U.S. v. Henderson, 94-5645
| Decision Date | 21 March 1995 |
| Docket Number | No. 94-5645,94-5645 |
| Citation | 1995 WL 122785,50 F.3d 11 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Gregory Tyree HENDERSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before: JONES and MILBURN, Circuit Judges, and COHN, * District Judge.
Defendant Gregory Tyree Henderson appeals his jury conviction and sentence for carjacking in violation of 18 U.S.C. Sec. 2119, use of a firearm during a crime of violence in violation of 18 U.S.C. Sec. 924(c)(1), and possession of a firearm by a convicted felon in violation of 18 U.S.C. Sec. 922(g). On appeal, the issues are (1) whether the district court abused its discretion by denying defendant's motion to sever count 4, felon in possession of a firearm; (2) whether the district court abused its discretion by admitting into evidence an identification card displaying defendant's photograph but bearing a different name; (3) whether the district court properly denied defendant's motion for judgment of acquittal or for a new trial based on the recantation of a witness and the alleged erroneous identification of defendant by a police officer; (4) whether the district court abused its discretion by amending the time at which disclosures under Federal Rule of Criminal Procedure ("Fed.R.Crim.P.") 12.1 were to be made; and (5) whether the district court abused its discretion by allowing the use of the term "carjacking" in the presence of the jury. For the reasons that follow, we affirm.
The carjacking incident that is the basis of the charges in this case took place late in the evening on June 7, 1993, at 5105 Yaupon Lane in the Newburg area of Jefferson County, Kentucky. The automobile that was carjacked was a black 1977 Chevrolet Caprice Classic that belonged to 20-year-old Terry Masden. The victims were 20-year-old Latisha Beasley, Terry Masden's girlfriend, her two-year-old son DeAndre, and 17-year-old Chris Evans.
Shortly before the carjacking, defendant, codefendant Timothy Terrell Ballanger, and another person had been driving around the Newburg area in a yellow 1980 Chevrolet Caprice Classic. They stopped in front of Beasley's home to talk to Masden about his black Caprice, which Masden was attempting to sell. Later that evening, Masden, Beasley, Beasley's son, and Evans drove to the home of David McElvaney, who lived at 5105 Yaupon Lane. Masden got out of the car; Beasley remained seated in the front passenger seat, and Beasley's son and Evans remained seated in the back seat.
While Beasley was sitting in Masden's car, she saw a yellow Caprice, which she believed was the same one she had seen defendant in earlier, drive by. The automobile pulled around the corner onto a side street and stopped. Beasley then saw two black males walk around the corner and approach Masden's car, one of whom she recognized as defendant, the person she had seen talking with Masden earlier that day. Beasley testified that defendant was carrying what appeared to be a sawed-off pump-type shotgun, which was suspended by a strap of some kind. Defendant walked to the passenger side of the vehicle, where Beasley was seated, and pointed the gun at her through the open window. Defendant told her to get out, so she slid across the front seat and jumped out of the driver's side of the car. The other carjacker, who had a shiny object by his side that appeared to be a pistol, then got into the driver's seat. Evans grabbed Beasley's son and got out of the back seat of the car. Beasley ran and hid in McElvaney's car, which was parked on the street, and Evans took Beasley's son and walked to a big oak tree in McElvaney's yard.
Masden and McElvaney were standing on the porch in front of McElvaney's house when the yellow Caprice drove by. McElvaney had seen Masden talking to the occupants of a yellow Caprice earlier in the evening, and he believed that the automobile that drove by his house was the same one he had seen earlier. Masden and McElvaney both saw the carjackers as they came around the corner and approached Masden's car. Masden exclaimed that he recognized one or both of them, but neither of the carjackers replied. Masden testified that defendant was carrying what he believed was a sawed-off shotgun and that Ballanger was carrying a small-caliber chrome pistol, which he believed was a .380.
After the carjackers got in Masden's car, they backed it out of the driveway. As they came parallel to McElvaney's car, where Beasley was hiding, one of them fired a shotgun blast into the door of that car. After the carjackers left the scene, the police were called, and several officers responded. The victims immediately identified defendant and Ballanger as suspects, and warrants were issued for their arrest.
