U.S. v. Barton

• Decision Date: 04 April 1984
• Docket Number: No. 83-1295,83-1295
• Citation: 731 F.2d 669
• Parties: 15 Fed. R. Evid. Serv. 844 The UNITED STATES of America, Plaintiff-Appellee, v. James Dean BARTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 669

731 F.2d 669

15 Fed. R. Evid. Serv. 844

The UNITED STATES of America, Plaintiff-Appellee, v. James Dean BARTON, Defendant-Appellant.

No. 83-1295.

United States Court of Appeals, Tenth Circuit.

April 4, 1984.

Reber Boult, Albuquerque, N.M., for defendant-appellant.

James F. Blackmer, Asst. U.S. Atty., Albuquerque, N.M. (William L. Lutz, U.S. Atty., and Robert J. Baca, Asst. U.S. Atty., Albuquerque, N.M., with him on brief), for plaintiff-appellee.

Before SETH, Chief Judge, BARRETT, Circuit Judge, and O'CONNOR ^*, District Judge.

O'CONNOR, District Judge.

James Dean Barton appeals from a jury verdict finding him guilty of possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C.App. Sec. 1202(a). On appeal, Barton raises four issues: (1) whether certain expert testimony concerning an "inconclusive" test result was properly admitted into evidence; (2) whether the jury's verdict could be unanimous as to guilt when the evidence supported alternative theories of "possession"; (3) whether comments by the prosecutor in closing argument, concerning the appellant's silence at the time of arrest and his failure to testify at trial, were prejudicial and violated the appellant's fifth amendment rights; and (4) whether the jury was properly constituted. Because the case must be reversed and remanded for a new trial, we will consider each of the points raised.

Factual Background

On July 10, 1982, a shooting took place in the parking lot of the Alpha Apartments in Albuquerque, New Mexico. Several shots were fired into a car, wounding one of the occupants. Shortly after the shooting, police officers were dispatched to investigate. Upon arriving at the parking lot, the officers discovered a car with broken windows and holes in the windshield. A license plate check revealed that the car was registered to appellant, James Dean Barton, who was a tenant of the Alpha Apartments. When the officers were informed that there was an outstanding warrant for Barton, they went to his apartment to make the arrest.

Barton was arrested while alone in his studio apartment, approximately one and one-half hours after the shooting. He was advised of his rights and remained silent. His apartment was placed under seal while a search warrant was obtained. During a search pursuant to that warrant, officers discovered a .45 caliber pistol under a pillow on the daybed in Barton's apartment. Ballistics tests later revealed that the gun matched shell casings found in the parking lot and bullets found in the victim's car.

At trial, the government presented evidence to establish the above facts. In addition, the victim of the shooting, Jack Zickmund, identified Barton as the person who fired the shots. Thus, the government presented evidence on two theories of possession: first, that Barton had actual possession of the gun while firing shots at Zickmund; and second, that Barton had constructive possession of the gun while it was in his apartment when he was the only occupant.

The defense proceeded on the theory that Barton never had actual possession of the gun because someone else had done the shooting, and that he never had constructive possession of the gun because it was brought into his apartment and hidden on the daybed by someone else. Barton did not testify at the trial.

I.

Barton argues that the trial court improperly admitted expert scientific testimony to the effect that barium residue had been found on his hand, after the same expert witness had testified that the results of the primer residue test on Barton had been "inconclusive." We disagree.

The expert witness, Jerry O'Donnell, who was Director of the Albuquerque Police Department Crime Lab, was called as a witness for the defense. The government attorney stipulated to O'Donnell's qualifications as a chemist and as an expert. On direct examination, O'Donnell testified that a primer residue test on Barton's hand was "inconclusive" (as opposed to "negative" or "positive") and, therefore, did not prove that Barton had fired a gun. On cross-examination, O'Donnell explained that primer residue is usually found on the back of the index finger and thumb of the hand used to fire the gun. When the government attorney questioned Mr. O'Donnell as to the location of residue found on Barton's hand, defense counsel objected on the ground that the test results were "inconclusive" and, therefore, that a valid scientific conclusion could not be made. The trial court overruled the objection, on the ground that it went to the weight rather than the admissibility of the testimony.

