United States v. David Simmons ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3603
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D AVID S IMMONS,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 07 CR 10128—Michael M. Mihm, Judge.
A RGUED O CTOBER 9, 2009—D ECIDED M ARCH 30, 2010
Before P OSNER, R OVNER, and W ILLIAMS, Circuit Judges.
R OVNER, Circuit Judge. On September 14, 2007, a bank
in Normal, Illinois, was robbed of approximately $5,862
by two gunmen. David Simmons was arrested that day
for the crime, and a jury found him guilty of armed
bank robbery under 18 U.S.C. § 2113(a) & (d), and of
using or carrying a firearm during a crime of violence
in violation of 18 U.S.C. § 924(c)(1)(A). Simmons has
appealed that conviction to this court.
2 No. 08-3603
The robbery of the U.S. Bank in Normal occurred
shortly after noon. Two men arrived at the bank armed
with guns. While one man stood near the door pointing
a gun at the people in the bank, the other approached
the teller counter and demanded money. Surveillance
cameras captured the scene, but both men wore white
coverings over their faces hindering identification. In
addition, both men wore light-colored gloves, with the
result that no useable fingerprints were recovered from
the bank. After obtaining approximately $5,862 from the
tellers and placing it in a backpack, the men fled the
bank by foot.
Both men ran toward nearby railroad tracks, pursued by
an employee of a local auto shop. The men eventually
split as they approached the tracks, with one heading
north into some bushes and the other running into an
area of trees by a water utility building. The police were
alerted to the location and descended on the area. An
officer spotted a man crouched near some trees wearing
a black shirt and something white on his head. When
spotted, the man ran back into the trees and four detec-
tives gave chase. Eventually he ran toward South
Adelaide Street with the detectives in pursuit. A police
officer responding to the scene saw a man running across
South Adelaide Street wearing a dark sweatshirt and
something white on his head. He circled a building and
intercepted the man, who was later identified as David
Simmons. They recovered a white t-shirt sleeve and
black cap nearby, and found a loaded Glock handgun
in the woods. The officers testified that at the station
they recovered a pair of light-colored Under Armour
No. 08-3603 3
football gloves in Simmons’ pants pocket. He was
wearing a long-sleeved black t-shirt inside out with the
tag visible, which was consistent with the clothing worn
by one of the robbers on the surveillance tape. In addi-
tion, he had the cut-off sleeve of a white t-shirt around
his neck.
At trial, the government introduced the testimonies of
five eyewitnesses to the bank robbery, but none of them
were able to identify Simmons as the perpetrator of the
crime. The government also introduced statements made
by Simmons when he was interrogated at the police
station, which corresponded with the known details of
the crime. In those statements, Simmons admitted that
he carried the Glock firearm into the bank, that his role
was to stay by the door to provide cover for the other
bank robber, and that the other bank robber approached
the tellers and told them to put money in the black back-
pack he was carrying. Simmons then acknowledged
that they subsequently fled on foot, that he heard some-
one running behind them, and that they split up once
they reached the railroad tracks. He further stated that
he thought he had found a good hiding place, but once
he saw the officer approach in his vehicle, he began
running toward his grandmother’s apartment, which
was a block west of where he was arrested.
The government also introduced testimony relating to
the gloves and ultimately introduced the gloves them-
selves into evidence. It is that testimony and evidence
that forms the basis for Simmons’ appeal. First, over
defense counsel’s objection, the district court allowed
4 No. 08-3603
Detective Merica to testify as to whether the gloves in
Simmons’ possession at the time of arrest were consistent
with the gloves worn by the robbers in the surveillance
photo. Merica had conducted the interview of Simmons
at the police station and therefore had viewed firsthand
the gloves found in Simmons’ possession. Nevertheless,
Simmons argued that Merica’s testimony invaded the
province of the jury by giving an opinion as to whether
gloves offered as an exhibit were the same type as in the
bank photo. The district court allowed it as lay opinion
testimony under Federal Rule of Evidence 701, which
provides for testimony in the form of opinions or infer-
ences as a non-expert if those opinions or inferences
are “(a) rationally based on the perception of the witness,
(b) helpful to a clear understanding of the witness’ testi-
mony or the determination of a fact in issue, and (c) not
based on scientific, technical, or other specialized knowl-
edge within the scope of Rule 702.”
