United States v. Hayes ( 2004 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    UNITED STATES COURT OF APPEALS
    FIFTH CIRCUIT                    December 22, 2004
    Charles R. Fulbruge III
    Clerk
    No. 03-11335
    Summary Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    ZAVARN CORNELIUS HAYES,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Northern District of Texas
    (3:03-CR-109-ALL)
    Before JONES, BARKSDALE, and PRADO, Circuit Judges.
    PER CURIAM:*
    Zavarn Cornelius Hayes appeals his conviction for being a
    previously convicted felon in possession of a firearm, in violation
    of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).    Hayes contends that the
    officers who arrested him testified improperly at trial that it was
    their opinion and belief that the weapon found at the scene came
    from his person. (Hayes had been apprehended after a pursuit; when
    he was lifted to his feet, the officers had observed a holstered
    pistol under Hayes’ body.)   Because Hayes did not object to the
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that
    this opinion should not be published and is not precedent except
    under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
    prosecutor’s questions on the basis that they were intended to
    induce improper opinion testimony, we review only for plain error.
    See, e.g., United States v. Green, 
    324 F.3d 375
    , 381 (5th Cir.),
    cert. denied, 
    124 S. Ct. 152
    (2003).
    “Under the plain error analysis, the court may reverse a
    criminal conviction only if (1) there was error, and (2) the error
    was clear and obvious, and (3) the error affected a substantial
    right.”   United States v. Jimenez, 
    256 F.3d 330
    , 340 (5th Cir.
    2001).    Further,      the        court    retains        discretion        to   reverse   a
    conviction on the basis of plain error; generally, we will reverse
    only if the error seriously affected the fairness, integrity, or
    public reputation of the proceedings.                      
    Id. Under FED.
    R. EVID. 701, if a witness is not testifying as an
    expert,   the   witness       may    testify          in   the     form   of   opinions     or
    inferences only if the testimony (1) is rationally based on the
    witness’ perceptions, (2) is helpful to a clear understanding of
    the testimony or the determination of a fact issue, and (3) is not
    based on scientific, technical, or other specialized knowledge.
    See, e.g., United States v. Parsee, 
    178 F.3d 374
    , 379 (5th Cir.
    1999).    Although      a    witness       may       not   offer     legal     conclusions,
    “testimony   in   the       form    of     an       opinion   or    inference     otherwise
    admissible is not objectionable because it embraces an ultimate
    issue to be decided by the trier of fact”.                         FED. R. EVID. 704(a);
    see United States v. Izydore, 
    167 F.3d 213
    , 218 (5th Cir. 1999)
    2
    (applying Rule 704(a) to lay testimony).           The officers’ testimony
    was limited to opinions that were rationally based on the officers’
    observations,    and     the    testimony    was   helpful    to    a   clear
    determination of a fact issue.            There was no error.       But even
    assuming arguendo the admission of the officers’ testimony was
    error, it was not the “clear” or “obvious” error required by our
    plain error review.      See 
    Parsee, 178 F.3d at 379
    .
    Hayes also challenges remarks made by the prosecutor during
    closing argument.       He contends that the prosecutor improperly
    vouched   for   the    officers’   credibility     on   several    occasions;
    however, he objected to only two of the four remarks he challenges
    on appeal.   Plain error review is applied to the comments for which
    there was no objection.        The objected-to comments are reviewed to
    determine whether they were improper and, if so, affected Hayes’
    substantial rights.      E.g., United States v. Gallardo-Trapero, 
    185 F.3d 307
    , 320 (5th Cir. 1999).
    Although Hayes stopped short of testifying that the arresting
    officers were lying, his testimony about the discovery of the
    firearm conflicted substantially with the officers’.          A prosecutor
    may “present what amounts to be a bolstering argument if it is
    specifically in rebuttal to assertions made by defense counsel in
    order to remove any stigma cast upon [the prosecutor] or his
    witness”.    United States v. Thomas, 
    12 F.3d 1350
    , 1367 (5th Cir.)
    (internal quotation and citation omitted), cert. denied, 
    511 U.S. 3
    1095, and cert. denied, 
    511 U.S. 1114
    (1994).      The other comments
    challenged by Hayes were permissible requests that the jury draw
    reasonable inferences from the evidence and a permissible argument
    that, under the evidence presented, the officers had no reason to
    lie.    See United States v. Washington, 
    44 F.3d 1271
    , 1278 (5th
    Cir.), cert. denied, 
    514 U.S. 1132
    (1995).        There was no error,
    plain or otherwise.
    Hayes also claims for the first time on appeal that the
    prosecutor also made an improper plea for law enforcement.      “This
    circuit has held that appeals to the jury to act as the conscience
    of the community are permissible, so long as they are not intended
    to inflame.”    United States v. Fields, 
    72 F.3d 1200
    , 1208 (5th
    Cir.), cert. denied, 
    519 U.S. 807
    (1996).      The prosecutor’s remark
    was not clear or obvious error.       See 
    Jimenez, 256 F.3d at 340
    .
    Finally, Hayes urges reversal based on cumulative error.
    Obviously, in the light of the foregoing, that claim fails also.
    AFFIRMED
    4