Criminal Practice – Post-Offense Evidence Supports Death Penalty

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U.S. v. Torrez (Lawyers Weekly No. 001-178-17, 91 pp.) (Thacker, J.) No. 14-1, Aug. 28, 2017; USDC at Alexandria, Va. (O’Grady, J.) 4th Cir.

Holding: A 4th Circuit panel upholds defendant’s conviction for first-degree murder in the 2009 killing of a 20-year-old female Navy intelligence specialist; a divided panel upholds his death sentence.

Appellant Jorge Avila Torrez lived down the hall from the victim, and his role in her death did not come to light until after he had been arrested for additional abductions and sexual assaults of other women in the Arlington, Virginia, area. He also was charged with the 2005 murder of two young girls in Zion, Illinois.

Guilt Phase

Appellant raises five challenges to his first-degree murder conviction: (1) whether the district court improperly limited appellant’s confrontation rights when it conditioned the cross-examination of a jailhouse informant on the admission of evidence of the Zion, Illinois, crimes; (2) whether the district court violated Rule 404(b) when it admitted evidence of the Arlington crimes and appellant’s electronic media showing violent pornography; (3) whether the district court committed reversible error in allowing expert testimony on shoeprint analysis; (4) whether appellant was denied his right to an impartial jury when the district court refused to allow him to ask potential jurors whether they would consider a sentence of life upon hearing evidence that appellant had murdered two young children and sexually abused one of them; and (5) whether the government’s use of cell site location information against appellant violated his Fourth Amendment rights.

We find the challenges to his conviction to be without merit.

Sentencing

As for sentencing, we focus on three specific challenges: (1) whether appellant’s death sentence was unconstitutional because it was based solely on post-offense conviction aggravators; (2) whether the district court erred in failing to apply the categorical approach to state convictions that made him death-penalty eligible; and (3) whether the district court erred by allowing appellant to forego a mitigation defense without conducting a second competency evaluation and hearing.

We find no reversible error as to the issues raised by appellant. We are also satisfied that (1) the evidence clearly supports the special finding of the existence of an aggravating factor required to be considered under 18 U.S.C. § 3592 and (2) the sentence of death was not “imposed under the influence of passion, prejudice, or any other arbitrary factor,” 18 U.S.C. § 3595(c)(1). Accordingly, we affirm appellant’s conviction and death sentence.

Concurrence

Diaz, J.: I concur in Judge Thacker’s thorough opinion in this case, save for footnote 10. Specifically, I see no need to second-guess our previous holding in U.S. v. Higgs that conduct occurring after the commission of a capital offense can make a defendant eligible for the death penalty. In my view, Higgs presented compelling justifications, rooted in the Federal Death Penalty Act’s language, for considering all conduct occurring before the sentencing phase of a capital case.

Concurrence & Dissent

Floyd, J.: I agree with my colleagues in the majority that none of appellant’s complaints with respect to his trial merit reversal. However, I would find that Torrez was ineligible for the death penalty and accordingly vacate his death sentence and remand for resentencing.

Because I find that our holding in Higgs with respect to the categorical approach has been implicitly overruled by the Supreme Court, I would consider the issue anew and find that the categorical approach should apply to the aggravators found at 18 U.S.C. §§ 3592(c)(2) & (c)(4). Then, applying the categorical approach, I would find that the prior convictions asserted by the government do not satisfy either of those statutory aggravators. Accordingly, I would vacate the sentence of death in this case, strike the (c)(2) and (c)(4) aggravators from the government’s notice of intent to seek the death penalty, and remand for resentencing. I respectfully dissent from the majority’s holding with respect to Torrez’s sentence.