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United States v. Wesley Ira Purkey
Citations: 428 F.3d 738; 68 Fed. R. Serv. 907; 2005 U.S. App. LEXIS 23961; 2005 WL 2923515Docket: 04-1337
Court: Court of Appeals for the Eighth Circuit; November 7, 2005; Federal Appellate Court
Wesley Ira Purkey was convicted of kidnapping, rape, and murder of Jennifer Long, a 16-year-old girl, and sentenced to death. His conviction stemmed from events beginning in January 1998 when Long disappeared. While incarcerated for another murder charge, Purkey contacted law enforcement to confess to Long's crimes, seeking federal prosecution. He waived his constitutional rights and detailed his involvement, expressing a desire for assurances regarding his sentence. After discussions with an Assistant U.S. Attorney, he was informed that cooperation was necessary for federal action. Purkey then led investigators to the crime scene, admitting to measures taken to dispose of the victim's remains, which he claimed were unrecoverable. Over subsequent days, he provided a detailed written confession and identified Long in a photo lineup, reinforcing his admissions of guilt. The appellate court reviewed Purkey’s challenges to his conviction and found them unmeritorious, affirming the district court's judgment. During the guilt phase of the trial, Mr. Purkey admitted to killing and dismembering Ms. Long but retracted his earlier claim that he kidnapped her, asserting instead that she voluntarily entered his truck, believing she was a prostitute. He acknowledged fabricating the kidnapping to elevate the crime to a federal level. The jury found him guilty after a brief deliberation. In the penalty phase, the defense presented twenty-seven mitigating factors, primarily focusing on expert testimony about Mr. Purkey's brain damage and diminished mental capacity. The government countered with expert testimony and evidence supporting six statutory and four non-statutory aggravating factors. The jury found all six statutory aggravating factors to be present, including that the murder occurred during a kidnapping and was especially heinous, involving torture and abuse. Additionally, the jury recognized three of the four non-statutory aggravating factors, highlighting the victim's personal characteristics, Mr. Purkey's previous violent crime, and his substantial criminal history. The jury did not indicate any findings on the mitigating factors and ultimately decided on a death sentence for Mr. Purkey. On appeal, Mr. Purkey argued that the district court wrongly denied his motion to suppress his confessions, claiming they were involuntary and obtained in violation of the Fifth Amendment due to a false promise by law enforcement regarding sentencing. He also sought to prevent the government from pursuing the death penalty, but this motion was denied as well. Mr. Purkey contends that his confession was coerced by Detective Howard and Agent Tarpley through a suggestion that the Assistant United States Attorney had accepted a quid pro quo arrangement, promising a life sentence for a confession. However, both officers testified that they did not make such representations. The district court, following the magistrate judge's report, found Mr. Purkey's account uncredible, determining that no promises of a life sentence were made during their interactions on December 16, 1998, and confirmed that the officers did not mislead him regarding the potential for a death penalty. The court deemed the officers' testimonies more credible than Mr. Purkey's and concluded that no promises were exchanged for his confessions. Mr. Purkey also argued that the destruction of his notes from conversations with the officers constituted a denial of due process, warranting dismissal of the indictment. He claimed these notes were destroyed during a prison shakedown. The court, adopting the magistrate's findings, ruled against him, noting that he failed to prove that comparable exculpatory evidence was unavailable. Upon review, it was determined that the district court did not clearly err in its factual and credibility assessments, leading to the affirmation of the denial of Mr. Purkey's motions to suppress his statements and to dismiss the case based on the destruction of the notes. Mr. Purkey's notes of conversations with Detective Howard and Agent Tarpley are characterized as his personal recollections and not formal transcripts or verified statements. He had opportunities to provide his own testimony about these conversations, which undermined his claim of incomplete recollection. The magistrate judge noted that despite Purkey's assertion that he needed these notes for help in remembering details, his testimony suggested he retained the necessary information until prompted otherwise by his counsel. Consequently, the district court correctly denied his motion to dismiss based on the alleged destruction of the notes. Additionally, Purkey contended that the district court erred in rejecting his pretrial motion to bar the government from pursuing the death penalty, citing violations of the Fifth Amendment's indictment clause. He argued that the Federal Death Penalty Act (FDPA) is unconstitutional as it allows the prosecution to unilaterally seek the death penalty without grand jury consideration. He also claimed that the government failed to seek an indictment for key elements of the capital prosecution, specifically non-statutory aggravating factors and the justification