United States v. Bernard ( 2002 )

REVISED AUGUST 22, 2002
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50523
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRANDON BERNARD and CHRISTOPHER ANDRE VIALVA,
Defendants - Appellants.
Appeals from the United States District Court
for the Western District of Texas
Waco Division
July 19, 2002
Before JONES, WIENER and PARKER, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Brandon Bernard and Christopher Andre Vialva were jointly
tried, found guilty and sentenced to death for the murders of Todd
and Stacie Bagley on the property of Fort Hood, Texas. See Federal
Death Penalty Act (“FDPA”) of 1994, 18 U.S.C. § 3591 et seq.
Bernard and Vialva now appeal their convictions and sentences.
Finding no reversible error, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 20, 1999, Christopher Andre Vialva, Christopher
Lewis and Tony Sparks, members of a gang in Killeen, Texas, met to
plan a robbery.1 The three gang members decided on the following
plan: they would ask someone for a ride, get in the car and pull a
gun on the victim, steal the victim’s money and personal effects,
obtain the pin number for the victim’s ATM card, force the victim
into the trunk of the car and drive somewhere to abandon the car
with the victim locked in the trunk.
The following day, Vialva, Lewis and Sparks enlisted two
fellow gang members, Brandon Bernard and Terry Brown, to assist in
the carjacking plan. Initially, the group only had one gun, a
“tiny .22 pistol” that they considered “too small to frighten
anyone.” The group decided that a second gun was necessary.
Bernard owned a Glock .40 caliber handgun that he had lent to
Gregory Lynch. Vialva, Bernard, Lewis, Sparks and Brown drove to
Lynch’s house and obtained Bernard’s gun. The group then set out
in search of a victim.
Sometime after 2:00 p.m. on the afternoon of June 21,
Bernard drove Vialva, Brown, Lewis and Sparks to a local
supermarket to find a victim. Having had no luck there, the group
1
Most of the facts concerning the events of June 20-21 were testified
to by Christopher Lewis and Terry Brown, who pled guilty to various offenses in
exchange for truthful testimony.
2
continued their search by driving around parking lots at other
local stores. The search ended at a convenience store in Killeen,
where they found Todd Bagley using a pay phone.
Todd Bagley and his wife, Stacie, were youth ministers
from Iowa. Before moving to Iowa, Todd had been stationed at Fort
Hood, where the couple attended Grace Christian Church and worked
with the youth group. About a week before their deaths, the
Bagleys returned to Killeen to visit friends and to attend a
revival meeting at the church. On Sunday, June 21, they attended
a morning worship service and had lunch with friends. Afterward,
Todd stopped at “Mickey’s” convenience store to use the payphone,
while Stacie waited for him in their car.
Lewis and Sparks approached Todd and asked him for a ride
to their uncle’s house. Todd agreed. Vialva, who was standing
nearby, got in the backseat of the Bagleys’ car with Lewis and
Sparks.2 Todd and Stacie occupied the front seat. Vialva gave
Todd directions, and then pulled out the .40 caliber gun, pointed
it at Todd and told him that “the plans have changed.” At the same
time, Sparks pointed the .22 handgun at Stacie. On Vialva’s
orders, Todd stopped the car, and the Bagleys got out. The gang
stole Todd’s wallet, Stacie’s purse and the Bagleys’ jewelry.
2
Bernard and Brown were playing video games in a nearby store. They
rejoined Vialva later in the day.
3
Vialva demanded the pin numbers for the Bagleys’ ATM cards, and
then forced the Bagleys into the trunk of their car.
After locking the Bagleys in the trunk, Vialva drove
around for several hours. He went to ATM machines to withdraw
money from the Bagleys’ account, but was largely unsuccessful
because the Bagleys had less than one hundred dollars on deposit.
Vialva drove to a “Wendy’s” where Lewis and Sparks used the
Bagleys’ money to purchase some food. Vialva then attempted to
pawn Stacie’s wedding ring, and stopped at a tobacco store to
purchase cigars and cigarettes.
While they were locked in the trunk, the Bagleys spoke
with Lewis and Sparks through the rear panel of the car. Lewis
testified that the Bagleys asked them questions about God, Jesus
and church. The Bagleys told Lewis and Sparks that they were not
wealthy people, but that they were blessed by their faith in Jesus.
The Bagleys informed Lewis and Sparks about the revival meeting at
Grace Christian, a church which Lewis said he had attended. Urging
them to have faith, the Bagleys advised Lewis and Sparks that God’s
blessings were available to anyone. After this conversation,
Sparks told Vialva he no longer wanted to go through with the
crime. Vialva, however, insisted on killing the Bagleys and
burning their car to eliminate the witnesses and the gangs’
fingerprints.
4
Vialva drove to his house. While he was inside, the
Bagleys had another conversation about God with Lewis and Sparks.
By this time, the victims had been locked in the trunk for several
hours. The Bagleys pleaded with Lewis and Sparks for their lives.
Vialva returned to the car with a ski mask and some
additional clothing. Vialva, Lewis and Sparks then met Bernard and
Brown, and Vialva repeated that he had to kill the Bagleys because
they had seen his face. Bernard and Brown set off to purchase fuel
to burn the Bagleys’ car.
Vialva, Bernard, Lewis and Brown3 drove to an isolated
spot in the Belton Lake Recreation Area on the Fort Hood military
reservation. Vialva parked the Bagleys’ car on top of a little
hill. Brown and Bernard poured lighter fluid on the interior of
the car while the Bagleys sang and prayed in the trunk.
According to Brown, Stacie’s last words were “Jesus loves
you” and “Jesus, take care of us.” Vialva crudely cussed at her in
reply. Vialva put on his mask, and told Lewis to open the trunk.
Vialva then shot Todd in the head with the .40 caliber gun, killing
him instantly. Vialva shot Stacie in the right side of her face,
knocking her unconscious, but not killing her. Bernard set the car
3
Sparks was no longer with the group. He was dropped off earlier in
the evening to avoid missing his curfew.
5
on fire. An autopsy later revealed that Stacie died from smoke
inhalation.4
Vialva, Bernard, Lewis and Brown ran down the hill to
Bernard’s car. Their getaway was foiled when the car slid off the
road into a muddy ditch. Local law enforcement officers, informed
of a fire, arrived at the scene while the assailants were trying to
push the car out of the ditch. When firemen discovered the bodies
in the trunk of the Bagleys’ burning car, the four were arrested.
A grand jury in the Western District of Texas indicted
appellants Vialva and Bernard for the following crimes: carjacking
and aiding and abetting the same in violation of 18 U.S.C. §§ 2,
2119 (“Count One”); conspiracy to commit murder in violation of 18
U.S.C. §§ 1111, 1117 (“Count Two”); the murder of Todd Bagley,
within the special maritime and territorial jurisdiction of the
United States, and aiding and abetting the same in violation of 18
U.S.C. §§ 2, 1111 (“Count Three”); and the murder of Stacie L.
Bagley, within the special maritime and territorial jurisdiction of
the United States, and aiding and abetting the same in violation of
18 U.S.C. §§ 2, 1111 (“Count Four”). The government gave notice it
would seek the death penalty.
