U.S. v. Manning

Citation23 F.3d 570
Decision Date05 November 1993
Docket NumberNo. 92-1893,92-1893
PartiesUNITED STATES, Appellee, v. Trent MANNING, Defendant, Appellant. . Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Robert B. Mann with whom Mann & Mitchell, Providence, RI, was on brief, for appellant.

Sean Connelly, Attorney, U.S. Dept. of Justice, with whom Edwin J. Gale, U.S. Atty., D. Rhode Island, Providence, RI, was on brief, for appellee.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

STAHL, Circuit Judge.

In this appeal, defendant-appellant Trent Manning challenges, on several grounds, his convictions for possession with intent to distribute cocaine, use of a firearm during and in relation to a drug trafficking crime, and possession of a firearm by a convicted felon. Manning's principal appellate claim is that

improper comments made by the prosecutor during closing arguments undermined the fairness of his trial. After carefully reviewing the record, we conclude that the prosecutor's comments did so infect the proceedings below that Manning is entitled to a new trial. Accordingly, confining our discussion and analysis to the prosecutorial misconduct issue, we vacate the convictions.

I. BACKGROUND
A. Relevant Factual Background

It is undisputed that late in the afternoon on October 7, 1991, several members of the Providence Police Department executed a search warrant at Manning's mother's house, located at 151 Doyle Avenue in Providence, Rhode Island. In the course of their search, the police officers seized, inter alia, a brown briefcase which contained the material that formed the basis of the charges in the indictment: two bags of cocaine weighing 124.64 grams, various drug paraphernalia, a loaded .9 millimeter handgun, and six copper pipe bombs.

It also is undisputed that just prior to the raid, two men drove up to Manning's mother's house in Manning's red Jeep Cherokee. The man in the passenger seat was one Sean Duncan, who was detained by the police but never charged in connection with this case. The vehicle's driver, however, was not apprehended at the scene. The identity of the driver was (and is) perhaps the most hotly contested issue in this case, as it was (and is) the government's theory that the driver brought the brown briefcase into the house. The government argued successfully that the driver was Manning; Manning and Duncan testified that the driver was one Troy McKenzie. The primary government witness on the issue of the driver's identity was Detective Joseph Lennon, a member of the search team that day. Lennon testified that, after having been given the order to execute the search warrant, he approached the rear of 151 Doyle Avenue, where he saw Manning, whom he knew and with whom he had conversed on other occasions, standing outside the Cherokee and in front of the house's garage. Lennon testified that Manning was holding the brown briefcase. Lennon also testified to seeing Duncan seated in the passenger seat of the Cherokee.

Lennon further testified that, upon seeing Manning, he identified himself as a police officer and, with gun drawn, ordered Manning to stop. According to Lennon's testimony, Manning ignored this directive, walked slowly into the garage, and closed and locked the door behind him. Lennon testified that his pursuit of Manning into the building was delayed by the presence of Manning's rottweiler, which was running around loose in the driveway area behind the house. After eventually gaining entrance to the garage (about three to five minutes later), Lennon found and seized the brown briefcase. He did not, however, find Manning in the house.

Detective David Lussier also testified concerning the identity of the driver of the Cherokee just prior to the raid. Lussier, who also had known Manning for some time, testified that he observed Manning, along with a companion, drive by his surveillance position (located about 50 yards from the house in a parking lot which provided a direct view into the rear yard of 151 Doyle Avenue) just three or four minutes before the raid. Indeed, Lussier testified that he ordered that the warrant be executed at that time precisely because he feared that eye contact between himself and Manning had caused his surveillance to be compromised. After ordering the raid, Lussier testified that he drove to the front of the house, entered it through the front door, and proceeded to the basement, where he found a broken window through which Manning apparently had escaped.

