United States v. Troy Baylor

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4347
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TROY DOUGLAS BAYLOR,
Defendant – Appellant.
No. 12-4357
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES DERRICK BAYLOR,
Defendant – Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (3:11-cr-00064-JRS-2; 3:11-cr-00064-JRS-1)
Argued: May 17, 2013 Decided: August 1, 2013
Before NIEMEYER, AGEE, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Elizabeth W. Hanes, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Richmond, Virginia, for Appellants. Michael Arlen
Jagels, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee. ON BRIEF: Kevin E. Johnson, KEVIN E.
JOHNSON, P.L.L.C., Heathsville, Virginia, for Appellant James
Derrick Baylor; Michael S. Nachmanoff, Federal Public Defender,
Alexandria, Virginia; Frances H. Pratt, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond,
Virginia, for Appellant Troy Douglas Baylor. Neil H. MacBride,
United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
A jury convicted James and Troy Baylor of seven counts
in a multiple count indictment stemming from the brothers’ armed
robberies of a Family Dollar store in Chester, Virginia, and
Tommy Wilson’s Vans & Auto, in Richmond, Virginia. The district
court sentenced James Baylor to 514 months imprisonment and Troy
Baylor to 624 months imprisonment. In this consolidated appeal,
the Baylors raise numerous claims of error. Appellants contend
that the district court abused its discretion by rejecting their
proposed voir dire questions regarding eyewitness
identification; excluding the testimony of their eyewitness
identification expert; refusing the Baylors’ proposed jury
instructions regarding eyewitness identification; and admitting
certain testimony offered by the Government’s DNA expert.
The Baylors also assert that the Government presented
insufficient evidence to support a finding that the object used
or carried during one of the robberies met the statutory
definition of a “firearm.” They alternatively argue that the
seven-year sentences imposed on them for violating 18 U.S.C.
§ 924(c) are constitutionally infirm. For the reasons set forth
below, we affirm the district court in all respects.
I.
Viewing the evidence in the light most favorable to
the Government, United States v. Moye, 454 F.3d 390, 394-95 (4th
3
Cir. 2006) (en banc), the record demonstrates the following. On
November 30, 2010, the Family Dollar store (“Family Dollar”) in
Chester, Virginia, was robbed by two men. Three weeks later, on
December 21, 2010, Tommy Wilson’s Vans & Auto (“Wilson’s Auto”)
in Richmond, Virginia, was also robbed by two men. Both
robberies were caught on videotape. Each robbery involved one
taller robber who walked with a cane or, alternatively, a limp,
and another shorter robber. Multiple witnesses identified James
and Troy Baylor 1 as the two men that robbed each store. DNA
evidence taken from a hat left at Wilson’s Auto matched James,
although DNA evidence from another hat was inconclusive as to
Troy. Other additional direct and circumstantial evidence
confirmed that both robberies were committed by James and Troy
Baylor.
A.
The Baylor Brothers
James and Troy are brothers and lived in New York
until moving to Virginia in 2010. Upon relocating to Virginia,
the brothers stayed with their mother, Leona Baylor, at her
residence on Woodhaven Drive in Richmond. Both brothers also
received mail at the Woodhaven address and had belongings there.
1
Like the Baylors in their opening brief, we refer to the
Baylor brothers by their first names for the purpose of clarity.
4
Their mother lived with her fiancé Richard Washington at
Woodhaven Drive during the time of the robberies. Leona Baylor
and Washington had two vehicles at their residence: a four-door
Oldsmobile and a Chevrolet Blazer.
Of note, James has a disability known as a club foot
that requires the use of cane.
B.
The Family Dollar Robbery
On November 30, 2010, Family Dollar assistant manager
Dena Smith arrived at work around 8:00 a.m. Another employee,
Diane Miners, a cashier, arrived at the store about two hours
later. Shortly after Miners arrived, Smith told Miners that she
was going to go to the bathroom and then outside to smoke a
cigarette. Upon exiting the bathroom, Smith was approached by a
man, later identified as Troy Baylor, who asked for the manager
and requested a job application. Smith told him the manager
would not be in until the next day, and that she was the
assistant manager. Smith also told Troy to go to the front of
the store where a computer was located and fill out an
application. Smith was about to go outside to smoke when Troy
approached her again and asked where the wrapping paper was
located. Smith then went outside.
Once outside, Smith was once again approached by Troy.
Troy told Smith, “This is what you going [sic] to do. You going
5
[sic] to take us in the back and give us money.” J.A. 340. 2 At
that point, another man, later identified as James Baylor,
approached Smith holding what she believed was a gun. The gun
barrel was visible to Smith as it protruded from James’s sleeve.
They entered the store and walked to the back before Smith
stopped and said, “Why we going [sic] to the back of the store?
There’s no money there.” Troy asked Smith, “Where’s it at?”, to
which Smith answered that it was in front of the store. Id. at
342.
Once up front, Troy sat down at the computer and
pretended to type. Meanwhile, James stood behind Smith while
she entered the combination of the store safe. Once opened,
Troy jumped up and took the cash box from Smith, which contained
$501.00. Miners then took note and asked Smith, “Dee, what’s
going on?” Smith told Miners she was “Getting petty cash for my
till.” J.A. 342. When Troy took the cash box from Smith,
Miners told him, “Oh, no you don't.” J.A. 343. James told
Miners to get back. At that point, the Baylor brothers exited
the store and ran across the parking lot.
