United States v. Armon Fennel Diggs ( 1996 )

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No. 95-3182
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Armon Fennel Diggs, *
*
Appellant. *
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Submitted: January 9, 1996
File: April 23, 1996
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Before WOLLMAN, CAMPBELL,* and MURPHY, Circuit Judges.
___________
WOLLMAN, Circuit Judge.
After a jury found Armon Fennel Diggs guilty of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g), the district
court1 sentenced him to 303 months' imprisonment and three years'
supervised release. Diggs appeals his conviction and sentence. We affirm.
I. Background
On August 1, 1993, Jermaine Etier invited Diggs to attend a dice game
in their Des Moines neighborhood. Diggs took his thirteen-year-old son,
Armon, Jr., to the game, which was held at Shylow Thompson's house.
During the course of the game, Diggs was
*The HONORABLE LEVIN H. CAMPBELL, United States Circuit
Judge for the First Circuit, sitting by designation.
1
The Honorable Harold Vietor, United States District Judge for
the Southern District of Iowa.
robbed by one of the participants. Diggs escaped through an open window
and ran home. Armon, Jr. ran out the front door but later returned to the
house. In the confusion, Diggs lost track of his son.
Not surprisingly, the record contains conflicting accounts of the
events that followed. According to Diggs, his son called him at home and
asked him to come back to the house to pick him up. Diggs then called his
cousin, Brother Billy Jackson, and asked him for a ride to Thompson's
house. On the ride over, Jackson told Diggs that he had previously had
trouble with Thompson and that he had two guns in the car. Diggs testified
that he knew that several of the participants in the dice game were gang
members.
Upon arriving at the house, Diggs noticed a group of men gathered on
the porch and had Jackson park the car a short distance away. Diggs called
for Armon, Jr. from the car and got out of the car as his son moved toward
him. At this point, several members of the group also moved toward the
car. According to Diggs, only then did he accept a gun from Jackson. The
government, however, introduced testimony given by Diggs during the state
criminal proceeding arising from these events suggesting that he had
possession of the gun before he called for his son and prior to exiting the
car.
In any event, Diggs, Jackson, and Armon, Jr. ran away from the house
after words were exchanged between Diggs and some members of the group.
Three of the individuals from the group -- Jermaine Etier, Alonzo Hickman,
and Michael Ruffin -- followed them. Eventually, Diggs, Jackson, Etier,
and Hickman ended up in a parking lot. Diggs attempted to flee but stopped
after Jackson called for his help. Diggs testified that he saw Hickman
shooting at Jackson while Jackson was struggling with Etier over a shotgun.
During the struggle, the shotgun discharged. Diggs believed that Hickman
had either shot him or was about to do so, whereupon he
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then fired his gun, killing Jackson and Etier. Diggs then fled the scene.
Diggs was charged with murder in Iowa state court. The jury found
him guilty of one count of voluntary manslaughter and one count of
involuntary manslaughter. He was sentenced to five- and ten-year terms,
to be served concurrently. The United States then charged Diggs with being
a felon in possession of a firearm based on the facts established in the
state court proceeding. Diggs asserted a justification defense. After a
jury found Diggs guilty of being a felon in possession, the district court
found that Diggs was an armed career criminal under the provisions of 18
U.S.C. § 924(e)(1) and enhanced his sentence accordingly. The court denied
Diggs a sentence reduction for acceptance of responsibility.
II. Evidence of Prior Convictions
Diggs first argues that the district court erred in allowing the
government to introduce evidence of three of Diggs' prior felonies at trial
inasmuch as only one conviction is needed to show a section 922(g)
violation and Diggs had stipulated to one prior conviction.
In addition to stipulating to one prior felony conviction, Diggs also
offered to stipulate to the foundation of two additional felony convictions
but objected to the admissibility of these convictions, claiming undue
prejudice. The district court ruled that the government would be allowed
to introduce evidence of all three convictions.
