U.S. v. Peppers

• Citation: 302 F.3d 120
• Decision Date: 21 August 2002
• Docket Number: No. 01-2348.,01-2348.
• Parties: UNITED STATES of America v. Ronnie PEPPERS, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

302 F.3d 120

UNITED STATES of America v. Ronnie PEPPERS, Appellant.

No. 01-2348.

United States Court of Appeals, Third Circuit.

Argued March 4, 2002.

Filed August 21, 2002.

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Daniel I. Siegel (Argued), Office of Federal Public Defender, Harrisburg, PA, for Appellant.

Theodore B. Smith, III (Argued), Office of United States Attorney, Harrisburg, PA, for Appellee.

Before: ALITO, RENDELL, and HALL,^* Circuit Judges.

OPINION OF THE COURT

RENDELL, Circuit Judge.

On November 28, 2000, a federal jury found Ronnie Peppers guilty of the first degree murder of a drug dealer, Jorge ("Cuban George") Drake, conspiracy to distribute and possess with the intent to distribute controlled substances, use of a firearm during and in relation to a drug trafficking crime, and being a felon in possession of a firearm. Before us, Peppers raises three allegations of error: that the prosecution failed to adduce sufficient proof of all of the elements of the alleged crimes, that the District Court erred in not allowing Peppers to proceed pro se after he requested to do so, and that the District Court erred in its determination that the victim's identification of his assailant was not admissible as a dying declaration. For the reasons set forth below, we find Peppers' challenge to the sufficiency of the evidence to be without merit. We do, however, agree with Peppers that the District Court erred in its handling of his request to proceed pro se. We will accordingly remand for a new trial. Additionally, we find that the District Court had the discretion to admit or preclude the proffered statement of identification, and, while perhaps it could have expressed the basis for its ruling more clearly, we do not find that it abused its discretion in refusing to admit the out of court statement.

I. Statement of Facts

Lisa Watson lived with her mother in Harrisburg. Her brother, John, lived close by. On August 13, 1997, at approximately 2:00 a.m., Jorge Drake was taking Lisa Watson home, and had stopped the car near her residence. A man wearing a black ski mask and dark clothing approached the driver's window and shot Drake in the head at close range, causing blood and brain matter to spatter upon Lisa Watson, who was sitting in the front passenger seat. According to eyewitnesses, the shooter reached into the car and removed something, yelled to Lisa Watson to get out, and then ran away. Drake did not die immediately. In fact, later that night, though heavily sedated and partially paralyzed, he responded to an inquiry as to who shot him with the single word, "Jun."¹ When subsequently asked by police who Jun was, Drake stated that he was "his boy," but refused to provide further details. Drake's ex-wife told police that, on the day after he was shot, Drake told her that John Watson had shot him. Another person who visited Drake in the hospital also told police that Drake had said "Juney and John" when asked who shot him.² Although it appeared that Drake might recover, after being transferred to a rehabilitation facility he died from his injuries on September 10, 1997. Peppers was charged in a seventeen count indictment, and he pled not guilty to the offenses charged. On October 20, 2000, Peppers wrote to the District Court, requesting permission to file a pro se interlocutory appeal and to represent himself. He also requested a hearing to address his requests. The District Court responded by letter on October 25, 2000,³ stating only:

Please be advised that your correspondence to me dated October 20, 2000, has been forwarded to your counsel of record. I do not entertain motions, or requests that could be deemed motions, from litigants who are represented by counsel.

On November 2, 2000, Peppers was arraigned on the Second Superseding Indictment, and a hearing was held on Motions in Limine by the government to exclude Drake's statements identifying "Jun" as the person who shot him. During the course of that hearing, the government represented that it had been unable to locate Drake's ex-wife, Josephine Williams, one of the persons to whom Drake had identified the shooter. Shortly thereafter, Peppers' counsel indicated that Peppers desired to address the Court. The following exchange took place.

Mr. Welch: Mr. Peppers has asked that he be allowed to address the Court. As Your Honor is aware, he sent a letter to the Court asking to be able to proceed pro se. I have no idea what he wants to speak to right now, Your Honor.

The Court: Go ahead, Mr. Peppers.

Mr. Peppers (misidentified in the transcript as Mr. Welch): I just wanted to speak not to the letter, but with reference to some of the witnesses. I wanted to speak in reference to Josephine Williams and some other witnesses that they are looking for.

