United States v. Courtney Cowan ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4535
UNITED STATES OF AMERICA,
Plaintiff − Appellee,
v.
COURTNEY DIONE COWAN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:11-cr-00024-RLV-DSC-1)
Argued: May 17, 2013 Decided: June 11, 2013
Before TRAXLER, Chief Judge, KING, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Paul K. Sun, Jr., ELLIS & WINTERS, LLP, Raleigh, North
Carolina, for Appellant. Melissa Louise Rikard, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
ON BRIEF: Anne M. Tompkins, United States Attorney, Charlotte,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Courtney Dione Cowan represented himself at trial and was
convicted of being a felon in possession of a firearm. On
appeal, he alleges several evidentiary errors and challenges the
district court’s requirement that he remain in leg restraints
throughout the trial. For the reasons that follow, we affirm.
I.
In 2010, Cowan broke into the home of Cristal Rice,
demanded to use Rice’s telephone, and threatened her with a gun.
Rice let Cowan use her phone, then ran out of her house to her
neighbor’s house. Cowan followed Rice, hit her in the head and
back with his gun, returned to Rice’s home, and began breaking
the windows of Rice’s home and car with his gun. Rice
eventually called the police, who subsequently arrived and found
a .38 revolver nearby. Rice identified Cowan as the assailant,
and Cowan was later arrested. Apart from being intoxicated at
the time, Cowan did not explain what motivated his actions.
Because Cowan had prior felony convictions, he was charged
with being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g). The district court appointed him two
different attorneys; however, after Cowan was uncooperative and
insisted that he did not want their help, the court granted each
attorneys’ motion to withdraw and Cowan proceeded pro se. The
district court, without explanation or discussion appearing in
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the record, required Cowan to remain in leg restraints during
jury selection and throughout the trial. To avoid the prejudice
that might result from the jury seeing a defendant in leg
restraints, the court required Cowan to remain seated during the
trial. Because Cowan could not stand and walk around the
courtroom, the court also required the government to conduct the
trial from a seated position, “[s]o it wo[uldn’t] make it
obvious that the defendant ha[d] leg irons and [was] in
custody.” J.A. 102.
Despite this directive, the government approached a witness
on one occasion. Cowan objected, but the court overruled the
objection. Once the jury was out of the courtroom, Cowan
explained his prior objection, stating “You told me that due to
the fact that I got these chains on my feet that I couldn’t walk
past through here. But you let [the government attorney] get up
and walk over there and hand that stuff to [the witness].” J.A.
164. The court indicated that it did not know why Cowan was
initially objecting, that at the time it forgot the ground
rules, and that it would not let it happen again. Cowan was
ultimately convicted and sentenced to 85 months’ imprisonment.
II.
Cowan’s main argument on appeal is that the court erred and
violated his Fifth Amendment due process right to a fair trial
by requiring him to wear leg restraints during the trial. The
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district court did not provide any explanation on the record for
why it required Cowan to wear leg restraints. Therefore, if
Cowan properly objected, the government would have the difficult
burden of “prov[ing] beyond a reasonable doubt that the
[shackling] error complained of did not contribute to the
verdict obtained.” Deck v. Missouri, 544 U.S. 622, 635 (2005)
(second alteration in original) (internal quotation marks
omitted).
As support for his view that he properly objected, Cowan
points only to his above-mentioned objection to the government
attorney standing up and approaching a witness on one occasion.
Other than this one objection, Cowan did not otherwise directly
object on the record to the requirement that he wear leg
restraints. While “[w]e liberally construe pro se objections to
determine whether the defendant objected,” United States v.
Gray, 581 F.3d 749, 752-53 (8th Cir. 2009) (per curiam), we
nonetheless cannot construe Cowan’s objection as an objection to
the wearing of leg restraints. Rather, Cowan was objecting to
the court giving the government attorney permission to approach
a witness, in violation of the court’s own rules set forth at
the beginning of the trial. Accordingly, we review for plain
error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507
U.S. 725, 731-32 (1993). To establish plain error, Cowan has to
show (1) there was an error, (2) that was plain, (3) that
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affected his substantial rights, and (4) that affected the
fairness, integrity, or public reputation of the judicial
proceedings. See United States v. Muhammad, 478 F.3d 247, 249
(4th Cir. 2007).
