475 F.3d 1013 (8th Cir. 2007), 05-3019, United States v. Cannon
| Citation | 475 F.3d 1013 |
| Party Name | UNITED STATES of America, Plaintiff-Appellee, v. Amesheo D. CANNON, Defendant-Appellant. |
| Case Date | January 31, 2007 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Eighth Circuit |
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Submitted: October 19, 2006
Appeal from the United States District Court for the Eastern District of Missouri.
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[Copyrighted Material Omitted]
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Jennifer Herndon, argued, Florissant, MO, (Christopher Edward McGraugh, Leritz & Plunkert, St. Louis, MO, on the brief), for appellant.
Cristian M. Stevens, argued, Asst. U.S. Atty., St. Louis, MO (Thomas E. Dittmeier, Asst. U.S. Atty., on the brief), for appellee.
Amesheo D. Cannon, Pollock, LA, pro se.
Before MELLOY, BENTON, and SHEPHERD, Circuit Judges.
MELLOY, Circuit Judge.
Amesheo D. Cannon was indicted on murder for hire and conspiracy to commit murder for hire charges pursuant to 18U.S.C. §§ 1958 and2. The government
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sought the death penalty. After hearing the evidence at trial, the jury convicted Cannon of the conspiracy charge, but acquitted him of murder for hire, and sentenced him to life in prison without the possibility of parole. Cannon appeals the trial court's1 denial of his motion for a judgment of acquittal based on the insufficiency of the evidence. He also appeals the court's decisions to remove a juror who claimed to have emotional problems, to deny Cannon's motion to adjourn trial to take a Rule 15(a) deposition, and to exclude from evidence the government's file on a co-conspirator. We affirm.
I. Background
Because Cannon challenges, among other things, the sufficiency of the evidence, we present the facts in the light most favorable to the verdict. United States v. Shepard. 462 F.3d 847, 853 (8th Cir. 2006).2
In the early morning hours of August 21, 2000, police found Coy Smith shot to death in his bed. Smith was a private citizen who had been working with law enforcement in the area to make controlled drug purchases from local drug dealers. On August 10, 2000, Smith had testified against Cannon's friend, Tyrese Hyles ("Tyrese"), at a preliminary hearing in a state drug case. At the time of Smith's murder, Tyrese was being held in Pemiscot County Jail in Caruthersville, Missouri pending trial in the state drug prosecution. Cannon lived in Memphis, Tennessee, where he was under parole supervision. Tonya Johnson Hyles ("Tonya"), Tyrese's wife, lived in Caruthersville, Missouri.
A. Criminal Conduct
After Smith testified against Tyrese at an August 10,2000 preliminary hearing, Tyrese approached David Carter, Tyrese's cellmate in the Pemiscot County Jail, and asked him if he would kill Smith. Tyrese offered to bail Carter out of jail and said he would give Carter a Pontiac Parisienne in return for killing Smith. Carter agreed. Tyrese then contacted his wife, Tonya, to make the necessary arrangements to bail Carter out of jail.
That same day, Tonya paid a bondsman to bail Carter out of jail. The collateral put up to secure the bond was the Pontiac Parisienne that Tyrese had promised Carter for the murder. The bail papers showed Carter as the owner of the car. After Carter was out of jail, Tonya drove him home in the Pontiac Parisienne.
Not long after he arrived home, Carter received a three-way call from Tyrese. Tyrese had called Tonya and she patched him through to Carter. Tyrese told Carter to go over to Tonya's house. Once he was there, Carter received another call from Tyrese, telling Carter that the murder weapon was on its way. Shortly thereafter, Samuel Anderson delivered a stainless steel, nine millimeter, semi-automatic handgun with a black handle to Tonya's house. Tonya had previously contacted Anderson, telling him that they were
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going to "take care of Coy's ass" and that Tyrese had sent her to get the gun. After Anderson left, Tonya turned the gun over to Carter.
Phone records showed several phone calls made to Tonya's residence on the evening of August 10,2000. Two calls originated from Tyrese's cell in the Pemiscot County Jail. The calls were made at 7:50 p.m. and8:34p.m. and were consistent with the time frame when Tyrese was calling Carter to set up the transfer of the gun. Four calls came from Cannon's mother's house, where Cannon lived, in Memphis. These calls were at 8:11 p.m., 8:23 p.m., 8:39 p.m., and 8:43 p.m. The final call was fifty-one minutes long and overlapped with the second call from Tyrese's jail cell.
Several days later, April Leatherwood, Cannon's one-time girlfriend, received a call from Cannon. Cannon told her Tonya was driving him to Caruthersville from Memphis.
