726 Fed.Appx. 498 (8th Cir. 2018), 17-1698, United States v. Mitchell

Docket Nº:17-1698
Citation:726 Fed.Appx. 498
Opinion Judge:PER CURIAM.
Party Name:UNITED STATES of America Plaintiff-Appellee v. Ezekiel MITCHELL Defendant-Appellant
Attorney:Melisa K. Zaehringer, Assistant U.S. Attorney, U.S. Attorney’s Office, Davenport, IA, for Plaintiff-Appellee Ezekiel Mitchell, Pro Se Donovan Scott Robertson, Stengel & Bailey, Rock Island, IL, for Defendant-Appellant
Judge Panel:Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.
Case Date:March 19, 2018
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 498

726 Fed.Appx. 498 (8th Cir. 2018)

UNITED STATES of America Plaintiff-Appellee

v.

Ezekiel MITCHELL Defendant-Appellant

No. 17-1698

United States Court of Appeals, Eighth Circuit

March 19, 2018

Submitted: December 15, 2017

Editorial Note:

UNPUBLISHED. (See Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 8th Cir. Rule 32.1A.)

Page 499

[Copyrighted Material Omitted]

Page 500

Appeal from United States District Court for the Southern District of Iowa— Davenport

Melisa K. Zaehringer, Assistant U.S. Attorney, U.S. Attorney’s Office, Davenport, IA, for Plaintiff-Appellee

Ezekiel Mitchell, Pro Se

Donovan Scott Robertson, Stengel & Bailey, Rock Island, IL, for Defendant-Appellant

Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.

PER CURIAM.

A jury found Ezekiel Mitchell guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court1 sentenced him to 120 months’ imprisonment. Mitchell thereafter filed a motion for a new trial, which the district court denied. Mitchell appeals, arguing that the district court (1) abused its discretion by denying his motion for a new trial, (2) abused its discretion when it admitted evidence from the show-up identification, and (3) violated his Sixth Amendment right to confront and cross-examine a witness against him when it admitted the 911 call. We affirm.

Mitchell and his girlfriend, Michelle Garcia, first met Faith McCombs on November 7, 2015, at a bar in Davenport, Iowa. After a dispute between Garcia and McCombs about Mitchell’s purchasing drinks, McCombs left the bar. Garcia followed McCombs outside, grabbed her by the hair, and threw her to the ground. As McCombs fought back, Garcia yelled for Mitchell to assist her. Justice Hill, McCombs’s ex-boyfriend, tried to break up the altercation, whereupon Mitchell stepped in and pulled out a gun. As Hill then ran from the scene, Mitchell struck McCombs in the head with the gun.

The fight having ended, Mitchell walked through the crowd of people that had gathered outside of the bar, approached two men, pointed his gun at each bystander, and asked, "Are you the guy?" Upon hearing their denials, Mitchell— still waving his gun— then began walking towards another group of bystanders, at which point one of the onlookers told Mitchell that Hill had left down an alley. Mitchell and Garcia then left the scene of the fight and started down the alley.

An onlooker had called 911 during the fight and reported the incident, providing the dispatcher with a description of the suspect’s clothing and his physical attributes, and stating that the suspect had been waving a gun and had left down an alley.

Police officers responded to the call minutes later. As they...

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