U.S. v. Williams

• Decision Date: 05 March 1990
• Docket Number: No. 88-1375,88-1375
• Parties: UNITED STATES of America, Appellee, v. Keith WILLIAMS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1430

897 F.2d 1430

UNITED STATES of America, Appellee, v. Keith WILLIAMS, Appellant.

No. 88-1375.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 11, 1989.

Decided March 5, 1990.

Steven Feldman, Hauppage, N.Y., for appellant.

Richard L. Poehling, St. Louis, Mo., for appellee.

Before JOHN R. GIBSON, WOLLMAN and BEAM, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Keith Williams was convicted ¹ of illegal possession of a firearm by a convicted felon ² in violation of 18 U.S.C. Secs. 922(g)(1) and 924(a)(1)(B) (1988), and was sentenced to a prison term of four years. We affirm the conviction.

On the afternoon of April 25, 1987, St. Louis Police Officer John McKenzie, on patrol in his marked police car, observed a white Oldsmobile exceeding the posted speed limit traveling east on Page Boulevard. Officer McKenzie paced the Oldsmobile until the occupants of the car noticed him and turned into a gasoline service station located on the southwest corner of the intersection of Page and Grand Boulevards. Officer McKenzie drove his car to a vantage point, on the northwest corner of the intersection, with a clear view of the Oldsmobile. From this position he saw the driver, later identified as Willie Young, pumping gas, and the passenger, later identified as Williams, paying for the gas and carefully surveying the area as he walked back to the car. Once Williams returned to the car he reached through the open passenger door, removed a black pouch, pulled a handgun out of his waistband, placed it in the pouch, and put the pouch into the glove box area of the car.

Young and Williams then re-entered the car and proceeded south on Grand Boulevard. Officer McKenzie followed, pulled over the Oldsmobile, called radio dispatch, and then approached the car. He first asked Young to step out and then requested his operator's license. When Young responded that he did not have a license, Officer McKenzie informed him that he was under arrest for speeding and not having an operator's license. Officer McKenzie then told the men that he had been observing the car and that he intended to search it. Young was frisked and told to stand at the rear of the car. Williams was then ordered out of the car and also frisked. Officer McKenzie then placed Williams under arrest for possession of a gun and advised him of his rights to remain silent and to be represented by an attorney.

Officer McKenzie then searched the car, and, upon finding the glove box locked, asked both Young and Williams for the key. Both men denied having the key, but Officer McKenzie, after conducting additional searches, located it hidden in one of Williams' shoes. A search of the glove box yielded a zippered black pouch containing a loaded .38 caliber Smith and Wesson revolver and $2,740 in United States currency.

Williams was taken to the police station and again advised of his rights to remain silent and to have an attorney present. After indicating that he understood his rights, Williams told Officer McKenzie that he was accompanying Young as a bodyguard and that they had been on their way to purchase narcotics. Williams denied, however, owning or possessing the gun.

Williams was charged with carrying a concealed weapon in violation of 18 U.S.C. sections 922(g)(1) and 924(a)(1)(B), tried, and convicted. This appeal followed.

I.

Williams argues initially that the government failed to prove his guilt beyond a reasonable doubt based on Officer McKenzie's testimony. Williams argues that if the officer had actually seen him conceal a weapon, McKenzie would have informed dispatch that he needed backup for a suspect carrying a concealed weapon when he initially radioed in at 3:28 p.m. Williams argues that McKenzie waited some twenty minutes after he had stopped the car before calling for an assist car and that this delay indicates that McKenzie did not know that a gun was in the car until he found it. Williams also argues that McKenzie's own testimony shows that he approached the stopped car with his side-arm holstered when he asked for Young's license and informed Young that he was under arrest for a traffic violation. Finally, Williams maintains that he was never personally linked to the gun and ammunition, and that the gun and the money actually belonged to Young.

