United States v. Lawrence

• Decision Date: 22 October 2013
• Docket Number: No. 06–4105.,06–4105.
• Citation: 735 F.3d 385
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Daryl LAWRENCE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

735 F.3d 385

UNITED STATES of America, Plaintiff–Appellee,

v.Daryl LAWRENCE, Defendant–Appellant.

No. 06–4105.

United States Court of Appeals,Sixth Circuit.

Argued: Oct. 5, 2011.

Decided and Filed: Oct. 22, 2013.

ARGUED:Kort W. Gatterdam, Carpenter, Lipps & Leland LLP, Columbus, OH, for Appellant. Robert A. Parker, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF:Kort W. Gatterdam, Carpenter, Lipps & Leland LLP, Columbus, OH, Diane M. Menashe, Diane M. Menashe Co., L.P.A., Columbus, OH, for Appellant. Robert A. Parker, United States Department of Justice, Washington, D.C., for Appellee.

Before: BOGGS, ROGERS and McKEAGUE, Circuit Judges.

OPINION

McKEAGUE, Circuit Judge.

Daryl Lawrence appeals his convictions and sentences for armed bank robbery, attempted armed bank robbery, murder, and firearms offenses. Most of the twenty-four asserted claims of error relate to proceedings on the two death-eligible offenses and the resultant sentence of death. Despite vigorous and able advocacy by Lawrence's counsel, we find no error in the proceedings below and, for the reasons that follow, affirm the judgment of the district court.

I

The charges against Lawrence arose from four bank robberies committed in central Ohio during January, August, and September 2004, and January 2005. During the last of these robberies, an attempted robbery on January 6, 2005, Lawrence shot and killed Columbus Police Officer Bryan Hurst. Officer Hurst had returned fire, however, and Lawrence was injured. Lawrence aborted the robbery and fled. He was arrested within days, whereupon he confessed to having committed all four robberies. An eight-count indictment was returned and filed in the United States District Court for the Southern District of Ohio on January 20, 2005.

The indictment charged Lawrence with three counts of armed robbery, in violation of 18 U.S.C. § 2113(a) and (d); two counts of brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii); one count of brandishing and discharging a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and (iii); one count of attempted bank robbery resulting in the killing of Officer Hurst, in violation of 18 U.S.C. § 2113(a), (d) and (e); and one count of using a firearm during and in relation to a crime of violence to commit murder with malice aforethought, in violation of 18 U.S.C. § 924(c) and (j). The latter two counts, Counts Seven and Eight, charged death-eligible offenses, violations of 18 U.S.C. § 2113(e) and 18 U.S.C. § 924(j)(1), respectively. The indictment further alleged that Lawrence was eligible to be punished by death under the Federal Death Penalty Act, 18 U.S.C. § 3591(a); and charged two statutory aggravating factors in connection with the murder under 18 U.S.C. § 3592(c), i.e., that Lawrence knowingly created a grave risk of death to one or more persons in addition to the victim, and that Lawrence committed the murder in expectation of pecuniary gain.

Trial commenced with jury selection proceedings on February 13, 2006. Ten trial days later, the jury began and completed its deliberations in the guilt phase, finding Lawrence guilty of all eight charges on February 28, 2006. The sentencing phase culminated with the jury's verdict on March 10, 2006, recommending a sentence of life imprisonment without parole on Count Seven and a sentence of death on Count Eight. On August 10, 2006, the district court sentenced Lawrence to a total of 781 months' imprisonment on Counts One through Six, to be served consecutively to the life term imposedfor Count Seven, and imposed the death penalty for Count Eight.

Lawrence moved for a new trial, claiming juror bias, double jeopardy, improper jury instructions, and inconsistent sentencing verdicts on Counts Seven and Eight. The district court vacated the jury's death verdict on Count Eight and ordered a new sentencing hearing. United States v. Lawrence, 477 F.Supp.2d 864, 867 (S.D.Ohio 2006). The United States appealed the district court's decision and we reversed. We held that the sentencing verdicts were not inconsistent or irrational and reinstated the sentence of death imposed by the district court on Count Eight. United States v. Lawrence, 555 F.3d 254, 256 (6th Cir.2009).

Now on direct appeal, Lawrence raises twenty-four claims of error, listed here and addressed below in the order he presents them:

1. The jury's sentencing verdicts on Counts Seven and Eight were defective for lack of express certification that each juror would have made the same sentencing recommendation regardless of the race of Lawrence or the murder victim.

