreme Court upheld, in a non-capital case, the military’s per se ban on the admission of polygraph results in court-martial proceedings. See 523 U.S. 303, 305 (1998). Although the district court acknowledged that Scheffer was a non-capital case, it concluded that ”Scheffer, with its emphasis on the unreliability of polygraph evidence and the interest of courts in excluding such unreliable evidence, certainly suggests that exclusion of polygraph results would pass constitutional muster in th[e capital] context, as well.” 52 F. Supp. 2d at 675.
Although the issue of the admissibility of polygraph results surfaced in Goins in the context of a Brady claim, we are bound by its conclusion that “the Constitution does not mandate admission of polygraph results in capital sentencing proceedings.” 226 F.3d at 326 n.7 (internal quotation marks omitted). That conclusion bears directly on the question before us now and, because it disposed of Goins’s Brady claim (albeit in the alternative), it cannot be properly characterized as dicta. See MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 346 n.4 (1986) (observing that alternative holdings are not dicta). As a result, Goins compels the conclusion that the district court did not abuse its discretion in denying Fulks’s motion to admit the results of his polygraph examinations.
F.
Fulks next contends that the district court erred in permitting Judy Ezell, Donovan’s sister and a prosecution witness, to read aloud to the jury a 1990 letter from Donovan to Ezell. We, of course, also review the district court’s ruling on this evidentiary issue for abuse of discretion. See Forrest, 429 F.3d at 79 (observing that we review rulings on admissibility of evidence for abuse of discretion).
As briefly discussed above, the jury heard testimony from Ezell concerning the sexual abuse she and Donovan had suffered at the hands of their father. Ezell testified that, in 1990, she had sent a letter to their father confronting him about the abuse and expressing her willingness to forgive him. She sent a copy of the letter to Donovan, and Donovan replied in a letter that Ezell read, over Fulks’s objection, to the jury. In pertinent part, the letter stated as follows:
The letter that you wrote and sent to Leo was so powerful. You must be on an emotional high. I know I am. Thank you for including me. I cried when I read it over and over again. We are healing. Judy, I wish you were here.
* * *
Before Mom left, she stopped in to say bye . . . . My fear and anger that I carried for her has been lifted. I feel love in my heart for her. And I accept her for herself, not someone I wanted her to be. I will be that mother to my inner child.
* * *
In order for me to continue on this path, I have made yet another major decision in my life. George [Donovan’s first husband] and I are getting divorced. I cannot and will not live with his abuse. To make a long story short, ha-ha, he got very sexually violent with me. He also threatened to kill me when he was done. This was in July, and, of course, he was drunk. And this is not the first time he has done that. As I lay there crying and waiting to see what he would do next, I made a promise to myself that it would be the last time that he would ever hurt me again, whether he killed me or I survived. Well, I am here to write, I do not deserve to be abused in any way, shape, or form. And I won’t be by any man again.
* * *
Judy, for the first time in my life I have taken back what was taken from me as a small child. I am in control of my life and that is a great, powerful feeling.
J.A. 2544-47.
Fulks now contends that the district court abused its discretion in permitting Ezell to read Donovan’s letter to the jury, asserting that the letter was so prejudicial as to deny him due process. In Payne v. Tennessee, the Supreme Court — abrogating its prior precedents in Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina v. Gathers, 490 U.S. 805 (1989) — ruled that the
As an initial matter, it is clear that Donovan’s 1990 letter to Ezell constituted victim impact evidence. First, it served to demonstrate Donovan’s uniqueness in that it highlighted struggles Donovan had faced in her life and the strength with which she confronted them. Moreover, the jury could have surmised from the letter that, given her history of abuse and her determination to avoid it in the future, Donovan suffered all the more at the hands of Fulks and Basham (although, as the district court noted, the letter could cut both ways on this point). The issue, then, is whether the reading of the letter to the jury was so unduly prejudicial to Fulks that it offends due process. It is on this contention that Fulks primarily relies.
