United States v. Odonis Parker

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1231
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ODONIS D. PARKER,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 1:19-cr-00051-DRL-SLC — Damon R. Leichty, Judge.
____________________
SUBMITTED FEBRUARY 17, 2021 1 — DECIDED AUGUST 30, 2021
____________________
Before SYKES, Chief Judge, and FLAUM, and ROVNER, Circuit
Judges.
1 We have agreed to decide this case without oral argument because
the parties jointly moved to waive oral argument, and we agree that the
briefs and record adequately present the facts and legal arguments, and
oral argument would not significantly aid the court. Fed. R. Civ. P.
34(a)(2)(C). See appellate record at 32.
2 No. 20-1231
ROVNER, Circuit Judge. Selina Schutt, her three young chil-
dren, and her boyfriend, Jamayl Wash, were driving into her
apartment complex in Fort Wayne, Indiana, when shots rang
out. Wash’s Hyundai Sonata was hit with a barrage of bullets,
including one that grazed the top of his scalp. Schutt saw her
recently estranged ex-boyfriend, Odonis Parker, shooting
from the side of the building. She grabbed her children, ran,
and called 911 reporting that her ex-boyfriend, “Odonis Par-
ker,” had shot up a car and was trying to shoot her friend.
When the police arrived, Schutt reported that her ex-boy-
friend, Parker, who was wearing a red hooded sweatshirt,
shot at her. Two witnesses in a nearby apartment, Devin Pol-
ston and Barbara Rogan, could not identify the shooter by
name, but they agreed that he was wearing an orange or red
hoodie and carrying a big, long gun that required two hands
to hold. Rogan saw the shooter run up some stairs to the high-
est floor of a nearby apartment building. Wash had never met
Parker and also could not identify the shooter but testified
that the shooter was wearing an orange or red hoodie.
The police officers’ investigation of the scene uncovered a
live round of 7.62 ammunition and a spent shell casing near
the Sonata, and bullet holes in the grille on the front of the car.
They found a cell phone lying in the grass near Schutt’s apart-
ment building and a Ford Fusion in the parking lot with a red
hoodie lying across the center console.
As the police were collecting evidence, Parker walked out
of a neighboring apartment building, and when Schutt iden-
tified him as the shooter, the police took him into custody. He
had two sets of keys with him. As the police pushed the but-
tons on one key fob, the lights of a Ford Fusion alighted, and
the trunk popped open. The police officers towed the Fusion
No. 20-1231 3
to the crime scene garage where they found the following: a
men’s 2XL red Chicago Bulls hooded sweatshirt between the
console and the driver’s side seat, Parker’s debit card, and
several pieces of paperwork with Parker’s name on them, and
an SKS rifle in the trunk with one magazine and a round of
ammunition in the chamber. There was no evidence of any
tampering with or damage to the door or trunk locks or the
ignition.
A grand jury charged Parker with being a felon in posses-
sion of a firearm in violation of 18 U.S.C. § 922(g)(1). The only
element of the crime at issue was whether Parker possessed
the firearm. Prior to trial, Parker filed a motion to which the
government objected, requesting voir dire questioning of pro-
spective jurors on various topics including the importance
they might assign to DNA evidence. The district court judge
declined to ask these questions, finding them unnecessary to
seating a fair and impartial jury and noting his concern with
asking questions that advocate a party’s theory of the case (in
this case, according to the judge, a generalized theory that the
government’s work was sloppy). R. 18 at 18–19. And, conse-
quently, the district court barred Parker from discussing a
lack of forensic testing during his opening statement, until
such time as the court could determine whether that line of
questioning was admissible. The court stated that if the de-
fense laid the proper foundation for an attack on the forensic
work, it could ask those types of questions of the witnesses
during cross examination and then include argument about
the lack of forensic testing in the closing argument.
At trial, the owner of the Ford Fusion testified that on the
day of the shooting she loaned the car to her then-boyfriend
Parker, among others, and that the keys the police found with
4 No. 20-1231
Parker were the only set of keys to the vehicle. She also testi-
fied that she had never before seen the gun found in the trunk.
The Indiana State Police forensics firearm examiner testified
at trial that the spent cartridge and live round found near
Wash’s car were fired from the rifle found in the trunk of the
Ford Fusion.
The government also called the crime scene investigator,
Robert Wilcox, who testified that he submitted the firearm
and magazine for fingerprint testing, but did not submit any
bullets, explaining that generally it is not possible to procure
fingerprint evidence from bullets. He also confirmed that he
did not check the firearm for any visible prints or attempt to
collect hair and fiber samples from the sweatshirt. During
cross examination, Parker’s counsel asked Wilcox if he col-
lected any DNA samples from the gun. The government ob-
jected arguing that, as neither side was calling a DNA expert,
and DNA evidence was not before the jury, the question was
inappropriate. The district court prohibited the question un-
der Federal Rule of Evidence 403, noting that Parker was not
challenging the reliability of any specific investigative steps
the government took and was instead impermissibly arguing
generally that the government’s investigation was shoddy be-
cause it did not attempt DNA testing. The district court sur-
mised that this would introduce significant confusion, as it
was inviting the jury to speculate as to what the tests might
reveal.
