531 F.3d 197 (2nd Cir. 2008), 06-2882, United States v. Fell

Docket Nº:Docket No. 06-2882-cr.
Citation:531 F.3d 197
Party Name:UNITED STATES of America, Appellee, v. Donald FELL, Defendant-Appellant.
Case Date:June 27, 2008
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 197

531 F.3d 197 (2nd Cir. 2008)

UNITED STATES of America, Appellee,


Donald FELL, Defendant-Appellant.

Docket No. 06-2882-cr.

United States Court of Appeals, Second Circuit.

June 27, 2008

Argued: June 27, 2007.

Page 198

[Copyrighted Material Omitted]

Page 199

[Copyrighted Material Omitted]

Page 200

[Copyrighted Material Omitted]

Page 201

[Copyrighted Material Omitted]

Page 202

[Copyrighted Material Omitted]

Page 203

[Copyrighted Material Omitted]

Page 204

John Blume, Cornell Law School, (Christopher Seeds, Sheri Lynn Johnson, on the brief), Ithaca, NY; Alexander Bunin, Federal Public Defender, Albany, NY, for Defendant-Appellant.

William B. Darrow , Assistant United States Attorney (Thomas D. Anderson , United States Attorney for the District of Vermont; Paul J. Van de Graaf, Gregory L. Waples , Assistant United States Attorneys,

Page 205

on the brief), Burlington, VT; Thomas Booth, United States Department of Justice, Washington, D.C., for Appellee.

Before: WALKER , CABRANES , and B.D. PARKER, Circuit Judges.

B.D. PARKER, JR., Circuit Judge:

Donald Fell was convicted of murdering Teresca King in the course of a carjacking and kidnapping. Following a hearing on possible penalties and a verdict rendered by the jury, he was sentenced to death by the United States District Court for the District of Vermont (Sessions, J .). In this appeal, Fell challenges his sentence on a number of grounds falling roughly into four categories: errors in jury selection, errors in the admission of certain evidence, prejudicial comments by the prosecutors, and the violation of certain provisions of the Federal Death Penalty Act (FDPA), 18 U.S.C. § 3591 et seq. We affirm.


This case stems from the brutal murders by Fell and his accomplice Robert Lee in November 2000 of Fell's mother Debra, her companion Charles Conway, and King. The facts are largely undisputed. Fell, who was 20 years old at the time of the murders, does not contest his guilt and the government does not contest much of the evidence of the troubled childhood and adolescence that Fell adduced in an effort to avoid the death penalty.

Fell spent his early years in Pennsylvania with parents who were chronic alcoholics. Both Fell and his sister were raped by babysitters when they were young children, abandoned by their parents, and raised by relatives. Fell had frequent brushes with the law of increasing seriousness and, for a period of time, was committed to a home for delinquent youth. After his release, his involvement with the law continued to escalate and was punctuated by serious drug and alcohol abuse.

Fell's mother moved to Rutland, Vermont in the fall of 1996 and Fell joined her in 2000. Their stormy relationship continued. Fell and his mother (and their friends) drank heavily, argued frequently, and abused drugs. For example, in November 2000, in an incident that was the subject of disputed trial testimony, Fell assaulted his mother in a bar. After taking his mother's drink and attempting to rob her, Fell punched her in the head, knocked her to the ground and was arrested.

On the evening of November 26, 2002, Fell, Lee, Debra Fell, and Charles Conway were playing cards at her residence. All were drinking heavily and some were using drugs. For reasons not reflected in the record, a violent altercation ensued. Fell produced a kitchen knife and stabbed Conway approximately 50 times causing his death. Lee began stabbing Debra Fell and killed her with multiple wounds to the head and neck. Fell and Lee then showered, took a shotgun that Fell had brought from Pennsylvania, and left on foot at approximately 3:30 am for a local mall in search of shells for the gun.

Fell and Lee first went to Wal-Mart, but were turned away by a cleaning crew that informed them that the store was closed. Fell and Lee then approached a Price Chopper convenience store, where they found King, a 53 year old grandmother, just arriving for work in her car. Fell and Lee stole her car and forced her into the backseat at gunpoint. King attempted to escape while on the highway but Fell restrained her. After driving for several hours and entering New York state, Fell told King that she would be released. As they stopped the car to do so, Lee apparently had second thoughts and convinced Fell that they should kill her to prevent her from identifying them. The two

Page 206

forced King out of her car into the adjoining woods where they repeatedly kicked her and Lee struck her around the head and face with a rock. After killing her, Fell wiped his boots on her clothing. The two proceeded to Pennsylvania where they stole license plates, placed them on King's car, and drove to Arkansas where they were arrested on November 30th. Following questioning by the Arkansas police and the FBI, Fell, verbally and in a written statement, confessed to the murder of Conway, described Debra Fell's murder, and confessed to the murder of King. On December 2, he made a tape-recorded confession for Vermont police, who had flown to Arkansas.

