United States v. Tommy Lykins , 428 F. App'x 621 ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0450n.06
FILED
No. 09-5929
Jul 06, 2011
UNITED STATES COURT OF APPEALS
LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE
v. ) WESTERN DISTRICT OF
) KENTUCKY
TOMMY RAY LYKINS, )
) OPINION
Defendant-Appellant. )
BEFORE: KENNEDY, SILER and McKEAGUE, Circuit Judges.
PER CURIAM. Defendant Tommy Ray Lykins was found guilty of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On July 27, 2009, he was sentenced
to a prison term of 180 months and a five-year term of supervised release. On appeal, defendant
contends that the district court erred in admitting a photograph into evidence that the prosecution had
not disclosed in pre-trial discovery. Defendant argues that admission of the photograph resulted in
unfair prejudice because it prevented him from adequately preparing a defense. On due
consideration, we affirm.
Defendant Lykins was arrested at his home in Elkton, Kentucky on May 20, 2008, following
a domestic dispute involving his wife and her thirteen-year-old daughter. Sheriff’s Deputy Michael
Kline testified that he arrived on the scene and was informed by defendant’s frantic wife and her
daughter that defendant had a gun. R. 39, Trial Tr. vol. 1 at 22. Defendant emerged from the trailer
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carrying what Kline believed was a long rifle. Id. at 24-25. Defendant fled out the back door with
the gun into the woods. Id. at 25-26. Although Kline gave chase, he decided to wait for back-up
when he lost sight of defendant in the woods. Id. at 26. While Kline was still on the scene waiting
for back-up to arrive, defendant returned from the woods without the gun and was arrested. Id. at
27. He eventually cooperated with the police and led them to the location in the woods where the
rifle lay hidden. The rifle, a .30-30 Winchester, was seized and eventually admitted into evidence
at trial. Id. at 28-29; 98.
Defendant was charged in the Western District of Kentucky with unlawful possession of a
firearm, 18 U.S.C. § 922(g)(1). A jury trial commenced on April 14, 2009. Deputy Kline testified
that defendant stated that he took off with the gun to hide it because he knew he was not supposed
to possess a firearm, but claimed the gun was purchased by his wife. Id. at 31. Defendant’s wife
testified that she bought the gun at defendant’s direction and with his money. Id. at 56. She also
testified that on the day of the offense, defendant held the gun and pointed it at her. Id. at 54.
Defendant testified that the gun was his wife’s and that he hid the gun in the woods a week
before the domestic dispute. Id. at 119. On cross-examination, defendant testified that he knew that
as a felon he was not permitted to hold a gun and asserted that since his felony convictions, he had
never hunted with a gun. Id. at 133-36. The disputed photograph, showing defendant holding a rifle
other than the one he was convicted of possessing, was introduced by the government to rebut
defendant’s testimony. Id. at 137-38. Defense counsel objected on grounds of authentication, but
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the objection was overruled when defendant’s testimony authenticated the photograph. Id. at 138.1
Subsequently, counsel objected on the grounds that the photograph had not been produced in pre-
trial discovery, thus depriving him of a chance to examine it before defendant testified. Id. at 139.
This objection was also overruled as the Assistant U.S. Attorney explained the photo was not
disclosed in discovery because he did not intend to introduce the photograph in his case-in-chief.
Id. at 139-40. Defendant went on to explain that the photograph was taken on Thanksgiving Day
in 2007, when his wife shot a deer on her first hunting trip. Id. at 149.
The trial concluded on April 15, 2009. The jury deliberated for thirty minutes before
returning its verdict, finding defendant guilty as charged. On July 27, 2009, defendant was sentenced
to a prison term of 180 months, the statutory mandatory minimum. On appeal, defendant raises one
issue, contending the conviction should be overturned because admission of the photograph was
unfairly prejudicial.
It appears that in arguing that defense counsel did not have opportunity to review the
evidence with defendant and prepare a defense, he contends the district court erred in admitting the
photograph over his objection because the government had violated its pre-trial discovery obligations
under Rule 16 of the Federal Rules of Criminal Procedure. Rule 16(a)(1)(E) provides that, upon
defendant’s request, the government must permit the defendant to inspect items such as photographs
in its possession if: “(i) the item is material to preparing the defense; (ii) the government intends to
use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the
1
Defendant testified that he had seen the photo before, “right after the hunting season was
over.” Id. at 148. He believed the photo had been taken by his wife’s brother. Id. at 148-49.
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defendant.” Fed. R. Crim. P. 16(a)(1)(E). If a party fails to comply with Rule 16, the court has
discretion to impose a number of sanctions, including ordering discovery, granting a continuance,
excluding the evidence, or entering “any other order that is just under the circumstances.” Fed. R.
Crim. P. 16(d)(2). Construing the district court’s admission of the photograph over defendant’s
objection as a finding that the government had not violated Rule 16, we review the district court’s
decision under Rule 16 for abuse of discretion. United States v. Jordan, 544 F.3d 656, 667 (6th Cir.
2008).
