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United States v. Fell

United States District Court, D. Vermont

July 24, 2014

UNITED STATES OF AMERICA
v.
DONALD FELL

OPINION AND ORDER

WILLIAM K. SESSIONS, III., District Judge.

Donald Fell moves the Court pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct the judgment and sentence of death imposed upon him, and to grant him a new trial. Fell's motion includes allegations of ineffective assistance of counsel, prosecutorial misconduct, and juror misconduct. The sole issue currently before the Court is Fell's claim that juror misconduct deprived him of his Fifth, Sixth, and Eighth Amendment rights to an impartial jury.

Fell brings juror misconduct claims regarding three jurors. According to his motion, one juror lied during the jury selection process and withheld substantial information about her own life and that of her son. A second juror defied the Court's instructions and traveled over two hours in the midst of trial to view the crime scenes. In doing so, the juror obtained information that was not consistent with the trial evidence and, Fell argues, highly prejudicial. This same juror is also accused of coercing another juror's vote. A third juror allegedly failed to disclose both extra-record knowledge and material information about his past.

The Court has now heard four days of testimony on the juror misconduct issue. For the reasons set forth below, the Court finds that Fell has shown juror misconduct and that this misconduct violated his constitutional right to an impartial jury. Fell is therefore entitled to a new trial, and his motion to vacate is GRANTED.

I. Factual and Procedural Background

A. The Offense, Indictment, and Plea Negotiations

On the night of November 26, 2000, Donald Fell and co-Defendant Robert Lee murdered Fell's mother Debra and her friend Charles Conway at Debra Fell's home in Rutland, Vermont. As charged in the superseding indictment, Fell and Lee departed the residence before dawn, armed with a 12-gauge shotgun and in search of a vehicle. The two men proceeded on foot to the Price Chopper supermarket in downtown Rutland, abducted supermarket employee Teresca King, and commandeered her vehicle. Fell and Lee then drove to Dutchess County, New York, and brutally murdered Mrs. King. ECF No. 57 at 1-2.

On November 30, 2000, Fell and Lee were arrested in Clarksville, Arkansas, driving Mrs. King's car. Upon their transfer to the District of Vermont, they were charged with interstate kidnapping and car-jacking, in violation of 18 U.S.C. §§ 1201(a) and 2119. On February 1, 2001, a federal grand jury returned a four-count indictment charging Fell and Lee with car-jacking resulting in death in violation of 18 U.S.C. § 2119(3) (Count 1); kidnapping resulting in death in violation of 18 U.S.C. § 1201(a) (Count 2); brandishing a firearm in furtherance of crimes of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count 3); and being fugitives who transported a firearm in interstate commerce in violation of 18 U.S.C. § 922(g)(2) (Count 4). Counts 1 and 2 were capital offenses. Fell and Lee were arraigned on February 7, 2001.[1]

On October 24, 2001, Fell signed an agreement to plead guilty in exchange for life imprisonment without release. However, at the time Fell and the United States Attorney for the District of Vermont reached their agreement, the United States Department of Justice required all local decisions not to seek the death penalty in death-eligible cases to be confirmed by the Attorney General. In January 2002, the Attorney General rejected the plea agreement.

On January 30, 2002, the government filed a Notice of Intent to Seek Death Penalty. The Notice listed four threshold culpability factors as set forth in 18 U.S.C. § 3591(a)(2)(A)-(D), and three statutory aggravating factors identified in 18 U.S.C. § 3592(c).[2] It also listed four non-statutory aggravating factors.[3] After the government filed its Notice of Intent, the parties negotiated an agreement for the penalty phase to be tried to the Court following a guilty plea to the charges. That agreement was also rejected by the Attorney General.

B. Jury Selection

Jury selection began on May 4, 2005. Potential jurors initially completed a two-page background questionnaire (the "short questionnaire"). The jurors were then summoned to Court, where they were given preliminary instructions and directed to complete a longer, 34-page questionnaire (the "long questionnaire"). The long questionnaire consisted of 75 questions divided into six parts: (1) background; (2) experiences and beliefs; (3) important legal principles; (4) views about the death penalty; (5) exposure to media about the case or the death penalty; and (6) personal schedule during the anticipated trial period.

