U.S. v. Brockington

• Decision Date: 17 June 1988
• Docket Number: No. 87-5600,87-5600
• Citation: 849 F.2d 872
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kirk BROCKINGTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 872

849 F.2d 872

UNITED STATES of America, Plaintiff-Appellee, v. Kirk BROCKINGTON, Defendant-Appellant.

No. 87-5600.

United States Court of Appeals Fourth Circuit.

Argued May 6, 1988.

Decided June 17, 1988.

Beth M. Farber, Asst. Federal Public Defender (Fred Warren Bennett, Federal Public Defender, on brief) for defendant-appellant.

Katharine J. Armentrout, Asst. U.S. Atty. (Breckinridge L. Willcox, U.S. Atty.; Annabelle Lisic, Third Year Law Student, on brief) for plaintiff-appellee.

Before PHILLIPS and MURNAGHAN, Circuit Judges, and KAUFMAN, Senior United States District Judge for the District of Maryland, sitting by designation.

JAMES DICKSON PHILLIPS, Circuit Judge:

Kirk Brockington challenges his conviction by a jury on drug and firearm related charges. He makes two claims on appeal. First, that he was unfairly prejudiced by the prosecutor's reference in opening argument to evidence later held inadmissible. Second, that the district court's jury instruction relating to the charged violation of 18 U.S.C. Sec. 924(c)(1), allowed the jury to convict him on less than sufficient evidence to establish the crime. We reject these contentions and affirm.

I

During an investigation by the DEA into drug trafficking in the Baltimore area, DEA agents learned that Brockington was involved in distributing narcotics. DEA agents subsequently obtained a warrant to search Brockington's place of residence, which belonged to his parents. During the search, the agents found a plastic bag containing 12.2 grams of pure cocaine and 12 glassine bags of pure heroin all hidden in a boot in a closet of the front upstairs bedroom. Items seized from the same room apparently identified the bedroom as that of Brockington.

An arrest warrant was issued for Brockington and he was subsequently arrested as he was riding in a taxi in Northwest Baltimore. A search of Brockington's person incident to the arrest yielded two vials containing cocaine and nine glassine bags containing heroin. The arresting officers also recovered a fully-loaded .380 semi-automatic pistol from under the floormat directly beneath Brockington's seat in the cab. After his arrest Brockington acknowledged his involvement with drug dealing and that he carried the gun for protection.

Brockington was charged in a three-count indictment. Count I charged him with the possession of a controlled substance with intent to distribute, to wit the drugs seized from his bedroom, in violation of 21 U.S.C. Sec. 841(a)(1). Count II charged him with the same crime in relation to the drugs seized from his person at the time of his arrest, Count III charged him with carrying a firearm during and in relation to a crime of drug trafficking in violation of 18 U.S.C. Sec. 924(c)(1). An additional Count IV was charged in a superseding indictment and alleged that Brockington violated 18 U.S.C. Sec. 922(g)(1) which proscribes possession of a firearm by a convicted felon. Count IV was severed prior to trial.

The jury found Brockington guilty on all three remaining counts and after sentencing the government dismissed Count IV of the superseding indictment.

This appeal followed.

II

As part of its case, the prosecution intended to introduce some of the pictures seized from Brockington's home. One of those pictures depicted Brockington wearing gold jewelry including a chain with a Mercedes Benz emblem. This picture was relevant to the prosecution's attempt to link Brockington to a Mercedes Benz allegedly purchased on his behalf at a time when he was unemployed. The car contained two cellular phones, which the prosecution further theorized were used to conduct Brockington's drug business. The prosecution also wanted to introduce testimony from a law enforcement officer that the jewelry worn by Brockington was consistent with the mode of a drug dealer. The district court ultimately allowed admission of the photo on the first ground, but disallowed any testimony linking drug dealers to certain jewelry.

In her opening statement, the prosecutor made the following reference to the disputed photograph:

Special Agent Johnson will testify that he then went down the stairs, and in the dining room, he found a number of large photograph albums. You'll see those photograph albums and you'll see two pictures in particular taken from those photograph albums, pictures of the Defendant, Kirk Brockington. In one of them, he's posing rather statesmanlike with--with very heavy gold jewelry hung around his neck, the kind that Special Agent Johnson will testify [is] specifically worn by drug dealers.

Defense counsel did not object to the statement at the time, but later objected to the admission of the photograph and the testimony linking drug dealers and certain kinds of jewelry. Defense counsel apparently did not request any curative instructions, though the court sua sponte, at both the beginning and end of the trial, warned the jury that the statements of counsel are not evidence.

The test for reversible prosecutorial misconduct generally has two components: that "(1) the prosecutor's remarks or conduct must in fact have been improper, and (2) such remarks or conduct must have prejudicially affected the defendant's substantial rights so as to deprive the defendant of a fair trial." United States v. Hernandez, 779 F.2d 456, 458 (8th Cir.1985) (citations omitted); see also United States v. Harrison, 716 F.2d 1050 (4th Cir.1983).

The prosecutor's opening statement should be an objective summary of the evidence reasonably expected to be produced, United States v. Wright-Barker, 784 F.2d 161, 175 (3d Cir.1986), and the prosecutor should not use the opening statement as an opportunity to " 'poison the jury's mind against the defendant' " or " 'to recite items of highly questionable evidence.' " United States v. DeRosa, 548 F.2d 464, 470 (3d Cir.1977) (quoting Government of Virgin Islands v. Turner, 409 F.2d 102, 103 (3d Cir.1969)); see also Hernandez, 779 F.2d at 459 (prosecutor's reference to evidence of which admissibility was seriously in question was improper). Guided by this standard, we believe that the prosecutor's remark here was improper. While we do not imply that the prosecutor's conduct evidences bad faith, we believe that the admissibility of the predicated evidence was sufficiently questionable that it was unreasonable to refer to it prior to receiving a favorable ruling from the district court.

Even assuming that the prosecutor's conduct was improper, reversal is not warranted unless the defendant has been unfairly prejudiced by the conduct. Whether the defendant has suffered prejudice in this context depends on the facts of each case...