4
An autopsy revealed soot in Stacie’s larynx, trachea and bronchi
indicating her inhalation of smoke. A toxicologic examination of Stacie’s blood
revealed a high level of carbon monoxide, the product of breathing smoke carbon
monoxide gas from the burning car.
6
On June 1, 2000, a jury found Vialva and Bernard guilty
on all four counts of the indictment. Testimony in the punishment
phase of the trial began on June 8 and lasted four days. On June
13, the jury recommended a sentence of death against Vialva on
Counts One, Three and Four, and a sentence of death against Bernard
on Count Four. The district court sentenced Vialva to life
imprisonment on Count Two and death on the remaining counts. The
court sentenced Bernard to life imprisonment on Counts One, Two and
Three and death on Count Four. Bernard and Vialva filed timely
notices of appeal.
II. DISCUSSION
In this direct appeal, Bernard and Vialva challenge their
convictions and sentences on the following grounds:
A. The district court violated Vialva’s Due Process rights
by improperly dismissing a prospective juror for cause;
B. The district court violated Vialva’s Due Process rights
and Fed. R. Civ. P. 14 by failing to order a severance
and a mistrial sua sponte in the punishment phase of
trial;
C. The district court failed to conduct an adequate
investigation into alleged communications between a third
party and jurors;
D. The district court violated Appellants’ First Amendment,
Eighth Amendment and Due Process rights and 18 U.S.C.
7
§ 3593(c) and § 3593(f) by admitting victim impact
statements containing improper references to religion and
improper characterizations of Appellants and their
crimes;
E. The district court improperly defined certain aggravating
factors in its instructions to the jury, and the evidence
is legally insufficient to support the jury’s findings
regarding three aggravating factors;
F. Appellants’ death sentences violate the Eighth Amendment
and 18 U.S.C. § 3595(c)(2)(A) because the jury
arbitrarily found that Appellants’ ages were not
mitigating factors;
G. The district court violated Vialva’s Eighth and
Fourteenth Amendment rights and 18 U.S.C. § 3593(c) by
excluding mitigating testimony concerning a childhood
incident of racial harassment;
H. Prosecutorial statements in closing argument denied
Vialva a fair trial and violated his Due Process rights.
I. The cumulative impact of errors in the punishment phase
of trial denied Vialva a fair trial.
J. Bernard’s sentence violates the Fifth, Sixth and Eight
Amendments because the “mental state factors” and
8
“statutory aggravating factors” were not found by the
grand jury or alleged in the indictment.
We address each of these issues in turn.
A. Dismissal of a prospective juror for cause.
Vialva contends that the district court erred by
sustaining the government’s challenge to prospective juror Dana
Pate on the basis of her inability to consider the penalty of
death. In her initial questionnaire, the prospective juror stated,
“I do not feel I have the right to judge whether a person lives or
dies. I could not do that.” When asked about this statement
during voir dire, however, the prospective juror indicated that she
had changed her mind about the death penalty. She explained to the
court, “this is a real hard thing for me . . . I’ve talked to some
people, and we’ve talked about [the death penalty], and I still
don’t know if I’m right or not, but if the facts were such that
they were proven that the defendant would need that verdict, then
I would give it.” The government made and the district court
sustained a for-cause objection to Ms. Pate on the basis of her
inability to adequately consider the death penalty. Vialva argues
that the district court erred because the prospective juror
expressed a willingness to consider the death penalty in
appropriate cases.
9
“A court may excuse a prospective juror for cause because
of his views on capital punishment if those views would prevent or
substantially impair the performance of his duties as a juror in
accordance with the instruction and oath.” United States v.
Webster, 162 F.3d 308, 340 (5th Cir. 1999) (citing Wainwright v.
Witt, 469 U.S. 412, 424, 105 S. Ct. 844 (1985)). A prospective
juror who would “automatically vote against the death penalty in
every case” must be dismissed. Id. (citing United States v.
Flores, 63 F.3d 1342, 1355 (5th Cir. 1995)). Additionally, the
district court has discretion to excuse a juror for cause when the
court “is left with the definite impression that a prospective
juror who would be unable to faithfully and impartially apply the
law.” Id., (quoting Witt, 469 U.S. at 426, 105 S. Ct. 844). While
the district court’s dismissal of a prospective juror on this basis
is reviewed for abuse of discretion, we give the court
“considerable deference [] because such decisions are based on
face-to-face credibility assessments.” Webster, 162 F.3d at 340.
The record supports the district court’s decision. Ms.
Pate’s initial questionnaire revealed unequivocally that she could
not sentence another person to death. When questioned during voir
dire, the potential juror explained that under limited
circumstances she would be able to sentence another person to
death, but she also stated “I cannot be sure. . . . I cannot be
10
sure about this.” These statements and others in the record
support the district court’s conclusion that the prospective
juror’s bias regarding the death penalty substantially impaired her
ability to abide by her oath as a juror. The district court did
not abuse its discretion in dismissing Ms. Pate.
B. Severance
Vialva urges that the trial court should have severed his
case from Bernard’s at the penalty phase of trial. See Fed. R.
Crim P. 14. According to Vialva, evidence of Bernard’s religious
conversion and Christian upbringing implicitly prejudiced the jury
against Vialva, who lacked comparable mitigating evidence. Vialva
contends that Bernard’s mitigating evidence regarding his
Christianity violated Vialva’s right to exclude consideration of
religion during the penalty phase of trial. Vialva concedes that
this issue must be reviewed for plain error, since he did not
object to Bernard’s evidence and failed to renew an unsuccessful
pretrial motion for severance. United States v. Misher, 99 F.3d
664, 669 (5th Cir. 1996).5
5
Vialva, but not Bernard, moved to sever the trials at the outset of the
proceedings and again during jury selection. The motions were denied. We are
not faced with any broad question concerning the advisability of joint trials in
federal capital cases, but we note that the Federal Death Penalty Act contains
no special rules regarding joinder of codefendants.
11
Reversal may occur under the demanding plain error
standard only if there was (1) clear or obvious (2) error that
(3) affected Vialva’s substantial rights, and (4) failure to
correct the error seriously affects the fairness, integrity or
public reputation of the judicial proceedings. United States v.
Olano, 507 U.S. 725, 730-37, 113 S. Ct. 1770 (1993). Vialva cannot
satisfy the standard.
No clear error attached to the district court’s failure
sua sponte to sever and grant a mistrial when Bernard offered a bit
of evidence of his Christian conversion. The decision to sever
lies in the trial court’s discretion. Severance “should” be
granted “only if there is a serious risk that a joint trial would
compromise a specific trial right of one of the defendants.”
Zafiro v. United States, 506 U.S. 534, 539, 113 S. Ct. 933 (1993).
A court’s limiting instructions will often cure any prejudice
resulting from a joint trial. Id. Further, defendants charged
with capital murder under federal statutes have been tried jointly
in both the guilt and penalty phases of trial. See United States
v. Causey, 185 F.3d 407 (5th Cir. 1999); United States v. Tipton,
90 F.3d 861 (4th Cir. 1996).
While acknowledging that efficiency factors support joint
trials even in capital cases, we share Vialva’s concern over the
inherent tension between joinder and each defendant’s
12
constitutional entitlement to an individualized capital sentencing
decision. A trial court must be especially sensitive to the
existence of such tension in capital cases, which demand a
heightened degree of reliability. Lowenfield v. Phelps, 484 U.S.