In the preliminary instructions, the Court explained to the prospective jurors:

If you cannot answer a question because you do not understand it, write "Do not understand" in the margin next to the question. If you cannot answer the question because you do not know write "Do not know." If you want to explain your answer, do so either in the space provided on the questionnaire, or on one of the sheets appended to the questionnaire.... If for any reason you do not wish to answer any particular question, please write the word "Private" in the margin next to the question and we will take this matter up with you privately, if necessary.
Because your answers are part of the jury selection process and become part of the record of this court, the answers must be truthful under the penalty of perjury, and you must sign the questionnaire at the end.

ECF No. 512-23 at 34.

Jury selection was conducted over fifteen days between May 4 and June 6. The Court initially conducted general voir dire of groups of sixteen jurors. Potential jurors were then questioned individually, first by the Court and then by counsel for the parties. The jury, along with four alternates, was selected on June 9, 2005.

From their first contact with the Court, prospective jurors and those who were seated for the trial were advised and repeatedly reminded that they must serve "fairly and impartially, " meaning that their verdict must be based "on the evidence presented in this courtroom and not on anything that you may have heard or read or experienced outside the courtroom." Id. at 26. They were further advised and reminded not to discuss the case with others or among themselves because "a jury's verdict must be free from outside influence. So, I am ordering each and every one of you not to discuss this case with family, friends or any other persons from this point on until I either excuse you, or if you are selected as a juror, until the case concludes." Id. at 32-33.

At the beginning of each day of trial, jurors were asked if they had spoken to anyone or learned anything about the case from outside the courtroom. See, e.g., Trial Tr. Vol. I-1 at 10. At the end of each day of trial, the Court reminded the jurors not to discuss the case with anyone or learn about the case from outside the courtroom. See, e.g., Trial Tr. Vol. I-2 at 89. The Court instructed jurors that if they did learn anything from outside the courtroom, "you need to tell me." Trial Tr. Vol. I-1 at 15. The Court also specifically advised the jurors not to conduct their own investigations. See Trial Tr. Vol. VI at 61.

C. Conviction, Sentence, and Appeal

The guilt phase of the trial commenced on June 20, 2005. On June 24, 2005, the jury returned a guilty verdict on all four counts. The penalty phase began on June 28, 2005, and extended for nine days. The jury heard mitigation evidence from fourteen witnesses, including family members, teachers, and social workers. The jury also heard from correctional officers and a prison teacher about Fell's adjustment to prison. That evidence, as recounted by the Second Circuit on direct appeal, established that

Fell spent his early years in Pennsylvania with parents who were chronic alcoholics. Both Fell and his sister were raped by babysitters when they were young children, abandoned by their parents, and raised by relatives. Fell had frequent brushes with the law of increasing seriousness and, for a period of time, was committed to a home for delinquent youth. After his release, his involvement with the law continued to escalate and was punctuated by serious drug and alcohol abuse.

United States v. Fell, 531 F.3d 197, 205 (2d Cir. 2008). Fell's mother Debra moved to Rutland in 1996, and Fell joined her in 2000. Thereafter, "[t]heir stormy relationship continued. Fell and his mother (and their friends) drank heavily, argued frequently, and abused drugs." Id. Fell was twenty years old at the time of the murders.

On July 14, 2005, the jury unanimously found that Fell should receive a sentence of death on the two capital counts. In addition to the statutory aggravating factors, the jury found that the government had proven the following non-statutory aggravating factors: (1) that Fell participated in the abduction of Mrs. King to facilitate his escape from the area in which he and an accomplice had committed a double murder; (2) that Fell participated in the murder of Mrs. King to prevent her from reporting the kidnapping and car-jacking to authorities; (3) that Fell participated in the murder of Mrs. King after substantial premeditation to commit the crime of car-jacking; and (4) that Fell caused loss, injury, and harm to the victim and the victim's family. ECF No. 200 at 8-9 (Special Verdict Form).