It is well established in this circuit that the government is not
required to accept a defendant's stipulation to a prior felony conviction
in lieu of introducing evidence on that element at
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trial. United States v. Franik, 7 F.3d 811, 813 (8th Cir. 1993).2 Diggs
attempts to circumvent this rule by claiming that because the government
accepted his stipulation to being a convicted felon, it should have been
precluded from introducing evidence regarding his prior felonies. We do
not agree. First, the record contains no evidence that the government
agreed to the admission of only one felony. In fact, the government
explicitly stated that acceptance of the stipulations was conditional on
the district court's ruling that all three would be admitted. Moreover,
we have repeatedly held that "[i]t is not error to allow the government to
introduce more than one conviction in a case where only a single conviction
is necessary to make the case." United States v. Garner, 32 F.3d 1305,
1311 (8th Cir. 1994) (citing United States v. Blade, 811 F.2d 461, 466 (8th
Cir.), cert. denied, 484 U.S. 839 (1987)), cert. denied, 115 S. Ct. 1366
(1995).
The government offered evidence of the three prior felonies to
establish a necessary element of the offense charged. By stipulation of
the parties, the government introduced certified records citing the date,
jurisdiction, and type of offense for each of the convictions. The
government did not introduce any additional evidence regarding the
circumstances underlying the convictions. Thus, in light of the
controlling law in this circuit and the manner in which the evidence was
presented, we conclude that the district court did not err in admitting
evidence of Diggs' prior felony convictions. See Blade, 811 F.2d at 466.
III. Expert Testimony
Diggs next contends that the district court erred in refusing
2
We note that the Supreme Court has recently granted
certiorari on the question whether the government should be
required to accept a stipulation as to status as a felon. Old
Chief v. United States, No. 94-30277 (9th Cir. May 31, 1995), cert.
granted, 64 U.S.L.W. 3545 (U.S. Feb. 20, 1996) (No. 95-6556).
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to allow expert testimony relating to his justification defense. Diggs
sought to introduce testimony from Dr. Richard Majors and Dr. William
Oliver. Dr. Majors has a Ph.D. in psychology and specializes in
psychosocial development of the black male; Dr. Oliver is a criminologist
specializing in urban violence. Diggs claims that his proffered expert
testimony would have "set the stage" for the events underlying his
conviction, assisting the jury in understanding the threat perceived by him
when he was confronted by gang members who were holding his son.
We agree with the district court's conclusion that the jury could
determine without the aid of expert testimony whether Diggs was justified
in possessing the gun in light of the facts and circumstances surrounding
the incident. As we have previously held, "`[w]here the subject matter is
within the knowledge or experience of laymen, expert testimony is
superfluous.'" United States v. French, 12 F.3d 114, 116 (8th Cir. 1993)
(quoting Bartak v. Bell-Galyardt & Wells, Inc., 629 F.2d 523, 530 (8th Cir.
1980)). In this case, the jury was as competent as the experts in
perceiving the situation confronting Diggs. See Zimmer v. Miller Trucking
Co., 743 F.2d 601, 604 (8th Cir. 1984) (upholding exclusion of police
officer's testimony regarding existence of roadside emergency because
jurors were as proficient as officer in determining whether emergency
existed). The district court therefore did not abuse its discretion in
excluding the proffered testimony.
IV. Prosecutorial Misconduct
Diggs contends that the prosecutor improperly questioned him about
his parole status and improperly suggested that Diggs had possession of the
gun before he got out of the car and before he had called for his son. We
conclude that these incidents did not amount to prosecutorial misconduct.
Diggs voluntarily stated that he was on parole in a response to a question
from the prosecutor
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regarding his work status. With respect to the gun-possession testimony,
the prosecutor merely questioned Diggs about the differences between his
testimony in the state trial and that which he gave in the federal case.
Diggs also argues that the prosecutor improperly told the jury in his
closing argument that the gun Diggs possessed had to be cocked before it
could be shot, despite the fact that there was no evidence in the record
to support the statement. Because Diggs' attorney failed to object to the
statement, however, we review this claim for plain error only. United
States v. Skarda, 845 F.2d 1508, 1511 (8th Cir. 1988).