Outside the store, Rhonda Goad was sitting in her
truck in the parking lot. While seated in her vehicle facing
2
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
6
Family Dollar, she saw the Baylors enter and exit the store
several times.
A number of things struck her as peculiar about the
two men. One of them walked with a cane and was “crippled on
his right leg.” J.A. 379. The last time Goad saw the men exit
the store, one of them was carrying something under his arm.
The two men were in a hurry, so much so that Goad believed they
had just shoplifted. Upon exiting the store, the men increased
their pace. The “short guy” took off running. Id. at 380. The
other man also took off running “with his cane” but fell when he
lost his balance on an embankment near the parking lot. Id. at
380. After the men cleared the embankment, Goad saw a car leave
from the area in “kind of a hurry.” Id. at 382. She described
the top of the four door car as dark in color with “chrome
around the windows and around the front and back.” Id. Goad
identified a photo of the Baylors’ mother’s Oldsmobile as
looking like the vehicle she saw. 3
3
The car was the same vehicle that Troy drove when it ran
out of gas several miles from the Family Dollar store nearly
three weeks later. During the consensual encounter with police,
who assisted Troy by giving him a ride to his girlfriend’s
nearby apartment, Troy admitted that the car, a 1989 four-door
Oldsmobile, was his mother’s or his mother’s boyfriend’s. Troy
told the assisting officer that his mother had let him use the
car to travel to his girlfriend’s residence.
7
After the robbery, Goad went to the business where she
had seen the getaway car parked to see if they’d seen the
robbers. She then returned to the Family Dollar and told the
clerks she had witnessed the robbery.
1.
Eyewitness Identification
Smith was shown photo lineups of both Baylor brothers
and correctly selected each brother and identified the role each
played during the robbery. The lineups were done in a “double
blind” method, meaning that the detective showing the photos to
Smith had no idea who the suspects were. The detective also
conveyed to Smith prior to showing her the photos that the
suspects may or may not be included in the photos. 4
2.
Video Evidence
Video from inside the Family Dollar store was taken
from several vantage points. One view shows the front doors,
while a second view shows the front of the store where the safe
is located. A third view shows the register where Miners was
working during the robbery.
4
Neither Miners nor Goad were shown a photo spread. They
did, however, identify both defendants at trial.
8
The photo stills of the video show several important
details. The hat worn by Troy during the robbery has a small
brim on it. The small brim is identical to the hat that Troy
was wearing (and that later fell off) during the robbery at
Wilson’s Auto. James can be seen walking with a limp and with
the assistance of a cane. The relative size of the brothers can
also be seen in the video, with James being the taller of the
two. Finally, the brothers’ facial hair can be seen in the
video.
C.
Wilson’s Auto Robbery
On December 21, 2010, three weeks after the Family
Dollar robbery, Wilson’s Auto was also robbed by two men. On
that day, inside the used auto business shortly after 10:00
a.m., Tommy Wilson Sr. and his son Tommy Wilson Jr. were working
in a bay toward the rear of the business. As the father and son
were speaking in the bay, two men -- one tall and one shorter --
walked into the bay. The men were later identified as Troy and
James Baylor. Tommy Wilson Sr. told the men that they were not
permitted in that section of the business. James then pulled
out a gun and said, “Old man, we don't have to go anywhere.”
J.A. 543. Troy then ordered the Wilsons to the ground. Tommy
Wilson Jr. obeyed and placed money from his pocket on the floor
then laid on his stomach toward the rear of the car that was in
9
the garage, but his father refused to get on the floor. Troy
walked over to Tommy Wilson Jr. and took his money, then walked
to Tommy Wilson Sr. and searched his pockets, taking his money.
The younger Wilson told the men, “You got your money, now get
out of here.” J.A. 544.
The elder Wilson and James began to argue. James then
began to beat Tommy Wilson Sr. on the head with the gun. The
younger Wilson then got off the floor to help his father. Troy
grabbed the gun and pointed it at Tommy Wilson Sr. Tommy Wilson
Jr. then grabbed Troy, dragging him in front of the car. He
attempted without success to get Troy to drop the gun by beating
his hands on the fender and hood of the car. In the process,
the right side mirror of the vehicle broke off.
Searching for something to hit Troy with, Tommy Wilson
Jr. grabbed a wiper blade and hit him on the head. The hat that
Troy was wearing fell off on the hood of the car. Tommy Wilson
Jr. and Troy continued to struggle, during which time Troy’s
face was less than a foot from Tommy Wilson Jr. Meanwhile, the
elder Wilson continued to fight with James.
The brawl between Tommy Wilson Jr. and Troy led to the
adjoining front office. Troy took a swing with the gun at the
younger Wilson, cutting his nose. By then James and Tommy
Wilson Sr. also entered the front office. Tommy Wilson Jr.
grabbed James and slammed him down on the desk, then hit him.
10
James fell to the floor. By then, Troy had jumped on the elder
Wilson and was “beating on him.” J.A. 547. Standing apart from
one another, Tommy Wilson Jr. looked at Troy from a distance of
several feet away and told him to get out. When the two robbers
left the business, Tommy Wilson Sr. followed the path the men
took in order to determine the direction in which they fled.
