United States v. Taylor ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4742
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARRELL GERALD TAYLOR,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-04-115-F)
Submitted: April 10, 2006 Decided: May 9, 2006
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Devon L. Donahue,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Darrell Gerald Taylor was convicted after a jury trial of
possession of a firearm by a convicted felon. He appeals, raising
claims of insufficiency of the evidence, prosecutorial misconduct
during the closing argument, and improper jury instructions. After
careful consideration, we affirm.
I.
A defendant challenging the sufficiency of the evidence
faces a heavy burden. See United States v. Beidler, 110 F.3d 1064,
1067 (4th Cir. 1997). “[A]n appellate court’s reversal of a
conviction on grounds of insufficient evidence should be confined
to cases where the prosecution’s failure is clear.” United
States v. Jones, 735 F.2d 785, 791 (4th Cir. 1984). In reviewing
a sufficiency challenge, “[t]he verdict of a jury 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). “[S]ubstantial evidence is evidence that a
reasonable finder of fact could accept as adequate and sufficient
to support a conclusion of a defendant’s guilt beyond a reasonable
doubt.” United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996).
To prove a violation of 18 U.S.C. § 922(g)(1) (2000), the
Government must establish: (1) the defendant previously had been
convicted of a crime punishable by a term of imprisonment exceeding
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one year; (2) the defendant knowingly possessed the firearm; and
(3) the possession was in or affecting commerce. United States v.
Langley, 62 F.3d 602, 606 (4th Cir. 1995). Taylor first argues
that there was insufficient evidence to show that his prior
conviction was for a crime “punishable by imprisonment for a term
exceeding one year.” 18 U.S.C. § 922(g)(1).
The district court instructed the jury, without
objection, that it must determine that Taylor had “been convicted
of a felony, that is a crime punishable by a term in excess of one
year.” Taylor’s probation officer testified that Taylor was on
probation for possession of cocaine, a Class I felony, and the
state judgment was published to the jury. In addition, in his
closing argument, Taylor’s counsel conceded that his client was a
convicted felon. Accordingly, the evidence was sufficient for the
jury to conclude that Taylor had a qualifying prior conviction
under § 922(g).
Taylor also contends that his prior conviction did not
satisfy § 922(g) as a matter of law because, under North Carolina
law, he only faced a sentence of twelve months, due to his lack of
admitted aggravating factors. See North Carolina v. Allen, 615
S.E.2d 256, 265-70 (N.C. 2005) (holding that, after Blakely,
statutory maximum is the maximum that this particular defendant can
face in light of his criminal history and the fact found by a jury
or admitted by the defendant). However, as Taylor admits, his
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argument is foreclosed by our decision in United States v. Harp,
406 F.3d 242, 246 (4th Cir.) (holding that “a prior North Carolina
conviction was for a crime punishable by imprisonment for a term
exceeding one year . . . if any defendant charged with that crime
could receive a sentence of more than one year”), cert. denied, 126
S. Ct. 297 (2005). Harp considered and rejected the argument that
Allen required a more individualized analysis of what constitutes
a felony.* Id. at 246-47. Thus, because it is undisputed that a
sentence of over twelve months could be imposed on a defendant
convicted of felony possession of cocaine, Taylor’s prior
conviction was properly considered a felony.
Taylor next contends that the evidence was insufficient
to show that he possessed the firearm. However, we find the
evidence to be more than sufficient. Taylor ran from the police,
and his actions and body movements alerted the officers that he
might have a gun. One officer saw Taylor make a throwing motion
and immediately thereafter recovered a revolver, lying in plain
view, from the exact area where the throwing motion had taken
place. In addition, the gun was stolen shortly before the offense
date. Although the evidence was circumstantial, it was sufficient
to enable a jury to conclude that Taylor possessed the firearm.
*
At the time Harp was decided, Allen was still pending on
appeal to the North Carolina Supreme Court. However the Supreme
Court affirmed the holding of the North Carolina Court of Appeals,
which was the holding considered by this court.
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II.
To obtain a new trial on a claim of prosecutorial
misconduct, a defendant must show that the prosecutor’s conduct was
improper, and that the “conduct prejudicially affected his
substantial rights so as to deprive him of a fair trial.” United
States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002). Moreover,
“it is undisputed that closing argument is not merely a time for
recitation of uncontroverted facts, but rather the prosecution may
make fair inferences from the evidence.” United States v.
Francisco, 35 F.3d 116, 120 (4th Cir. 1994). Because Taylor did
not object to any portion of the Government’s closing argument, his
claims are reviewable only for plain error. United States v.
Sanchez, 118 F.3d 192, 197 (4th Cir. 1997).
First, Taylor contends that the Government (1) improperly
informed the jury that the fact that Taylor was a convicted felon
and, therefore, could not have a gun was undisputed, (2) improperly
bolstered testimony that the gun was stolen, and (3) misconstrued
an officer’s testimony. However, our review of the record shows
that the Government’s statements accurately summarized the
evidence.
Taylor also asserts that the Government erred by stating
that an officer’s recollection was recorded in police reports, even
though the reports were not in evidence. Specifically, the
Government stated, “[b]elieve me, if they didn’t put that in there,
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you would have heard about it from the defense.” This statement
referred to Taylor’s cross-examination of another officer, which
focused on what was in the police report, what was left out, and
how that impacted the testimony at trial. The Government’s
statement was really a comment on defense counsel’s
cross-examination. In any event, even if the statement was
improper, it concerned an ancillary issue. Thus, any error did not
affect Taylor’s substantial rights.
III.
In general, the decision to give, or not to give, a jury
instruction, and the content of that instruction are reviewed for
an abuse of discretion. United States v. Burgos, 55 F.3d 933, 935
(4th Cir. 1995). To be entitled to a requested jury instruction,
the party urging the instruction must establish a sufficient
evidentiary foundation to support the instruction. United
States v. Lewis, 53 F.3d 29, 33 n.8 (4th Cir. 1995). The denial of
a requested instruction is reversible only if the proposed
instruction: (1) was correct, (2) was not substantially covered by
the court’s charge to the jury, and (3) dealt with a point so
important that failure to issue the requested instruction seriously
impaired the defendant’s ability to conduct his defense. Id. at
32.
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First, Taylor alleges that the court erred by failing to
give his requested instruction regarding the impact that bias or
prejudice might have on a witness’s testimony. Taylor asserts this
instruction was important, because Taylor had accused the officers
of being racist when he was arrested, and their testimony might be
colored by this statement. However, the jury was instructed that
an officer’s testimony is not entitled to greater or lesser weight
than an ordinary witness, that it should take into account any
benefit or interest the witness may have in the outcome of the
case, and that it should consider the witness’s relationship with
the defendant, as well as his candor and fairness. Accordingly,
the content of the requested instruction was covered by the court.
Next, Taylor asserts that the district court should have
included his requested instruction that mere presence at the scene
of a crime is not enough to show guilt. The district court
properly concluded that the “mere presence” instruction did not
deal with the factual situation presented at trial. Specifically,
there was no “crime scene” unless Taylor possessed the gun. Absent
his possession, there was no crime at all which could be improperly
attributed to him by his presence. Thus, the district court’s
instructions regarding the requirement of showing possession were
adequate to prevent a conviction based solely on Taylor’s proximity
to a gun. Thus, there was no error.
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IV.
Accordingly, we affirm Taylor’s conviction. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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