721 F.3d 167 (4th Cir. 2013), 08-4, United States v. Hager

Docket Nº:08-4.
Citation:721 F.3d 167
Opinion Judge:FLOYD, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Thomas Morocco HAGER, Defendant-Appellant. Hope House; The Children's Law Center; Scholarchips; Yasmine Arrington; The Osborne Association; National Resource Center on Children and Families of the Incarcerated, Amici Supporting Appellant.
Attorney:Barry Joseph Fisher, Office of the Federal Public Defender, Albany, New York, for Appellant. James L. Trump, Office of the United States Attorney, Alexandria, Virginia, for Appellee. Robert Tucker, Arlington, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Alexandria, Virginia,...
Judge Panel:Before DUNCAN, WYNN, and FLOYD, Circuit Judges. Judge FLOYD wrote the majority opinion, in which Judge DUNCAN joined. Judge WYNN wrote a dissenting opinion. WYNN, Circuit Judge, dissenting:
Case Date:June 20, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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721 F.3d 167 (4th Cir. 2013)

UNITED STATES of America, Plaintiff-Appellee,

v.

Thomas Morocco HAGER, Defendant-Appellant.

Hope House; The Children's Law Center; Scholarchips; Yasmine Arrington; The Osborne Association; National Resource Center on Children and Families of the Incarcerated, Amici Supporting Appellant.

No. 08-4.

United States Court of Appeals, Fourth Circuit.

June 20, 2013

Argued: Jan. 31, 2013.

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ARGUED:

Barry Joseph Fisher, Office of the Federal Public Defender, Albany, New York, for Appellant.

James L. Trump, Office of the United States Attorney, Alexandria, Virginia, for Appellee.

ON BRIEF:

Robert Tucker, Arlington, Virginia, for Appellant.

Neil H. MacBride, United States Attorney, Alexandria, Virginia, Richard D. Cooke, Assistant United States Attorney, Office of the United States Attorney, Richmond, Virginia, for Appellee.

Paul M. Thompson, Jennifer R. Taylor, Thomas J. Tynan, McDermott Will & Emery LLP, Washington, D.C., for Amici Supporting Appellant.

Before DUNCAN, WYNN, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge FLOYD wrote the majority opinion, in which Judge DUNCAN joined. Judge WYNN wrote a dissenting opinion.

FLOYD, Circuit Judge:

Appellant Thomas Morocco Hager appeals his conviction and capital sentence for intentionally killing Barbara White while engaged in a drug trafficking conspiracy in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2. We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 21 U.S.C. § 848(q), and 18 U.S.C. § 3595. Because we discern no reversible error, we affirm both the conviction and the sentence.

I.

Hager was convicted of and sentenced to death for killing White while engaged in a drug trafficking conspiracy in violation of

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21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2. The trial consisted of three parts: (1) the guilt-innocence phase, (2) the death penalty eligibility phase, and (3) the sentencing selection phase.

The government adduced evidence of the following facts during the first phase of the trial: In November 1993, Hager was engaged in the sale and distribution of crack cocaine at Nelson Place, in the Southeast area of Washington, D.C. In October 1993, he shot and wounded Christopher Fletcher and Ric Pearson, two members of a drug gang from Ely Place, over a dispute about one of his guns. Ely Place is a few blocks from Nelson Place. After the shooting, Hager went into hiding, living with his then-girlfriend, Shenita King, in her apartment in Maryland.

After the shooting, sometime in mid-November, White stopped by King's apartment. King did not allow White into the apartment, however, and did not tell her that Hager was there. Even so, Hager was very upset because no one was to know where he lived. White had previously dated and had a child with Williams Seals, a member of the Ely Place drug gang. Because Hager feared that White would tell others of his whereabouts, he decided that he would kill her.

On November 29, 1993, Hager, King, Arlington Johnson, and Lonnie Barnett went to White's Alexandria, Virginia, apartment. When they arrived that evening, King knocked on White's patio door. White, who was feeding her thirteen-month-old baby daughter Alexis, invited them in.

Shortly after they arrived, White showed King and Hager Alexis's room. She then took a brief telephone call. Shortly after the call, Hager turned up the volume on the television, pulled out a gun, and hit White's face with enough force to break her jaw and knock out a tooth. He and Barnett then took White, crying and bleeding, down the hallway to her bedroom. Hager told Johnson to run some water in bathtub. All the while, King stayed in the living room with Alexis. Throughout the ordeal, Hager repeatedly asked White whether she told her baby's father, Seals, where Hager lived. White insisted that she had not.