The younger Wilson called police and reported the robbery.
At the time of the robbery, Officer Karen Spencer was
on patrol several miles away and, upon learning of the robbery,
drove toward Wilson’s Auto, cutting through a neighborhood
adjoining the area near the business. She later testified that
she passed a speeding SUV, dark in color, and similar to the
Blazer owned by Leona Baylor. Even though she continued on to
Wilson’s Auto, she noted in her rear view mirror the direction
in which the SUV turned. After determining at the scene that
the dark SUV she passed had likely been driven by the robbers,
she quickly returned to the neighborhood where she saw the SUV.
She turned down one of the streets near where she had seen the
SUV turn and saw an SUV that “looked exactly like the vehicle”
that passed her earlier parked at a house; indeed, she knew the
vehicle had been recently driven due to the SUV’s warm hood.
Additional officers responded to the scene at Woodhaven Drive,
located less than two minutes driving time from Wilson’s Auto.
11
Detective Christina Benkahla of the Richmond City
Police Department responded to the Woodhaven location. She
knocked on the door of the residence and was met by Leona
Baylor. Once inside, she also met Leona Baylor’s elderly
“husband.” Officer Benkahla observed men’s clothing that she
described as “younger”-looking likely not worn by the elderly
man. J.A. 660. Notably, Officer Benkahla observed mail
addressed to Troy Baylor. When asked about whether anyone had
driven the SUV, Leona Baylor stated that nobody had driven it.
Following the robbery, Richmond police forensic
detectives collected evidence from inside Wilson’s Auto, and
among the items recovered was a hat located on a car in the rear
car bay, a hat on the floor of the front office, and a firearm.
Video that recorded events inside and outside the business were
also recovered.
D.
The Arrests
On January 4, 2011, Virginia State Trooper Jeffrey
Hanna was on routine patrol in Richmond when he noticed a dark
colored SUV traveling with no rear lights. Hanna stopped the
vehicle and asked the driver for identification. The driver
identified himself as Alfago Tillman. James and Troy Baylor,
along with an unidentified female, were passengers in the SUV
driven by Tillman. Trooper Hanna then asked everyone in the
12
vehicle for identification. Upon running their information
through a police database, Trooper Hanna learned that there were
outstanding arrest warrants for James and Troy Baylor. The
brothers were taken into custody and turned over to Richmond
police, and the SUV impounded. The SUV, a Chevrolet Blazer, was
registered to Leona Baylor.
Once in custody, Richmond police confiscated the
clothing and belongings in possession of James and Troy at the
time of their arrest. The clothes worn by James were identical
to clothes he was wearing in the video of the Wilson’s Auto
robbery. James had a cane in his possession although it was not
confiscated so that he could use it in jail. Items in Troy’s
possession upon his arrest included keys to the Chevrolet
Blazer, other vehicles, and his mother’s residence on Woodhaven
Avenue. The bracelet and boots worn by Troy when he was
arrested match those he wore during the Wilson’s Auto robbery,
evidence that was captured on video.
In addition, cheek swabs were taken from both Troy and
James to compare to DNA taken from the items found at Wilson’s
Auto. Melissa Baisden, an employee at the Virginia Department
of Forensic Science, analyzed the DNA evidence and developed DNA
profiles from Troy, James, and Tommy Wilson Sr., and from the
hat recovered from the front office at Wilson’s Auto and the
firearm recovered from Wilson’s Auto. The DNA profiles from
13
James and the hat matched. James was thus identified as a
“major contributor” to the DNA found on the hat. When Baisden
compared the DNA to determine if Troy could also be eliminated
as a minor contributor to DNA on the hat, her results were
inconclusive, meaning she could not determine, due to
insufficient DNA information, whether Troy should be eliminated
as a contributor.
1.
Eyewitness Identification
Detective Jack Larry compiled a photo lineup of Troy
Baylor and, later, James Baylor. Larry showed the photos
separately to Tommy Wilson Jr. and Sr. on December 30, 2010.
The younger Wilson identified Troy as one of the robbers. When
he was later shown photos that included James, he did not select
anyone, indicating that he did not get as good a look at the
taller robber. Tommy Wilson Sr. was also shown photo lineups
that included the Baylor brothers. He correctly selected a
photo of James, noted below the photo “out of all picture [sic]
this is one I picked. He & I fought . . . [he] hit one fist and
gun on top of my head & he and I pushed each other.” J.A. 999.
The elder Wilson incorrectly selected a photo from an array that
included Troy.
14
2.
Video Evidence
Video cameras captured events from outside of Wilson’s
Auto as the Baylor brothers walked into and away from the
business, and a video from a nearby business captured the men
getting out of a Chevrolet Blazer. The Blazer can be clearly
seen and is similar to the Blazer owned by Leona Baylor. Video
also shows the brothers entering the business then walking to
the rear bay behind the front office. James can be seen limping
when he enters and walks into the business, with his right foot
appearing angled to the right as he walks. Moreover, while
struggling with the elder Wilson, Troy placed his right hand on
a desk, allowing the video to record a bracelet on his right
hand, which is similar to and on the same hand as the bracelet
found on Troy when he was arrested. The boots worn by Troy when
he was arrested also match those worn during the robbery.
