U.S. v. Davis

• Citation: 514 F.3d 596
• Decision Date: 30 January 2008
• Docket Number: No. 06-5883.,No. 06-6235.,06-5883.,06-6235.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Melvin E. DAVIS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

514 F.3d 596

UNITED STATES of America, Plaintiff-Appellee, v. Melvin E. DAVIS, Defendant-Appellant.

No. 06-5883.

No. 06-6235.

United States Court of Appeals, Sixth Circuit.

Argued: September 18, 2007.

Decided and Filed: January 30, 2008.

ARGUED: Christopher J. Oldham, Gulley Oldham, Knoxville, Tennessee, for. Appellant. Steve H. Cook, Assistant United States Attorney, Knoxville, Tennessee, for Appellee. ON BRIEF: Christopher J. Oldham, Gulley Oldham, Knoxville, Tennessee, for Appellant. Steve H. Cook, Assistant United States Attorney, Knoxville, Tennessee, for Appellee.

Before: MOORE and GRIFFIN, Circuit Judges; TARNOW, District Judge.^*

OPINION

KAREN NELSON MOORE, Circuit Judge.

A jury found Defendant-Appellant Melvin Eugene Davis ("Davis") guilty of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), and possession with intent to distribute cocaine base within 1,000 feet of a public school, in violation of 21 U.S.C. §§ 860(a), 841(a)(1), and 841(b)(1)(C). The district court sentenced Davis to imprisonment for 240 months and 262 months, respectively; the district court determined that the terms would run concurrently. On appeal, Davis argues that the district court erred by denying his motion to suppress drugs found during his arrests on March 9, 2005 and August 24, 2005. Also, he appeals the district court's denial of his motion to exclude two expert witnesses at his trial, and the denial of his motion for a mistrial based on prosecutorial misconduct. Finally, for the first time on appeal, Davis objects to three statements made by the government during trial, which he alleges constitute prosecutorial misconduct. For the following reasons, we AFFIRM the district court's judgment.

I. BACKGROUND

Investigator Todd Gilreath ("Gilreath") of the Knoxville City Police Department serves in the Organized Crime unit and is assigned to the Federal Bureau of Investigation's Violent Crimes or Safe Streets Task Force. In the course of Gilreath's work, informants indicated that Davis engaged in illegal drug activities. Before his current assignment, Gilreath came to know Davis during the four years that Gilreath was part of the Patrol Division of the Knoxville Police Department; he spent a great deal of time in the Walter P. Taylor Housing Development where Davis lived with his mother, Vanessa Tate. Gilreath knew Davis as "Melvin Tate," "Little Melvin," "Melvin Davis," and later as "Agu" or "Ragu." Joint Appendix ("J.A.") at 669 (Suppression Hr'g Tr., Gilreath Test. at 7:8-16). Also, Gilreath guarded Davis periodically while he received treatment in the hospital after being shot in the abdomen. Although Gilreath knew that Davis used other names, Gilreath testified that he assumed (before March 9, 2005) that "Tate" was Davis's legal surname. J.A. at 673 (id. at 11:9-17).

A. March 9, 2005 Arrest

On March 9, 2005, Gilreath and Lieutenant Mark Fortner ("Fortner") of the Knoxville Police Department received a call from a confidential informant. The informant stated that Davis was "posted up" on the 2500 block of Martin Luther King Boulevard ("2500 block"), not far from where the officers were positioned. J.A. at 680 (id. at 18:1-2). As described by Gilreath, "posted up" means that a street-level crack dealer stands in a particular area so that he or she can be approached by buyers. J.A. at 680 (id. at 18:5-15). Gilreath knew the 2500 block to be a high crime area; previously, he had conducted three raids on three different businesses there.

Gilreath and Fortner proceeded to the area described by the informant and observed Davis standing between 2525 and 2527 Martin Luther King Boulevard. Gilreath and Fortner parked in the Holiday Market parking lot; from this vantage point, they could see Davis standing in the 2500 block. Twenty to twenty-five minutes after the officers began their surveillance, Davis entered a light blue Nissan Maxima; Davis drove to the Bi-Lo Market, approximately three blocks from where he had been standing. Gilreath and Fortner followed him and parked directly behind the Bi-Lo so that they could see Davis's car, at which point Gilreath called the Organized Crime Office to determine if Davis had a valid driver's license. Gilreath testified that "[t]he request was for anybody under the last name of Tate with a date of birth of 2-7-1980." J.A. at 687 (id. at 25:5-6). Although Gilreath did not have the exact date of birth for Davis, Gilreath thought that it was during the year 1980; when the officer conducting the computer search indicated that there was a "Tate" with a date of birth of February 7, 1980 on file, Gilreath said, "that has got to be it." J.A. at 687-88 (id. at 25:17-26:4). The check revealed that there was no driver's license on file for an individual with the surname "Tate" and a date of birth of February 7, 1980.