2. The district court erred by failing to instruct the jury on Count Eight that they had the option of recommending a sentence of imprisonment to a term of years less than life.

3. The district court erred by admitting improper and excessive victim-impact evidence in the sentencing phase.

4. The district court abused its discretion by denying Lawrence his right to allocution before the jury during the sentencing phase.

5. The district court erred by imposing a sentence of death under 18 U.S.C. § 924(c) and (j) where a greater minimum sentence, life imprisonment, was prescribed by another provision of law, 18 U.S.C. § 2113(e).

6. Where six jurors found that life imprisonment was appropriate and sufficient, the death sentence was imposed arbitrarily.

7. The district court erred by refusing to strike the “pecuniary gain” statutory aggravating factor.

8. The district court abused its discretion by allowing the government to introduce “lifestyle evidence” to prove the “pecuniary gain” aggravating factor.

9. There was insufficient evidence to support a reasonable jury finding that Lawrence killed for pecuniary gain.

10. The district court erred by refusing to strike the “grave risk of death” statutory aggravating factor.

11. The district court erred by refusing to strike the non-statutory aggravating factors as the product of an unconstitutional delegation of power.

12. The non-statutory aggravating factors should have been struck because the government failed to charge them in the indictment.

13. The jury's determination that the aggravating factors outweighed the mitigating factors is not supported by sufficient evidence.

14. Prosecution and sentencing under Counts Seven and Eight based on the nonstatutory aggravating factor “contemporaneous finding of guilt” violated the Double Jeopardy Clause.

15. The district court erred by refusing to instruct the jurors that they had to unanimously agree, beyond a reasonable doubt, that the aggravating factors sufficiently outweighed the mitigating factors before selecting the death sentence.

16. The district court erred by failing to instruct the jury that “a solitary juror may prevent a sentence of death.”

17. The district court erred by failing to give an adequate “malice aforethought” instruction.

18. Prosecutorial misconduct during closing argument of the penalty phase denied Lawrence a fair trial.

19. The district court erred by denying Lawrence's motion to suppress statements.

20. Prosecution in federal court and imposition of the death sentence were tainted by racial bias, in violation of Lawrence's constitutional rights.

21. The district court erred by allowing multiple “victims” to be present during the sentencing hearing.

22. The district court erred by failing to investigate evidence of juror misconduct.

23. The district court erred by allowing the government to peremptorily excuse prospective jurors because of their race.

24. The district court erred by failing to remove for cause prospective jurors whose impartiality was demonstrably compromised.

II

1. Omission of Required Jury–Nondiscrimination Certification

Lawrence contends his sentencing was marred by “structural error” because the jurors failed to certify, in conjunction with their sentencing verdicts on Counts Seven and Eight, as required by the Federal Death Penalty Act, that they would have made the same sentencing recommendation irrespective of the race, color, religious beliefs, national origin, or sex of Lawrence or the victim, Bryan Hurst. Lawrence is African American; Hurst was white. All twelve jurors were white.

The Federal Death Penalty Act requires the district court to instruct the jury that,

in considering whether a sentence of death is justified, it shall not consider the race, color, religious beliefs, national origin, or sex of the defendant or of any victim and that the jury is not to recommend a sentence of death unless it has concluded that it would recommend a sentence of death for the crime in question no matter what the race, color, religious beliefs, national origin, or sex of the defendant or of any victim may be.

18 U.S.C. § 3593(f). There is no question that the district court complied with this requirement and properly instructed the jury in this regard.

The Act, however, also requires the jury to certify that its decision to impose the death sentence was not discriminatory:

The jury, upon return of a finding under subsection (e) [concerning a sentence of death], shall also return to the court a certificate, signed by each juror, that consideration of the race, color, religious beliefs, national origin, or sex of the defendant or any victim was not involved in reaching his or her individual decision and that the individual juror would have made the same recommendation regarding a sentence for the crime in question no matter what the race, color, religious beliefs, national origin, or sex of the defendant or any victim may be.

Id. (emphasis added). This certification requirement has two components. The certification used by the district court and signed by the jurors included the first component. All of the jurors signed the certification they were provided, certifying that consideration of race, color, religious beliefs, national origin, or sex...