United States v. Hines ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 16, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 14-1451
(D.C. No. 1:13-CR-00194-WJM-1)
DONTAE DANIEL HINES, (D. Colo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, HOLMES, and MATHESON, Circuit Judges.
_________________________________
Dontae Hines appeals following his convictions for being a felon in possession
of a firearm, possessing a firearm in furtherance of a drug trafficking offense, and
possessing cocaine base with intent to distribute. Exercising jurisdiction under 28
U.S.C. § 1291, we affirm.
I
On April 18, 2013, the Denver Police Department’s Vice and Narcotics Bureau
executed a “buy-bust” operation near East Colfax Avenue. An undercover detective,
Joseph Portillo, purchased crack cocaine from Hines in an apartment building
entryway. Portillo signaled to other officers that the transaction was complete at
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
approximately 9:00 p.m. As uniformed officers entered the building, Hines fled
upstairs. Officer Richard Shurley pursued.
Shurley testified that as he reached the top of the stairs, he had a clear view
down a fifty-foot, well-illuminated hallway. He observed Hines stop near the far end
of the hallway, remove a handgun from his waistband, and place it on a blue
container in front of apartment 202. Shurley continued to pursue Hines, who exited
the hallway through a door at the far end.
Hines was apprehended by a group of officers, including Shurley and Portillo.
After Hines was taken into custody, Shurley stated that he needed to go back and
retrieve a gun. He found a Glock 30 .45 caliber handgun under a trash bag in the
blue container near apartment 202. The resident of apartment 202, Briana Overy,
told officers that the blue container and trash bag belonged to her, but the handgun
did not.
At trial, the prosecution conducted a courtroom demonstration during the
testimony of Detective James Anderson, who was the case agent for Hines’ trial.
Anderson testified that the hallway where Shurley recovered the handgun was
approximately 52 feet long and measured the same distance in the courtroom. The
prosecutor then asked Anderson to step off the stand and testify from the measured
distance. Defense counsel objected that Anderson should testify from the stand, but
was overruled. Anderson identified a handgun held in the prosecutor’s right hand
from 52 feet away. Defense counsel immediately objected that the demonstration
had “no relevance” because Anderson was not the officer who claimed to have seen
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the gun, and the lighting in the courtroom was not the same as the lighting in the
hallway. The court overruled the objection, stating that the points raised “go to the
weight of the evidence.”
The jury convicted Hines on all three charges: possession of cocaine base with
intent to distribute, possession of a firearm by a felon, and possession of a firearm in
furtherance of a drug trafficking offense. He was sentenced to 72 months’
imprisonment. Hines timely appealed.
II
Hines contends the district court erred in permitting a courtroom
demonstration without a showing that conditions in the courtroom were substantially
similar to those in the hallway. We ordinarily review a district court decision to
permit an in-court demonstration for abuse of discretion. United States v. Wanoskia,
800 F.2d 235, 238 (10th Cir. 1986). The government argues that we should review
only for plain error because Hines did not object to the demonstration before it
occurred.1 “A timely objection, accompanied by a statement of the specific ground
of the objection, must be made when evidence is offered at trial to preserve the
question for appeal . . . .” United States v. Norman T., 129 F.3d 1099, 1106 (10th
Cir. 1997). Hines counters that defense counsel objected immediately after the
demonstration—which occurred without warning—when the district court could have
instructed the jury to disregard the display. See United States v. Banks, 761 F.3d
1
At oral argument, the government clarified that it seeks plain error review
with respect to only part of Hines’ argument. We consider preservation of Hines’
two sub-arguments below.
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1163, 1186 (10th Cir. 2014) (“[A] litigant must lodge an objection to a purported
error while the district court still has an opportunity to fix it.”).
In assessing the proper standard of review, we think it helpful to consider
Hines’ two sub-arguments separately. Hines argues that the district court abused its
discretion by failing to make a substantial similarity finding, and by permitting the
demonstration when conditions were not in fact substantially similar. With respect to
the latter argument, we assume that Hines’ objection was sufficient because we
conclude his claim fails under either potential standard of review. With respect to the
former sub-argument, however, we conclude that plain error review is appropriate
because Hines never objected to a lack of findings before the district court.