Fulks first maintains that the letter violated due process because it was neither brief nor current. Put simply, this assertion is without merit. We have held that due process was not violated where seven of the prosecution’s twenty-three witnesses were victim impact witnesses who “presented stories of the victims’ childhoods, family experiences, and the trauma of their deaths, and poems reflecting their deep sadness and regret over their losses.” Barnette, 211 F.3d at 818. In that case, the victim impact evidence formed a substantial portion of the prosecution’s case at sentencing and included evidence relating as far back as the victims’ childhood.
Fulks next asserts that Donovan’s letter to her sister was unreliable because it was hearsay and not subject to cross-examination. The relevant inquiry, however, is not whether the letter was admissible under the
Finally, Fulks contends that the letter improperly focused the jury’s attention on the harm that Donovan had suffered during her rape by Fulks and Basham. Because victim impact evidence focuses in part on the harm caused to the victim, see Payne, 501 U.S. at 825, this contention is also without merit. The district court thus did not abuse its discretion
G.
In his final appellate contention, Fulks asserts that the
In presenting his contention that the FDPA is unconstitutional, Fulks does not assert that the Evidence Rules must apply to the presentation of evidence on the ultimate issue of whether the aggravating factors present in the case sufficiently outweigh any mitigating factors such that the death penalty should be imposed. See
In Ring, the Court concluded that the
Fulks does not (and could not) assert that he was denied the essential right guaranteed by the holding in Ring: that the prosecution be required to prove to a jury beyond a reasonable doubt the existence of any aggravating factor necessary to impose the death penalty. Rather, Fulks contends that, because an aggravating factor is “the functional equivalent of
Even if the Court in Ring mandated that a defendant receive, with respect to a jury finding of an aggravating factor, the protections applicable to a guilt-or-innocence trial, it does not follow that the defendant is entitled to the protections of the Evidence Rules. The Evidence Rules “do not set forth the constitutional parameters of admissible evidence, nor does a criminal defendant have a constitutional right to have the [Evidence Rules] in place.” United States v. Fell, 360 F.3d 135, 144 (2d Cir. 2004). Indeed, as a general matter, the Evidence Rules provide greater protection than that which is constitutionally mandated. See, e.g., Dowling v. United States, 493 U.S. 342, 352-54 (1990) (ruling that due process was not violated by introduction of evidence made inadmissible under
Moreover, the FDPA provides a capital defendant with constitutionally sufficient evidentiary protections. Even without the protections of the Evidence Rules, “it remains for the [district] court, in the exercise of its judgment and discretion, to ensure that unconstitutional evidence otherwise admissible under applicable evidentiary rules is excluded from trial.” Fell, 360 F.3d at 145. The FDPA provides a ready mechanism for a trial court to fulfill this function, permitting the exclusion of evidence “if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.”
III.
Pursuant to the foregoing, Fulks’s contentions of error are rejected, and the judgment of the district court is affirmed.
AFFIRMED
WILLIAMS, Circuit Judge, concurring:
I agree with the judgment reached by the majority and concur in Parts I and II.A.2.b. - III of the majority opinion. While I agree with the result reached in the remainder, I disagree with my good colleagues’ interpretation of
Section 3432 provides in full:
A person charged with treason or other capital offense shall at least three entire days before commencement of trial be furnished with a copy of the indictment and a list of the veniremen, and of the witnesses to be produced on the trial for proving the indictment, stating the place of abode of each veniremen and witness, except that such list of the veniremen
and witnesses need not be furnished if the court finds by a preponderance of the evidence that providing the list may jeopardize the life or safety of any person.
The only exception to the statute’s absolute rule that a listing of “the witnesses . . . for proving the indictment” shall be provided three days prior to trial is where production of “the list may jeopardize the life or safety of any person.”
