Petition for Writ of Certiorari — James Ray Earl Walker, Petitioner v. Nevada
Supreme Court briefNov 16, 2020
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No. ________
OCTOBER TERM, 2020
IN THE SUPREME COURT OF THE UNITED STATES
JAMES WALKER, Petitioner,
v.
WILLIAM GITTERE, et al., Respondent.
On Petition for Writ of Certiorari to the
Nevada Supreme Court
PETITIONER’S APPENDIX
CAPITAL CASE
RENE L. VALLADARES
Federal Public Defender of Nevada
MARTIN L. NOVILLO
JOANNE L. DIAMOND
Assistant Federal Public Defenders
411 E. Bonneville, Ste. 250
Las Vegas, Nevada 89101
(702) 388-6577
(702) 388-5819 (Fax)
*Counsel of Record
APPENDIX
Appendix A
Order of Affirmance, Walker v. State, Nevada Supreme Court
Case No. 75013 (June 19, 2020) .............................. App.001 - 036
Appendix B
Order Denying Rehearing but Clarifying Decision, Walker v.
State, Nevada Supreme Court, Case No. 49507 (May 17, 2010)
..................................................................................... App.037-039
Appendix C
Order of Affirmance, Walker v. State, Nevada Supreme Court,
Case No. 49507 (March 3, 2010) ............................... App.040-055
Appendix D
Recorder’s Transcript of Hearing Re: Jury Voir Dire, State v.
Waker, District Court, Clark County, Nevada, Case No.
C197420 (January 4, 2007) ....................................... App.056-066
Appendix E
Recorder’s Transcript of Hearing Re: Jury Voir Dire, State v.
Waker, District Court, Clark County, Nevada, Case No.
C197420 (January 2, 2007) ....................................... App.067-095
APPENDIX A
Order of Affirmance, Walker v. State,
Nevada Supreme Court
Case No. 75013 (June 19, 2020)
IN THE SUPREME COURT OF THE STATE OF NEVADA
JAMES RAY EARL WALKER,
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
No. 75013
FILED
:-
JUN 1 9 2020
tre
ORDER OF AFFIRMANCE
This is an appeal from a district court order denying appellant
James Walker's postconviction petition for a writ of habeas corpus. Eighth
Judicial District Court, Clark County; Valerie Adair, Judge.
Walker stabbed Christine Anziano to death as she exited a Las
Vegas drug store and stole her purse and purchases. The next night,
Walker slashed the throat of Kirk Cole and absconded with Cole's money.
Cole survived his injuries. Walker's girlfriend, Myrdus Archie, assisted him
in the incidents involving Anziano and Cole. Acting alone, Walker also stole
Susan Simon's purse while she was sitting in her car in a store parking lot.
A jury convicted Walker of conspiracy to commit robbery, burglary, two
counts of robbery with the use of a deadly weapon, attempted murder with
the use of a deadly weapon, and murder with the use of a deadly weapon.
The jury sentenced Walker to death for Anziano's murder. Walker
unsuccessfully challenged the convictions and sentence on appeal, see
Walker v. State (Walker I), Docket No. 49507 (Order of Affirmance, March
3, 2010), reh'g denied Docket No. 49507 (Order Denying Rehearing but
Clarifying Decision, May 17, 2010), and in a postconviction petition for a
writ of habeas corpus, see Walker v. State (Walker II), Docket No. 62838
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(Order of Affirmance, November 25, 2014). Walker then filed a second
postconviction petition for a writ of habeas corpus, which the district court
denied. This appeal followed. Walker argues that the district court erred
by denying his petition as procedurally barred. We affirm.'
Walker filed his petition over five years after the remittitur
issued on his direct appeal. The petition therefore was untimely under NRS
34.726(1). The petition was also successive because he had previously filed
a postconviction petition and constituted an abuse of the writ because he
raised new claims that could have been litigated in prior proceedings. NRS
34.810(1)(b)(2), (2). To overcome those procedural bars, Walker had to
demonstrate good cause and actual prejudice. NRS 34.726(1); NRS
34.810(1)(b)(2), (3). And because the petition was filed over five years after
the remittitur issued on direct appeal, NRS 34.800(2) imposes a rebuttable
presumption of prejudice to the State. To overcome that presumption,
Walker had to show that (1) "the petition is based upon grounds of which
[he] could not have had knowledge by the exercise of reasonable diligence,"
NRS 34.800(1)(a), or (2) the failure to consider his claims would result in a
fundamental miscarriage of justice, NRS 34.800(1)(b). In addition, some of
the claims raised in the petition have been addressed in prior appellate
proceedings and therefore further consideration of them is barred by the
'We have considered Walker's argument that the district court erred
by adopting the findings of fact and conclusions of law drafted by the State
and conclude that a remand is not necessary under the circumstances
presented, which are distinguishable from those presented in Byford v.
State, 123 Nev. 67, 156 P.3d 691 (2007).
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doctrine of the law of the case. Hall v. State, 91 Nev. 314, 315-16, 535 P.2d
797, 798-99 (1975).2
Failure to disclose exculpatory evidence
Walker argues that the State's failure to turn over evidence
related to a witness to the Anziano attack in violation of Brady v. Maryland,
373 U.S. 83 (1963), provided good cause for the delay in filing the petition.
Brady obliges a prosecutor to disclose evidence favorable to the defense
when that evidence is material to guilt, punishment, or impeachment.
Mazzan v. Warden, 116 Nev. 48, 66-67, 993 P.2d 25, 36-37 (2000). There
are three components to a successful Brady claim: "the evidence at issue is
favorable to the accused; the evidence was withheld by the state, either
intentionally or inadvertently; and prejudice ensued, i.e., the evidence was
material." Id. at 67, 993 P.2d at 37. The last two components parallel the
cause and prejudice showings required to excuse the procedural bars to an
untimely or successive petition. State v. Huebler, 128 Nev. 192, 198, 275
P.3d 91, 95 (2012) ("[E]stablishing that the State withheld the evidence
demonstrates that the delay was caused by an impediment external to the
defense."); see also Banks v. Dretke, 540 U.S. 668, 691 (2004) C"[C]ause and
prejudice in this case 'parallel two of the three components of the alleged
Brady violation itself."' (quoting Strickler v. Greene, 527 U.S. 263, 282
(1999))). To overcome the presumption of prejudice when the State has
pleaded laches, a petitioner must demonstrate that he could not have
2Under the law-of-the-case doctrine, this "court may revisit a prior
ruling when (1) subsequent proceedings produce substantially new or
different evidence, (2) there has been an intervening change in controlling
law, or (3) the prior decision was clearly erroneous and would result in
manifest injustice if enforced." Hsu v. County of Clark, 123 Nev. 625, 630,
173 P.3d 724, 728-29 (2007) (quotation marks omitted).
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discovered the Brady evidence "by the exercise of reasonable diligence,"
NRS 34.800(1)(a), and that the evidence demonstrates a fundamental
miscarriage of justice occurred, NRS 34.800(1)(b). Cf. Rippo u. State, 113
Nev. 1239, 1257, 946 P.2d 1017, 1028 (1997) (`` [A] Brady violation does not
result if the defendant, exercising reasonable diligence, could have obtained
the information."). In considering whether a petitioner has exercised due
diligence for purposes of NRS 34.800, the petitioner should not be penalized
for failing to diligently uncover evidence that was in the sole possession of
the State. Strickler, 527 U.S. at 287-88.
We conclude that the Brady claim lacks merit and therefore
does not overcome the procedural bars. The State was not in sole possession
of evidence about the witness's contacts with State investigators, her
observations, and her possible familiarity with the defendants; rather, the
witness's identity had been known since the preliminary hearing and she
could have been interviewed at any time since. Additionally, nothing in her
statement indicates that she ever relayed the more detailed account of her
observations about the night of the murder and that she may have seen the
defendants in the neighborhood on another occasion. Lastly, Walker did not
demonstrate that any of the evidence was material. Even if he could cast
doubt on the witness's identification, he failed to demonstrate that this
information gave rise to a reasonable doubt or that there was a reasonable
probability he would not have been convicted. In addition to this witness,
another individual identified Walker as he ran from the scene and the jury
viewed video of the attack on Anziano. Anziano's property was also found
in the home Walker shared with Archie. Because Walker failed to establish
the necessary elements of a Brady violation, the district court did not err in
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concluding that this claim was insufficient to overcome the procedural
bars.3
Limitations on first postconviction counsel
Walker next argues that the financial limits the district court
placed on litigation of his first postconviction petition constitute good cause
for filing a second, untimely petition because they prevented him from
discovering the legal and factual bases for the claitns raised in the second
petition. We disagree. Arguments related to the district court's actions
during the litigation of the first postconviction petition should have been
raised in the related appeal. Thus, Walker's good-cause allegations
constitute an abuse of the writ and are themselves procedurally barred. See
NRS 34.810(1)(b)(2), (2); Hathaway v. State, 119 Nev. 248, 252-53, 71 P.3d
503, 506 (2003). To the extent Walker relies on issues decided in the prior
appeal, those arguments are successive, and are similarly procedurally
barred. See NRS 34.810(2).
Ineffective assistance of postconviction counsel
Because Walker's first postconviction counsel was appointed
pursuant to a statutory mandate, NRS 34.820(1), he was entitled to the
effective assistance of that counsel. Crump v. Warden, 113 Nev. 293, 30405, 934 P.2d 247, 254 (1997). As Walker filed his petition within one year
after this court issued remittitur from its decision affirming the denial of
his first postconviction petition, his claims of ineffective assistance of
3Wa1ker also argues that postconviction counsel should have asserted
that trial counsel was ineffective for failing to discover evidence related to
this witness. As this evidence could not have reasonably affected the
outcome of his trial, he failed to demonstrate that he was prejudiced or that
the failure to consider this claim would result in a fundamental miscarriage
of justice.
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postconviction counsel were raised within a reasonable time after they
became available. See NRS 34.726(1); Rippo v. State, 134 Nev. 411, 419-22,
423 P.3d 1084, 1095-97 (2018); State v. Eighth Judicial Dist. Court (Riker),
121 Nev. 225, 235, 112 P.3d 1070, 1077 (2005). A meritorious claim of
ineffective assistance of postconviction counsel may establish the prejudice
prong of the good-cause showing required under NRS 34.726(1), Rippo, 134
Nev. at 422, 423 P.3d at 1097, and the good cause and prejudice showings
required under NRS 34.810(1)(b), id. at 425, 423 P.3d at 1099; Crump, 113
Nev. 304-05, 934 P.2d at 253-54.
To establish that his postconviction-counsel claims had merit,
Walker had to demonstrate that postconviction counsel's performance was
deficient and that but for counsel's deficient performance, he would have
been granted relief. See Rippo, 134 Nev. at 423-25, 423 P.3d at 1098-99
(adopting Strickland analysis to determine whether postconviction counsel
provided ineffective assistance).4 And to the extent that Walker's
postconviction-counsel claims are based on the omission of trial- or
appellate-counsel claims, Walker had to prove the ineffectiveness of both
attorneys.
Id. at 424, 423 P.3d at 1098. An evidentiary hearing was
warranted only if Walker's claims were "supported by factual allegations
4Wa1ker argues that the failure to consider the underlying claims
would also result in a fundamental miscarriage of justice. For reasons
discussed below, Walker failed to demonstrate that the underlying claims
had merit or that he was prejudiced by the alleged errors. Accordingly,
Walker failed to demonstrate that the errors resulted in a fundamental
miscarriage of justice. See Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d
519, 537 (2001) (providing that a fundamental miscarriage of justice
requires petitioner to show "that it is more likely than not that no
reasonable juror would have convicted him absent a constitutional
violation").
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not belied by the record that, if true, would entitle him to relief." Berry v.
State, 131 Nev. 957, 967, 363 P.3d 1148, 1154 (2015). For the reasons
discussed below, we conclude that Walker has not demonstrated that
postconviction counsel provided ineffective assistance.
Judicial bias
Walker argues that postconviction counsel should have
asserted that the district court was biased against him during the litigation
of the first postconviction petition based on its refusal to provide sufficient
funding for investigation and its statements that the proposed investigation
would be futile. We conclude that Walker cannot demonstrate deficient
performance because the judicial bias claim lacks merit. During the
litigation of the instant petition, Walker moved to disqualify the district
court judge citing bias she expressed during the prior postconviction
litigation. Chief Judge Barker denied the motion, and Walker challenged
the decision in a mandamus petition filed with this court. In denying the
petition, this court concluded that Walker failed to demonstrate that Chief
Judge Barker manifestly abused his discretion in denying the motion to
disqualify as he reviewed Judge Adair's comments from the transcripts
related to the first postconviction litigation and concluded that she did not
display deep-seated favoritism of, or antagonism toward, either side.
Walker v. Eighth Judicial Dist. Court, Docket No. 70766, Order Denying
Petition at 3 (September 16, 2016). Based on these rulings, Walker failed
to demonstrate that postconviction counsel omitted a meritorious judicial
bias claim. Therefore, the district court did not err in denying this claim
without an evidentiary hearing.
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Severance
Walker argues that postconviction counsel should have
challenged the district court's decision not to sever the codefendants or the
charges. We conclude that this argument lacks merit.
Trial counsel moved to sever both the codefendants and the
charges. The district court denied the motions and this court affirmed.
Walker I, Docket No. 49507, Order of Affirmance at 3-5. As trial and
appellate counsel were unsuccessful in challenging the joinder of
defendants and charges, Walker has not demonstrated that postconviction
counsel acted unreasonably in omitting a successive claim that was also
barred by the law-of-the-case doctrine. Walker did not allege what
postconviction counsel could have argued to avoid these bars nor has he
demonstrated that the law of the case should not be applied. To the extent
that Walker asserts that postconviction counsel should have challenged
trial and appellate counsels performance in litigating the severance
motions, he has not demonstrated that postconviction counsel acted
unreasonably in omitting claims for which he could not demonstrate
prejudice.
Batson objection
Walker argues that postconviction counsel should have argued
that trial counsel did not adequately litigate an objection based on Batson
v. Kentucky, 476 U.S. 79 (1986).5 Walker failed to allege sufficient facts to
5Wa1ker also argues that postconviction counsel should have
relitigated the Batson claim that was rejected on direct appeal, as opposed
to challenging trial and appellate counsels' effectiveness. Our decision
rejecting that Batson claim, Walker I, Docket No. 49507, Order of
Affirmance at 2-3, constitutes the law of the case. Walker's assertion that
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demonstrate deficient performance by postconviction counsel. The
underlying Batson claim is partially based on a page from the district
attorney's manual from seven years before Walker's trial, and nothing in
the record of the jury selection proceedings suggests that the office still
followed that manuars litigation strategies at the time of Walker's trial.
Additionally, the manual page did not advise prosecutors to use peremptory
challenges to remove veniremembers based on any impermissible criteria
or to misrepresent the reasons for a peremptory challenge. As to Walker's
contention that prior counsel should have provided a comparative juror
analysis, Walker fails to demonstrate prejudice. This court concluded on
direct appeal that asking the veniremember if he might face any ridicule
were he to impose a death sentence "was not grounded in racial
discrimination." Walker I, Docket No. 49507, Order of Affirmance at 2-3.
This is the only way in which Walker alleges the prosecutor's questioning
of the challenged veniremember differed from the questioning of other
veniremembers. And the reasons proffered for the peremptory challenge
were based on an inquiry that was common to all the veniremembers and
involved each one's personal experience with the criminal justice system
and attitudes toward the death penalty. Therefore, there was no reasonable
probability of a different outcome had counsel provided a comparative juror
analysis, and the district court did not err in rejecting this postconvictioncounsel claim without conducting an evidentiary hearing.
the prior decision was incorrect is not an "extraordinary circumstance[ ]"
sufficient to warrant reconsideration, see Hsu v. County of Clark, 123 Nev.
625, 630, 173 P.3d 724, 728-29 (2007), and postconviction counsel was not
ineffective for not relitigating that claim.
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Voir dire
Walker argues that postconviction counsel should have claimed
that the district court erred during voir dire. We disagree for two reasons.
First, any trial error could have been, and indeed was, raised on direct
appeal, NRS 34.810(1)(b)(2), (2); see Walker I, Docket No. 49507, Order of
Affirmance at 2, so postconviction counsel could not be faulted for declining
to raise it again absent circumstances that could provide good cause to
overcome the procedural bars or avoid the law-of-the-case doctrine, which
Walker has not established. Second, Walker failed to show that any
impaneled jurors were not impartial as required to prevail on challenges to
the district court's decision regarding for-cause challenges or sequestered
voir dire. See Wesley v. State, 112 Nev. 503, 511, 916 P.2d 793, 799 (1996)
("If the impaneled jury is impartial, the defendant cannot prove prejudice.");
see also Leonard v. State (Leonard II), 117 Nev. 53, 64, 17 P.3d 397, 404
(2001) (recognizing that absent "a showing of prejudice to the defendant," a
district court's decision to decline a request for individual voir dire will not
be disturbed); Ham v. State, 7 S.W.3d 433, 439 (Mo. Ct. App. 1999) CEven
assuming it would have been better strategy to strike [a particular juror],
we fail to see how [the defendant] could have been prejudiced because one
qualified juror sat rather than another."). Although he asserts that three
jurors were biased because they could not consider a sentence of life with
the possibility of parole, the record shows otherwise. In particular, the
jurors acknowledged that they could consider all forms of punishment and
would consider aggravating and mitigating evidence. Therefore, Walker
has not demonstrated that the district court erred in rejecting this
postconviction-counsel claim without an evidentiary hearing.
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Failure to challenge evidence
Walker asserts that postconviction counsel did not adequately
substantiate claims raised in the first petition that alleged trial counsel
should have retained experts to challenge eyewitness identifications and
DNA evidence. He also argues that postconviction counsel should have
raised claims related to evidence seized during an apartment search and
victim-impact evidence introduced during the guilt phase of trial.
First, Walker has not demonstrated that postconviction counsel
omitted a meritorious trial-counsel claim. He asserts that trial counsel
should have introduced expert testimony challenging the eyewitnesses'
ability to make an accurate identification given the circumstances
surrounding their observations—poor lighting, obstructions, alcohol
consumption, stress, and cross-racial identification. The expert testimony
Walker now proffers was largely inadmissible at trial. In particular, the
fact that darkness, a disguise, stress, and a brief interaction may cast doubt
on the certainty of an identification is a matter of common sense and
therefore did not require specialized knowledge.