E.
The District Court Proceedings
On March 1, 2011, a federal grand jury indicted the
Baylors on numerous charges relating to the Family Dollar and
Wilson’s Auto robberies. Count one alleges a conspiracy in
violation of the Hobbs Act, 18 U.S.C. § 1951(a). Counts two
through four allege, respectively, three offenses relating to
the robbery of the Family Dollar on November 30, 2010: the
15
substantive count of robbery, in violation of § 1951; the use or
carry of a firearm during and in relation to that robbery, in
violation of 18 U.S.C. § 924(c); and the possession of a firearm
by a convicted felon, in violation of 18 U.S.C. § 922(g).
Counts 11 through 13 charged the Baylors with the same offenses
in connection with the Wilson’s Auto robbery on December 21,
2010. Counts five through ten, relating to other robberies,
were dropped before trial.
1.
Motion to Exclude Expert on Eyewitness Testimony
Before trial, the Government moved to exclude a
defense expert expected to testify at trial about how certain
factors affect the accuracy of eyewitness identification.
Specifically, Dr. Brian Cutler’s proposed testimony was to
address factors including, among other things, the effect of
stress on the accuracy of identification, cross-race
identification, and witness confidence versus accuracy. After
the hearing, the district court granted the Government’s motion,
ruling that the understanding of each factor was within the
common knowledge of jurors such that expert testimony would not
be helpful. As to the cross-race identification and eyewitness
confidence factors, the district court determined that because
the expert’s research did not quantify the accuracy of white eye
witnesses identifying African-American suspects, there would be
16
a high risk that the testimony would confuse and mislead the
jury. The district court concluded, “[t]he jurors’ common sense
and powers of observation, along with an appropriate instruction
from the Court, are all that is needed for the jurors to judge
the eyewitness identification in this case.” United States v.
Baylor, 3:11-CR-64, 2011 WL 5910061, at *8 (E.D. Va. Nov. 28,
2011).
2.
Motion to Exclude Part of the Forensic Analyst’s Testimony
Before trial, Troy moved to exclude a portion of the
testimony of the Government’s forensic analyst on grounds of
relevance. Specifically, Troy highlighted the expert’s finding
that she could not draw a conclusion as to whether he was a
contributor to the minor DNA profile she had developed from one
of the hats recovered after the Wilson’s Auto robbery. The
Government opposed the motion. The court held a hearing and
denied the motion. The district court concluded that the
testimony was relevant and therefore admissible because it spoke
directly to the material fact that Troy could not be ruled out
as a possible minor contributor to the DNA on the hat.
3.
Voir Dire
Before trial, the Baylors submitted proposed voir dire
questions pertaining to eyewitness identification issues. The
17
Government objected to the asking of these questions, arguing
that the defendants’ concerns would be properly covered by the
jury instructions. During voir dire, the court did not ask any
questions specifically addressing the issue of eyewitness
identification. When the district court inquired at the end of
voir dire if the parties wanted any further questions asked,
Troy’s counsel reminded the court of his request for questions
about eyewitness identification. The district court refused.
When James’s counsel inquired about his specific questions
relating to eyewitness identification, the court responded that
it would not ask them because “we have instructions to deal with
that.” J.A. 297.
4.
Trial
At the close of the Government’s evidence, the
defense moved pursuant to Rule 29 of the Federal Rules of
Criminal Procedure for a judgment of acquittal on several
counts. With regard to the Family Dollar § 924(c) charge (count
three), the Baylors argued that the Government had not
established that the object that Dena Smith saw was in fact a
firearm. The district court denied the motion.
The Baylors also requested a specific jury instruction
regarding eyewitness identification. The district court refused
to give the instruction, stating, “Obviously, we had plenty of
18
cross-examination on it and you can argue it all you want.”
J.A. 750. The jury found both men guilty on all counts.
5.
Sentencing
The presentence reports prepared on each Baylor
brother recommended that a seven-year mandatory minimum sentence
apply to the count three violation of 18 U.S.C. § 924(c). Count
three charged that the Baylors “did knowingly and unlawfully use
and carry a firearm during and in relation to a crime of
violence,” namely, the robbery of the Family Dollar store on
November 30, 2010. J.A. 16-17. However, count three did not
allege that the firearm was brandished during the robbery. Troy
objected to the recommendation, arguing that if the district
court adopted it, the court would necessarily be making a
finding of fact that would raise the mandatory minimum, thus
violating his rights under Apprendi v. New Jersey, 530 U.S. 466,
490 (2000). The district court overruled the objection, relying
on the Supreme Court’s decision in Harris v. United States, 536
U.S. 545, 556 (2002) (concluding that brandishing is a
sentencing factor to be found by the judge, not an offense
element to be found by a jury). After overruling the objection,
the court sentenced Troy to 624 months imprisonment and James to
514 months imprisonment. Judgments were entered on April 24,
19
2012. Troy timely noted his appeal on May 3, and James, on May
4.
II.
A.
The Proposed Voir Dire Questions
1.
