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

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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

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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

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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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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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And we'd

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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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m

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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App. 065

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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App. 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)

•

•

1

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DISTRICT COURT

CLARK COUNTY, NEVADA . ·.·· ... )W O3 1°0

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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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App. 067

•

•

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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•

•

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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•

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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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•

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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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App. 094

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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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Lex Reporting Services

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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.

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