Although this statement by the prosecutor may arguably have been
improper, we find that the remark was not so prejudicial as to deprive
Diggs of a fair trial. The prosecutor did not repeat or make further
reference to this remark. Moreover, the court instructed the jury that
statements by counsel were not to be considered as evidence. Thus, we find
that the remark did not prejudicially affect Diggs' substantive rights.
See id. at 1511; United States v. Hernandez, 779 F.2d 456, 461 (8th Cir.
1985) (improper remarks by prosecutor not prejudicial when remarks were not
repeated, ample evidence of defendant's guilt was shown, and court took
proper remedial action).
V. Batson Claim
Diggs also contends that the government improperly used a peremptory
strike to remove the sole black juror in the jury pool in violation of
Batson v. Kentucky, 476 U.S. 79 (1986). The government stated that it had
struck the juror because he failed to return to the courthouse for the
remaining jury selection process after the midmorning recess. In addition,
the government cited the juror's connection with a business that had been
criminally prosecuted and his inattentiveness in the courtroom. The
district
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court also noted that during the jury selection process the juror "held his
head in his hand. He had his eyes closed. He communicated to me an
attitude of boredom and indifference."
A district court's determination on a Batson challenge is reviewed
for clear error. United States v. Carr, 67 F.3d 171, 175 (8th Cir. 1995),
cert. denied, 116 S. Ct. 1285 (1996). We conclude that the district court
did not err in finding that the government had valid reasons to dismiss the
juror. See United States v. Logan, 49 F.3d 352, 357-58 (8th Cir. 1995)
(finding no Batson violation when government struck black juror because she
was inattentive and evasive during jury selection process).
VI. Sentencing
Diggs also contends that the district court erred in enhancing his
sentence and in refusing to grant him a reduction for acceptance of
responsibility.
A. Armed Career Criminal Enhancement
Under section 924(e)(1), an offender who violates section 922(g) and
has three previous convictions "for a violent felony or a serious drug
offense, or both, committed on occasions different from one another" is
subject to enhanced penalties, including a mandatory minimum sentence of
fifteen years. 18 U.S.C. § 924(e)(1). The district court found that Diggs
had committed the requisite felonies and enhanced his sentence accordingly.
The felonies relied on by the district court included two convictions
for burglary occurring in 1981 and 1982 and a 1982 conviction for assault
on a federal officer. Diggs claims that the 1982 convictions arose out of
the same transaction and were part of the same criminal scheme. This
argument is meritless. "Section 924(e) does not require separate
prosecutions, just that the
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offenses occurred at different times." United States v. Gibson, 928 F.3d
250, 254 (8th Cir. 1991). The Presentence Investigation Report shows that
the burglary occurred on February 14, 1982, and the assault occurred on
February 16, 1982. These were clearly separate felonies for section
924(e)(1) enhancement purposes.
B. Acceptance of Responsibility
Diggs claims that the district court should have granted him a two-
level sentence reduction for acceptance of responsibility under U.S.S.G.
§ 3E1.1. A district court's determination denying a defendant a sentence
reduction for acceptance of responsibility is reviewed for clear error.
United States v. Farmer, 32 F.3d 369, 372 (8th Cir. 1994).
Diggs argues that he was entitled to the reduction because he
admitted that he possessed the gun and that he was a convicted felon.
Voluntarily admitting involvement in the offense charged does not
automatically entitle a defendant to a reduction for acceptance of
responsibility. United States v. Davila, 964 F.2d 778, 784 (8th Cir.),
cert. denied, 506 U.S. 964 (1992). In United States v. Patterson, 885 F.2d
483, 485 (8th Cir. 1989), we held that no acceptance-of-responsibility
reduction was warranted for a defendant who admitted to being a felon in
possession of a firearm but claimed that his conduct should be excused
because he carried the gun for his own protection. See also United States
v. Newson, 46 F.3d 730, 734 (8th Cir. 1995) (denying acceptance-of-
responsibility reduction for defendant who admitted his role in the offense
charged but claimed that he had been entrapped). We conclude that the
district court did not err in finding that Diggs' claim that he was
justified in possessing the gun reflected a failure to clearly accept
responsibility.
The conviction and sentence are affirmed.
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A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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