United States v. Hinds , 9 F. App'x 135 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 99-4605
ANTHONY RICHARD HINDS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CR-98-391-AW)
Argued: January 25, 2001
Decided: May 15, 2001
Before WILLIAMS and TRAXLER, Circuit Judges, and
Raymond A. JACKSON, United States District Judge for the
Eastern District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Sharon Styles-Anderson, LAW OFFICES OF SHARON
STYLES-ANDERSON, Washington, D.C., for Appellant. Ronald Jay
Tenpas, Assistant United States Attorney, Greenbelt, Maryland, for
Appellee. ON BRIEF: Lynne A. Battaglia, United States Attorney,
Greenbelt, Maryland, for Appellee.
2 UNITED STATES v. HINDS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Anthony Richard Hinds ("Hinds") appeals from his conviction and
sentence after a jury convicted him on March 12, 1999, on one count
of possessing a firearm as a convicted felon in violation of 18 U.S.C.
§ 922(g)(1) (1994). Hinds was sentenced to one hundred and eighty-
eight months in prison plus five years of supervised release and a one
hundred dollar special assessment. For the reasons that follow, we
affirm.
I.
At approximately 4:00 a.m. on July 28, 1998, Hinds was observed
for some time standing outside an all night fruit stand by Prince
George’s County police officer Thomas Hart ("Officer Hart"). After
Hinds was joined by an unidentified man on a bicycle, Officer Hart
called for back-up and approached both men believing that a drug
transaction might be underway. As Officer Hart questioned both men,
another police officer arrived to provide back-up. According to Offi-
cer Hart, Hinds gave evasive answers and was unable to remember his
address. Officer Hart asked Hinds if he could conduct a pat-down
search for weapons, but rather than respond, Hinds fled from police.
As Hinds ran away, Prince George’s County Police corporal Michael
Margulis ("Corporal Margulis") arrived on the scene to provide addi-
tional back-up. Both Officer Hart and Corporal Margulis proceeded
to chase Hinds.
Corporal Margulis eventually overtook Hinds and a scuffle ensued.
Officer Hart alleges that he saw a silver handgun in Hinds’ hand and
attempted to warn Corporal Margulis, but Corporal Margulis did not
hear this warning. Hinds managed to escape from Corporal Margulis,
and both officers continued to pursue Hinds. According to Corporal
Margulis, after observing Hinds make a distinctive motion,1 he heard
1
The government alleges in its brief that Corporal Margulis observed
Hinds make a throwing motion. However, no description of this motion
UNITED STATES v. HINDS 3
the sound of metal hitting metal as an object struck a nearby fence.
Corporal Margulis marked this area with a t-shirt that was torn from
Hinds’ torso as he escaped. When Corporal Margulis became too
exhausted to continue pursuing Hinds, he returned to the area marked
by Hinds’ t-shirt and found a loaded Jennings .380 automatic handgun
in the same general vicinity.
Officer Hart and Corporal Margulis called in a canine unit, which
included a canine and a police officer responsible for the canine, and
Hinds was apprehended within twenty minutes of his initial encounter
with police. Because Hinds resisted arrest, he suffered bite wounds
and pepper spray injuries requiring a visit to the hospital. According
to Hinds, these injuries were serious, but police dispute this conten-
tion, characterizing Hinds’ injuries as minor.
Hinds was indicted on October 7, 1998, on one count of possessing
a firearm as a convicted felon, a violation of 18 U.S.C. § 922(g)(1)
(1994). A jury found Hinds guilty on March 12, 1999. Hinds now
appeals.
II.
On appeal, Hinds challenges his conviction and sentence based
upon five grounds. We address each one in turn below.
A.
First, Hinds alleges that the district court’s refusal to admit into
evidence photographs of his bite wounds was an abuse of discretion.
Stating that he based his defense upon a theory that police officers
fabricated his arrest charges in order to justify the bite wounds that
he received, Hinds contends that the photographs were probative as
to the alleged bias of both Officer Hart and Corporal Margulis.
According to Hinds, when both officers testified that his bite wounds
is included in the testimony of Corporal Margulis, who stated that "the
defendant ma[d]e a motion like that." We note that while it appears from
the record that Corporal Margulis demonstrated this motion to the jury,
the observed motion was not clarified for the record.
4 UNITED STATES v. HINDS
were minor, the photographs were properly admissible to impeach the
officers’ improper characterization of his injuries.