The government later moved to admit the gloves into
evidence, which the district court ultimately granted.
Simmons challenges that as well, asserting that the
chain of custody was so deficient that the gloves should
not have been admitted. The government concedes
that there is a gap in that chain of custody. Merica testi-
fied that after his interview of Simmons, he asked
Detective Underwood to collect Simmons’ clothing in the
paper bag Underwood was carrying, and to bring
Simmons’ clothing back from the processing at the
county jail. Underwood testified that he collected the
clothing as requested, but did not personally collect
gloves from Simmons and did not put gloves in the bag.
No. 08-3603 5
Underwood further testified that he gave the bag to
Detective Acuncius. Acuncius testified that she received
the bag from Underwood and photographed its con-
tents. She testified that the bag contained, among other
items, the Under Armour football gloves. She compared
the photograph she had taken of the gloves to the gloves
which the government sought to admit at trial, and noted
that the gloves even had the same cocklebur on them
that was apparent in the photograph.
Simmons argues that the gloves should not have been
admitted into evidence because there is not evidence as
to whether the gloves in the bag were the ones obtained
from Simmons during the interview. The district court
recognized the gap in the chain of custody, but admitted
the evidence. The court relied on our cases in United
States v. Lee, 502 F.3d 691, 697 (7th Cir. 2007), and United
States v. Williams, 44 F.3d 614, 618 (7th Cir. 1995). In those
cases, we made clear that gaps in the chain of custody
go to the weight of the evidence rather than the admissi-
bility where there is no evidence of tampering. Id.Simmons’ claims—particularly regarding the chain of
custody—are not promising for him, but the appeal fails
for a more glaring reason. We need not even consider
whether the district court erred in admitting the gloves
or in allowing testimony as to the similarity to the
photos, because any possible error was harmless given
the defendant’s own testimony in the case. It is well-
established that evidentiary errors are subject to harm-
less error inquiry. United States v. Cooper, 591 F.3d 582, 590
(7th Cir. 2010); United States v. McGowan, 590 F.3d 446, 456
6 No. 08-3603
n.1 (7th Cir. 2009). An error is harmless if the reviewing
court is convinced that the jury would have convicted
even absent the error. Id. Because Simmons’ own testi-
mony established that he possessed gloves when arrested,
and that those gloves were the ones used in the bank
robbery, the alleged errors could not have affected
the outcome.
Simmons maintained at the trial that he was not one
of the persons who robbed the bank. He stated, however,
that he knew who those individuals were because he
received a phone call from one of them letting him
know what happened. Simmons testified that they had
borrowed his car earlier in the day and they told him
that they took his gloves that he kept in the car. They
told him that they used those gloves in the robbery, and
that they had later discarded the gloves along with the
gun and white shirt. Simmons then testified that he
decided to retrieve the gloves because he feared that his
DNA would be in the gloves and would draw him into
the crime. He therefore proceeded to the wooded area
where they had stated the gloves were abandoned and
he reclaimed the gloves, but stated that he left the gun
where it had been discarded. He declared that the
police spotted him as he was trying to flee the area, and
that he ran because he knew who committed the crime
but did not want to tell the police their names because
he was protecting his family. The police caught him
before he reached his grandmother’s house and arrested
him.
Simmons thus testified that the gloves in his possession
at the time of the arrest were in fact the gloves that had
No. 08-3603 7
been used in the robbery. He cannot now complain that
Merica’s testimony improperly tied those gloves to the
ones in the bank photo, given that he has admitted at
trial that the gloves are in fact the ones in the bank
photo. Nor was their admission into evidence poten-
tially harmful, given that he has acknowledged that the
gloves which belonged to him and were in his posses-
sion at the time of the arrest were the ones used in the
bank robbery. Simmons asked the jury to resolve not
whether the gloves were his, but whether they were
used by someone other than himself at the bank and then
retrieved by him. The testimony by Merica and the ad-
mission of the gloves into evidence did not impact that
determination in any way. Because the government’s
evidence challenged by Simmons merely supported
Simmons’ own theory of the case, this is as clear a case
of harmless error as we are likely to see. The decision of
the district court is A FFIRMED.
3-30-10