United States v. Webb , 70 F. App'x 2 ( 2003 )

Not for Publication in West’s Federal Reporter -
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-1811
UNITED STATES OF AMERICA,
Appellee,
v.
CHARLIE WEBB,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Porfilio,* Senior Circuit Judges.
Syrie Fried, Assistant Federal Public Defender for appellant.
John T. McNeil, Assistant Attorney General, with whom Dina
Michael Chaitowitz, Assistant Attorney General, was on the brief
for the United States.
June 17, 2003
*
Of the Tenth Circuit, sitting by designation.
PORFILIO, Senior Circuit Judge. Charlie Webb was
convicted by a jury of being a felon in possession of a firearm and
sentenced to a term of 288 months. His appeal presents three
issues relating to the district court’s discretionary questioning
of the venire and instruction of the jury. Finding no abuse of
discretion, we affirm.
Responding to a call about a disturbance at the Orchard
Park housing project in Boston, Officers Lewis and McCarthy
observed a man and a woman, whom they later discovered were
Defendant Webb and Eugenia Gillenwater, standing near the
intersection of Zeigler Street and Wheatly Way. The couple seemed
to be arguing, so Officer McCarthy turned the police vehicle around
and stopped, pointing the headlights directly on Webb and Ms.
Gillenwater.
Officer McCarthy got out of the vehicle and walked toward
Defendant. As he neared, Officer McCarthy noticed Webb holding a
large, shiny, silver-colored metallic object. Continuing to
approach, McCarthy saw Webb look at him, turn towards Gillenwater,
and drop the object into the front of her pants. Although Officer
Lewis’ view was somewhat obscured, he also saw Webb turn to
Gillenwater and motion with both his hands toward her waist.
Even though the events occurred after dark, the scene was
well-lighted by an overhead street lamp as well as other ambient
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light from the complex. Most of the illumination, however, was
provided by the headlights of the officers’ vehicle.
Officer McCarthy seized Webb, and Officer Lewis
approached Gillenwater and removed a loaded 9mm semi-automatic
pistol from her waistband. Both were then placed under arrest.
At trial, Ms. Gillenwater, telling a more robust story,
testified she felt Webb place a heavy object in the front of her
pants after she noticed McCarthy heading toward her and Webb. She
also stated that when she tried to warn Webb before the officers’
vehicle stopped, he said, “f*** them polices.[sic] If they come
over here I’ll shoot them bitches.”
The defense vigorously cross-examined the officers over
a suggested discrepancy between their testimony and their written
report. The officers testified the encounter was under the street
lamp at 117 Zeigler, but the report stated it occurred in front of
111 Zeigler. Defendant suggested the change occurred when the
officers discovered the street lamp was at 117. They explained,
however, they took no contemporaneous notes at the scene, and
Officer McCarthy was unable to account for why he wrote 111 and not
117. The only testimony on Defendant’s behalf came from two women
whose evident purpose was to impeach the veracity of Ms.
Gillenwater.
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I. VOIR DIRE ON ATTITUDES TOWARD BLACKS
Defendant argues the district court refused to ask the
venire a question about possible bias. Counsel requested that the
court inquire:
The defendant in this case is black/African
American.
Does the fact that he is black make you think
it is more likely that he is guilty of the
crime he is charged with here today?
The court declined, relying instead upon less specific questions
crafted to solicit responses indicating wider potential bias. For
example, the court asked,
Are any of you sensible of any bias or
prejudice whatsoever with respect to the case
to be tried? Do any of you know any reason why
you do not stand indifferent to this case?
Do any of you know any reason why you ought not
be called to sit as jurors in this case?
Although the court directed all the parties to stand at
the outset of voir dire and the prospective jurors were aware
Defendant is black, he contends these measures were insufficient.
Because two of the three government witnesses were white, counsel
argues the court’s refusal to ask the specific question about racial
bias resulted in Defendant’s inability to determine whether racial
prejudice would affect the jury. Thus, Defendant was left without
an adequate basis upon which to exercise his peremptories and
challenges for cause.