After receiving the license information, Gilreath observed Davis enter the Maxima again; Davis drove by Gilreath and Fortner, and the pair followed him. Gilreath radioed for a marked car because he did not have blue lights or a siren; however, before the marked car arrived, Davis pulled into a barbershop parking lot, exited his car, and moved towards the entrance of the establishment. Gilreath testified:

I would describe it as quickly moved to the front door. I yelled for him, "hey, Melvin, come here." He looked back and continued to step through the threshold of the door. I was literally on his heels. I stepped through the door right behind him. I said, "hey, come here I need to talk to you for a minute. He stepped outside. . . ."

J.A. at 692 (id. at 30:2-8). When asked if he had a driver's license, Davis told Gilreath that he did not have one. In addition, Gilreath noticed that there were bits of what appeared to be marijuana stuck to the thighs and abdomen area of Davis's pants. Gilreath placed Davis under arrest. During the search incident to arrest, Fortner found crack cocaine in Davis's sock.

Gilreath had Davis's vehicle towed and read Davis his Miranda rights in the car on the way to the Organized Crime Unit at the Knoxville Police Department. Gilreath indicated that after he read the last sentence on his card that stated the Miranda rights ("Having these rights in mind, do you wish to talk to me now?"), Davis stated that he "want[ed] a chance to help [him]self." J.A. at 699 (id. at 37:2-10). After talking with Special Agent David Bukowski ("Bukowski") of the Federal Bureau of Investigation ("FBI") and with the United States Attorney's office, Gilreath testified that "[t]he decision was made that [Davis] could definitely help himself, as far as working, and he could provide substantial assistance against other drug dealers and violent criminals in that area." J.A. at 701 (id. at 39:11-15). Davis became a "confidential source" for the FBI and Knoxville Police Department. Id. (id. at 39:20-22).

During the interview at the police station, Davis told Gilreath that his true, legal name was "Melvin Davis." J.A. at 702 (id. at 40:9-11). A license check under this name revealed that Davis's license had been suspended.

B. August 24, 2005 Arrest

Bukowski and Gilreath's offices adjoined, and they continued to stay in contact with each other and with Davis after March 9, 2005. Gilreath testified that the officers "constantly" asked Davis if he had obtained his driver's license. J.A. at 704-05 (id. at 42:25-43:4). Also, Gilreath testified that Davis indicated that it was going to cost "a tremendous amount of money." J.A. at 705 (id at 43:7-8). "[H]e asked us if we could help him get his license reinstated, maybe put him on a deal so he could actually be paid for some of the work that he was doing in order to help obtain some money to get his driver's license status." J.A. at 705 (id. at 43:8-12).

About one week before August 24, 2005, Gilreath received information that Davis was "starting to get back into the business." J.A. at 706 (id. at 44:16). On the morning of August 24, 2005, a reliable, confidential informant called Gilreath to tell him that Davis was on the same 2500 block smoking marijuana in a black Jeep Cherokee; as Gilreath and Sergeant Brian Malone ("Malone") proceeded to the location in an unmarked car, Gilreath received another phone call from the same source stating that Davis was there with two "young girls." J.A. at 707-08 (id. at 45:2-25, 46:21-24). Davis pulled out of the parking lot and the officers followed him; they observed Davis driving the vehicle and two females who "appeared to be juveniles" in the front and rear passenger seats. J.A. at 709-710 (id. at 47:19-48:1). Although they had not run Davis's name through the database to determine if he had obtained a valid license, Malone requested a marked car in order to do a traffic stop; Gilreath and Malone did not have the necessary equipment for such a traffic stop. Gilreath testified that they "could see an exchange between the two people in the front seat of the vehicle"; Malone also requested a female officer for a search. J.A. at 710 (id. at 48:9-21).

When Davis pulled the vehicle into the student drop-off section of the Austin East High School, Gilreath and Malone "pulled right directly in behind him." J.A. at 711 (id. at 49:7). Gilreath went to the passenger side and Malone went to the driver's side; Gilreath testified that Malone asked Davis if he had a license and Davis stated that he did not have one. Gilreath smelled the odor of marijuana coming from the vehicle and saw some marijuana on the Jeep's console. Gilreath asked the young woman in the front passenger seat, "[D]o you have anything on you?" J.A. at 713 (id. at 51:7). Gilreath testified that the young woman, later identified as Ranisha Ewing ("Ewing"), stated that Davis had given her something to hold onto; she opened her purse to reveal a boggle of crack cocaine. The officers then placed Davis under arrest.

C. Motion to Exclude Expert Testimony of Forensic Chemists at Trial

The...