United States v. Flowers ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4553
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOEL RENATO FLOWERS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (CR-04-185)
Submitted: February 24, 2006 Decided: March 29, 2006
Before NIEMEYER, LUTTIG, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Andrew R. Sebok, Norfolk, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, William D. Muhr, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant, Joel Renato Flowers, appeals his conviction on
counts of conspiracy to possess with intent to distribute crack
cocaine, possession with intent to distribute cocaine, possession
of a firearm in furtherance of a drug trafficking crime, and felon
in possession of a firearm. See J.A. 344.
On appeal, Flowers argues that there was insufficient evidence
to convict him of a conspiracy to possess with intent to distribute
crack. We must uphold a jury’s verdict as supported by substantial
evidence if, viewing the evidence in the light most favorable to
the government, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Burks
v. United States, 437 U.S. 1, 17 (1978); Jackson v. Virginia, 443
U.S. 307, 319 (1979). At trial, the government introduced the
following evidence: Flowers and his co-defendant, Kimbrough, were
parked in a car late at night in an area known for drug
trafficking, J.A. 133-38, 179-84; when police officers turned down
the street on which the car was parked, a man was leaning up
against the side of the car, and that man fled when he noticed the
police car approaching, id.; when the officers looked into the car,
Flowers’ co-defendant had on his lap $125 in cash, id. at 133-38,
179-84; a search of Flowers’ person found more than $1600 cash and
a search of the car found large amounts of money and drugs, id. at
210-11, 146-52, 226-27. Viewing this evidence in the light most
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favorable to the government, a rational trier of fact could have
found that Flowers was a participant in a conspiracy to possess
with intent to distribute crack. Therefore, substantial evidence
supports the jury’s verdict.
Flowers also appeals the district court’s failure to suppress
evidence obtained in police searches of Kimbrough’s car and of
Flowers’ person. The district court held that the evidence
obtained from the search of the car should not be suppressed
because Kimbrough, the driver of the car, consented to the search.
Id. at 102. Flowers lacks standing to challenge the search of
Kimbrough’s car. A passenger does not have a “legitimate
expectation of privacy in the car” driven by the owner “such that
[the passenger can] raise a Fourth Amendment challenge to a search
of the car’s interior.” United States v. Rusher, 966 F.2d 868, 874
(4th Cir. 1992) (relying on Rakas v. Illinois, 439 U.S. 128, 148-49
(1978)). Because Flowers did not have a legitimate expectation of
privacy in Kimbrough’s car, he cannot raise an objection to the
search of the car or to the district court’s failure to suppress
evidence discovered in that search.1 Flowers’ challenge to the
1
Flowers argues that the police officers took Kimbrough and
him into custody by taking their identification cards. Because the
officers had taken Kimbrough and Flowers into custody but had not
read them their Miranda rights when Kimbrough consented to the
search of the car, Flowers argues that “[a]ll of the evidence thus
obtained from the car, Kimbrough and/or Flowers, was, therefore,
illegally obtained and should have been held inadmissible.”
Leaving aside the question whether Kimbrough and Flowers were “in
custody” for purposes of Miranda by virtue of the officers’
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district court’s failure to suppress evidence taken from his person
is likewise unavailing. That evidence was taken from Flowers’
person in a search incident to arrest, which search was reasonable.
Chimel v. California, 395 U.S. 752, 762-63 (1969) (stating that “it
is entirely reasonable for the arresting officer to search for and
seize any evidence on the arrestee’s person in order to prevent its
concealment or destruction”).
Additionally, Flowers argues that the district court committed
plain error during voir dire by failing to ask more questions of
jurors who admitted to having relatives convicted of drug crimes.
At voir dire, the district court asked the jurors if “you or a
member of your family or close personal friends, [have] been the
victim of a drug crime, that is, they’ve been victimized because
drugs were in some way involved.” J.A. 118. Five jurors
volunteered that they had some connection to a person who had been
or was accused of having been involved in drug crime. Id. at 119.
The district court then asked those five jurors whether they were
able, “notwithstanding the problems you have in your family or
friends because of drugs, to come into this case and honestly
possession of their identification cards, Flowers’ apparent
argument that the alleged Miranda violation required suppression of
the physical fruits of unwarned statements is meritless. The
Supreme Court squarely foreclosed this argument in United States v.
Patane, 542 U.S. 630 (2004), which held that the failure to read a
suspect his Miranda rights does not require “suppression of the
physical fruits of the suspect’s unwarned but voluntary
statements.” Id. at 634.
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render a fair and impartial verdict based on the law and the
facts.” Id. at 120. None of the jurors stood up to indicate that
they could not render a fair and impartial verdict. Id. The
district court repeated the same pattern of questioning with regard
to addiction to drugs, id. at 120-21, and none of the jurors who
had a connection to drug addiction indicated that they could not
render a fair and impartial verdict either, id. at 121. The
district court did not strike any of these jurors for cause, id. at
126, Flowers did not ask that the district court strike any of
these jurors for cause, id., and Flowers did not object to the
district court’s examination of the jurors or suggest that the
district court ask more questions during voir dire, see id. at 132
(“The Court: Are there any matters you wish to take up with the
Court regarding the jury selection? Mr. Robinson: None from the
defense, Your Honor.”).
A defendant must make a specific objection or request during
voir dire in order to preserve that objection for appeal. United
States v. LaRouche, 896 F.2d 815, 829 (4th Cir. 1990); King v.
Jones, 824 F.2d 324, 326 (4th Cir. 1987) (“If there are particular
voir dire questions which counsel deems essential, and that refusal
to ask them may be reversible error, counsel must so advise the
court, and state his reasons before the court’s voir dire of the
prospective jurors is completed.”). Because, during voir dire,
Flowers neither made an objection to the district court’s
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questioning nor requested further questioning, Flowers has waived
any objection to the district court’s voir dire questioning
regarding jurors’ connections to drug crime and drug addiction.
Finally, Flowers contends that there was insufficient evidence
to convict him of possession of a firearm in furtherance of a drug
trafficking crime. Flowers argues that he did not commit a drug
trafficking crime and never possessed a firearm. There is
substantial evidence to support the jury’s finding that Flowers was
trafficking drugs. See J.A. 133-38, 179-84. Two police officers
testified that Flowers appeared to be a participant in a drug sale
when the officers happened upon him, id. at 136, 182, and, when the
car in which Flowers was a passenger was searched, large sums of
money and drugs were found inside, see id. at 141. There is also
substantial evidence to support the jury’s finding that Flowers
possessed a firearm. The officer who arrested Flowers testified
that Flowers pulled out a gun and tossed it into a field while the
officer was pursuing Flowers. Id. at 143-44. A rational juror
could conclude that Flowers possessed the gun and that his
possession furthered drug trafficking. Therefore, substantial
evidence supports the jury’s verdict convicting Flowers of
possession of a firearm in furtherance of a drug trafficking
crime.2
2
In the “statement of issues presented for review” portion of
Flowers’ brief, Flowers lists as an issue: “Did the trial court’s
actions in answering a question from the jury and allowing the
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For the reasons stated herein, the judgment of the district
court is affirmed.
AFFIRMED
removal of previously introduced evidence violate Flowers’ right to
a fair trial?” However, Flowers never addressed this issue in his
brief. Because Flowers did not brief this issue we do not consider
it.
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