496 F.3d 1079 (10th Cir. 2007), 06-7005, United States v. Barrett

Docket Nº:06-7005.
Citation:496 F.3d 1079
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Eugene BARRETT, Defendant-Appellant.
Case Date:July 25, 2007
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1079

496 F.3d 1079 (10th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,

v.

Kenneth Eugene BARRETT, Defendant-Appellant.

No. 06-7005.

United States Court of Appeals, Tenth Circuit.

July 25, 2007

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA, D.C. No. CR-04-115-P.

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Mark Henricksen, Henricksen & Henricksen Lawyers, Inc., El Reno, OK (Roger Hilfiger, Cook & Hilfiger, Muskogee, OK, with him on the briefs), for Defendant-Appellant.

Sheldon J. Sperling, United States Attorney (D. Michael Littlefield, Assistant United States Attorney, with him on the brief), Muskogee, OK, for Plaintiff-Appellee.

Before TACHA, BRISCOE, and MURPHY, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Kenneth Barrett was convicted of using and carrying a firearm during and in relation to several drug-trafficking crimes, resulting in the death of a state law enforcement officer, in violation of 18 U.S.C. §§ 924(c)(1)(A) and (j), using and carrying a firearm during and in relation to the killing of a state law enforcement officer engaged in or on account of the performance of such officer's duties, in violation of 18 U.S.C. §§ 924(c)(1)(A) and (j), and intentionally killing, during the commission of a drug trafficking crime, a state law enforcement officer engaged in the performance of his official duties, in violation of 21 U.S.C. § 848(e)(1)(B). In accordance with the jury's verdict, Barrett was sentenced to life imprisonment without the possibility of release for the first two convictions, and to death for the third conviction. Barrett now appeals his convictions, as well as his death sentence. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I.

Factual background

On January 28, 1999, the District Court of Sequoyah County, Oklahoma, issued a warrant for Barrett's arrest on charges of unlawful delivery of a controlled drug and failure to appear for jury trial. Although Barrett managed to avoid arrest during the ensuing months, state law enforcement officials were aware of his presence and continued to investigate his activities. In September of 1999, Clint Johnson, the supervising agent and field supervisor for the District Twenty-Seven Drug Task Force (Task Force), which encompassed Cherokee, Wagoner, Adair and Sequoyah Counties in Oklahoma, received information from a confidential informant (CI) that Barrett was manufacturing and distributing methamphetamine at his residence. Johnson, using the information provided by the CI, prepared an affidavit for a search warrant. On September 20, 1999, the District Court of Sequoyah County issued the requested search warrant for Barrett's residence. The warrant authorized law enforcement officers to conduct the search "at any time of the day and/or night," and to enter Barrett's residence "without the normally required knocking and announcing . . . due to the violent and unstable nature of . . . BARRETT and the danger posed to law enforcement

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personnel by . . . BARRETT and/or other unknown persons who may be present." Aplee. Supp. App. at 3. The items to be seized included methamphetamine or other controlled dangerous substances, paraphernalia, drug manufacturing equipment and supplies, and written records and documents pertaining to drug manufacturing and distribution.

Johnson considered the search warrant to be "high risk" in nature. Tr. at 308.1 In particular, Johnson was aware that Barrett routinely carried firearms and had threatened to kill law enforcement officers if they "showed up at his residence." Id. at 333. Further, Johnson was aware that Barrett's residence was accessible only by a dead-end road, that several of Barrett's relatives lived in residences nearby, and that there was little cover around the residence from which the search team could perform surveillance. Accordingly, Johnson contacted the Oklahoma Highway Patrol's Tactical Team (Tact Team) for assistance in serving the warrant. The Tact Team was "highly trained and specialized in [serving] . . . high risk search warrants ...." Id. at 307. Johnson and another Task Force leader met with Tact Team members to discuss the execution of the warrant. It was determined that the Tact Team would enter and secure the area first, and that the Task Force would then perform the actual search of Barrett's residence.

