U.S. v. Pearson, 97-3271

• Decision Date: 15 September 1998
• Docket Number: No. 97-3271,97-3271
• Citation: 159 F.3d 480,1998 WL 614411
• Parties: 98 CJ C.A.R. 5079 UNITED STATES of America, Plaintiff-Appellee, v. Dominic G. PEARSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 480

159 F.3d 480

98 CJ C.A.R. 5079

UNITED STATES of America, Plaintiff-Appellee, v. Dominic G. PEARSON, Defendant-Appellant.

No. 97-3271.

United States Court of Appeals,

Tenth Circuit.

Sept. 15, 1998.

Roger L. Falk, Law Office of Roger L. Falk, P.A., Wichita, Kansas, for Defendant-Appellant.

Lanny D. Welch, Assistant United States Attorney (Jackie N. Williams, United States Attorney, with him on the brief), Wichita, Kansas, for Plaintiff-Appellee.

Before EBEL, HENRY, and BRISCOE, Circuit Judges.

HENRY, Circuit Judge.

A jury convicted Dominic Pearson of one count of conspiracy to obstruct commerce by robbery and one count of obstruction of commerce by robbery, both in violation of 18 U.S.C. § 1951 (the Hobbes Act), and one count of carrying or using a firearm during and in relation to a crime of violence resulting in the murder of a person through use of a firearm, a violation of 18 U.S.C. § 924(c)(1) and (j)(1). The court sentenced Mr. Pearson to concurrent sentences of 240 months for each of the § 1951 violations and 360 months for the § 924 violation.

Mr. Pearson appeals his convictions on the grounds that (1) Congress did not have the constitutional authority to enact § 1951, (2) the district court erroneously refused to allow Mr. Pearson to submit a tardy alibi defense, (3) the evidence was insufficient to support his conviction on any count, (4) the district court erroneously instructed the jury on the elements of felony murder, and (5) the district court erroneously refused to submit Mr. Pearson's requested lesser included offense instructions to the jury. We affirm.

I. BACKGROUND

Two men, one wielding a handgun, robbed Mr. Goodcents Subs & Pastas in Wichita, Kansas, around 9:55 p.m. on Monday, February 17, 1997. As the men were emptying the cash register and safe, the handgun accidentally discharged, and the bullet from the gun hit and killed Amie Montgomery, the nineteen-year-old shift supervisor who was on duty. The robbers fled with roughly $2,500.

Dominic Pearson and several others were arrested and charged in relation to the events at Mr. Goodcents. Some of those charged pleaded guilty and agreed to testify at Dominic's trial. Among those testifying was Deborah Meyer, an assistant manager at Mr. Goodcents, who stated that her boyfriend, Eric Pearson, had discussed with her various plans to rob the store. She testified that she also met with Eric and his cousin Dominic and talked about where the store kept its money and when would be the best time to rob the store. She stated that before the date of the robbery, the Pearsons left her house intending to rob the store but later told her they could not complete the crime because there were police around the restaurant. However, according to Ms. Meyer, Eric Pearson continued to plan to take money from Mr. Goodcents until February 17.

Another accomplice, Courtney Martin, testified that he had robbed the restaurant with Dominic while Eric waited in the car. Mr. Martin averred that Dominic picked him up at Mr. Martin's girlfriend's house at around 8:30 p.m. on the night of the robbery. He stated that they drove around, smoking marijuana, prior to going to Eric's, where Eric and Dominic went into another room and talked before emerging to discuss the robbery with him. Mr. Martin claimed that Eric assured him that the robbery would go well because Ms. Meyer had given him detailed information about how to commit the crime. He stated that Eric then gave him clothing to wear, drove him and Dominic to Mr. Goodcents, waited in the car, and drove them away after the crime. Mr. Martin admitted that Dominic handed him the gun to use in the robbery and that he was holding the gun when it fired, killing Ms. Montgomery. He also said that the three of them split the robbery proceeds later that evening at Eric's house.

The government presented witnesses not involved in the crime, including Angela Starks, who was working with Ms. Montgomery at the time of the robbery, and Steve Peterson, the owner of Mr. Goodcents. Ms. Starks testified to the details of the robbery and then identified Dominic as the unarmed robber. However, as she acknowledged on cross-examination, Ms. Starks had been unable to pick Dominic out of a photo array soon after the robbery and had seen his picture on television in connection with the robbery before her in-court identification. Additionally, Dominic was the only black male in the courtroom who was of the right age to be a suspect in the crime. In contrast, Ms. Starks had picked Mr. Martin out of a photo array as the armed robber. Mr. Peterson testified that Mr. Goodcents is part of a national chain and purchases goods from both Kansas and out-of-state companies for sale to customers. According to Mr. Peterson, business suffered after the robbery and killing, and the stolen money would have been used to purchase goods produced outside of Kansas.

