United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on foundational issues that the
Court required the parties to address in its June 23, 2016,
Order  before considering Petitioner Demarcus Ali
Sears' ("Petitioner") Motions for Discovery and
an Evidentiary Hearing .
April 11, 1991, a Cobb County grand jury issued an indictment
charging Petitioner with one count of kidnapping with bodily
injury (Count 1) and one count of armed robbery (Count 2).
([14.1] at 14-16). The case went to trial.
The evidence [presented at trial] showed that on the
afternoon of October 7, 1990, Demarcus Sears and Phillip
Williams were walking through Atlanta because their car had
broken down. Wanting to return home to Ohio, where they
lived, they walked to a Waffle House in Smyrna and tried to
borrow money from several patrons in the restaurant. They
told the patrons that their car had broken down and they
needed money to go to Cincinnati. Sears carried a black
briefcase that contained brass knuckles, knives and a set of
old handcuffs that was missing a key. He opened the briefcase
in the restaurant and tried to sell some of the items to a
customer. After receiving directions and a couple of dollars
for bus fare, Sears and Williams walked to a nearby Kroger
food store. A police officer observed them loitering near the
Kroger parking lot and briefly spoke with them before he left
in response to a radio call. Subsequently, they decided to
steal a car so they could drive back to Cincinnati.
They spotted the victim, Gloria Wilbur, when she parked her
1985 Buick and entered the Kroger. Around 8:00 p.m., Ms.
Wilbur returned to her car and placed her groceries in the
trunk. Sears approached her, struck her with the brass
knuckles and forced her into the car. Williams then got
behind the wheel and they drove north on 1-75. Sears told Ms.
Wilbur to keep quiet, pulled her into the back seat, and
handcuffed her with her hands behind her back. When they
stopped for gas and hamburgers, Sears wedged Ms. Wilbur down
between the seats and covered her with book bags to prevent
discovery. While they were driving through Tennessee, he
They crossed the border into Kentucky around 1:00 a.m. and
stopped the car. Despite her pleas to remain in the car,
Sears took the victim into the bushes along 1-75 and stabbed
her to death. Ms. Wilbur's body was found, still
handcuffed, almost a week later. Her abandoned Buick was
discovered in a Cincinnati suburb. Bloodstains in the car
matched the victim and pubic hair taken from the back seat
Sears v. State, 493 S.E.2d 180, 182 (Ga. 1997).
September 22, 1993, a jury convicted Petitioner on both
counts of the indictment. ([14.2] at 91). On September 25,
1993, the jury returned their sentencing verdict, finding
statutory aggravating circumstances beyond a reasonable doubt
and recommending a sentence of death. ([15.24] at 32-36;
[14.2] at 102-107).Each juror affirmed, in court, that
the verdict announced was the verdict they reached, that it
was still their verdict, and that it was freely and
voluntarily entered. ([15.24] at 37-46). The trial court
adopted the jury's recommendation and sentenced
Petitioner to death for his kidnapping with bodily injury
conviction. ([14.2] at 106-107). Petitioner was sentenced to
life imprisonment on the armed robbery charge. ([14.2] at
Petitioner's Motion for a New Trial and his Direct
October 14, 1993, Petitioner filed a motion for a new trial,
which he amended on February 9, 1996, May 24, 1996, and June
20, 1996. Petitioner's motion argued, among other things,
that "the jury's death verdict was impermissibly
coerced, " and that "there was misconduct on the
part of jurors during the trial and sentencing
deliberations." ([14.4] at 29, 100). The trial court
denied Petitioner's motion on July 18, 1996. ([14.4] at
113). Petitioner appealed and, on December 3, 1997, the
Georgia Supreme Court affirmed Petitioner's convictions
but remanded to develop the record on the alleged jury
misconduct during sentencing. Sears v. State, 493
S.E.2d 180 (Ga. 1997).
March 16 and 17, 1998, the trial court held an evidentiary
hearing on Petitioner's jury misconduct allegations.
([17.8]; [17.9] at 52-53). One of the jurors at trial, Angel
Fisher ("Fisher"), was called to testify at the
hearing. ([17.9] at 35). She stated that she was, during
deliberations, the lone hold-out for a life sentence but
ultimately voted for a death sentence on the kidnapping with
bodily injury count. The trial court ruled that Fisher could
testify about the following topics:
1. "Express and specific acts of violence, "
including "threats of violence." ([17.9] at 20).
2. "[O]vert acts of coercion." ([17.9] at 20).
3. Juror Kenneth Makant's "statements regarding the
rape of his daughter." ([17.9] at 20).
4. Foreman Sanford Abrams' alleged claim that Fisher
should be prosecuted for ...