231, 238-39, 108 S. Ct. 546 (1988); see generally Tipton, 90 F.3d at
891-92 (discussing problems posed by joinder in the penalty phase
of a federal capital case, but noting that since the federal
statute requires the sentencing decision to be made by the jury
that tried the defendants’ guilt, severance during the penalty
phase is impractical.) Nevertheless, the pro-Bernard mitigating
evidence of which Vialva complains was not sufficiently “mutually
antagonistic” or “irreconcilable” to him to suggest, much less
compel, severance at the penalty phase.
Bernard’s mitigating evidence was admissible and not
subject to challenge by Vialva. Viewed objectively, however,
Bernard did not offer strong proof of his religious conversion.
One friend testified briefly that Bernard had “found the Lord”
while in jail for these crimes. And Bernard’s mother, pleading for
her son’s life, testified that she tried to instill in Bernard
Christian principles. Considering the circumstances of the crime,
her plea appears desperate. None of this evidence tarred Vialva
directly or indirectly, particularly since it was evident that
Vialva was not responsible for the fractured home life of his
13
youth. The evidence generated no “specific and compelling”
prejudice to Vialva.
Finally, the court repeatedly instructed the jury to
consider each defendant’s punishment separately, and he instructed
them, as required by the FDPA, not to consider the religious views
of the defendants or victims. This instruction refutes Vialva’s
complaint that the court should have issued an additional, sua
sponte instruction that evidence of Bernard’s religious upbringing
or conversion should not be considered in assessing Vialva’s
punishment. This court must presume that the jury heard,
understood and followed the district court’s instructions.
Richardson v. Marsh, 481 U.S. 200, 211, 107 S. Ct. 1702 (1987). The
district court’s instructions sufficiently addressed the risk of
prejudice resulting from the joint trial. The court did not
plainly err by failing to order severance during the punishment
phase of trial.
C. Alleged Third-Party Communication
with Jurors
Before closing arguments in the guilt-innocense phase of
trial, the district court told counsel: “a juror said as they came
past where some people were out on the sidewalk this morning, and
some person they described as a ‘Black lady,’ said to them,
‘Someone is going to die in that trial today.’ So, if you notice
14
some extra security or something today, that will be the reason.”
The record reflects no response from any of the parties. Bernard
now contends that the court conducted an insufficient inquiry into
this alleged incident, and the court erred in believing that the
jury had not been tainted by the third-party communication.
We review the court’s decision that the jury was not
improperly tainted by extrinsic evidence under the clearly
erroneous standard, and we review the court’s choice of methods to
investigate the possibility of extrinsic taint for abuse of
discretion. United States v. Cantu, 167 F.3d 198, 201 (5th Cir.
1999) (citations omitted).6 Bernard argues that the district court
abused its discretion by discussing this alleged communication with
the juror ex parte. Relying on Remmer v. United States, 347 U.S.
227, 74 S. Ct. 450 (1954), and other jury tampering cases, Bernard
argues that the district court committed reversible error by
failing to conduct a hearing to investigate this incident.
This court has explained, however, that district courts
are not required to conduct a “full-blown evidentiary hearing in
every instance in which an outside influence is brought to bear
upon a petit jury.’” Cantu, 167 F.3d at 201-02 (quoting United
6
Because Bernard failed to object to the district court’s announcement
and did not move for a mistrial, plain error review might be appropriate.
Nevertheless, because we find no clear error or abuse of discretion, it is
unnecessary to determine whether the plain error standard is required.
15
States v. Ramos, 71 F.3d 1150, 1153 (5th Cir. 1995)); see also,
United States v. Sylvester, 143 F.3d 923, 932 n.5 (5th Cir. 1998).
To determine whether a hearing is necessary, the district court
“must balance the probable harm resulting from the emphasis such
action would place upon the misconduct and the disruption involved
in conducting a hearing against the likely extent and gravity of
the prejudice generated by the misconduct.” Ramos, 71 F.3d at
1153 (5th Cir. 1995).
In this case, the passing statement of a crowd member was
minimally prejudicial, even if it is assumed to have been intended
to influence the jury. The effect of her statement would have been
greatly outweighed by the disruption and prejudice of an
evidentiary hearing. This conclusion is underscored by the absence
of any request for further investigation or a request for a
mistrial. The district court’s failure to investigate further or
differently was not an abuse of discretion. Likewise, its
conclusion that the jury was not improperly tainted is not clearly
erroneous. Bernard’s argument is without merit.7
D. Victim Impact Statements
7
Bernard further inaptly asserts that his counsel had a right to be
present at the court’s “ex parte conference” with the juror. The context of the
court’s statement to counsel suggests that a juror simply mentioned the
passerby’s comment to him. Again, the fact that no attorney present responded
to the court’s announcement strongly indicates the triviality of the incident.
16
Appellants next contend that the district court erred by
admitting certain parts of the victim impact statements in the
penalty phase of trial. Not only do they allege that the victim
impact statements were unduly prejudicial, in violation of their
Due Process rights, but also that they contained improper
references to religion and improper characterizations of the
perpetrators and their crimes. Bernard and Vialva concede that
since they did not object to the victim impact statements at trial,
this court’s review is for plain error. See, e.g., Jones v. United
States, 527 U.S. 373, 387-88, 119 S. Ct. 2090 (1999).
The FDPA provides for the submission of an aggravating
factor “concerning the effect of the offense on the victim and the
victim’s family [which] may include oral testimony, a victim impact
statement . . . and any other relevant information.” 18 U.S.C. §
3593(a)(2). Victim impact evidence is relevant to the jury’s
sentencing decision. Accordingly, testimony concerning the effect
of the murders on the victims and their parents was offered in
support of this aggravating factor.
In Payne v. Tennessee, the Supreme Court held that victim
impact evidence is admissible “to show [] each victim’s uniqueness
as an individual human being.” 501 U.S. 808, 823-27, 111 S. Ct.
2597 (1991). “Victim impact evidence is [a] method of informing
the sentencing authority about the specific harm caused by the
17
crime in question, evidence of a general type long considered by
sentencing authorities.” Id. at 825, 111 S. Ct. 2597. Evidence
“about the victim and about the impact of the murder on the
victim’s family is relevant to the jury’s decision as to whether or
not the death penalty should be imposed. There is no reason to
treat such evidence differently than other relevant evidence is
treated.” Id. at 827, 111 S.Ct. at 2597. Victim impact evidence
is admissible unless it “is so unduly prejudicial that it renders
the trial fundamentally unfair” in violation of a defendant’s Due
Process rights. Id. at 825, 111 S. Ct. 2597; see also, Jones v.
