U.S. v. O'Driscoll
| Decision Date | 15 February 2002 |
| Docket Number | No. 4:CR-01-277.,4:CR-01-277. |
| Citation | 203 F.Supp.2d 334 |
| Parties | UNITED STATES of America v. Michael J. O'DRISCOLL |
| Court | U.S. District Court — Middle District of Pennsylvania |
Ronald C. Travis, Esq., Rieders, Travis, Humphrey, Harris & Waffenschmidt, Williamsport, David A. Ruhnke, Esq., Ruhnke & Barrett, Montclaire, NJ, for Michael J. O'Driscoll.
On August 29, 2001, a federal grand jury returned an indictment charging Michael J. O'Driscoll with murder in the first degree. The indictment states in toto as follows:
On or about June 1, 1997, at the Allenwood Federal Correctional Complex, United States Penitentiary, in Union County, Pennsylvania, on land acquired for the exclusive use of the United States, under the exclusive jurisdiction of the United States and within the Middle District of Pennsylvania, the defendant,
willfully, deliberately, maliciously, unlawfully, and with premeditation and malice aforethought, did kill Robert M. Frankhouser by stabbing him.
All in violation of Title 18, United States Code, Section 1111(a) and (b).1
On September 21, 2001, O'Driscoll appeared before the court for arraignment and entered a not guilty plea. On October 9, 2001, the government filed a notice of its intent to pursue the death penalty.2 This case is presently on the May, 2002, trial list with a pretrial conference scheduled for March 25, 2002, at 2:00 p.m.
On November 8, 2001, O'Driscoll filed eleven pretrial motions, including a motion entitled "Motion to Bifurcate Trial, Summoning and Empaneling a Second Jury Only In the Event of Conviction of First-Degree Murder." By order of December 18, 2001, we denied O'Driscoll's so-called motion to bifurcate. Briefs in support of the ten other pretrial motions were filed on December 21, 2001. The government's briefs in opposition were filed on January 25, 2002. The motions became ripe for disposition on February 8, 2002, when O'Driscoll filed some reply briefs and elected not to file others.3 With the exception of two motions that are interrelated we will address O'Driscoll's motions in the order in which they appear on the court's docket.
A. O'Driscoll's motion entitled "Motion to Strike Non-Statutory Aggravating Factor No. 3 or in the Alternative for Discovery with respect to Non-Statutory Aggravating Factor No. 3." (Doc. 28)
O'Driscoll requests that the non-statutory aggravating factor No. 3 of victim impact evidence set forth at pages 6 and 7 of the government's notice of intent to seek the death penalty be stricken. That portion of the government's notice states as follows:
3. Victim Impact Evidence. As reflected by the victim's personal characteristics as an individual human being and the impact of the offense on the victim and the victim's family, the defendant caused loss, injury, and harm to the victim and the victim's family, see Payne v. Tennessee, 501 U.S. 808, 825-827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), including, but not limited to, the following:
a) Characteristics of victim — The defendant caused the death of Robert M. Frankhouser, another federal inmate who had served almost all of his term of incarceration. Frankhouser was considered a highly trustworthy inmate by prison staff and held the position of hospital orderly;
b) Impact of the offense on the family of the victim — The victim's family has suffered severe and irreparable harm. The victim's family was looking forward to the victim's release from prison so he could start a new life. They forever will be denied the ability to share that life with their family member.
In the alternative O'Driscoll requests permission to engage in discovery relating to this factor.
The Federal Death Penalty Act of 1994 permits a jury to consider victim impact evidence.4 Specifically, § 3593 states in relevant part as follows:
The factors for which notice is provided under this subsection may include factors concerning the effect of the offense on the victim and the victim's family, and may include oral testimony, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim and the victim's family, and any other relevant information.
Victim impact evidence has been found to be an appropriate subject for a jury to consider. Payne v. Tennessee, 501 U.S. 808, 825-827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991); see also United States v. Minerd, 176 F.Supp.2d 424, 448 (W.D.Pa.2001)(Cohill, J.)( ).
