U.S. v. Barnette

• Decision Date: 03 May 2011
• Docket Number: No. 10–2.,10–2.
• Citation: 644 F.3d 192
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Aquilia Marcivicci BARNETTE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

644 F.3d 192

UNITED STATES of America, Plaintiff–Appellee,

v.Aquilia Marcivicci BARNETTE, Defendant–Appellant.

No. 10–2.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 27, 2011.Decided: May 3, 2011.

ARGUED: Mark Evan Olive, Tallahassee, Florida, for Appellant. Jeffrey B. Kahan, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Claire J. Rauscher, Executive Director, Ross H. Richardson, Assistant Federal Defender, Federal Defenders of Western North Carolina, Inc., Charlotte, North Carolina, for Appellant. Lanny A. Breuer, Assistant Attorney General, Greg Andres, Deputy Assistant Attorney General, United States Department of Justice, Washington, D.C.; Anne M. Tompkins, United States Attorney, Charlotte, North Carolina, for Appellee.

Before NIEMEYER, DAVIS, and KEENAN, Circuit Judges.Affirmed by published opinion. Judge DAVIS wrote the majority opinion, in which Judge NIEMEYER concurred, and in which Judge KEENAN concurred except as to Part III.A.1. Judge KEENAN wrote a separate opinion concurring in part and concurring in the judgment.

OPINION

DAVIS, Circuit Judge:

This federal capital case is before us for the fourth time. See United States v. Barnette, 211 F.3d 803 (4th Cir.2000) (hereinafter Barnette I ); United States v. Barnette, 390 F.3d 775 (4th Cir.2004), vacated and remanded, 546 U.S. 803, 126 S.Ct. 92, 163 L.Ed.2d 32 (2005) (hereinafter Barnette II ); United States v. Barnette, No. 02–20–CR–97–23–V (4th Cir. filed Sept. 21, 2007). In Barnette I, we reviewed the propriety of the convictions of, and the death sentence imposed on, Appellant Aquilia M. Barnette arising from his murder of two victims and related charges. In the initial appeal, we affirmed the convictions but vacated the death sentence and remanded the case for a new sentencing proceeding. 211 F.3d at 826. Upon remand, the district court empanelled a new jury, which recommended, after a fresh sentencing hearing, a sentence of death. In Barnette II, the appeal from the second sentencing hearing, we affirmed the sentence and specifically, we rejected Barnette's contention that prosecutors had exercised their peremptory challenges in a racially discriminatory manner to strike African–Americans from the jury venire in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and its progeny. 390 F.3d at 779.

Barnette sought and was granted certiorari and the Supreme Court vacated the judgment and remanded the case to us for reconsideration of Barnette's Batson claim in light of the Court's intervening decision in Miller–El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005).

Upon the Supreme Court's remand, after the parties filed supplemental briefs in this court, but before any further consideration of Barnette's Batson claim by us, on Barnette's motion, we remanded the case to the district court “for consideration of the Batson claim in the first instance in light of Miller–El v. Dretke , 125 S.Ct. 2317 (2005).” See Docket No. 02–20, entry 212.

The district court held a hearing and thereafter issued a memorandum opinion and order on May 19, 2010, finding and concluding that, even in light of the elucidation of Batson's principles in Miller–El, Barnette had not met his burden of proving that the prosecution engaged in purposeful discrimination when it exercised peremptory strikes against five African–American members of the jury venire during jury selection for the sentencing phase in 2002. Barnette now appeals the district court's order denying relief on his reconsidered Batson claim. For the reasons set forth within, we find no merit in Barnette's contentions that the district court committed prejudicial error in the manner in which it conducted the proceedings below or in its findings of fact and legal conclusions on the merits of Barnette's Batson claim. Accordingly, for the reasons set forth within, we affirm.

I.

A.

The facts underlying the jury's verdict and sentence recommendation on the capital counts of the indictment are set forth fully in our prior opinion; we briefly summarize them here. In 1996, Barnette made his first attempt to kill his ex-girlfriend, Robin Williams, upon learning that she was involved with another man. Barnette went to Williams' apartment in Roanoke, Virginia, where he cut the phone lines, poured gasoline onto a window sill, set fire to the gasoline, and threw a Molotov cocktail into the apartment. After waiting to confirm that the apartment was burning, Barnette drove away. Williams and her friend were able to jump from the second story window and escape, although Williams suffered second- and third-degree burns. The police obtained an arrest warrant for Barnette for two counts of attempted murder and two counts of arson/firebombing.