The jury also found that Fell's lawyers had demonstrated several mitigating factors, including Fell's childhood physical and sexual abuse; his treatment and institutionalization for mental health conditions; his regular abuse of alcohol and drugs since childhood; and that his parents were violent alcoholics who abandoned him as a child. No juror found that Fell's capacity to appreciate his conduct was significantly impaired, or that he had shown remorse for killing Mrs. King. Ten of the twelve jurors found that Fell was raised without positive role models. Ten of twelve jurors also voted to add a mitigating factor that had not been presented: "Total life experience, failure of the state of Pennsylvania social and mental health services to effectively intervene in his childhood abuse and to treat or address his early antisocial behavior." Id. at 13-14.

In 2008, the United States Courts of Appeals affirmed Fell's conviction and sentence. Fell, 531 F.3d at 240. In doing so, the Second Circuit concluded that this Court "presided over this complicated and difficult trial with care, fairness, and an exemplary concern for the protection of Fell's rights." Id. Fell's petition for rehearing or, in the alternative, for rehearing en banc was denied, United States v. Fell, 571 F.3d 264 (2d Cir. 2009), and on March 22, 2010 the Supreme Court declined review. Fell v. United States, 559 U.S. 1031 (Mem. 2010).

D. Section 2255 Motion

On March 21, 2011, represented by new counsel, Fell timely filed a motion for writ of habeas corpus pursuant to 28 U.S.C. § 2255. The motion includes allegations of ineffective assistance of counsel, prosecutorial misconduct, and juror misconduct. On December 22, 2011, the government filed its response to the Section 2255 motion, seeking summary dismissal of all claims. On May 10, 2013, the Court issued two written orders, the first of which dismissed some of Fell's claims. The second order pertained solely to the juror misconduct claims, and found that Fell had established a sufficient basis for further inquiry with respect to Jurors 26, 143, and 162.

The juror misconduct inquiry required several days of in-court testimony from jurors and other witnesses. On August 15, 2013, Jurors 143 and 162 were called to testify. On September 27, 2013, the Court heard testimony from Juror 26. On October 22, 2013, Fell moved to file an amended Section 2255 motion, adding new factual allegations against these three and one additional juror. On March 12, 2014, the Court allowed the amendments as to the three initial jurors, but denied the motion with respect to the fourth juror.

Fell's amended Section 2255 motion is over 400 pages long and sets forth approximately twenty claims for relief. The juror misconduct claims themselves may be divided into three categories. First, Fell claims that Jurors 26, 143, and 162 intentionally withheld material information during jury selection, and that full disclosures would have supported valid challenges for cause. Second, he alleges that Jurors 26 and 143 were exposed to prejudicial facts beyond the trial record. This allegation includes the claim that Juror 143 surreptitiously traveled to Rutland in the midst of trial, viewed the crime scenes himself, spoke with a third party about the facts of the case, and shared his observations with the rest of the jury panel. Every day of trial thereafter, Juror 143 allegedly lied to the Court as he failed to reveal these extra-record activities. Fell contends that Juror 143's actions prejudiced the defense's case, and that his dishonesty warrants a new trial on the basis of juror bias. Third, Fell claims that Juror 143 coerced another juror into changing her vote.

The Court heard additional testimony on March 18-19, 2014, including that of witnesses claiming to have knowledge of Juror 143's trip to Rutland in 2005. Other witnesses included members of Fell's post-conviction litigation team, an FBI case agent, and Juror 162 for a second day of testimony. A non-testimonial hearing was held on May 9, 2014, and the parties have now submitted full briefing on the juror misconduct issue.

II. General Legal Principles

A. Section 2255 Standard

A prisoner in federal custody may file a motion under 28 U.S.C. § 2255 on the grounds that his sentence was imposed in violation of the Constitution or federal laws, was issued by a court that did not have jurisdiction, was in excess of the lawful maximum, "or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). Relief under Section 2255 is therefore generally available "only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice.'" Cuoco v. United States, 208 F.3d 27, 30 (2d Cir. 2000) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)).