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Defendant first relies upon Rosales-Lopez v. United
States, 451 U.S. 182, 190-91 (1981), in which the Court instructed,
In the federal court system, we have indicated
that under our supervisory authority over the
federal courts, we would require questions
directed to the discovery of racial prejudice
be asked in certain circumstances in which such
an inquiry is not constitutionally mandated.
(citation omitted). He cites other cases relating to the proper
role of voir dire in removing prospective jurors who will not be
able to be impartial and the necessity to uncover biases that would
justify their exclusion. He adds, in this case, questioning about
racial bias was necessary to accomplish the task. Indeed, there was
a potential for white against black bias in Gillenwater’s testimony
indicating “a threat of violent conduct by a black man directed
against white police officers.”
The government responds the court did not err because its
“inquiry probed potential racial and other prejudice in a manner at
least as likely to reveal such bias or prejudice as would the
question about race that Webb had requested to be asked at voir
dire.” The prosecution maintains that the venire, which had been
introduced to Webb at the outset, could see he is black. Thus, the
government urges, the court’s questions about any prejudice,
“coupled with its instruction that members of the venire should
answer in the affirmative even if they ‘may’ or ‘might’ harbor such
prejudice, were more than sufficient to probe the racial animus of
potential jurors,” citing United States v. Brown, 938 F.2d 1482,
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1485-86 (1st Cir. 1991)(the mere fact a defendant is black does not
trigger a need for a special question). The court’s repeated
general questions about possible bias and its instruction to respond
if there was a possibility of bias in a potential juror’s mind were
sufficient, the government argues. After all, it notes, as the
Court observed in Rosales-Lopez, there is “little reason to believe”
a potential juror who did not respond to a general question on
possible bias “would have answered affirmatively a question directed
narrowly at racial prejudice.” 451 U.S. at 193 n.8.
This issue must be judged under an abuse of discretion
standard in which trial courts are given wide latitude. Brown, 938
F.2d at 1485. “The trial judge’s function at this point in the trial
is . . . to reach conclusions as to impartiality and credibility by
relying on their own evaluations of demeanor, evidence and responses
to questions.” Rosales-Lopez, 451 U.S. at 188 (citations omitted).
Therefore, a reviewing court, in recognition of this role, confers
great latitude upon the trial judge’s choice of questions.
Moreover,
“[a]buse of discretion” is a phrase which
sounds worse than it really is. All it need
mean is that, when judicial action is taken in
a discretionary matter, such action cannot be
set aside by a reviewing court unless it has a
definite and firm conviction that the court
below committed a clear error of judgment in
the conclusion it reached upon a weighing of
the relevant factors.
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Schubert v. Nissan Motor Corp, 148 F.3d 25, 30 (1st Cir.
1998)(quoting In re Josephson, 218 F.2d 174, 182 (1st Cir. 1954)).
Judged in this light, we are hard pressed to find any abuse of
discretion here. As the Supreme Court has instructed:
In our judgment, it is usually best to allow
the defendant to resolve this conflict by
making the determination of whether or not he
would prefer to have the inquiry into racial
or ethnic prejudice pursued. Failure to honor
his request, however, will be reversible error
only where the circumstances of the case
indicate that there is a reasonable
possibility that racial or ethnic prejudice
might have influenced the jury.
Rosales-Lopez, 451 U.S. at 191 (footnote omitted).
Nevertheless, we recognize the importance of Mr. Webb’s
concern. Doubtless, it was the district court’s motivation to
protect Defendant against possible racial contamination of the
jury’s deliberations by suggestion. Yet it was, after all,
Defendant’s obvious choice. He must have assumed the potential
reward was worth the risk his question posed. The inquiry he
offered was appropriate and without an inflammatory purpose. Even
though it was not an abuse of discretion to refuse to ask that
question, the court could have asked it without harm. Brown, 938
F.2d at 1485. “[T]he wiser course generally is to propound
appropriate questions designed to identify racial prejudice if
requested by the defendant.” Id. (quoting Ristaino v. Ross, 424
U.S. 589, 597 n.9 (1976)).