Under Federal Rule of Evidence 403, district courts employ a bal-
ancing test to determine the admissibility of evidence. See Fed. R.
Evid. 403. This balancing test requires an assessment of the probative
value of evidence versus its prejudicial effect, and a district court
enjoys broad discretion when making these admissibility decisions.
See United States v. Whitfield, 715 F.2d 145, 147 (4th Cir. 1983);
Campbell v. Keystone Aerial Surveys, Inc., 138 F.3d 996, 1004 (5th
Cir. 1998). We review Rule 403 evidentiary determinations for abuse
of discretion, and only when there is a clear abuse of discretion
should a "trial court’s decision to admit or reject photographs into evi-
dence . . . be disturbed." Whitfield, 715 F.2d at 147.
In the instant action, the district court ruled that the photographs of
Hinds’ bite wounds were inadmissible because the photographs were
inflammatory and lacked relevance on the issue of Hinds’ guilt under
18 U.S.C. § 922(g)(1) (1994). However, because the district court
permitted Hinds to question Officer Hart and Corporal Margulis about
the existence and extent of his bite wounds, Hinds was able to lay a
foundation for his theory of police fabrication and bias. Thus, the dis-
trict court permitted Hinds to explore the alleged bias of the officers
even as it prevented the marginally probative photographs from
unnecessarily inflaming the jury. Given these circumstances, we do
not find that the district court abused its discretion.
B.
Second, Hinds contends that a jury instruction concerning his flight
from authorities was prejudicial and given in error.2 Hinds argues that
2
The district court read the following flight instruction to the jury:
You have heard evidence that the defendant fled after he
believed he was about to be charged with committing the crime
for which he was now on trial. If proved, the flight of a defen-
dant after he knows he is to be accused of a crime may tend to
prove that the defendant believed he was guilty. It may be
weighed by you in this connection together with all the other evi-
UNITED STATES v. HINDS 5
the evidence adduced at trial did not support the flight instruction.
Hinds also argues that the flight instruction went beyond the general
inference that flight may be indicative of a defendant’s guilt when the
instruction stated that "the defendant fled after he believed that he was
about to be charged with a crime." According to Hinds, this alleged
error presents a basis for reversal because there exists a reasonable
probability that the flight instruction materially affected the jury’s
verdict.
While we acknowledge that evidence of flight presents a weak
inference of guilty knowledge on the part of a defendant, such evi-
dence may nevertheless be relevant and probative on the issue of guilt
as defined by Federal Rule of Evidence 401. See United States v. Por-
ter, 821 F.2d 968, 976 (4th Cir. 1987). For such evidence to be admis-
sible, "the chain of inferences leading from evidence of flight to
consciousness of guilt must lead to consciousness of guilt of the crime
charged." Id. However, the "inference of [consciousness of guilt]
would be completely unfounded where a defendant flees after ‘com-
mencement of an investigation’ unrelated to the crime charged, or of
which the defendant was unaware." United States v. Beahm, 664 F.2d
414, 419-20 (4th Cir. 1981). Because Hinds did not object to the
flight instruction at trial, we review for plain error. See United States
v. Rogers, 18 F.3d 265, 268 (4th Cir. 1994).
We find that it was not plain error for the district court to read the
flight instruction to the jury, and when viewed in its entirety, the
flight instruction does not constitute a basis for reversal of Hinds’
conviction. The evidence adduced at trial supported the possibility
that Hinds fled from police because he feared that he would be
dence. However, flight may not always reflect feelings of guilt.
Moreover, feelings of guilt which are present in many innocent
people do not necessarily reflect actual guilt.
You are specifically cautioned that evidence of flight of a defen-
dant may not be used by you as a substitute for proof of guilt.
Flight does not create a presumption of guilt. Whether or not evi-
dence of flight does show that the defendant believed he was
guilty and the significance, if any, to be given to the defendant’s
feelings on this matter are for you to determine.
6 UNITED STATES v. HINDS
charged with the crime for which he was ultimately convicted. We
note that it was only after Hinds was asked if he would consent to a
pat-down search for weapons that he fled, and a weapon was subse-
quently found that could be linked to Hinds. Therefore, we find
Hinds’ position to be without merit.
C.