Anderson subsequently took the gun back from Carter and gave it to Cannon after Cannon arrived in Caruthersville. Cannon had asked Anderson for the gun and said he was going "to handle that for Little Tyrese."
On August 20, the afternoon before Smith's murder, Cannon was at the home of Omar Wiley. Wiley lived across the street and four houses down from Smith. Wiley saw a silver gun with a black handle in the Pontiac Parisenne, which Cannon was already driving. While Cannon was at Wiley's house, Smith drove by. When Cannon saw Smith, Cannon told Wiley, "I'm going to kill that nigger. He got my boy."
Later that evening, Cannon went to Leatherwood's house. Leatherwood lived around the corner from Smith's house. Before Leatherwood went to bed, she saw Cannon cutting eye holes out of a black scarf. At approximately 2:30 a.m. on August 21, Cannon woke Leatherwood and told her to take the Pontiac Parisenne to Tonya so Tonya could use it for work. Leatherwood returned to her apartment at about 2:45 a.m. and Cannon was not there. Cannon returned at about 3:00 a.m. with a juvenile. Cannon and the juvenile then left Leatherwood's house.
About twenty minutes later, Cannon returned to Leatherwood's apartment, where he soaked his pants in the bathtub and listened to a police scanner. When he heard a homicide report, Cannon called Wiley and told him to look out his window. Emergency vehicles were already at Smith's house.
An autopsy revealed that Smith had been shot three times with a nine millimeter, semi-automatic weapon. The fatal shot was behind the right ear, at close range. Smith had been shot two additional times in the back. The investigation also found that the phone wires had been cut in Smith's house and the front light bulb had been unscrewed.
Several days after the murder, Anderson asked Cannon what he did with the gun. Cannon told him not to worry, he had taken care of it. Cannon then told Anderson about the murder. He said he went to Smith's house and unscrewed the front light bulb, disconnected the door knob, and entered the house. He said he went to the bedroom and shot Smith behind the ear. He said Mrs. Smith jumped out of the bed and hid in the closet. He said he then shot Smith again.
About a week after Smith was killed, Wiley overheard Cannon and Tonya arguing over the Pontiac. Cannon told Tonya that Tyrese had told Cannon he could have the car.
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On August 29,2000, Cannon was pulled over and issued a traffic summons by Captain Tony Jones of the Caruthersville Police Department. Cannon was driving the Pontiac Parisienne he had received from Tyrese. During discussions with Captain Jones about the car, Cannon told Captain Jones that Tyrese had given him the car.
B. Pretrial Events
On October 18, 2001, the government indicted Cannon and Tyrese Hyles on murder for hire and conspiracy to commit murder for hire charges in violation of 18 U.S.C. §§ 1958 and 2. Tonya Hyles had been indicted on June 14, 2001, on murder for hire charges only. Her indictment was dismissed on October 24, 2001. .3The government filed a superseding indictment against Cannon and Tyrese on December 13, 2001, charging the same crimes.
While Cannon was being held in the Cape Girardeau County Jail, another prisoner, Marques Terry, overheard Cannon talking to Myron Woods, who was also a prisoner. Cannon told Woods he came to Caruthersville from Memphis "to shoot some dude" and that he had gotten the gun from Tonya.
On November 21,2002, the government filed a second superseding indictment, adding grand jury findings on aggravating circumstances. The government filed a Notice of Intent to Seek the Death Penalty on December 6, 2002, and filed an Amended Notice of Intent to Seek the Death Penalty on March 4, 2003. Cannon moved for, and was granted, a motion to sever the parties for trial on June 27, 2003.
C. Trial
Voir dire for Cannon's trial began on February 28,2005. A death-qualifiedjury was empaneled on March 3, 2005. One day after the jury was empaneled and three days before trial was to begin, Juror Moenster submitted a letter from her doctor to the trial court stating that she was "emotionally wrought over being on the jury." The court brought the issue to the parties' attention the morning trial was to begin.
The court expressed skepticism, and felt the need to "talk to [Ms. Moenster] and ferret her out." While being questioned at the bench, Ms. Moenster stated, " I am not able to sit here for that length of time and listen to everything. Listening to people talk is really hard for me, and I'm just not comfortable. I get shaky, and I'm just totally overwhelmed by it." When asked why she had not expressed her emotional issues previously, Ms. Moenster replied, "I thought someone was going to talk to me before I was picked, and I was going to say something. No one brought up emotional problems." She stated that she did not respond to the voir dire questions regarding medical issues because she did not consider her emotional problem to be a medical problem and "[i]t is just hard to talk about this in front of a whole group of people." Under further questioning by defense counsel, Ms. Moenster said, "I don't take stress, and this is just stressful for me." The government observed that Ms. Moenster's "voice is shaking . . . [and] [s]he is ready to go...
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