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II. VOIR DIRE ON OFFICER CREDIBILITY
Defendant postulates the district court erred by not
asking the venire this question:
Police officers will be testifying as
witnesses in this case. People who are not
police officers will also be testifying in
this case. Would you be more likely to
believe the testimony of a police officer
simply because he or she is a police officer?
Defendant relies upon United States v. Victoria-Peguero, 920 F.2d 77(1st Cir. 1990), to support his argument that the First Circuit,
like others, holds it is error for the trial judge to refuse to
question the venire about whether it would give extra credence to
law enforcement witnesses. To make the determination of whether the
failure to inquire is reversible error, Defendant adds that courts
consider: (1) the importance of the law enforcement officer’s
testimony to the case as a whole; (2) the extent to which a venire
person’s attitude toward law enforcement is covered in other
questions on voir dire and the general charge; (3) the extent to
which the officer’s credibility is put to issue; and (4) the extent
to which the officer is corroborated by other non-officer’s
testimony. In support, he cites United States v. Anagnos, 853 F.2d
1, 3 (1st Cir. 1988)(citing United States v. Baldwin, 607 F.2d 1295,
1297-98 (9th Cir. 1979)).
Defendant contends the testimony of the arresting officers
was critical; indeed, he points out, the government argued to the
jury it could convict on that testimony alone. Defendant asserts he
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vigorously sought to impeach the officers. Specifically, he urges,
he questioned Officer McCarthy’s ability to see an object in
Defendant’s hands which he claimed ended up in Ms. Gillenwater’s
clothing. Defendant further focused his credibility attack on the
change in the address recorded from 111, where there was no street
lamp, to 117 Zeigler Street, where there was a street light.
Defendant exacuates the importance of Officer McCarthy’s testimony
by reminding that jurors sent a note asking whether the couple was
actually located under the lamppost. Hence, he argues, “the court
did not specifically instruct the jury to treat the testimony of
police officers in the same way they would treat the testimony of
any other witness, nor did it caution them not to give extra
credence to their testimony. Indeed, the court’s final instructions
did not single out the testimony of the police officers for any
special mention at all.”
The government responds the district court determined
whether any venire person had any connection with law enforcement.
For those who did, the court examined them at side-bar about their
potential for bias. The government argues at least five circuit
courts have determined that this process sufficiently ferrets out
pro-law enforcement bias. Moreover, this approach comports with
this court’s holding that when law enforcement testimony is
important to the government’s case, the district court “should
ordinarily inquire into whether prospective jurors are more likely
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to credit [police officers’] testimony.” United States v. Pappas,
639 F.2d 1, 4 (1st Cir. 1980).
The government adds whether the failure to ask specific
questions is reversible error depends in part upon the extent to
which the credibility of the government agent’s testimony is put
into issue. Id. at 5. Here, the discrepancy between the officers’
testimony and the written report was irrelevant. It was
unquestioned that the encounter took place at the intersections of
Zeigler and Wheatly Way; but, more importantly, all agreed that the
lights from the police vehicle were shining directly on Defendant
and Ms. Gillenwater as the officers emerged. Thus, the attempted
impeachment was based upon an insignificant discrepancy — whether
the parties were under the street light did not affect whether the
officers could observe Mr. Webb. Finally, we are reminded, in its
general charge, the court instructed the jury to treat all witnesses
alike.
The government’s position is well taken. Once again,
judging this issue under the abuse of discretion standard, we find
no abuse. Although the officers’ testimony was important, it was
corroborated by Ms. Gillenwater. Moreover, the attempt to impeach
them fell short of a critical evidentiary issue. Judged in light of
the entire record, the variance between the address stated in the
testimony and that included in the written report did not suggest
the officers were not credible. Finally, the jury was told in the
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general charge that the testimony of one witness was not entitled to
greater credibility than that of any other.
