U.S. v. Johnson

378 F.Supp.2d 1051

UNITED STATES of America, Plaintiff, v. Angela Jane JOHNSON, Defendant.

No. CR 01-3046-MWB.

United States District Court, N.D. Iowa, Central Division.

June 6, 2005.

COPYRIGHT MATERIAL OMITTED

Alfred E. Willett, Terpstra, Epping & Willett, Cedar Rapids, IA, Dean A. Stowers, Rosenberg, Stowers & Morse, Des Moines, IA, Patrick J. Berrigan, Watson & Dameron, LLP, Kansas City, MO, Robert R. Rigg, Drake University Legal Clinic, Des Moines, IA, for Defendant.

Charles J. Williams, Patrick J. Reinert, U.S. Attorney's Office Northern District of Iowa, Cedar Rapids, IA, Thomas Henry Miller, Des Moines, IA, for Plaintiff.

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT'S MOTION IN LIMINE RE: STEVEN VEST

BENNETT, Chief Judge.

TABLE OF CONTENTS
I.  INTRODUCTION .............................................................1054
      A.  Background ...........................................................1054
      B.  The Defendant's "Penalty Phase" Motion In Limine .....................1056
          1.  The evidence in question .........................................1056
          2.  Arguments of the parties .........................................1057
              a.  Johnson's argument ...........................................1057
              b.  The prosecution's argument ...................................1057
          3.  The court's ruling ...............................................1058
 II.  LEGAL ANALYSIS ...........................................................1058
      A.  Applicable Standards .................................................1058
      B.  Confrontation Clause Challenge .......................................1059
          1.  Applicability of the Confrontation Clause during the "penalty
phase" .........................................................1059
          2.  Satisfaction of Confrontation Clause requirements ................1062
              a.  Does Bruton bar the admissibility of the hearsay? ............1062
              b.  Does Crawford bar the admissibility of the hearsay? ..........1063
      C.  Due Process Clause Challenge .........................................1066
      D.  Section 848(j) Challenge .............................................1067
          1.  The evidentiary standard of § 848(j) .............................1068
          2.  Constitutionality of § 848(j) ....................................1068

3.  Satisfaction of § 848(j) requirements ...........................1069
III.  CONCLUSION ...................................................................1070

Immediately following her conviction on ten capital charges pursuant to 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2, the defendant moved to exclude during the "penalty phase" of her trial evidence of statements made by a previously convicted co-defendant to a jailhouse informant. The defendant contends that admission of such statements would violate her confrontation and due process rights, because of the unreliability of both the alleged hearsay statements and the jailhouse informant who will recount them. Although the defendant's conviction and the imminent commencement of the sentencing phases of the trial required the court to enter an expedited ruling on the admissibility of the challenged "penalty phase" evidence, the court promised the parties that this more detailed memorandum opinion and order on this issue would follow in due course.

I. INTRODUCTION

A. Background

Defendant Angela Johnson was charged with ten capital offenses arising from her involvement in the murders in 1993 of five witnesses to the drug-trafficking activities of her sometime boyfriend, Dustin Honken. The murder victims are Gregory Nicholson, who was one of Honken's methamphetamine dealers; Lori Duncan, a friend of Nicholson's with whom Nicholson was living at the time; Kandi Duncan and Amber Duncan, who were Lori Duncan's daughters, ages 6 and 10, respectively; and Terry DeGeus, who was another of Honken's methamphetamine dealers. All of the murder victims disappeared in 1993 after Honken was indicted on federal drug charges and after Honken learned that Nicholson and DeGeus had cooperated with law enforcement officers in the investigation of Honken's drug-trafficking activities. The disappearance of the witnesses resulted in the dismissal of the 1993 drug charges against Honken. However, Honken eventually pleaded guilty to other drug charges filed against him in 1996.

In 2000, Johnson was indicted for the killings of Nicholson, the Duncans, and DeGeus on non-capital charges of aiding and abetting the murder of witnesses in violation of 18 U.S.C. §§ 1512(a)(1)(A) and (C), 1512(a)(2)(A) or 1513(a)(1)(A) and (C),¹ 1111, and 2; one count of aiding and abetting the solicitation of the murder of witnesses, in violation of 18 U.S.C. §§ 373(a)(1) and 2; and one count of conspiracy to interfere with witnesses, in violation of 18 U.S.C. § 371. While she was incarcerated pending trial on these charges, Johnson gave a jailhouse informant a map that purportedly showed where the five murder victims were buried. The informant turned the map over to law enforcement officers. The map led law enforcement officers to two shallow graves containing the bodies of the five murder victims.