United States, 527 U.S. 373, 401-02, 119 S. Ct. 2090 (1999).8
The Government offered five victim impact statements in
the sentencing phase of trial. The four parents’ statements were
8
Prior to its opinion in Payne, the Court had held victim impact
statements inadmissible on the basis that they created an “impermissible risk
that the capital sentencing decision [would] be made in an arbitrary manner” in
violation of the Eighth Amendment. Booth v. Maryland, 482 U.S. 496, 505, 107
S. Ct. 2529 (1987); see also, South Carolina v. Gathers, 490 U.S. 805, 810, 109
S. Ct. 2207 (1989) (extending Booth to prosecutorial arguments concerning the
character of the victim or the impact of the crime on the victim’s family). The
holdings of Booth and Gathers rested on the reasoning that victim impact evidence
is “wholly unrelated to the blameworthiness of a particular defendant.” Booth,
482 U.S. at 505, 107 S. Ct. 2529.
In Payne, the Court determined that Booth had “unfairly weighted the
scales in a capital trial” in favor of the defendant. Payne, 501 U.S. at 822,
111 S. Ct. 2597. “By turning the victim into a ‘faceless stranger at the penalty
phase of a capital trial,’ Booth deprives the State of the full moral force of
its evidence and may prevent the jury from having before it all the information
necessary to determine the proper punishment for a first-degree murder.” Id. at
825, 111 S.Ct. at 2597. Overruling Booth and Gathers to this extent, the Court
explained that victim impact evidence is relevant to the defendant’s moral
culpability, and it counterbalances the defendant’s mitigating evidence with
evidence that humanizes the victim. Id.
18
admissible under Payne to show the impact of the murders on the
victims’ families. 501 U.S. at 827, 111 S.Ct. at 2609. The fifth
statement was made by a friend and former coworker of the Bagleys
and demonstrated their “uniqueness as [] individual human
being[s].” Id. at 823, 111 S.Ct. at 2607. The statements in this
case are similar to those held admissible in other cases. See,
e.g., United States v. Hall, 152 F.3d 381, 404-05 (5th Cir. 1998),
abrogated on other grounds by, United States v. Martinez-Salazar,
528 U.S. 304, 120 S. Ct. 774 (2000); United States v. McVeigh, 153
F.3d 1166, 1218-19 (10th Cir. 1998).
Bernard’s and Vialva’s multiple challenges to the victim
impact statements resolve analytically into two issues: whether the
witnesses’ religious statements and references deprived appellants
of a fair trial; and whether portions of the victim impact
statements went beyond the limits of Payne by injecting into
evidence irrelevant and prejudicial characterizations of the crime
and the Appellants.9
1. Religious Statements in the Victim Impact Testimony
9
Appellants also challenge Todd Bagley’s father’s statement that
described the emotional harm resulting from his observation of the trial, which
revealed the brutality of the crime. Appellants argue that Bagley’s statement
was irrelevant to the harm caused by the Appellants. This single short paragraph
of Mr. Bagley’s statement “did not inflame [the jury’s] passions more than did
the facts of the crime . . . . In light of the jury’s unavoidable familiarity
with the facts,” we cannot conclude that Mr. Bagley’s brief statement deprived
Appellants of Due Process. Payne, 501 U.S. at 832, 111 S.Ct. at 2612 (O’Connor,
J., concurring).
19
Appellants argue that religious references in the victim
impact testimony violated their First Amendment, Eighth Amendment
and Due Process rights and contravene provisions of the FDPA
prohibiting the introduction of unduly prejudicial testimony. 18
U.S.C. §§ 3593(c) and 3595(c)(2)(A). Four types of religious
references appear in the testimony: (1) descriptions of the
religious beliefs and activities of Todd and Stacie Bagley; (2) the
bereaved parents’ statements that they relied on their own
religious beliefs to find comfort from the pain caused by the
murders; (3) a religious plea by Stacie’s mother directed at
Appellants; and (4) religious remarks by Thelma Bernard,
appellant’s mother, when pleading for her son’s life.
With regard to the first category of religious
statements, we find no error in the introduction of testimony
regarding the victims’ religious activities. Payne holds that a
court must consider the victims of an offense as it finds them, not
in the light most favorable to the defendant. Indeed, concurring
in Payne, Justice Souter described the “serious practical problems”
caused by the Booth standard with a hypothetical illustration of a
minister killed by a stranger while running an errand to his
church. Payne, 501 U.S. at 840-42, 111 S.Ct. at 2616-17 (Souter,
J., concurring). Justice Souter explained:
The jury will not be kept [at the guilt phase] from
knowing that the victim was a minister, with a wife and
20
child, on an errand to his church . . . because the usual
standards of trial relevance afford factfinders enough
information about surrounding circumstances to let them
make sense of the narrowly material facts of the crime
itself. No one claims that jurors in a capital case
should be deprived of such common contextual evidence. .
. .
Id. In this case, testimony regarding the religious activities of
the Bagleys is “common contextual evidence.” The Bagleys were
youth ministers who were attending a revival meeting at their
former church on the day that they were murdered. These contextual
facts are not inadmissible simply because they concern religion.
In addition to being relevant contextual evidence, the
fact that Todd and Stacie Bagley were “deeply religious and
harmless individual[s] who exhibited [their] care for [their]
community by religious proselytization . . . was relevant to the
community’s loss at [their] demise.” Gathers, 490 U.S. at 821, 109
S.Ct. at 2216 (O’Connor, J., dissenting).10 Because religion played
a vital role in Todd and Stacie Bagleys’ lives, it would be
impossible to describe their “uniqueness as individual human
beings” without reference to their faith. See Pickren v. State,
500 S.E.2d 566, 568-69 (Ga. 1998) (finding description of victim’s
“faith and church activities an essential part of a ‘glimpse into
10
In Gathers, the Court had held inadmissible a prosecutorial argument
containing numerous references to the religious beliefs and activities of the
victim. Gathers, 490 U.S. at 810-11, 109 S.Ct. at 2210-11. By overruling
Gathers, the Court has accepted Justice O’Connor’s view that evidence relating
to the victim’s religious activities is relevant to the sentencing decision.
21
his life.’”) (citations omitted). We find no error in admitting
statements regarding the religious beliefs and activities of the
victims.
The second category of religious statements includes the
parents’ reliance on their religious belief for comfort and relates
to the harm caused by the Appellants’ crime. Stacie Bagley’s
father, for example, explained that the only thing that made his
daughter’s tragic death bearable was his belief that he would see
her again someday in heaven. Such statements are relevant to the
impact of the Appellants’ crimes on the victims’ families. Thus,
the statements are admissible under Payne.
We are troubled, however, that Stacie Bagley’s mother,
Donna McClure, addressed Bernard and Vialva personally during the
course of her victim impact statement, warned them that heaven and
hell are real, and called on them to put their faith in Jesus
Christ for the forgiveness of their sins. Since these admonitions
neither describe Todd and Stacie nor relate to the harm inflicted
on Ms. McClure by appellants’ crime, they were irrelevant and might
have been excluded upon timely objection. Nevertheless, Appellants
have failed to demonstrate that the admission of this testimony
affected their substantial rights for purposes of the third prong
of the plain error test. Unlike cases finding religious statements
inadmissible, neither McClure nor any of the witnesses in this case
22
nor, most important, the prosecutor urged the jurors to use a
religious standard in reaching their verdict. See, e.g., Sandoval
v. Calderon, 241 F.3d 765, 776 (9th Cir. 2001) (stating that
prosecutorial invocation of a “higher law or extra-judicial
authority” in argument to jury violates the Eighth Amendment). In
this case, the witness urged Appellants to put their faith in God.