In contrast to the detectives' testimony, both Sean Duncan and Manning testified that the driver of the car at the time of the raid was (as noted above) Troy McKenzie. The substance of their testimony was that Duncan and Manning had been riding around together throughout the day, that they had picked up McKenzie at some point in the afternoon, and that they thereafter drove to the residence of Manning's girlfriend. At this point, Manning gave McKenzie and Duncan $40 and asked them to take his rottweiler One week after the execution of the search warrant, Manning voluntarily turned himself in to the police. He subsequently was charged with and convicted of the crimes noted above, all of which necessitated a finding that Manning was the person in possession of the brown briefcase who disappeared into 151 Doyle Avenue at the time of the raid.

which was being kept at his mother's house, to the veterinarian for a rabies shot. McKenzie and Duncan then drove the Cherokee over to Manning's mother's house to pick up the dog. Duncan testified that McKenzie entered the house to fetch the dog while he waited in the car. Shortly thereafter, the raid occurred. Duncan also testified that he had "no idea" was happened to Troy McKenzie after he entered the house.

B. The Prosecutor's Comments

Manning complains of four different comments made by the prosecutor during the course of his closing argument. First, Manning contends that the prosecutor improperly vouched for the credibility of certain prosecution witnesses during the following colloquy:

[PROSECUTOR]: If Lussier is going to come in and lie to you he could have done that very, very easily. There's a million little ways they could have given it to the Defendant. But they cannot. The prosecution witnesses cannot engage in that kind of conduct. They're bound by the truth.

[DEFENSE COUNSEL]: I object to that, your Honor.

THE COURT: Overruled.

[PROSECUTOR]: They're bound by their oath and limits of honesty. The last thing you might ask yourselves--

[DEFENSE COUNSEL]: I object to that, again I have a motion.

THE COURT: Overruled, motion denied.

(Hereinafter "First Passage"). The government concedes that this passage contains improper witness-vouching by the prosecution.

Next, Manning argues that the prosecutor engaged in additional improper witness-vouching and inappropriately implied that he had additional incriminating evidence when, in responding to a defense argument concerning the lack of probative fingerprint evidence on the items in the brown briefcase, he stated:

[PROSECUTOR]: [W]hen we get to this gun and these bombs and this dope we've got an eyewitness who knows the Defendant and saw it all in his hands. So it doesn't matter whether there's a print on it or not. But they looked anyways and what did that BCI officer tell you? He told you that there were some partial prints on those items but nothing that was good enough to use for identification purposes. Nothing that has sufficient points of comparison on it for him to be positive and we have to be fair, we have to be positive. Prosecution--

[DEFENSE COUNSEL]: I object to that, Judge.

THE COURT: Overruled.

[PROSECUTION]: Prosecution must always be fair....

(Hereinafter "Second Passage"). The government acknowledges that this prosecutorial argument also contained improper witness-vouching, but denies that it implied the existence of additional incriminating evidence. Rather, the government contends that it was an effort to suggest "that prosecution witnesses had not created false evidence[.]"

Third, Manning asserts that the prosecutor impermissibly appealed to the jury's emotions when, near the conclusion of the prosecutor's initial closing argument, the following exchange took place:

[PROSECUTOR]: Twelve responsible people will deliberate on this case. Take responsibility for yourselves. Take responsibility for your community.

[DEFENSE COUNSEL]: I object to that.

THE COURT: The jury's responsibility is to follow the Court's instructions and find the facts.

(Hereinafter "Third Passage"). The government denies that this argument constituted an improper appeal to the jury's emotions.

Finally, Manning charges that the prosecutor again impermissibly appealed to the [PROSECUTOR]: Convict the Defendant fairly because the facts and the law compel conviction. Convict the Defendant because justice compels conviction.

jury's emotions at the conclusion of his rebuttal argument:

[DEFENSE COUNSEL]: I object to that, too....

THE COURT: I direct the jury to ignore the last statement of the United States Attorney. Your responsibility, as I told you at the beginning, is to determine whether or not, in light of the law that is given to you by the Court, the government has met its burden of proving the Defendant guilty beyond a reasonable doubt....

(Hereinafter "Fourth Passage"). Although it is not entirely clear, the government appears to concede that this argument was improper. See Government's Brief at 41 (acknowledging that this argument "is somewhat similar to exhortations that have been deemed impermissible").

II. DISCUSSION

Manning's prosecutorial misconduct argument, as developed in his brief and at oral argument, proceeds along the following lines. First, Manning correctly notes that, in order to convict him of the crimes with which he was charged in the indictment, the jury was obliged, as a threshold matter, to find that he was the person who disappeared into the...

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