In separate indictments handed down in 2001, Honken and Johnson were each charged with ten capital offenses for the murder of Nicholson, the Duncans, and DeGeus, consisting of the following charges: five counts of killing or aiding and abetting the killing of witnesses while engaging in a drug-trafficking conspiracy ("conspiracy murder"), in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2; and five counts of killing or aiding and abetting the killing of the same witnesses in furtherance of a continuing criminal enterprise ("CCE murder"), also in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2. The 2001 indictment against Honken also charged him with seven non-capital offenses, which mirrored the seven non-capital offenses against Johnson in the 2000 indictment.

After a lengthy trial in the fall of 2004, Honken was convicted on October 14, 2004, of all seventeen counts against him. As to the ten capital offenses, the jury found that Honken "intentionally killed" each victim, i.e., that he was guilty as a principal, rather than as an "aider and abettor." After hearing extensive "penalty phase" evidence, the jury reached a verdict on October 27, 2004, finding that Honken should be sentenced to life imprisonment for the murders of the adult victims, but sentenced to death for the murders of the two children. Post-trial motions are still pending in Honken's case.

Johnson's trial followed Honken's conviction by several months. In the interim, the charges against Johnson were consolidated into a single indictment, then the non-capital charges were dismissed. By order dated February 18, 2005 (docket no. 325), see United States v. Johnson, 362 F.Supp.2d 1043, 1099-1111 (N.D.Iowa 2005), the court directed, inter alia, that Johnson's trial would be "trifurcated" into three phases: (1) a "merits phase," to determine guilt or innocence of the charged offenses; (2) an "eligibility phase," to determine whether one "gateway aggravating factor" identified in § 848(n)(1) and one or more of the "statutory aggravating factors" in § 848(n)(2) through (12) are present;² and (3) a "penalty phase," to determine whether "non-statutory aggravating factors" and "mitigating factors" are present and "`whether the aggravating factors found to exist sufficiently outweigh any mitigating factor or factors found to exist, or in the absence of mitigating factors, whether the aggravating factors are themselves sufficient to justify a sentence of death.'" Id. at 1111 (quoting 21 U.S.C. § 848(k)).³ The court concluded that such "trifurcation" is required in this case for three reasons. First, the court concluded that the danger of unfair prejudice arising from jurors hearing "victim impact" evidence or evidence on other "non-statutory" aggravating factors before the jurors make their determination on the defendant's "eligibility" for the death penalty, on the basis of the "gateway" and "statutory" aggravating factors, substantially outweighs any probative value of such evidence to the determination of the defendant's "eligibility" for a death sentence. Id. at 1106-09. Second, the court concluded that the information concerning "gateway" and "statutory" aggravating factors in this case is entirely severable from information concerning any other factor, where the government intends to rely only on evidence admitted in the "merits phase" to prove the "gateway" and "statutory" aggravating factors, and introduction of extraneous information into the jury's determination of the "gateway" and "statutory" aggravating factors could only tend to confuse the issues. Id. at 1109. Third, the court concluded that, if the jury is permitted to hear information on all of the factors in one proceeding, the jury is reasonably likely to be misled into believing that all information is pertinent to the determination of all factors and the balance of factors. Id. at 1109-10.

Prior to Johnson's trial, the government withdrew its allegations that Johnson was a "principal" in the murders and, instead, proceeded to trial only on a theory that Johnson "aided and abetted" each of the "conspiracy murders" and "CCE murders." Johnson's trial on the capital charges commenced with jury selection on April 12, 2004. A jury was seated and presentation of evidence in the "merits phase" began on May 5, 2005. The "merits phase" was submitted to the jury on May 23, 2005, and the jury returned a verdict on May 24, 2005, finding Johnson guilty of aiding and abetting the murders charged in all ten capital counts. The "eligibility phase" began and ended on May 31, 2005, with a jury determination that Johnson is "eligible" for the death penalty on all ten capital...