Precisely because such statements are not relevant to the jury’s
sentencing decision, we do not believe they could have inflamed or
prejudiced the jury against appellants, they were not designed to
do so, and in sum, such statements do not constitute plain error.
Vialva also complains that his right to a fair trial was
violated when Bernard’s mother, in mitigating testimony, urged the
jurors to use a religious standard in their deliberations. This is
the fourth type of religious reference complained of by Vialva.
Bernard’s mother, testifying on Bernard’s behalf in the punishment
phase, urged the jury to reject the death penalty because “Jesus
wouldn’t do lethal injection.” As noted earlier, Bernard’s
mitigating evidence of his religious conversion was admissible.
These statements generated no specific prejudice to Vialva,
however, as Bernard’s mother urged the jury to reject the death
penalty. Furthermore, the court’s instructions to the jury
sufficiently addressed the risk of prejudice. The jurors also
signed a certification, as required by the FDPA, that religion
23
played no part in their sentencing decision. The statements of
Bernard’s mother did not deny Vialva a fair trial.
2. Characterization of the defendants and their crime
Appellants also argue that portions of the victim impact
testimony impermissibly characterized the Appellants and their
crime. In Booth, the Supreme Court held inadmissible victim impact
testimony which “set[s] forth the family members’ opinions and
characterizations of the crimes and defendant[s].” 482 U.S. at
508-09, 107 S.Ct. at 2535-36. The Court reasoned that “the formal
presentation of [family members’ opinions and characterization of
the crime] can serve no other purpose than to inflame the jury and
divert it from deciding the case on relevant evidence concerning
the crime and the defendant.” Id. This portion of the holding in
Booth was not overruled by the Supreme Court in Payne. See Payne,
501 U.S. at 830 n.2, 111 S. Ct. at 2611.
In her written statement to the jury, Stacie Bagley’s
mother directed the following statement to the Appellants: “I’m
sorry for you, for your heart to be so hard, you couldn’t even see
the innocence of the two you’ve killed.” Stacie Bagley’s father
testified:
I truly believe that on June 21st, 1999, our children
were tragically and recklessly stolen from us. There was
no profit to be gained, no angry exchange, it was just a
useless act of violence and a total disregard of life.
24
Stacie and Todd saw a chance to witness to two young
people placing themselves in harm’s way.
These statements characterize the Appellants, and offer opinions
about the nature of their crime. We are bound by Booth to find
such evidence inadmissible. Furthermore, the error in admitting
such testimony was plain. However, Appellants have not
demonstrated that the error affected their substantial rights.
These brief statements did not alone unduly prejudice the jury.
Cf. Payne, 501 U.S. at 832, 111 S.Ct. at 2612 (“[S]urely this brief
statement did not inflame [the jury’s] passions more than did the
facts of the crime . . . .”) (O’CONNOR, J., concurring).
Furthermore, any prejudice that did result from the statements was
mitigated by the district court’s instructions to the jurors not to
be swayed by passion, prejudice or sympathy. We reiterate that we
presume that the jury followed its instructions. U.S. v. Tombin,
46 F.3d 1369, 1391 (5th Cir. 1995). Taken in context, this
inadmissible portion of the victim impact testimony was short and
mild compared to the horror of the crimes and the pathos of the
admissible impact on the parents.
E. Challenges to the Aggravating Factors
Appellants next challenge several of the aggravating
factors submitted to the jury: (1) that “the defendant[s] committed
the offense in an especially heinous, cruel or depraved manner in
25
that it involved torture or serious physical abuse of the victim,”
set forth in 18 U.S.C. § 3592(c)(6); (2) that Bernard “is likely to
commit criminal acts of violence in the future which would be a
continuing and serious threat to the lives and safety of others,”
a non-statutory aggravating factor; and (3) that “the defendant[s]
committed the offense as consideration for the receipt, or in the
expectation of the receipt, of anything of pecuniary value,” set
forth in 18 U.S.C. § 3592(c)(7). We address each of the
aggravating factors in turn, noting at the outset that the jury
found additional aggravating factors as to each defendant, and that
these factors were all found unanimously.
1. “Especially heinous, cruel or depraved” crime
Bernard first argues, solely to preserve the issue for
further review, that the statutory “especially heinous, cruel or
depraved” aggravating factor was too broadly defined in the jury
instructions. He concedes that the instructions submitted to the
jury on this aggravating factor are virtually identical to the
comprehensive instructions approved by this court in other cases.
See Hall, 152 F.3d at 414. Bernard’s overbreadth argument is
without merit.
Bernard also contends that the evidence is legally
insufficient to support the jury’s finding regarding the
“especially heinous, cruel or depraved” aggravating factor. As
26
with any criminal verdict, we review jury findings of aggravating
factors by asking whether, after viewing the evidence in a light
most favorable to the government, any rational trier of fact could
have found the existence of the aggravating circumstance beyond a
reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319
(1979); United States v. Tipton, 90 F.3d 861, 896 (4th Cir. 1996)
(applying Jackson “rational trier of fact” standard to challenges
to jury findings regarding aggravating circumstances); United
States v. McCullah, 76 F.3d 1087, 1107 (10th Cir. 1996) (same).
Bernard contends that his participation in the crime was
not as a matter of law “especially heinous, cruel or depraved”
because he “was neither present nor responsible for most of the
acts and events which the Government and its witnesses urged as a
basis for an affirmative finding of this factor.” Bernard’s Brief
at 50 (emphasis added). It is true that Bernard was not present or
responsible for every act of cruelty in this criminal episode.
However, the record provides ample basis for a rational juror to
conclude that Bernard engaged in actions that were “especially
heinous, cruel or depraved” as defined by the district court.
Knowing what was to be done with them, Bernard bought two cans of
lighter fluid from a convenience store, and he voluntarily
accompanied the gang as they drove the Bagleys to the murder scene.
Bernard poured lighter fluid all over the Bagleys’ car while they
27
were alive, locked in the trunk. He set the car ablaze with Stacie
Bagley unconscious, but still alive, in the trunk. Viewing the
evidence in the light most favorable to the government, a rational
trier of fact could find the existence of this aggravating factor
beyond a reasonable doubt.
2. “Future Dangerousness”
Bernard also argues that the evidence is legally
insufficient to support the jury’s finding that he is likely to
commit criminal acts of violence in the future that would be a
threat to the lives and safety of others. Relying in part on
Simmons v. South Carolina, 512 U.S. 154, 114 S. Ct. 2187 (1994),
Bernard contends that the fact of mandatory long-term incarceration
alone weighs heavily against a finding of ‘dangerousness’ in the
absence of some evidence that the defendant will continue to be
violent even in prison. Further, given the limited nature and
extent of his personal role in the murder of the Bagleys and his
lack of any substantial prior criminal history, Bernard disputes
that a rational jury could find him a future danger to society.
Under the above-quoted limited test for sufficiency of evidence on
appeal, we find no merit in these arguments.
