United States v. Perkins

• Decision Date: 29 November 2006
• Docket Number: No. 05-4798.,05-4798.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Robert PERKINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 150

470 F.3d 150

UNITED STATES of America, Plaintiff-Appellee, v. Michael Robert PERKINS, Defendant-Appellant.

No. 05-4798.

United States Court of Appeals, Fourth Circuit.

Argued: September 21, 2006.

Decided: November 29, 2006.

ARGUED: Michael Oliver Hueston, New York, New York, for Appellant. Christopher Chen-Hsin Wang, United States Department of Justice, Civil Rights Division, Appellate Section, Washington, D.C., for Appellee. ON BRIEF: Richard H. Rosenberg, New York, New York, for Appellant. Bradley J. Schlozman, Acting Assistant Attorney General, David K. Flynn, United States Department of Justice, Civil Rights Division, Appellate Section, Washington, D.C., for Appellee.

Before WILLIAMS and GREGORY, Circuit Judges, and THOMAS E. JOHNSTON, United States District Judge for the Southern District of West Virginia, sitting by designation.

Affirmed by published opinion. Judge WILLIAMS wrote the opinion, in which Judge GREGORY and Judge JOHNSTON joined.

OPINION

WILLIAMS, Circuit Judge:

Michael Perkins, a Petersburg, Virginia city police officer, was convicted by a jury of kicking and causing bodily injury under color of law to Lamont Koonce, a motorist stopped for a traffic violation who fled from the police, thus willfully depriving Koonce of his constitutional right to be free from unreasonable force, a felony¹ under 18 U.S.C.A. § 242 (West 2000). Perkins challenges both the admission of opinion evidence at trial and the sufficiency of the evidence. Finding no reversible error, we affirm.

I.

Shortly before midnight on October 13, 2003, Petersburg police officers Michael Tweedy and David House observed a car traveling with no headlights on and damage to its front end. The officers, in separate vehicles, followed the car, pulled it over, and approached the driver to issue a warning or ticket for driving at night without lights. After the officers assisted the driver, Lamont Koonce, out of his car, Koonce broke loose from their hold and fled on foot. House and Tweedy gave chase.

During the chase, Koonce leaped over a fence "like a Superman" and fell on his right side. (J.A. at 236.) Koonce quickly gathered himself and kept running until finally, after a lengthy pursuit, Tweedy caught him and forced him face-down onto the ground, with both of his arms pinned beneath his body. At some point, Tweedy also used pepper spray on Koonce.

After Tweedy moved away from Koonce, House approached Koonce's left side to handcuff him. House attempted to remove Koonce's left arm from under his body, but Koonce resisted. When Koonce finally released his left arm, Koonce grabbed House's ankle. House responded by striking Koonce with a closed fist twice on the arm and once in the underarm to try to free his ankle, but Koonce maintained his hold. Tweedy then forcefully stomped on Koonce's head three times. When Koonce continued to resist, Tweedy stomped on his head three more times. After this second round of stomps, Koonce said, "[a]ll right, man, all right," and allowed House to pull his left arm out from under him and place a handcuff on his wrist. (J.A. at 248, 278.)

Tweedy made a radio call stating that he had a subject in custody. Sergeant John Waldron responded by making a radio call for backup. At this point, House believed that he and Tweedy did not need assistance because Koonce's left wrist was in a handcuff. House radioed Sergeant Waldron and told him that the situation was under control. Waldron responded by telling all officers to disregard his earlier call for backup.

Despite this call, Officer Benjamin Fisher responded to Tweedy's earlier call and arrived at the scene soon thereafter. House asked Fisher to help him secure Koonce's right arm. Tweedy then walked over and kicked Koonce two or three times in the side and stomped on Koonce's head three more times.

A few moments later Perkins, an off-duty Petersburg police officer, arrived at the scene. By the time Perkins arrived, both House and Fisher believed that Koonce was under control, as the bloodied, motionless Koonce was lying face-down on the ground and was not "going anywhere." (J.A. at 300, 403.) Without consulting or speaking with any of the officers standing nearby, Perkins immediately ran up to Koonce and delivered a running kick to Koonce's side. Perkins then kicked Koonce a second time, with slightly less force. Immediately after Perkins's second kick, Tweedy stomped on Koonce's head two more times before Perkins grabbed Tweedy and pulled him away from Koonce. Fisher then helped House place a handcuff on Koonce's right wrist.