"The reasons for narrowly limiting the relief permitted under § 2255 - a respect for the finality of criminal sentences, the efficient allocation of judicial resources, and an aversion to retrying issues years after the underlying events took place - are well known and basic to our adversary system of justice.'" Bokun, 73 F.3d at 12 (quoting United States v. Addonizio, 442 U.S. 178, 184 & n.11 (1979)); see also Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010). The movant bears the burden of establishing by a preponderance of the evidence any claim advanced in his Section 2255 motion. See Triana v. United States, 205 F.3d 36, 40 (2d Cir. 2000); Napoli v. United States, 45 F.3d 680, 683 (2d Cir. 1995).

B. "Death is Different"[4]

In this case, Fell is seeking relief from a sentence of death. The Supreme Court has long acknowledged that a death penalty case is fundamentally different from a non-capital proceeding.

[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.

Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion) (footnote omitted); see also Lockett v. Ohio, 438 U.S. 586, 605 (1978) ("Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases.") (plurality opinion); Gardner v. Florida, 430 U.S. 349, 357 (1977) (noting that "death is a different kind of punishment from any other that may be imposed in this country") (plurality opinion). This general tenet - that "death is different" - carries through to habeas corpus proceedings. See, e.g., Strickland v. Washington, 466 U.S. 668, 704 (1984) (Brennan, J., concurring in part and dissenting in part) (observing in habeas proceeding pursuant to 28 U.S.C. § 2254 that "we have consistently required that capital proceedings be policed at all stages by an especially vigilant concern for procedural fairness and for the accuracy of factfinding").

C. Right to an Impartial Jury

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a... trial, by an impartial jury...." U.S. Const. Amend. VI. "One touchstone of a fair trial is an impartial trier of fact - a jury capable and willing to decide the case solely on the evidence before it.'" McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984) (quoting Smith v. Phillips, 455 U.S. 209, 217 (1982)); accord United States v. Stewart, 433 F.3d 273, 303 (2d Cir. 2006). "The right to an impartial jury is nowhere as precious as when a defendant is on trial for his life." Sampson v. United States, 724 F.3d 150, 163 (1st Cir. 2013) (" Sampson II ") (citing Ross v. Oklahoma, 487 U.S. 81, 85 (1988)).

The Federal Death Penalty Act ("FDPA") requires a unanimous jury to conclude that the death penalty is warranted. See 18 U.S.C. §§ 3593, 3594. "[E]ach juror has the power to decide that a defendant will live rather than die. Each juror must be able to make that decision based solely on the evidence, uninfluenced by personal experiences that he or she may have had." United States v. Sampson, 820 F.Supp.2d 151, 157 (D. Mass. 2011) (" Sampson I "). "When possible juror misconduct is brought to the trial judge's attention he has a duty to investigate and to determine whether there may have been a violation of the [S]ixth [A]mendment.'" United States v. Lloyd, 462 F.3d 510, 518 (6th Cir. 2006) (quoting United States v. Shackleford, 777 F.2d 1141, 1145 (6th Cir. 1985)). "If even one [partial] juror is empaneled" and the death sentence is imposed, "the [government] is disentitled to execute the sentence." Morgan v. Illinois, 504 U.S. 719, 729 (1992).

III. Findings of Fact and Conclusions of Law

Fell claims that his jury was not impartial, and that juror misconduct corrupted his capital trial. The Court now addresses Fell's allegations against each juror in turn.[5]

A. Juror 162

Fell submits that during voir dire, Juror 162 withheld substantial information about her own personal history and that of her son. He first claims the juror failed to disclose that, like Donald Fell, she was the victim of sexual abuse as a child. Juror 162's history of sexual abuse was revealed when attorneys for Fell interviewed her in 2011 about her experience as a juror. After the interview, the juror signed a written declaration that included the following statements:

At trial, we learned that Donald Fell was abused as a child and that his parents were alcoholics. I was sexually abused by my stepfather for years and it didn't turn me into a murderer. We all have choices in life and Donald Fell just chose evil. Donald Fell had plenty of chances to get help, including from teachers and principals. He was given lots of chances to change things and didn't take them. That was important to me.

