U.S. v. Davis

• Decision Date: 20 August 2009
• Docket Number: No. 08-1349.,08-1349.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas A. DAVIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

577 F.3d 660

UNITED STATES of America, Plaintiff-Appellee, v. Thomas A. DAVIS, Defendant-Appellant.

No. 08-1349.

United States Court of Appeals, Sixth Circuit.

Argued: April 24, 2009.

Decided and Filed: August 20, 2009.

ARGUED: Jeffrey J. O'Hara, Law Office, Grand Rapids, Michigan, for Appellant. Phillip J. Green, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee. ON BRIEF: Jeffrey J. O'Hara, Law Office, Grand Rapids, Michigan, for Appellant. Phillip J. Green, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.

Before: COLE and CLAY, Circuit Judges; CLELAND, District Judge.^*

OPINION

CLELAND, District Judge.

Defendant-Appellant Thomas A. Davis appeals his conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Defendant challenges the district court's findings on the admissibility of the contents of an emergency 911 call made by a woman who would later be called as a witness, and other statements made by an unidentified woman who alerted a passing police officer. Defendant also argues that, based on the record, no rational jury could have found that he possessed the firearm, either actually or constructively. We disagree and will AFFIRM.

I. BACKGROUND

A. Factual Background

In the early days of July, 2007, Defendant decided to go joyriding in a rented car accompanied by his friend, Senecca McElwee, and a gun. Specifically, the evidence adduced at trial established that, on July 7, 2007, McElwee paid Thomas Latham fifty dollars to rent a car for him. Latham rented a blue 2007 Chevy Cobalt from Enterprise Rent-A-Car, and immediately turned it over to McElwee. McElwee and Defendant spent the next several days together, taking turns driving the car.

On July 10, 2007, seventeen-year-old Ronica McIntosh was walking with her teenage cousin and two small children when she saw a man she recognized as Defendant riding in a vehicle, and was able to see that he was holding a gun. McIntosh testified that she was alarmed for two reasons: because she saw the gun and because she thought Defendant had been involved in a murder which had occurred about a week earlier at the Brick House Bar in Grand Rapids, Michigan.¹ McIntosh felt responsible for the safety of the small children and picked up her pace. She immediately called 911, but her initial 911 call was dropped. When she called back and was reconnected, she recited the license plate number she saw as BEW 7533, and said that the car was a Ford Focus. The plate number was the same as that registered to the Cobalt that Latham had rented for McElwee, and Special Agent Michael Heffron would later testify that a Ford Focus looks similar to a Chevy Cobalt. Even though she had seen only one gun, McIntosh said that she told the 911 dispatcher that Defendant had two because she thought this would make the police respond more quickly. She also told the dispatcher it had been five minutes since she saw him, but she testified that this was incorrect and it had only been between thirty seconds and a minute.

The following day, on July 11, 2007, Grand Rapids Police Officer Michael LaFave, having been waved down by a woman on the street saying that she had recently seen Defendant with a gun and in a car bearing license plate BEW 7533, relayed to his dispatcher all the information she gave him—Defendant's name, the car's description, the license plate number, and that Defendant was said to have a gun. This information was transmitted by LaFave over police radio, and anyone with a police scanner could have heard his statements.

Douglas testified that, on July 11, 2007, he along with Defendant, McElwee, and Christopher Jeffries were driving around in the Chevy Cobalt. At some point, Defendant left the car and entered a residence. When he returned, Defendant stated that "somebody called the boys on us," which Douglas understood to mean that someone had reported them to the police. The four men drove the car back to a house on Calvin street, where they had visited earlier in the day. The men smoked marijuana and, at some point, McElwee and Defendant went outside by themselves. When they returned, they announced that they had a plan to change the rental car for another. The men then met Latham, who had originally rented the Cobalt, and Latham exchanged the car at Enterprise for a Chrysler PT Cruiser.

