U.S. v. Lawes

Decision Date31 May 2002
Docket NumberDocket No. 00-1707.
Citation292 F.3d 123
PartiesUNITED STATES of America, Appellee, v. Martel LAWES, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

Larry H. Krantz, Krantz & Berman LLP, New York, N.Y. (Marianne Yen, of counsel), for Defendant-Appellant.

Daniel Margolis, Assistant United States Attorney, New York, N.Y. (Mary Jo White, United States Attorney, Leslie C. Brown, Assistant United States Attorney, and Ping C. Moy, Assistant United States Attorney, of counsel), for Appellee.

Before: WINTER, McLAUGHLIN, and POOLER, Circuit Judges.

Judge POOLER dissents in a separate opinion.

WINTER, Circuit Judge.

Martel Lawes appeals from his conviction by a jury before Judge Duffy for illegal possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). On appeal, he argues that: (i) the district court should have suppressed the firearm as evidence because it was discovered in the course of an allegedly unlawful search; (ii) the district court should have questioned prospective jurors during voir dire about their attitudes toward police officers; and (iii) the district court improperly barred cross-examination about a witness's motive to lie. We affirm.

BACKGROUND

This being an appeal from a denial of a motion to suppress and a conviction after a trial, we view the facts in the light most favorable to the government. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Fields, 113 F.3d 313, 319 (2d Cir.1997); United States v. Peterson, 100 F.3d 7, 11 (2d Cir.1996). Appellant was arrested by New York City Detective Robert Martin and Officer Anthony Bencivengo on the night of January 1, 2000. At that time, Martin and Bencivengo were in an unmarked police car looking for a murder suspect. They possessed a mugshot of the suspect and pedigree information that described him as a twenty year-old black male, weighing 160 pounds and being 5'9" tall, with a visible scar on one arm. As they drove through the Parkchester section of the Bronx, Martin spotted appellant walking on a sidewalk approximately one block from where the murder had taken place. From his viewpoint in the car, Martin believed that appellant closely matched the picture of the suspect. Martin then alerted Bencivengo, who agreed that appellant might be the suspect.

Martin stopped the car while still behind appellant, and Bencivengo got out to follow appellant on foot. Martin then drove the car past appellant and parked. Martin got out of the car, approached appellant, and identified himself as a police officer. He told appellant that he would like to speak with him and asked appellant to put down a bag that he was carrying. As appellant placed the bag on the ground, he turned his body so that his right hand was no longer visible to Martin. This alarmed Martin, and he reached around appellant to grab his arm. In doing so, Martin felt a hard object near appellant's waist that felt like the butt of a gun. Martin shouted a warning codeword to Bencivengo, and they subdued and handcuffed appellant. Martin and Bencivengo thereafter retrieved a loaded gun from appellant's waistband. The two policemen realized that appellant was not the murder suspect only after taking him into custody.

Before appellant's trial commenced, he moved to suppress the gun on the theory that it was the product of an invalid search. The district court denied this motion. Appellant also requested, along with the government, that the district court question prospective jurors during voir dire about possible bias involving police officers. In particular, appellant wanted the district court to ask: "Does any juror or any member of his or her family have any relationship or friendship with any city, state or federal law enforcement officer?" and "Would any juror attach greater weight to the testimony of a witness because he or she happens to be a Government employee or law enforcement agent as opposed to a witness who is not so employed?"

The district court declined to ask these questions. Instead, in questioning each potential juror individually, the district court primarily asked about: (i) where they lived; (ii) where they worked; (iii) whether they lived with any other adults and, if so, what were their occupations; (iv) whether they had served on a jury before; (v) whether they could be fair and impartial; and (vi) whether they were willing to serve.

After the jury was selected and the trial began, the government presented evidence that the gun possessed by appellant came from out-of-state and that he had previously been convicted for a felony under the name Clement Christopher Tomlinson. The government also called Martin and Bencivengo to testify about the events leading up to appellant's arrest. Before Bencivengo appeared as a witness, however, the government moved to preclude appellant from questioning him about an earlier finding by the Civilian Complaint Review Board that Bencivengo, in an unrelated incident, had used excessive force against an arrestee. Over appellant's objection, the district court granted this motion, concluding that this evidence was not particularly probative and might distract the jury from the salient issues.

