409 F.3d 1293 (11th Cir. 2005), 04-11545, United States v. Henderson

Docket Nº:04-11545.
Citation:409 F.3d 1293
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Wyatt HENDERSON, Defendant-Appellant.
Case Date:May 23, 2005
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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409 F.3d 1293 (11th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,

v.

Wyatt HENDERSON, Defendant-Appellant.

No. 04-11545.

United States Court of Appeals, Eleventh Circuit

May 23, 2005

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Fred Warren Bennett, Bennett & Lawlor, LLP, Greenbelt, MD, for Defendant-Appellant.

Jennifer Levin, U.S. Dept. of Justice, Civil Rights Div., Jessica Dunsay Silver, U.S. Dept. of Justice, Washington, DC, for Plaintiff-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before BARKETT, HILL and FARRIS [*], Circuit Judges.

BARKETT, Circuit Judge:

Wyatt Henderson appeals his conviction and sentence after a jury trial for: (1) use of excessive force under color of law in violation of 18 U.S.C. § 242; (2) submitting a misleading and incomplete report of the incident to his supervisor with the intent to hinder, delay, or prevent the communication of information to a law enforcement officer relating to the commission of a federal offense in violation of 18 U.S.C. § 1512(b)(3); and (3) providing a false statement of material fact to an FBI agent in violation of 18 U.S.C. § 1001.

The charges against Henderson stem from accusations that he unlawfully pistol-whipped an arrestee, Christopher Grant, while a corporal with the Charlotte County, Florida, Sheriff's Department and then falsified the report of the incident. On appeal, Henderson asserts that the district court made various evidentiary errors that entitle him to a new trial, erroneously excluded police officers from jury selection in violation of his Sixth Amendment right to a grand and petit jury selected from a group representing a fair cross-section of the community, and erred in sentencing him to 87 months imprisonment.

I. BACKGROUND

Christopher Grant had been targeted by the Charlotte County Sheriff's Department's Vice and Organized Crime Component (VOCC) for selling marijuana. VOCC officers set up an undercover sting operation to arrest Grant, attempting to apprehend him in a parking lot. However, Grant fled the area in his minivan before officers could detain him.

Henderson, who had been stationed in an unmarked car within view of the parking lot, pursued and stopped Grant on the side of the road. Stopping his car almost parallel to Grant's van, Henderson pointed his service weapon at Grant and ordered him out of his car and onto his knees with his hands in view. Grant testified that he complied, exiting the car and kneeling on the ground with his hands on his head. 1 Detective Keith Bennett, who had arrived at the scene shortly after Henderson, testified that Henderson approached Grant with his gun still in his right hand, placed a knee on Grant's back and using his substantial weight advantage, "rode him to the ground." On the way down, Grant's chin struck the pavement. 2 At this time, Grant testified that he saw a "black object" coming towards his head, and was forcefully struck in the jaw with a force he compared to that of a "mack truck." Detective Bennett corroborated this testimony, stating that once Grant was prone and offering no resistance, he saw Henderson's gun arm move to strike Grant. In contrast, Henderson testified that he put his gun in his car before approaching Grant because

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he was not wearing a holster and did not want to physically confront Grant with a loose weapon. The defense also introduced evidence asserting that any injuries Grant suffered were the result of this initial impact with the pavement.

After the incident, both at the scene of the arrest and back at the police station, detectives testified that Henderson made incriminating statements to the effect that he had in fact struck Grant with his pistol. Notably, Detectives Bennett and Jack Collins stated that when informed that he was to write a report about what happened at the scene, Henderson threw a cellular telephone across the room and replied, "Jesus Christ, you can't pistol-whip anybody any more," or something to that effect, and said that he needed to wipe DNA off of his gun.

Detectives Bennett and Collins further testified that Henderson told other VOCC officers--his subordinates--not to include details of the arrest in their own police reports. Detective Bennett also testified that Henderson told him to deny that he had struck Grant. Allegedly fearing retaliation by Henderson, his boss, Bennett omitted any statement about a pistol-whipping. Bennett also testified that Henderson was very angry when he discovered Bennett was filing a supplemental report about the incident, and accused him of betrayal. Ultimately, one detective submitted a report directly to Henderson's supervisor stating that Grant questioned officers after his arrest about being pistol-whipped.

