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 Petitioner Demarcus Ali
Sears' ("Petitioner") Motions for Discovery and
an Evidentiary Hearing , and Respondent Bruce
Chatman's ("Respondent") Motion to Exceed the
Page Limitation for Respondent's Brief .
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). On
September 22, 1993, a jury convicted Petitioner on both
counts of the indictment. ([14.2] at 91).
September 23, 1993, at approximately 3:56 p.m., the jury
began their sentencing deliberations. ([15.22] at 80, 92).
The jury was excused at 6:37 p.m. and resumed their
deliberations at 9 a.m. the next morning. ([15.22] at 94-95).
At 11:20 a.m., the trial court notified the parties of the
following note from the jury:
Dear Judge Staley, several jurors are having a problem
deciding whether rape and murder can be statutory aggravating
circumstances in this case. They believe that since the
Defendant was not charged or convicted-and convicted is
underlined-of these charges in Georgia, they cannot consider
these two crimes as statutory aggravating circumstances even
though they may believe beyond a reasonable doubt that these
crimes occurred in this case. Please provide the jury with
guidance if you can.
([15.23] at 10). Following a colloquy with the parties, the
trial court instructed the jury:
Under our law, a sentence of death shall not be imposed
unless the jury finds beyond a reasonable doubt that at least
one or more statutory aggravating circumstances exists;
recommends the death sentence in its verdict; and designates
in its verdict, in writing, the statutory aggravating
circumstances or stances which it finds from the evidence to
exist in this case beyond a reasonable doubt.
([15.23] at 17). The trial court also recharged the jury on
reasonable doubt and the statutory aggravating circumstances,
and instructed the jury to "remember the charge in its
entirety and apply that entire charge to the facts and
circumstances" of the case. ([15.23] at 16-20). At 11:40
a.m., the jury returned to the jury room to continue their
deliberations. ([15.23] at 20).
12:30 p.m., the trial court notified the parties of a second
jury note, which stated: "The jury is at an eleven-one
deadlock in favor of the death penalty. How do we complete
the verdict as to sentencing? Will the jury be polled, and
how should the eleven jurors answer if they don't agree
with the one juror who has voted for life imprisonment?"
([15.23] at 22). Petitioner argued that the note indicated
the jury had reached a verdict of life imprisonment. ([15.23]
at 23). The trial court stated it would instruct the jury to
continue their deliberations because they had only
deliberated for six hours. ([15.23] at 23-24). At 12:34 p.m.,
the trial court instructed the jury as follows:
You all have only been deliberating on this case for six
hours. I would like you all to consider continuing your
deliberations and see what you can do with the case. I'm
not putting any pressure on you to [do] anything one way or
another. Whatever your decision is, that's you[r]
decision. But I feel like you need to deliberate on the case
longer. I'm going to send you to lunch, and I want you to
come back after you've had your lunch hour, and I want
you to continue with your deliberations.
([15.23] at 25).
approximately 2 p.m., following a lunch break, the jury
resumed their deliberations. ([15.23] at 27). At 4:50 p.m.,
the trial court notified the parties of a third note from the
jury, which stated:
Dear Judge Staley, we have reviewed the case from start to
finish and we are still deadlocked eleven to one in favor of
the death penalty. All twelve jurors agree that there is a
hopeless deadlock with no hope of resolution. Deliberations
have ceased. What do we do now? All minds are closed.
([15.23] at 27). Petitioner asked the trial court "to
accept the jury's non-unanimous verdict and impose a
sentence of life." ([15.23] at 28). The trial court
denied Petitioner's request, and provided the jury with
supplemental instructions approved by the Georgia Supreme
Court in Romine v. State, 350 S.E.2d 446 (Ga.
I've received your note. And in light of your note, I
believe it's appropriate to give you some further
instructions at this time. You've been deliberating a
while, and I deem it proper to advise you further in regards
to the desirability of agreement, if possible.
This case has been exhaustively and carefully tried by both
sides. It has been submitted to you for a decision and
verdict, if possible. While the verdict must be the
conclusion of each juror, and not a mere acquiescence of the
jurors in order to reach an agreement, it is still necessary
for all of the jurors to examine the issues and questions
submitted to them with candor and fairness and with proper
regard and deference to the opinion of each other. A proper
regard for the judgments of others will greatly aid us in
forming our own judgments.
Each juror should listen to the arguments of other jurors. If
the members of the jury differ in their views of the
evidence, or the mitigating or aggravating circumstances,
such differences of opinion should cause them all to
scrutinize the evidence more closely and to re-examine the
grounds of their opinion. It's your duty to decide the
issues that have been submitted to you, if you can
conscientiously do so. Do not hesitate to change an opinion
if you become convinced it's wrong. However, you should
never surrender honest convictions or opinions in order to be
congenial or reach a verdict solely because of the opinions
of other jurors.
Members of the jury, the aim ever to be kept in view is the
truth as it appears from the evidence, examined in the light
of the instructions of the Court.
I am going to send you to the hotel, and you'll have your
dinner. And you'll have an evening hour to step away from
all this. You've had a long day. Put this aside. Enjoy
each other's company.
I'm going to let you think about this instruction, and
think about all the instructions of the case in the morning.
And I'm going to let you pick up your deliberations then.
([15.23] at 30-31). The jury was then excused for the day.
([15.23] at 32).
a.m. the next morning, the jury resumed their deliberations.
