U.S. v. Lucky
| Decision Date | 19 June 2009 |
| Docket Number | Docket No. 08-1939-cr. |
| Citation | 569 F.3d 101 |
| Parties | UNITED STATES of America, Appellee, v. Damon LUCKY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Norman Trabulus, New York, N.Y., for Defendant-Appellant.
Before CALABRESI, KATZMANN, Circuit Judges, EATON, Judge.*
BACKGROUND
A firefighter witnessed a shooting on a street corner in Brooklyn and reported to the New York Police Department ("NYPD") that he had seen a black male, who was 5'6" tall, fire several shots at a crowd of people and flee in a dark sport utility vehicle ("SUV") with New York State license plate number DBM 2474. Two days after the shooting, a group of police officers patrolling the same area saw a dark SUV with New York license plate number DBM 2474, which they recognized from the report of the shooting. The officers briefly followed the SUV, confirmed with the local police precinct that the NYPD was still searching for that vehicle, and pulled it over. At the time, the police officers did not recall from the report of the shooting that the suspect was 5'6" inches tall; nor did they seek to get more details about the suspect.
The SUV's windows were darkly tinted and the police officers could not see inside. Officers approached the driver's side and asked the driver, Defendant Damon Lucky, to roll down the windows and show his hands. After some resistance to police requests, officers opened the driver's side door and asked Defendant to step out of the vehicle. Defendant refused to do so, officers repeated the order, Defendant refused again, and the officers pulled him from the car. As officers removed Defendant from the SUV, Defendant moved his right arm, "pull[ing] down towards the front" as if reaching for his waist band. Officers placed Defendant on his stomach and handcuffed him. At this point, it was clear that Defendant was not 5'6" tall, but was much taller. The officers then rolled Defendant over, onto his back, and as they did so, Defendant's jacket "opened up a little bit" allowing police to see a gun tucked into his wasteband. Police placed Defendant under arrest and recovered a fully-loaded 9-millimeter semi-automatic handgun from his waistband.
Defendant was indicted for being a felon in possession of a firearm. He was arraigned on the indictment on January 26, 2005, and a magistrate judge entered an order of excludable delay until February 23, 2005, the date of the initial status conference before the District Court. At a series of status conferences, the District Court entered orders of excludable delay, stating that it was in the interests of justice and with the consent of the parties.
At a status conference on May 19, 2005, defense counsel reported that it had not yet considered the possibility of a plea bargain because Defendant's "main focus" had been on "trying to put together a bail package." The District Court then referred Defendant's bail application to a magistrate and said that it would "exclude" the time until June 23, 2005, the next scheduled status conference, for plea negotiations. There was no statement that the exclusion was in the interests of justice. At the June 23, 2005 status conference, defense counsel reported that a plea bargain was unlikely, and "it appears that this case is headed towards trial."
Defendant moved to suppress the handgun that police officers recovered during the traffic stop. The District Court denied the motion. The court found the police officer's testimony to be credible and reasoned that once police officers saw an SUV matching the description of the vehicle involved in a recent shooting with the same license plate number, they were justified in conducting a brief stop. The court then explained that the police officers behaved reasonably in asking the occupants of the car to step out of the vehicle, "where the basis for the stop is a shooting that had occurred ... with respect to that vehicle two days before," and that the police officers were justified in forcibly removing Defendant from the car when he refused to comply with the officers' multiple requests to leave the vehicle.
When jury selection was scheduled to begin, several pretrial motions had not yet been adjudicated. Defendant refused to take part in jury selection, stating that he would not change into civilian clothing, and insisting that before jury selection, the court must decide the various pretrial motions. The magistrate running jury selection told Defendant that he would be better off wearing civilian clothing and that the District Court would address pretrial motions prior to the start of trial. Defendant refused, insisting "[t]he marshals can escort me out of here and take me back." The magistrate once again explained that Defendant had nothing to gain by delaying jury selection, and Defendant stood up and declared
The magistrate ordered Defendant to sit down and explained that if he left he would be waiving the right to be present for jury selection. At this point, Defendant and the magistrate had a convoluted exchange about waiver. Defendant insisted "I'm going to the back, but I'm not waiving anything." The magistrate stated that Defendant replied The magistrate then ordered Defendant to "stay in the room if you're not waiving your right." Defendant insisted "I do not wish to be here." The magistrate replied "then you're waiving your rights." Defendant responded "I don't believe that I am," and the magistrate stated Defendant yet again stated that he was not: The magistrate answered, "I'm telling you that," and then asked "[w]hat is your choice?" Defendant replied "I'm not going to be here," added "I'm also not waiving anything," and left the courtroom.
After Defendant left, the magistrate stated that it would be best if the trial judge would speak with Defendant prior to jury selection and conduct jury selection. The judge explained to Defendant that he would not be harmed by raising any issues not yet decided by the court after trial. The judge said that he would proceed with jury selection in the afternoon and confirmed that Defendant would be present in the courtroom in regular clothing. Defendant said that he would.
That afternoon, defense counsel contacted the judge. Defendant communicated that "he was peacefully protesting by not putting on [civilian] clothing" or participating in jury selection "until the Court decides all the motions." The judge advised Defendant that this was not a wise choice, and Defendant insisted "[t]hat is my decision," adding "I am not waiving any thing, any rights, but that is my decision." The judge looked into putting on a feed of the jury selection in the holding cells so that Defendant could watch. When he was told that this was not possible, the judge ordered that arrangements be made to put Defendant in the Judge's robing room so that he could hear the proceedings and ordered that "[a]t appropriate points we will take breaks and allow [defense counsel] to consult with him."
Defendant left the courtroom and defense counsel consulted with him. Defense counsel then notified the court that Defendant did not "wish to participate in this proceeding at all by audio or video ... [or] to listen to the proceeding or anything else or have me consult with him for that matter." The Marshals confirmed that Defendant refused to come out of his cell and would have to be removed by force. At that point, the judge observed that he was not required to force Defendant out of his cell and asked whether Defendant would "come out and talk to me for a moment" so that Defendant could be advised "of his foolishness by his course of conduct." Defendant would not.
At that point, the judge announced that he would "try again" the next day to convince Defendant to participate and, if not, proceed with jury selection. Defense counsel made clear that Defendant "did not wish to participate any further in this matter ... and that he did not wish to participate by way of audio or video." Defense counsel explained that Defendant had been "advised ... of the terrible risk that he was taking by embarking on this kind of conduct." Jury selection began with Defendant absent. The judge told prospective jurors that Defendant was not present and that he hoped he would be there the following day. He also instructed the jurors to "draw no inference from that fact ... or in any way consider that fact."
The following morning, Defendant came to court and again insisted that he would not take part in jury selection until all pretrial issues were resolved. The judge once again advised Defendant to attend jury selection, and Defendant responded, Defendant returned to his cell, and his lawyer consulted with him. Defense counsel then informed the court that Defendant still would not participate and told the court that Defendant was receiving transcripts of the proceedings. At that point, the Government asked the court to confirm that Defendant had made a knowing...
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