Standard of Review
The Baylors first contend that the district court
improperly refused to ask prospective jurors questions regarding
the specific issue of eyewitness identification, a decision we
review for abuse of discretion. See United States v. Jeffery,
631 F.3d 669, 673 (4th Cir. 2011).
2.
Analysis
We must “examine the voir dire as a whole to determine
whether it was reasonably sufficient to probe the prospective
jurors for bias and partiality.” United States v. Lancaster, 96
F.3d 734, 742 (4th Cir. 1996). Even so, district courts are
not required to ask every question that counsel believes is
appropriate. See Fed. R. Crim. P. 24(a).
In this case, the questions proposed by the Baylors
essentially argued factual points instead of attempting to
identify jurors’ bias or partiality, the ultimate goal of voir
dire. That is, the proposed questions were designed to suggest
20
to prospective jurors that forensic data is preferable to
eyewitness identification, the reliability of an eyewitness
identification is increased with time viewing a suspect, and
eyewitness identification is less reliable with the passage of
time between the crime and the identification, among others
suggestions. We conclude the district court did not abuse its
discretion by rejecting the proposed voir dire questions because
when viewed in its totality, the district court’s voir dire was
reasonably sufficient to achieve the ultimate goal of voir dire
that is, to probe prospective jurors for bias or partiality.
B.
The Exclusion of the Eyewitness Identification Expert
1.
Standard of Review
We review a district court’s ruling regarding the use
of expert testimony for abuse of discretion. See United States
v. Davis, 690 F.3d 226, 257 (4th Cir. 2012).
2.
Analysis
We conclude the district court did not abuse its
discretion by excluding the testimony of an expert in eyewitness
identification, where evidence of the two robberies involved far
more than isolated eyewitness identification: it included video
of both robberies, DNA evidence linked to one of the defendants,
21
identification by five eyewitnesses, and other direct and
circumstantial evidence.
The Baylors argue the district court abused its
discretion by denying expert testimony as it pertained to three
factors -- (1) effect of stress on accuracy of identification;
(2) cross-race identification; and (3) witness confidence versus
accuracy. The district court ruled that the stress factor was a
matter of common knowledge to the jury. As to cross-race
identification, the district court concluded that the risk of
confusion as a result of the testimony substantially outweighed
the probative value of such testimony. And as to witness
confidence, the district court determined that this vague
guidance would only serve to confuse the jury, and would risk
misleading the jury as to their role as trier of fact. The
district court concluded, “The jurors’ common sense and powers
of observation, along with an appropriate instruction from the
Court, are all that is needed for the jurors to judge the
eyewitness identifications in this case.” United States v.
Baylor, 3:11-CR-64, 2011 WL 5910061, at *8 (E.D. Va. Nov. 28,
2011).
In United States v. Harris, 995 F.2d 532 (4th Cir.
1993), we affirmed the exclusion of expert testimony on the
reliability of eyewitness identification, but acknowledged that
such testimony should be admitted under “narrow circumstances.”
22
Id. at 535. 5 Federal Rule of Evidence 702 sets the standard for
the admissibility of expert testimony, and provides:
[i]f scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify
thereto in the form of an opinion or otherwise.
Fed. R. Evid. 702. We have previously explained that district
courts possess broad discretion in evaluating when expert
testimony will be helpful:
As Rule 702 indicates, expert testimony is only
permitted if it assists the trier of fact to
understand evidence or to determine a fact in issue.
The exclusion of expert testimony under Rule 702 is
within the sound discretion of the trial judge.
Exercising its discretion, the court should consider
whether the testimony is within the common knowledge
of the jurors. This type of evidence, almost by
definition, can be of no assistance to a jury.
Harris, 995 F.2d at 534 (internal citations omitted).
In view of the facts of this case, we reaffirm the
central teaching of Harris: “Outside of such narrowly
constrained circumstances, jurors using common sense and their
5
We cited examples of cases where the “narrow
circumstances” were present in order to support the introduction
of expert testimony. See Harris, 995 F.2d at 535 (citing, among
others, United States v. Sebetich, 776 F.2d 412, 418-19 (3rd
Cir. 1985) (holding erroneous the exclusion of expert testimony
where the identification came nineteen months after the robbery,
it was made under stressful circumstances, and it was only
derived from one person’s testimony)).
23
faculties of observation can judge the credibility of an
eyewitness identification, especially since deficiencies or
inconsistencies in an eyewitness’s testimony can be brought out
with skillful cross-examination.” Id.
Like Harris, the narrow circumstances that would
permit the testimony of an eyewitness identification expert are
not present in this case. First, the facts do not support the
argument that the Baylors’ identifications were suspect. Both
robberies in this case were videotaped. Without any eyewitness
identifications, jurors could have decided for themselves that
both Baylors committed these crimes. From the videotapes,
jurors were able to 1) observe James’s disability through the
use of a cane at Family Dollar and a very evident limp at
Wilson’s Auto; 2) observe the relative size difference between
the brothers; 3) compare the matching clothing worn by James at
Wilson’s Auto with that worn upon his arrest; 4) compare the
matching bracelet worn on Troy’s right wrist with the bracelet
worn on his right wrist upon his arrest; and 5) compare the
unique brim on the hat Troy wore at Family Dollar with the hat
that fell off his head at Wilson’s Auto.
