U.S. v. Boykins, s. 91-1289
| Decision Date | 15 July 1992 |
| Docket Number | Nos. 91-1289,s. 91-1289 |
| Parties | UNITED STATES of America, Appellee, v. Cedric F. BOYKINS, Appellant. UNITED STATES of America, Appellee, v. Kenny DAVIS, Appellant. UNITED STATES of America, Appellee, v. Brian DAVIS, Appellant. to 91-1291. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Darrell F. Brown, Little Rock, Ark., argued, for appellant Cedric Boykins.
Gene Worsham and Robert L. Scull, III, Little Rock, Ark., argued, for appellant Kenny Davis.
R.S. McCullough, Little Rock, Ark., argued, for appellant Brian Davis.
Terry L. Derden and Kevin Alexander, Little Rock, Ark., argued, for appellee.
Before ARNOLD, Chief Judge, and McMILLIAN and HANSEN, Circuit Judges.
Cedric F. Boykins, Kenny Davis and Brian Davis (collectively defendants) appeal from final judgments entered in the United States District Court 1 for the Eastern District of Arkansas, upon jury verdicts, finding them guilty of involvement in a cocaine conspiracy. Boykins and Kenny Davis were found guilty of conspiracy to possess cocaine with the intent to distribute in violation of 21 U.S.C.A. § 846 (West Supp.1992), attempt to possess cocaine in violation of 21 U.S.C.A. § 846 (West Supp.1992), and use of a firearm during the commission of a drug offense in violation of 18 U.S.C.A. § 924(c) (West Supp.1992). Boykins and Kenny Davis were each sentenced to a term of imprisonment totalling 270 months, 210 months on each of the possession with intent to distribute and attempt to possess counts, to be served concurrently, and 60 months on the firearm count, to be served consecutively, five years of supervised release, a fine of $50,000.00, and a special assessment of $150.00. Brian Davis was found guilty of conspiracy to possess cocaine with the intent to distribute in violation of 21 U.S.C.A. § 846 (West Supp.1992) and sentenced to 168 months imprisonment, five years of supervised release, a fine of $20,000.00, and a special assessment of $50.00. For reversal, defendants argue that the district court erred in (1) allowing the in-court identification of Kenny Davis by witness Gwendolyn Smith; (2) allowing the government to use grand jury subpoenas to obtain defendants' photographs and fingerprints; (3) denying a mistrial based on prosecutorial misconduct; (4) allowing Boykins and Kenny Davis to be convicted of both conspiracy to possess and attempt to possess in violation of the double jeopardy clause; and (5) refusing to direct verdicts of acquittal or grant new trials on all charges. For the reasons discussed below, we affirm the judgments of the district court.
This case involves a cocaine conspiracy. The primary government witness was Lareda Faye Davis (Faye Davis), the sister of two of the co-defendants. Faye Davis testified that on August 23, 1989, she stole 9 to 10 blocks of cocaine from the trunk of a Nissan Maxima that she believed belonged to Boykins. Just prior to breaking into the trunk, Faye Davis had observed Kenny Davis place a briefcase in passenger area of the car. After stealing the cocaine, Faye Davis ingested some of the cocaine with friends. Faye Davis testified that she, Jerome Jones and Willie Shaw were in Shaw's car with the cocaine when she was abducted at gunpoint from the vehicle, leaving the cocaine with Jones and Shaw. Faye Davis identified Kenny Davis and Boykins at trial as participating in this armed abduction and Faye Davis testified that the purpose was to enlist her efforts in the recovery of the cocaine which she had stolen from Boykins' car.
Shaw and Jones then hid the cocaine at Shaw's house. Gwendolyn Smith testified that her brother, Jerome Jones, lived with her and that on the evening of August 24, 1989, Faye Davis had come to her home to see Jones, but he was not home. Faye Davis testified that by this time she had told Kenny Davis and Brian Davis the truth about stealing the cocaine and had shown them where Jones lived. Smith testified that a few minutes after Faye Davis had stopped by, several armed men entered her home attempting to get their "stuff." Smith was unable to identify the armed men in a photo spread a few months after the incident, but later, she identified Kenny Davis in court as one of the armed men. 2 Faye Davis testified that she observed Kenny Davis and Boykins enter Smith's home shortly after she left.