Subsequently, Fell and Lee were indicted. The four counts of the indictment charged them with (1) carjacking Teresca King with death resulting; (2) kidnapping and transporting Teresca King in interstate commerce with death resulting; (3) possession of a firearm in furtherance of a crime of violence; and (4) transporting a firearm in interstate commerce by fugitives. See 18 U.S.C. §§ 2119(2) & (3) ; 1201(a)(1) & (2); 924(c)(1)(A)(ii) & (2); 922(g)(2). Counts 1 and 2 were capital offenses. Before he could be tried, Lee died in prison in the fall of 2001 by his own hand in an accidental hanging.

In October 2001, after extensive negotiations with the United States Attorney's Office of Vermont, Fell signed a draft plea agreement that would have resolved the capital charges with a sentence of life without parole. The draft agreement stated that the government agreed to forego the capital charges “due to substantial mitigating evidence that has been uncovered related to the defendant's mental health and impaired capacity at the time of the events; his mental health history and background; his assistance to authorities in locating Teresca King's body; the fact that he was 20 years old when he murdered Teresca King and the fact that he does not have a substantial prior criminal history."

The draft agreement also provided that “this agreement will not become effective until approved by the Attorney General of the United States or his delegate, and until thereafter signed by the United States Attorney for the District of Vermont." The draft was signed by Fell and his counsel, but was rejected by the Attorney General upon the advice of the standing committee of the Department of Justice that reviews death-eligible prosecutions. Cf. United States v. Sampson, 486 F.3d 13, 24 & n. 3 (1st Cir.2007) (describing these procedures); United States v. Wilk, 452 F.3d 1208, 1211 n. 2 (11th Cir.2006) . The United States Attorney then agreed that, with the consent of the District Court, Fell would plead guilty in exchange for a bench trial on sentencing. The Attorney General rejected this agreement as well.

In January 2002, the government filed a Notice of Intent to Seek the Death Penalty. See 18 U.S.C. § 3593(a) . The notice stated that the government intended to prove four threshold culpability factors,1

Page 207

id. § 3591(a) , three statutory aggravating factors, id. § 3592(c) ,2 and four non-statutory aggravating factors, id. § 3593(a) .3 After the Supreme Court's decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) , called into question the validity of indictments in which the government did not charge statutory aggravating factors, the government obtained a superseding indictment which included the threshold culpability factors and the statutory aggravating factors.

Fell, represented by the Federal Public Defender for the Northern District of New York, moved to dismiss the indictment on a number of grounds. He contended that the FDPA was unconstitutional because it permitted imposition of the death penalty on the basis of evidence that had not been tested according to the Sixth Amendment's guarantee of confrontation or the Fifth Amendment's guarantee of due process, or that would have been deemed inadmissible under the Federal Rules of Evidence. Id. at 489. The district court granted the motion. See United States v. Fell, 217 F.Supp.2d 469, 491 (D.Vt.2002) .4

The government appealed and we reversed. See United States v. Fell, 360 F.3d 135 (2d Cir.2004) (“Fell I " ), cert. denied, 543 U.S. 946, 125 S.Ct. 369, 160 L.Ed.2d 259 (2004) . We held that the Constitution did not require adherence to the Federal Rules of Evidence. We also found the FDPA's evidentiary provisions constitutional because they were consistent with the heightened reliability standards required in capital trials. Fell, 360 F.3d at 143-44. On remand, the district court rejected Fell's remaining constitutional challenges. See Fell, 372 F.Supp.2d at 755 (D.Vt.2005) .

Jury selection began on May 4, 2005 and was completed on June 6. The guilt phase began on June 20 and ended on June 24. The government presented eighteen witnesses; the defense presented no evidence. The jury was charged on June 24 and, later that day, found Fell guilty on all counts.

The penalty phase commenced on June 28. The government offered evidence from seven witnesses, including five victim impact witnesses, who attested to the devastating

Page 208

effects of King's murder on her family and friends. The defense introduced testimony from fourteen witnesses, including Fell's family members, teachers, social service providers...

To continue reading