U.S. v. Glover

• Decision Date: 04 March 1999
• Docket Number: No. Civ.A. 98-1005901-JWL.,Civ.A. 98-1005901-JWL.
• Citation: 43 F.Supp.2d 1217
• Parties: UNITED STATES of America, Plaintiff, v. Cody D. GLOVER, Defendant.
• Court: U.S. District Court — District of Kansas

43 F.Supp.2d 1217

UNITED STATES of America, Plaintiff, v. Cody D. GLOVER, Defendant.

No. Civ.A. 98-1005901-JWL.

United States District Court, D. Kansas.

March 4, 1999.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Steven K. Gradert, Timothy J. Henry, Office of Federal Public Defender, Wichita, KS, Charles D. Dedmon, Melody J. Evans, Office of Federal Public Defender, Topeka, KS, Robert Nigh, Tulsa, OK, for Cody D. Glover, defendant.

Thomas J. Weilert, Reals & Weber, Wichita, KS, for Mark L. Holley, defendant.

David M. Lind, Office of U.S. Atty., Wichita, KS, for U.S.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

This matter is before the court on the following motions of defendant Cody D. Glover:

Motion to Strike Specific "Aggravators" in the Government's Notice of Intent to Seek the Death Penalty (Doc. # 202); Motion to Strike the Government's Notice of Intent to Seek the Death Penalty (Doc. # 201);

Motion to Strike the Constitutionally Deficient Notice of Intent to Seek the Death Penalty (Doc. # 215);

Motion for Bill of Particulars (Doc. # 216);

Motion to Bar the Death Penalty as Racially Discriminatory (Doc. #218); and

Motion for Second Stage Procedures (Doc. # 236).

The government has filed its responses, and Mr. Glover has filed his replies. On February 8, 1999, the court heard oral argument on the motions, and took the motions under advisement. The court is now prepared to rule.

I. Motion to Strike Specific "Aggravators" in the Government's Notice of Intent to Seek the Death Penalty (Doc. # 202)

On November 2, 1998, the government filed a notice of intention to seek the death penalty as to the defendant Cody Glover, thereby invoking the provisions of the Federal Death Penalty Act, 18 U.S.C. §§ 3591-3596. The Federal Death Penalty Act requires the government to file a notice "setting forth the aggravating factor or factors that the government, if the defendant is convicted, proposes to prove as justifying a sentence of death." 18 U.S.C. § 3593(a)(2). The government's Notice of Intent to Seek the Death Penalty (Doc. # 177) alleges the following aggravating factors:

STATUTORY AGGRAVATING FACTORS

1. The defendant intentionally attempted to kill more than one person, John Brewer and Christy Lewis, in a single criminal episode. 18 U.S.C. § 3592(c)(16);

2. The defendant, in the commission of the murder, knowingly created a grave risk of death to Christy Lewis in addition to the victim of the offense, John Brewer. 18 U.S.C. § 3592(c)(5);

3. The defendant committed an offense in expectation of the receipt of something of pecuniary value. 18 U.S.C. § 3592(c)(8).

NONSTATUTORY AGGRAVATING FACTORS

1. The defendant intentionally engaged in conduct, intending that John Brewer be killed and/or that lethal force be employed against John Brewer, which resulted in the death of John Brewer;

2. The defendant committed the murder for the purpose of avoiding or preventing a lawful arrest or prosecution for the robbery of the Kum & Go;

3. The defendant intentionally engaged in conduct which resulted in the death of John Brewer and serious physical and emotional injury to Christy Lewis;

4. In committing the murder, the defendant caused permanent harm to the family of John Brewer;

5. The defendant committed the murder of John Brewer after substantial premeditation to rob the Kum & Go;

6. The defendant lacks remorse for the murder of John Brewer; and/or

7. The defendant represents a continuing danger to the safety of others.

Mr. Glover seeks to strike statutory aggravators # 2 and 3, and all non-statutory aggravators except # 2. The court will address each of these factors in turn.

A. Statutory Factors.

1. The defendant, in the commission of the murder, knowingly created a grave risk of death to Christy Lewis in addition to the victim of the offense, John Brewer. 18 U.S.C. § 3592(c)(5).

Mr. Glover contends that the government's second enumerated statutory aggravating factor, that "the defendant knowingly created a grave risk of death to more than one person," is duplicative and cumulative to the government's first enumerated statutory aggravating factor, that "the defendant attempted to kill more than one person." Mr. Glover asserts that submitting both statutory factors to the jury "is precisely the type of duplicative and cumulative statement that was held unconstitutional in United States v. McCullah, 76 F.3d 1087 (10th Cir.1996), cert. denied, 520 U.S. 1213, 117 S.Ct. 1699, 137 L.Ed.2d 825 (1997)." The court agrees.