Upon learning that he was wanted by the police, Barnette hid out in Charlotte, North Carolina, with his cousin. He purchased a shotgun. Then, on the night of June 21, 1996, Barnette, armed with the shotgun, walked to the intersection of Billy Graham Parkway and Morris Field Road in Charlotte. When a car approached and stopped, Barnette put his shotgun to the window and ordered the driver out of the vehicle and into the woods adjacent to the road. Barnette then shot and killed the driver, twenty-two-year-old Donald Lee Allen. He took Allen's wallet and drove the vehicle to Roanoke.

Barnette arrived at Williams' mother's house in Roanoke and waited near the house until morning. After seeing Williams and her mother moving around inside the house, Barnette entered the back yard of the house and cut the telephone lines. Barnette then broke into the house; upon seeing Barnette, Williams fled out the front door. Barnette chased her and grabbed her and attempted to drag her to the car. He told Williams that he was going to kill her and that he had one shotgun shell for her and one for himself. When Williams struggled and reached for the gun, Barnette shot her once in her side. She then attempted to run away, but Barnette shot her in the back. She died a short time later. Barnette testified that the reason he did not kill himself after killing Williams was because he panicked after seeing what the shotgun shells did to Williams. He confessed to both murders a few days later. Id. at 779–82.

B.

Barnette was convicted by the original jury after a three week trial in January 1998 on eleven charges: (1) interstate domestic violence, in violation of 18 U.S.C. §§ 2261(a) & (b); (2) use of a destructive device, a firebomb, during a crime of violence, in violation of 18 U.S.C. § 924(c)(1); (3) using and carrying fire and explosive materials during a felony, in violation of 18 U.S.C. § 844(h)(1); (4) making a false statement during the purchase of a firearm, in violation of 18 U.S.C. §§ 922(a)(6) & 924; (5) making a firearm by sawing off his shotgun without complying with the provisions of the National Firearms Act, in violation of 26 U.S.C. §§ 5821, 5822, 5861(f) & 5871; (6) possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) & 924; (7) commission of a carjacking that results in death, in violation of 18 U.S.C. § 2119(3); (8) using and carrying a firearm during and in relation to a crime of violence, namely a carjacking, in which death occurs, in violation of 18 U.S.C. §§ 924(c)(1) & (i)2(1); (9) transporting a stolen vehicle in interstate commerce, in violation of 18 U.S.C. § 2312; (1 0) interstate domestic violence, in violation of 18 U.S.C. §§ 2261(a)(1) & (b)(1); and (11) using and carrying a firearm during and in relation to a crime of violence, namely interstate domestic violence, in which death occurs, in violation of 18 U.S.C. §§ 924(c)(1) & (i) 2(1). On the jury's recommendation, Barnette was sentenced to death on counts seven, eight, and eleven; as to the remaining counts, the district court imposed an aggregate prison term of life.

Barnette appealed his convictions and sentence, and in 2000, this court affirmed the convictions but vacated the death sentence and remanded for resentencing as to the capital counts. See Barnette I, 211 F.3d 803. Barnette was resentenced in July 2002 and once again received a death sentence on counts seven, eight, and eleven. Barnette II, 390 F.3d at 783. We affirmed the reimposed death sentences. Id. at 812. Thereafter, the Supreme Court vacated the judgment and remanded for consideration in light of Miller–El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005).

Upon the Supreme Court's remand, we remanded the case to the district court for reconsideration.

C.

Upon our remand, the district court permitted the parties to file briefs, in which Barnette sought a new sentencing hearing or in the alternative, an evidentiary hearing. United States v. Barnette, No. 3:97CR–23, 2010 WL 2085312, *5 (W.D.N.C. May 20, 2010). The government requested that the court hold another Batson hearing addressing only the issue of “pretext,” the third prong of the Batson analysis. Id. The government did not oppose Barnette's request that he be allowed to present evidence of purposeful discrimination at a hearing, but it opposed Barnette's motion for discovery. Id. The district court ordered the government to submit unredacted copies of all juror questionnaires in its possession for in camera review. Id. at *6.

These written questionnaires had been filled out by over 400 potential venirepersons about a month prior to jury selection in Barnette's second sentencing hearing. Id. at *9. The questionnaire asked 129 questions submitted by both the government and Barnette, ranging from each juror's personal information, including race and gender, education, employment status and history, marital status, and health background, to their specific beliefs and opinions regarding the death penalty. Id. Counsel had received copies of the completed questionnaires prior to jury selection, which began on July 15, 2002. Id. During jury...