United States v. Hennefer ( 1998 )


Menu:
  •                                                                          F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    NOV 25 1998
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff -Appellee,
    v.                                                      No. 97-4179
    DONNY JACE HENNEFER,                              (D.C. No. 96-CR-24-1)
    Defendant -Appellant.                           (D. Utah)
    ORDER AND JUDGMENT *
    Before BRORBY, McKAY, and MURPHY, Circuit Judges.
    __________________________
    After examining the briefs and the appellate record, this panel unanimously
    has determined to grant the parties’ request for a decision on the briefs without
    oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is
    therefore ordered submitted without oral argument.
    Defendant Donny Jace Hennefer and his co-defendant, Lonnie Lee Moore,
    were arrested in connection with the robbery of a convenience store in Ogden,
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    Utah. After the robbery, two persons were seen driving away from the
    convenience store in an El Camino which was light blue or grey. 1 When the El
    Camino was later located in a snow bank, Defendant had left the scene. However,
    a police officer traced Defendant’s footsteps in the snow to a room in a nearby
    motel. Police apprehended Defendant at the motel and then brought several
    witnesses there to identify him. The witnesses who identified Defendant at the
    motel included Cathryn DeFoer and Brian Keith Wilks, store employees, and
    Chance and Eddie Butterfield, patrons of the convenience store who witnessed the
    El Camino leaving the store and later saw Defendant walking away from the El
    Camino in the snow. At trial, only the Butterfields made in-court identifications
    of Defendant.
    Following a jury trial, Defendant was convicted on the following three
    counts: violating the Hobbs Act, 
    18 U.S.C. § 1951
    (a); using or carrying a firearm
    in relation to a crime of violence in violation of 
    18 U.S.C. § 924
    (c); and
    possession of a firearm by a convicted felon under 
    18 U.S.C. § 922
    (g)(1). In this
    appeal, 2 Defendant challenges his convictions on the basis of evidentiary rulings
    During the trial in this matter, the color of the El Camino seen leaving the
    1
    convenience store has been described in a variety of ways.
    2
    Although Defendant filed his notice of appeal after the expiration of the
    10-day period provided for in Federal Rule of Appellate Procedure 4(b),
    Respondent agrees that the delay was due to excusable neglect caused by the
    withdrawal of Defendant’s counsel. Thus, this court has jurisdiction over this
    appeal, and we do not address the timeliness of Defendant’s notice of appeal.
    -2-
    made by the district court. 3
    Defendant first asserts that the Butterfields’ in-court identifications of him
    violated his Fifth Amendment due process rights because they were based on an
    impermissibly suggestive show-up identification. “The ultimate question of
    whether the admission of pre-trial identification testimony violates due process is
    reviewed de novo on appeal.” Grubbs v. Hannigan, 
    982 F.2d 1483
    , 1489, n.5
    (10th Cir. 1993) (citing Sumner v. Mata, 
    455 U.S. 591
    , 597 (1982) (per curiam)).
    However, “[t]he ‘clearly erroneous’ standard applies with respect to the trial
    court’s factual findings ‘even when those findings relate to a constitutional
    issue.’” United States v. Thody, 
    978 F.2d 625
    , 629 (10th Cir. 1992) (quoting
    Hernandez v. New York, 
    500 U.S. 352
    , 366 (1991)), cert. denied, 
    513 U.S. 907
    (1994).
    Evaluating the constitutionality of pretrial identification procedures
    involves a two-step analysis. First, we examine whether the procedure employed
    was unnecessarily suggestive. See Grubbs, 
    982 F.2d at 1489
    ; Archuleta v. Kerby,
    3
    Defendant also argues that he should not have been sentenced under the
    Armed Career Criminal Act, 
    18 U.S.C. § 924
    (e), because “his prior convictions
    were not sufficiently distinct criminal episodes.” Appellant’s Opening Br. at 29.
    We do not address this issue because, as Appellant acknowledges in his brief, his
    argument is against controlling precedent. See United States v. Tisdale, 
    921 F.2d 1095
    , 1098-99 (10th Cir. 1990), cert. denied, 
    502 U.S. 986
     (1991). Appellant
    raised this issue only “in order to preserve it for possible certiorari review.”
    Appellant’s Opening Br. at 29.
