390 F.3d 775 (4th Cir. 2004), 02-20, United States v. Barnette

Docket Nº:02-20.
Citation:390 F.3d 775
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Aquilia Marcivicci BARNETTE, Defendant-Appellant.
Case Date:December 06, 2004
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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390 F.3d 775 (4th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellee,


Aquilia Marcivicci BARNETTE, Defendant-Appellant.

No. 02-20.

United States Court of Appeals, Fourth Circuit

December 6, 2004

Argued: Sept. 23, 2003

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Mark Evan Olive, Law Office of Mark E. Olive, P.A., Tallahassee, Florida, for Appellant.

Matthew Theodore Martens, Assistant United States Attorney, Charlotte, North Carolina, for Appellee.


Harold J. Bender, Law Office of Harold J. Bender, Charlotte, North Carolina, for Appellant.

Robert J. Conrad, Jr., United States Attorney, Anne M. Tompkins, Assistant United States Attorney, Jill Westmoreland Rose, Assistant United States Attorney, Charlotte, North Carolina, for Appellee.

Before WIDENER and NIEMEYER, Circuit Judges, and James H. MICHAEL, Jr., Senior United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed by published opinion. Judge WIDENER wrote the opinion of the court, in which Judge NIEMEYER and Judge MICHAEL concurred except as to Part IV. Judge NIEMEYER wrote the opinion in Part IV for the court, in which Judge MICHAEL concurred, and Judge WIDENER wrote a concurring opinion as to Part IV.


WIDENER, Circuit Judge:

This is the second time we have reviewed defendant Aquilia Marcivicci Barnette's death sentence. In United States v. Barnette, 211 F.3d 803, 825-26 (4th Cir. 2000), we affirmed Barnette's convictions but vacated his death sentence because the district court erred in excluding the testimony of a defense expert during the sentencing hearing. We remanded the case to the district court for resentencing. 211 F.3d at 826. Upon remand, the district court conducted a sentencing hearing, and a second jury recommended the death sentence. The district court sentenced Barnette to death on August 20, 2002. Barnette appeals from this sentence. We affirm.


Barnette met Miss Robin Williams in 1994, and they began dating. Miss Williams lived in Roanoke, Virginia, and Barnette resided in Charlotte, North Carolina. After dating for about a year, Miss Williams and Barnette began living together in an apartment in Roanoke. The relationship flourished at first, but Barnette and Miss Williams began to argue over the issue of infidelity. According to a neighbor, Barnette abused Miss Williams, and one of Miss Williams' friends testified at the sentencing hearing that Miss Williams told her that Barnette had slammed Miss Williams into closet doors at the apartment. The relationship ended in April of 1996 after a fight in which Barnette attempted to choke Miss Williams. Barnette moved out of the apartment and returned to Charlotte. On April 29, 1996, Barnette called Miss Williams on the telephone and

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berated her over why she had broken up with him. Barnette became enraged when he learned that Miss Williams was at her apartment with a male friend. Barnette borrowed his brother's car and drove to Roanoke. Along the way, Barnette filled two containers with gasoline and purchased a baseball bat. Barnette drove to Miss Williams's apartment and parked on a street near the apartment. Barnette took a pair of pliers, the baseball bat, and the containers of gasoline out of the car and walked to Miss Williams' apartment.

Barnette used the pliers to cut the telephone wires at Miss Williams' apartment. Barnette started screaming at Miss Williams and broke a window in the apartment with a baseball bat. Miss Williams' male friend, Benjamin Greene, testified that he was awakened by Miss Williams' screaming on the night of April 30, 1996, at some point between midnight and the break of dawn. He could not remember the exact time. Miss Williams attempted to call the police, but the phone line was dead. According to Greene, Barnette smashed the windows of Greene's car and screamed at Miss Williams, telling her that she was going to die tonight and that he (Barnette) was going to kill her. Sergeant R.S. Kahl of the Roanoke city police department testified that Miss Williams told him that Barnette was screaming "die, bitch, die," and Barnette testified that he did say "die, bitch, die."