([15.24] at 10). At 10:25 a.m., the trial court told the
Been a lot going on this morning. It started off with the
foreman asking the deputies and the bailiffs to remove all of
the magazines and reading material out of the jury room, and
asking them to ask all the jurors to turn over any writing
materials and things that weren't related to the case.
Also, yesterday, there was an instance where one of the
jurors was sitting [in] the jury room with a Sony Walkman on
her head. And that was-she was asked to turn that over so she
could participate in the deliberations. That happened
This morning I have two notes. The first note came when I
asked you all to come the first time. It goes as follows: In
the jury selection process, each juror was read the charges
in this case. Murder was not one of the charges. The reason
that the juror who has steadfastly maintained blank position
from the outset of deliberations has given for a blank
decision is that blank cannot vote on the death penalty
because the Defendant was not convicted of murder. And
he's got another side. Blanks are to protect the gender
of the juror.
Can you provide the jury with a transcript of the questions
and answers as to their position on the death penalty? We
need to know what questions were asked and how the jurors
responded. We would also like for you to provide to the jury
a definition of perjury and the penalty for the commission of
perjury. Sanford L. Abrams, Foreperson.
Then I got another note. Dear Judge Staley, I am concerned
about the actions of the foreman of this jury. This letter is
in reference to the foreman's most recent letter to you.
Mr. Abrams wrote this letter prior to our jury deliberations
today. He informed us that he was submitting the letter to
you whether we wanted him to or not. I don't think this
type behavior [sic] is appropriate for a foreman. I will not
sit on a jury where I am singled out. I am not being treated
fairly in this deliberating process. I am also being singled
out by the foreman-and, I guess, also-he is overstepping his
boundaries as a foreman of the jury. To my understanding, a
foreman should be a leader, not a dictator. Please explain
the duties and responsibilities of a jury foreman. Should he
be able-question a juror's response to the Court during
jury selection? Sincerely, Angel Fisher.
([15.24] at 10-12).
asked the trial court to declare a mistrial and sentence him
to life in prison. ([15.24] at 19). The trial court denied
Petitioner's motion on the grounds that the jury had not
deliberated "long enough ... to review all the evidence
and discuss with each other all the different issues
involved." ([15.24] at 20). The trial court noted that
"if somebody was listening to a Sony and reading
magazines yesterday, we don't really know how much time
they've spent deliberating." ([15.24] at 21). At
Petitioner's request, the trial court agreed to instruct
the jury that that (i) "[i]n matters of voting, all
jurors stand the same, " and (ii) "[i]t is
inappropriate for any juror to do anything other than fully
participate in jury deliberations." ([15.24] at 18-19,
24). At 11:31 a.m., the trial court instructed the jury:
THE COURT: Mr. Abrams, I have your note from this morning.
And, Ms. Fisher, I have yours as well. I perceive from that
that there are four issues presented by the-I perceive that
there are four issues presented by the two notes that I have.
One is-discusses loosely whether the jury may impose the
death penalty when the jury has not found the Defendant
guilty of murder. That generally placed as one of the issues
presented in your note to the Court. Another issue is a
request to have the transcript read of the jury voir dire,
jury questioning process. Another request is for a definition
of perjury. And then from reading the two notes together, a
definition of what a foreperson can do.
I'm going to respond to those as follows: Now, as to the
very first issue, whether you may impose the death penalty
when you have not found the Defendant guilty of murder. First
of all, I've given you thorough instructions on this
area. It is your responsibility to recall in its entirety the
instructions I gave you.
Simply put, you may impose the death penalty if you find any
of the four alleged statutory aggravating circumstances, that
they exist beyond a reasonable doubt. Then you, the jury, may
impose a life sentence or a death sentence, consistent with
those instructions that I gave you in their entirety, with
the definitions of what constitute the alleged statutory
aggravating circumstances, with the definitions of
considering aggravating and mitigating evidence, with all
those instructions and with the instruction of what beyond a
reasonable doubt means.
Okay. On the issue of whether to read the transcript of the
jury voir dire, I am not going to do that. Neither am I going
to give you a definition of perjury.
As to a definition of what a foreperson can do-and it's a
foreman, so I'm just going to say foreman. The foreman is
the elected leader of the jury. His responsibilities are to
lead the discussions and deliberations of the jury and sign
the appropriate forms. The law does not closely define his
conduct other than that-other than that. Basically, the
foreperson is the elected person responsible for leading the
deliberations, leading the discussion. In matters of voting,
all jurors stand the same.
A juror is responsible to participate in the jury
deliberations. A juror is supposed to listen to his or her
fellow jurors. A juror is supposed to vote their ideas and
their positions. A juror is supposed to participate. It is
inappropriate for any juror to do anything other than fully
participate injury deliberations. Mr. Abrams, have you all
been deliberating this morning at all?
THE FOREPERSON: Yes, ma'am.
THE COURT: Okay. With these instructions, I'm going to
send you back to further your deliberations. If you have
further questions, write me a note.
([15.24] at 29-31).
11:35 a.m., the jury resumed their deliberations. ([15.24] at
31). At approximately 3:08 p.m., after a one-hour lunch
break, the jury returned their verdict, finding all of the
statutory aggravating circumstances beyond a reasonable doubt
and recommending a sentence of death. ([15.24] at 32-36;
[14.2] at 102-107). The jury was then polled. 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 108).
Petitioner's Motion for a New Trial and his Direct
October 14, 1993, Petitioner filed a motion for a new trial,
which he later amended. ([14.2] at 111). 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