    -3-
    
    864 F.2d 709
    , 711 (10th Cir.), cert. denied, 
    490 U.S. 1084
     (1989). “If the
    procedure is found to have been unnecessarily suggestive, we must then weigh the
    corrupting influence of the suggestive procedure against the reliability of the
    identification itself.” Grubbs, 
    982 F.2d at
    1489-90 (citing Manson v. Brathwaite,
    
    432 U.S. 98
    , 114 (1977)); see also Thody, 
    978 F.2d at 629
     (stating that once a
    pretrial identification procedure is found to have been unnecessarily suggestive,
    reliability must be evaluated in light of the “‘totality of the circumstances’ in
    order to determine whether the suggestive lineup created a substantial likelihood
    of irreparable misidentification and thus violated due process”). A pretrial
    identification procedure does not violate due process unless it is “so unnecessarily
    suggestive that it is ‘conducive to irreparable mistaken identification.’” Grubbs,
    
    982 F.2d at 1490
     (quoting Kirby v. Illinois, 
    406 U.S. 682
    , 691 (1972)).
    “[R]eliability is the linchpin in determining the admissibility of identification
    testimony.” Brathwaite, 
    432 U.S. at 114
    .
    The district court’s conclusion that the show-up identification employed in
    this case was unnecessarily suggestive is not in dispute. The question is whether
    the Butterfields’ in-court identifications of Defendant were unreliable because of
    the antecedent, unnecessarily suggestive show-up identification procedure. The
    following factors are relevant in determining whether testimony is reliable in spite
    of being founded on an unnecessarily suggestive identification procedure:
    -4-
    the opportunity of the witness to view the criminal at the time of the
    crime, the witness’ degree of attention, the accuracy of the witness’
    prior description of the criminal, the level of certainty demonstrated
    by the witness at the confrontation, and the length of time between
    the crime and the confrontation.
    Neil v. Biggers, 
    409 U.S. 188
    , 199-200 (1972). Depending on the circumstances,
    “the degree of governmental complicity in a suggestive procedure” may also be a
    factor in assessing reliability. United States v. Emanuele, 
    51 F.3d 1123
    , 1128 (3d
    Cir. 1995). All of these factors “must be weighed against the corruptive effect of
    a suggestive pre-trial identification procedure to determine whether the
    identification testimony should have been suppressed.” Grubbs, 
    982 F.2d at 1490
    .
    With respect to the first and second factors, the record indicates that not
    only did the Butterfields have a sufficient opportunity to view Defendant at the
    time of the robbery but both of them devoted a significant degree of attention to
    ascertaining Defendant’s identity. Each of the Butterfields saw the robber exiting
    the convenience store in well-lighted conditions, and, when they later saw
    Defendant walking away from the El Camino, they turned their own vehicle
    around and slowly drove past Defendant again so as to view him with a greater
    degree of scrutiny. Although it was after dark at the time, the Butterfields were
    within seven to fourteen feet of Defendant and were able to examine his clothing,
    hair, height, and even his eyes as they drove slowly past him. As to the third
    factor, Defendant contends that no evidence was offered to support the accuracy
    -5-
    of the Butterfields’ prior descriptions of Defendant. While the evidence on this
    point may have been scant at the time of the suppression hearing, the Butterfields
    adequately described Defendant’s vehicle, clothing, hair, and approximate age at
    trial. Thus, although this factor does not weigh heavily in favor of reliability, it
    does not require a determination of unreliability. The fourth factor is also
    satisfied because the record shows that the Butterfields demonstrated a substantial
    degree of certainty about Defendant’s identity when police showed him to them at
    the motel. With respect to the fifth factor, Defendant suggests that a time period
    of one to two hours does not weigh in favor of either side. However, such a short
    period of time clearly weighs in favor of reliability. See, e.g., Grubbs, 
    982 F.2d at 1490
     (stating that where confrontation occurred within a week of crime,
    identification was sufficiently reliable); Thody, 
    978 F.2d at 629
     (determining that
    period of only one week between robbery and confrontation supported finding of
    reliability). Finally, Defendant contends that the Government influenced the
    suggestiveness of the show-up identification procedure because a police officer
    lied about the color of Defendant’s eyes to Ms. DeFoer. However, there is no
    suggestion in the record that the Butterfields were misled in this manner. In light
    of these factors, we conclude that the district court did not err in finding that the
    Butterfields’ in-court identifications were reliable notwithstanding the
    impermissibly suggestive show-up identification procedure.
    -6-
    Defendant also argues that the district court improperly admitted certain
    hearsay testimony. We review evidentiary rulings by the trial court for abuse of
    discretion. See United States v. Cass, 
    127 F.3d 1218
    , 1222 (10th Cir. 1997), cert.
    denied, __ U.S. __, 
    118 S. Ct. 1101
     (1998). Under the abuse of discretion
    standard, we will reverse a district court’s decision only when it is “‘arbitrary,
    capricious, whimsical, or manifestly unreasonable.’” United States v. Hernandez-
    Herrera, 
    952 F.2d 342
    , 343 (10th Cir. 1991) (citations omitted).