Jurors also saw videotape and photos of the black SUV
that the Baylors drove to and from Wilson’s Auto. They heard
testimony from a responding officer who saw the SUV pass her at
a high rate of speed and turn onto a neighborhood street. The
24
jury also heard that police found the SUV at the home of Leona
Baylor and heard that both Baylor brothers were living there.
The SUV was the same vehicle that the Baylors were in upon their
arrest. The jury heard that Troy had keys to the SUV, along
with keys to his mother’s house. The jury heard that Troy also
drove another car belonging to his mother, an Oldsmobile with a
dark top and chrome surrounded windows. The same car was
identified as similar to the getaway car used by the Baylors at
Family Dollar.
Finally, jurors heard from five eyewitnesses who
identified the Baylors as the robbers -- three from Family
Dollar and two from Wilson’s Auto. The main witness from Family
Dollar, Dena Smith, is an African-American like the Baylors. In
addition, many of her interactions with Troy were not stressful,
as they occurred before the robbery. Likewise, Rhonda Goad’s
observations were made from the peaceful interior of her parked
car. Diane Miners did not even realize that the store was being
robbed until she saw Smith opening the safe. The witnesses from
Wilson’s Auto had extended interactions with the Baylors. Each
witness wrestled with a Baylor brother. Tommy Wilson Jr. was
less than a foot away from Troy during the struggle.
Regarding witness confidence, some of the eyewitnesses
who identified the brothers expressed confidence in their
identifications, while others were not 100% confident. For
25
example, Tommy Wilson Sr. indicated on the photo of James he
selected that James’s picture was the one that most looked like
the suspect he had the most interaction with during the robbery.
This point was highlighted by counsel during cross-examination.
The record here shows that the jury was made keenly
aware that identification was a key issue and that they would
need to determine whether the prosecutor’s witnesses were
credible regarding their identification testimony. This was
accomplished through the skillful cross-examination of the
prosecution witnesses regarding the description of the suspect
and subsequent identification of the Baylors, 6 the presentation
of alibi testimony, the closing arguments, 7 and the jury
6
For example, on cross-examination of Tommy Wilson Jr.,
counsel for James asked the following question:
Q. In your testimony, you stated that you did not get
a good look at the taller man. And it is the case
that more than a year ago, you could not place him
when you were shown the photo line-up; is that
accurate?
A. Yes, sir.
J.A. 568.
7
For instance, during closing argument, Troy’s attorney
questioned the reliability of Dena Smith’s eyewitness testimony
arguing, in part, as follows:
And so sure, there’s a couple, you know, seconds there
where [the Baylors and Smith] have this conversation.
What you hear from her is that she is focused on this
gun. And I would be. I’m sure anyone would be. And
she tells you she is not familiar with what she sees
(Continued)
26
instructions on judging the credibility of witnesses in general,
and the reliability of witness identification testimony in
particular. 8
Accordingly, the district court did not abuse its
discretion in precluding expert testimony regarding the
unreliability of eyewitness identification.
C.
The Proposed Jury Instructions
1.
Standard of Review
The standard of review for a district court’s refusal
to give a specific eyewitness identification jury instruction is
abuse of discretion. See United States v. Brooks, 928 F.2d
1403, 1408 (4th Cir. 1991). A refusal to grant a requested
and what she thinks is a weapon and she is flipping
out and you can see that. At the end of the tape, you
hear it from every single person, that she is
distraught. . . . And so what you can see from just a
brief timeline is that Dena Smith had a brief
interaction with these individuals. And from that
interaction, it would be difficult to know who the
right person might be.
J.A. 798-99.
8
The district court instructed the jury, in part, as
follows: “In testing the credibility of the witnesses, you may
consider . . . the opportunity they had to see, hear, and know
the things about which they testified.” J.A. 832.
27
instruction is only reversible error if the instruction (1) was
correct; (2) was not substantially covered by the court’s charge
to the jury; and (3) dealt with some point in the trial so
important that failure to give the requested instruction
seriously impaired the defendant’s ability to conduct his
defense. See United States v. Lewis, 53 F.3d 29, 32 (4th Cir.
1995) (internal quotation marks and citations omitted).
2.
Analysis
In our view, the district court did not abuse its
discretion by refusing the Baylors’ proposed jury instruction
regarding eyewitness identification. We reach this conclusion
because the evidence against both brothers did not strongly
suggest the likelihood of irreparable misidentification, any
concerns regarding poor identification procedures and
misidentification were raised on cross-examination and during
opening and closing arguments, and the issue of credibility and
witness identification testimony was substantially covered by
the court’s charge to the jury.
In United States v. Holley, 502 F.2d 273 (4th Cir.
1974), we adopted a detailed model jury instruction on
eyewitness identification testimony “in the context of a case
that contain[ed] no evidence of identification except eyewitness
testimony.” Id. at 275. We later refined this view in Brooks,
28
where we concluded that a Holley instruction is “compelled only
where the evidence in the case strongly suggests the likelihood
of irreparable misidentification.” Brooks, 928 F.2d at 1407
(internal quotation marks omitted). We “generally require[] a
Holley [] instruction when the only evidence of a defendant’s
criminal agency is eyewitness identification testimony.” United
States v. Greene, 704 F.3d 298, 301 (4th Cir. 2013). “‘The
Holley [] instruction or its substantial equivalent is not
required to be given, sua sponte, in a case where other
independent evidence, whether direct or circumstantial, or both,
is presented to the trier of fact which is corroborative of the
guilt of the accused.’” Id. at 313 (quoting United States v.