In McCullah, the district court submitted both the Section 848(n)(1)(C) and (n)(1)(D) statutory aggravating factors to the jury. In holding such submission improperly duplicative, the Tenth Circuit reasoned:

The (n)(1)(D) factor requires that the defendant intentionally engages in conduct which he knows creates a grave risk of death and that such death results. 21 U.S.C. § 848(n)(1)(D). This substantially overlaps with the (n)(1)(C) factor which refers to intentional conduct intending that the victim be killed. See 21 U.S.C. § 848(n)(1)(C). Any intentional conduct aimed at producing death is by definition conduct done with knowledge of grave risk of death. While the factors are not identical per se, the (n)(1)(C) factor necessarily subsumes the (n)(1)(D) factor.

Such double counting of aggravating factors, especially under a weighing scheme, has a tendency to skew the weighing process and creates the risk that the death sentence will be imposed arbitrarily and thus, unconstitutionally. [W]hen the same aggravating factor is counted twice, the "defendant is essentially condemned `twice for the same culpable act,'" which is inherently unfair. While the federal statute at issue is a weighing statute which allows the jury to accord as much or as little weight to any particular aggravating factor, the mere finding of an aggravating factor cannot but imply a qualitative value to that factor. When a sentencing body is asked to weigh a factor twice in its decision, a reviewing court cannot "assume it would have made no difference if the thumb had been removed from death's side of the scale." ... We hold that the use of duplicative aggravating factors creates an unconstitutional skewing of the weighing process which necessitates a reweighing of the aggravating and mitigating factors.

Id. at 1111-12 (citations omitted, emphasis added). The court finds such reasoning applicable and persuasive in this case.

The government concedes that "overlapping mental states cannot be found by the jury as separate aggravating factors." Government's Brief (Doc. # 294) at 4. The government, however, maintains that it is premature for the court to consider this issue at this time, and suggests that: (1) the court instruct the jury that it may only find one of the two statutory factors, but not both; or (2) the government be permitted to elect, at the close of evidence during the penalty phase, one of the two factors for the jury to consider.

The court finds that one of the two duplicative aggravating factors must be stricken sufficiently in advance of trial to allow Mr. Glover reasonable notice. The government is given until March 12, 1999, to elect between the first two enumerated statutory aggravating factors. Additionally, if the government elects the second of the two aggravating factors, the court finds that Mr. Glover is entitled to greater factual specificity on the government's allegations. Accordingly, if the government elects the second factor, the court, in the exercise of its inherent authority, see United States v. Kaczynski, 1997 WL 716487 (E.D.Cal.1997); United States v. McVeigh, 944 F.Supp. 1478, 1486-87 (D.Colo.1996), directs the government to amend its death penalty notice (Doc. # 177) to specifically articulate its factual allegations by setting out what act or acts the government contends constitute the knowing creation of a grave risk of death, by March 12, 1999.

2. The defendant committed an offense in expectation of the receipt of something of pecuniary value. 18 U.S.C. § 3592(c)(8).

Mr. Glover argues that the government's third statutory aggravator must be stricken because the government has failed to demonstrate, in its pleadings or in discovery, that the homicide was committed for pecuniary gain. Mr. Glover contends 18 U.S.C. § 3592(c)(8) contemplates homicide as "the offense" that must be committed "in the expectation of the receipt of anything of pecuniary value."

The court observes that because the government has failed to identify "the offense" in the Death Penalty Notice (Doc. # 177), Mr. Glover is left to speculate as to what "offense" the government is alleging, i.e., the homicide itself, or the robbery. In addition, the notice provides no specific facts regarding the "something of pecuniary value," or any facts supporting the allegation that Mr. Glover had an "expectation of the receipt" of something of pecuniary value.

During oral argument on this motion, the government clarified that the offense to which the aggravator refers is the capital homicide.¹ The court finds that Mr. Glover is entitled to greater factual specificity on the government's allegations with respect to this statutory aggravator. Accordingly, the court, in the exercise of its inherent authority, directs the government to more specifically articulate the nature of this aggravator by March 12, 1999.

B. Non-statutory factors.

1. The defendant intentionally engaged in conduct, intending that John Brewer be killed and/or that lethal force be employed against John Brewer, which resulted in the death of John Brewer.

With respect to the government's first non-statutory aggravator, Mr. Glover argues that it should be stricken as duplicative. He contends that this non-statutory aggravator "is simply the government's third restatement of statutory aggravating factors one and two." Mr. Glover's Brief (Doc. # 202) at 12. The government responds that "any perceived overlapping may be cured by...