    Defendant challenges the testimony of Russell Hartley, who was called to
    testify by the Government. During cross-examination, Co-defendant Mr. Moore’s
    counsel questioned Mr. Hartley, an employee of the convenience store, about a
    conversation he had with a defense investigator. See R., Vol. VI, Trial Tr. 7 at
    95. Defendant did not object to this question. Mr. Hartley testified that Brady
    Antonich, a former employee of the convenience store, told him that he (Mr.
    Antonich) told the robbers where the safe was located. See id. at 95-96. On
    redirect, counsel for the Government asked Mr. Hartley the names of the persons
    to whom Mr. Antonich disclosed the location of the safe. See id. at 97. Mr.
    Hartley testified that Mr. Antonich told him that he told Defendant where the safe
    was located. See id. At this point, Defendant objected to the Government’s
    question and moved to strike Mr. Hartley’s response. See id.
    Mr. Hartley’s testimony describing his conversation with Mr. Antonich
    -7-
    most assuredly contains hearsay. The Government claims that, once the door to
    the hearsay testimony was opened, it was necessary to elicit testimony on redirect
    to “cure” the impression that Mr. Antonich was involved in the robbery. We
    decline to reach the issue of whether Mr. Moore’s counsel opened the door to the
    testimony, because we conclude that the district court’s admission of the
    testimony was harmless in any event. See Cass, 
    127 F.3d at 1225
     (“A trial court’s
    admission of inadmissible evidence will disturb a defendant’s conviction only if
    the error is not harmless.”); United States v. Tome, 
    61 F.3d 1446
    , 1455 (10th Cir.
    1995) (noting that harmless error standard applies to erroneous admission of
    hearsay testimony). The harmless error inquiry focuses on “whether the
    admission of the statements substantially influenced the jury’s verdict.” Cass,
    
    127 F.3d at 1225
    ; see also Kotteakos v. United States, 
    328 U.S. 750
    , 765 (1946)
    (indicating that harmless error analysis requires asking whether the error itself
    substantially influenced the jury’s verdict).
    While Mr. Hartley’s testimony may have led the jury to believe that
    Defendant knew where the safe was located, this information likely did not
    constitute a critical piece of evidence against Defendant. Abundant additional
    evidence in the record pointed to Defendant’s guilt. As we discussed above, the
    Butterfields testified that they observed Defendant leaving the store after the
    robbery in well-lighted conditions and that they later saw Defendant walking
    -8-
    away from the get-away car in the snow. The Butterfields also testified that they
    confidently and accurately identified Defendant at a motel within a couple of
    hours after the robbery, and, at trial, they identified Defendant as the person they
    saw at the motel. Moreover, the record shows that police were able to track
    Defendant’s footprints in the snow from the El Camino to the location where he
    abandoned his shotgun and knit cap and then to the specific motel room in which
    Defendant was apprehended. Cumulatively, this evidence leads us to conclude
    that the admission of the hearsay testimony was harmless.
    In connection with his arguments regarding the district court’s admission of
    hearsay testimony, Defendant also alludes to a violation of his constitutional
    rights under the Confrontation Clause. Because Defendant did not raise this
    objection at trial, we review it only for plain error. See Cass, 
    127 F.3d at 1225
    ;
    United States v. Perez, 
    989 F.2d 1574
    , 1582 (10th Cir. 1993) (en banc). “Plain
    error is that which is obvious, or which seriously affects the fairness or integrity
    of the trial.” United States v. Enjady, 
    134 F.3d 1427
    , 1435 (10th Cir.), cert.
    denied, __U.S.__, 
    119 S. Ct. 202
     (1998). We conclude that the district court’s
    admission of the hearsay evidence did not constitute plain error because the
    testimony did not seriously affect the fairness or integrity of the trial.
    Defendant also argues that his convictions should be reversed because the
    district court failed to instruct the jury that it had stricken certain testimony from
    -9-
    the record. Specifically, Defendant objects to a statement made by Officer Tony
    Fox, who testified that when he arrived at the El Camino, he saw a brown paper
    bag containing “money from the robbery.” R., Vol. VI, Trial Tr. 7, at 171.
    Defendant’s counsel properly objected to the testimony because the prosecutors
    had not provided any foundational evidence connecting the money in the bag to
    the robbery. Although the district court later ordered the words, “from the
    robbery,” stricken from the record, it did not so inform the jury nor did it instruct
    the jury to disregard the testimony.
    After ruling that testimony should be stricken, a trial court judge ordinarily
    should deliver an appropriate instruction to the jury. The district court’s
    inadvertent failure to do so in this case, however, is typical of errors that
    commonly occur at trial. Such errors are readily correctable by counsel. If
    counsel believes that the error is so serious that it threatens his client’s
    substantive rights, then he should call it to the attention of the trial judge before
    the jury retires by, for example, again requesting an instruction. Under these
    circumstances, we review for plain error. Cf. United States v. Hill, 
    60 F.3d 672
    ,
    675 (10th Cir.) (indicating that review is for plain error where defendant fails to
    deliver contemporaneous objection), cert. denied, 
    516 U.S. 970
     (1995); Aspen
    Highlands Skiing Corp. v. Aspen Skiing Co., 
    738 F.2d 1509
    , 1516 (10th Cir.