See United States v.
Raymond, 700 F. Supp. 2d 142, 150 (D. Me. 2010) (recognizing that expert
witness testimony about matters of common sense "invites a toxic mixture
of purported expertise and common sense); see also Townsend v. State, 103
Nev. 113, 117, 734 P.2d 705, 708 (1987) (recognizing that expert testimony
is admissible when "the expert's specialized knowledge will assist the trier
of fact to understand the evidence or determine a fact in issue (emphasis
added)). Postconviction counsel thus had no sound basis to challenge trial
counsel's performance in that respect. And although expert testimony
about the reliability of cross-racial identifications may have been
admissible, it was not unreasonable for trial counsel to forgo introducing
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this testimony and instead argue that the eyewitnesses different accounts
were unreliable based on their differing descriptions and the conditions in
which the witnesses observed the suspects. Walker further has not
demonstrated prejudice based on trial counsel's failure to present this
expert testimony or postconviction counsel's omission of the trial-counsel
claim. He was identified by five witnesses either shortly after the crimes or
at trial. Simon was the only witness to her purse snatching, but the crimes
against Anziano and Cole were observed by two witnesses each. Moreover,
physical evidence implicated Walker in the crimes. Anziano's purse and
social security card, as well as Simon's keys, were discovered in Walker and
Archies home, and Cole's blood was found on Walker's shoes and Archie's
car. Therefore, the district court did not err in rejecting this postconvictioncounsel claim.
Second, Walker contends that postconviction counsel should
have substantiated his claim that trial counsel was ineffective for not
introducing DNA expert testimony.6 We conclude that this argument lacks
merit. The postconviction expert's analysis was premised on the notion that
Walker's DNA connected him to the crimes such that the existence of a blood
relative would alter the statistical analysis by the State's expert. However,
Walker's DNA was not tied to any locations, victims, or instrumentalities of
the crimes. Instead, the only DNA evidence offered in this case was that
Cole's DNA was found on Walker's shoes. Thus, whether Walker has an
additional blood-related relative would not have affected the expert's
6Wa1ker's claim only challenges conclusions as to the blood discovered
on his shoes. He does not challenge the conclusions or random match
statistics as they relate to the blood found on Archie's car.
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conclusions as to Cole's DNA. Therefore, the district court did not err in
denying this postconviction-counsel claim.
Lastly, Walker argues that postconviction counsel should have
challenged the search of Archie's apartment, asserting the warrant
application contained false information, and the victim-impact testimony
admitted during the guilt phase of trial. We disagree. This court concluded
on direct appeal that nothing in the record indicated any intentional or
reckless falsehoods were included in the warrant application and that the
introduction of victim-impact evidence did not prejudice Walker. Walker I,
Docket No. 49507, Order of Affirmance, at 5-7. In light of these conclusions,
Walker did not demonstrate that postconviction counsel acted unreasonably
in omitting these arguments or that he was prejudiced by postconviction
counsel's omission. See NRS 34.810(1)(3)(2), (2). Thus, the district court
did not err in denying this postconviction-counsel claim.
Unrecorded bench conferences
Walker argues that postconviction counsel should have argued
that trial counsel was ineffective for failing to ensure that all bench
conferences were recorded. But postconviction counsel did raise that trialcounsel claim in the first petition. The district court rejected the claim and
this court affirmed the decision, concluding that Walker did not identify
"any issue that he was unable to argue due to the failure to record a portion
of the proceeding." Walker II, Docket No. 62838, Order of Affirmance, at 4;
see Archanian v. State, 122 Nev. 1019, 1033, 145 P.3d 1008, 1019 (2006).
Walker still has not identified any issue that he was unable to argue due to
the failure to record a bench conference and thus failed to show that trial
counsel were ineffective in this regard. Because the trial-counsel claim
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fails, the district court did not err in denying the postconviction-counsel
claim.
Voluntary intoxication
Walker argues that postconviction counsel should have
developed and introduced evidence supporting a defense of voluntary
intoxication to substantiate his claim that trial counsel should have
presented evidence to support a voluntary intoxication instruction. We
conclude that this argument lacks merit. Walker did not allege that trial
counsel failed to introduce credible, available evidence that Walker was
intoxicated during the homicide. He also did not assert that he told trial
counsel he had been drinking on the night of the homicide. Instead, he cites
expert reports that are either inconclusive as to intoxication or based on
evidence counsel could not have obtained before trial. Walker also has not
demonstrated prejudice. The jury concluded that Walker committed both a
premeditated homicide and a homicide during a felony—robbery. As
robbery is a general intent crime, the voluntary intoxication instructions
and supporting evidence would not have affected the jury's finding of firstdegree felony murder. See Daniels v. State, 114 Nev. 261, 269, 956 P.2d
111, 116 (1998). Therefore, the district court did not err in denying this
postconviction-counsel claim without conducting an evidentiary hearing.
Prejudicial photographs and videos
Walker argues that postconviction counsel should have
challenged prejudicial photographs and videos which depicted injuries
related to medical intervention, the attack on Anziano in slow motion, and
repeated showings of Anziano's death. We conclude that this argument
lacks merit. Postconviction counsel did not act unreasonably in omitting
trial-error claims that were successive, constituted an abuse of the writ, or
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were barred by the law-of-the-case doctrine. See NRS 34.810(1)(b)(2), (2);
Hall v. State, 91 Nev. 314, 315-16, 535 P.2d 797, 798-99 (1975).
To the extent Walker couches the claims omitted by
postconviction counsel as ineffective assistance of trial or appellate counsel,
he has not demonstrated deficient performance or prejudice because
postconviction counsel could not have demonstrated that trial or appellate
counsel could have successfully challenged the district court's broad
discretion to admit photographic and video evidence. Byford v. State, 116
Nev. 215, 231, 994 P.2d 700, 711 (2000); Libby v. State, 109 Nev. 905, 910,
859 P.2d 1050, 1054 (1993) (providing that even gruesome photographs may
be admitted "as long as their probative value is not substantially
outweighed by their prejudicial effect"), vacated on other grounds, 516 U.S.
1037 (1996). But see Harris v. State, 134 Nev. 877, 879-83, 432 P.3d 207,
210-13 (2018) (concluding that photographs of burned remains were more
unfairly prejudicial than probative where court admitted numerous
photographs and cause of death was not in dispute, but that admission was
harmless considering overwhelming evidence of guilt). Although autopsy
photographs have the potential to arouse the jurors passions when they are
gruesome and depict medical incisions, see Clark v. Corn., 833 S.W.2d 793,
794 (Ky. 1991) (noting that photographs become less admissible when the
subject has been "materially altered by mutilation, autopsy, decomposition
or other extraneous causes, not related to commission of the crime, so that
the pictures tend to arouse passion and appall the viewer"), superseded by
rule as stated in Ragland v. Corn., 476 S.W.3d 236 (Ky. 2015), trial and
appellate counsel would not have been able to demonstrate that the district
court abused its discretion in admitting them in this case because the
evidence was relevant and not unfairly prejudicial. See Hayes v. State, 85
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S.W.3d 809, 816 (Tex. Crim. App. 2002) ([A]utopsy photographs are
generally admissible unless they depict mutilation of the victim caused by
the autopsy itself."). In particular, the photographs depicted the injuries
Walker inflicted on Anziano and assisted the medical examiner in testifying
about the cause of her death, and they were not so graphic as to "easily
inflame the passions of a reasonable juror." Harris, 134 Nev. at 880, 432
P.3d at 211. Because there were no grounds on which trial or appellate
counsel could successfully challenge the admission of the photographs,
postconviction counsel was not deficient for omitting this trial- or appellatecounsel claim.
Walker has also not demonstrated that postconviction counsel
performed deficiently in not challenging the introduction of videos of
Anziano dying on the floor of the Sav-On store and the slow motion video of
the attack. Appellate counsel challenged the video of Anziano on the SavOn floor and this court concluded that it was relevant and that lilts
relevance was not substantially outweighed by the danger of unfair
prejudice." Walker I, Docket No. 49507, Order of Affirmance, at 7. As to
the slow-motion video, Walker's claim rests on a study published in 2016
that prior counsel could not have been faulted for not using at trial or in the
prior postconviction proceeding, both of which were long over when the
study was published. Walker also cannot show prejudice as there was
considerable evidence of his intent based on testimony that he was waiting
outside before attacking a customer on her way out and he was also
convicted under a felony-murder theory, in which his intent flows from the
robbery. Therefore, the district court did not err in denying these
postconviction-counsel claims without conducting an evidentiary hearing.
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Guilt phase prosecutorial misconduct
Walker argues that postconviction counsel should have claimed
that trial counsel was ineffective for failing to address prosecutorial
misconduct. To demonstrate that postconviction counsel was ineffective,
Walker must show that trial and appellate counsel failed to challenge
comments that "so infected the proceedings with unfairness as to make the
results a denial of due process," Hernandez v. State, 118 Nev. 513, 525, 50
P.3d 1100, 1108 (2002), and that it is reasonably probable that, but for
counsel's error, the result of the trial or appeal would have been different,
Strickland v. Wczshington, 466 U.S. 668, 694 (1984).
First, Walker argues that the prosecutor vouched for the police
by insisting that officers "do their best," "do[ ] things beyond what a lot of
you really know," performed "amazing police work in this case," and showed
"initiative." The prosecutor also argued that an eyewitness didn't "look like
a guy that would just come in and just make stuff up now or to the police at
the time. . . He seems conscientious." We conclude that Walker failed to
demonstrate that postconviction counsel omitted a meritorious trial-counsel
claim regarding these comments. The prosecutor did not "place[ ] the
prestige of the government behind the witness by providing personal
assurances of the witness's veracity." Browning v. State, 120 Nev. 347, 359,
91 P.3d 39, 48 (2004) (internal quotation marks and alteration omitted).
Instead, the comments asserted that the thoroughness of the police work
rendered their findings more credible. The comment about the eyewitness
responded to Walker's closing argument which insinuated that he was an
overly zealous witness and thus his testimony was not accurate. See Emil
v. State, 105 Nev. 858, 868, 784 P.2d 956, 962 (1989) (providing that
comments invited by defense argument do not amount to prosecutorial
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misconduct). As the comments were not objectionable, the district court did
not err in denying the postconviction-counsel claim.
Second, Walker argues that the prosecutor disparaged him
during closing argument by describing him as "cowardly," a "predator," and
not one of "the smarter criminals." Walker also argues that the prosecutor
LC
improperly characterized a line of defense questioning as a second
victimization" of Anziano. Walker challenged these comments on direct
appeal and in his first postconviction petition. In both instances, this court
concluded that they did not warrant relief. Walker 1, Docket No. 49507,
Order of Affirmance, at 9; Walker 11, Docket No. 62838, Order of Affirmance,
at 7-9. Therefore, he did not demonstrate that postconviction counsel
neglected to raise a meritorious claim of ineffective assistance of trial
counsel.
Third, Walker argues that the prosecutor misstated the law
with respect to premeditation by asserting that it "can be formed by
instantaneous thoughts of the mind," describing premeditation with a
"triggee analogy, and referring to premeditation and deliberation as a
single concept. We disagree. The complained-of arguments are largely
consistent with the first-degree murder instructions provided in Byford, 116
Nev. at 236-37, 994 P.2d at 714-15. The jury was instructed that the
arguments of counsel were not evidence and was properly instructed on the
elements, including the definition of premeditation and deliberation. In
some instances in which Walker asserts the prosecution conflated the
concept of premeditation and deliberation, the prosecution merely described
premeditated and deliberate murder as a concept in contrast to felony
murder. Walker's argument implicitly acknowledges that he cannot
demonstrate prejudice. He concedes that "Mlle facts presented by the
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prosecution showed . . . a killing during a robbery gone wrong," which was
sufficient to convict him of first-degree felony murder regardless of the
comments related to the premeditation theory. For these reasons,
postconviction counsel did not omit a meritorious trial-counsel claim.
Accordingly, the district court did not err in denying the postconvictioncounsel claim.
Fourth, Walker argues that the prosecutor improperly asked
the jurors to place themselves in the position of the victims. The comment
was improper, see McGuire v. State, 100 Nev. 153, 157, 677 P.2d 1060, 1064
(1984); therefore, trial counsel should have objected. However, considering
the overwhelming evidence of Walker's guilt, he has not demonstrated a
reasonable probability of a different outcome at trial had counsel objected
or on appeal had appellate counsel raised this issue. See Strickland, 466
U.S. at 687-88; King v. State, 116 Nev. 349, 356, 998 P.2d 1172, 1176 (2000)
(recognizing that prosecutorial misconduct may be harmless where there is
overwhelming evidence of guilt). Walker therefore has not demonstrated
that postconviction counsel neglected to raise a meritorious claim.
Accordingly, the district court did not err in denying the postconvictioncounsel claim.
Fifth, Walker argues that the prosecutor's argument about
"responsibility and accountability under the law" was improper. We
disagree. When considered in context, the prosecutor did not argue that the
jury had a civic duty to convict Walker, see, e.g., Haberstroh v. State, 105
Nev. 739, 742, 782 P.2d 1343, 1345 (1989) (finding prosecutor committed
misconduct by referring to the jury as "the conscience of the community"),
but merely asked for justice and accountability, see Lisle v. State, 113 Nev.
540, 554, 937 P.2d 473, 482 (1997) (concluding that prosecutor's remarks
19
i
App.019
urging accountability do not amount to misconduct). Because the comments
were not objectionable, Walker has not demonstrated that postconviction
counsel omitted a meritorious trial-counsel claim. Therefore, the district
court did not err in denying the postconviction-counsel claim.
Guilt phase jury instructions
Walker argues that postconviction counsel should have raised
claims of ineffective assistance of trial counsel related to the guilt phase
jury instructions. He has not demonstrated deficient performance or
prejudice as to either counsel.
First, Walker has not demonstrated deficient performance by
postconviction counsel as to the instructions that were challenged on direct
appeal because this court already concluded that the district court did not
err in giving or refusing to give those instructions, Walker I, Docket No.
49507, Order of Affirmance at 8-9 (addressing challenges to robbery, felony
murder, and equal-and-exact-justice instructions and to refusal to give
voluntary intoxication instruction).7 To reiterate, postconviction counsel
generally does not act unreasonably in omitting claims that have been
rejected on the merits in a prior appellate proceeding absent circumstances
that would overcome the law-of-the-case doctrine. Rippo v. State, 134 Nev.
411, 429, 423 P.3d 1084, 1102 (2018).
Second, Walker argues that postconviction counsel should have
challenged the district court's failure to provide a limiting instruction that
71n addition to the explanation provided in Walker I, the evidence does
not support an afterthought robbery instruction because Anziano did not
die from her injuries until after Walker absconded with her belongings. See
Nay v. State, 123 Nev. 326, 333, 167 P.3d 430, 435 (2007) (Robbery does
not support felony murder where the evidence shows that the accused kills
a person and only later forms the intent to rob that person.").
20
App.020
each juror was responsible to decide whether the evidence pertained to
Walker, Archie, or both defendants. Walker failed to demonstrate deficient
performance or prejudice. He cites no binding authority that requires the
aforementioned instruction. The case he cites, Zafiro v. United States, 506
U.S. 534, 539 (1993), recognizes the risk of prejudice to codefendants in joint
trials, but it does not require the jury to account for how it considered each
piece of evidence. Walker also did not identify evidence that solely
implicated Archie, which the jury could have unfairly considered against
him. Therefore, the district court did not err in denying this postconvictioncounsel claim.
Third, Walker argues that postconviction counsel should have
claimed trial counsel was ineffective for not objecting to the reasonable
doubt instruction. The district court gave the reasonable doubt instruction
mandated by NRS 175.211, and this court has repeatedly upheld the
constitutionality of that instruction. See, e.g., Chambers v. State, 113 Nev.
974, 982-83, 944 P.2d 805, 810 (1997); Evans v. State, 112 Nev. 1172, 119091, 926 P.2d 265, 277 (1996); Lord v. State, 107 Nev. 28, 40, 806 P.2d 548,
556 (1991), limited on other grounds by Summers v. State, 112 Nev. 1326,
1331, 148 P.3d 778, 782 (2006). Accordingly, Walker cannot demonstrate
that postconviction counsel omitted a meritorious challenge to trial
counsel's performance. The district court therefore did not err in rejecting
this postconviction-counsel claim.
Fourth, Walker argues that postconviction counsel should have
argued that the "abandoned and malignant heart" language in the malice
aforethought instruction was vague and devoid of meaning and the implied
malice instruction permitted the jury to find murder without the requisite
culpability. This court has repeatedly upheld this language. See Leonard
21
App.021
v. State, 117 Nev. 53, 78-79, 17 P.3d 397, 413 (2001) (the statutory language
defining implied malice is well established in Nevada and accurately
informs the jury of the distinction between express and implied malice);
Cordova v. State, 116 Nev. 664, 666, 6 P.3d 481, 483 (2000) (the substitution
of the word "may" for "shall" in an implied malice instruction is preferable
because it eliminates the mandatory presumption); see also Leonard I, 114
Nev. at 1208, 969 P.2d at 296 (the use of allegedly archaic statutory
language in malice instruction did not deprive defendant of a fair trial).
Therefore, Walker has not demonstrated that trial counsel performed
deficiently in not objecting to the instruction or that postconviction counsel
omitted a meritorious challenge to trial counsel's performance. Accordingly,
the district court did not err in denying the postconviction-counsel claim.
Juror questions
Citing Flores v. State, 114 Nev. 910, 913, 965 P.2d 901, 902-03
(1998), Walker argues that postconviction counsel should have challenged
the manner in which trial counsel and the district court managed juror
questions. We disagree. On direct appeal, this court concluded that
"[a]lthough the district court did not strictly comply with Flores, none of the
instances Walker identifies suggest that the error had a substantial or
injurious effect on the jury's verdict." Walker I, Docket No. 49507, Order of
Affirmance at 3. Considering the decision in Walker I, which is the law of
the case on the merits of the underlying issue, Walker has not demonstrated
that postconviction counsel performed deficiently in omitting this claim or
that he was prejudiced by the omission.