Simmons does not hold that future dangerousness is
irrelevant to a jury’s sentencing decision when the defendant will
be imprisoned indefinitely, but instead requires that this
28
aggravating factor be explained to the jury in the context of the
defendant’s ineligibility for parole. 512 U.S. at 169, 114 S. Ct.
2187. Simmons was applied correctly here, since the jury was
informed that Bernard would be ineligible for parole. Moreover,
the Eighth Circuit, sitting en banc, rejected a similar Simmons
argument in United States v. Allen, 247 F.3d 741, 788 (8th Cir.
2001) (en banc) (“[Appellant] argues that the government asserted
only that he would be a danger to society but not that he would be
a danger in prison. Because the jury was informed of his
ineligibility for parole, we find no basis for drawing such a
distinction.”). In any event, the government offered proof not
only of Bernard’s past record but also of his potential for
violence in prison. At the sentencing hearing, Dr. Richard Coons,
a forensic psychiatrist, testified concerning Bernard’s propensity
for violence in prison.11 Based on Dr. Coons’s testimony, the
horrific facts of Bernard’s participation in the crimes, and ample
evidence of Bernard’s gang membership and criminal activities,
11
Specifically, Dr. Coons testified as follows:
A: If [a person] is a gang member on the outside [of prison], they’ll
be a member of a gang inside.
Q: All right. And being a member of a gang inside the prison, does
that lead itself or lend itself to even more acts of violence?
A: Yes. Gangs [] band together for two reasons, basically, protection
and control. The members of the gang will be asked to participate
in criminal acts and violent acts. I mean, that’s just the facts.
R.V. 24 at 3162-63.
29
including his participation in at least two dozen burglaries, a
rational juror could find that Bernard posed a serious threat of
future harm to others.
3. “Pecuniary Gain”
a.
A far more difficult question is presented by both
appellants’ challenge to this aggravating factor. Appellants
contend that the statutory “pecuniary gain” aggravating factor, see
18 U.S.C. § 3592(c)(8), does not apply to this case and that the
evidence is legally insufficient to support the jury’s findings on
this factor.12
The district court followed the language of §3592(c)(8)
when it instructed the jury to determine whether each “defendant
committed the offense as consideration for the receipt, or in the
expectation of the receipt, of anything of pecuniary value.” The
court further instructed the jury that “[t]he phrase ‘pecuniary
value’ means anything of value belonging to Todd A. Bagley or
Stacie L. Bagley in the form of money, property or anything having
economic value.” The jury unanimously found the existence of this
factor as to Bernard and Vialva.
12
Appellants filed written objections to the proposed charge in the
district court arguing that the “pecuniary gain” factor should not be submitted
to the jury. Appellants argued that “the plain meaning of this aggravator is
that the defendant must commit the offense because he exchanged his act of
‘murder’ for a promise of something of ‘pecuniary value.’”
30
Citing United States v. Chanthadara, 230 F.3d 1237, 1263
(10th Cir. 2000), Appellants argue that Congress intended to
reserve application of the “pecuniary gain” factor to “scenarios
where the expectation of pecuniary gain is from the actual killing
[i.e., a murder-for-hire scenario] and not just the underlying
felony [i.e., a robbery].” Appellants argue that Congress did not
intend for the “pecuniary gain” factor to apply in every case in
which the defendant acquires something of pecuniary value as a
result of his involvement in a homicide. Instead, application of
the “pecuniary gain” factor is limited to situations where “the
murder itself was committed as consideration for, or in the
expectation of, anything of pecuniary value.” Chanthadara, 230
F.3d at 1263, 1264 (finding jury instruction erroneous where it
“failed to specify the ‘offense’ to which it referred was the
homicide, not the underlying robbery, and thereby failed to impose
a necessary limitation.”).
We agree with Appellants, and the Tenth Circuit, that the
application of the “pecuniary gain” aggravating factor is limited
to situations where “pecuniary gain” is expected “to follow as a
direct result of the [murder].” Chanthadara, 230 F.3d at 1263
(citation omitted). Thus, this aggravating factor is only
applicable where the jury finds beyond a reasonable doubt that the
murder itself was committed “as consideration for, or in the
31
expectation of” pecuniary gain. See Woratzeck v. Stewart, 97 F.3d
329, 334 (9th Cir. 1996) (discussing analogous “pecuniary gain”
factor under Arizona death penalty statute, and explaining that
“[t]he State needs to prove at sentencing that the killing was done
with the expectation of pecuniary gain. Even if it is true that
under many circumstances a person who kills in the course of a
robbery is motivated to do so for pecuniary reasons, that is not
necessarily so.”).
In light of this limitation, the evidence is legally
insufficient to support application of the “pecuniary gain” factor
in this case. Appellants were not hired to commit the offense of
murder, and they did not commit the offense “as consideration for”
pecuniary gain. Nor did Appellants commit the offense of murder
“in expectation of pecuniary gain.” The government argues that the
murders in this case were a “necessary step in finishing the car-
jacking plan,” and were therefore committed “in expectation of
pecuniary gain.” The motivation for the murders, however, was
unrelated to pecuniary gain. Instead, Appellants sought to prevent
the Bagleys from reporting their crimes to the police. Since no
pecuniary gain was expected to flow directly from the homicide,
this aggravating factor should not have been considered by the jury
in weighing whether to impose the death penalty. The evidence is
32
insufficient to support application of the “pecuniary gain” factor
on the basis of the facts presented by this case.
b.
We must next consider the effect of the invalid
“pecuniary gain” aggravating factor on Appellants’ death sentences.
The FDPA provides that courts of appeals cannot vacate death
sentences on the basis of errors that are harmless beyond a
reasonable doubt. 18 U.S.C. § 3595(c)(2). “Harmless-error review
of a death sentence may be performed in at least two different
ways. An appellate court may choose to consider whether absent an
invalid factor, the jury would have reached the same verdict, or it
may choose instead to consider whether the result would have been
the same had the invalid factor been precisely defined.” Jones v.
United States, 527 U.S. at 402, 119 S.Ct. at 2109 (citations
omitted).13 Applying the first of these methods, we conclude that
the error is harmless beyond a reasonable doubt.14
13
In United States v. Webster, 162 F.3d 308, 324 (5th Cir. 1999),
decided a few months prior to the Supreme Court’s decision in Jones, this court
applied a slightly different test: “Our duty when the jury finds an invalid
aggravating factor is to strike the factor and either reweigh the remaining
factors or apply harmless error review. . . . In conducting a harmless error
review [] we may inquire into whether, beyond a reasonable doubt, either (1) the
death sentence would have been imposed had the invalid aggravating factor been
properly defined in the jury instructions or (2) the death sentence would have
been imposed absent the invalid aggravating factor.”
14
In Ring v. Arizona, ___ U.S. ___, 122 S. Ct. 2428 (2002), the Supreme
Court has held that a jury must determine the existence of aggravating factors
that would increase a sentence from imprisonment to the death penalty. Ring
explicitly states, however, that the Court was not considering the state supreme
court’s authority to reweigh the aggravating and mitigating circumstances after
33
Elimination of the invalid pecuniary gain factor from
consideration leaves two statutory aggravating factors as to
Bernard and three statutory aggravating factors as to Vialva. The
jury unanimously found the existence of the “especially heinous,
cruel or depraved” and “substantial planning and premeditation”
aggravating factors in their consideration of Bernard’s sentence.
