U.S. v. Douglas, 06-12854.

• Decision Date: 19 June 2007
• Docket Number: No. 06-12854.,06-12854.
• Citation: 489 F.3d 1117
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronnie Lee DOUGLAS, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

489 F.3d 1117

UNITED STATES of America, Plaintiff-Appellee, v. Ronnie Lee DOUGLAS, Jr., Defendant-Appellant.

No. 06-12854.

United States Court of Appeals, Eleventh Circuit.

June 19, 2007.

Michael N. Loebl (Court-Appointed), Fulcher Hagler, LLP, Augusta, GA, for Douglas.

Joshua S. Weimer, Kyle Gregory Anez Wallace, Asst. U.S Atty., Augusta, GA, Amy Lee Copeland, U.S. Atty., Savannah, GA, for U.S.

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

Before PRYOR, KRAVITCH and ALARCÓN,^* Circuit Judges.

PER CURIAM:

Appellant, Ronnie Lee Douglas, Jr., appeals his convictions and sentences for kidnapping, in violation of 18 U.S.C. § 1201(a)(2), robbery, in violation of 18 U.S.C. § 2111, and carjacking, in violation of 18 U.S.C. § 2119.

I. Background

The Evidence at trial was as follows:

On the evening of February 10, 2005, Tammy Young, who was six months pregnant at the time, and her two year-old son, L.Y., were shopping at a department store located on the Fort Gordon military base in Georgia. After leaving the store, Young walked to her car and placed L.Y. in his car seat. She then turned to retrieve her purse from the shopping cart when she saw a man standing very close to her. Young later described the man as a tall black male of slender build in his early twenties and wearing dark oversized clothing and a red baseball cap. Startled by the man, Young screamed, and the man, who was holding a gun down by his groin, told Young to be quiet. The assailant then instructed her to give him her money, but Young had spent her money in the store. Young offered to give the man her ATM card. In response, he told Young to leave her son and accompany him to a nearby ATM machine. Young refused to leave her son and offered the man her credit cards, ATM card and pin number, and car keys. Young then started to unbuckle L.Y. from his car seat, at which point the assailant told Young that if she tried to run he would hurt her.

Young, who was frightened by the threat and feared that she and her son would be hurt if she did not comply with the man's demands, was forced to get into the car and was driven by the man to a Wachovia bank. At the bank, the man pulled the car up in front of the drive-through for the ATM. He instructed Young to get out of the car and get the money while he stayed behind with L.Y. Young refused to leave her son in the car and proceeded to take him out of his car seat. When Young exited the car, the assailant also got out of the car and they walked to the ATM machine. At this point, the man had his hand in his pocket and told Young that the gun was in the pocket. Young then made two $200 withdrawals, which was the maximum she could withdraw in one day, and handed the money to the man. The assailant told Young to get back in the car so they could go to another ATM machine. Young refused because she was afraid that he would kill them. She then offered the man her ATM card and pin and told him to take the car and leave them behind. The man agreed and told her to back up against the wall and not to leave until he gave her the "go ahead."

The man then walked back to Young's car and got inside. Young saw him turn on the interior light, take off his hat and place it on the dashboard, and count the money. The man then waved that Young and her son could leave and they ran to a nearby restaurant as the man drove away in the direction of gate 5. Young estimated that the entire incident lasted approximately twenty minutes.

Inside the restaurant there were three military police officers. Young told them what happened, and they relayed the information to other officers and instructed that the base's gates be closed. Sergeant Tyrone Herring left the restaurant and proceeded towards gate 5. After searching for Young's vehicle at gate 5, Officer Herring went to the gate 5 shopette and found a vehicle matching the description. Officer Herring and others searched the car and located Young's purse and a red hat on the dashboard. The officers did not find a gun. A search of the area ensued, but the assailant was not found. A crime scene investigation unit dusted the vehicle for fingerprints and found several fingerprints on the driver's side door.