The jury convicted appellant, and this appeal followed.

DISCUSSION
a) Motion to Suppress

Appellant argues that the district court should have suppressed the gun as evidence because the police officers did not harbor a reasonable suspicion that he was the murder suspect when they stopped him. In reviewing a district court's denial of a motion to suppress, we must uphold the district court's findings unless they are clearly erroneous. See Fields, 113 F.3d at 319; Peterson, 100 F.3d at 11. However, whether a suspicion leading to a search is reasonable is a question of mixed fact and law, which we review de novo. See id.; United States v. Bold, 19 F.3d 99, 102 (2d Cir.1994).

Appellant relies principally upon the dissimilarity between his appearance and the description of the murder suspect. While the suspect was described as a twenty year-old black male, weighing 160 pounds and 5'9" in height, appellant is thirty-four years old, weighs 200 pounds, and is 6'1" in height. Furthermore, unlike the suspect, he has no scar on his arm but does have a scar on his face, under his right eye.

The district court credited the testimony of the officers and concluded that the dissimilarity between the suspect's description and appellant did not fatally undermine the reasonableness of the policemen's suspicion. The district court compared the mugshot of the suspect carried by the officers on the night of the arrest with a photograph of appellant and concluded that they had similar facial features. The court also noted that Martin and Bencivengo had been informed by some sources that their suspect was 6', rather than 5'9", tall. Finally, the court noted that Martin and Bencivengo saw appellant at night and in the middle of winter, when appellant was wearing a heavy coat. The district court concluded that the policemen discovered the gun only after acting on a reasonable suspicion.

We cannot say that the district court's conclusion was in error. Reasonable suspicion is not a high threshold, and the "requisite level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence." United States v. Tehrani, 49 F.3d 54, 58 (2d Cir. 1995) (internal quotation marks omitted). Thus, notwithstanding some differences in the description between the suspect and appellant, the match between the two men was, under the circumstances — nighttime and a person in a heavy coat — close enough to justify a reasonable suspicion. See United States v. Jackson, 652 F.2d 244, 248-49 (2d Cir.1981).

b) Voir Dire

Appellant maintains that the district court erred when it refused to quiz prospective jurors during voir dire about their relationships with, and attitudes toward, police officers. A district court is "accorded ample discretion in determining how best to conduct ... voir dire." Rosales-Lopez v. United States, 451 U.S. 182, 189, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981); see also United States v. Millar, 79 F.3d 338, 342 (2d Cir.1996). Moreover, a district court has "broad discretion whether to pose a defendant's requested voir dire questions." United States v. Kyles, 40 F.3d 519, 524 (2d Cir.1994). Accordingly, we will not reverse unless we determine that this discretion has been abused. See United States v. Salameh, 152 F.3d 88, 121 (2d Cir.1998).

Voir dire is necessarily a matter in which the trial court has extremely broad discretion. Voir dire is of course an important part of trial proceedings, but federal trial judges are not required to ask every question that counsel — even all counsel — believes is appropriate. Court and counsel have somewhat different goals in voir dire. The court wants a fair and impartial jury to be chosen and to move expeditiously to the presentation of evidence. Counsel want a jury favorable to their cause — fair or not — and voir dire aids them in exercising peremptory challenges and challenges for cause. Counsel have an additional purpose in voir dire moreover and that involves exposing jurors to various arguments they intend to make at trial. Counsel view voir dire as an opportunity for advocacy similar to, albeit not the equivalent of, openings or summations. This additional purpose has led to a long struggle between bench and bar — in both the states and federal courts, see, e.g., United States v. Barnes, 604 F.2d 121, 142 n. 10 (2d Cir.1979); United States v. L'Hoste, 609 F.2d 796, 801-03 (5th Cir.1980); United States v. Bryant, 471 F.2d 1040, 1043-45 (D.C.Cir.1972) (per curiam) — in which the bar has sought the right to question jurors at great length. Thus far, federal courts have successfully resisted such attempts. See United States v. Diez, 736 F.2d 840, 844 (2d Cir.1984)...

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