for these factors outweighing any mitigating ones. The court reviewed these legal challenges de novo and referenced a prior ruling in United States v. Allen, which established that while the FDPA allows the prosecution to present aggravating factors without grand jury inclusion, it does not prevent them from doing so. Therefore, Purkey's facial challenge was rejected. Under the FDPA, once a defendant is found guilty, the jury must unanimously determine: (1) the requisite mens rea, (2) the existence of at least one statutory aggravating factor, and (3) whether the aggravating factors outweigh the mitigating ones to justify a death sentence. Mr. Purkey argues that the jury must consider all aggravating factors, including non-statutory ones, and weigh them against mitigating factors before imposing a death sentence under the Federal Death Penalty Act (FDPA). He claims that his superseding indictment is insufficient because it lacks non-statutory aggravating factors and a finding of probable cause that aggravating factors outweigh mitigating ones, thus violating the Fifth Amendment. However, it is established that only one statutory aggravating factor must be included in the indictment for a death penalty eligibility, as supported by case law. Non-statutory aggravating factors do not affect the maximum punishment and serve only to assist in sentencing decisions. Additionally, the process of weighing factors mandated by 18 U.S.C. § 3593(e) is not an element requiring grand jury probable cause; it is a consideration for the jury's individualized sentencing determination. Consequently, Purkey's Fifth Amendment arguments are deemed meritless. Furthermore, Purkey challenges the exclusion of three jurors who were hesitant about the death penalty. According to the Supreme Court's ruling in Wainwright v. Witt, jurors can be excluded for cause if their views would significantly impair their ability to perform their duties. The district court's discretion in such removals is reviewed for abuse. Mr. Purkey challenges the district court's decision to remove Margaret Fox from the jury, requesting that the court adopt the Tenth Circuit's standard from United States v. Chanthadara for a de novo review of her removal, arguing it was based solely on her questionnaire responses. The court disagrees with the Chanthadara case's assumption that district courts deserve deference solely due to their ability to assess a juror's demeanor. It cites additional reasons such as respect for the trial process and conserving judicial resources, affirming that appellate courts should not decide factual questions de novo, but rather review for an abuse of discretion. The court finds no abuse of discretion in striking Ms. Fox, as her questionnaire indicated significant reservations about the death penalty, including a belief that such decisions should be left to God. Her responses showed a questioning of the death penalty's application, and she selected a response indicating difficulty in imposing it, which supported the district court's conclusion that her views would impair her juror duties. Mr. Purkey also contests the removal of Willie Randle, claiming the court misinterpreted his responses during voir dire regarding the burden of proof. Randle suggested he might hold the government to a higher burden, but the district judge mistakenly recalled his stance as requiring a higher standard than what the law allows, leading to his dismissal. Mr. Randle's statement, "It has to be proof without a reasonable doubt," raises questions about his understanding of the legal standard of "beyond a reasonable doubt." The trial judge, having observed Randle's demeanor, interpreted his wording as an indication that he intended to apply a higher burden of proof than required by law. Consequently, the district court did not abuse its discretion in striking Randle as a juror. Additionally, Mr. Purkey contests the removal of juror Gary Danford, who initially expressed a willingness to hold the government to a higher burden of proof but later stated he would follow the law. The district court deemed Danford's change in position indicative of a misunderstanding of the legal standard, which justified his removal based on the court's assessment of his credibility. Purkey also argues that the district court made errors during the guilt phase of the trial by excluding certain evidence. These include the testimony of defense expert Dr. David Preston, details about his father's introduction to prostitution, and cross-examination regarding the misconduct of Michael Speakman. The district court determined that Dr. Preston, though qualified in nuclear medicine, was not suitable to testify on Purkey's state of mind during the offense or his confessions. The standard for reviewing the evidentiary rulings is de novo for legal interpretations and abuse of discretion for factual findings, with the possibility to affirm based on any supported ground in the record. The district court correctly concluded that Dr. Preston, despite being qualified to conduct tests on Mr. Purkey, was not qualified to link his findings to Mr. Purkey's state of mind or actions during the offenses or his statements to investigators. Dr. Preston's reports did not connect test results to Mr. Purkey's specific mental state, and he acknowledged that the tests could not predict behavior or establish a causal relationship with criminal acts, thus justifying the exclusion of his testimony. Mr. Purkey