Third, Hinds argues that it was an abuse of discretion for the dis-
trict court judge to decline to give a curative instruction after he made
reference to the word "felony" during voir dire. Due to concerns
expressed by Hinds, both parties agreed that the word "felony" would
be replaced by the words "offense punishable by more than one year."
However, the district court judge made reference to the word "felony"
during voir dire and declined to give a curative instruction proposed
by Hinds.3
As a reviewing court, we must assess the overall context in which
language is used because "[j]ury instructions must be viewed in their
entirety and in context." United States v. Muse, 83 F.3d 672, 677 (4th
Cir. 1996) (citing Cupp v. Naughten, 414 U.S. 141, 146-47 (1973)).
When a district court denies a defendant’s requested jury instruction,
we review for abuse of discretion. See United States v. Helem, 186
F.3d 449, 454 (4th Cir. 1999). However, even when a district court’s
failure to give a requested jury instruction amounts to an abuse of dis-
3
The district court judge declined to give a curative instruction pro-
posed by Hinds which stated that "[y]ou are to disregard any previous
indication by the Court that the prior conviction may have been a felony.
There was no evidence before you that the prior conviction was in fact
a felony." However, we note that the following jury instruction was
given at trial:
[T]he prior conviction that is an element of the charge here is
only to be considered by you for the fact that it exists and for
nothing else. You are not to consider it for any other purpose.
You are not to speculate as to what it was for. You may not con-
sider the prior conviction in deciding whether it was more likely
than not that the defendant was in knowing possession of the gun
that is charged. And so, element number one essentially is not in
dispute because it’s been stipulated by the parties.
UNITED STATES v. HINDS 7
cretion, reversible error results only when a defendant can show
actual prejudice. See United States v. Squillacote, 221 F.3d 542, 575
(4th Cir. 2000). Prejudice results when a defendant can demonstrate
an unreliable or fundamentally unfair outcome to his proceeding. Id.Assuming that the district court judge’s reference to the word "fel-
ony" during voir dire was contrary to an agreement between the par-
ties, we find that the reference, which appears to have been made only
once, was harmless and not prejudicial. When the evidence and jury
instructions at Hinds’ trial are viewed as a whole, we believe that the
error did not result in an unreliable or fundamentally unfair outcome.
Therefore, Hinds was not prejudiced.
D.
Next, Hinds asserts that his original defense counsel’s failure to file
certain pre-trial motions, to provide timely discovery and to make
appropriate objections to the flight instruction read to the jury,
amounts to ineffective assistance of counsel. However, claims of inef-
fective assistance of counsel are generally not cognizable on direct
appeal. See United States v. King, 119 F.3d 290, 295 (4th Cir. 1997).
Rather, to allow adequate development of the record, a defendant
must bring his claim in a motion under 28 U.S.C. § 2255 (1994 &
Supp. IV 1998). See King, 119 F.3d 290 at 295; United States v.
Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). An exception exists when
the record conclusively establishes ineffective assistance. See King,
119 F.3d at 295. We find that the record in the instant case does not
conclusively establish that Hinds’ counsel was ineffective. Therefore
we do not address this issue on direct appeal. Hinds may assert his
claim in a § 2255 habeas motion, if he so chooses.
E.
Finally, Hinds contends that the evidence was insufficient to sup-
port his conviction for a violation of 18 U.S.C. § 922(g)(1) (1994). In
a sufficiency of the evidence review, we must determine whether
there is substantial evidence, when viewed in a light most favorable
to the government, to support the verdict. See Glasser v. United
States, 315 U.S. 60, 80 (1942). We consider both the circumstantial
and direct evidence, noting that even the uncorroborated testimony of
8 UNITED STATES v. HINDS
a single witness may be sufficient to sustain a verdict of guilty. See
United States v. Arrington, 719 F.2d 701, 705 (4th Cir. 1983). More-
over, we note that credibility assessments of witnesses are within the
province of the jury. See United States v. Johnson, 55 F.3d 976, 979
(4th Cir. 1995).
In the instant case, we have reviewed the briefs and materials sub-
mitted in the joint appendix and we find sufficient evidence to support
Hinds’ conviction. We also find no basis to disturb the jury’s apparent
decision to accord less weight to the rebuttal evidence and arguments
presented by Hinds.
III.
In conclusion, we find no merit in the issues raised by Hinds on
appeal. Accordingly, we affirm Hinds’ conviction and sentence.
AFFIRMED