The Grand Rapids Police Department, together with the Federal Bureau of Investigation ("FBI"), followed up on the tip that Officer LaFave received from the unidentified woman. The FBI ran the license plate BEW 7533 through the department's records and found that it was registered to Enterprise. Enterprise informed Special Agent Patrick Kelly that the license plate was registered to a Chevy Cobalt. When Latham returned to Enterprise to exchange the Cobalt for the PT Cruiser on July 11, 2007, Enterprise contacted FBI agents. Agents drove to the rental agency and placed the PT Cruiser under surveillance. The case agents and the Grand Rapids officers followed the PT Cruiser a short distance back to Grand Rapids, where the officers conducted a traffic stop. Inside the car were four men, including Defendant, who was in the front passenger seat at the time of the stop. All four men were ordered to put their hands in the air, and all of them complied except Defendant. Instead, Defendant was observed making a "furtive movement" and bending over in an apparent attempt to put something under his seat. Eventually, however, Defendant complied with police commands.

Grand Rapids police officers searched the car and found a firearm under the passenger seat. Officer James Wojczynski testified that he immediately looked under the passenger seat because of Defendant's "obvious stuffing actions under the seat." The officers also found a small baggie of marijuana under the seat, positioned behind the pistol. The gun was not visible, but was about halfway under the seat, with its handle facing toward the front and its barrel facing toward the rear. There were only three or four inches between the bottom of the seat and the floorboard. Officer Wojczynski testified that it would have been "very unlikely" that Defendant could have thrown the baggie of marijuana past the gun under the seat.

Defendant was taken into custody where he was given his Miranda warnings, which he voluntarily waived. Defendant originally denied placing anything under his seat and then later stated that he put the marijuana under the seat. Defendant denied placing the gun under the seat and denied that the gun was his. The three other occupants of the car also denied knowledge of the gun.

B. Procedural Background

On August 9, 2007, Defendant was indicted for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 921(a). A jury trial began on November 13, 2007. Defendant objected to the admission of (1) a July 11, 2007 statement made by the unidentified woman to Officer Michael LaFave indicating that she had seen Defendant with a handgun and (2) similar statements made on July 10, 2007 by McIntosh during a 911 telephone call. The district court overruled the objections, finding that the first statement was not being offered to prove the truth of the matter asserted but rather to explain the police officers' subsequent actions, and concluding that the 911 call fell within the hearsay exceptions of excited utterance and present sense impression. At the close of the Government's case, Defendant moved for a directed verdict, which was denied. The Government contends that Defendant did not renew his motion at the close of all the proofs.²

The jury returned its guilty verdict on November 15, 2007. On February 29, 2008, District Court Judge Robert Holmes Bell sentenced Defendant to forty-eight months in custody. Defendant timely appealed on March 12, 2008.

II. ANALYSIS

A. Alleged Evidentiary Errors

1. Standard of Review

"An appellate court reviews all evidentiary rulings—including constitutional challenges to evidentiary rulings—under the abuse-of-discretion standard." United States v. Schreane, 331 F.3d 548, 564 (6th Cir.2003) (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)); see also United States v. Wright, 343 F.3d 849, 865 (6th Cir.2003) ("All evidentiary rulings, including hearsay, are reviewed for abuse of discretion."). "An abuse of discretion will be found upon a `definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.'" Schreane, 331 F.3d at 564 (quoting Super Sulky, Inc. v. U.S. Trotting Ass'n, 174 F.3d 733, 740 (6th Cir.1999) (internal quotation marks and citation omitted)).

"The applicable standard of review for an evidentiary ruling of the district court where the evidentiary issues relate to a claimed violation of the Sixth Amendment is the de novo standard." United States v. Robinson, 389 F.3d 582, 591-92 (6th Cir.2004) (citing United States v. Lloyd, 10 F.3d 1197, 1216 (6th Cir.1993) ("Because, here, the evidentiary issues relate to a claimed violation of the Sixth Amendment ... we review the district court's rulings de novo.")).

2. Hearsay Rulings

Defendant first challenges the admission of the statements made by the unidentified woman to Officer LaFave. Defendant contends that the statements were improperly admitted, relying on Federal Rule of Evidence 802, which provides that hearsay is not admissible except under certain exceptions. "Hearsay" is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c); see also United States v. Childs, 539 F.3d 552, 559 (6th Cir.2008).

The district court ruled before trial, in response to Defendant's motion in limine, that the woman's statement could be admitted because it was being offered not to...