contended that he should have been allowed to testify about his father's introduction to prostitution during his childhood to provide context for his belief that Ms. Long was a prostitute. He argued this testimony could have strengthened his defense against kidnapping charges. However, the court found that events from over thirty years prior were irrelevant to Mr. Purkey's misidentification of a teenage girl as a prostitute, upholding the exclusion of this testimony. Mr. Purkey also claimed that he was denied his Sixth Amendment right to confront a prosecution witness, Michael Speakman, regarding Speakman’s uncharged misconduct, suggesting it might have influenced Speakman's testimony. The court referenced the Supreme Court's recognition of the importance of revealing a witness’s motivations but clarified that judges have discretion to limit cross-examination to avoid issues like harassment or confusion. The court will not reverse such limitations unless there is a clear abuse of discretion and demonstrated prejudice to the defendant. Mr. Purkey has not established a violation of the confrontation clause, as he failed to show that a reasonable jury might have viewed the credibility of the witness differently if his counsel had pursued a particular line of cross-examination. His counsel already evidenced that the witness, Mr. Speakman, had a motive to testify due to his desire for a lenient sentence, as demonstrated by a government motion to reduce Mr. Speakman’s sentence under Federal Rule of Criminal Procedure 35. Mr. Speakman acknowledged that his primary motivation for testifying was to seek a sentence reduction. The court found that further cross-examination would not have provided additional clarity on this motivation, thus ruling that it did not abuse its discretion in restricting the cross-examination. Additionally, Mr. Purkey contends that the district court incorrectly instructed the jury regarding the elements of the kidnapping statute, 18 U.S.C. § 1201. He argues that the statute requires the government to prove he seized Ms. Long for the purpose of forcible rape and that he also transported her across state lines with that intent. He interprets the phrase "willfully transported" to necessitate proof of intent to commit an unlawful act during transportation. Mr. Purkey asserts that the district court erred by not including this requirement in the jury instruction, which he claims is critical because his defense rested on the assertion that he transported Ms. Long without the intent to rape. Instructions given to the jury were affirmed as they correctly stated the law and adequately presented the issues. The district court required the jury to find that the defendant unlawfully seized, confined, and transported Jennifer Long across state lines with intent to commit rape, and that her death resulted from his actions. This instruction aligned with the statutory requirements of 18 U.S.C. 1201 and was consistent with recommended jury instructions from the Ninth and Eleventh Circuits, despite the absence of a specific instruction in the Eighth Circuit's model. Mr. Purkey claimed error in the district court's refusal to grant a mistrial due to alleged prosecutorial misconduct. He argued that the government’s focus on his tattoos, including a Nazi swastika, unfairly prejudiced the jury. During the direct examination, a picture of Mr. Purkey with visible tattoos was displayed without prior objection from his counsel, who later objected when the picture was admitted, resulting in the objection being sustained. Subsequently, during cross-examination, the prosecutor referenced the tattoos to challenge Mr. Purkey's credibility regarding consent in his interactions with Ms. Long. The defense objected to this inquiry, which was again sustained, and the jury was instructed to disregard it. Despite this, the defense requested a mistrial based on the repeated mention of the tattoos, which the district court denied. The criteria for determining reversible prosecutorial misconduct were noted but not fully elaborated upon in this excerpt. Prosecutorial misconduct requires two conditions for a finding of reversible error: the prosecutor's actions must be improper and must have prejudicially affected the defendant's substantial rights, depriving them of a fair trial. Even if the prosecutor's actions were improper, such as referencing the defendant's tattoos, these did not significantly impact the trial's fairness. The court evaluates three criteria: the cumulative effect of the misconduct, the strength of properly admitted evidence of guilt, and the curative actions taken by the trial court. In this case, the prosecutor's tattoo references were minimal, and there was substantial evidence of guilt, including multiple confessions from the defendant. Additionally, the trial court promptly addressed the objections to the prosecutor's questions and instructed the jury to disregard them. Regarding the penalty phase, the defendant raised several evidentiary issues, claiming the court erred by excluding certain testimonies and evidence. The Federal Death Penalty Act allows for a more lenient standard of evidence admission during capital sentencing, permitting information not typically admissible in criminal trials. This standard is designed to ensure that the sentencer can consider any mitigating factors related to the defendant's character or circumstances of the offense. However, the trial court still