The lack of abuse of discretion notwithstanding, we remain
curious why the court did not eliminate the issue at the outset.
The court’s method of probing the issue was certainly more
complicated than simply asking the question proposed by the defense.
True enough, the court was able to discover persons who might have
harbored police bias. After that discovery, the court pursued
questioning which probed the essence of disclosures Defendant
sought. The court’s general charge was also sufficient to emphasize
the jury could not give the officers more credibility than it gave
to the remaining witnesses. But, any doubt and an appellate issue
could have been eliminated by simply asking the question the defense
solicited. A salutary result could also have been achieved.
By asking the question, Defendant’s major concern could
have been alleviated. He posits that a potential juror might have
been reared to respect police authority. If so, that person might
believe because of their position, officers are entitled to greater
credibility than others. If the proposed question had been asked,
Defendant maintains, such a person could have been alerted to
explore his conscience for a previously unrecognized bias.
Unfortunately, this sort of self-examination was not suggested by
any of the questions posed by the court.
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III. INSTRUCTION ON DEFENDANT’S RIGHT NOT TO TESTIFY
Relying upon Carter v. Kentucky, 450 U.S. 288 (1981),
Defendant argues the district court erred by not instructing the
jury it should draw “no adverse inferences” against him because he
did not testify. He declares counsel “requested that the jury be
charged regarding the defendant’s constitutional right not to
testify.” Admitting counsel did not use the language “no adverse
inference” in her request for the instruction, Defendant,
nonetheless, insists he “adequately invoked his substantive right to
jury guidance.”
The government puts it another way: “Webb never requested
the ‘adverse inference’ language at trial in any form.”
Furthermore, even if the court’s failure to grant the instruction
Defendant desired was error, “the error was not plain, as it is
reflected in the fact that defense counsel was unable to articulate
the problem with the instructions when the court had completed
giving them.”
In varying ways, the court instructed several times that
Defendant had no duty to take the stand and did not have to testify.
For example, part of the charge was:
Mr. Webb started this case innocent . . .
He has no obligation to explain anything or
say anything or do anything. He doesn’t have
to take the stand. He doesn’t have to
testify. And you cannot hold against him
anything that wasn’t done. That would turn
the whole process on its head. The government
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made this charge. The government’s got to
prove the charge beyond a reasonable doubt.
* * *
First of all, there’s that great principle,
and it is a great principle, that Mr. Webb
started out the trial innocent. Just remember
he didn’t have to do a single thing in this
case. He can’t be brought in here and made to
explain things he doesn’t have to . . . . you
cannot ever hold it against him that he’s here
in court.
The government argues although the court did not use the
specific words, “no adverse inference,” the charge contained their
“functional equivalent.” More importantly, Defendant did not object
to the instructions as given, nor did counsel request a specific
instruction, suggesting only: “I think it’s appropriate that the
jury be instructed it’s the defendant’s right not to testify.”
We believe this issue is foreclosed to Defendant by Fed.
R. Crim. P. 30. Defendant’s failure to object to the instructions
given, stating “distinctly the matter to which that party objects
and the grounds of the objection,” precludes the assignment of
error. United States v. Arthurs, 73 F.3d 444, 447-48 (1st Cir.
1996). Were this not so, we would still be constrained to conclude
the failure to respond directly to Defendant’s request was not
erroneous because the instructions as a whole certainly informed the
jury of Defendant’s right not to testify and that no inferences
could be drawn by the jury from his not doing so. United States v.
Woodward, 149 F.3d 46, 68-69 (1st Cir. 1999). Moreover, in light of
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the overwhelming evidence of guilt, Mr. Webb cannot show the
instructions given “seriously affect[ed] the fairness, integrity or
public reputation of the judicial proceedings.” United States v.
Brand, 80 F.3d 560, 567 (1st Cir. 1996)(quoting United States v.
Olano, 507 U.S. 725, 736 (1993)).
Affirmed.
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