Finally, the police department’s latent fingerprint exam-
iner testified that he found no prints of value on the gun or
magazine. He testified that over the course of eighteen years
and thousands of examinations, it was uncommon to find
No. 20-1231 5
prints on firearms, and that he had never found a usable print
on a live round or shell casing.
In closing, Parker argued that the government failed to
prove its case as no fingerprints were found on the gun and
the identification from Schutt, his biased ex-girlfriend, was in-
sufficient to establish guilt. He also argued that the police de-
partment failed to develop any other persons of interest. Par-
ker’s counsel noted for the jury that the Indiana State Police
have a DNA section but did not submit any DNA evidence to
that lab.
After the two-day trial, the jury convicted Parker after ap-
proximately forty minutes of deliberations. The court later
sentenced Parker to 114 months in prison followed by a two-
year term of supervised release. Parker appealed, arguing
that the district court violated his Sixth Amendment rights
under the Confrontation Clause when it prohibited him from
cross-examining the government witnesses about the lack of
DNA evidence tying him to the firearm.
The government argues that Parker failed to raise the Con-
frontation Clause objection at trial and thus waived it, making
it subject only to plain error review. Parker asserts that alt-
hough “the specific words ‘confrontation clause’ were not
used in the district court,” the substance of the argument was
properly raised. Parker Reply Brief at 5. We need not resolve
this issue, because even if we assume that Parker properly
preserved the argument, and even if we were to determine
that the district court erred by disallowing the proposed cross
examination, any error would have been harmless.
An error is harmless if “it appears ‘beyond a reasonable
doubt that the error complained of did not contribute to the
6 No. 20-1231
verdict obtained.’” Mitchell v. Esparza, 540 U.S. 12, 17–18
(2003). “The test for harmless error is whether, in the mind of
the average juror, the prosecution’s case would have been sig-
nificantly less persuasive had the improper evidence been ex-
cluded.” United States v. Stewart, 902 F.3d 664, 683 (7th Cir.
2018) citing United States v. Curtis, 781 F.3d 904, 911 (7th Cir.
2015). An error is harmless where there is overwhelming evi-
dence guilt. United States v. Shelton, 997 F.3d 749, 773 (7th Cir.
2021) (“We may affirm if the error did not substantially influ-
ence the verdict because other untainted incriminating evi-
dence is overwhelming.”); United States v. Guzman-Cordoba,
988 F.3d 391, 405 (7th Cir. 2021), reh’g denied (Mar. 8, 2021)
(finding harmless error where the cumulative weight of guilt
was overwhelming); United States v. Groce, 891 F.3d 260, 268
(7th Cir. 2018) (Even if the court violates a defendant’s Sixth
Amendment rights by barring cross examination that should
have been permitted, that error is harmless if there is over-
whelming evidence of guilt.). A Confrontation Clause error is
harmless if the excluded testimony would have contributed
“little, if any, new information for the jury’s consideration.”
United States v. Martin, 618 F.3d 705, 731 (7th Cir. 2010), as
amended (Sept. 1, 2010).
In this case, it is beyond reasonable doubt that any exclu-
sion of cross examination about the DNA evidence did not
contribute to the verdict obtained. The evidence of Parker’s
guilt was overwhelming. First and foremost, Parker’s former
girlfriend identified Parker as the shooter in the heat of the
moment in her panicked 911 call. She identified him as the
shooter again, when the police arrived on the scene, and a
third time, under oath, at trial. The rifle used to shoot at Wash,
Schutt, and her three children was found in Wood’s Fusion.
Wood testified that she had loaned the car to Parker that day,
No. 20-1231 7
and when Parker was apprehended just after the shooting
coming out of a nearby apartment building, he was holding
the only set of keys to the Fusion. Inside the car police found
a red sweatshirt that two witnesses and a victim described the
shooter as wearing, Parker’s debit card, and several different
pieces of paperwork with Parker’s name on them. Ballistics
experts identified the shell casings by the victim’s car as hav-
ing come from the rifle in the trunk of the Ford Fusion.
Parker argues that the crux of his strategy was to cast rea-
sonable doubt that he possessed the firearm, arguing that the
only eyewitness who could identify him by name was biased
and her identification was not backed by forensic evidence.
Pointing out the lack of forensic evidence, he argues, was es-
sential to his case. Information about the police department’s
failure to conduct DNA testing, however, would have added
little, if anything to Parker’s defense. The jury already knew
that the police did not find any fingerprint evidence on the
weapon, magazine, or bullets and that the police did not look
for hair and fiber samples. This was not a case made or broken
on forensic testing. It was an eye-witness case—with circum-
stantial evidence as nails that sealed the coffin shut. Indeed,
the government lacked forensic evidence, but the circumstan-
tial evidence was robust—the car keys, the documents with
Parker’s name, the identification of a man in a red hoodie, the
red hoodie in the car, and Parker’s proximity to the scene of
the crime. 2 The additional evidence, or rather lack thereof—
2 The jury also heard phone calls that Parker made from prison from
which the jury could surmise that Parker was admitting guilt, or at least
that he had dropped the cell phone that the police found at the scene of
the crime. See R. 78 at 289-93. The government does not rely on these
phone calls on appeal.
8 No. 20-1231
that the police also did not test the weapons for DNA—would
have added little or nothing for the jury’s consideration. Con-
sequently, we can conclude that any error would have been
harmless.
The judgment of the district court is AFFIRMED.