18 U.S.C. § 3592(c)(6) and (9). In addition to these, the jury
unanimously found the existence of the “single criminal episode”
aggravating factor in regard to Vialva’s sentence. 18 U.S.C. §
3592(c)(13). The jury also unanimously found three non-statutory
aggravating factors for both appellants: that they were likely to
commit future acts of violence; that they caused injury, harm and
loss to the families of the victims; and that they murdered the
Bagleys for the purpose of preventing the victims from providing
information to the police regarding the crime. In the government’s
closing argument to the jury in the sentencing phase, the pecuniary
gain aggravating factor received less attention than any of the
other aggravating factors. During the sentencing phase testimony,
the government focused on the “especially heinous, cruel or
depraved” nature of Appellants’ crime and the harm done to the
victims’ families. Again, the pecuniary gain factor was not
it struck an aggravating factor. See Ring, 122 S. Ct. 2428, 2002 WL 1357257 at
*9 n.4.
34
emphasized. The jury’s findings of at least five other aggravating
factors regarding each appellant, and hardly any mitigating
factors,15 compel the conclusion that the erroneous submission of
the pecuniary gain factor was harmless beyond a reasonable doubt.
We are confident that the jury would have imposed the same
sentences even if the pecuniary gain factor had not been submitted
for their consideration.
F. Challenges to the Mitigating Findings
Appellants next challenge the jury’s findings regarding
their ages as mitigating factors. At trial, it was undisputed that
Bernard was eighteen and Vialva was nineteen at the time of the
murders. The jurors, instructed to determine “the existence of
each particular mitigating factor by a preponderance of the
evidence,” unanimously found that Appellants failed to prove that
their age was a mitigating factor.16 Based on Eddings v. Oklahoma17
15
The jury found no mitigating factors regarding Bernard. Ten of the
twelve jurors found Vialva’s abused childhood to be a mitigating factor.
However, the jury rejected all other mitigating factors that were submitted
regarding Vialva.
16
The Special Findings Form submitted to the jury stated:
IV. PART FOUR - MITIGATING FACTORS
Instructions: For each of the following mitigating factors,
indicate the number of jurors who find the existence of each
particular mitigating factor by a preponderance of the evidence; if
none of the jurors find by a preponderance of the evidence that a
particular mitigating factor exists, write the number “0" in the
blank provided:
. . .
IV(C) Christopher Vialva was nineteen at the time of the
offense.
35
and related cases, Appellants argue that their sentences violate
the Eighth Amendment because the jury arbitrarily and capriciously
refused to acknowledge the existence of a mitigating circumstance
that clearly existed.
This court has previously expressed doubt regarding its
authority to review jury findings relating to mitigating factors.
See Hall, 152 F.3d at 413. Hall questions whether a jury’s failure
to find the existence of a mitigating factor is subject to
appellate review, since the FDPA does not require the jury to make
special findings of the existence of, or degree of jury unanimity
upon, mitigating factors. Id. Assuming, however, that we have
such authority, we find no constitutional error in the jury’s
determination that Appellants’ relative youthfulness was not a
mitigating factor.
“Neither the FDPA nor Lockett and Eddings require a
capital jury to give mitigating effect or weight to any particular
evidence . . . There is only a constitutional violation if there
exists a reasonable likelihood that the jurors believed themselves
Number of jurors who so find, if any ______
IV(C) Brandon Bernard was eighteen at the time of the
offense.
Number of jurors who so find, if any _______
In response to both questions, the jurors wrote “0" in the blank.
17
455 U.S. 104, 102 S. Ct. 869 (1982).
36
precluded from considering mitigating evidence.” United States v.
Paul, 217 F.3d 989, 999-1000 (8th Cir. 2000) (citing Boyde v.
California, 494 U.S. 370, 386, 110 S. Ct. 1190 (1990)). In Paul,
the Eighth Circuit found no constitutional error where six jury
members refused to find the defendant’s age a mitigating factor
although it was undisputed that the defendant was eighteen at the
time of his offense. Id. (“The jury was certainly not precluded
from considering Paul’s youthful age as a mitigating factor [and]
Paul has not cited authority for the proposition that a jury is
somehow required to give mitigating effect to any factor, let alone
this one.”).
Appellants contend that Paul is inapposite, because the
form of the verdict here misled the jurors by allowing them to find
– irrationally – that neither defendant was chronologically 18 or
19 at the time of the offense, and by then preventing them from
considering youthfulness as a mitigating factor. We do not read
the verdict form this way, and in any event, appellants did not
object to the jury instructions or verdict form regarding this
mitigating factor. The jury instruction accompanying the list of
mitigating factors clearly tells the jury to consider whether each
listed circumstance mitigates the defendant’s culpability. Thus,
they were instructed to write down the number of jurors, if any,
who found that the fact that Christopher Vialva was nineteen at the
37
time of the offense was mitigating as to Vialva, and likewise for
Bernard. The government plainly explained the impact of these
questions in its closing argument.
The jurors necessarily decided that these appellants’
ages were not mitigating, as they were entitled to do. While the
defendants’ tender years may lead a jury to exercise clemency, it
need not do so. The jury had ample evidentiary basis to believe
that these appellants’ acts climaxed a pattern of gang activities
and made them older, criminally, than their chronological ages.
The jury did not have to balance youthfulness, since they did not
regard it as mitigating, against the aggravating factors.
G. Exclusion of Potentially Mitigating Evidence
Vialva contends that the district court impermissibly
prevented him from introducing relevant mitigating testimony about
a childhood incident of racial discrimination. Vialva’s mother,
Lisa Brown, testified extensively regarding her personal background
and Vialva’s childhood experiences. Ms. Brown described her
sheltered childhood, her troubled and often abusive relationships
with men and her difficult pregnancy with Vialva. She also
discussed Vialva’s childhood illnesses, his attention deficit
disorder and Vialva’s difficult familial relationships with his
Mother’s partners. Ms. Brown also testified about Vialva’s
struggle with his racial identity resulting from his having one
38
black and one white parent and various conflicts Vialva faced due
to his mixed racial background.
Vialva now challenges the district court’s rulings in the
following exchange, which occurred after the testimony described
above:
Q: Is [Vialva] getting into fights?
A: Yes.
Q: And are those fights, you believe, the result of his
mixed racial background?
A: Yes. There were kids that called him “zebra”.
MR. FRAZIER: I’m going to object to that, Your Honor. This
witness wouldn’t have --
THE COURT: It’s speculation. Sustain the objection.
R.V.24 at 2949-50.
