U.S. v. Benefield

• Decision Date: 10 May 1991
• Docket Number: No. 90-2079,90-2079
• Citation: 942 F.2d 60
• Parties: 33 Fed. R. Evid. Serv. 1081 UNITED STATES of America, Appellee, v. Lonnie BENEFIELD, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 60

942 F.2d 60

33 Fed. R. Evid. Serv. 1081

UNITED STATES of America, Appellee, v. Lonnie BENEFIELD, Defendant, Appellant.

No. 90-2079.

United States Court of Appeals, First Circuit.

Heard May 10, 1991.

Decided Aug. 15, 1991.

Dana Alan Curhan, New Bedford, Mass., for defendant, appellant.

Michael J. Pelgro, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before BREYER, Chief Judge, and ALDRICH and TORRUELLA, Circuit Judges.

TORRUELLA, Circuit Judge.

This appeal arises out of the July 1990 conviction of Lonnie Benefield for having been a felon in possession of a firearm on May 13, 1989, in violation of 18 U.S.C. § 922(g)(1). Defendant-appellant raises three issues before this court: (1) whether the district court improperly admitted evidence of his prior bad acts; (2) whether allowing him to proceed pro se violated his sixth amendment right to counsel; and (3) whether the district court erroneously amended his sentence after his period of confinement had begun, and once that is established, whether the sentence sought to be reinstated incorrectly failed to account for time served. We affirm on the issues of bad act evidence and pro se representation but find it necessary to reverse and remand for resentencing.

FACTS

On Saturday, May 13, 1989, two individuals, identified later as Arnold Jackson and Lonnie Benefield, entered and robbed Spencer's Mystery Bookshop on Newbury Street in Boston, Massachusetts, while a third individual, identified as Hugh Reid, kept watch outside. Andrew Thurnauer was working in the bookshop at the time. Thurnauer observed that the individual identified as Jackson was a black male dressed largely in white, wearing thick glasses and a pith helmet. He noticed that the individual identified as Benefield was also a black male, wearing a hat, although not of the same style as Jackson, and a long, bluish-grey coat which partially concealed a shotgun. He did not see Reid.

Jackson and Benefield relieved Thurnauer of all of the bookshop's money, including the money in the register, money on Thurnauer's person, and $50 contained in a used envelope addressed to the bookshop. After the robbery was complete, Thurnauer was stashed in a back storage room. The robbers then exited the store.

In the meantime, Detectives Frederick Waggett and Stephen Blair of the Boston Police Department were making the rounds of Newbury Street on an armed robbery investigation when they noticed Reid pacing suspiciously outside the bookshop. They stopped approximately fifteen feet away and began watching Reid's actions more closely. They witnessed Reid enter the driver's side of a silvery-blue automobile double-parked on the street. They then saw Jackson appear from inside the bookshop and enter the automobile followed very shortly thereafter by Benefield. The detectives noticed that Jackson was wearing white clothes, glasses and a cream-colored pith helmet. They observed that Benefield was wearing a blue duster-style jacket and was carrying a shotgun. As the automobile pulled away, the detectives Officers Clifford Connolly and Michael Donovan responded to Detective Waggett's broadcast when they observed an automobile matching the escape car description travelling inbound on Commonwealth Avenue. The officers tailed the suspicious automobile for a short distance. The automobile then quickly accelerated, followed closely by the officers. When the police cruiser pulled abreast of the automobile, it swerved into the cruiser and both vehicles came to a stop. Jackson was detained in the automobile; Reid and Benefield attempted to escape on foot. Officer Connolly followed Benefield, whom he eventually found hiding under a parked car. A search of the area revealed a pouch containing shotgun shells under the car and cash totalling $321 along with an envelope addressed to Spencer's Mystery Bookshop on Benefield's person. Reid was similarly pursued and caught. A search of the suspects' automobile revealed a sawed-off shotgun secreted under the front passenger seat where Benefield had been riding.

                pursued on foot.   Detective Waggett was secured a description of the automobile and its license plate which he then broadcast over his police radio.   Detective Blair entered the bookshop where he discovered Thurnauer and was informed of the robbery
                

Detectives Waggett and Blair arrived on the scene and identified the three individuals in custody as those connected with the bookstore robbery. Shortly thereafter, the police returned to the bookshop where the suspects were paraded in front of Thurnauer. Thurnauer identified Benefield and Jackson by their clothing. He was not, however, able to make a like identification at trial.