Koonce sustained a number of life-threatening injuries, including multiple skull fractures, multiple facial fractures, a pneumothorax (puncture) to his right lung, bleeding in and contusions on the brain, and bruising on his left lung. At the time he was admitted to the Southside Regional Medical Center, Koonce was unconscious; he remained so for several hours.

At the hospital, Koonce was tested on the Glasgow coma scale, a clinical scale that assesses impaired consciousness. Koonce received a score of 1 for mental status, indicating that he did not open his eyes; a score of 1 for verbal response, indicating that he was not speaking; and a score of 3 for motor response, indicating that he moved away in response to pain. Due to the severity of his injuries, the still-unconscious Koonce was transferred to the Medical College of Virginia (MCV) hospital later that night.

On November 16, 2004, a grand jury indicted Perkins.² The indictment charged that Perkins, while acting under color of state law, kicked and caused bodily injury to Koonce, thus willfully depriving Koonce of his right to be free from unreasonable force, a felony under 18 U.S.C.A. § 242.³ The case proceeded to a jury trial.

At trial, Perkins argued that his kicks to Koonce were reasonable under the circumstances. In response to this argument, the Government offered opinion testimony from several officers regarding the reasonableness of Perkins's use of force against Koonce. Of the officers that testified, the Government offered only Inspector Carter Burnett as an expert under Federal Rule of Evidence 702.

Officers House and Fisher—both eyewitnesses to Perkins's kicks to Koonce— testified about their departmental training in defensive tactics and the use of force. Using a use-of-force dummy, they both demonstrated the kicks that they witnessed Perkins deliver to Koonce. The Government asked House whether, based on his experience and his assessment of the situation, he saw "any law enforcement reason for those kicks[.]" (J.A. at 258.) Perkins objected to this question on the ground of "ultimate issue."⁴ (J.A. at 259.) The district court overruled the objection, and House answered that he did not see any reason for the kicks.⁵ Likewise, in response to the Government's question whether, based on his experience and his assessment of the scene, Perkins's kicks to Koonce were "reasonable," Fisher answered, "No." (J.A. at 376.) Fisher also testified that, in his opinion, the kicks were not necessary and that there were other techniques he was trained to use that would have been appropriate. Perkins did not object to any of Fisher's testimony.

Other officers who had not witnessed Perkins's kicks to Koonce also testified about the reasonableness of the kicks. In response to the Government's question whether it would have been appropriate for an officer to "deliver a hard kick into the side of [a motionless] individual lying on the ground," Corporal Stan Allen, Perkins's defensive tactics instructor, replied, "[n]ot unless [the individual] was armed with a weapon and w[as] threatening the officer." (J.A. at 571.) Perkins only made a general objection to Allen's testimony that reasonable officers would not disagree with Allen's conclusion that Perkins's kicks were inappropriate. Similarly, Sergeant Philip Jones testified that kicks like those Perkins delivered to Koonce were "not appropriate." (J.A. at 591.) He also testified that reasonable officers would not disagree with his opinion. Sergeant Waldron testified that kicking a motionless person on the ground was not "reasonable" under the General Orders of the Petersburg Police Department. (J.A. at 614.) Perkins did not object to Jones's or Waldron's testimony.

Inspector Burnett, the Government's "force expert," testified regarding the classes he taught in defensive tactics and controlling suspects. Burnett stated that he saw no "legitimate" law enforcement reason for Perkins to kick Koonce. (J.A. at 526.) In response to a number of hypotheticals positing a suspect lying motionless on the ground with one arm in a handcuff, Burnett testified that it was inappropriate for an officer to kick a suspect in that posture. Burnett also testified that reasonable officers would not disagree with his conclusions. Perkins's sole objection was to the Government's use of the term "legitimate" in its question to Burnett.

The Government also introduced expert medical testimony about the cause of Koonce's injuries. Dr. Jamal Farran, Koonce's attending physician at MCV and one of the Government's medical experts, testified that the likely cause of Koonce's punctured right lung and bruised left lung was blunt force trauma. When asked about Koonce's Glasgow coma test, Dr. Farran testified that an individual can react to painful stimuli while unconscious.

Both at the conclusion of the Government's case-in-chief and after the Government rested, Perkins moved for acquittal under Federal Rule of Criminal Procedure 29 on the ground that the Government had failed to show that it was Perkins's kicks, as contrasted with Tweedy's kicks, that caused Koonce "bodily injury" under 18 U.S.C.A. § 242.⁶ The court twice denied Perkins's motion, stating that "[u]nder the case law, . . . just the kicking alone, the infliction of pain, is a bodily injury." (J.A. at 603.) In its instructions to the jury, the court defined "bodily injury" as...