ORDER DENYING MOTION TO STRIKE AGGRAVATING FACTORS
JOHN C. COUGHENOUR, District Judge.
This matter comes before the Court on Defendant's motion to strike certain non-statutory aggravators. (Dkt. No. 111). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby DENIES the motion for the reasons explained herein.
Defendant, Samuel Stone, is accused of murdering Michael Anita, his cellmate at the time of the alleged crime. The government has given notice that it intends to seek the death penalty. (Dkt. No. 3.) In addition to certain statutory aggravating factors, it gave notice of four non-statutory aggravating factors. ( Id. at 3-4.) Defendant moves to strike three of them:
1) Pattern of Violent Criminal Conduct. The defendant, SAMUEL STONE, from at least age fifteen and continuing into his adult life, engaged in a continuing pattern of violent criminal conduct against other individuals, including, but not limited to, the following: threats of violence towards others, the physical beating of others; and the killing of others.
2) Lack of Remorse. The defendant, SAMUEL STONE, has displayed no remorse for the murder of Michael Anita.
3) Future Dangerousness. The defendant, SAMUEL STONE, poses a continuing danger to others in that he is likely to commit additional acts of violence in any setting against inmates, prison guards and other officials at correctional institutions where he is or will be incarcerated, as evidenced by his past acts of violence and pattern of violence. See Simmons v. South Carolina, 512 U.S. 154, 162-164 (1994).
(Dkt. No. 111, at 2.) Specifically, Defendant contends that the "pattern of violent conduct" and "future dangerousness" factors are unconstitutionally vague, were not intended by Congress to be used as non-statutory aggravating factors, and are outweighed by the risk of unfair prejudice; the "future dangerousness" factor is not a rational basis for the imposition of the death penalty, is too unreliable to serve as an aggravating factor, and undermines the beyond a reasonable doubt standard; and the "lack of remorse" factor would violate Defendant's Fifth, Sixth, and Eighth Amendment rights. (Dkt. No. 111, at 3-14.) Defendant also asks that the Court screen any evidence that the government intends to use to support those factors. The government opposes the motion, arguing that none of the bases of Defendant's motion are sufficient to strike the non-statutory factors. (Dkt. No. 124.)
Defendant filed a reply, emphasizing his request to require the government to provide a "detailed proffer of the evidence and witnesses it intends to present" with respect to future dangerousness and lack of remorse. (Dkt. No. 147, at 2.) The government moved for leave to file a sur-reply, (Dkt. No. 154), which the Court granted, (Dkt. No. 159.) The government filed a sur-reply. (Dkt. No. 155.)
Under the Eighth Amendment, there are "two different aspects of the capital decisionmaking process: the eligibility decision and the selection decision." Tuilaepa v. California, 512 U.S. 967, 971 (1994). "To render a defendant eligible for the death penalty in a homicide case, ... the trier of fact must convict the defendant of murder and find an aggravating circumstance' (or its equivalent) at either the guilt or penalty phase." Id. at 971-72.
The selection decision "determines whether a defendant eligible for the death penalty should in fact receive that sentence." Id. at 972. This requires an individualized determination, considering "relevant mitigating evidence of the character and record of the defendant and the circumstances of the crime." Id. While "statutory aggravating circumstances play a constitutionally necessary function" by "circumscrib[ing] the class of persons eligible for the death penalty.... [t]he Constitution does not require the jury to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death." Zant v. Stephens, 462 U.S. 862, 878 (1983). Thus, after the jury finds at least one statutory aggravating circumstance, rendering the defendant eligible for the death penalty, it must still weigh other aggravating and mitigating circumstances, including non-statutory aggravating factors, to determine whether the death penalty should actually be applied in a particular case.
Nonstatutory aggravating factors must be relevant, reliable, not overly broad, and not overly vague. The "relevance" and "reliability" requirements mean that the factor must be "of sufficient seriousness in the scale of societal values to be weighed in selecting who is to live or die, " and also must be "imbued with a sufficient degree of logical and legal probity to permit the weighing process to produce a reliable outcome." United States v. Friend, 92 F.Supp.2d 534, 543 (E.D. Va. 2000). The "overly broad" requirement means that "the circumstance[s] may not apply to every defendant convicted of a murder; it must apply only to a subclass of defendants convicted of murder." Tuilaepa, 512 U.S. at 972. Finally, an aggravating factor is unconstitutionally vague when it does not "channel the sentencer's discretion by clear and objective standards that ...