Henderson's report, on the other hand, stated that "no force" had been used in the arrest, and made no mention of striking Grant. In a subsequent interview with an FBI agent investigating Grant's allegations of excessive force, Henderson represented that he had thrown his gun into his car before approaching Grant, forming the basis of the charge that Henderson made a false statement "material" to the investigation.

Henderson's arguments on appeal relate to evidentiary rulings, jury selection and sentencing and we address each in turn.

II. EVIDENTIARY ISSUES

We review evidentiary rulings for an abuse of discretion. Morro v. City of Birmingham, 117 F.3d 508, 513 (11th Cir.1997), cert. denied, 523 U.S. 1020, 118 S.Ct. 1299, 140 L.Ed.2d 465 (1998). However, basing an evidentiary ruling on an erroneous view of the law constitutes an abuse of discretion per se. Conroy v. Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228, 1232 (11th Cir.2004).

Henderson argues that six evidentiary rulings entitle him to a reversal of his conviction: (1) excluding evidence of a domestic dispute involving Detective Collins, a witness for the government, which, Henderson asserts, would have shown Collins' bias against him; (2) permitting Collins to testify that he found Grant's version of the incident to be credible; (3) admitting the opinion of Grant's oral surgeon as to the cause of his facial injuries, when the government failed to give timely notice designating her as an expert witness; (4) excluding polygraph evidence favorable to Henderson; (5) excluding testimony by an expert on police procedure offered by Henderson; and (6) admitting evidence that the sheriff who had originally hired Henderson had been removed for misconduct. He also claims that even if these errors, viewed separately, were harmless, their cumulative effect was not, and entitles him to a new trial.

1. Bias Evidence Concerning Detective Collins

At trial, Henderson sought to show that Collins was biased against him because Henderson had transferred Collins

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from the VOCC to an undesirable traffic assignment. The court admitted evidence offered by Henderson, through the testimony of another officer, that Collins was transferred in part because he had been leaking proprietary VOCC information to his former supervisors. Henderson's counsel then asked the officer if there were additional reasons for Collins' transfer. The district court sustained the objection to the question and Henderson argues that this constitutes reversible error.

The government argues, as a threshold issue, that we may only review Henderson's objection to the exclusion of this "bias" evidence for plain error because Henderson never made an offer of proof to the trial court about what the excluded evidence would have shown. Collins v. Wayne Corp., 621 F.2d 777, 781 (5th Cir.1980). 3 Under Federal Rule of Evidence 103(a)(2), the objecting party must make an offer of proof to the court, or else show that the substance of the excluded evidence was apparent from the context of the proceeding, to preserve an objection to a ruling excluding evidence. Fed.R.Evid. 103(a)(2); United States v. Quinn, 123 F.3d 1415, 1420 (11th Cir.1997). Here, the government notes, there is no indication that the district court knew the nature of the evidence since Henderson did not identify it until a post-trial motion and his initial appellate brief. After trial, Henderson claimed that he wanted to present evidence that Collins was also dismissed because he had engaged in a domestic dispute with his wife that involved his service weapon. He argues that he could not have made an offer of proof at trial because the district judge did not permit bench conferences, requiring parties to reserve issues they did not wish to discuss before the jury to a time when the jurors were not required to be present in court. Moreover, he indicates that the district judge also forbade "speaking objections," where the objecting party explains the basis for its objection, allowing the objecting party to voice only a very abbreviated basis for its complaint.

The record contains no evidence that Henderson made any effort to advise the court at any time during trial of the nature of the evidence sought to be elicited, something that Henderson's counsel also admitted at oral argument. But, in any event, exclusion of this bias evidence was not an abuse of discretion even under a preserved error standard. Federal Rule of Evidence 403 allows a judge to exclude relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403. Even if relevant, the excluded bias evidence posed a danger of unfair prejudice that substantially outweighed any probative value it contained. Henderson had already admitted bias evidence regarding Collins' transfer, making this evidence less probative of bias and somewhat cumulative. Moreover,...

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