Failure to present mitigating evidence
Walker argues that postconviction counsel should have
substantiated his claim that trial counsel failed to present evidence of his
22
App.022
family history of addiction and past trauma or prepare the penalty phase
experts for their testimony. Walker has not demonstrated deficient
performance.
Postconviction counsel raised claims related to mitigation
evidence and requested funding to conduct additional investigation in that
respect, which the district court denied. The district court's denial of
investigative funds could have been raised in the prior postconviction
appeal. In addition, given the nature of the evidence offered with the
instant postconviction petition, even if trial counsel developed this evidence
but declined to introduce it, such a decision would not have been clearly
unreasonable. See Cullen v. Pinholster, 563 U.S. 170, 196 (2011) (explaining
that appellate court is "required not simply to give the attorneys the benefit
of the doubt, but to affirmatively entertain the range of possible reasons [an
appellant's] counsel may have had for proceeding as they did" (internal
quotation marks, alterations, and citations omitted)); McNelton v. State,
115 Nev. 396, 410, 990 P.2d 1263, 1273 (1999) (noting that decision
concerning what mitigation evidence to present is a tactical one). Much of
the new evidence about Walker's childhood mirrors what was presented at
trial and is reflected in the jury's finding of mitigating circumstances. In
particular, at least one juror found that Walker was the product of a broken
home, was raised in poverty by a dysfunctional family, had an absent father,
only later discovered his biological father's identity, had two older siblings
who died drug-related deaths, was placed in special education, had repeated
school failures, suffered with learning disabilities, was introduced to drugs
at a young age, was addicted to drugs, and abused alcohol.
In addition, at least one juror concluded that Walker's prior
incarcerations mitigated the Anziano murder. Most of the evidence
23
App.023
submitted with the instant petition about Walker's time in prison consists
of statements from people who served time with him, They described the
racism, harassment, and violence that Walker and others faced in prison.
They also described Walker's behavior and while some described him as
quiet and a peacemaker, they also noted his drug abuse and disciplinary
infractions. Eliciting testimony from numerous inmates who described the
years they spent with Walker in prison bore a significant risk of casting him
in an unfavorable light. See Lisle v. State, 131 Nev. 356, 367, 351 P.3d 725,
733 (2015) (recognizing that "mitigation evidence can be a double-edged
sword that may indicate diminished culpability but at the same time may
indicate an increased risk of future dangerousness"). This testimony could
have reminded the jury of the extensive time Walker spent incarcerated as
an adult, the seriousness of the prior crime that earned him such a lengthy
sentence, and that the lengthy sentence did not quell his criminal impulses.
Walker further has not demonstrated a reasonable probability
of a different result at the penalty hearing had trial counsel presented the
evidence offered with the second postconviction petition. The jurors found
six aggravating circumstances. Five of them were based on Walker's prior
criminal history and the instant series of crimes involving the use or threat
of violence to another person. These crimes included two attempted
murders, robbery with the use of a deadly weapon, attempted robbery with
the use of a deadly weapon, and attempted battery by a prisoner. The jury
also found that the murder was committed during the course of a robbery.
These are compelling aggravating circumstances. They show that Walker
has a casual and callous relationship with violence and even a considerable
prison sentence was not effective at tempering it. Within a few years of his
release from prison, Walker engaged in a series of robberies in which he
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killed one person and attempted to kill another in less than two days. The
proffered additional mitigation evidence was not so compelling as to
outweigh these aggravating circumstances and posed a significant risk of
casting Walker in a more unfavorable light. Therefore, the district court
did not err in denying the postconviction-counsel claim without conducting
an evidentiary hearing.
Penalty phase evidence
Walker argues that postconviction counsel should have
challenged trial counsel's ineffectiveness regarding the admission of
evidence during the penalty phase of trial. He contends that trial counsel
should have objected to the admission of: hearsay about Walker's prior
criminal record and prison disciplinary record; improper victim impact
evidence; improper testimony about appellate review; and improper
testimony suggesting that Walker could be released if given a sentence less
than death.
We conclude that postconviction counsel was not ineffective. On
direct appeal, this court concluded that the district court did not err in
admitting hearsay evidence, no improper victim impact testimony was
admitted, the State did not mislead the jury regarding the appellate process
and the jury's responsibility in deciding the sentence, and there was no
discernable error regarding the admission of presentence investigation
reports. Walker I, Docket No. 49507, Order of Affirmance, at 10-11. And in
the first postconviction appeal, this cmirt concluded that counsel was not
ineffective for not challenging sentencing credit testimony because the
testimony did not indicate that Walker would be released if not sentenced
to death. Walker II, Docket No. 62838, Order of Affirmance at 14. In light
of those conclusions in Walker I and Walker II, which establish the law of
25
App.025
the case on the underlying issues, we conclude that Walker has not
demonstrated that postconviction counsel neglected to raise meritorious
claims. Therefore, the district court did not err in denying these claims.
Penalty phase prosecutorial misconduct
Walker argues that postconviction counsel should have argued
that trial counsel was ineffective in not objecting to prosecutorial
misconduct during the penalty phase of trial. We disagree.
First, Walker claims that the prosecutor improperly called him
a failed serial killer and referred to him as an animal. Walker has not
demonstrated that postconviction counsel acted unreasonably in omitting a
trial-counsel claim related to these comments. The prosecutor's argument
asserting that Walker failed at multiple murders was supported by the
evidence introduced at the trial and penalty hearing. In particular,
Walker's other crimes included robberies during which Walker shot a victim
in the torso and slashed another victim's throat. The injuries he inflicted
could have resulted in each victim's death. And while a prosecutor may not
characterize a defendant as an animal, see Barron v. State, 105 Nev. 767,
780, 783 P.2d 444, 452 (1989) (providing that a prosecutor has a "duty not
to ridicule or belittle the defendant or his case); McGuire v. State, 100 Nev.
153, 157, 677 13.2d 1060, 1064 (1984) (Disparaging comments have
absolutely no place in a courtroom, and clearly constitute misconduct?), the
prosecutor expressly stated that he was not going to call Walker a "dog.'"
But to the extent that the comment may have been improper, Walker did
not demonstrate prejudice as a result of counsel's failure to object or raise
the issue on appeal because the decision between life and death was not
close and therefore there was not a reasonable probability of a different
outcome at trial or on appeal. See Schoels v. State, 114 Nev. 981, 989, 966
26
App.026
P.2d 735, 740 (1998) (providing that in evaluating prosecutorial misconduct
during the penalty phase, this court "will reverse the conviction or death
penalty where the decision between life or death is a close one or the
prosecution's case is weak"), rehearing granted on other grounds, 115 Nev.
33, 975 P.2d 1275 (1999). Because postconviction counsel therefore did not
omit a meritorious trial- or appellate-counsel claim based on this alleged
prosecutorial misconduct, the district court did not err in rejecting the
postconviction-counsel claim.
Second, Walker argues that the prosecutor improperly asked
the jurors to place themselves in the victim's shoes and compared the due
process Walker was receiving to his actions against Anziano. These
arguments were improper.
See Com. of Northern Mariana Islands v.
Mendiola, 976 F.2d 475, 486 (9th Cir. 1992) (recognizing that argument that
defendant poses a risk to the specific jurors in the case was "plainly
designed to appeal to the passions, fears, and vulnerabilities of the jury"),
overruled on other grounds by George v. Camacho, 119 F.3d 1393 (9th Cir.
1997); Berry v. State, 882 So. 2d 157, 164 (Miss. 2004) (concluding that
comparison of victim's rights to defendant's rights was egregious and
"possibly rose to the level of prosecutorial misconduct"). Nevertheless,
Walker has not demonstrated prejudice as a result of counsel's failure to
object or raise the issue on appeal because the decision between life and
death was not close and therefore there was not a reasonable probability of
a different outcome at trial or on appeal. See Schoels, 114 Nev. at 989, 966
P.2d at 740. Because postconviction counsel therefore did not omit a
meritorious trial- or appellate-counsel claim based on this prosecutorial
misconduct, the district court did not err in rejecting the postconvictioncounsel claim.
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Third, Walker argues that the prosecution improperly asked
the jury to consider justice for the victims and society. These arguments
were not improper. "[A] prosecutor in a death penalty case properly may
ask the jury, through its verdict, to set a standard or make a statement to
the community." Williams v. State, 113 Nev. 1008, 1020, 945 P.2d 438, 445
(1997), overruled on other grounds by Byford v. State, 116 Nev. 215, 994
P.2d 700 (2000). Because Walker has not demonstrated that prior counsel
performed deficiently, the district court did not err in rejecting the
postconviction-counsel claim.
Fourth, Walker argues that the prosecution improperly
questioned a witness and elicited testimony about Walker invoking his right
to remain silent during the penalty hearing. We disagree because trial
testimony established that Walker was willing to talk with detectives after
his arrest and did not unequivocally invoke his right to remain silent. See
Berghuis v. Thompkins, 560 U.S. 370, 381 (2010) (recognizing that a suspect
who does not unequivocally invoke his right to remain silent, or who does
so ambiguously while continuing to answer questions, is deemed to have
waived his rights); see also Gaxiola v. State, 121 Nev. 638, 655, 119 P.3d
1225, 1237 (2005) (recognizing that prosecution may not comment on
defendant's invocation of right to remain silent). Thus, the challenged
comments were not improper, and consequently, trial counsel was not
deficient in failing to object. Accordingly, Walker has not demonstrated that
postconviction counsel omitted a meritorious challenge to trial counsel's
performance.
Fifth, Walker argues that the prosecutor impermissibly
referred to facts that were not in evidence in referencing Walker slapping a
guard. Walker has not demonstrated that postconviction counsel acted
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unreasonably as the argument was supported by Walker's disciplinary
history, which was introduced during the penalty hearing, and by penalty
phase testimony.
Lastly, Walker challenges arguments that: (1) the jury should
weigh the worth of the Anziano family against Walker; (2) implied the jury's
duty was to return a death verdict while showing a photograph of Anziano;
(3) disparaged the use of psychological evidence; and (4) impermissibly
inflamed the jury's passions by placing the responsibility for any future
crimes he commits on the jurors. Walker also argues that the prosecutor
failed to respond to numerous discovery requests, which permitted the
prosecutor to ambush him with evidence he could not review. Trial counsel
objected to the comments and appellate counsel challenged the comments
and alleged the discovery violations on appeal. This court concluded that
the comments were either proper or did not amount to a denial of due
process and Walker was not prejudiced by any alleged discovery violation.
Walker I, Docket No. 49507, Order of Affirmance, at 6, 12-13. Considering
the decision in Walker I, which is the law of the case on the underlying
issues, Walker has not demonstrated that postconviction counsel acted
unreasonably in declining to raise claims for which he could not
demonstrate prejudice.
Penalty phase jury instructions
Walker argues that postconviction counsel should have claimed
that trial counsel was ineffective for failing to challenge or request several
jury instructions. These claims lack merit for the reasons discussed below.
First, Walker argues that trial counsel should have asserted
that the instruction that defined mitigating circumstances as those
circumstances which reduce the degree of moral culpability impermissibly
29
App.029
limited the consideration of mitigating circumstances. As the instruction
was not reasonably likely to confuse the jury, see Watson v. State, 130 Nev.
764, 783-87, 335 P.3d 157, 171-74 (2014), Walker has not demonstrated that
trial counsel was ineffective for failing to challenge the instruction.
Accordingly, he also has not demonstrated that postconviction counsel
omitted a meritorious claim.
Second, Walker argues that trial counsel should have insisted
that, pursuant to Sonner v. State, 112 Nev. 1328, 1345, 930 P.2d 707, 718
(1996), the jury be instructed that it could only consider other matter
evidence after it found the aggravating circumstances. Walker has not
demonstrated deficient performance or prejudice. The statement he points
to in Sonner described the death penalty process as part of a constitutional
challenge; it did not mandate the use of a new instruction. Additionally, as
there was sufficient evidence supporting the aggravating circumstances
found, see Walker I, Docket No. 49507, Order of Affirmance, at 13, Walker
did not demonstrate that the jury's consideration of other matter evidence
improperly influenced its finding of the aggravating circumstances. He
therefore did not demonstrate that postconviction counsel omitted a
meritorious claim in this respect.
Third, Walker argues that trial counsel should have challenged
instructions that required the jury to unanimously find mitigating
circumstances. Walker has not demonstrated deficient performance or
prejudice.
The instructions clearly provided that "[a] mitigating
circumstance itself need not be agreed to unanimously," and "any one juror
can find a mitigating circumstance." Considering the totality of the
instructions, there is not a reasonable probability that the jurors thought
they had to be unanimous in finding mitigating circumstances. See Boyde
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v. California, 494 U.S. 370, 380 (1990) (providing that an instruction is
ambiguous where "there is a reasonable likelihood that the jury has applied
the challenged instruction in a way that prevents the consideration of
constitutionally relevant evidence"). As such, Walker has not demonstrated
that objectively reasonable trial counsel or postconviction counsel would
have challenged the instruction.
Fourth, Walker argues that trial counsel should have objected
to the anti-sympathy instruction. Walker has not demonstrated that
postconviction counsel omitted a meritorious trial-counsel claim because
this court has approved the anti-sympathy instruction where the jury is also
instructed to consider "any mitigating evidence." Leonard v. State, 117 Nev.
53, 79, 17 P.3d 397, 413-14 (2001); see also Sherman v. State, 114 Nev. 998,
1011, 965 P.2d 903, 912 (1998) (upholding anti-sympathy instruction where
trial court also instructs the jury to consider mitigating facts). Here, the
jury was so instructed. Therefore, his trial counsel was not ineffective, and
the district court did not err in denying this postconviction-counsel claim.
Fifth, relying on Hurst v. Florida, 136 S. Ct. 616 (2016), Walker
argues that the district court erred in not instructing the jury that it must
determine that the mitigating circumstances do not outweigh the
aggravating circumstances beyond a reasonable doubt. This court has
rejected the interpretation of Hurst advocated by Walker. See Castillo v.
State, 135 Nev. 126, 442 P.3d 558 (2019) (rejecting argument that Hurst
announced new law relevant to the weighing component of Nevada's death
penalty procedures or appellate reweighing), petition for cert. filed,
U.S.L.W.
(U.S. Feb. 12, 2020) (No. 19-7647); Jeremias v. State, 134 Nev.
46, 58, 412 P.3d 43, 54 (2018). Therefore, Walker cannot demonstrate
deficient performance based on any prior counsel's failure to raise this issue
31
App.031
or resulting prejudice, and the district court did not err in denying this
claim.
Sixth, Walker argues that trial counsel should have objected to
the district court's failure to issue a presumption-of-life instruction that
correlates to the presumption-of-innocence instruction. He asserts that the
instruction is warranted because, pursuant to Hurst, all findings necessary
to support a death sentence must be made beyond a reasonable doubt.
Walker has not demonstrated that postconviction counsel performed
deficiently. As discussed above, Hurst does not require that the weighing
determination be subject to the beyond-a-reasonable-doubt standard of
proof. The jury was instructed that it may impose a sentence of death only
if it unanimously found at least one aggravating circumstance existed
beyond a reasonable doubt, if each juror determined that the mitigating
circumstances found did not outweigh the aggravating circumstance(s), and
if the jurors unanimously determined that death was the appropriate
sentence. Other instructions reiterated that the jury was not required to
impose a death sentence and the jury always had the discretion to impose a
sentence less than death. As the jury was adequately instructed that it
could not impose death unless the State proved the existence of an
aggravating circumstance beyond a reasonable doubt, and that even then,
it still maintained the discretion to impose a sentence less than death,
Walker has not demonstrated that an additional instruction on a
presumption of life was necessary or warranted. See Vallery v. State, 118
Nev. 357, 372, 46 P.3d 66, 77 (2002) (The district court may.. . . refuse a
jury instruction . . . that is substantially covered by other instructions.").
Therefore, the district court did not err in denying this postconvictioncounsel claim.
32
App.032
Shackles
Walker asserts that postconviction counsel should have alleged
ineffective assistance because trial counsel failed to challenge the use of
visible shackles during the penalty hearing. We disagree. While being
escorted into the courtroom, Walker briefly appeared shackled in front of
several jurors. Officers immediately removed him from their view and
informed the court. The viewing was accidental and brief. He was not
paraded in front of the jury in visible restraints. See Nelson v. State, 123
Nev. 534, 545, 170 P.3d 517, 525 (2007) (concluding that failure to hold
hearing before requiring leg restraints was harmless where no record that
any juror saw restraints and defendant not made to walk in front of jury in
restraints). Therefore, Walker did not demonstrate that trial counsel would
have been able to successfully move for a mistrial or that appellate counsel
would have been able to demonstrate reversible error.
See Ghent v.
Woodford, 279 F.3d 1121, 1133 (9th Cir. 2002) (recognizing no inherent
prejudice when several jurors glimpsed defendant in shackles as he was
entering courtroom); United States v. Olano, 62 F.3d 1180, 1190 (9th Cir.
1995) (holding that "a jury's brief or inadvertent glimpse of a defendant in
physical restraints is not inherently or presumptively prejudiciar where,
"on the sixth day of trial, the jury briefly witnessed [the defendant] in
handcuffs as he entered the courtroom"). Therefore, the district court did
not err in denying this postconviction-counsel claim without conducting an
evidentiary hearing.
Elected judges
Walker argues that the district court erred in denying his claim
that postconviction counsel should have challenged the ability of elected
judges to conduct an adequate review of his case. We disagree. Walker did
33
App.033
not substantiate his claims with portions of the record demonstrating bias
against him based on the fact that the district judge and Supreme Court
Justices are popularly elected. See Hargrove v. State, 100 Nev. 498, 502,
686 P.2d 222, 225 (1984) (requiring petitioner to plead "specific factual
allegations that would, if true, have entitled him" to relief). And he was
found guilty and sentenced to death by a jury, not judges. Therefore, the
district court did not err in denying this claim.
