U.S. v. Carey

• Decision Date: 25 November 2009
• Docket Number: No. 08-60961.,08-60961.
• Citation: 589 F.3d 187
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Shane CAREY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

589 F.3d 187

UNITED STATES of America, Plaintiff-Appellee, v. Michael Shane CAREY, Defendant-Appellant.

No. 08-60961.

United States Court of Appeals, Fifth Circuit.

November 25, 2009.

Richard Terrell Starrett, Asst. U.S. Atty. (argued), Jackson, MS, for U.S.

Omodare B. Jupiter (argued), Fed. Pub. Def., Jackson, MS, for Carey.

Appeal from the United States District Court for the Southern District of Mississippi.

Before WIENER, GARZA, and ELROD, Circuit Judges.

JENNIFER W. ELROD, Circuit Judge:

A jury convicted Michael Shane Carey of four counts of aggravated sexual abuse of a minor, and the trial court sentenced Carey to four life terms of imprisonment. Carey appeals with three challenges to the admission of evidence at trial, and with three challenges to his sentence. We affirm both the conviction and the sentence.

I.

A.

"We recite the facts in the light most favorable to the verdict." United States v. Olis, 429 F.3d 540, 541 n. 1 (5th Cir.2005). At age twenty-nine, Carey lived with his girlfriend Marsha Bull, Bull's eleven-year-old daughter "DJ," and Bull's two other children. Carey sexually assaulted DJ in the home on four occasions. On each occasion, Carey engaged in intercourse with DJ despite DJ's objections, and on one occasion, Carey wrapped DJ's hair around her neck as a means of choking DJ during the intercourse. After some delay, DJ notified Bull of the assaults, prompting Bull to notify police and take DJ to a local hospital for a physical examination.

B.

The government indicted Carey and alleged the commission of four counts of aggravated sexual abuse with a minor younger than twelve. See 18 U.S.C. 2241(c) (aggravated sexual abuse with children); see also 18 U.S.C. 1153(a) (jurisdiction over Indian crimes). DJ testified during the two-day trial, and at times read from a police report—an officer's written record of the officer's prior interview with DJ. The government also called Tammy Hutchison, a criminal investigator for the Mississippi Band of Choctaw Indians who specialized in child sexual assaults, to testify about her discussions with DJ. The jury found Carey guilty of all four counts.

At Carey's sentencing hearing, the government sought and obtained a four-level enhancement for the use of force against the victim. See U.S. Sentencing Guidelines Manual § 2A3.1(b)(2)(A) (2006) [hereinafter U.S.S.G.]. The district court's final judgment sentenced Carey to four life terms of imprisonment, a life term of supervised release, and $400 in criminal monetary penalties. Carey then filed the instant appeal.

II.

A.

First, Carey challenges his conviction by arguing that the prosecutor misused a police report during DJ's testimony. Under Federal Rule of Evidence 612, a witness may use a writing to refresh his or her recollection only if (1) the witness requires refreshment, and (2) the writing actually refreshes the witness's memory. See United States v. Horton, 526 F.2d 884, 888-89 (5th Cir.1976); Thompson v. United States, 342 F.2d 137, 139 (5th Cir.1965). A witness may not, under the guise of Rule 612, testify directly from a writing. See Horton, 526 F.2d at 888-89; Thompson, 342 F.2d at 139. Early in DJ's testimony, her inability to answer a question—"Do you remember what happened with you and Michael the first time he touched you?"—prompted the government to show DJ an "officer's recollection of the interview with the witness [DJ]" that DJ had reviewed. Carey argues that the resulting testimony violated Rule 612 because the report did not actually refresh DJ's memory. The government argues that the police report did refresh DJ's memory, and that no part of the record indicates impermissible reliance.

We review the district court's decision to admit DJ's testimony over Carey's objection for an abuse of discretion. On appeal, Carey claims that DJ impermissibly relied on the report throughout much of her testimony, but because he only objected to one instance at trial, we apply abuse-of-discretion review to that instance alone. See, e.g., United States v. Setser, 568 F.3d 482, 493 (5th Cir.2009).¹

Carey's Rule 612 challenge fails for two reasons. Initially, Carey's proposed proof-of-refreshment requirement—that a witness relying upon a Rule 612 writing must explicitly declare that the writing has, in fact, refreshed the witness's memory of the subject—does not exist in this circuit, for we rejected it long ago. See Thompson, 342 F.2d at 139-40. After the defendant in Thompson argued that "there was no showing that ... the typewritten statement actually refreshed his [the witness's] recollection," we announced principles that apply directly to this case:

[W]here there was an absence of the customary formalistic wording to show inability to recollect without aid and the refreshing effect of the writing, the context of the specific queries, the witness' spoken reaction and the trial judge's opportunity to observe the witness' demeanor, leave no occasion to find reversible error in his rulings on these objections.