Fell Hr'g Ex. 6 at Bates Nos. 2580-81.

Fell contends that Juror 162's first opportunity to reveal her past sexual abuse was on the pre-trial questionnaires. The long questionnaire asked:

Q.38(a): Have you or has a family member or close friend ever been a witness to or the victim of a crime?

The short questionnaire asked essentially this same question. Juror 162 answered "No" to both. At the August 2013 hearing, she was called to testify about her responses.

Juror 162 testified that as a young child she was removed from the custody of her biological parents, placed in a series of foster homes, and ultimately adopted. As she disclosed to Fell's attorneys in 2011, her adoptive father sexually abused her over a period of several years. When questioned why she did not reveal this abuse prior to trial, she responded:

I didn't connect it. You know, this is something that I have never even thought about. I mean, I went on and lived my life, never considered it. I never thought about it. And so when that question came up in - you know, I would attribute crime as having somebody hold a gun to my head or somebody stealing my purse or something of that nature. It's just something that I never thought about. You know, I mean, I had a lot of other things happen to me.
...
My father was not convicted of any crime, and I - I have not considered myself a victim in all these years, and I did not connect that question.

Aug. 15, 2013 Hr'g Tr. at 99-100, 114.

The Court asked Juror 162 whether the trial evidence caused her to recall her own experiences of sexual abuse:

COURT: But is there - is there some linkage in your mind, at least during the course of the trial, that your experience had some relevance?
JUROR: No. You mean the decision that I made? No.
COURT: Well, not necessarily the decision, but as you are going through the trial -
JUROR: No.
COURT: Did it bring back memories?
JUROR: No, no. This is something I never think about... I just did not connect it.

Id. at 100-01. The juror also cited the passage of time as a factor:

JUROR:... It's just, I was so young. I mean, I went on and lived my life. There's so many different things that have happened to me in my life since then - I'm 71 years old - I never gave that - you know, I just, - it's something you just don't think about.

Id. at 100. During her second day of testimony, the juror again stated that she "didn't connect [her experience of sexual abuse] as being a crime." Mar. 19, 2014 Hr'g Tr. at 182.

Fell has presented evidence to show that Juror 162 recalled and spoke about her childhood sexual abuse on several occasions in the years immediately preceding trial. The testimony before the Court established that between 1999 and the Fell trial in 2005, Juror 162 disclosed her experiences of sexual abuse to two of her neighbors on separate occasions. Mar. 19, 2014 Hr'g Tr. at 22 (testimony of Jean Ratta-Roberts); id. at 59 (testimony of Suzann Widener). Prior to that, she discussed the abuse during a 1996 court-ordered psychological evaluation. Juror 162 explained to the evaluator that her past sexual abuse at one point caused her to run away from home, and that "even now the thought makes [her] feel dirty.'" ECF No. 512-44 at 98.

The juror also recalled her childhood sexual abuse when interviewed by Fell's post-conviction attorneys. In fact, according to one of the interviewers, Attorney Dina Zloczower, it was Juror 162 who brought up the issue in 2011 when asked about her experience as a juror. Mar. 18, 2014 Hr'g Tr. at 79. Fell therefore claims that Juror 162 does remember and think about her experience of childhood sexual abuse, and that her response on the questionnaire as to whether she was the victim of a crime was dishonest.

In addition to her history of sexual abuse, Juror 162 allegedly withheld a host of other personal information. Since trial, Fell has discovered that Juror 162's first husband was killed in a work-related accident when her son, Patrick, was a small child. Thereafter, she became severely depressed and was twice institutionalized for several months at the Vermont State Hospital. Patrick was placed into foster care and lived with a family member for a period of time.