Lethal injection
Walker argues that postconviction counsel should have argued
that lethal injection constitutes cruel and unusual punishment. This claim
does not challenge the validity of the conviction or sentence and thus cannot
be raised in a postconviction petition for a writ of habeas corpus, see
McConnell v. State, 125 Nev. 243, 249, 212 P.3d 307, 311 (2009); therefore,
postconviction counsel was not ineffective for failing to litigate this issue in
the prior petition.
Ineffective assistance of appellate counsel
Walker argues that postconviction counsel should have
asserted that appellate counsel was ineffective for not adequately
challenging: the State's use of peremptory challenges, the exclusion of
evidence of voluntary intoxication, errors during voir dire, the admission of
prior bad act evidence, the admission of victim impact evidence,
prosecutorial misconduct, the use of restraints during trial, the admission
of gruesome photographs, jury instructions, and the admission of prejudicial
videos. For the same reasons discussed previously, Walker has not
demonstrated that appellate counsel unreasonably neglected to raise viable
claims on appeal or that he was prejudiced. Walker also claims that
appellate counsel failed to argue that the district court erred in denying
34
App.034
several motions argued during the course of trial. However, other than
listing claims that appellate counsel should have addressed, Walker does
not provide any further argument on these issues. Therefore, he has failed
to demonstrate that review is warranted.8 See Maresca v. State, 103 Nev.
669, 673, 748 P.2d 3, 6 (1987) (It is appellant's responsibility to present
relevant authority and cogent argument; issues not so presented need not
be addressed by this court.").
Cumulative error review
Walker argues that the district court should have considered
several claims that he had raised on direct appeal and in the first
postconviction petition so that their cumulative effect would be considered
with other claims for which he can demonstrate good cause to overcome the
procedural bars. We disagree. Walker cites no authority that requires a
state court to consider the cumulative effect of defaulted claims. The factual
and legal bases for the claims he seeks to raise again were available during
the prior proceedings, and he therefore cannot show that some impediment
external to the defense prevented him from raising them before. Hathaway,
119 Nev. at 252-53, 71 P.3d at 506. But more importantly, the reraised
claims were previously rejected on the merits. Claims that we have already
rejected on the merits "cannot logically be used to support a cumulative
error claim because we have already found there was no error to cumulate."
8We note that appellate counsel raised 15 issues, not including a
number of sub-issues, in an approximately 80-page opening brief. It is well
established that appellate counsel is not required to raise every conceivable
issue to be effective. See Ford v. State, 105 Nev. 850, 853, 784 P.2d 951, 953
(1989) (reiterating Supreme Court's observation from Jones v. Barnes, 463
U.S. 745 (1983), that "appellate counsel is most effective when she does not
raise every conceivable issue on appear).
35
App.035
In re Reno, 283 P.3d 1181, 1223-24 (Cal. 2012); see also Rippo v. State, 134
Nev. 411, 436, 423 P.3d 1084, 1107 (2018), amended on denial of rehearing
by Rippo v. State, 432 P.3d 167 (2018). Therefore, Walker has not
demonstrated good cause to overcome the procedural bars or to avoid the
law-of-the-case doctrine.
Having considered Walker's arguments and concluding that
they lack merit, we
ORDER the judgment of the district court AFFIRMED.
Add,. P C.J.
Pickering
Hardesty
Gibbons
, J.
-112161
Parraguirre
Stiglich
tki__Z4.e,)
, J.
, J.
Silver
cc:
Hon. Valerie Adair, District Judge
Joanne L. Diamond
Federal Public Defender/Las Vegas
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
36
App.036
APPENDIX B
Order Denying Rehearing but Clarifying Decision,
Walker v. State, Nevada Supreme Court,
Case No. 49507 (May 17, 2010)
App.037
all penalty witnesses and concluded that no improper victim impact
testimony was admitted.
Second, Walker argued on appeal that the State introduced
improper evidence concerning the murder victim's absence at holiday
gatherings and birthdays. Although this court's order does not explicitly
address this contention, our review of the challenged testimony revealed
that the evidence did not constitute improper victim impact evidence. See
McConnell v. State, 120 Nev. 1043, 1061, 102 P.3d 606, 619 (2004)
(concluding that testimony from victim's family members regarding
birthdays, holidays, and victim's anticipated wedding was not improper
victim impact testimony).
Any inaccuracy in the order of affirmance with respect to the
admission of victim impact evidence does not alter our decision upholding
Walker's judgment of conviction and sentence. Accordingly, we deny
rehearing.
It is so ORDERED.
Parraguirre
/
H ardesty
J.
2
App.038
CHERRY, J., with whom DOUGLAS and SAITTA, JJ., agree dissenting:
I would grant the petition as to appellant's claim that
prosecutorial misconduct rendered his penalty hearing unfair for the
reasons stated in my prior dissent. Accordingly, I dissent.
We concur:
J.
Douglas
Saitta
cc:
Hon. Valerie Adair, District Judge
Special Public Defender
Attorney General/Carson City
Clark County District Attorney
Christopher R. Oram
Eighth District Court Clerk
3
App.039
APPENDIX C
Order of Affirmance, Walker v. State,
Nevada Supreme Court, Case No. 49507 (March 3, 2010)
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
App.040
2
App.041
,
,
3
App.042
4
App.043
...
2
5
App.044
y
6
App.045
y
3
3
7
App.046
8
App.047
App.048
10
App.049
4
11
App.050
12
App.051
13
App.052
5
14
App.053
App.054
2
App.055
APPENDIX D
Recorder’s Transcript of Hearing Re: Jury Voir Dire,
State v. Waker, District Court, Clark County, Nevada,
Case No. C197420 (January 4, 2007)
01/05/2007 14:55 FAX 602 288 6702
Notar/Lex/VWA
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JAN O 5 2007 ·- _
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CLARK COUNTY, fNEVAD ._;. • · •·· _,..._..,.
DISTRICT COURT . .
ORIGINAL
L. ijENISE nusTEDli<'-;..;·,"V
THE STATE OF NEVADA,
)
Plaintiff,
)
)
vs.
CASE NO. Cl96420
DEPT. XXI
)
)
JAMES RAY EARL WALKER, MYRDUS
ARCHIE, aka MARY SMITH,
)
)
)
Defendants.
____________________
)
)
BEFORE THE HONORABLE VALERIE ADAIR, DISTRICT COURT JUDGE
JANUARY 4, 2007
RECORDER'S TRANSCRIPT OF HEARING RE:
JURY VOIR DIRE
APPEARANCES:
CHRIS J. OWENS, ESQ.
FOR THE STATE:
Chief Deputy District Attorney
BILL KEPHART, ESQ.
Chief Deputy District Attorney
FOR DEFENDANT ARCHIE:
FOR DEFENDANT WALKER:
CHRISTOPHER R. ORAM, ESQ.
SCOTT L. BINDRUP, ESQ.
Special Public Defender
ALZORA B. JACKSON, ESQ.
Special Public Defender
RECORDED BY:
JANIE OLSEN, COURT RECORDER
TRANSCRIBED BY: LISA ZINGALE, LEX REPORTING SERVICES
Lex Reporting Services
888-777-5171
App. 056
2
DISTRICT COURT
THE COURT:
CLARK COUNTY,
NEVADA
THE STATE OF NEVADA,
Plaintiff,
presence of the Defendants, Mr. Walker and Ms. Archie, along
J
)
CASE NO. C196420
DEPT. XXI
with their attorneys, Hr. Bindrup, Ms. Jackson and Hr. Oram,
)
)
JAMES RAY EARL WALKER,
ARCHIE,
MYROUS
all officera of the Court and the members of the prospective
)
)
i,.ka MARY SMITH,
jury panel.
Good morning, ladies and gentlemen.
I
Defendants.
I
10
JANUARY 4,
DISTRICT COURT JUDGE
2007
RECORDER'S TRANSCRIPT OF HEARING RE:
JURY VOIR DIRE
of the remaining prospective jurors.
11
Ms. Husted?
12
THE CLERK:
13
PROSPECTIVE JUROR BADGE NO. 32:
"
THE CLERK:
16
THE CLERK:
CHRIS J.
OWENS,
1B
THE CLERK:
Here.
Badge 10, Gerald Baldridge?
PROSPECTIVE JUROR BADGE NO. 10:
Chief Deputy District Attorney
BILL KEPHART, ESQ.
FOR DEFENDANT ARCHIE:
Here.
Where's B11dge 30 -- 530, Ch11rles Kennedy
ESQ.
Chief Deputy District Attorney
FOR DEFENDANT WALKER:
Badge 32, John Blake?
PROSPECTIVE JUROR BADGE NO. 530:
APPEARANCES:
FOR THE STATE:
Before you
resume with the jury questioning, Ms. Husted will call the rel
------------'------'
BEFORE THE HONORABLE VALERIE ADAIR,
Court is now back in session
Deputy District Attorneys, Mr. OWens and Mr. Kephart, the
)
)
vs.
All right.
The record will reflect the presence of the State through the
CHRISTOPHER R. ORAM, ESQ.
SCOTT L. BINDRUP, ESQ.
Here.
Badge 14, Tom -- Shane Thomas?
19
PROSPECTIVE JUROR BADGE NO. 14:
20
THE CLERK:
1 'm not sure.
Here.
Is Spenser Pafias here?
Special Public Defender
ALZORA B. JACKSON, ESQ,
Special Public Defender
21
22
23
24
RECORDED BY:
JANIE OLSEN, COURT RECORDER
TRANSCRIBED BY:
LISA ZINGALE, LEX REPORTING SERVICES
25
MS. JACKSON:
THE CLERK:
THE COURT:
He may be -- still downstairs with the
PROSPECTIVE JUROR BADGE NO.
Okay.
Edward Henderson?
PROSPECTIVE JUROR BADGE NO. 18:
THE CLERK:
43:
Here.
11
PROSPECTIVE JUROR BADGE NO. 53:
THE CLERK:
Here.
Here.
Ninety-five, Randy Buckner?
PROSPECTIVE JUROR BADGE ,o. 95:
THE CLERK:
Here.
Here.
Ninety-six, Jenniver Aguiluz?
PROSPECTIVE JUROR BADGE NO. 96:
THE CLERK;
Here.
Here.
Ninety-eight, Matthew Cox?
PROSPECTIVE JURo, BADGE NO. 98:
Fifty-three, Anthony Ricadonna?
12
91:
Ninety-three, Annetta Yousef?
PROSPECTIVE JUROR BADGE NO. 93:
THE CLERK:
Forty-three, Mary Capra?
PROSPECTIVE JUROR BADGE NO.
THE CLERK:
Here.
Thirty-five, Monica Bradford?
PROSPECTIVE JUROR BADGE NO. 35:
THE CLERK:
THE CLERK:
Thirty-one, Erin Rosequist?
PROSPECTIVE JUROR BADGE NO. 31:
THE CLERK:
10
THE CLERK:
Here.
One o two, Robert Jones?
Here.
11
PROSPECTIVE JUROR BADGE NO. 102:
Seventy-two, Adam Flores?
12
THE CLERK:
n
PROSPECTIVE JUROR BADGE NO. 72:
14
THE CLERK:
Here.
Eighty-one, Frank Mercadante?
15
PROSPECTIVE JUROR BADGE NO.
16
THE CLERK:
81:
Here.
Eighty-three, Bradley Trimas?
17
PROSPECTIVE JUROR BADGE NO. 83:
'"
THE CLERK:
Here.
Eighty-seven, Minh Khuu?
19
PROSPECTIVE JUROR BADGE NO. 87:
20
THE CLERK:
21
Because he kept showing up and getting
Lex Reporting Services
888-777-5171
others.
THE CLERK:
he was absent from the
released tind he's supposed to come back today.
Lex Reporting Services
888-777-5171
10
He was never
first day.
Skipped s page.
Here.
Excuse mci.
Minda Sogocio?
Page 89,
13
PROSPECTIVE JUROR eAO<SS NO. 103:
14
THE CLERK:
PROSPECTIVE JUROR BADGE NO. 89:
"
THE CLERK:
'4
PROSPECT1VE JUROR BADGE NO. 90:
25
THE CLERK:
PROSPECTIVE JURo, BADGE NO. 105:
16
THE CLERK:
17
PROSPECTIVE JURo, BADGE NO. 107:
1B
THE CLERK:
19
PROSPECTIVE JUROR BADGE NO, 109:
Here.
20
THE CLERK;
(phonetic I
Ooe fourteen,
Jeller
-- o,
Ambe, Weller?
22
PROSPECTIVE JUROR BADGE NO. 114:
23
THE CLERK:
Lex Reporting Services
888-77?-5171
Here.
One o eight, Aaron Pacletta?
Here.
Here.
Here.
One o seven, Jody Holt?
Ninety-, Nathan Christian?
Ninety-one, Melissa Butler?
Here.
One o five, Arlene Lewis?
15
21
22
Here.
One o three, Monica Ibarra?
Ooe seventeen,
Here.
Teena Kyle?
24
PROSPECTIVE JUROR BADGE NO. 117:
25
THE CLERK:
Here.
One eighteen, Ryu -- I have trouble with
Lex Reporting Services
888-777-5171
App. 057
162
161
interrupt to ma'am.
allowing that person of the chance of parole someday?
PROSPECTIVE JUROR BADGE NO.
105:
Yes,
THE COURT:
to know what the cin:umstances were before l s11y any one of th
(inaudible).
we' re going to -- were done.
information in order to consider it.
Okay.
The
Well,
State?
Thank you. Your Honor.
At this time w
would like to thllnk and excuse Juror No. 12, Badge No. 018,
death penalty if you found a person guilty of -- of first --
Edward Henderson.
So --
PROSPECTIVE JUROR BADGE NO. 105;
I guess I'm not
there.
MR. BINDRUP:
14
PROSPECTIVE JUROR BADGE NO. 105:
You weren't there then or --
15
MR. BINDRUP:
16
accurate then today, I mean --
Okay.
11
MS. JACKSON:
-- We object.
12
THE COURT;
Please approach.
THE COURT:
Okay.
All right.
Ladies and gentlemen. You may all step back, thank
Ladies and gentlemen, what we're going to do is the
16
you.
It's not accurate
17
gentle111an and Seat No. 12 will be excused at this time.
It's not accurate, but is your
19
willingness to serve as a juror and your participation here.
And I want to thank you very much, sir for your
1B
MR. BINDRUP:
Objection.
(Whereupon, 11 bench conference was held.).
15
today.
19
MR. ORAM:
13
ls that -- is that just not
Your Honor
10
I'm not there now.
PROSPECTIVE JUROR BADGE NO. 105:
1'
MS. JACKSON:
That's what you put down,
13
18
Thank you Mr. Bindrup,
initial questionnaire said you would automatically vote for th
11
12
MR. KEPHART:
I -- I'm concerned because your
degree murder period end of story.
10
All right.
State may exercise their third challenge st the ti.me.
And yes, I would consider it, but I would want
MR. BINDRUP:
I'll see counsel at the bench
(Whereupon, a bench conference was held.).
but I'd want
20
inclination still such that if you -- if you found somebody
20
You're excused, sir you don't h11ve to come back.
21
guilty of such a charge, more likely that not you'd impose a
21
very much.
22
death penalty over life with the possibility of parole?
22
23
PROSPECTIVE JUROR BADGE NO. 105:
24
I -- you're putting me on the spot and I don't know.
THE COURT:
25
Can I see counsel?
I don't know.
I -
I 'm sorry to
Thank you
For the rest of you, ladies and gentlemen, there are
23
not enough prospective jurors left from this first p11nel.
24
we've brought in a second panel and we're going to have to do
25
some preliminary things with them at this time.
Lex Reporting Services
B88-777-51'71
So
Whll't th11t
Lex Reporting Services
BBB-777-5171
1'3
means, is all of you will be excused and are asked to return
tomorrow which is Friday at 9 a.m.
9 a.m. on the third floor.
2
The court does not have another calendar in the
J
right.
morning, so we'll be able to start promptly at 9:00.
Jury service is 9 a.m.
Okay.
Thank you.
All
If anyone needs two or three minutes, take it.
Please
!Whereupon, e brief recess was taken.)
So, I can promise you thet unless you are one of
THE COURT:
Good afternoon.
This is the time for
the members of the jury, you will not have to return past
Case Number Cl96420, State of Nevada v. Jemes Walker and
tomorrow.
Myrdus Archie.
Having said that I'm going to go ahead and excuse
all of you for the evening recess,
10
Oh, I see.
come right back so we can stert.
I am very confident that we will have e jury selecte
by tomorrow.
Mr. Meza has to stay.
The record will reflect the presence of the St11te
Once again during the this evening recess you' re
10
through the Deputy District Attorneys, Chris Owens and Bill
11
edmonished that you're not discuss this case, any person or
11
Kephert, the presence of the defendants, Mr. Welker and
12
subject metter connected with this case, with each other or
12
Ms. Archie, along with their attorneys, Mr. Bindrup,
13
with any one else.
13
Ms. Jackson, and Mr. orarn, ell officers of the Court end the
14
members of the Prospective Jury Panel B.
14
You ere not to wetch or listen to any reports or
15
commentaries on this cese, any person or subject matter
16
connected with his case by any medium of information.
17
18
19
15
Good afternoon, ladies and gentlemen.
16
into the nuts end bolts of this, I would first like to
do not do eny independent research on any subject connected
17
apologize for the delays I know you've experienced.
with this trial and please do not form or express an opinion o
18
11ny subject connected with this case.
19
complete the questionnaire.
20
then were excused and I know that you've been sitting eround
all day today, up until this point, and I apologize for that.
Please
Thank you and we'll see everyone back here at 9 a.m.
Before we get
I know you came in Wednesday and were asked to
I know you came beck yesterday an
21
tomorrow morning.
Mr. Meza, you are -- since you missed the
21
22
first day, you are going to be with the second penel 11nd you
22
23
are directed to remain in the courtroom.
23
are tight -- we had an initiel jury panel.
24
missed the first day that's here other than Mr. Meza is
24
questioning them.
25
directed to remain in the courtroom.
25
why you all have been in and it's taken longer than
Anyone else who
Lex Reporting Services
888-777-5171
We actually began this case on Tuesday morning and w
We've been
We' re running out of jurors there and that'
Lex Reporting Services
BBB-777-5171
App. 058
•
m
MR. OWENS:
Did you?