On February 11, 2005, FBI Agent Charles McKee showed Young four photographic arrays, each consisting of six pictures and told her to place her initials next to the individual in each that most resembled the perpetrator. Young identified two men. Douglas did not appear in any of the arrays. Young testified that she did not believe she was choosing the assailant, rather, she believed she was selecting the individual that most closely resembled the assailant so the police could use characteristics from that photograph to assist in their investigation. Young also assisted the investigators with creating a sketch of the perpetrator. In late February, McKee learned that a fingerprint lifted from Young's vehicle was identified as belonging to Douglas. McKee then prepared another photographic array for Young, this one containing a photograph of Douglas. In this photographic array, McKee testified that Young immediately ruled out four of the six pictures. Young then spent approximately thirty-five minutes selecting from the remaining two pictures, one of which was of Douglas, though Young eventually selected the individual who was not Douglas. Finally, on March 11, 2005, Young was shown surveillance photographs of an individual believed to be Douglas exiting Augusta Technical College earlier in the day on February 10, 2005. Young told investigators that the person in the photographs looked very similar to the assailant, although she did not recall the red shirt pictured in the video.

Douglas was arrested on March 17, 2005. When authorities arrived at Douglas's residence to arrest him, they found him hiding in a closet.

At the time of Douglas's arrest, testing had not been completed on the red baseball cap found in Young's car. Subsequent testing on a hair found in the cap revealed that it was dissimilar to hair retrieved from Douglas. DNA testing on the cap revealed DNA belonging to "at least four or more individuals." In this regard, one of Douglas's friends testified that he often allowed friends to borrow his hats, that before the incident he had loaned Douglas a red Braves cap identical to the one found in Young's car, and that the cap had never been returned. Government DNA expert Jennifer Luttman stated that "[t]he probability of selecting an unrelated individual at random from the general population who could be a potential contributor to the mixture of DNA detected on the hat [was] approximately 1 in 19 from the African American population" and Douglas's DNA profile fell within the 6 percent of the African American population that could not be excluded as a potential contributor.

Shortly before trial, the government disclosed two supplemental opinions from its fingerprint expert, Investigator DeWayne Piper. The opinions stated that the fingerprints found on Young's vehicle were made not more than a few hours before the lifts were taken and that the fingerprints were made in the process of closing the door. Douglas requested a Daubert¹ hearing, after which the district court determined that the proffered testimony was admissible.

During the trial, Young identified Douglas as the assailant. She also was shown the video from Augusta Technical College recorded the day of the attack. She stated that the individual in the video was the same height, wore a similar coat, pants, and hat, and had the same facial features as her assailant.

Piper testified regarding his supplemental opinions, and stated that the pressure distortion of the fingerprint found on the door of Young's car, which was a match for Douglas, indicated that the print was made while the vehicle door was being closed. He also testified that, based on the environmental conditions, having been told by investigators that it had rained approximately eight hours the day before the incident, and his personal experience, the print matching Douglas did not appear to have been left on the door a couple of days before.

Also at trial, a friend of Douglas's, Jerry Freeman, testified that on the evening of February 10, 2005, Douglas called Freeman around 6:00 pm and asked to be picked up at Augusta Technical College, where the two took a class together, and dropped off in his neighborhood. Freeman obliged, and then returned to class. Later that evening, sometime after 11:00 pm, Freeman, who had gone to a pool hall with other friends after class, received a telephone call from Douglas. Douglas asked Freeman to pick him up at a gas station near Fort Gordon.

McKee testified that Douglas provided him with three different alibis. The first alibi was that he was in class at Augusta Technical College during the robbery. When McKee showed Douglas records indicating he was absent from class, Douglas stated that he must have left class early to go to a pool hall with Freeman. Freeman testified at trial, however, that Douglas was not with him at the pool hall that evening. With regard to the third alibi, while in jail, Douglas wrote a letter to his girlfriend explaining what she should tell his attorney and testify to at trial regarding his whereabouts on February 10, 2005, including that he had been at her house that evening. This letter was read aloud to the jury.

The government also presented other evidence, including the testimony of two inmates with whom Douglas had been confined, each of whom testified that Douglas had confessed to the crimes.

During the trial, an issue arose regarding the government's fingerprint evidence. Of particular focus for Douglas was a fingerprint identified as "C. A latent impression" on the interior dash of Young's car next to the abandoned red cap. The fingerprint was noted on a crime scene sketch that appeared to have been created by CID Special Agent Eddie...