U.S. v. Rodriguez

• Decision Date: 22 September 2009
• Docket Number: No. 07-1316.,07-1316.
• Citation: 581 F.3d 775
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alfonso RODRIGUEZ, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

581 F.3d 775

UNITED STATES of America, Plaintiff-Appellee, v. Alfonso RODRIGUEZ, Jr., Defendant-Appellant.

No. 07-1316.

United States Court of Appeals, Eighth Circuit.

Submitted: February 12, 2009.

Filed: September 22, 2009.

Robert Garold Hoy, argued, West Fargo, ND, Richard Ney, on the brief, Wichita, KS, for appellant.

Drew Howard Wrigley, AUSA, argued, Keith Reisenauer, AUSA, on the brief, Fargo, ND, for appellee.

Before LOKEN, Chief Judge, MELLOY and BENTON, Circuit Judges.

BENTON, Circuit Judge.

A jury convicted Alfonso Rodriguez, Jr., of kidnapping Dru Kathrina Sjodin and transporting her across state lines, resulting in death. 18 U.S.C. § 1201(a)(1). The jury imposed a sentence of death. See 18 U.S.C. §§ 3591, 3593. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3595(a), this court affirms.

I.

Dru Sjodin left a mall in Grand Forks, North Dakota, on the afternoon of November 22, 2003. After she missed work that evening, a friend reported her absence to the police, who discovered her car in the mall's parking lot with a knife sheath beside it. Sjodin's phone-service provider, when contacted, told police her phone was "bouncing" off a cell tower near Crookston, Minnesota. Three days later, investigators found one of Sjodin's shoes under a bypass near Crookston.

Investigators interviewed persons in the surrounding area with convictions for kidnapping or sex offenses. Alfonso Rodriguez, Jr.—a Crookston resident and a Level III sex offender released from prison six months earlier—told police he traveled to Grand Forks on November 22 to visit the mall and see a movie. Police examined his car, which had small blood splatters in the back seat and a knife in the trunk matching the sheath found near Sjodin's car. The movie Rodriguez claimed to have watched on November 22 was not playing at the mall's movie theater that day.

Sjodin's body was found on April 17, 2004, in a drainage ditch outside of Crookston; her phone was nearby. Her body was naked below the waist, hands tied behind her back. Rope and remnants of a plastic bag encircled her neck. Her upper-body garments were pulled down off her shoulders. Police recovered hair and fiber samples from the body, which matched Rodriguez and his possessions. According to the autopsy, the most likely cause of death was asphyxiation or suffocation, a slash wound to the neck, or exposure to the elements.

The government charged Rodriguez with kidnapping Sjodin and transporting her across state lines, resulting in death. 18 U.S.C. § 1201(a)(1). Seeking the death penalty, the government charged four statutory aggravating factors, 18 U.S.C. § 3592(c)(1), (4), (6), and (9).

The jury convicted Rodriguez of the single count. The district court¹ bifurcated penalty proceedings into an eligibility phase and a selection phase.

During the eligibility phase, the jury found the government proved three statutory aggravating factors beyond a reasonable doubt: (1) 18 U.S.C. § 3592(c)(1), causing death during commission of another crime, kidnapping; (2) § 3592(c)(4), at least two prior felony convictions for infliction or attempted infliction of serious bodily injury; and (3) § 3592(c)(6), committing the offense in an especially heinous, cruel, or depraved manner. The jury found the government did not prove: (4) § 3592(c)(9), committing the offense after substantial planning and premeditation.

During the selection phase, Rodriguez called 24 witnesses, the government six. Rodriguez submitted 30 mitigating factors; jurors found 25, including 19 unanimously. The government submitted one non-statutory aggravating factor—loss, injury, and harm to Dru Sjodin and her family, which the jury found unanimously. The jury recommended a sentence of death, which the district court imposed. See id. § 3594.

Rodriguez appeals, challenging venue, jury composition and selection, evidentiary rulings, penalty-phase closing arguments, the 18 U.S.C. § 3592(c)(4) aggravating factor, penalty-phase jury instructions, and the constitutionality of the death penalty.

II. Venue

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed...." U.S. Const. amend. VI. "[W]here a crime consists of distinct parts which have different localities the whole may be tried where any part can be proved to have been done." United States v. Rodriguez-Moreno, 526 U.S. 275, 281, 119 S.Ct. 1239, 143 L.Ed.2d 388 (1999), quoting United States v. Lombardo, 241 U.S. 73, 77, 36 S.Ct. 508, 60 L.Ed. 897 (1916). Here, the crime consisted of distinct parts occurring in North Dakota and Minnesota, and venue would have been proper in either district. Fed. R.Crim.P. 18.