Id. (emphasis added). While it remains true that "[c]aution must be exercised to insure that the document is actually being used for purposes of refreshing and not for purposes of putting words in the mouth of the witness," Esperti v. United States, 406 F.2d 148, 150 (5th Cir.1969), the record of these proceedings lacks sufficient support for Carey's assertion that DJ read the jury her testimony from the report. See Thompson, 342 F.2d at 139-40. Instead, the record reflects merely instances where DJ says that she does not know an answer, followed by more questions that eventually elicit one. Accordingly, we must defer to the district judge who determined that DJ rendered admissible testimony.

Carey also argues that the district court erred because it allowed DJ to rely upon a document that DJ did not author, and that contained factual errors. But contrary to Carey's argument, the admissibility of testimony accompanied by a Rule 612 refreshment does not depend upon the source of the writing, the identity of the writing's author, or the truth of the writing's contents, for "[i]t is hornbook law that any writing may be used to refresh the recollection of a witness." Esperti, 406 F.2d at 150; accord Thompson, 342 F.2d at 139-40; see 4 Jack V. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 612.03[3][b] (Joseph M. McLaughlin ed. 2009); 28 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 6184 (1993 & Supp. 2009). Even if, as Carey contends, the writing was neither authored by DJ nor completely accurate, these considerations inform only the weight to be accorded by the finder of fact, not the admissibility of DJ's testimony. See Thompson, 342 F.2d at 139 ("The reliability or truthfulness of the statement was relevant only to the problem of the weight and credibility to be accorded the witness' testimony.").

Carey exercised his right to ask DJ about her reliance on the report, and to argue to the jury that the reliance rendered her testimony not credible. The jury simply disagreed. Accordingly, we reject Carey's Rule 612 challenges to DJ's testimony.²

B.

Second, Carey challenges his conviction by arguing that the prosecutor employed impermissible leading questions during DJ's testimony. Federal Rule of Evidence 611(c) prohibits leading questions "except as may be necessary to develop the witness' testimony." Two exchanges are at issue here. First, Casey objected after the following line of questions:

Q. Do you remember the first time that Michael ever touched you? Can you remember the first time?

A. No, I can't.

Q. Okay. Do you remember talking to Tammy Hutchison?

A. Yes.

Q. And do you remember telling Tammy about some —

Mr. Lucas: Objection, Your Honor. Leading.

Mr. Lacy: Your Honor, this is a child.

The Court: Overruled. The objection is overruled.

A similar objection came later:

Q. Do you remember whether or not your Uncle Stanley ever played Santa Claus?

Mr. Lucas: Your Honor, I have to object to leading on this.

The Court: I understand the basis of your objection, but I also acknowledge that here is — that this is a child and that he is entitled to certain latitude in asking leading questions. So I'll overrule the objection.

With an objection, we review a district court's decision to allow leading questions for an abuse of discretion. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 762 (5th Cir.2008). Carey argues that these questions impermissibly led DJ, while the government argues that the circumstances of the testimony—particularly DJ's age and the nature of the crime—justified the leading.

Carey's Rule 611 challenge fails because our circuit has held that a victim-witness's youth and nervousness can satisfy Rule 611's necessity requirement. See Rotolo v. United States, 404 F.2d 316, 317 (5th Cir. 1968) (allowing the government to lead a fifteen-year-old witness who appeared "reluctant," "nervous," and "upset"). Here, the indictment concerned a sex crime, the witness was twelve, and the record reveals several times where DJ appeared nervous. For example, DJ testified "I don't want to be here right now," and when asked by the prosecutor whether she "remember[ed] my telling you that you were going to have to talk about some things that you didn't want to," she answered "[y]es." In light of this context and our precedent, Carey fails to demonstrate that the district court abused its discretion in allowing the government to lead DJ's testimony.³

C.

Third, Carey challenges his conviction by arguing that the district court allowed a lay witness to testify on a matter that required expert qualifications. Under Federal Rule of Evidence 701, lay witnesses may render opinions only if the opinions are "(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge...