United States v. Abernathy, Damone T. , 258 F. App'x 903 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 13, 2007
Decided December 26, 2007
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 07-1636
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Indiana, Fort Wayne
v. Division
DAMONE T. ABERNATHY, No. 1:06-CR-3-TLS
Defendant-Appellant.
Theresa L. Springmann,
Judge.
ORDER
Damone Abernathy was found guilty of possessing crack cocaine with intent
to distribute, carrying a firearm during and in relation to a drug trafficking crime,
and being a felon in possession of a firearm after a jury trial, and he received a
sentence of 175 months’ imprisonment. See 21 U.S.C. § 841(a)(1); 18 U.S.C.
§§ 924(c), 922(g)(1). Abernathy now challenges the trial court’s denial of his motion
to suppress the drugs and handgun seized from his car following a traffic stop.
Because the district court properly denied the motion, Abernathy’s convictions are
affirmed.
No. 07-1636 Page 2
At approximately 3:00 a.m. on January 5, 2006, Gregory Woods, a police
officer with the City of Fort Wayne, Indiana, Police Department, was patrolling an
unfamiliar southeastern neighborhood of Fort Wayne. Officer Woods observed a
slowly moving car—driven by Abernathy, whose blood alcohol content police would
later learn exceeded the legal limit—and decided to follow it. Although the exact
route the two cars traveled is not clear from the record, Officer Woods twice
witnessed Abernathy fail to activate his turn signal while making a turn, a traffic
violation under Indiana law. See IND. CODE § 9-21-8-25. Yet Officer Woods at this
time decided not to conduct a traffic stop and instead drove in another direction.
The two vehicles converged once again a few minutes later. At this time Officer
Woods noticed that Abernathy’s right brake light was not working, an equipment
failure that, when considered with Abernathy’s earlier failures to use his turn
signal, caused Officer Woods to conduct a traffic stop. Officer Woods activated his
emergency lights, and Abernathy refused to pull over. Officer Woods next turned
on his siren and advised his dispatcher of the situation as he proceeded to follow
Abernathy. After a short chase, Abernathy turned into an alley, jumped from his
moving vehicle, and fled the scene. Abernathy’s vehicle, missing its driver, came to
a stop after colliding with a utility pole.
Upon witnessing Abernathy jump from his vehicle, Officer Woods pulled over
and pursued Abernathy on foot. Moments later, David Tinsley, another police
officer in the area who learned of the chase, spotted Abernathy and apprehended
him. Following Abernathy’s arrest, two other officers inventoried Abernathy’s
vehicle before towing and discovered a handgun and drugs. Meanwhile, Abernathy
was taken to a hospital, where he tested positive for a blood alcohol count between
.08 and .14.
After being charged in federal court, Abernathy moved to suppress the
evidence found in his vehicle on the grounds that he had not committed the alleged
traffic violations and thus Officer Woods lacked probable cause to make the stop.
Following a hearing on the motion, Abernathy filed a supplemental brief in which
he argued that errors and inconsistencies in Officer Woods’s testimony at the
hearing, his initial report, and his probable cause affidavit—such as failing to
accurately recall street names and intersections, incorrectly characterizing left
turns as right turns, reporting that there were two bags of drugs when there were
actually three (two bags were tied together), and mistakenly testifying that he was
the officer who wrote out Abernathy’s traffic ticket when in fact he had merely
signed it—were so grave that the court should deem Officer Woods entirely
unreliable and therefore grant the motion to suppress.
In its order denying the motion to suppress, the district court noted Officer
Woods’s errors but emphasized that they were not material to his uncontradicted
testimony that Abernathy twice failed to use his turn signal and that Abernathy’s
No. 07-1636 Page 3
right brake light was not functioning. The court observed that at the suppression
hearing Officer Woods was “candid, non-evasive, and apologetic” when addressing
the inconsistencies between his testimony and his earlier writings. Furthermore,
the court reasoned, at the time of the stop Officer Woods was a “floater,” patrolling
a different area in the jurisdiction than his normal one, and it was understandable
that Officer Woods would pay less attention to passing street signs than to
Abernathy, whom he was chasing. The court also addressed the difference between
the admitted and the alleged errors:
It is one thing for an officer to make a mistake or miss a
detail about a street when testifying in court without a
map or when writing a report or affidavit from memory.
(Or for that matter, to inaccurately report what drugs
another officer found.) It is quite another for an officer to
pay so little attention while on patrol that he would
mistakenly perceive that he observed a failure to signal or
inoperable [sic] brake light when he did not actually see
any such thing.
After “observing the demeanor, speech, attitudes, and tone of voice of the witnesses
at the hearing, and considering the materiality of the inconsistencies and the
totality of circumstances,” the court determined that Officer Woods’s testimony was
more than credible and denied the motion to suppress.
We review a district court’s determination of witness credibility, which is a
question of fact, for clear error. United States v. Adamson, 441 F.3d 513, 519 (7th
Cir. 2006). Because a district court, unlike an appellate court, has the opportunity
to observe the demeanor and appearance of witnesses—an exercise that is critical to
assessing credibility—this court has adopted a “near absolute deference” to the
credibility determinations of a district court. United States v. Williams, 209 F.3d
940, 943 (7th Cir. 2000); see also Anderson v. City of Bessemer City, 470 U.S. 564,
575 (1985) (requiring deference to trial court’s credibility determinations (in a civil
context) because “only the trial judge can be aware of the variations in demeanor
and tone of voice that bear so heavily on the listener’s understanding of and belief
in what is said”); United States v. Briggs, 273 F.3d 737, 740 (7th Cir. 2001)
(crediting one witness over another “can almost never be clear error”); United States
v. Eddy, 8 F.3d 577, 582-83 (7th Cir. 1993) (contrasting the appellate court’s
examination of “the cold pages of an appellate record” with the trial judge’s
observation of a witness’s verbal and nonverbal behavior). Reversal is appropriate
only if the reviewing court is “left with the definite and firm conviction that a
mistake has been made” such as when a district court has “credited exceedingly
improbable testimony.” United States v. Bass, 325 F.3d 847, 850 (7th Cir. 2003)
(emphasis added) (citation and quotation marks omitted). This standard does not,
No. 07-1636 Page 4
however, contemplate reversals for minor errors and inconsistencies in witness
testimony, which do not prevent a district court from finding the witness credible.
See, e.g., United States v. Jensen, 169 F.3d 1044, 1047-48 (7th Cir. 1999)
(“Witnesses are not incredible as a matter of law simply because they have been
impeached on trivial, irrelevant matters.”).
Officer Woods’s mistakes—e.g., incorrectly reciting street names and
directions of travel in an unfamiliar neighborhood—are certainly not so severe as to
render his sworn, uncontradicted recollection of the traffic violations “exceedingly
improbable.” See Bass, 325 F.3d at 850. As the district court noted, Officer Woods
admitted his errors and apologized, yet he never recanted or contradicted his sworn
testimony that he witnessed Abernathy commit multiple traffic violations. His
testimony on this point was clear and convincing. Furthermore, Abernathy failed to
present any evidence to support his position that he did not commit the traffic
violations that gave rise to the stop; he rests instead, as he did in the trial court,
merely on Officer Woods’s reports and testimony. But the trial court took stock of
Officer Woods, the nature of his errors, his testimony, his explanation, and his
demeanor and found him credible. Because this court is in no better position to
determine the credibility of Officer Woods and because the district court did not
credit exceedingly improbable testimony, we AFFIRM Abernathy’s convictions.