Revels, 575 F.2d 74, 76 (4th Cir. 1978)).
The circumstances present in Holley are not present in
this case. Importantly, as described above, the Government’s
case was not wholly dependent on eyewitness identification. Far
from it. With respect to the Family Dollar robbery, the
evidence tending to inculpate the Baylors, including video
recordings, was legion. See ante at 5-9. Likewise, the case
against the Baylors in the robbery of Wilson’s Auto was not
dependent solely on eyewitness identification testimony. See
ante at 9-12.
The facts presented here take this case well-beyond
Holley’s purview. Certainly the wealth of evidence against both
29
Baylors does not strongly suggest the likelihood of irreparable
misidentification. In addition, any concerns regarding poor
identification procedures and misidentification were raised on
cross-examination and during opening and closing arguments.
Therefore, the district court did not abuse its discretion in
refusing the proposed jury instructions.
D.
The Government’s DNA Expert
1.
Standard of Review
The Baylors contend that the district court abused its
discretion by permitting Melissa Baisden, a DNA expert, to
testify about the inconclusive results of her test of whether
Troy could be eliminated as a contributor to the minor profile
of DNA located on a hat recovered after the robbery at Wilson’s
Auto. We review questions regarding the admissibility of
evidence for an abuse of discretion. See United States v.
Summers, 666 F.3d 192, 197 (4th Cir. 2011).
2.
Analysis
Troy first attacks Baisden’s testimony as irrelevant.
See Fed. R. Evid. 403. This is plainly not so: Baisden’s
testimony was relevant and therefore admissible because it had a
tendency to make the existence of a fact that was of consequence
30
to the determination of the action more or less probable. See
Fed. R. Evid. 401. That is, her testimony spoke to the material
fact that Troy could not be ruled out as a possible minor
contributor to DNA on the hat. This fact, as correctly
testified to by Ms. Baisden on direct and again pointed out by
Troy’s attorneys on cross-examination and during closing
argument, did not mean that Troy was a contributor to the minor
DNA profile found on the hat.
Nor was Baisden’s evidence irrelevant and confusing.
The testimony actually assisted the trier of fact to understand
the evidence or determine a fact in issue, rather than confuse
them, by helping the jury to determine the outcome of the DNA
analysis as to Troy. See Fed. R. Evid. 403. To exclude
Baisden’s testimony would have permitted a false inference by
the jury and led to the confusion that Rule 702 is meant to
prevent. That is, the jury would have heard that DNA evidence
was recovered from the hat, that it was tested by an analyst,
but they would not have heard the results. The natural
inference would be that Troy could be eliminated as a
contributor to the minor DNA mixture, which was not accurate.
Accordingly, we conclude the district court did not
abuse its discretion by admitting testimony of a DNA expert to
explain an inconclusive finding for Troy, because the evidence
31
was relevant, admissible, and assisted the trier of fact in
understanding the evidence or determining a fact at issue.
E.
Firearm Possession and “Brandishing”
The Baylors also raise two claims of error regarding
their respective convictions for violating 18 U.S.C. § 924(c) as
to the Family Dollar robbery as charged in count three of the
indictment. 9 Section 924(c) of Title 18 prohibits persons from
using or carrying a “firearm” in the commission of a crime of
violence. First, the Baylors claim the Government presented
insufficient evidence in support of the finding that the object
used or carried during the robbery met the definition of
“firearm.” Alternatively, they contend that the seven-year
sentences imposed on them as a result of their count three
convictions are unconstitutional because the indictment did not
allege, and the jury did not find, that a firearm was
brandished.
9
The Baylors do not raise this issue with respect to the
robbery of Wilson’s Auto.
32
1.
The Sufficiency of the Evidence
a.
Standard of Review
We review de novo a district court’s denial of a
motion made pursuant to Rule 29 of the Federal Rules of Criminal
Procedure for judgment of acquittal. See United States v.
Alerre, 430 F.3d 681, 693 (4th Cir. 2005). We must uphold a
jury verdict if there is substantial evidence, viewed in the
light most favorable to the Government, to support it. See
Burks v. United States, 437 U.S. 1, 17 (1978). “[S]ubstantial
evidence is evidence that a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of a
defendant’s guilt beyond a reasonable doubt.” United States v.
Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). “In
applying this standard of review, we remain cognizant of the
fact that ‘[t]he jury, not the reviewing court, weighs the
credibility of the evidence and resolves any conflicts in the
evidence presented, and if the evidence supports different,
reasonable interpretations, the jury decides which
interpretation to believe.’” Id. (quoting United States v.
Murphy, 35 F.3d 143, 148 (4th Cir. 1994)).
33
b.
Analysis
We agree with the Government that Smith’s testimony,
together with the other evidence, was sufficient to establish
the Baylors’ possession of a firearm. In this case, Dena Smith
testified “the taller guy . . . he had a gun in his arm sleeve.”