In a prior death penalty case, United States v. Hammer, No. 4:CR-96-239 (M.D.Pa. indictment filed Sept. 18, 1996), we permitted the jury to consider as an aggravating factor the impact of the killing on the family of the victim. In that case we instructed the jury as follows:
The government has alleged as an aggravating factor the impact the murder of Andrew Marti has had on Andrew Marti's family. In order for you to consider the impact of the murder on the family of Andrew Marti, the government must prove beyond a reasonable doubt that David Paul Hammer caused some injury or harm to Andrew Marti's family, which injury or harm may be physical, medical, financial, social, psychological or emotional.
Furthermore, the question presented to the jury relating to victim impact evidence was as follows:
Does the jury unanimously find that the Government has established beyond a reasonable doubt that David Paul Hammer caused harm to the family of Andrew Marti as a result of the impact of the killing upon the family?5
We see no reason to deviate from our decision in the Hammer case. The consequences of O'Driscoll's action in taking the life of Mr. Frankhouser, if the jury finds O'Driscoll guilty of first-degree murder, are clearly an appropriate subject for the jury's consideration. See United States v. Bin Laden, 126 F.Supp.2d 290, 300 (S.D.N.Y.2001)(Sand, J.)("Certainly, the deleterious effects of a capital defendant's actions are an appropriate subject of sentencing consideration."). We will deny O'Driscoll's motion to strike from the government's notice of intent to seek the death penalty the non-statutory aggravating factor of victim impact evidence.
In the alternative O'Driscoll requests discovery regarding the victim impact evidence. O'Driscoll argues that because of the government's use of the language "including, but not limited to" in paragraph 3 of its notice to seek the death penalty he is unable to investigate and prepare for the witnesses or evidence the government may try to present. O'Driscoll claims that the notice is vague because it does not identify the family members or set forth details as to the nature of the harm suffered. O'Driscoll also argues that we are "charged with the responsibility of restricting the presentation of victim impact evidence so that the emotion inherently associated with such evidence does not overwhelm the jury's obligation to make a reliable, individualized sentencing determination based upon a full and fair consideration of all mitigating and all aggravating circumstances." Doc. 49, O'Driscoll's Brief in Support, page 10.
The presentation of victim impact evidence can be problematic because of the potential for emotional outbursts during the testimony of family members. One district court in commenting on victim impact evidence stated as follows:
This is the most problematical of all of the aggravating factors and may present the greatest difficulty in determining the nature and scope of the "information" to be considered. Congress expressly provided for victim impact consideration in the Death Penalty Statute but did not put any limits on what can be considered. § 3593(a). That is a matter for the court's discretion and must be determined with consideration for the constitutional limitation that the jury must not be influenced by passion or prejudice.
United States v. McVeigh, 944 F.Supp. 1478, 1491 (D.Colo.1996)(Matsch, J.). Victim impact testimony cannot be totally divorced from emotion. However, the court has an obligation to keep the emotions of witnesses in check so that the jury is, as noted by Judge Matsch, not "influenced by passion or prejudice."
In order to evaluate the potential prejudice of victim impact testimony, one court required the government to submit a written statement describing the proposed testimony of each victim impact witness. United States v. Glover, 43 F.Supp.2d 1217, 1235-36 (D.Kan.1999)(Lungstrum, J.). The court also adopted instructions to be given the witnesses relating to control of their emotions at the time their testimony was presented. Id.
We are not convinced that the government's notice of intent to seek the death penalty is so vague that it is impossible for defense counsel to undertake an investigation and prepare a defense. However, out of an abundance of caution we will adopt procedures similar to those adopted by the district court in Glover.6
B. O'Driscoll's motions entitled "Motion to Dismiss Notice of Aggravating Factors, and/or for Discovery and a Hearing, Since Mr. O'Driscoll has been Unfairly, Arbitrarily, and Capriciously Targeted for Capital Punishment" and "Motion for Discovery and a Hearing and to Dismiss the Notice of Aggravating Factors on the Grounds that the Federal Death Penalty is Sought on the Impermissible Basis of Race and Arbitrary Basis of Region." (Docs. 29 and 36)
O'Driscoll requests that we strike the government's notice of intent to seek the death penalty or in the alternative permit him to engage in discovery regarding the government's decision to pursue the death penalty....
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