Dominic testified in his own defense. He swore that he had driven by Mr. Goodcents with Eric several days before the robbery and that Eric was trying to convince him to rob the restaurant; however, he told Eric he would not participate in the robbery. He claimed that he did not help in the robbery on February 17. To rebut Mr. Martin's testimony that he and Dominic were riding around together before going to Eric's house, he testified that he was at a mall jewelry store having his watch repaired at around 9:00 p.m. He introduced into evidence a watch store receipt that an employee of the store testified was a record of payment for watch sizing and battery replacement. The jewelry store employee also stated that he had done the work on the watch, believed the watch had been dropped off just before the store closed at 9:00 p.m. on the seventeenth, and remembered that the watch wasn't picked up until five or ten minutes later, after closing. Although the employee could not identify the person who had brought the watch in and picked it up, he recalled that the person was a black male. Dominic also produced evidence showing that Eric had called Dominic's pager at 9:00 p.m. on the seventeenth.

II. ANALYSIS

A. Constitutionality of 18 U.S.C. § 1951

Mr. Pearson moved to dismiss the indictment claiming that Congress lacked the constitutional authority to enact § 1951. The district court denied his motion. "We review challenges to the constitutionality of a statute de novo." United States v. Bolton, 68 F.3d 396, 398 (10th Cir.1995). We have previously concluded that § 1951 "regulates activities which in aggregate have a substantial effect on interstate commerce." Id. at 399. Therefore, § 1951 "represents a permissible exercise of the authority granted to Congress under the Commerce Clause." Id.; see also, United States v. Romero, 122 F.3d 1334, 1340 (10th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1310, 140 L.Ed.2d 474 (1998); United States v. Shinault, 147 F.3d 1266, 1278-79 (10th Cir.1998). Because § 1951 is within Congress's Commerce Clause authority, Mr. Pearson's constitutional challenge to his convictions fails.

B. Mr. Pearson's alibi

Pursuant to Fed.R.Crim.P. 12.1(a), the government requested notice of Mr. Pearson's alibi defenses on April 17, 1997. Mr. Pearson's attorney did not respond with notice of an alibi within the ten days required by Rule 12.1(a) and, in fact, told the government on at least two occasions that Mr. Pearson had no alibi defense. However, on June 12, Mr. Pearson's counsel learned that Mr. Pearson's mother wished to testify that Mr. Pearson was at her house between 9:45 and 10:00 p.m. on the night of the robbery and murder. Because the trial was scheduled to begin on June 16, Mr. Pearson's attorney moved for a continuance so that he could develop the alibi defense and for permission to use the alibi defense despite failure to give timely notice to the government. After hearing argument, the court denied both motions.

We review the district court's decision to exclude alibi evidence for abuse of discretion. See United States v. Davis, 40 F.3d 1069, 1076 (10th Cir.1994). Rule 12.1(a) states that, within ten days of a written demand from the government, the defendant must give notice of his intention to offer an alibi defense. Rule 12.1(b) places a reciprocal witness identification requirement on the government, requiring it to disclose witnesses it intends to use to establish the defendant's presence at the scene of the crime and any other witnesses it will rely on to rebut the testimony of the defendant's alibi witnesses. Rule 12.1(c) places on the parties a continuing duty to disclose according to 12(a) and (b). Rule 12.1(d) allows the court to exclude the testimony of any witness not identified in compliance with Rule 12.1(a) or (b), and Rule 12.1(e) allows the court to grant, if good cause is shown, an exception to 12.1(a) through (d).

Addressing a similar state alibi witness disclosure rule, the Supreme Court identified the interests vindicated by such rules:

Given the ease with which an alibi can be fabricated, the State's interest in protecting itself against an eleventh-hour defense is both obvious and legitimate. Reflecting this interest, notice-of-alibi provisions, dating at least from 1927, are now in existence in a substantial number of States. The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played. We find ample room in that system, at least as far as "due process" is concerned, for the [alibi witness disclosure] rule, which is designed to enhance the search for truth in the criminal trial by insuring both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence.

Williams v. Florida, 399 U.S. 78, 81-82, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) (footnotes omitted). The Advisory Committee Notes to Rule 12.1 also offer compelling justification for alibi witness...