United States v. Covington ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4647
LARRY COVINGTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-97-55)
Submitted: February 17, 1998
Decided: June 22, 1998
Before ERVIN, WILKINS, and MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Gregory Bruce English, ENGLISH & SMITH, Alexandria, Virginia,
for Appellant. Helen F. Fahey, United States Attorney, Matthew S.
Bode, Special Assistant United States Attorney, Alexandria, Virginia,
for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Larry Covington seeks review of his jury convictions for assault
with a dangerous weapon with the intent to commit murder, in viola-
tion of 18 U.S.C.A. § 113(a)(1) (West 1994 & Supp. 1997), assault
resulting in serious bodily injury, in violation of 18 U.S.C.A.
§ 113(a)(6) (West 1994 & Supp. 1997), and possession of a shank, in
violation of 18 U.S.C.A. § 13 (West 1994 & Supp. 1997).
Covington's convictions stem from an altercation with Mark Wat-
son, a fellow inmate, at the Lorton Reformatory on August 22, 1996.
During this altercation, Covington allegedly stabbed Watson with a
shank, causing serious bodily injury which involved a substantial risk
of death.* At trial, the defense relied on the testimony of Lorton
inmate Ronny Payne. Payne testified that he, rather than Covington,
assaulted Watson. Covington also asserted an alibi defense claiming
that he was in his cell at the time of the attack. Despite this testimony
the jury chose not to believe Payne and convicted Covington.
On appeal, Covington contends that the Government's evidence
was insufficient in light of Payne's confession during the trial. We
disagree. On direct appeal of a criminal conviction, a verdict "must
be sustained if there is substantial evidence, taking the view most
favorable to the Government, to support it." Glasser v. United States,
315 U.S. 60, 80 (1942).
In the present case, we find that the evidence overwhelmingly sup-
ports Covington's convictions. Contrary to Covington's assertions,
our review of the record discloses that several Government witnesses
testified that they saw Covington running toward Watson, striking his
head, and that Covington was standing over Watson after he col-
lapsed. Further testimony revealed that on the day of the assault Cov-
ington was given time out of his cell and access to the tier. There was
also testimony that both Covington and Watson were escorted to the
medical facility after the assault and that while Covington was being
_________________________________________________________________
*The parties stipulated to this fact at trial.
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transported to the medical facility he thanked fellow inmate, Anton
Atwiff. Upon further investigation, a shank was recovered from
Atwiff's cell. Finally, the Government established on cross-
examination that when Payne testified before the grand jury he did
not confess to the assault, but testified that he did not see anyone
attack Watson. Accordingly, we find that the record supports the
jury's conclusion that Covington was guilty of assault with the intent
to murder, assault resulting in serious bodily injury, and unlawful pos-
session of a shank.
Covington also challenges several of the district court's evidentiary
rulings. We review these rulings for an abuse of discretion. See
United States v. Ellis, 121 F.3d 908, 926 (4th Cir.), cert. denied, ___
U.S. ___, 66 U.S.L.W. 3457 (U.S. Jan. 12, 1998) (No. 97-7095).
First, Covington alleges that the district court erroneously pre-
cluded the defense from introducing evidence that while Watson was
being treated for his injuries a shank was discovered in his pants. We
disagree. The judge excluded the evidence apparently on the basis
that it lacked probative value and was highly prejudicial. See Fed. R.
Evid. 403. Here the defense did not assert a claim of self-defense.
Consequently, the fact that a shank was found on the victim lacked
substantial probative value and could have unnecessarily confused the
jury.
Covington also contends that the district court should have permit-
ted him to introduce evidence of Watson's violent character. The fed-
eral rules of evidence permit "[e]vidence of a pertinent trait of
character of the victim of the crime [to be] offered by an accused."
Fed. R. Evid. 404(a)(2). Furthermore, when the "character or a trait
of character of a person is an essential element of a charge, claim, or
defense, proof may also be made of specific instances of that person's
conduct." Fed. R. Evid. 405(b). In the instant case, Watson's propen-
sity for violence was not directly relevant because Covington claimed
that he had an alibi, not that he acted in self-defense. Moreover, Cov-
ington read a stipulation into evidence that Watson was convicted of
murder while armed and of carrying a pistol. Accordingly, the district
court's exclusion of this evidence does not require reversal.
Finally, Covington asserts that the district court improperly
allowed the Government to introduce a disciplinary report of Officer
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Stevenson into evidence. During his direct testimony, Stevenson
admitted that he was disciplined for leaving the panel box and tier
gate open on the day of the assault. On cross-examination, defense
counsel elicited that during a previous investigation, Stevenson stated
that he had no idea how Covington escaped from his cell because it
was locked. On redirect, the Government introduced, over defense
objection, a report in which Stevenson admitted that he had left both
the tier gate and the panel box open. The defense asserts that the
introduction of this document had the effect of improperly bolstering
the witness's credibility. Again, we believe the Appellant is wrong.
The full report was properly admitted as a prior consistent state-
ment. Under Fed. R. Evid. 801(d)(1)(B), prior consistent statements
may be proffered to rebut a charge of recent fabrication. We observe
the rule that the trial court has full discretion over the extent to which
prior consistent statements are admitted. See United States v. Parodi,
703 F.2d 768, 774-75 (4th Cir. 1983); see also United States v.
Dominguez, 604 F.2d 304, 311 (4th Cir. 1979) (holding that trial court
properly admitted prior consistent statements of Government witness
pursuant to Fed. R. Evid. 801(d)(1)(B), after witness's credibility was
challenged).
Accordingly, we affirm the district court's judgment. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the material before the court and argument would
not aid the decisional process.
AFFIRMED
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