We note that the parties were specifically required by a pre-trial order to comply with the
discovery requirements of Rule 16. The government does not deny that defendant made a request
for materials discoverable under Rule 16. Further, defendant does not dispute the government’s
contention that it did not intend to use the photograph in its case-in-chief. Nor has he asserted that
the photo was obtained by the government from him. See supra n.1. Hence, the government’s
nondisclosure of the photo can be found violative of Rule 16 only if the photo is shown to have been
“material to preparing the defense.”
The government first contends that defendant’s nonspecific objection that the photograph had
not been timely produced was insufficient to preserve the issue for appeal as a Rule 16 violation.
The government contends that because defendant did not clearly object on the basis that the
photograph was material to preparing a defense or even cite Rule 16 in his objection, plain error
review should apply. United States v. Seymour, 468 F.3d 378, 384 (6th Cir. 2006) (explaining that
appellate courts review for plain error where a defendant does not state the “specific ground” for his
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objection). However, a party is only required to state the specific ground of objection to the
admissibility of evidence if the ground is not “apparent from the context.” United States v.
Haywood, 280 F.3d 715, 725 (6th Cir. 2002) (holding that objection to evidence as irrelevant and
prejudicial was sufficient to preserve Fed. R. Evid. 404(b) issue). Here, although defense counsel
did not specifically cite Rule 16, his objection complained of his inability to prepare defendant to
testify regarding the evidence. Moreover, in response to defendant’s objection, the prosecution
referred to the other subsection of Rule 16, the “case-in-chief” provision. The context thus made it
clear that defendant’s objection implicated Rule 16. Hence, we review for abuse of discretion, not
just for plain error. See Jordan, 544 F.3d at 667.
Nevertheless, defendant fails to demonstrate that the district court abused its discretion in
admitting the photograph. “A defendant does not satisfy [the] requirement that an object be ‘material
to the preparation of the defendant’s defense’ by means of merely conclusory arguments concerning
materiality.” United States v. Phillip, 948 F.2d 241, 250 (6th Cir. 1991) (internal citation omitted).
Rather, defendant must make a prima facie showing of materiality. Id. Materiality under Rule 16
has not been authoritatively defined in this Circuit. However, the Supreme Court has determined
that “defense” within the meaning of Rule 16 means the “defendant’s response to the Government’s
case in chief.” United States v. Armstrong, 517 U.S. 456, 462 (1996). Therefore, the rule applies
only to “‘shield’ claims that ‘refute the Government’s arguments that the defendant committed the
crime charged.’” United States v. Robinson, 503 F.3d 522, 532 (6th Cir. 2007) (quoting Armstrong,
517 U.S. at 462). It follows that information which does not counter the government’s case or
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bolster a defense is not material “merely because the government may be able to use it to rebut a
defense position.” United States v. Stevens, 985 F.2d 1175, 1180 (2d Cir. 1993). Rather, there must
be an indication that pre-trial disclosure would have enabled the defendant to “alter the quantum of
proof in his favor,” not merely that a defendant would have been dissuaded from proffering easily
impeachable evidence. Id. In assessing materiality, we consider the logical relationship between the
information withheld and the issues in the case, as well as the importance of the information in light
of the evidence as a whole. See id.
As the government correctly notes, the photograph at issue depicting a firearm different from
the one defendant was charged with possessing, was not essential to the government’s case and
would not have assisted defendant in refuting the government’s case. The photograph was
unfavorable to defendant because it contradicted his testimony that he had not held or hunted with
a gun. Although a chance to reconsider his plan to testify would certainly have been beneficial to
defendant, a Rule 16 violation cannot be sustained based merely on an argument that disclosure
would have resulted in reconsideration of defendant’s decision to testify or formulation of a more
effective defense strategy. See id.
Nor are we persuaded that the quantum of proof in defendant’s favor would have been
significantly altered if the photograph had been disallowed. The government presented considerable
evidence, in the form of the testimony of defendant’s wife and Deputy Kline, supporting the finding
that defendant possessed a firearm on the date he was arrested. Moreover, defendant admitted he
had possessed the rifle when he carried it into the woods—although he testified that he actually
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carried it into the woods a week before the date of his arrest. R. 39, Trial Tr. vol. 1, at 119-20, 140-
41. Furthermore, defendant had an adequate opportunity to explain the photograph to the jury in
response to cross-examination and on redirect examination. Id. at 136-38, 148-49.
Accordingly, defendant has failed to demonstrate that the photograph was so material to the
preparation of his defense as to render its admission at trial an abuse of discretion.2 Furthermore,
even if we were to find that admission of the photograph was in error, the error would be deemed
harmless because it did not materially affect the verdict, given the substantial evidence supporting
the government’s case. See Phillip, 948 F.2d at 251 (Rule 16 error held to be harmless under Fed.
R. Crim. P. 52(a) unless “more probable than not that the error materially affected the verdict”).
Accordingly, the district court’s judgment is AFFIRMED.
2
The district court did not expressly consider materiality, resting its decision solely on the fact
that the prosecution did not intend to introduce the evidence in its case-in-chief. Nonetheless, we
may affirm on any grounds supported by the record, even if different from the reasons cited by the
district court. See United States v. Howard, 621 F.3d 433, 457 (6th Cir. 2010).
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