THE COURT:
Mr. Vitone, ace you sure that CAT bus no
PROSPECTIVE JUROR BADGE NO. 050:
THE COURT:
PROSPECTIVE JUROR BADGE NO. 050: No.
been confused when you ask'ed me that,
5
I guess l must ha'IV
050:
No.
What shift do you nocmally -
PROSPECTIVE JUROR BADGE NO. 050:
I thought you were
Monday is like I have a split shift; it's -- I do one, you
know, I hold --
I mean, a lot of different types of
THE COURT:
What time do you show up foe work?
10
jobs, p1ucticularly companies that can -- like if you have a
10
11
government job, they typically pay you during the time you're
11
12
doing your service so you' I"e not out money.
12
THE COURT:
13
PROSPECTIVE JUROR BADGE NO. 050:
13
And there are certain companies that contract with
PROSPECTIVE JUROR BADGE NO. 050:
Okay.
On Fridays you show Up at 4:30?
the government and it's the same provision, and, obviously, th
15
point of thi,t is that we want to encourage people to
15
THE COURT:
16
participate as jurnrs and not have them penalized in any way.
16
PROSPECTIVE JUROR BADGE NO. 050:
so my question to you is ace you suce that CAT Bus
17
THE COURT;
14
18
will not pay you for the -- just your regular shift -- not
18
19
overtime, obviously, oc anything like that,
19
20
shift while you' re serving jury duty?
PROSPECTIVE JUROR BADGE NO. 050:
for youc regular
No,
I'm not sure.
Friday?
PROSPECTIVE JUROR BADGE NO.
20
maybe 5: 45 in the afternoon.
050:
21
THE COURT:
PROSPECTIVE JUROR BADGE NO. 050:
23
they go about something like that.
23
THE COURT:
24
- I don't
24
Here's what I'm going --
25
And I get off at
And then what time do you get off on a
22
THE COURT:
No --
Okay.
That's -- I don't know what they -- what they do, you know, ho
25
Yes.
Fridays -- I'm supposed to show up at 5:05 in the morning.
22
Thia is my first time.
I show up like
pacticularly like 4:30 in the morning.
14
21
J'm wocking Friday
Saturday, Sunday, and Monday, and I work like -- Fciday and
asking me don't they pay us better than -THE COURT:
All right.
what days do you normally work?
Did you look into that ahead of time?
PROSPECTIVE JUROR BADGE NO.
-- I don't know th
whole --
pay you if you do jury services?
THE COURT:
214
About 5:00, 5:30,
So you work a 12-hour shift?
Yes, ma'am.
12, 13-hour shift?
PROSPECTIVE JUROR BADGE NO. 050:
It's like with an
hour -- hour and a half --
Lex Reporting Services
888-777-5171
Lex Reporting Services
088-777-5171
215
THE COURT:
216
Are you safe to be driving people after
THE COURT:
working 12, 13 hours?
PROSPECTIVE JUROR BADGE NO. 050:
THE COURT:
5
to do, Mr. Vi tone.
Okay.
Yes.
I'm going to ask you to verify with youc
PROSPECTIVE JUROR BADGE NO. 050:
5
If you can get something from
excused.
11
you.
12
summons you back here to explain it all to me.
10
Mr. Oram, we're not done.
11
MR. ORAM:
12
THE COURT:
Oh,
13
MR. ORAM:
14
MS. JACKSON:
But I want you to verify that because I think the
15
THE COURT:
you.
Okay.
16
may.
All right?
16
PROSPECTIVE JUROR BADGE NO. 050:
THE COURT:
All right.
I'm sorry, Judge.
I am tired.
He's ready to go.
All right.
Since it's so early tonight,
what I'm going to do, and I want to start right at promptly at
Okay.
17
9 o'clock tomorrow, so I'd ask the corrections officers to
18
please have Mr. Walker and Ms. Archie in the courtroom by like
PROSPECTIVE JUROR BADGE NO. 050:
I -- I didn't know
You need to find that out.
19
8:45 so we can bring the jury up right at 9 o'clock, okay, if
20
you can do that.
You
21
And then that will give also if they' re lawyers want
And when you come
22
to talk to them or whatever if you guys get here at 8: 45, that
23
back at 11 o'clock, get Officer Glasper to the side when you
23
would be great.
24
see him and talk to him and tell him what you found out.
24
to wait around.
22
Okay.
You're
I'm going to --
I don't know if they do.
THE COURT:
Yes, ma'am.
Thank you.
You look so tired.
If they don't pay you then, I'm fine with releasing
15
21
I'm going to
Do you understand that -- and possibly hold you in
contempt.
19
All right, sir.
excused at -- until tomorrow morning at 11:00.
If they' re not going to pay you, I'm going to excuse
But if I find out you were not truthful,
14
20
THE COURT:
If they' re going to pay you, you don't get
10
Yes, ma'am.
And not watching the news and that sort
PROSPECTIVE JUROR BADGE NO. 050:
You come back Friday.
18
THE COURT:
of thing.
services, okay?
13
Thank you, Mr. Vitone.
the admonishment about not talking the case.
Here's what I'm going to ask you
employee whether or not they' re going to pay you for your jury
them, great.
All right.
And once again, just in case you are chosen, remembe
need to find that out, and you come back.
PROSPECTIVE JUROR BADGE NO. 050:
Lex Reporting Services
888-777-5171
Sounds good.
Okay
25
Then we can start right at 9:00 and won't hav
What I wanted to do at this point in time is if
Lex Reporting Services
088-777-5171
App. 059
m
"'
anybody feels like they need to put something on the record we
Respecting Juror 018 --
can do that.
HR. ORAM:
know 11, Batson challenge was made at the Bench,
8nd Mr. Kephart stated it race neutral re11son.
I'm assuming that you want to put that on the record
at this point in time.
6
Yeah.
HS. JACKSON:
Addition11lly, the Court would note, I,
in this new panel, observe three people who appear to be
African American to the Court.
Yes.
THE COURT:
He was in Seat 12.
I need some reading glasses.
We would object to Hr. Henderson.
6
I don't know if tJiat comports
The way he was
handled from the very beginning we thought was improper.
with what other people observed.
Hr. Keph11rt to invite the defense to go first.
One of -- and sometimes as we discussed earlier, it
That was the
first time that had occurred with this particular panel.
10
is difficult to tell exactly what race or ethnicity people are
10
11
Two of them remained.
11
first, Hr. Oram, 1,nd then Hr. Walker's attorneys.
12
brief.
One, Mr. Anwar Ali, sought to be excused and was not
The other gentleman was the
We
believe that it was not fortuitous that he was singled out, fo
He waa singled out.
The defense was allowed to go
We were ver
The record will reflect that Hr. Henderson was then
13
and remains in the panel.
13
questioned by the prosecutor at least by my calculations three
14
corporate aidine pilot and we all agreed in the hallway that
14
times as long as any other prior prospective jury person.
15
he did have a sufficient hardship excuse and so he was excused
15
16
for that reason.
16
questions to, quote, do you find that because you' re an Africa
17
concurred in that decision including all of the attorneys.
And that was concurred
or everyone
18
And, moreover, wss clearly asked inappropriate
17
American lllllle, that you
18
you from your -- from your associates, other African Americans
that you voted to put another African American on death row.
you may have some ridicule coming t
19
Does that comport with everyone's understanding?
19
20
HS. JACKSON;
20
21
UNIDENTIFIED SPEAKER:
Yes, Your Honor.
21
characterization.
22
THE COURT:
Very good.
22
males; A, they all h11ve associlltes which have g11ng affiliation
24
on the record at this point.
Yes.
All right.
Is there anything else that anyone would like to put
25
I' 11 go first, if I may.
MS. JACKSON:
We take very strong the exception to the
It seems to imply that African American
23
It all
24
African American males somehow are in f11vor of crime or
25
something of that nature.
and to invite ridicule would seem to imply that
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No other prospective jury members were asked anythin
2
Juror prospective 93, Annetta Yousef;
about if their white associates or brown associates or a
Juror 710, Lauri, Dotson;
Republiciin associates or any other associ11tes would hiive a
Juror 023, Shontel Eifler;
problem if th11t person voted for death.
Juror 011 (sic); Toby Solimon;
We think it is clearly improper, iniippropriate iind a
Prospective Juror 71, Maria Sanchez;
this time we make an onl motion for a mistriiil on that biisis.
THE COURT:
All right.
Prospective Juror 033, Luis Gutierre,;;
Thank you, Ms. Jackson.
Juror 003, Armand Virtuoso;
And Hr. Oram?
MR. ORAM:
Juror 008, Margaret Harp;
Your Honor, I would join in that.
And I
would iidd one other fllctor.
11
- a judge's previous order, not this Court's order, was denied
11
12
sever<!lnce.
12
13
We have -THE COURT;
HR. ORAM:
15
16
Ms. Hyrdus Archie, by way of pre
Juror 013, Catherine Granger;
10
Is that Judge Bell?
It -- it was, I believe, Judge Mosely
(phonetic) Your Honor.
THE COURT:
10
Juror 012, Jennifer B11rksdale;
Juror 047, Jiison Morton; combined with
Edward Henderson snd take away Edward Henderson for a second.
13
All 11 of those jurors said, "I could be fair to the
14
State of Neviida and give Hyrdus Archie life without parole" --
15
Judge Mosely?
l7
here wondering that, but --
18
HR. ORAM:
Right.
Because I've been sitting
I believe it's Judge Mosely.
And
THE COURT:
Actu111ly, Hr. Oram, that's not what they
16
said.
You said, "Could be you be st11te -- fair to Hyrdus
17
Archie and could you be fair to the State of Nevada," and they
18
said yes.
And I'm not sure if in their minds being fair, A,
19
now I'm in a situation where in the first panel that was the
19
pertained to the guilt ph11se, because there was
20
only African American male.
20
there was anyone who said they couldn't be fair in the guilt
phase, I don't remernber.
Ms. Hyrdus Archie has a right to
21
jury of her peers.
She will not receive a jury of her peers a
21
22
least from that particular panel because there are no African
22
23
American individuals now on that jury.
23
24
25
Additioniilly, l have counted, and I have -- and l
will go through these slow --
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"25
Let's face it.
I mean if
Host people s11id they could be fiiir
in the guilt phase, and the issue hiis been the penalty phase.
HR. ORAM:
THE COURT:
That's right.
But I don't -- l don't know -- and they
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jurors, th• st .. te could have gotten rid ot B for preemptory
fair between lih with th• pouibility of p,arole and lif•
ohallenge11, but I'd s t i l l ~ left with three o.f th•••·
was clear
M this point, Your Honor, I would renev ~ DOtion
to •11 o! the111..
Do
•
for teverance,
you see what I'm Hying1
5
HR. ORAM:
'l'e11, I do.
THE COURT:
Because I think -- I think they could
And I
11
p,arole,
Son,e it w ■■, and they said, yes.
l'lut 110- of these, it wasn't.
"
HR, ORAM:
And,
tllE: COORl':
That• s my racoll11ct.10n.
15
HR. ORAM:
-- pgint -- r.iy only point waa each one of
Md so
12
Your Honor, really 111y only
Well, the Bataan h•!ln' t bia.n rai.led yet,
MR. OWENS:
10
"
12
Your llonor,
NP.. O!V.M:
Ne raised it under Betson on behalf of
Ha. Archie.
13
MS, JACKSON:
"
"
KR, OWBJl'S:
DO we want to
THE COURT:
Oh, I thought that was what M,, Jackson
11
vaa doing, and then l waa going to hove you
l&
haue, but it you feel that' a not whar they did, then go ahead
MR. ORAN -- th11t's probably {inaudible.I
19
and addre'9 whet they did.
And aleo, Your Honor, I have 1Urked those out.
20
those jurors were kicked for cauaa because they couldn't ,;iive
THE COURT:
"
Right.
It vu, a de11th ch11llenge.
And on behalf of Mr, Walker.
21
objecting tc, a queation,
22
I'm telling the Court.
23
j,u:ors, one, two,
"
You're correct.
24
sifl!Ply ~cause they couldn't ,;iive death.
But al}' recollection is we have 11
three, four -- 11 jurors excused for eau••
23
Tl!& COURT:
25
addres ■
Mr, Oram' a
Ri111ht,
I'111 sorry.
Sh• waa
You're correct.
You'i:e correct.
And my rasponJ!le to that 111 that there wes
MR. OMENS:
24
The State could not -- it I had kept •11 of thoH
25
1m1•4ii a0111e er,;iumenta first?
I want to take the111 on• e time.
HR, OWENS:
vould uthu: look at the record to 1r111ke absolutely ,1.ire of vh_.t
21
Thank you, ML Ou111.
lt waa never .spelled
poaaibil.ity of parole as well a, life with the po1111ibility of
20
All right.
)fr. Kephart, do yoi. first want to addreaa the Batoon1
10
"
that Ma. Archie receive II aist:r::ial at thia
THE COURT:
have baan talking about the 911ilt phua.
"
11••
point and that the Court order severance for her,
out on all of them, well, could you conaide:c life without the
16
222
,...Y -- I 111.•11n, maybe the i111Plication was that th•y could be
.,..1thout the pOllllibility of ~rola, but I'm not ,ure th1t that
8
~002
no objection at the time that I .cemenrber.
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MS. JACKSON:
THB COURT:
"'
Yes, there vu.
that certainly no law 11.aying rhat rhat' s an inappropriate
Actually, there was sn objection at the
time, .,nd the Court didn't sustain it.
llaaieally, I think, and
question.
J
I could be vrong1 I think what at that poiat I did is I ina.y
5
have raphrued the quoation.
6
ot o generic,
I'm offended by it.
Unless we've fallen into some kind of a politically
5
But there waa an objection at th• time.
And I don't reaember any specific ob:)ection on that
grounds, just sort
corract black hole here, it just seeru tit-lor-tati it a • - to
be in the renge of queationa that were being asked ol any of
Ms. --
Ma. Jeckson 1:! absolutely correct.
IIR. OWENS,
1'he thin9 I remelllber ia l don't r...elllber
With regard to !tr. Oroll\'S issue, yoc taow, we're
any apecifica about whet vse wrong with that pa.cticula.c
10
"
11etti11q -- he' a created thie i'9ue sin~ the beginninq of the
And an objection does have to o. apecitic.
queationa.
A lot of queations wers 4aked hy the Dafen!le about
is ■ ua
12
the
13
made ac;mie comnents or where that c;:11111e up in th• c;:ase.
14
fraqaent queation.
15
of raca 1111 well as by the State by thoH that had
A question asked by Hr.
K■Fhart
It vsa
was a question of
lt' s kind of like a reverse race queation, but I haven't
10
trial.
"
there' ■
12
There hasn't baen any brief Eiied,
SDftl■
I -•n, i:f
law that aays that this requires a severance, I'd
lJ
like to see it.
14
were tiled bat ore the ceae.
Thar• were aeveral 180ticna tor 1ever11.nce that
1.5
ia3i.e in any of rhem.
■ om•
16
race.
17
heard law or thin9s that say you can't aak, would you favor
11
rortll •o we can analyze it.
1B
blacks or would you, you know, ba prajudiced aqainet blacta.
19
would muppcrt the poaition that ha'a rating here legally.
19
It 11.lao •eeme to be • fair question,
l6
If he' 11 got
This iuua vasn' t raised aa an
law, I think he need1 to bring that
I haven't tteard anything that
19
MS. JACK.sett:
20
At the bench a littl• whil• ago, thera "a• a eomiient
20
11.peclfically raiu, the
21
11111de by Defense Attorney Ma. Jack•on saying that that question
21
death qualified jury would be unfair to Ma. Archie and would
22
waen' t
22
create another proaecutor .l.n the courtro0111 sgainat us,
23
t.h• same race as the defendant• in this c;:••• whare that
23
24
que,tion would hava made "ny sen••·
24
during -- eveo during voir dira, there are in1inoationa that
25
Hr, Oram and his duty to Ha. Archie has to l!lllh which
25
■■ kad
of •nyone else, but there wa ■ n' t anyone alse of
And so I haven't aeen anythin9 that would indicate
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wall, in our brief, we actually
ia ■ u•
in our ffOOtion for
■ e-ranc;:•
that a
And I've had Mr, Walker correctly point oat that
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may -- I mean, maybe the implication was that they could be
jurors, the State could have gotten rid of 8 for preemptory
fair between life with the poadbility of parole and life
challenges, but I'd still be left with three of these.
without the possibility of parole, but I'm not sure that that
At this point, Your Honor, I would renew my motion
was clear as to all of them.
for severance, ask that Ms. Archie receive a mistrial at this
Do you see what I'm saying'?
MR. ORAM:
Yes,
THE COURT:
I do.
point and that the Court order severance for her.
THE COURT:
And I
have been talking about the guilt phase.
MR. KEPHART:
10
possibility of parole as well as life with the possibility of
10
11
pi,role.
11
Some it was, and they said, yes.
But some of these, it wasn't.
13
MR. ORAM;
14
THE COURT:
15
MR. ORAM:
And so
12
And, Your Honor, really my only
16
those jurors were kicked for cause because they couldn't give
17
dei!lth and that --
21
Right.
It was a death challenge.
We raised it under Batson on behalf of Ms
MS. JACKSON:
And on behalf of Mr. Walker.
MR. KEPHART:
Do we w11nt to make some 11rguments
15
first?
I was going to address the issues thst they raised.
17
was doing, and then I was going to have you address Mr. Oram' s
THE COURT:
Oh, l thought that was what Ms. Jackson
18
issue, but if you feel that's not what they did, then go ahead
MR. ORAM -- that's probably (inaudible.)
19
and address wh11t they did.
And also, Your Honor, I have marked those out.
20
1S
20
MR. ORAM:
Archie.
13
-- point -- my only point was each one of
Well, the Batson haan' t been raised
yet, Your Honor.
That's my recollection.
THE COURT:
Thank you, Mr. Oram.
It was nevel'. spilled
out on 1111 of them, well, could you consider life without the
12
All right.
Mr. Kephart, do you first want to address the Batson
Because I think -- I think they could
would rather look at the record to make absolutely SUl'.e of wha
But my recollection is we have 11
21
MR. KEPHART:
I want to take them one II time.