When reviewing the sufficiency of the evidence to support a jury verdict finding the defendant guilty, "it is well established that the evidence is to be viewed in the light most favorable to the verdict; the evidentiary conflicts are resolved in favor of the government; and we must sustain the verdict if supported by substantial evidence." United States v. Eisenberg, 807 F.2d 1446, 1456 (8th Cir.1986); see also Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Long Elk, 805 F.2d 826, 829 (8th Cir.1986). We note that "the government's burden on a particular element of the offense may be satisfied by circumstantial evidence as long as it is sufficient to prove that element beyond a reasonable doubt." United States v. Blackman, 897 F.2d 309, 317 (8th Cir.1990). Further, "[i]t is the function of the jury, not an appellate court, to resolve conflicting testimony or judge the credibility of the witnesses." Eisenberg, 807 F.2d at 1456; see also Smalley v. United States, 798 F.2d 1182, 1186 (8th Cir.1986). Accordingly, we "will reverse only if we conclude that a reasonable fact-finder could not have found guilt beyond a reasonable doubt." United States v. Gooden, 892 F.2d 725, 729 (8th Cir.1989).

The evidence shows that Officer McKenzie observed the commission of a traffic offense and before he could stop the vehicle, it pulled into a gasoline service station. At the service station he saw Williams remove a gun from his waistband, put it in a black pouch, and place the pouch in the glove box area of the car. After the car left the service station, the officer stopped it and arrested Young for a traffic offense and driving without an operator's license and arrested Williams on a weapons violation. During his search of the subjects, he found the key to the glove box on Williams. A search of the glove box produced a black pouch containing a loaded .38 caliber revolver.

We are satisfied that on the evidence presented a reasonable fact-finder could have found Williams guilty beyond a reasonable doubt. We recognize that there are conflicts between the testimony by Officer McKenzie and Williams, and questions concerning when the officer requested the assist car. It was for the jury, however, to resolve these differences. See Glasser, 315 U.S. at 80, 62 S.Ct. at 469; Smalley, 798 F.2d at 1188.

II.

Williams next argues that he was improperly questioned by the prosecutor during cross-examination and that the judge also acted improperly by not issuing curative instructions. He advances two specific instances of impropriety.

A.

Williams first argues that the prosecutor improperly forced him to call the police witnesses "liars" in order to maintain his own innocence. On cross-examination, the prosecutor asked Williams the following question:

Q. [Y]ou made the statement basically denying the gun but claiming that you were with Mr. Young and you were acting as a bodyguard, that you were going to go with him, that he was going to purchase some narcotics; that was the officer's testimony and also Officer Womack's testimony; and you're telling us under oath you did not make that--no, that's not fair. You're telling us you made part of the statement. You say you denied having anything to do with the gun; is that correct?

A. Yes, sir.

(Tr. 148) (emphasis added). Williams claims that this question forced him to impliedly call the police officers "liars" in order to defend his innocence, and that this in turn implied that the prosecutor was calling him a liar. He argues that placing him in that situation was improper, citing United States v. Peyro, 786 F.2d 826, 831 (8th Cir.1986). Williams contends that the question was also unfair because it allowed the prosecutor to sit as the "thirteenth juror." Further, Williams maintains that the prosecutor's comment on the fairness of the question, "no, that's not fair" (Tr. 148), did not cure it because the question was not stricken from the record, and its inference remained because no curative instruction was issued.

On direct examination, Williams chose to testify concerning the statements he made to Officer McKenzie. (Tr. 131-34). This decision opened up this area for cross-examination. During cross-examination, the prosecutor was simply attempting to clarify Williams' position on these statements. Williams did not object when the question at issue was asked and we may reverse only for plain error on appeal. United States v. Meeks, 857 F.2d 1201, 1203 (8th Cir.1988). We have no hesitation in determining that there was no plain error present here, moreover, we are satisfied that there was no abuse of discretion and no showing of prejudice. United States v. Lee, 743 F.2d 1240, 1249 (8th Cir.1984).

B.

Next, Williams contends that by questioning him about drugs, the prosecution introduced evidence of prior, uncharged crimes. During the prosecutor's cross-examination of Williams, he asked him the following question:

Q. Are you familiar with drugs generally?

A. I didn't understand what you're saying.

Q. Are you familiar with drugs such as--[Objection overruled].

A. I don't use drugs.

(Tr. 148-49). Williams contends that this question was irrelevant to the crime with which he was charged.

Further, Williams argues that the damage done by the prosecutor's question was exacerbated by a question from the bench. After Williams' attorney objected to the prosecutor's question, the judge overruled the objection and asked Williams the following question:

Q. You know what drugs are?

A. Yes, sir.

Q. Okay.

(Tr. 149). Williams maintains that these questions caused the jury to infer that Williams' general...