Barnette kicked the door in, but it jammed. Barnette poured gasoline from one of the containers through the door and on a window sIll. Barnette set fire to the gasoline and moved away from the apartment. Greene testified that Barnette threw a Molotov cocktail into the apartment. According to Greene, the Molotov cocktail set fire to the living room curtains. Barnette then poured gasoline from the other container onto Greene's car and set it afire. Barnette testified that he then heard what he believed to be a bullet zip past his ear. He dropped the bat and began running up the road toward his brother's car. Barnette reached his brother's car and began to drive away. He stopped to pick up the baseball bat. As Barnette picked up the bat, he could see that the apartment was burning.

In the burning apartment, Miss Williams and Greene could not escape through the front door. Instead, they went to Miss Williams' bedroom on the second floor, knocked out a window and the blinds at that window, and jumped from the second story window. Greene was unhurt after escaping the fire. Miss Williams suffered second-degree burns on her right arm and second- and third-degree burns on her left arm. She underwent painful treatment and rehabilitation at the University of Virginia Health System in Charlottesville.

After the arson attack, Miss Williams spoke with Investigator K.O. Hubbard of the Roanoke city police department and identified Barnette as the perpetrator of the crime. Miss Williams gave the police Barnette's address in Charlotte and a description of the car. The Roanoke police obtained felony warrants against Barnette for two counts of attempted murder and two counts of arson/firebombing.

After leaving Miss Williams' apartment, Barnette drove to Charlotte. Barnette saw his picture on the television news in Charlotte, which reported that he was wanted for a firebombing in Roanoke. Barnette stayed away from his mother's house in Charlotte and took up residence with his cousin in east Charlotte. Barnette did not turn himself in to the police but instead waited for the police to arrest him.

On May 20, 1996, Barnette purchased a 12-gauge Stevens shotgun from a pawnshop

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in Charlotte using Virginia identification with the name of his brother, Mario Vonkeith Barnette. As part of the transaction, Barnette falsely stated on the federal firearms transaction form that he was neither a previously convicted felon nor a fugitive against whom charges were pending.1

The Stevens shotgun was defective, and Barnette exchanged it for a Winchester semiautomatic shotgun. Barnette hid the shotgun under his bed for a week before he cut off a portion of the shotgun's barrel and stock to "[m]ake it easier to conceal." Barnette collected shotgun shells, a crowbar, bolt cutters, and a pen flashlight. Barnette stored these items in a bag that he had used as luggage when he went to see Miss Williams. On the day before the murders, Barnette taped the flashlight to his shotgun and coated the lens with a red marker. On the morning of June 21, 1996, Barnette awoke after a night of drinking and, as he testified at the sentencing hearing, he came to the conclusion that this was the day that he and Miss Williams were going to die.

Before midnight on June 21, 1996, Barnette collected his shotgun and bag and walked a mile from his mother's house to the intersection of Billy Graham Parkway and Morris Field Road in Charlotte. Barnette testified that he needed to get to Roanoke to see Miss Williams and that he was going commit a carjacking to obtain a vehicle to drive to Roanoke. Barnette threw his bag into the bushes near the intersection, loaded his shotgun, crouched down, and waited.

A car came down to the intersection, with the window down and music blaring. Barnette ran to the car, put his shotgun to the window, and ordered the driver out of the vehicle. Barnette directed the driver toward the location of Barnette's bag. Once into the bushes and woods adjacent to the road, Barnette took the driver's wallet and then shot and killed the driver.

The driver was twenty-two-year-old Donald Lee Allen. Barnette shot Allen multiple times and left Allen's body in a ditch by the intersection. Barnette took Allen's blue Honda Prelude and began driving to Roanoke.

Barnette drove to Miss Williams' mother's house in Roanoke and parked Allen's car near the house. At morning twilight on June 22, 1996, Barnette saw Miss Williams come to the front door and let her dog out. Miss Williams' mother, Mrs. Bertha Williams, then came out to pick up her grandchild from a car that dropped her off outside the house. Barnette then moved Allen's car to the alleyway behind the house. Barnette got out of the car, removed his shotgun, and walked toward the back door of the house. Barnette moved through a gate in the fence and proceeded to the back of the house where he cut the telephone lines with wire cutters.

Barnette moved around to the kitchen door. He approached the door and tried to open it. After being unable to open the door, Barnette held back the screen door, held the gun with both hands, aimed at the dead bolt, and began firing. Barnette fired three shells into the door. Barnette entered the house and saw Miss Williams standing on the front porch holding the screen door open. After seeing Miss Williams, Barnette reloaded the shotgun.

Mrs. Williams saw Barnette and told Miss Williams to run. Barnette testified that...

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