22
I'm telling the Court.
23
jurors, one, two, thI"ee, foUI" -- 11 jurors excused for cause
23
24
simply because they couldn't give death.
HR. KEPHART: And my response to th11t
"25 was no objection
at the time that I remember.
THE COURT:
22
The State could not -- if I had kept all of those
25
She
was objecting to a question.
You' re correct.
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Right.
I'm sorry.
You're correct.
You' re correct.
is that there
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HS. JACKSON;
THE COURT;
3
224
Yes, there was.
that certainly no law saying that that's 11n in11ppropriate
Actually, there was an objection at the
time, and the Court didn't sustain it.
que11tion.
Basically, I think, an
ground11,
I could be wrong; I think what at that point I did is I m10y
Unless we've fallen into some kind of a politically
have rephraaed the question.
But there was an objection at the time.
cori:cect black hole here, it just seems tit-for-tat; it seems t
Ha. -- Ms.
be in the range of questions that were being asked of any of
Jackson is absolutely correct.
Hr. Owens:
the juroi:cs.
The thing I remerober is I don't remember
With regard to Hr. Oram's issue, you know, we're
any specifics about what was wrong with that particular
10
questions.
And I don't remerober any specific objection on th11t
just sort: of II generic, I'm offended by it.
getting -- he's created this is11ue since the beginning of the
And an objection does have to be specific.
10
trial.
11
A lot of questions were asked by the Defense about
11
12
the hsue of race as well as by the State by those that had
12
13
made some comments or where that came up in the case.
13
like to see it.
14
frequent question.
14
were filed before the case.
15
issue in 11ny of them.
It was
A question asked by Hr. Kephe1rt was a question of
15
It's kind of like a reverse race question, but l haven'
There hasn't been any brief filed.
I mean, if
there's some law that says that this requires a severance, I'd
There were several motions for severance that
This issue wasn't raised as an
16
race.
17
hee1rd law or things that say you can't ask, would you favor
17
forth so we can analyze it.
18
blacks or would you, you know, be prejudiced against blacks.
18
would support the position that he's taking here legally.
19
It also seems to be e feir question.
19
16
If he's got some law,
HS. JACKSON:
l think he needs to bring that
I haven't heard anything that
Well, in our brief, we actually
20
At the bench a little while ego, there was a comment
20
specifically raise the issue in our motion for severance that
21
made by Defense Attorney Ms. Jackson saying that that question
21
death qualified jury would be unfair to Ma. Archie and would
22
wasn't asked of anyone else, but there wasn't anyone else of
22
cre11te another prosecutor in the courtroom agsinat us.
23
the same race e1s the defend1mts in this case where the1t
23
24
question would have made any sense.
24
during -- even during voir dire, there are insinuations that
25
Hr. Oram and his duty to Ms. Archie has to make which
25
And so r haven't seen anything that would indicate
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And I've had Mr. Walker correctly point out that
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implicates my client.
Our brief is replete with those
references, and they do.
aaying, ~Keep them separate; I'm concerned about Ms. Archie; b
It also contains that law and the
fair to Ms. Archie," and has wanted to be clear that he's
research.
advocating on Ms. Archie's behalf just as you, Mr. Bindrup,
MR. ORAM:
Yes,
and,
Your Honor
THE COURT:
Maybe, Ms. Jackson, you can point that
12
I'm {inaudible) of that.
that Mr. Walker -- that there's been a proof against Mr. Walke
THE COURT:
-- because --
or anything of that n11ture.
MR. OWENS:
They did raise that.
THE COURT:
Well, she's saying it contains the law
That's a separate
referencing -MS. JACKSON:
14
Ms. Jackson, didn't pick it up that he is in any way saying
MR. OWENS:
MS, JACKSON:
10
13
15
So, you know, if it's there, I certainly truthfully,
6
issue.
11
THE COURT:
Yes.
I didn't hear anything like that.
One good example is, h11ve you ever
heard of guilt -- and -- but don't get me wrong
11
THE COURT;
12
MS. JACKSON:
13
Guilt by association.
If l had Ms. Archie, I'd do the same
thing.
-- that Hs. Archie -- obviously cannot
raise that on Ms. Ai-chie's behalf, Ms. Jackson.
THE COURT:
I mean --
MS. JACKSON:
15
And that's part of why we make the
In terms of any insinuations that Mr. Oram is making
16
argument.
17
I think Mr. Oram obviously wants to make sure that the two are
17
attorney.
lB
kept sepan,te and wants to remind the jury that Ms. At"chie is
18
THE COURT:
He's doing a -- 8 good job.
19
not on trill! for po11sible death punishment, that she's in 11
19
MS. JACKSON:
He's doing a great job.
20
different regard.
20
16
21
22
I think that that's appropriate for Mr. Oram to do.
1\nd 1 haven't, to be honest with you, picked up that in any wa
he's going to have to at some point do that.
You know, and
And that was par
of why we want to at this point also renew our motion to sever
22
because Mr. Oram's instincts as a good defense attorney are
such that he almost can't help it.
he's displlraged Mr. Walker or tried to insinuate that somehow
23
24
Mr. Walker is mor-e culpable than Ms. Archie.
24
l mean, I think Mr. Oram has been oppropriate in
Any competent -- and Mr. Oram' s a darned good
21
23
25
25
MR. OWENS:
Your Honor, that was an issue that was
briefed, but that's an issue you look at over the course of a
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22B
trial.
And there was a lot of argument and briefs on thllt.
just think he's making a record here, but I'm not going to do
That's
separate issue.
that.
One that was raised by Mr. Oram, generically, that
In terms of the question Mr. Kephart asked regarding
was raised and briefed.
association, I don't think it sounded like any gang
Generically, that was raised in a brief what Mr. Ora
6
IH
advocating on Mr. Walker's behalf.
out to Mr. Owens --
10
226
is talking about generally.
implications or associates.
There have been defense that say
going to trial with a co-defendant where the death penalty is
friends,
7
being sought is unfair to them.
That was argued and decided.
But I
didn't pick up associates meant -- I think that's a valid
question.
There's a US Supreme Court on point; we cited that.
10
I mean, he could have said
family; he could have said it another way.
It's this numbers thing that he'
I mean, to me, ! think that, you know, to sentence
10
someone to death is a big deal and that there's lots of issues
11
talking about right now where he's adding up, we could hnve
11
relating to race.
12
kept this juror and we wouldn't.
12
impact on African Alllericans in this society, and l think peopl
13
been cited on that particular issue at this point.
13
are cognizant of that.
14
is appropriate to inquire about if a potential juror is going
15
to burdened by that or reluctant about that.
14
MR. ORAM:
There's no cases that have
And he's correct.
He's absolutely
15
correct.
16
the Supreme Court, and I will tell the Supreme Court, I
16
l7
objected.
17
1B
And in the event there's a conviction, I would go up
THE COURT:
Yeah.
He's making a record and we all
19
understand that, Hr. Owens.
20
inclined to grant a mistrial at this point.
21
to sever the two cases.
22
23
I mean, the Court, you know, isn'
It's not inclined
I don't think that there's any law.
Everybody appreciates why Mr. Oram would rather have
1B
19
It'll been studied that there's a disparate
And I think that that's something that
And so that's kind of what I interpreted Mr.
Kephart'a question as being relevant too.
HR. BINDRUP:
Yes, just on three jurors that I had
20
objected to and had chnllenges for cause.
21
they were all ruled against by Your Honor.
22
So that's denied.
Anything else on the record?
The first -- and
I just want to point out that Juror No. 53,
a non-death qualified jury for Ms. Archie, and that's a
23
24
strategic idea.
24
thought it was clear from his responses to me that he was
25
doesn't mean he's entitled to it as a matter of law.
25
certainly more pointed toward imposition of death penalty and
And it's a well-founded one, but that's
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And so I
Anthony Riccadonna, I asked Your Honor to evaluate him.
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was not open to life with possibility of parole.
But individuals like this, all three of these jurors
Addition.,.lly, I made the challenge today against
indicated enough --
Juror No. 103, Ms. --
THE COURT:
THE COURT:
Ibarra.
HR. BINDRUP:
-- Ibarra.
Hs. Ibarra indicated, and
MR. BINDRUP:
The -- yeah
couldn't have asked it more clearly, and she said that a
THE COURT:
Ms. Ibsri-a, Ms.
violent crime against somebody that they lose their life that
MR. BINDRUP:
with the possibility of parole was not an option.
THE COURT:
There was one other juror, Juror No. BJ, Mr. Trimas
10
seated in Juror No.
11
same thing.
12
possibility of p11role
13
14
What's the third one?
You didn't say th
third one or did you?
(inaudible.)
And he said basically the
He said, ~1 have a problem with life with the
He's the one that volunteered th11t.
The c11se of Wainwright vs. Whitt(phonetic) looked --
when you look et certain specific language on that case, you
15
need the question to be asked does the juror's view
16
substantially impair their ability to be fair during
17
just the trial phase -- but the penalty phase as well.
Ms. Ibai-ra snd Trimas.
Oh, Mr. Trimas.
MR. BINDRUP:
10
11
first-degree murder situation.
of life with possibility of parole.
14
,s
We open to fair consideration
As such, I think my challenge should have been
granted and they should not have been seated.
THE COURT:
Does the State w11nt to put anything on
and no
16
18
And the Supreme Court indicated that, ~Extremeness o
"
19
absolutest views need not be proved with unmistakable clarify
19
is that I don't think that that's an adherence to the
20
in order to disqualify.#
20
Witherspoon (inaudible)
then they might be subject to being excused for cause.
18
Anyway,
and when you look at their answers, clearly they were not in a
12
13
That's right.
Yes, Mr. Trimas, and Ric --
the record?
MR. OWENS:
Your Hanoi-, the comment that I made at
the Bench, I don't think I put on the record, but msybe I hsve
Yeah, if there's extreme position,
21
It doesn't -- and I dispute the prosecution -- they
21
22
continue to say at -- when we' re having sidebars thst if they
22
23
don't absolutely say this or absolutely say that, then if
23
question numerous time,.; and at one point s11ying, I don't think
24
they're just open to one extreme or the other, that's 1111 that
24
that l could give, you know, life with the possibility of
25
they need, 11nd they okay.
25
parole, and then reverse themselves again on that i11sue, I
But for them to say after being asked the same
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don't think that shows an extremist position.
but it wasn't solely on Mr. Owens' queationing of him.
The Witherspoon case itself says, ~They just have to
2
offered that, in my review, on your questioning.
say that they are willing to consider all the penalties
said, yeah, he stands by what he said in the questionnaire, bu
provided by State law and be not -- and not be irrevocably
then later on, he also says, well, I would consider all four
committed before the trials begin to vote against the penalty
of death regardless of the facts and circU111stances that might
7
He
At firat, he
emerge in the course of these proceedings.#
punishments.
6
And that's the
test.
And it says really that it' 5 inappropriate to ask
I don't remember exactly what the others said, but
felt sati,.;fied that they said
and that's why I asked him,
would you, you know, consider
everybody' a all hung up on
that word, what does consider mean.
10
them any other question or apply any other test other than ths
10
11
automatically voting for or against the death penalty.
11
raise youi- hand and vote for life with the possibility of
12
parole,# and they said, -Yes.~
12
This thing about the sand (phonetic,) you keep
I went back and I said, ~could you pick -- could you
13
feeding them facts and more facts and more facts and just pain
13
14
them into a corner 11nd say now that that',.; the scenario, you
14
there wasn't enough there I would just note on the record.
15
wouldn't be able to give him life with the possibility of
15
a number of other people were excused for cause that apparent!
16
parole.
16
the State objects to but didn't put down on the record.
17
And if you asked them one at a time, and one of them
18
says that and then they get excused for cause, that's not the
19
test J.n either Whitt or Witherspoon.
So, you know, I think that, at least for cause, that
17
Anything else?
"
MS. JACKSON:
Yes, Your Honor.
An
For the record, in
19
light of the Court denying the motion for mistrial on beh11lf
t mean, I reviewed the transcript
20
Mr. Walker, we'd like to lodge a formal objection to
21
of Mr. Riccadonna, I believe, and reviewing that -- I mean, th
21
Mr. Henderson's dismissal under Batson vs. Kentucky,
22
transcript, the record, speaks for itself.
22
like to hear the State's race neutral reason for releasing thi
prospective juror.
20
THE COURT:
Yeah.
But reviewing that
23
I thought it was pretty clear that he said, ~1 would consider
23
24
all four punishments.#
24
THE COURT:
Thank you.
25
MR. ORAM:
Join for Ms. Archie.
25
And t think you said this at the bench, Mr. Bindi-up,
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233
MR. KEPHART:
It's our undentanding that the Court
234
MR. KEPHART:
has to make a finding that the State systematically excluded
In retrospect, we do believe that
that's what the law is, but however, I am willing to put on th
race from the proceedings, and l don't think that they've been
record, just so you know that they get reviewed, in this
able to -- the Defense has not shown any evidence of that.
particular case with regards to Mr. Henderson, if you will
THE COURT:
Here's the problem with that, and I' 11
h11ve to look at Batson 11gain.
recell, he was one of 18 brothers or family members, that he's
I thought that prior to that,
one of three that were not incarcerated, been in prison.
end I could be -- I could be not remembering this correctly --
He also just hsd a nephew murdered that no one
hed to stete II rece neutr .. 1 reason.
inve11tigated and he -- I even used the word that it appeared
The problem is in this particular case, you've only
when he talked he wa11 angry about the fact that it wasn't
10
got one African American, so ho":' do you systematically show
10
11
systematic exclusion when you've only got one of them; you kno
11
12
what I mean?
12
investigate because his nephew was
13
extensively about his nephew being a gang member and that he
u
Obviously, if now, they kick the next remaining two
investigated.
He made assumptions that the police didn't
gang member.
He talked
14
apparent African Americans, then there might be more there.
14
was a notorious gang member in Washington and that he wa11 clos
15
But I' 11 have to look at it again to see if they have to make
15
-- he was close to him.
16
that first showing.
16
n
lS
But again, you know, how do you -- how do you 11how
systeinatic exclusion when you've only got one person?
19
20
UNIDENTIFIED SPEAKER:
(Inaudible) 100 percent,
Your Honor.
THE COURT:
That's what I'm saying.
22
MR. OWENS:
It would be (inaudible.)
23
THE COURT:
I mean it cuts both ways.
I mean --
They c8n't
24
show it, and what I'm saying is we don't know what your
25
motivation is when there's just one.
He said -- I highlighted in the transcript when I
17
read through it again.
18
when I w11s trying to ask him about -- about his position on th
I think there was five separate times
19
death penalty, and he sllid, I believe five different times,
20
that he didn't think he could do it.
21
he did not -- not sure to -- he was not sure if he could vote
22
to hsve someone else's life taken.
23
24
And his position was tha
So in with regards to what Hr. Bindrup has been
posing about individuals not being able to consider the -THE COURT:
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Life with or a term of years.
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MR. KEPHART:
-- life with the possibility of parole
and challenging these individuals.
But I think he may have used the descriptive word that he was
A portion of that is
angry or disappointed or 11omething like that, but I agree with
similar to his position on the death penalty, this man, Mr.
you, Ms. Jackson, he did not display any anger.
Henderson's position on the death penalty, that he would not
MS. JACKSON:
commit to us on that.
6
that with me.
Certainly he said that he would consider it, but we
people, we do -- we can exhibit self control.
for us b11sed on
angry or other adjectives that he tends to use.
and reasons noted with regards to his -- hi
all been incal'.cerated.
11
THE COURT:
12
HS. JACKSON:
13
who was allowed to (inaudible.)
1'
15
Anything else?
THE COURT:
Yes.
We had a juror -- we had someone
I'm sorry.
16
MS. JACKSON;
There's someone who's actually
17
{insudible.)
There's 11till a guy on the jury who's occasion
18
whose brother burned down a house.
And the record cannot pick up Mr. Henderson's
19
Well, Ms. Jackson, if it's any
THE COURT:
consolation, Mr. Kephart thinks I'm 8ngry all the time too, so
11
I thought it was just -- I thought it was just a female thing.
12
MS. JACKSON:
13
submit it.
15
know,
THE COURT:
All right.
you know, if I were prosecuting the case might make me
concerned so, you know,
18
that, you know, obviously you can make another motion when we
19
see what they
do --
21
angry
21
MS. JACKSON;
22
as -- was not something that was ever displayed in this
22
THE COURT:
23
courtl'.oom, I would beg to differ,
23
any anger.
Well, I mean, I think, you
17
20
ZS
Nevertheless, we will
16
demeanor and/or tone, but I would dare say that he (inaudible)
COURT:Aould concur with that.
It may be.
I picked up myself on some things that he said, which,
20
24
We're not all
10
I csn't hear you, Ms.
Jackson.
He does
that, 11nd I would like for the record to reflect that all blac
feel that based on that, that he would not make a good juror
past and his relationships with members of his family that had
10
Mr. Kephart tends to do that.
He says I'm angry, I'm upset, I'm this or I'm
I'm going to deny it, Batson.
I think
Thank you.
-- down the road.
I had something else to say, but I don't remember
I didn't see
24
what it was.
though~was very calm and articulate, in fact
25
before 6:00.
I feel like I'm leaving so early today/ it's
'_,.,
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237
Oh, ! know what I was going to 11ay.
They've only
done thcee challenges, so maybe they will exclude the
arsonist's brother.
•
Wasn't that brilliance worth waiting for?
(Whereupon, the proceedings adjourned at 5:46 p.m.)
10
11
12
13
H
15
16
"
18
"
20
21
22
23
,.
25
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APPENDIX E
Recorder’s Transcript of Hearing Re: Jury Voir Dire,
State v. Waker, District Court, Clark County, Nevada,
Case No. C197420 (January 2, 2007)
•
•
1
r,r; "'":' i~ ,:J;~[:r,;i fOl!li?f'i!"
DISTRICT COURT
CLARK COUNTY, NEVADA . ·.·· ... )W O3 1°0
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<,csL~- -~~ui;::ii'IUI I
ORIGINAL
THE STATE OF NEVADA,
Plaintiff,
)
)
vs.