Even if the court plainly erred, which we assume without
deciding, Cowan cannot show that the error affected the outcome
of the proceedings because he provides no evidence showing that
the jury was able to see his leg restraints. See United States
v. Williamson, 706 F.3d 405, 412 (4th Cir. 2013) (“To show that
a plain error affected his substantial rights, the accused must
demonstrate that the error actually affected the outcome of the
proceedings.” (internal quotation marks omitted)); United States
v. Miller, 531 F.3d 340, 347 (6th Cir. 2008) (“Because
[defendant] bears the burden of proof on plain error review, we
will not assume without evidence that the [restraint] was
visible at trial.”). Moreover, the evidence against Cowan was
strong, including the fact that blood found on the gun matched
Cowan’s DNA. Accordingly, Cowan cannot satisfy the plain error
standard. See Williamson, 706 F.3d at 412-13.
III.
Cowan also argues that the district court erred in
admitting the grand jury testimony of his fiancée Kyla
Milosavljevic. While Cowan concedes that portions of the grand
jury testimony may have been admissible under Federal Rule of
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Evidence 801(d)(1)(A), which excludes from hearsay any prior
inconsistent statements given under oath, he contends that it
was error for the court to admit into evidence the grand jury
testimony in its entirety. We disagree.
At trial, the government introduced Milosavljevic’s grand
jury testimony for impeachment purposes because her in-court
testimony was inconsistent with her grand jury testimony. For
example, she testified before the grand jury that Cowan
possessed the gun at one point, but she recanted that testimony
during trial. She also testified before the grand jury that
Cowan told her about his conduct on the night in question during
a phone call from jail. But during trial, when the government
read that testimony back to her, she suggested the testimony was
not her own and that she had been pressured into discussing
things about which she had no knowledge. See J.A. 426 (“That’s
a part where I felt like he was pressuring me into answering
stuff that I said I did not know.”); J.A. 427 (“See, that
doesn’t even sound like something I would say the way it was,
like, worded or typed out.”); J.A. 428 (“I don’t feel like this
is accurate that you’re showing me. I just don’t remember
answering these questions . . . in my testimony.”).
Additionally, Milosavljevic called into question the entirety of
her grand jury testimony by saying that she “felt forced or
pressured” to give certain answers, J.A. 401, and asserting that
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her “testimony might not have been honest” because she took a
pain pill the morning of her grand jury testimony, J.A. 416.
Given the inconsistencies in Milosavljevic’s trial
testimony, the inconsistent portions of her grand jury testimony
were no doubt admissible under Rule 801(d)(1)(A). See United
States v. Murphy, 696 F.2d 282, 284 (4th Cir. 1982) (explaining
that Rule 801(d)(1) “provide[s] a party with desirable
protection against the ‘turncoat’ witness who changes h[er]
story on the stand and deprives the party calling h[er] of
evidence essential to his case” (internal quotation marks
omitted)). Moreover, because Milosavljevic called into question
the entirety of her grand jury testimony by suggesting that the
government pressured her into providing certain answers, the
entirety of the testimony was necessary to refute that
contention by showing that the government exerted no improper
pressure at any point during the testimony. Cf. United States
v. Distler, 671 F.2d 954, 958 (6th Cir. 1981) (admission of
grand jury testimony not abuse of discretion despite fact that
“some of the prior testimony corroborates the in-court
testimony” because “the corroborative portions are needed to set
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the whole in context”). Accordingly, under these circumstances,
we find no abuse of discretion. *
IV.
For the foregoing reasons, we affirm Cowan’s conviction.
AFFIRMED
*
Cowan also challenges the admission of certain hearsay
testimony and the restrictions the district court imposed on the
scope of his direct examination of witnesses. Because Cowan did
not object to these rulings at trial, we review for plain error.
See United States v. Perkins, 470 F.3d 150, 155 (4th Cir. 2006).
We have reviewed these claims under the plain error standard and
find no reversible error, individually or cumulatively. See
United States v. Basham, 561 F.3d 302, 330 (4th Cir. 2009)
(“Generally, . . . if a court determines that none of a
defendant's claims warrant reversal individually, it will
decline to employ the unusual remedy of reversing for cumulative
error.” (alterations and internal quotation marks omitted)).
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