PRIOR BAD ACTS

Detectives Waggett and Blair both testified at trial. The following statements were admitted. Over Benefield's objection, the detectives testified that they were patrolling Newbury Street because fifteen or sixteen armed robberies had recently occurred in the area. In addition, Detective Waggett stated that one of Benefield's companions resembled the description of an individual involved in some of the earlier robberies, while Detective Blair testified that he discovered Thurnauer in the storage room of the bookstore because he knew the modus operandi of the prior robberies was to place the employees in a back room. Benefield argues that the statements constituted Rule 404(b) evidence of prior bad acts, Fed.R.Evid. 404(b), which should not have been allowed either because they were improper under that particular rule ¹ or because the likelihood of prejudice outweighed the probative value under Federal Rule of Evidence 403. We do not agree.

Rule 404(b) protects against the admission of "[e]vidence of other crimes, wrongs or acts ... to prove the character of a person in order to show action in conformity therewith." (Emphasis added). The statements elicited from Detectives Waggett and Blair, however, did not fall within that rubric. The detectives' statements were offered to explain their reason for being in the area and to support their assertion of heightened awareness at the time of the bookstore robbery. They were not offered to show Benefield acted in conformity with some bad character trait. In fact, no effort was made to place Benefield at the scene of any of the prior robberies or otherwise to tie him to those robberies in any way. Thus Benefield's first argument fails.

Such a finding does not affect Benefield's Rule 403 argument, however. ² Benefield maintains that even if the detectives' statements were admissible under Next we consider Detective Blair's statement referring to the modus operandi of the previous robberies. Unlike the statements discussed in the previous paragraph, it was irrelevant and superfluous as it was neither probative on the issue of identification nor on any other trial issue. Nevertheless, the likelihood of prejudice was minimal. First, the statement was not solicited by the prosecution. ³ Second, it did not constitute a continuing theme throughout the trial. Detective Blair's statement was the only evidence that came close to implicating Benefield in the earlier robberies. Third, the remaining evidence against Benefield was overwhelming. Most notably, there was significant eyewitness testimony against him (he was identified by Thurnauer, Waggett and Blair before trial and again by Waggett and Blair at trial). Thus any error which may have occurred, if indeed it did occur, was harmless. See Lataille v. Ponte, 754 F.2d 33, 37 (1st Cir.1985) (error is rendered harmless when we "can say 'with fair assurance ... that the judgment was not substantially swayed by the error' ") (quoting United States v. Pisari, 636 F.2d 855, 859 (1st Cir.1981) (quoting Kotteakos v. United States, 328 U.S. 750, 756, 66 S.Ct. 1239, 1243, 90 L.Ed. 1557 (1946))).

                Rule 404(b) (or otherwise), they were still excludable under Rule 403 because they were not necessary to the prosecution's case, whereas the likelihood of prejudice was overwhelming.   Benefield's concern is that the jury believed he was somehow involved in the prior robberies and therefore assumed that he was guilty of the federal firearm charge as well.   We review for abuse of discretion only.  Lubanski v. Coleco Industries, Inc., 929 F.2d 42, 45 (1st Cir.1991) (the district court has "broad discretion regarding the admissibility of evidence").   We consider first the statements of both detectives disclosing the fact that they were investigating prior robberies in conjunction with Detective Waggett's statement that one of Benefield's cohorts resembled an individual involved in some of the prior robberies.   The identification of Benefield as the individual in possession of the shotgun was hotly contested during both state and federal court proceedings.   The detectives' statements were offered to rebut Benefield's contention that they had only observed him fleetingly.   The purpose was to show that the detectives were meticulously aware of activities in the Newbury Street area.   Although the detectives did not clarify that they were not looking for Benefield in particular, neither did they attempt to link Benefield with any of the prior robberies.   Any potential prejudice was therefore minimal while the probative value of the evidence was significant.   Admission of the evidence clearly did not rise to the level of an abuse of discretion
                

PRO SE REPRESENTATION

Benefield represented himself at trial. He now maintains that his decision to do so was not knowing, voluntary and intelligent because he was unsophisticated in legal matters ⁴ and the district judge did not apprise him of the pitfalls of self-representation such as his limited access to legal materials ⁵ and the technical requirements of courtroom procedure. Benefield points to the following as evidence of his inability to proceed pro se: he failed to make an opening or closing statement, he did...