JAMES RAY EARL WALKER, MYRDUS
ARCHIE, aka MARY SMITH,
Defendants.
____________________
CASE NO. Cl96420
DEPT. XXI
)
)
)
)
)
)
)
BEFORE THE HONORABLE VALERIE ADAIR, DISTRICT COURT JUDGE
JANUARY 2, 2007
RECORDER'S TRANSCRIPT OF HEARING RE:
JURY VOIR DIRE
APPEARANCES:
FOR THE STATE:
CHRIS J. OWENS, ESQ.
Chief Deputy District Attorney
BILL KEPHART, ESQ.
Chief Deputy District Attorney
FOR DEFENDANT ARCHIE:
FOR DEFENDANT WALKER:
CHRISTOPHER R. ORAM, ESQ.
SCOTT L. BINDRUP, ESQ.
Special Public Defender
ALZORA B. JACKSON, ESQ.
Special Public Defender
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RECORDED BY:
JANIE OLSEN, COURT RECORDER
TRANSCRIBED BY:
LISA ZINGALE, LEX REPORTING SERVICES
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•
•
1
2
THE COURT:
All right.
Thank you.
217
The State may
question prospective juror number 12.
MR. KEPHART:
3
Judge, if Mr. Oram wants to go first
4
right now so we won't forget him, I mean he's more than
5
likely -- more than welcome --
6
MR. ORAM:
7
MR. KEPHART:
8
Yeah sure.
I'll go first.
I'm -- it's up to you, Your Honor.
have no problem with that.
THE COURT:
9
Officer Glasper, would you go back and
10
see what that juror wants?
11
graciously asked that you go first.
12
13
with Mr. Oram going first?
MR. BINDRUP:
15
THE COURT:
Not just this one occasion.
All right.
Consider it graciousness from
you as well, Mr. Oram.
17
18
All right Mr. Oram, Mr. Kephart has
Ms. Jackson, Mr. Bindrup, do you have any problem
14
16
MR. ORAM:
Yes, Your Honor.
How are you
Mr. Henderson?
19
PROSPECTIVE JUROR BADGE NO. 018:
20
MR. ORAM:
Good.
You've heard all these questions over and
21
over.
22
being talked about in here?
You have any particular problem with anything that's
23
PROSPECTIVE JUROR BADGE NO. 018:
24
MR. ORAM:
25
I
No.
You could consider everything that's being
talked about, all forms of punishment; is that right?
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1
PROSPECTIVE JUROR BADGE NO. 018:
2
MR. ORAM:
3
nephew was -- was murdered.
Okay.
PROSPECTIVE JUROR BADGE NO. 018:
5
MR. ORAM:
6
PROSPECTIVE JUROR BADGE NO. 018:
four years, I think.
8
MR. ORAM:
9
10
11
bit about it?
Yes.
One concern I had was that your
4
7
218
Yes.
How long ago was that, sir?
It's been about
The fact that -- may I ask just a little
How was your nephew murdered?
PROSPECTIVE JUROR BADGE NO. 018:
He was shot
multiple times.
12
MR. ORAM:
Was it robbery or --
13
PROSPECTIVE JUROR BADGE NO. 018:
No.
It was --
14
still being classified as gang related.
15
got in the middle of an altercation, and he and a friend was
16
were gunned down in the process.
17
18
MR. ORAM:
He was at an event,
Is there anything about that event, sir
that would cause you to feel irritation with Ms. Archie?
19
PROSPECTIVE JUROR BADGE NO. 018:
20
MR. ORAM:
21
do it that, right?
You realize she had obviously nothing to
22
PROSPECTIVE JUROR BADGE NO. 018:
23
MR. ORAM:
24
25
No.
Right.
You'd consider the facts of this case in
determining what your decision would be; is that right?
PROSPECTIVE JUROR BADGE NO. 018:
Yes.
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•
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MR. ORAM:
1
219
You said that you thought that people who
2
get in trouble often have become that way because of their
3
childhood?
4
5
6
7
8
9
10
PROSPECTIVE JUROR BADGE NO. 018:
but not always it can
MR. ORAM:
it can play a part.
And that's not always blame, is it?
Some
people just go wrong?
PROSPECTIVE JUROR BADGE NO. 018:
Some people just go
wrong, correct.
MR. ORAM:
You've heard this question; I've asked I
11
think about every juror.
12
consideration to Ms. Archie?
Can you give separate and equal
13
PROSPECTIVE JUROR BADGE NO. 018:
14
MR. ORAM:
15
I think sometimes,
Yes.
You -- you understand what I'm saying by
that right?
16
PROSPECTIVE JUROR BADGE NO. 018:
17
MR. ORAM:
Okay.
Yes.
Although there's not going to be
18
two separate trials I want to make sure that I get a jury
19
that's going to consider her case and how the facts that you
20
hear from the witness stand, how they apply only to her, and
21
you'll do that?
22
PROSPECTIVE JUROR BADGE NO. 018:
23
MR. ORAM:
Okay.
Yes.
You wouldn't let somebody else sit
24
there and say well some of the evidence is against somebody
25
else so we have to apply.
You wouldn't do that, you'd be like,
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1
how it applies to Ms. Archie?
2
PROSPECTIVE JUROR BADGE NO. 018:
3
MR. ORAM:
4
220
Okay.
That is correct.
Is there any reason why you
couldn't give her a fair trial?
5
PROSPECTIVE JUROR BADGE NO. 101902253 13-0018:
6
MR. ORAM:
7
You can look at her and promise her a fair
trial?
8
PROSPECTIVE JUROR BADGE NO. 018:
9
MR. ORAM:
10
Yes.
If they fail to prove it, will you come in
this courtroom and say not guilty?
11
PROSPECTIVE JUROR BADGE NO. 018:
12
MR. ORAM:
Thank you, sir.
13
THE COURT:
All right.
14
Ms. Jackson go next.
15
No.
MS. JACKSON:
Yes.
Pass for cause.
We'll let Mr. Bindrup or
Mr. Henderson, good afternoon, sir.
16
are a little bit differently positioned, well, a lot
17
differently than Mr. Oram, because the death penalty being
18
table with reference my client and that a causes me to have
19
some concern about your nephew, sir.
20
We
Just to cut to the chase, I mean, I'm very sorry
21
first of all that this happened.
22
So this is a nephew that you see on a regular basis or someone
23
that perhaps lived out of state, sir?
24
25
And this is four years ago?
PROSPECTIVE JUROR BADGE NO. 018:
They lived out of
state, but we grew up together.
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221
1
MS. JACKSON:
2
PROSPECTIVE JUROR BADGE NO. 018:
We were like
PROSPECTIVE JUROR BADGE NO. 018:
And -- uncle and
3
brothers.
4
5
nephew.
MS. JACKSON:
6
7
You grew up together.
Okay.
So even though he's nephew, he's
more your age and -- then you're --
8
PROSPECTIVE JUROR BADGE NO. 018:
9
MS. JACKSON:
10
And there's ever been anyone charged
or --
11
PROSPECTIVE JUROR BADGE NO. 018:
12
MS. JACKSON:
13
That's correct.
No.
-- with this offense.
What state was
it in, sir?
14
PROSPECTIVE JUROR BADGE NO. 018:
15
MS. JACKSON:
16
PROSPECTIVE JUROR BADGE NO. 018:
17
MS. JACKSON:
Washington.
How old was your nephew, sir?
Okay.
He was 28.
Is there anything about that
18
tragedy that would cause you to -- to touch on your ability to
19
be a fair and impartial juror as it relates to Mr. Walker?
20
There is no shooting alleged to have occurred in this case if
21
that helps you at all.
22
PROSPECTIVE JUROR BADGE NO. 018:
23
MS. JACKSON:
You can?
I can be fair,
You sure of that, sir?
yes.
And
24
you understand -- you've heard me ask at least, I don't know,
25
12 people before you about two things that I need to ask you
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222
1
about as it relates to the first phase, actually three; the
2
number of charges, can you look at each charge individually and
3
evaluate that charge by the beyond a reasonable doubt standard?
4
PROSPECTIVE JUROR BADGE NO. 018:
5
MS. JACKSON:
Yes I can.
And the presumption of innocence?
You
6
know I think Mr. Kephart's example is the best one.
7
were asked to go back and vote right now you really wouldn't
8
have a choice but to check not guilty, because you don't have
9
any evidence.
10
PROSPECTIVE JUROR BADGE NO. 018:
11
MS. JACKSON:
If you all
That is correct.
And the Fifth Amendment right?
There
12
are some people who have told me and they mean it, unless you
13
take the stand and tell me what happened,
14
blocked from hearing anything that your attorney said.
15
one of those people, sir?
I'm just totally
PROSPECTIVE JUROR BADGE NO. 018:
16
17
I wouldn't (inaudible).
18
speak, that's -- that's his right.
19
MS. JACKSON:
No, no.
Are you
I would
If -- if he exercised his right not to
In other words, you can still hold the
20
State to their burden, which is the State has the burden of
21
proof beyond a reasonable doubt.
22
a burden; and you're okay with that?
Mr. Walker, now we don't have
23
PROSPECTIVE JUROR BADGE NO. 018:
24
MS. JACKSON:
25
Thank you,
sir.
That's correct.
Your Honor, we pass
for cause.
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•
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1
2
THE COURT:
Thank you Ms. Jackson.
Mr. Kephart.
MR. KEPHART:
3
4
All right.
223
unorthodox.
Thank you, Your Honor. This is kind of
It's --
5
THE COURT:
It was your idea.
6
MR. KEPHART:
I know.
Bound to do it in the trial.
7
What Ms. Jackson was asking about I had some questions too.
8
Now, you said that -- were you actually a witness to -- to the
9
shooting of your -- of your nephew?
10
PROSPECTIVE JUROR BADGE NO. 018:
11
MR. KEPHART:
12
Okay.
No.
Have you ever been a witness to
a crime?
13
PROSPECTIVE JUROR BADGE NO. 018:
14
MR. KEPHART:
Okay.
No.
You've never had to come in and
15
testify in a courtroom or anything like that before?
16
PROSPECTIVE JUROR BADGE NO. 018:
17
MR. KEPHART:
Okay.
No.
Did you do anything personally
18
try to motivate the authorities on your -- on your nephew's
19
case?
20
PROSPECTIVE JUROR BADGE NO. 018:
No.
At the time I
21
was -- I believe I was -- yeah, still living in Kansas when it
22
happened.
23
could do.
24
25
So I flew back to Seattle so there's not a whole I
MR. KEPHART:
Okay.
What about your family?
I
mean -- the reason why ask it is that I sense a little bit of
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224
1
a -- a little bit of anger in your answer.
2
and that, you know, and quite honestly I'd been surprised if
3
there wasn't any that when a crime occurs and a crime of that
4
nature and nothing happens.
Did -- is -- is your family still pursuing it or --
5
6
And that's fair,
or is there anybody else pursuing it?
PROSPECTIVE JUROR BADGE NO. 018:
7
My sister's still
8
pursuing it.
I think the -- the anger that you see if you can
9
call it anger -- my nephew was a former gang member.
10
MR. KEPHART:
Okay.
11
PROSPECTIVE JUROR BADGE NO. 018:
I believe because
12
of that he was trying to change his life around, but the fact
13
that it happened to be gang-related when he was gunned down
14
he was off the street and he, you know, he did bad things
15
himself I'm sure back in his day when he was gang banging
16
and --
17
MR. KEPHART:
Okay.
18
PROSPECTIVE JUROR BADGE NO. 018:
-- so it was sort
19
of a thing that I just felt like they really didn't want to
20
deal with that.
21
22
23
MR. KEPHART:
So maybe they felt like something was
already solved?
PROSPECTIVE JUROR BADGE NO. 018:
24
necessarily.
25
was a very big name in Seattle, Washington.
No, not
My nephew was pretty notorious and he was -- he
And so when he
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•
•
225
1
passed away -- was murdered, there was one less banger they had
2
to worry about.
MR. KEPHART:
3
I got you, I got you.
Do you know if
4
there was any type of information that would support
5
prosecuting somebody?
6
anything like that or -- or is everyone kind of clamming up to
7
it?
PROSPECTIVE JUROR BADGE NO. 018:
8
9
Do they have like eyewitnesses to it or
clammed up.
A lot of people
That typically happens when it's gang related.
10
You know, people like to take care of it on their own, so to
11
speak.
MR. KEPHART:
12
With that experience, my next question
is there anything about experience that you
13
that is -- is
14
had, I would say with law enforcement or the lack of law
15
enforcement that would give you some concerns with the State in
16
this case?
17
PROSPECTIVE JUROR BADGE NO. 018:
18
brother actually.is a highway patrolman and -- and --
19
MR. KEPHART:
20
PROSPECTIVE JUROR BADGE NO. 018:
21
MR. KEPHART:
22
PROSPECTIVE JUROR BADGE NO. 018:
No.
No, my -- my
Here in Nevada?
No, in Washington.
Okay.
And so hey, I don't
23
have a problem with, you know authority or the officers.
24
have a problem with the way that case was handled, because
25
nothing was ever done.
I
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•
•
1
MR. KEPHART:
2
PROSPECTIVE JUROR BADGE NO. 018:
3
226
Okay.
Sort of stuffed
under the rug.
4
MR. KEPHART:
Okay.
Now,
in that questionnaire where
5
it asks about whether or not yourself or friends or family have
6
ever been charged with a crime, are we talking about your
7
nephew?
8
9
10
PROSPECTIVE JUROR BADGE NO. 018:
My nephew -- I have
several family members that have been charged and have been
incarcerated or are incarcerated right now.
11
MR. KEPHART:
Okay.
You said they have been
12
incarcerated, are incarcerated, and that you have been
13
incarcerated?
14
15
MR. KEPHART:
Is there anything
Okay.
All right.
PROSPECTIVE JUROR BADGE NO. 018:
No.
You know, and
in most cases
20
21
I said family
about their incarceration that give you concern with the State?
18
19
No.
members.
16
17
PROSPECTIVE JUROR BADGE NO. 018:
MR. KEPHART:
You understand why we have to ask that
question?
22
PROSPECTIVE JUROR BADGE NO. 018:
23
MR. KEPHART:
Okay.
Sure.
You know, we don't want come in
24
here have somebody that -- that has a problem with us right off
25
the bat, because of something that's happened that had nothing
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•
•
1
to do with this case.
2
agree with that?
227
You know, people hold grudges; do you
3
PROSPECTIVE JUROR BADGE NO. 018:
4
people hold judges (sic), but I -- I think
5
at it in situations individually.
6
MR. KEPHART:
Okay.
That's good.
I do agree that
I'm going to look
Now, in this case
7
in the one of the questions it talks about whether or not
8
you've already formed an opinion about this case and you
9
answered yes.
And do you remember the answer that you gave?
10
PROSPECTIVE JUROR BADGE NO. 018:
11
MR. KEPHART:
Okay.
Yes,
I do.
You basically said that the two
12
individuals are charged with a crime and you believe that their
13
possible defense would be their past childhood experiences led
14
them to a life of crime because of a drug habit, so forth and
15
so on.
Is that based on what you were to glean out of this?
PROSPECTIVE JUROR BADGE NO. 018:
16
Somewhat and it was
17
actually,
18
kind of reading the questionnaire that if there was a
19
conviction, that would be the possible defense.
20
I guess I was looking forward in the statement just
MR. KEPHART:
Okay.
Now, actually for,
you know, a
21
defense to a murder or something that -- that -- I'm not going
22
to into an argument with over legalese or whatever, but those
23
are more mitigators as to the type of sentence.
24
Ms. Jackson talk about it.
25
And you heard
And we've talked a little bit about it, about
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1
something that you need to look at, both mitigators and
2
aggravators in the event that they're found guilty of first-
3
degree murder.
4
And then with regards to your position on the death
5
penalty, do you recall -- do you recall what you had indicated
6
as to whether or not you felt that it was a proper type of
7
sentence or not?
8
PROSPECTIVE JUROR BADGE NO. 018:
What I recall is
9
that I can tell you out right that in certain situations I am
10
for the death penalty, but I am not sure if I were on a jury
11
and I had to, you know, have someone else's life in my hand,
12
whether or not I could do it.
13
I'm not against the death penalty.
14
MR. KEPHART:
15
PROSPECTIVE JUROR BADGE NO. 018:
16
17
I -- I don't know for sure.
But
Okay.
In some cases, I'm
for it, but I'm not sure I could do -MR. KEPHART:
Okay.
I'm going to ask you something
18
in the end and hopefully you don't take this wrong, but I feel
19
it's very important, is that throughout the questionnaire it
20
it -- it's pretty obvious that -- that -- that the questions
21
were basically telling you that we're dealing with two African-
22
Americans here, one African-American in -- in the
23
questionnaire.
24
25
And you, so far, in this jury panel have been the
first African-American that we've been able to talk to.
And
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1
I -- my concern is that in the event that your chosen as a
2
juror and you find the defendant, Mr. Walker guilty of first-
3
degree murder, we are going to be asking that you sentence him
4
to death and we're going to present evidence to support that.
5
Do you find that because you're an African-American
6
male that you -- you may have some ridicule coming to you from
7
your -- from your associates, other African-Americans, that you
8
voted to put another African-American on death row?
9
MR. BINDRUP:
Objection, that's improper.
10
MR. KEPHART:
I don't think it's improper at all.
11
THE COURT:
12
MR. KEPHART:
I'm in a situation --
13
MR. BINDRUP:
Pressure from the community, which is
14
17
Well,
not an appropriate form of inquiry.
15
16
It's --
MR. KEPHART:
His own personal experiences, Your
THE COURT:
But would feel in anyway constrained, by
Honor.
18
virtue of your family members or your friends or anything like
19
that, to vote for the death penalty if you felt, after you've
20
heard all of the evidence in this case, the guilt phase, and --
21
and assuming it gets to that in the penalty phase, if you felt
22
that that was an appropriate sentence, would you feel in anyway
23
hindered about rendering sentence knowing that
24
Mr. Walker is an African-American?
25
PROSPECTIVE JUROR BADGE NO. 018:
For me, race would
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1
have nothing to do with it, but again I'm not sure if I were on
2
the jury, if I could take someone's life.