J.A. 341. Ms. Smith testified that the taller man then said,
“Now, this is what you going [sic] to do. Take us in the back
and give us the money.” J.A. 341. According to Smith, “[h]e
had the gun in his arm sleeve but it weren’t [sic] like pointing
at me. The barrel was inside of his sleeve so he just had it
laying in his palm.” J.A. 363. Smith further testified, “the
barrel was in the sleeve. The part where fire come out of.”
Id. While she conceded that she wasn’t familiar with the parts
of the gun, she explained, “But I know the part that you hold,
that was in his sleeve so the part where the bullet come out of
[sic] was pointing out in his palm.” J.A. 363. Upon seeing the
gun, Smith testified that she thought, “Oh, God.” J.A. 341.
The direct evidence of Smith’s observations along with
the direct and circumstantial evidence of both the Baylors’
actions as already catalogued were more than sufficient,
particularly when viewed in the light most favorable to the
Government, for a rational jury to find both Baylors guilty of
violating § 924(c).
34
2.
Brandishing
The Baylors also contend the district court violated
their constitutional rights by imposing mandatory seven-year
sentences based on a question of fact not submitted to the jury
because count three of the indictment, which charged that the
Baylors violated 18 U.S.C. § 924(c) in connection with the
Family Dollar robbery, failed to allege that the gun was
brandished. Until recently, Appellants’ argument was foreclosed
by Harris v. United States, 536 U.S. 545, 556 (2002), a decision
concluding that brandishing is a sentencing factor for the judge
to find, rather than an element that must be found by the jury.
However, in Alleyne v. United States, ___ U.S. ___, 133 S. Ct.
2151 (2013), the Supreme Court expressly overruled Harris and
concluded that the brandishing enhancement in § 924(c) must be
submitted to the jury. Therefore, under Alleyne, Appellants
were subject to an improper mandatory minimum because the
brandishing factor was not alleged in the indictment or found by
the jury. The question for us, then, is whether the error was
harmless.
a.
Standard of Review
Apprendi errors are subject to harmless error review.
See Washington v. Recuenco, 548 U.S. 212 (2006). The Supreme
35
Court has “repeatedly recognized that the commission of a
constitutional error at trial alone does not entitle a defendant
to automatic reversal. Instead, ‘most constitutional errors can
be harmless.’” Id. at 218 (quoting Nedar v. United States, 527
U.S. 1, 8 (1999)). “[I]n the context of a particular case,
certain constitutional errors, no less than other errors, may
have been ‘harmless' in terms of their effect on the factfinding
process at trial.” Delaware v. Van Arsdall, 475 U.S. 673, 681
(1986). “[A]n otherwise valid conviction should not be set
aside if the reviewing court may confidently say, on the whole
record, that the constitutional error was harmless beyond a
reasonable doubt.” Id.
b.
Analysis
Section 924(c) provides a mandatory, and consecutive,
term of five years of imprisonment upon conviction for using or
carrying a firearm in the commission of a crime of violence. 18
U.S.C. § 924(c)(1)(A)(i). “[I]f the firearm is brandished,”
however, a defendant must be sentenced to a mandatory,
consecutive seven-year term of imprisonment.
§ 924(c)(1)(A)(ii). Congress defined the term “brandish” in 18
U.S.C. § 924(c)(4) as follows: “‘brandish’ means, with respect
to a firearm, to display all or part of the firearm, or
otherwise make the presence of the firearm known to another
36
person, in order to intimidate that person, regardless of
whether the firearm is directly visible to that person.”
In this case, the record below amply supports the
conclusion that a firearm was brandished by the Baylors during
the robbery of the Family Dollar. The jury was asked and
ultimately found that a weapon was present, that is,
“possessed.” The only other element needed to satisfy the
definition of “brandish” is the act of displaying or making the
presence of the firearm known for the purpose of intimidation,
which as Smith’s testimony indicates, was also established.
Smith testified that she encountered the Baylors outside of her
store shortly after Troy had approached her with questions
several times inside the store. When asked what happened when
she was confronted by the Baylors outside of the Family Dollar,
Smith answered:
A. When the taller guy, before he was out there, he
had a gun in his arm sleeve. He was like, “Now,
this is what you going [sic] to do. Take us in
the back and give us the money,” or whatever. He
had a gun in his arm sleeve but it weren’t [sic]
like pointing at me. The barrel was inside of
his sleeve so he just had it laying in his palm.
That’s when I asked to put my hands in my pocket
and I was like, “Oh, God.”
Q. You saw the gun?
A. Yes.
37
J.A. 341. She again testified, that “the barrel was in the
sleeve. The part where the fire came out of.” J.A. 363.
As her testimony plainly demonstrates, James displayed
at least part of the firearm with the aim of intimidating Smith
–- and succeeded. We thus conclude that if the indictment had
so alleged, the jury would have found beyond a reasonable doubt
that the firearm was “brandished,” thus justifying the
imposition of the seven-year mandatory minimum. Accordingly,
even though, per Alleyne, it was error to impose the mandatory
minimum without asking the jury to specifically find whether the
firearm was “brandished,” the record as a whole demonstrates
beyond a reasonable doubt that it was brandished, and thus the
error is harmless.
III.
For the foregoing reasons, the judgment of the
district court is
AFFIRMED.
38