Hager sat White on the bed and instructed Barnett to find something with which to gag her. After he gagged her, he and Barnett walked her to the bathroom. Hager told her to get in the bathtub and then grabbed some hot curlers, plugged them in, and threw them into the water, attempting unsuccessfully to electrocute White. Next, he told Johnson and Barnett to go to the kitchen and retrieve some knives with which to stab White. They followed his instructions. All told, the three stabbed her over eighty times in her legs, chest, neck, face, hands, buttocks, and back. After some of the knives broke or bent, Hager instructed Johnson and Barnett to retrieve more knives.

At some point, Hager put White face down into the water and stood on top of her to make sure that she was dead. When Barnett insisted that they go, Hager " said that he couldn't leave because he could get the death penalty for it, and he wanted to make sure that she was dead."

After Hager was convinced that White was dead, he, King, Johnson, and Barnett proceeded out the door, but not before taking the telephone off of the hook and locking the door behind them, leaving Alexis alone in the apartment with her dead mother.

On their way back to the District, Hager counseled the others not to tell anyone about the murder and teased Barnett for being scared. He also mocked White's pleas for her life and her concern for Alexis.

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He later bragged that Johnson and Barnett " were soldiers now, and that [they] go hard."

Hager's five-week three-phrase trial occurred in October 2007. He did not testify at any point in the trial. At the conclusion of the first phase, the guilt-innocence phase, the jury found Hager guilty of the intentional killing of White while engaged in a conspiracy to distribute fifty grams or more of crack cocaine, in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2. Thereafter, during the second phase of the trial, the death penalty eligibility phase, the jury unanimously found beyond a reasonable doubt that Hager " was eighteen (18) years of age or older at the time of the offense charged in the indictment," that he " intentionally killed Barbara White," and that the following statutory aggravating factors (or aggravators) were present:

Thomas Morocco Hager:

(1) has been convicted of another offense resulting in the death of a person, for which a sentence of life imprisonment was authorized by statute.

(2) has been convicted of two other offenses punishable by a term of imprisonment of more than one year, committed on different occasions, involving the infliction of, or attempted infliction of, serious bodily injury upon another person.

(3) knowingly created a grave risk of death to a person in addition to Barbara White in the commission of the offense and in escaping apprehension for the offense.

(4) committed the offense charged after substantial planning and premeditation.

(5) distributed a controlled substance, namely crack cocaine, to a juvenile.

(6) committed the offense charged herein in an especially heinous, cruel, or depraved manner in that it involved torture and serious physical abuse to Barbara White.

Based on these factors, the jury found Hager statutorily eligible for the death penalty. See 18 U.S.C. § 3593(c) (setting forth the procedure for proving the existence of the statutory aggravating factors); 21 U.S.C. § 848(n)(1994) (amended by Pub.L. No. 109-77, § 221(2) (2006)) (listing the statutory aggravating factors).

Finally, in the third phase of the trial, the sentencing phase, the jury was called upon to determine whether the statutory aggravating factors and the non-statutory aggravating factors sufficiently outweighed the mitigating factors (or mitigators), both statutory and non-statutory. Although the jury was required to find the aggravators unanimously and beyond a reasonable doubt, any number of jurors could find a mitigator by a preponderance of the evidence and then those jurors could consider that mitigator in deciding whether to vote for a sentence of life or death.

The non-statutory aggravating factors and mitigating factors, both statutory and non-statutory, are as follows:

NON-STATUTORY AGGRAVATING FACTORS

....

(1) On or about April 23, 1990, the defendant, juvenile at the time, possessed with the intent distribute cocaine. He was found guilty by adjudication on or about September 18, 1990.

....

(2) From in or about 1992, and continuing until at least in or about 1997, the defendant repeatedly bought and sold cocaine and crack cocaine in and around Washington, D.C., and directed others to buy and sell cocaine and crack cocaine. The defendant illegally obtained, possessed, used, and carried numerous firearms in relation to and in furtherance of

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his drug trafficking activities. The defendant regularly used violence and threats of violence to further and protect his drug business.

....

(3) On or about October 22, 1993, the defendant shot and severely wounded Christopher Fletcher and Ric Pearson, two rival drug dealers, in Washington, D.C.

....

(4) On or about March 30, 1995, the defendant killed Jerome Robinson.

....

(5) On or about February 26, 1996, the defendant directed Loneldon Weldon, his cousin, to kill Cornell Coplin. Coplin died as a result of the shooting.

....

(6) On or about October 20, 1996, the defendant killed Londell Duvall.

....

(7) On or about March 15, 2003, while incarcerated at U.S.P. Pollock, a penitentiary, the defendant was observed hitting another inmate during a large scale prison fight...

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