A North Dakota grand jury indicted Rodriguez, who moved to change venue to Minnesota, citing pretrial publicity. This court examines denials of change-of-venue motions based on pretrial publicity under a two-tier standard for presumed prejudice and actual prejudice. United States v. Blom, 242 F.3d 799, 803 (8th Cir.2001). Rodriguez argues: (a) the district court erred by not finding a presumption of prejudice in North Dakota, (b) jurors' voir dire statements demonstrated actual prejudice, (c) Criminal Rule 21 required transfer of venue, and (d) by denying additional funds for a venue study, the district court violated Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). This court reviews denials of venue and Ake motions for abuse of discretion. United States v. Stanko, 528 F.3d 581, 584 (8th Cir.2008) (venue); United States v. Ross, 210 F.3d 916, 921 (8th Cir.2000) (Ake).

A. Presumption of prejudice analysis

A motion to change venue must be granted if "pretrial publicity was so extensive that a reviewing court is required to presume unfairness of constitutional magnitude." Blom, 242 F.3d at 803 (quotations and citations omitted). In Irvin v. Dowd, the Supreme Court presumed prejudice when a newspaper received by 95 percent of local residents commented on the accused serial killer's presumed guilt, prior crimes, lie-detector test failure, confession, and anticipated punishment. Irvin v. Dowd, 366 U.S. 717, 725-26, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).

To show a presumption of prejudice, Rodriguez cites extensive North Dakota media coverage, including 241 articles about the case in the Fargo Forum (some allegedly inflammatory); statements by public officials about the case; two public opinion polls, from September 2004 and February 2006; statements by 98 of 214 examined venirepersons indicating a belief in Rodriguez's guilt; and, statements by serving jurors about public animosity toward Rodriguez.

Denying the motion to change venue, the district court took several measures to reduce the risk of prejudice. The court moved the trial from Grand Forks to Fargo, 80 miles away, and excluded Grand Forks-area residents from the venire. The court assembled a 590-person jury pool, twelve times the normal size, and required jurors to answer a 121-question form, including detailed questions on their knowledge and beliefs about the case. Rodriguez received ten additional peremptory strikes, for 30 total. The court spent 21 days conducting voir dire. Reviewing the cited newspaper stories, the court concluded they were unlikely to unfairly prejudice the public against Rodriguez.

This court's decision in United States v. Blom, 242 F.3d 799 (8th Cir.2001), answers most of the presumed-prejudice arguments in this case. There, local media extensively reported prosecutors' allegations that Blom kidnapped and murdered a female teenager. Tried on a federal weapons charge, Blom moved for change of venue, citing local media coverage. This court affirmed the denial of the motion, noting the district court moved the trial to a city within the state away from the crime site, excluded crime-area residents from the venire but expanded the venire to the whole state, assembled a jury pool three times the normal size, sent questionnaires to all prospective jurors, and increased the number of peremptory strikes for each side. Id. at 803-04. See also United States v. Allee, 299 F.3d 996, 1000 (8th Cir.2002) (finding no presumption of prejudice, despite 200 articles about the crime, when most news coverage was non-inflammatory and appeared two months-to-one year before trial).

Rodriguez also cites statements by public officials. A U.S. Senator who sponsored "Dru's Law" stated his hope that "justice will be done."² The Governor of Minnesota expressed his opinion, after the guilty verdict, that if the death penalty was ever appropriate, it was appropriate in this case. On this record, neither statement unfairly prejudiced Rodriguez.

The only significant distinction between this case and Blom or Allee is the public opinion data. This court has expressed doubts about the relevance of such polls when reviewing rejected change-of-venue motions. See Shapiro v. Kauffman, 855 F.2d 620, 621 (8th Cir.1988) (declining, in a civil case, to attach significance to poll indicating defendant's local popularity); United States v. Eagle, 586 F.2d 1193, 1195 (8th Cir.1978) (finding public opinion survey about attitudes toward Native Americans charged with high-profile killings irrelevant to unrelated case involving Native American defendants); United States v. Long Elk, 565 F.2d 1032, 1041 (8th Cir.1977) (noting the district court considered but declined to rely on a public opinion poll).

At least three other circuits have declined to rely on public opinion polls when reviewing denials of motions for change of venue in criminal cases. See United States v. Campa, 459 F.3d 1121, 1145-46 (11th Cir.2006) (en banc) (district court did not err by refusing to rely on public opinion poll when it had methodological problems); United States v. Malmay, 671 F.2d 869, 875-76 (5th Cir.1982) (district court did not err by denying change-of-venue motion when public opinion...