The Tact Team met during the daylight hours of September 23, 1999, and developed a plan for entering and securing Barrett's residence. As part of this planning process, three members of the Tact Team drove by Barrett's residence in an unmarked Ford Bronco during the early evening hours. Travis Crawford, Barrett's cousin, was in the vicinity at the time of the drive-by and observed Barrett walk to the area of the front gate after the Bronco drove by his residence. Crawford spoke to Barrett and Barrett indicated he had seen the Bronco and knew it belonged to law enforcement officers. When Crawford told Barrett that the law enforcement officers would likely return to serve the warrant, Barrett responded by saying "D.G.F.," which, according to Crawford, meant "Don't give a fuck." Id. at 466. Further, Barrett told Crawford that "he was going out in a blaze of glory." Id.

Using the information they observed during the drive-by, together with information provided by the Task Force, the Tact Team decided to execute the search warrant during the night with the hope that Barrett and any other occupants of the residence would be asleep. The Tact Team further decided that, because the front gate to Barrett's property was locked, three of the Tact Team vehicles, two Ford Broncos and a marked highway patrol unit, would enter Barrett's property by first driving north on a private driveway that lay to the east of Barrett's property, and then driving west across the land and through a ditch onto Barrett's property. The occupants of those three vehicles, six Tact Team members in total, would then get out of their vehicles, walk on foot to the house, and enter through the front door. The Tact Team decided that a fourth unit, a marked highway patrol car, would stop at the locked front gate of the property and that one of the occupants of that vehicle would remain in that position to provide cover for the other team members, while the second and third occupants of that vehicle would climb over the gate, enter the property on foot, and watch the west side of Barrett's house to prevent him

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from escaping to his mother's residence, which was located adjacent to Barrett's house. Finally, the Tact Team decided that a fifth unit, a white Ford Bronco, would enter the driveway of Barrett's mother's home.

At approximately 12:30 a.m. on the morning of September 24, 1999, the Tact Team met members of the Task Force at a highway intersection near Barrett's residence. From there, the five Tact Team vehicles headed towards Barrett's residence. The Task Force vehicles waited approximately two minutes before heading towards Barrett's residence in order to give the Tact Team a chance to secure the area.

As the lead Tact Team vehicle, a white Ford Bronco, drove eastward on the gravel road that passed in front of Barrett's residence, the driver, Trooper John Hamilton, observed a white male standing in the front yard of Barrett's residence. Hamilton continued to observe the man, who was later determined to be Barrett's son Toby, as he drove past Barrett's residence and entered the private driveway to the east of Barrett's residence. Hamilton then turned his vehicle westward towards Barrett's house and entered a deep ditch that lay between Barrett's residence and the property to the east, and approximately twenty to twenty-five yards away from Barrett's residence.

Meanwhile, Troopers Gene Hise and Robert Darst, who arrived at the scene in the fourth Tact Team vehicle, climbed over the locked front gate, entered the yard in front of Barrett's house, and yelled at Toby Barrett to get on the ground. Toby Barrett initially failed to comply, but ultimately got on the ground. Trooper Darst then took custody of Toby Barrett and determined he was unarmed. While Toby Barrett was on the ground being handcuffed, he turned his head towards the house and screamed "Dad!" Id. at 1263.

As Hamilton's vehicle exited the ditch and headed towards Barrett's house, it began to receive gunfire that hit the middle of the windshield, at approximately "head level" of Hamilton and his passenger, Trooper David Eales.2 Id. at 538. The gunfire intensified as Hamilton drove closer to Barrett's residence, and Hamilton was hit in the face with some object, either bullet fragments or flying glass from the windshield. As a result of the continuous gunfire, neither Hamilton nor Eales were able to turn on the vehicle's emergency lights, as the Tact Team had originally planned for them to do.

The second Tact Team vehicle, a Ford Bronco occupied by Troopers Raymond Greninger and Ricky Manion, was less than a car length behind the first Tact Team vehicle. Unlike the first vehicle, the second vehicle had its emergency lights on, including a flashing strobe-type light on the sun visor and wig-wag headlights. The third Tact Team vehicle, a marked highway patrol unit driven by Trooper Hash, also had its emergency lights on, including a full light bar on top. The lights from the light bar were bright enough to light up the entire area of Barrett's residence. This third vehicle was traveling less than a car length behind the second vehicle.

Hamilton's vehicle ultimately came to a stop at or near the southeast corner of Barrett's residence, and the second and third vehicles stopped slightly behind Hamilton's vehicle...

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