maintains the authority to exclude irrelevant evidence that does not pertain to the defendant's character, prior record, or the offense itself. The Federal Death Penalty Act (FDPA) grants judges the discretion to exclude probative evidence during the penalty phase if its probative value is outweighed by the risks of unfair prejudice, confusion, or misleading the jury. The district court's decisions are reviewed for abuse of discretion, while constitutional rights violations are assessed de novo. A harmless error beyond a reasonable doubt does not warrant reversal of a federal death sentence. Mr. Purkey's attempt to introduce evidence that his wife poisoned him was rejected by the district court, which ruled it irrelevant due to the lack of evidence regarding the psychological effects of rat poison. The government argued that this evidence would distract the jury, and the court concurred. The defense admitted it could not prove any mental impairment caused by the poison, leading to the conclusion that the evidence had no probative value concerning Mr. Purkey's mental state during the murders. Additionally, Mr. Purkey claimed this evidence illustrated his difficult home life, but as he did not raise this argument in the lower court, it was reviewed for plain error, which was not found. The court noted that Ms. Purkey's actions, although misguided, were motivated by a desire to deter her husband from drug use, suggesting some concern for his well-being. Evidence presented indicated that Mr. Purkey experienced a challenging and dysfunctional upbringing, but its omission was deemed not to have affected his substantial rights. The district court excluded Dr. Cunningham's testimony regarding Mr. Purkey's potential fetal alcohol exposure due to a lack of direct evidence of maternal alcohol consumption during pregnancy. However, circumstantial evidence suggested a history of alcohol abuse by Mr. Purkey's mother, including the death of two siblings around his birth, which Dr. Cunningham argued could be linked to fetal alcohol exposure, along with Mr. Purkey’s brain condition. Although the court's exclusion of this testimony was recognized as an error, it was determined to be harmless beyond a reasonable doubt, given the strong evidence of aggravating factors and the jury's overall understanding of Mr. Purkey's mental and emotional impairments through other expert testimony. Additionally, Mr. Purkey's attempt to impeach Dr. Park Dietz regarding a previous case error was also denied by the district court. Dr. Dietz, serving as an expert witness in the Yates case, incorrectly testified about a non-existent television episode that he claimed was similar to the Yates case. He later acknowledged this mistake in a proffer session related to Mr. Purkey's trial. The district court prevented any discussion of this error, citing potential confusion and collateral issues, despite the government's argument that this exclusion was justified under Federal Rule of Evidence 403. However, the applicable standard was under the Federal Death Penalty Act (FDPA), specifically 18 U.S.C. 3593(c), which allows for the exclusion of evidence only when its probative value is outweighed by the risk of unfair prejudice or confusion. The court found that the exclusion of Dr. Dietz's admission was not justified, as it was relevant to his credibility and not overly complex; nevertheless, the error was deemed harmless due to extensive cross-examination revealing other mistakes made by Dr. Dietz, which likely did not affect Mr. Purkey's substantial rights. Additionally, Mr. Purkey contended that the district court wrongly denied the introduction of surrebuttal testimony from Dr. Peterson in response to Dr. Helen Mayberg's testimony, which countered the defense's claims about Mr. Purkey's brain injuries. The defense sought to challenge two of Dr. Mayberg's conclusions regarding the significance of Mr. Purkey's past automobile accidents and his capabilities as a "jailhouse lawyer." The government contends that the court appropriately excluded Dr. Mayberg's surrebuttal testimony, asserting it did not introduce new matters. The authority to permit surrebuttal rests with the trial court's discretion, as established in precedent, which holds that surrebuttal is warranted only when rebuttal testimony presents new evidence. The Federal Death Penalty Act (FDPA) does not alter this discretion; rather, it maintains the trial judge's control over witness interrogation and evidence presentation, preventing the hearing from devolving into chaos. Even if Dr. Mayberg's testimony regarding Mr. Purkey's brain damage could be considered a new matter justifying surrebuttal, any potential error in excluding it would not suffice for reversal. Mr. Purkey had already provided substantial testimony about his brain damage, and this additional evidence would likely have offered only marginal reinforcement to his defense. The severity of the aggravating factors presented by the government, confirmed by the jury, further diminishes the likelihood that this exclusion affected Mr. Purkey's substantial rights. Mr. Purkey also claims that the district court erred in allowing the government to question Dr. Peterson, one of his expert witnesses, about his views on the death penalty. The court ruled that such cross-examination regarding potential bias is permissible under traditional evidentiary rules and is relevant for assessing a witness's credibility. The FDPA may relax