Cross-examination continued, and O'Donnell testified that some residue had been found on the back of Barton's right index finger and thumb, which was consistent with firing a gun. O'Donnell explained that Barton's primer residue test was "inconclusive" because only one of the primer residue metals, barium, was found in significant amounts on his hand. A "positive" result occurs only when both barium and antimony are present in sufficient quantities. Thus, Barton's test neither proved nor disproved that he had fired the gun. On re-direct examination, O'Donnell conceded that a person could get barium on his hand without firing a gun.

Rule 702 of the Federal Rules of Evidence provides, generally, that expert testimony is admissible if it "will assist the trier of fact to understand the evidence or to determine a fact in issue." As a general rule, the admission of expert testimony is within the sound discretion of the trial court, and its rulings will not be disturbed absent a clear abuse of discretion. United States v. Samara, 643 F.2d 701, 704 (10th Cir.1981), cert. denied, 454 U.S. 829, 102 S.Ct. 122, 70 L.Ed.2d 104 (1982). See also United States v. Posey, 647 F.2d 1048, 1051 (10th Cir.1981).

From the record and the briefs before us, it does not appear that Barton challenges the reliability or accuracy of the primer residue test. In fact, O'Donnell was called as a witness to testify for the defense. Barton's objection at trial and his contention on appeal is that once O'Donnell testified that the primer residue test results were "inconclusive," no further testimony concerning his findings was admissible. We believe the argument lacks substance.

During direct examination by defense counsel, O'Donnell did not state that the primer residue test results were negative or that they were in any way unreliable. Instead, O'Donnell testified that the test conducted on Barton was neither positive nor negative, but inconclusive as to the ultimate question of whether or not Barton had fired a gun. On cross-examination, the government attorney simply gave O'Donnell the opportunity to explain what the test did show and why the result was deemed "inconclusive." Rule 705 of the Federal Rules of Evidence makes it clear that the facts and findings underlying the testimony of an expert witness are a proper subject for cross-examination. Accordingly, we cannot say that the trial court abused its discretion in admitting the testimony.

II.

Barton also contends the trial court erred in refusing to instruct the jurors that they must reach a unanimous verdict on the theory of either actual or constructive possession. Barton's argument that the verdict was not unanimous unless all twelve jurors agreed that he had actual possession of the gun, or that all twelve agreed that he had constructive possession of the gun, is without merit.

The statute under which Barton was convicted provides in relevant part as follows:

Any person who--(1) has been convicted by a court of the United States or of a state or any political subdivision thereof of a felony ... and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act [enacted June 19, 1968], any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both."

18 U.S.C. app. Sec. 1202(a) (1982).

Barton was indicted and tried for possession of a firearm by a felon. The relevant act prohibited by the statute is "possession," which encompasses both actual and constructive possession. The trial court correctly instructed the jury on these two types of possession. See, e.g., United States v. Zink, 612 F.2d 511, 516 (10th Cir.1980); United States v. Kalama, 549 F.2d 594, 596 (9th Cir.1976), cert. denied, 429 U.S. 1110, 97 S.Ct. 1147, 51 L.Ed.2d 564 (1977). Actual and constructive possession are not alternative crimes under the statute. Rather, they provide different means or theories by which the offense of "possession" may be proved. See Rodella v. United States, 286 F.2d 306 (9th Cir.1960), cert. denied, 365 U.S. 889, 81 S.Ct. 1042, 6 L.Ed.2d 199 (1961).

Barton relies primarily upon United States v. Gipson, 553 F.2d 453 (5th Cir.1977). In Gipson, the court of appeals held that the trial court erred in instructing the jurors that they need not unanimously agree that the defendant had committed the same prohibited act, as long as they agreed that the defendant had violated some act prohibited under the statute. The court concluded that in light of such an instruction, "[t]he possiblity that the jury may have returned a guilty verdict in the face of a substantial rift among the jurors over the facts in the case is ... a real one." 553 F.2d at 459.

The instant case is clearly distinguishable from Gipson. First, that case involved a different statute, 18 U.S.C. Sec. 2313, which prohibited receipt, concealment, storage, barter, sale, or disposal of stolen motor vehicles or aircraft in interstate commerce. Second, unlike Barton, the defendant there was charged with committing more than one prohibited act. In one of the two counts against him, he was charged with the alternative crimes of selling or receiving a stolen vehicle. Thus, there was a real possibility that the jurors might disagree as to which of the prohibited acts had been committed. Third, the trial court in Gipson...