On November 6, 2000, just before jury selection was to begin, Peppers orally requested to proceed pro se. The District Court proceeded with jury selection and then conducted a colloquy with Peppers. On November 15, the District Court issued a written order denying Peppers' oral request. On November 16, the District Court granted the government's motion in limine to exclude Drake's statements. On November 20, trial began.

The witnesses at trial included — among others — Lisa Watson, the two persons who were with Peppers the night of the murder, one of whom claimed to be his lookout,⁴ and two neighbors who were eyewitnesses to the shooting. The identification testimony was not entirely consistent. Testimony was also presented that Drake had been a drug dealer who dealt in "ass kicker" heroin, and that Peppers was also a drug dealer, dealing primarily in crack cocaine. The thrust of Peppers' defense was that, while he was in the vicinity of the shooting at the time in question, he did not commit the murder. Peppers was convicted on all counts, and was sentenced to life imprisonment plus five years. He filed a timely appeal.

II. Statement of Jurisdiction

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. Because Peppers is appealing from a final judgment of conviction, we have jurisdiction pursuant to 28 U.S.C. § 1291.

III. Peppers' Claims on Appeal

A. Sufficiency of the Evidence as to Each Element of the Crime

1. Standard of Review

We apply a "particularly deferential" standard of review to a challenge to the sufficiency of evidence supporting a jury verdict. United States v. Cothran, 286 F.3d 173, 175 (3d Cir.2002) (quoting United States v. Dent, 149 F.3d 180, 187 (3d Cir.1998)). If "any rational juror" could have found the challenged elements beyond a reasonable doubt, viewing the evidence in the manner that is most favorable to the government, neither reweighing evidence, nor making an independent determination as to witnesses' credibility, we will sustain the verdict. Id. Further, Peppers concedes that he did not preserve an objection to the sufficiency of the evidence. We will therefore examine the record only for plain error. United States v. Wolfe, 245 F.3d 257, 260-61 (3d Cir.2001) (citing United States v. Turcks, 41 F.3d 893, 898 (3d Cir.1994)). Thus, Peppers must establish that the error prejudiced the jury's verdict, and even if it did, we may — but are not mandated — to correct the error. Turcks, 41 F.3d at 897. In determining whether to correct the error, we consider the impact of the error on the "fairness, integrity or public reputation of judicial proceedings." Id. We do not need to go so far here, however, for we find that there is evidence — though not overwhelming or entirely consistent — from which the jurors could have found each element of the challenged offense.

2. Discussion

The government's charge that Peppers violated § 924(j) (Count I of the Second Superseding Indictment) alleged that he

did intentionally and knowingly unlawfully cause the death of Jorge Drake through the use of a firearm that the defendant, Ronnie Peppers, used and carried during and in relation to a drug trafficking crime for which he may be prosecuted in a court of the United States, that is conspiracy to distribute and possess with the intent to distribute controlled substances.

Peppers now claims that even if the evidence at trial permitted the jury to find that Peppers shot and robbed Drake, there was no evidence that the killing was in any way related to a conspiracy to distribute or to possess with the intent to distribute controlled substances. There was abundant testimony in the record that Peppers was a drug dealer.⁵ But Peppers argues that the government's strongest evidence that he ever conspired with someone to distribute controlled substances related to events that took place after Drake had died, namely, a purported agreement between Peppers and David Miller to distribute crack cocaine to a person in Lancaster in November 1997. There was no testimony presented to link Miller to Drake. However, Miller testified that Peppers had provided him with substances for distribution over the course of six months, even though the only testimony about an express agreement between the two to distribute controlled substances occurred in November 1997. We have little difficulty concluding that the jury could infer from Miller's testimony that an agreement to distribute with Miller had been in effect for some time prior to Drake's death. Further, and perhaps more importantly, there was evidence directly related to a conspiracy with Waters, the lookout during Drake's shooting, to distribute controlled substances on the night in question. Waters testified at a preliminary hearing prior to his death, so the preliminary hearing testimony was read into the record at trial. He testified that he and Peppers had seen Drake on the afternoon of Drake's death, and Peppers had arranged for Waters to act as lookout while Peppers robbed Drake. On cross-examination, Waters was asked what Peppers said to him specifically. He replied, "I'm going to do a stick-up, watch my back, you get...