    1984) (stating that when an objection is not made before jury retires, court
    -10-
    reviews only plainly erroneous and prejudicial instructions), aff’d, 
    472 U.S. 585
    (1985). We will not reverse the district court’s readily correctable error unless it
    “placed the underlying fairness of the entire trial in doubt, or it affected one of
    the defendant’s substantial rights.” Hill, 
    60 F.3d at 675
     (internal citations
    omitted). The stricken testimony at issue does not meet this standard. In addition
    to hearing Defendant’s objection to Officer Fox’s testimony along with an
    explanation of why the testimony was objectionable, the jury also heard the
    Government’s concession that it had not established a direct connection between
    the money and the robbery. In light of these facts, we conclude that the district
    court’s failure to instruct the jury that it had stricken or to disregard Officer Fox’s
    testimony was not plain error.
    Finally, we note that Defendant has properly objected to a special
    assessment of $100.00 per count, instead of $50.00 per count, on his three
    convictions. The incident from which Defendant’s convictions stemmed occurred
    on February 4, 1996. The special assessment provision was amended on April 24,
    1996, and therefore is not applicable to Defendant’s convictions. See 
    18 U.S.C. § 3013
    ; United States Sentencing Guidelines § 5E1.3 (special assessment is $50.00
    for felonies committed prior to April 24, 1996). Defendant should have been
    assessed a $50.00 per-count penalty on each of his three counts, for a total of
    $150.00.
    -11-
    Defendant’s convictions and sentence are AFFIRMED. The special
    assessment portion of the sentence is VACATED and REMANDED to the district
    court for resentencing in accordance with this opinion.
    AFFIRMED IN PART, VACATED AND REMANDED IN PART.
    Entered for the Court
    PER CURIAM
    -12-
    No. 97-4179, United States v. Hennefer
    McKAY, Circuit Judge, concurring:
    Although I concur in the outcome of this case, I write separately to express
    my disagreement with the court’s treatment of the issue involving the trial court’s
    admission of hearsay testimony. While my view is neither mandated nor
    forbidden by existing circuit law, I maintain that before engaging in the harmless
    error analysis, we must first address the merits of the issue presented to determine
    if in fact an error has been committed. Only after determining that an error has
    occurred would I proceed to the harmless error analysis.
    In this case, I would first reach the merits of the issue raised by Defendant,
    namely, whether a defendant may open the door to testimony with respect to his
    or her co-defendant. Like the United States Court of Appeals for the District of
    Columbia Circuit, I would decline to extend the curative admissibility doctrine to
    encompass testimony elicited by co-defendants. See United States v. White, 
    887 F.2d 267
    , 270 (D.C. Cir. 1989) (“The prosecution may not gain, through the
    device of a joint trial, admission against one defendant of otherwise inadmissible
    evidence on the happenstance that the door to admitting the evidence has been
    opened by a co-defendant.”). But see United States v. Sullivan, 
    911 F.2d 2
    , 8 (7th
    Cir. 1990) (noting in dicta that cross-examination by counsel for co-defendant
    opened the door to redirect examination on the same subject by the government).
    See generally 22 Charles Alan Wright & Kenneth W. Graham Jr., Federal Practice
    and Procedure § 5165 n.70 (Supp. 1998) (criticizing Sullivan as “egregious
    abuse” of the opening the door doctrine). This court previously has explained
    that the doctrine of curative admissibility is “‘dangerously prone to overuse’” and
    “is limited to the prevention of prejudice and used ‘only to the extent necessary to
    remove any unfair prejudice which might otherwise have ensued from the original
    evidence . . . .’” United States v. Morales-Quinones, 
    812 F.2d 604
    , 610 (10th Cir.
    1987) (citations omitted).
    This situation, in which a co-defendant introduced inadmissible testimony
    that the Government then sought to use against Defendant, is a telling example of
    overusing the curative admissibility doctrine. Defendant was not responsible for
    the admission of the evidence, nor did the evidence unfairly prejudice the
    Government to any meaningful degree. While the hearsay testimony may have
    suggested that Mr. Antonich knew where the safe was located, it also indicated
    that the “robbers” knew where the safe was located. For these reasons, I would
    hold that the district court erroneously allowed the Government to elicit
    inadmissible hearsay testimony on redirect. Only after reaching this result would
    I proceed to the harmless error analysis. Like the majority, I would then conclude
    that the admission of the hearsay testimony was harmless in any event.
    -2-