While Juror 162 was at the Vermont State Hospital, an attorney was appointed as her guardian. That attorney proceeded to embezzle Juror 162's assets, including real estate. Juror 162 was able to recover only a small amount of the embezzled assets, and the attorney was never prosecuted. Juror 162 spoke about the embezzlement during the 1996 psychological evaluation referenced previously, but did not disclose it on the juror questionnaires as a "crime" committed against her. Fell's habeas counsel confronted her about this omission at the August 15, 2013 hearing.

COUNSEL: But there was another very serious event [in addition to sexual abuse], a criminal event, that you were a victim of that you did not disclose, and that would be when you were ripped off by attorney Don Milne, right?
JUROR: That's correct.
COUNSEL: And you never mentioned that?
JUROR: No, because I didn't think of it.

Aug. 15, 2013 Hr'g Tr. at 162.

At the Vermont State Hospital, Juror 162 reportedly developed a relationship with one of the nurses, Lucille Tatro. After her release from the hospital, Juror 162 was reunited with her son and the two of them lived with Ms. Tatro for the rest of Patrick's childhood. During that cohabitation, Ms. Tatro reportedly abused Juror 162 and at one point threatened her with a knife. After the relationship ended, Ms. Tatro allegedly became abusive toward both Juror 162 and the juror's current husband, and in one incident attempted to smash their car windshield and run them off the road. Juror 162 ultimately filed a police complaint, precipitating Ms. Tatro's arrest and prosecution. These latter events occurred in July of 1982, twenty-three years before the Fell trial.

Fell contends that Juror 162's violent history with Ms. Tatro should have been revealed on the juror questionnaires. The pre-trial long questionnaire asked:

36. Have you ever filed a complaint with the police against anyone?

Juror 162 answered "No." As discussed above, Question 38(a) similarly asked whether the juror, a family member or close friend had ever been witness to or the victim of a crime. The next sub-question asked:

38(b). Did you or your family member or close friend report that crime to the police or other law enforcement agency?

Because Juror 162 answered "No" to Question 38(a), she offered no information in response to Question 38(b). The record indicates that not only did Juror 162 file a police complaint against Ms. Tatro, but has filed several other complaints with police, mostly pertaining to noise and other minor disputes with neighbors.

Fell also argues that Juror 162 lied about Ms. Tatro's physical abuse toward her son Patrick. During the juror inquiry in August 2013, Fell's counsel asked Juror 162 about specific instances of alleged abuse by Ms. Tatro, including locking Patrick out in the cold and dragging him down the stairs by his hair. Juror 162 responded that "I don't know anything about that. Never heard of that." Aug. 15, 2013 Hr'g Tr. at 169. Fell argues that this testimony is belied by documents from the state courts, including a 1995 family psychological evaluation in which Patrick discussed his mistreatment. Juror 162 subsequently submitted an affidavit discussing the contents of that evaluation. In her March 2014 testimony, Juror 162 ultimately conceded that, "Later on, as the years progressed, my son told me certain things that [Tatro] did to him, but I myself never observed it." Mar. 19, 2014 Hr'g Tr. at 156.

Among Juror 162's apparent omissions, perhaps the most questionable pertained to her son's substance abuse and criminal histories. The Court's short questionnaire asked:

"Have you, or anyone close to you, been a complainant in a criminal case?"

Fell Hr'g Ex. 2 at 2. Juror 162 answered "No." She elaborated (although not in direct response to the question posed) that "My son was under Dept of Corrections House arrest for DWI and domestic violence 16 years ago. He is now ass't manager at Shaws, so he sure has been a better person for it." Id.

The long questionnaire asked:

43(a). Have you or has a family member or close friend ever been charged with a crime?

Fell Hr'g Ex. 3 at 19. Juror 162 responded "Yes, " and in response to Part (b) of the same question, asking about the result of any prosecution, stated: "(House arrest) my son - DWI domestic abuse - He was under the Dept of Corrections for 3 yrs - Intense Counseling - Best thing ever happened to him - he is now a different person." Part (d) of that same question asked whether anything in her son's experience would make it difficult for Juror 162 to sit as a fair and ...


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