United States v. Hines , 407 F. App'x 732 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4652
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRANCE WINFRED HINES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Mark S. Davis, District
Judge. (2:09-cr-00150-MSD-FBS-1)
Submitted: December 10, 2010 Decided: January 7, 2011
Before MOTZ, GREGORY, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James O. Broccoletti, ZOBY & BROCCOLETTI, P.C., Norfolk,
Virginia, for Appellant. Neil H. MacBride, United States
Attorney, Elizabeth Bartlett Fitzwater, Special Assistant United
States Attorney, Richard D. Cooke, Assistant United States
Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terrance Hines appeals his conviction and thirty-five
month sentence for one count of possession with intent to
distribute heroin in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(C) (2006). Hines argues that the district court erred in
failing to require the police to disclose the identity of a
confidential informant, erred in allowing certain testimony to
be elicited from police, and finally, erred in allowing
testimony from police regarding the confidential informant’s out
of court statements. We affirm.
I. Disclosure of Confidential Informant’s Identity
Police apprehended Hines and discovered heroin in his
vehicle after a confidential informant arranged a drug purchase
from Hines and gave police a description of Hines and his
vehicle. Hines sought in the district court to compel the
Government to disclose the informant’s identity. The district
court denied the motion, but limited the admissibility of the
informant’s statements to police.
Hines first argues that the court erred in denying his
motion to compel disclosure of the confidential informant. A
decision not to require disclosure of a confidential informant
is within the discretion of the district court. United
States v. Gray, 47 F.3d 1359, 1363-64 (4th Cir. 1995) (internal
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citations omitted). “Under the abuse of discretion standard,
this court may not substitute its judgment for that of the
district court; rather, [it] must determine whether the
[district] court’s exercise of discretion, considering the law
and facts, was arbitrary or capricious.” United States v.
Mason, 52 F.3d 1286, 1289 (4th Cir. 1995).
The government is not required to disclose the
identity of tipsters. McLawhorn v. North Carolina, 484 F.2d 1,
6 (4th Cir. 1973). If the informant was a participant in
criminal activity, however, the government may be compelled to
disclose his identity. Roviaro v. United States, 353 U.S. 53,
64-65 (1957). “What is usually referred to as the informer's
privilege is in reality the Government’s privilege to withhold
from disclosure the identity of persons who furnish information
of violations of law to officers charged with enforcement of
that law.” Roviaro, 353 U.S. at 59 (internal citations
omitted). The Supreme Court further noted in Roviaro that
“[w]here the disclosure of an informer’s identity, or of the
contents of his communication, is relevant and helpful to the
defense of an accused, or is essential to a fair determination
of a cause, the privilege must give way.” Id. at 60-61.
The Government argues that Hines has made no showing
that he has any need for the identity of the informant. The
Government notes that during the hearing on Hines’s motion to
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compel, when asked by the court whether permitting the
Government to “ask that more limited question” about how the
police came to be at Hines’s location, would be appropriate,
Hines responded that “[a]bsent the court’s determining that the
informant is a participant and therefore relieving me of [the
burden to prove prejudice], I don’t know if I could make that
showing if the court limited the government to that evidence.”
We have reviewed the record, and conclude that the
informant in this case was more than a “tipster” but something
less than a participant. See United States v. Brinkman, 739
F.2d 977 (4th Cir. 1984). Furthermore, the district court
appropriately balanced the public’s interest in confidentiality
against Hines’s interest in disclosure and determined that Hines
had not made the requisite showing. Accordingly, disclosure of
the informant’s identity was not required.
II. Improper Expert Testimony
Hines next argues that the district court erred in
denying his motion for a mistrial when police witnesses gave
allegedly improper expert testimony regarding forensic testing.
The Government argues that this issue is not preserved for
appellate review because Hines did not object until well after
the witnesses offered the allegedly improper testimony.
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Hines broached the subject of forensic testing during
opening statements, when counsel questioned why police did not
submit the drugs found in Hines’s vehicle for DNA or fingerprint
analysis. During the Government’s examination of two police
witnesses, the Government adduced testimony about why no
forensic testing was done. Hines’s attorney cross-examined the
witnesses on these points. It was not until significantly later
in the proceedings that Hines lodged an objection to the
testimony, and accordingly, Hines has failed to preserve this
issue for review. See United States v. Parodi, 703 F.2d 768,
783 (4th Cir. 1983) (“[Fed. R. Evid.] 103 requires that, to
preserve for appellate review an objection to evidence, the
objection must be (1) specific, (2) timely, and (3) of record.”)
(internal citations omitted). Because the objection was not
preserved for appeal, plain error review applies. To establish
plain error, a defendant must show that an error occurred, the
error was plain, and the error affected his substantial rights.
United States v. Olano, 507 U.S. 725, 732-34 (1993); United
States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009)
(stating that the defendant bears burden of establishing each of
the plain error requirements).
Pursuant to Fed. R. Evid. 701, a lay witness may
provide opinions that are rationally based on the witness’s
perceptions. Here, the testimony in question was based on each
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witness’s observations regarding Hines’s arrest and their
experience with forensic testing. The witnesses testified that,
in their experience, they had ample evidence because they found
narcotics in a car that they had seen Hines running from. One
witness also testified that he had never seen fingerprints taken
from a plastic bag, and it simply was not police procedure to
submit that type of drug evidence for fingerprint or DNA
testing. Because this testimony was rationally based on the
witnesses’ perceptions, we conclude that the district court did
not plainly err in allowing the testimony.
III. Testimony Regarding Informant’s Statements
Hines finally argues that the district court erred by
allowing Portsmouth Police Detective Johnkin to testify as to
the confidential informant’s statements in explaining why the
police were in the apartment complex parking lot where Hines was
apprehended and the heroin discovered. While the Government
claims that any error was invited, we have reviewed the record
and conclude that the claim was adequately preserved for
appellate review.
“Rulings related to admission and exclusion of
evidence are addressed to the sound discretion of the [district
court] and will not be reversed absent an abuse of that
discretion.” United States v. Stitt, 250 F.3d 878, 896
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(4th Cir. 2001). Hearsay is generally not admissible in
evidence. Fed. R. Evid. 802. A statement is not hearsay,
however, if it is offered for the limited purpose of explaining
why a government investigation was undertaken. United States v.
Love, 767 F.2d 1052, 1063 (4th Cir. 1985) (citing cases).
Here, the statements were introduced to show why the
officers investigated Hines. The district court gave the jury
three instructions to that effect to obviate any possible
prejudice coming from the testimony. We decline to hold that
the court abused its discretion.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
conclusions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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