3
TH8 COURT:
4
PROSP8CTIV8 JUROR BADG8 NO. 018:
5
And that -To be
responsible -TH8 COURT:
6
is regardless of race, whether it was
7
a Hispanic or a -- an Asian and or what have you; is that
8
right?
9
MR. K8PHART:
10
TH8 COURT:
11
MR. K8PHART:
Yeah, he said yes, Your Honor.
12
TH8 COURT:
It's just because it's recorded.
13
right.
Is that yes?
All
Thank you.
14
15
Okay.
MR. K8PHART:
Then in the next light, you know to sit
and consider all the punishments, that's one thing.
16
We've said that and, you know it's easy to talk,
17
stand here and talk about it, but to actually find yourself
18
doing it is the -- I think question that maybe you're dealing
19
with here.
20
probably already have and you see the defendant here.
21
human being.
22
I -- I want you to look across the room and you
He's a
He's living and breathing.
And there may be come a point in time where you may
23
be asked to give him a sentence of death.
And, you know to
24
say, yeah, I can consider, but to actually do it; do you think
25
you could do that?
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PROSPECTIVE JUROR BADGE NO. 018:
1
231
That's the part
2
that I grapple with because I'm -- I'm not sure.
3
I look at certain cases.
4
something happened to them, where it was a case where they were
5
murdered by someone who had done it multiple times.
6
probably want that person to die.
7
MR. KEPHART:
8
PROSPECTIVE JUROR BADGE NO. 018:
9
I have two kids.
I mean, I
I love my kids.
I would
Okay.
I would ask maybe
ask to do it myself.
10
MR. KEPHART:
11
PROSPECTIVE JUROR BADGE NO. 018:
Okay.
But in this
12
situation, I guess I'd have to hear all the facts, but again,
13
you know, I can say that you now with emotion about my kids,
14
but maybe when it actually came right down to it, maybe I
15
actually couldn't.
16
MR. KEPHART:
17
PROSPECTIVE JUROR BADGE NO. 018:
18
19
If
Yeah.
I also -- I'm not
sure -MR. KEPHART:
Okay.
Well, see that's where we're --
20
where we're at odds maybe in some regards is that -- is that,
21
you know the law requires that you -- that you consider the
22
types of punishments that are here.
23
And consider not only means that you would consider
24
and look at them, but there might be a point in time where you
25
have to impose that or you feel that you need to impose that.
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And the law doesn't say that you have to.
2
correct.
232
Ms. Jackson's
I mean, no, you're never required, but do you think
3
4
it's fair to the State that you may be of the state of mind
5
that yeah,
6
give it.
I can consider it, but I don't know if I could ever
7
MR. BINDRUP:
8
whether they could consider it.
9
THE COURT:
Objection, Your Honor.
Well,
The standard is
He's already asked that.
I mean, when you see consider,
10
would you keep an open my and is that a possible -- assuming
11
you know,
12
proof, you know, get instructions on what you need to do.
13
know how all that works later.
14
could -- when we see consider, not just look at, but
15
meaningfully consider?
16
MR. KEPHART:
the evidence is there a they meet their burden of
You
Is that something that you
And before he answers that,
Your Honor
17
I want to follow it up with question number 48 and this is why,
18
you said -- the question is:
19
religious views?''
20
the right to decide whether a man should live or die."
21
pretty final.
22
23
24
25
"Do you hold strong moral
And your answer is: "I believe only God has
MS. yACKSON:
Your Honor, correction, he says,
believe on, O-N God, he does not say only.
MR. KEPHART:
I took it has only.
That's
Well, maybe -- yeah,
I
It says on.
I believe on God?
I believe on God has the right to decide
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whether a man should live or die.
2
only God?
233
Should it read I believe
3
PROSPECTIVE JUROR BADGE NO. 018:
4
MR. KEPHART:
5
PROSPECTIVE JUROR BADGE NO. 018:
I believe in God.
Okay.
And -- I think what
6
I was trying to say that it's not my place to decide whether a
7
man should live or die.
8
MR. KEPHART:
9
we -- I do.
Okay.
You know I respect that.
I --
And that -- that's getting at is that if you have
10
that -- that belief, then could you truly ever consider giving
11
an individual the death sentence?
PROSPECTIVE JUROR BADGE NO. 018:
12
I think in a
13
situation where I've been asked to do a duty, I mean, it's a
14
hard question because I'm not against the death penalty, but
15
again I can't honestly tell you with conviction that if three
16
weeks from now I have to walk in that room and render that, I'm
17
not sure.
I just don't know.
I don't know all the facts yet.
18
So it's an unknown
19
for me.
20
have strong emotions about it because I've watched someone die,
21
so you know, it's just -- it's a strong emotion for me.
22
Like I said it's a lot to ask of a person.
MR. KEPHART:
Okay.
I mean, I
Now, with regards to your fellow
23
jurors sitting next to you, Ms. Jackson asked him and seemed to
24
be a little upset with him about the fact that he
25
MS. JACKSON:
Objection, said the characterization of
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my question.
2
3
234
THE COURT:
That sustained.
That's sustained Ms.
Jackson.
4
MR. KEPHART:
As to the question about number 51 with
5
regards that his answer in whether or not he would consider
6
background and mitigating circumstances such as defendant's
7
mental state and so forth and so on, he put somewhat, you put
8
not sure.
9
the circumstances?
PROSPECTIVE JUROR BADGE NO. 018:
10
11
So you don't even think you'd be able to consider
Can you read the
question?
MR. KEPHART:
12
Okay.
It says in reaching a verdict in
13
any penalty phase you must consider defendant's background.
14
That is, mitigating circumstances such as defendant's mental
15
state, childhood experiences, ingestion of drugs, alcohol
16
abuse,
17
must also consider aggravating circumstances.
18
19
20
lack of sleep, prior physical abuse, and neglect.
You
Do you feel you would consider these types of factors
and circumstances?
And you said, not sure.
PROSPECTIVE JUROR BADGE NO. 018:
I think what I
21
meant by that was I looked at the question a little bit.
22
grew up with 18 kids in my family.
23
greatest place.
I
And we didn't live in the
24
Like I said, a lot of them have been incarcerated.
25
grew up a little bit different even though we grew up in the
I
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1
same household.
2
things, although are important, I don't know how much they
3
weigh in to this, but at the same time I understand
4
understand why my nephew was a gang banger, because of the way
5
we grew up and for some people sometimes you have to find a way
6
out.
7
how I chose my avenue.
My life went a different direction, so those
That was his way out.
Mine was through sports.
So although I do understand,
8
I
That's
I mean I grew up -- I
9
could be very different.
Some of my family members are.
10
went a different route.
I was
11
know.
12
understand both sides.
13
maybe I was lucky,
I
I don't
But I think when I said maybe it's because I kind of
I mean, out of 12 boys in my family, there's only
14
three of us that have never been in prison so, and I'm one of
15
them.
16
environment where it's -- it's hostile and you've got to join a
17
gang or get beat up, bullets are flying or whatever the
18
circumstances may be, you've got to pick a path and hit the
19
road.
So but, at the same time, when you grow in an
And sports somewhat protected me from it.
20
So it's -I mean,
21
it's difficult because I think I understand sometimes.
22
it depends on where you -- what side of the street you grew up
23
on.
24
MR. KEPHART:
Okay.
25
PROSPECTIVE JUROR BADGE NO. 018:
But at the same
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1
time, I also know that I picked a different path.
2
it is possible, but -- but you can't discount it either until
3
you've been in those shoes.
4
MR. KEPHART:
And so that
In this particular case, do you
5
perceive a circumstance in which you believe that you could
6
consider and vote for the death sentence?
7
PROSPECTIVE JUROR BADGE NO. 018:
8
9
the question?
Can you rephrase
I'm not sure I understand you?
MR. KEPHART:
In this particular case, if you're
10
chosen as a juror, and you're sitting in the jury, and the
11
circumstances develop; do you believe that you could impose a
12
death sentence on Mr. Walker if the circumstances are correct
13
or what you want?
14
MS. JACKSON:
Objection, Your Honor.
He doesn't have
15
to impose a death -- he does not have to impose a death
16
sentence under any set of circumstances.
17
MR. KEPHART:
Vote -- vote for the death sentence.
18
MS. JACKSON:
It misstates the law.
19
THE COURT:
20
MR. KEPHART:
21
All right.
Well, I can -- I can ask him if he'd
vote for the death sentence.
22
MR. BINDRUP:
No.
23
THE COURT:
I mean
24
MR. KEPHART:
25
circumstance that he could do it.
I'm asking him if he -- if there's any
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THE COURT:
237
Well -- I, Mr. Kephart,
I understand what
2
you're asking.
Basically I think the question is, are there
3
any, and don't tell his they are, but is there any set of
4
circumstances where you could conceivably chose the death
5
sentence?
MS. JACKSON:
6
Your Honor, for the record he's already
He said he would even kill the person himself if
7
given us one.
8
someone was harming his children, so for the record he's
9
already
10
THE COURT:
11
MS. JACKSON:
12
PROSPECTIVE JUROR BADGE NO. 018:
13
All right.
Thank you, Ms. Jackson.
-- given us at least one.
Do you want me to
answer that question?
14
THE COURT:
15
PROSPECTIVE JUROR BADGE NO. 101902253 13-0018:
16
Yes.
I'm
sorry it was -- I lost my train with the confusion
THE COURT:
17
I think that was Ms. -- no.
I mean,
18
would you, when we say consider, I mean, a lot of people say
19
oh, yeah I could consider it.
20
well, I'd -- I'd think about it, but I'd never actually pick
21
it.
But what they really mean is
22
Is that what you mean when you say you'd consider or
23
do you think that, you know, given the evidence and again don't
24
tell us, you know, what the circumstances would be, but is that
25
something that you could conceivably, given the right set of
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1
circumstances pick or is it something that you believe that you
2
would not ever under any circumstances be able to choose?
3
think that's really what Mr. Kep -- Mr. Kephart is that
4
basically what you're asking?
MR. KEPHART:
5
6
Heck yeah, that was well -- well
placed, Judge.
7
THE COURT:
8
PROSPECTIVE JUROR NO. 018:
9
I
Thank you, Mr. Kephart.
Honestly,
I -- I cannot
say, because again I guess until I'm in that situation
I
10
know I have a civic duty to do.
11
best of my ability, but I can't honestly tell you today it's --
12
it's
13
THE COURT:
Okay.
I will try to do that to the
And that's -- basically what we're
14
looking for is someone who can keep an open mind as to all four
15
possible punishments; 40 to 100 years,
16
possibility of parole, life without the possibility of parole,
17
and as to Mr. Walker, the death sentence.
18
that you'll keep an open mind?
19
20
Can you assure me
PROSPECTIVE JUROR BADGE NO. 018:
I can keep an open
mind.
21
22
life with the
THE COURT:
All right.
Thank you.
Mr. Kephart, go
on.
23
MR. KEPHART:
You indicated that you had a -- I don't
24
know if I'm reading this right -- an NASO series seven and 63
25
license?
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PROSPECTIVE JUROR BADGE NO. 018:
2
MR. KEPHART:
3
PROSPECTIVE JUROR BADGE NO. 018:
4
license.
6
What -- what is that?
I was just --
That a securities
Oh, okay.
And that your job causes you
to travel a lot?
PROSPECTIVE JUROR BADGE NO. 018:
7
8
Correct.
Stocks, bonds
MR. KEPHART:
5
239
Well, that my new
job (inaudible).
MR. KEPHART:
9
10
Is that --
PROSPECTIVE JUROR BADGE NO.:
I -- I am -- I still
11
have my licenses, but I am no longer a practicing stockbroker
12
after 2001.
13
MR. KEPHART:
Okay.
And then your job -- is there
14
something coming up going to cause you to be -- I mean, you
15
wrote on here it may cause you to do -- the trial may cause
16
problems with your job.
17
18
PROSPECTIVE JUROR BADGE NO. 018:
Yeah.
In fact,
it's -- I
19
MR. KEPHART:
Causing problems right now?
20
MS. JACKSON:
Yeah.
My new title, I am the state
21
director of the coaching education and player development for
22
Nevada.
23
for me right now to be out at the fields.
24
there at six o'clock.
25
did buy a ticket for because of this because I didn't know if
And there's is probably 18, 11-10 year olds waiting
They're going to get
I also have to be in a convention that I
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the judge would say, too bad,
240
so sad.
2
MR. KEPHART:
Okay.
3
PROSPECTIVE JUROR BADGE NO. 018:
So but it's not
4
anything pressing.
There's four national conventions that I'm
5
supposed that give me new techniques how to help the kids.
6
MR. KEPHART:
7
aside for this trial?
So you could basically set that
PROSPECTIVE JUROR BADGE NO. 018:
8
9
Okay.
They would survive,
yes.
MR. KEPHART:
10
Okay.
Are you going to be able to give
11
us your attention on the case if you -- if you were here or
12
would you be doing something with your job?
PROSPECTIVE JUROR BADGE NO. 018:
13
I mean,
Now,
I mean what I
14
do is a lot different.
15
I -- through education and development technique and things
16
like that so.
17
leave the field there.
18
MR. KEPHART:
19
THE COURT:
20
PROSPECTIVE JUROR BADGE NO. 018:
21
THE COURT:
22
PROSPECTIVE JUROR BADGE NO. 018:
And in fact,
I -- I grew up with 11 kids and
once I leave the field I like to
Courts indulgence, Your Honor.
All right.
Thank you, Mr. Kephart.
Your Honor?
Yes.
23
if this is appropriate.
24
I think I may know the defense attorney.
25
Scott?
I -- I don't know
I just have a question.
I'm not sure;
Is your first name
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MR. BINDRUP:
2
PROSPECTIVE JUROR BADGE NO. 018:
3
Yes.
And you have a son
James?
4
MR. BINDRUP:
5
THE COURT:
6
241
Yes.
Okay.
Do you know Mr. Bindrup's son
possibly through the youth athletic that you're involved with?
7
PROSPECTIVE JUROR BADGE NO. 018:
8
THE COURT:
Okay.
Correct.
Have you ever -- do you kind of
9
just recognize Mr. Bindrup or do you feel like maybe you've had
10
conversations with him or is it more that you've seen him as a
11
parent at some kind of athletic event?
12
PROSPECTIVE JUROR BADGE NO. 018:
Well, I've seen him
13
as a parent.
14
at the awards ceremony, was that you or another parent?
15
I'm not sure if it was he or but we had a little,
THE COURT:
You are wrong to know what Mr. Bindrup
16
may or may not have done.
17
mean basically whatever your interaction was
18
MS. JACKSON:
19
THE COURT:
20
21
22
23
I think Mr. Bindrup's wondering.
I
--
Did you moon the awards banquet?
-- Do you think that that would cause you
to be biased in any way for or against Mr. Bindrup's client?
PROSPECTIVE JUROR BADGE NO. 018:
No, but I had
formulated an opinion.
THE COURT:
All right.
Now, and this is a question a
24
lot of times the lawyers will ask and sometimes they address it
25
in their closing statement, but it's very typical for either a
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1
lawyer for the State or one of the defense attorneys to say,
2
you know even if -- if I'd done something that you didn't
3
when I say I, I'm not talking about me because it doesn't
4
matter -- but you know, one of the lawyers from either side may
5
say to you, you know if I've done something that you didn't
6
like or you felt like their performance was substandard, would
7
you be able to set that aside and only judge the case on
8
evidence, the testimony from the witness, and the exhibits?
9
10
PROSPECTIVE JUROR BADGE NO. 018:
THE COURT:
Okay.
Yes, I would.
So you could put -- because you
11
know you, you don't know the other lawyers, but after you've
12
been in here with for two or three weeks, you may have feelings
13
about them and regardless of any feelings you may have about
14
the lawyers would you be able to set that aside and strictly
15
decide the case based on the evidence that's presented?
16
PROSPECTIVE JUROR BADGE NO. 018:
17
THE COURT:
18
All right.
Yes, I can.
Thank you.
Does anyone have
any follow-up questions for Mr. Henderson based on that?
19
MR. BINDRUP:
We're scared to ask.
20
PROSPECTIVE JUROR BADGE NO. 018:
21
THE COURT:
Yes.
Your Honor?
We're about to take our -- our
I had hoped ladies and gentlemen to get
22
evening recess.
23
further along today, but it's almost six o'clock.
24
to go ahead and take our evening recess.
25
earlier the Court has its civil calendar.
Were going
As I indicated
I hope to be done
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243
prior to 10:30.
2
I'm going to ask that you all report at 10:30 to jury
I'm about to read some names.
Please listen to see
3
services.
4
if your name is read.
5
excused.
You do not need to come back tomorrow.
6
you do.
Mr. Schaller, Mr. Blyveis, Mr. Romanski, Ms. Singh,
7
Ms. Dotson, Ms. Harp, Ms. Barksdale, Ms. Granger, Ms. Solomon,
8
and Mr. Virtuoso do not need to return tomorrow.
9
excused.
If you -- if you're name is read you are
The rest of
You are
10
Everyone else does need to return tomorrow at 10:30.
11
Hopefully we'll move through this quickly so that those of you
12
who will be excused do not need to spend the day here again
13
tomorrow.
If anyone has any questions, please direct those
14
15
questions to our bailiff.
16
everyone who was not excused by me -- excuse me; I'm not
17
speaking.
18
here at 10:30.
19
And once again everyone is --
Everyone who is not excused by me must report back
Additionally, before I excuse -- you leave the room,
20
I am required by law to once again admonish you that during our
21
evening recess you are not to discuss this case, any person, or
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subject matter connected with this case, with each other, or
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with anyone else.
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You're not to read, watch, or listen to any reports
of, or commentaries on this case, any person or subject matter
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connected with this case, by any medium of information.
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Obviously include -- that includes the television news as well
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as the printed news media.
You are not to do any independent research by way of
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the computer on any subject connected with this case.
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you to visit the locations made mention of in connection with
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this case.
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That concludes my admonished to you.
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free to leave the courtroom.
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at 10:30 tomorrow morning.
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Nor are
You are all now
And we'll see everyone back here
(Whereupon the proceeding adjourned at 5:40 p.m.)
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App. 095
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.