Jones testified that following this incident he contacted the police regarding the cocaine. This information led to the execution of a search warrant at Shaw's home where 12 pounds (6 blocks) of cocaine was recovered. Jones, under the supervision of a Drug Enforcement Agency (DEA) officer and local police, tape-recorded several phone calls between himself and Brian Davis involving negotiations and instructions for the return of the cocaine. Faye Davis identified Brian Davis's voice on the tapes.
Faye Davis pled guilty to possession with intent to distribute. Shaw pled guilty to misprision of a felony. Jones was not charged. Boykins and Kenny Davis were each found guilty of conspiracy to possess cocaine with the intent to distribute, attempt to possess cocaine, and use of a firearm during the commission of a drug offense. Brian Davis was found guilty of conspiracy to possess cocaine with the intent to distribute. These appeals were filed and the cases were consolidated for the purposes of appeal.
Smith was present when armed intruders came to her home, where her brother, Jones, also lived, looking for their "stuff" on August 24, 1989. She was shown a photo spread on November 29, 1989, which included the photograph of Kenny Davis, but was unable to identify any of the photographs as one of the armed intruders. While walking towards the courtroom on the day of trial, Smith recognized Kenny Davis as one of the armed intruders. Smith told the Assistant United States Attorney who then accompanied Smith outside the courtroom to determine which individual she had recognized. Smith and the Assistant United States Attorney walked down the hall so that Smith could confirm her identification and then Smith identified Kenny Davis at trial. Defense counsel were made aware of the circumstances surrounding Smith's identification of Kenny Davis in the courthouse and Smith was cross-examined about her prior inability to identify Kenny Davis's photograph in the photo spread and her hallway identification the day of trial.
Defendants argue that this hallway identification was an impermissibly suggestive identification procedure and therefore the in-court identification should have been disallowed. Defendants compare Smith's hallway identification of Kenny Davis to a show-up and argue that, like an inherently suggestive show-up, the reliability of Smith's in-court identification must be carefully scrutinized. See Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); United States v. Hadley, 671 F.2d 1112 (8th Cir.1982).
The government argues that, under the totality of the circumstances, Smith's in-court identification of Kenny Davis was reliable. See Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The government further argues that Smith's in-court identification of Kenny Davis was reliable because Faye Davis testified that Kenny Davis was one of the men she saw entering Smith's home at the time of the intrusion.
We hold that the district court did not err in admitting Smith's in-court identification of Kenny Davis. Smith recognized Kenny Davis without any suggestion from the government. While a line-up is certainly the preferred method of identification, a witness who spontaneously recognizes a defendant should be allowed to testify to that fact. Furthermore, proper disclosure was made to the defense and Smith was cross-examined about all of the circumstances surrounding her identification of Kenny Davis in the hallway. Therefore, the jury was able to determine the credibility of her in-court identification of Kenny Davis.
Grand jury subpoenas were issued in September 1989 for the appearance of Kenny Davis. Kenny Davis complied with the subpoenas and provided fingerprints and photographs on November 20, 1989. Defendants argue that this was improper use of grand jury subpoenas because the purpose was to aid the government's investigation. The government argues that the use of grand jury subpoenas to obtain fingerprints and photographs does not violate defendant's constitutional right against self-incrimination and is not a seizure under the Fourth Amendment.
Grand jury subpoenas for fingerprints and photographs do not violate the Fourth or Fifth Amendments. See United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973). This court has reaffirmed this holding in United States v. Hutchings, 751 F.2d 230, 234 (8th Cir.1984) (citation omitted), cert. denied, 474 U.S. 829, 106 S.Ct. 92, 88 L.Ed.2d 75 (1985), stating that "the subject of a subpoena has no privilege not to produce handwriting exemplars, fingerprints, or photographs." Kenny Davis's fingerprints and photograph were relevant to the grand jury's investigation and we hold that there was nothing improper about him being required to submit fingerprints and photographs.
Defendants claim several instances of prosecutorial misconduct. Defendants first claim that the government's questioning of Boykins about his driver's license and a Texas traffic ticket was improper and grounds for a mistrial. During cross-examination of Boykins, the government asked Boykins for his driver's license. The government asked Boykins about the length of his hair in...
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