these rules, and therefore, the court did not err in permitting this line of questioning. In reviewing the evidentiary errors, both individually and cumulatively, the impact on Mr. Purkey's substantial rights was considered, following established legal standards. The court concluded that any errors identified were harmless, including Mr. Purkey's claim that the district court denied his right to allocution during the penalty phase of his trial. Mr. Purkey argued that he should have been allowed to make a statement before the jury without facing cross-examination, asserting that the district court's decision violated his constitutional rights and relevant federal rules. However, the court clarified that the right to allocution is not a constitutional guarantee, as established in previous circuit rulings. Furthermore, Rule 32 of the Federal Rules of Criminal Procedure permits a defendant to speak before the court when imposing a sentence, not before the jury. The court found that Mr. Purkey's opportunity to address the district court sufficed in meeting Rule 32 requirements, despite the jury's prior recommendation of a death sentence. Additionally, the Federal Death Penalty Act (FDPA) does not confer a right to allocution, and thus Mr. Purkey's claims on that basis were unfounded. The court also discussed the jury's responsibilities regarding special findings and recommendations for a death sentence, indicating that a unanimous decision is required for the aggravating factors to outweigh mitigating factors, with specific standards for proving both types of factors. Mr. Purkey argues that the district court improperly allowed the jury to consider duplicative aggravating factors, which he claims distorted their evaluation of aggravating and mitigating factors, violating the Eighth Amendment. This constitutional challenge is reviewed de novo. Mr. Purkey asserts that the nonstatutory aggravator of "substantial criminal history" is redundant with the statutory aggravator concerning convictions for multiple serious offenses, as both relied on the same convictions. Although the Tenth Circuit has established that the same facts can support different aggravating factors, Mr. Purkey maintains that the two aggravators in his case were indeed duplicative since they stemmed from the same set of convictions aimed at demonstrating his criminal history. While the nonstatutory aggravator included a specific instance of Mr. Purkey's criminal history—shooting a victim in 1980—this fact is also encompassed within another statutory aggravator regarding firearm use in a serious offense. The court ultimately finds no constitutional violation in having duplicative aggravating factors, as the Supreme Court has not ruled such duplication as invalid. The Federal Death Penalty Act (FDPA) mandates that juries assess the significance of aggravating and mitigating factors rather than simply counting them, which is supported by the jury instructions that emphasize a qualitative evaluation of factors over a quantitative tally. The government potentially violated Mr. Purkey's Eighth Amendment rights if it had introduced an invalid aggravating factor into the jury's deliberation, as noted in Stringer v. Black. However, Mr. Purkey does not claim such an error. He seeks a reconsideration of circuit precedents that permit jury instructions requiring a death sentence recommendation if aggravating factors outweigh mitigating ones, acknowledging that such a change would necessitate en banc court action. The panel maintains that existing precedents are well-founded. Mr. Purkey also argues that the Federal Death Penalty Act (FDPA) requires juries to identify any mitigating factors recognized by at least one juror, asserting that the district court erred by accepting a blank verdict form on mitigating factors. Reviewing this as a question of law, the court de novo interprets the FDPA and concludes it does not mandate juror identification of mitigating factors. While such identification aids appellate review, the FDPA only requires special findings for aggravating factors, making the jury's omission of mitigating factors permissible and the district court's acceptance of the verdict form proper. Additionally, Mr. Purkey contends that the district court wrongly denied his mistrial motion due to alleged prosecutorial misconduct. This arose when he interrupted cross-examination, leading to a comment interpreted as a threat by the prosecutor. During subsequent cross-examination, the prosecutor referenced this comment, prompting an objection from Mr. Purkey's counsel, which was sustained. Mr. Purkey argues the prosecutor's question undermined the fairness of the penalty phase. The opinion earlier outlined the legal principles governing the review of prosecutorial misconduct. The prosecutor's question, although potentially improper, did not violate Mr. Purkey's right to due process. The district court upheld the defense's objection and, while it did not instruct the jury to disregard the question, the question was brief and isolated. The lack of a cautionary instruction from defense counsel, combined with strong evidence of aggravating factors, ensured that Mr. Purkey received a fair penalty proceeding. This conclusion holds even when considering the impact of improper prosecutorial conduct regarding Mr. Purkey's tattoos during the guilt phase of the trial. Consequently, the district court's decision to deny Mr. Purkey's mistrial motion is affirmed.