In this case, the Government provided a list of most of the witnesses it ultimately produced for proving the indictment in ample time under the statute. The statute, however, requires that the defendant be provided with a list ”of the witnesses to be produced on the trial for proving the
More troubling, in offering this opinion, the Schneider court ignored (without even recognizing) the holding of United States v. Neverson, 1880 WL 18716, at *13 (D.C. June 7, 1880). In Neverson, the same court held that the statute is violated when notice of a witness is not “given until after the trial beg[ins].” Id. But see id. at *20 (MacArthur, J., concurring) (disagreeing and arguing that the statute should not apply when the Government “us[es] the utmost diligence and exercis[es] the utmost good faith“). Schneider also ignored the Supreme Court’s language in Logan v. United States, 144 U.S. 263, 304 (1892), abrogated on other grounds by Witherspoon v. Illinois, 391 U.S. 510 (1968), which recognized that the statute was “mandatory” and “its purpose is to inform the defendant of the testimony which he will have to meet, and to enable him to prepare his defense.” Id.
To compound matters, both circuit courts that have (before today) since recognized the judge-created exceptions (either as alternative holdings or dicta) have primarily relied on Schneider’s unsupported language. See United States v. Green, 497 F.2d 1068, 1082 (7th Cir. 1974) (quoting Schneider’s language); United States v. Rosenberg, 195 F.2d 583, 599-600 (2d Cir. 1952) (same).
the statute is no more “silent” on the question of after-discovered witnesses that are offered to prove the indictment, as the majority concludes, ante at 16, than it is “silent” on the question of prior-discovered witnesses that are offered to prove the indictment. It speaks only of the witnesses, and by using the definite article “the” without relevant exception, the statute’s plain language calls for a list of each and every witness to be produced at trial “for proving the indictment,” id., not “the witnesses for proving the indictment that to date have been discovered.”
The statute is unmistakingly clear that if the Government is to call a witness for the purpose of proving the indictment, the name of that witness must be provided to the capital defendant at least three entire days prior to commencement of trial unless providing the name would jeopardize personal safety. Cf. Goldsby v. United States, 160 U.S. 70, 76 (1895) (allowing an undisclosed rebuttal witness to testify because the statute’s combination of the phrase “the witnesses” with the phrase “for proving the indictment” “clearly refer[s] to the witnesses relied upon the by prosecution to establish the charge [and does] not extend to such witnesses as may be rendered necessary for rebuttal purposes.” (emphasis added)). Unless the result reached from following Congress’s plain language is absurd (which surely it is not), I think it best for the Court to “interpret[ ] § 3432 ‘literally’,” ante at 17 n.6, especially when that literal interpretation is plainly in harmony with what the Supreme Court has explained is the purpose of the statute — to allow a capital defendant to prepare his defense. Logan, 144 U.S. at 304.
Aside from the plain language, Congress’s relatively recent willingness to amend this statute with an explicit exception further counsels against reading judge-made exceptions into the statute. In 1994, Congress added the exception to the statute’s mandatory directive for when production of “the list [of witnesses and veniremen] may jeopardize the life or safety of any person.”
Finally, I note that I share the majority’s instinct that the exception it recognizes is grounded in sound judgment and makes perfect sense as a policy matter. Nonetheless, I believe it is Congress’s place — not ours — to make policy and if it so chooses, to amend the statute, as it has shown a willingness to do as recently as 1994. See Sigmon Coal Co., Inc. v. Apfel, 226 F.3d 291, 308 (4th Cir. 2000), aff‘d, 534 U.S. 438 (2002) (“[E]ven if . . . the literal text of the statute produces a result that is, arguably, somewhat anomalous — we are not simply free to ignore unambiguous language because we can imagine a preferable version.“). I also note that even under the
In short, I would hold that the district court erred in allowing the two witnesses that were not included on the witness list to testify during the prosecution’s case-in-chief. Nonetheless, I would find the error harmless after undertaking a traditional Rule 52(a) harmlessness analysis in order “to determine whether the error was prejudicial.” United States v. Olano, 507 U.S. 725, 734 (1993). I believe that the Government, as evidenced by the majority’s persuasive discussion of lack of prejudice in Part II.A.2.b., has met its burden of proving harmlessness. Accordingly, I concur in the judgment reached by the majority.