Vialva contends that the district court violated his
constitutional right to introduce relevant mitigating testimony by
excluding Ms. Brown’s testimony regarding this single incident of
childhood racial harassment. Vialva relies on Skipper v. South
Carolina,18 and related authority, arguing that the district court
erred by precluding the sentencing jury “from considering, as a
mitigating factor, any aspect of the defendant’s character or
record . . . that the defendant proffers as a basis for a sentence
less than death.” Skipper, 476 U.S. at 3, 106 S. Ct. 1669. Vialva
18
476 U.S. 1, 106 S. Ct. 1669 (1986).
39
also asserts that the district court violated the FDPA by excluding
Ms. Brown’s testimony on the basis of speculation, because the FDPA
provides that the rules of evidence cannot be used to exclude
relevant mitigating information. 18 U.S.C. § 3593(c).
The district court’s exclusion of Ms. Brown’s speculative
statements, even if error, is harmless beyond a reasonable doubt.
As explained above, the district court allowed Ms. Brown to testify
at length about the racial tension in Vialva’s life. Additionally,
the district court admitted expert testimony regarding the effect
of racial harassment on Appellant.19 In closing argument, Vialva’s
counsel, relying on the evidence of racial harassment, argued that
19
Dr. Mark Cunningham, a forensic psychiatrist, testified as follows:
Q: Doctor, another thing that occurred in “Chris’” life - or Mr.
Vialva’s life was the fact that he was - considered himself of mixed
race, and was confused about that in his childhood. Did you
identify that as a risk factor in this case?
A: Yes, I did, that there was significant confusion, and at different
times in his childhood, he identified himself as being white, and
then later mixed, and then later black, and the psychological
records showed evidence of a lot of turmoil and confusion about that
very essential who am I kind of question.
Q: How does that affect a person?
A: Well, when it was accompanied by some bigotry that he experienced
early in childhood and by some peer rejection, then that aggravated
the effects of it, that there was not a peer group that he easily
blended with, and that’s a separate risk factor . . . In [Vialva’s]
case, he experienced some active peer rejection. When he’s six
years old and the other kids are calling him names and throwing
rocks at him . . . then it isn’t just that he feels different,
although that’s part of it, but that he is actively being
discriminated against. . . .
R.V.24 at 3061-62.
40
Vialva’s childhood racial experiences mitigated his moral
culpability for his crime. The jury was not, therefore, precluded
from considering racial discrimination and harassment as a
potential mitigating factor in Vialva’s background. In light of
substantial evidence in the record regarding Vialva’s racial
background, any arguable error in the exclusion of one instance of
childhood harassment was harmless. See Hitchcock v. Dugger, 481
U.S. 393, 398-99, 107 S. Ct. 1821, 1824 (1987) (exclusion of
relevant mitigating evidence invalidates death sentence unless such
exclusion was harmless beyond a reasonable doubt).
H. Prosecutorial Misconduct
Vialva next contends that he was denied Due Process and
a fair trial by repeated inappropriate comments by the prosecutor
in his closing argument to the jury. During his closing argument
to the jury, the prosecutor stated:
But because the investigation was so thorough, it
did not leave either be [sic] these Defendants or their
attorneys with anything to work with. You heard the
evidence. You heard the corroboration. You saw the
physical evidence and the scientific evidence. . . . It
left them with nothing, because the evidence is so
overwhelmingly and so positive and so true as to the
guilt of both of these Defendants for the crimes they’ve
been charged with.
So, what were they left to do? Defense Counsel were
left with the opportunity - with - with nothing, so they
had to try to create a doubt where one did not exist.
And [defense counsel] spent, for the last hour to hour
and a half, trying to convince you any way they can, any
possibility, no matter how remote or extreme it would be,
41
to try to get someone on this jury to follow down a
rabbit trail and take a red herring and somehow say, “Oh,
I’ve got a doubt.” Not based on facts, but based purely
on conjecture and speculation. Ladies and gentlemen, if
these guys had another hour, they’d be trying to convince
you it’s midnight outside right now.
The prosecutor continued to argue that defense counsel made up an
“outrageous theory” out of desperation in an attempt to mislead the
jurors. Vialva contends that the prosecutor’s statements amount to
an improper personal attack on defense counsel, denying Vialva a
fair trial. Because Vialva’s counsel failed to preserve error
regarding most of the prosecutor’s statements, he bears the burden
of demonstrating that, all told, the prosecutor’s statements
constitute plain error. United States v. Gallardo-Trapero, 185
F.3d 307, 321 (5th Cir. 1999).
Improper prosecutorial comments constitute reversible
error only where “the defendant’s right to a fair trial is
substantially affected.” United States v. Andrews, 22 F.3d 1328,
1341 (5th Cir. 1994) (citation omitted). “A criminal conviction is
not to be lightly overturned on the basis of a prosecutor’s
comments standing alone. The determinative question is whether the
prosecutor’s remarks cast serious doubt on the correctness of the
jury’s verdict.” United States v. Iredia, 866 F.2d 114, 117 (5th
Cir. 1989). The factors relevant to this inquiry are: “(1) the
magnitude of the prejudicial effect of the statements; (2) the
efficacy of any cautionary instructions; and (3) the strength of
42
the evidence of the defendant’s guilt.” Andrews, 22 F.3d at 1341
(citation omitted).
Vialva has failed to demonstrate error, much less plain
error. The prosecutor’s arguments, properly understood, attacked
the strength of the defense on the merits, not the integrity of
defense counsel. Moreover, the prosecutor had some latitude
because the defense counsel accused the government of “paying for”
some of its witnesses. Finally, the court instructed the jury
twice not to consider the statements, arguments or questions by the
attorneys as evidence. Given the strength of the prosecution’s
case against Vialva, these remarks could not have denied him a fair
trial.
I. Cumulative Error
Vialva contends that he was denied a fair trial by the
cumulative impact of errors in the punishment phase. Vialva’s
argument is based primarily on the district court’s failure to
properly instruct the jury on the pecuniary gain aggravating
factor. As explained above, the error in applying the pecuniary
gain factor is harmless beyond a reasonable doubt, and Vialva was
not denied a fair trial. Vialva’s cumulative impact argument is
without merit.
J. Sufficiency of the Indictment
43
In supplemental briefing before this court, Bernard
alleges that his sentence is unconstitutional because the grand
jury did not find, nor did the indictment allege, the existence of
mental state and statutory aggravating factors required by the FDPA
for imposition of the death penalty. Bernard did not object at
trial on this ground, and concedes that review is for plain error.
The alleged error in the indictment is plain, according to Bernard,
because Ring v. Arizona, ___ U.S ___, 122 S. Ct. 2428, 2002 WL
1357257 (2002) extended Apprendi v. New Jersey20 to aggravating
factors in capital cases. Ring did not hold that indictments in
capital cases must allege aggravating and mental state factors.
See Ring, 2002 WL 1357257 at *9 n.4 (“Ring does not contend that
his indictment was constitutionally defective.”). Even if Apprendi
were applicable to this case, the alleged error in the indictment
does not amount to plain error. See United State v. Cotton, ___
U.S. ___, 122 S. Ct. 1781, 1786-87 (2002) (explaining that Apprendi
error in an indictment failing to allege a drug quantity was not
plain error because the evidence of the drug quantity was
“overwhelming”).
CONCLUSION
20
530 U.S. 466, 120 S. Ct. 2348 (2000).
44
For the foregoing reasons, we find no reversible error in
the convictions or capital sentences. Accordingly, we AFFIRM the
judgments of the district court.
45