A
To prevail on plain error review, Hines must show: (1) an error, (2) that is
plain, (3) that affects his substantial rights, and (4) that seriously affects the fairness,
integrity, or public reputation of the judicial proceedings. United States v. Gonzalez-
Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc). We question whether the
district court’s explanation was insufficient, much less plainly so. In response to
Hines’ objection, the court stated that any difference in conditions “go[es] to the
weight of the evidence.” “If there is substantial similarity, the differences between
the test and the actual occurrence ordinarily are regarded as affecting the weight of
the evidence rather than its admissibility.” Wanoskia, 800 F.2d at 238 (quotation
omitted). Accordingly, the court’s ruling could be read as an implicit finding that
conditions were substantially similar.
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In any event, Hines’ contention that the district court did not make the proper
findings fails the third step of the plain error analysis. To demonstrate that an error
affected his substantial rights, “the appellant must show a reasonable probability that,
but for the error claimed, the result of the proceeding would have been different.”
Gonzalez-Huerta, 403 F.3d at 733 (quotation omitted). As described infra, we
conclude that the conditions in the courtroom were sufficiently similar to the
conditions in the hallway such that the district court possessed discretion to permit
the demonstration. Accordingly, we hold there is not a reasonable probability that
further explanation would have affected the outcome of Hines’ trial.
B
Our court has recognized that in-court demonstrations “can be highly
persuasive” and thus “the court must take special care to ensure that the
demonstration fairly depicts the events at issue.” Wanoskia, 800 F.2d at 237-38. If
an in-court demonstration “purports to simulate actual events and to show the jury
what presumably occurred at the scene . . . , the party introducing the evidence has a
burden of demonstrating substantial similarity of conditions.” Jackson v. Fletcher,
647 F.2d 1020, 1027 (10th Cir. 1981). Conditions need “not be identical but they
ought to be sufficiently similar so as to provide a fair comparison.” Id.
The courtroom conditions were undisputedly the same as those in the hallway
in two respects: the distance and the item being identified. And the conditions
obviously differed in one respect: the officer who participated in the demonstration
was not the officer who saw Hines drop the gun in the hallway. The parties thus
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spend a great deal of their briefing disputing whether the lighting conditions were
similar. We think the government has the better argument on that issue.
Shurley testified that the hallway was “well illuminated,” that the “lighting
[wa]s great” in front of apartment 202, and that he had a “perfect view” of Hines
dropping the handgun. Overy stated that the hallway was “pretty lit up” and that she
would have no trouble seeing a medium sized teddy bear from the far end of the hall.
The testimony was in conflict as to whether Exhibit O, a somewhat dark photograph
of the hallway included in the record on appeal, accurately depicted the lighting
conditions on the night of Hines’ arrest. Shurley testified that the hallway “was more
well lit than it is in th[e] photo.” Overy testified that Exhibit O was darker than the
actual hallway when the exhibit was displayed on a computer monitor at trial, but
stated that the actual photo accurately showed the lighting conditions. Anderson
(who was not present on the night of the arrest but viewed the hallway at a later date)
testified that Exhibit O appeared darker than the actual conditions “because, as you
can see in the picture, it’s very, very bright where the photo is actually being taken.”
However, Officer Ronald Helm testified that the lighting in Exhibit O is “probably a
little better” than when Hines was arrested.
None of the witnesses directly compared the lighting in the courtroom to the
lighting in the hallway before the demonstration occurred.2 Nevertheless, viewing
2
Hines claims that Helm testified the courtroom was “better well lit” than the
hallway. But this claim is incorrect. Helm actually agreed with counsel that the
courtroom had better lighting than the “entryway.” This testimony concerned Helm’s
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the record as a whole, we conclude that the district court did not abuse its discretion
in permitting the demonstration. As the foregoing paragraph indicates, the bulk of
the trial testimony indicated that the hallway in front of apartment 202 was well lit
notwithstanding some disagreement regarding Exhibit O. And although the witness
making the identification was not the witness who observed Hines, both the distance
and the item identified were the same in the demonstration and the actual occurrence.
“A district court abuses its discretion only if its ruling is arbitrary, capricious,
whimsical or manifestly unreasonable or when we are convinced that the district
court made a clear error of judgment or exceeded the bounds of permissible choice in
the circumstances.” United States v. Garcia, 635 F.3d 472, 476 (10th Cir. 2011)
(quotation omitted). We conclude that permitting the demonstration was within the
district court’s discretion.
III
AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
ability to see from a distance what was happening when uniformed officers entered
the entryway where the crack cocaine transaction occurred prior to Hines fleeing.
After the demonstration, Anderson testified that the area of the courtroom in
which the prosecutor was standing “is actually darker than in front of apartment No.
202 where Officer Shurley observed Mr. Hines.” Because this testimony occurred
after the demonstration, however, it could not have formed a basis for the district
court’s ruling.
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