On June 8, 1993, Ballanger was arrested at his home. Ballanger's wife agreed to lead detectives to defendant's home. Ballanger's wife drove her car, and Ballanger accompanied the detectives, who followed in an unmarked police car. When the detectives arrived at defendant's home, they began surveillance while waiting for backup. They observed a blue Oldsmobile driven by a woman, who was later identified as defendant's aunt, back out of the driveway. Because they suspected that the Oldsmobile contained defendant, they followed it. When they saw a black male, whom they believed was defendant, sit up in the back seat, they gave chase. After attempting to evade the police, the Oldsmobile suddenly stopped on a side street, and a black male, identified by Detective Larry Duncan as defendant, jumped out of the Oldsmobile and ran. Although another detective ran after him, defendant was not caught. Ballanger, who remained in the unmarked police car during the chase, also identified the black male who was in the back of the Oldsmobile as defendant. The detectives returned to defendant's house, where they had previously seen the yellow Caprice parked, and had it towed.
On June 9, 1993, Ballanger went to the tow-in lot to retrieve his yellow Caprice, and the police conducted a consent search of the car. Detective Bishop found a locking lug nut, which later proved to have the same configuration as the other lug nuts and a lug nut key belonging to Masden. Masden's black Caprice was also recovered that day, and two locking lug nuts that had been in the glove box when the automobile was stolen were missing. Defendant's fingerprint was also lifted from inside the passenger window of Masden's recovered car.
In addition to the locking lug nut, the police found several items belonging to defendant in the yellow Caprice. Those items included a California photographic identification card bearing the name Bernard Woodson, but with a photograph of defendant affixed to it; a Pacific Bell telephone credit card, also in the name of Bernard Woodson; a paycheck from Bay Area Community Services of Oakland, California, payable to defendant; a "Bay Area Any Time" check-cashing card bearing defendant's signature; assorted keys on a keychain; and a receipt for a Western Union money transfer showing a transfer of $1000 from Ballanger to defendant's brother, Terrence Miles, the day after the carjacking.
Within a few days of the carjacking, Masden gave defendant's sister, Nikki Miles, a written statement recanting his prior identification of defendant and Ballanger as the two carjackers. In the statement, Masden stated that it was dark and that he could not really see who committed the carjacking. Masden agreed in the written statement that he would not testify at trial. When the police learned that Masden had given Nikki Miles the statement, they interviewed him and confirmed that Masden's prior identification had been truthful and that he had given the written statement to avoid any trouble. Masden testified at trial that he J.A. 206.
Defendant testified at trial and denied any involvement in the carjacking. He acknowledged being in the Newburg area with Ballanger and his cousin, Kenneth Miles, during the period shortly before the carjacking. However, defendant testified that at the time of the carjacking, they were at Kenneth Miles' residence across town. Defendant also denied running from the police the day after the carjacking.
Ballanger also testified that at the time of the carjacking, he was at Kenneth Miles' residence across town. Kenneth Miles testified as an alibi witness for defendant and Ballanger. In addition, to corroborate defendant's alibi defense, Nikki Miles testified that she had telephoned defendant at Kenneth Miles' home within a short time after the carjacking.
On September 7, 1993, the grand jury issued a three-count indictment, naming defendant Gregory Tyree Henderson in two of the counts and naming codefendant Timothy Terrell Ballanger in two of the counts. Count one charged defendant with carjacking--that is, taking by force, violence and intimidation, while possessing firearms, a motor vehicle that had been transported, shipped, and received in interstate commerce--in violation of 18 U.S.C. Sec. 2119. Count two charged defendant with using a firearm in relation to a crime of violence in violation of 18 U.S.C. Sec. 924(c)(1). Defendant was arraigned on December 14, 1993, and pleas of not guilty were entered on defendant's behalf on December 15, 1993.
On January 4, 1994, the grand jury issued a five-count superseding indictment, naming defendant in three of the counts and naming Ballanger in three of the counts. Counts one and two of the superseding indictment mirrored counts one and two of the original indictment. Count four of the superseding indictment charged defendant with being a felon in...
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Holman v. Gillis, Civ.A. 98-4276.
...offense in Pennsylvania, use of the term was merely illustrative of common experience. See United States v. Henderson, 50 F.3d 11, 1995 WL 122785, at *11 (6th Cir.1995) (unpublished op.) ("Moreover, the term carjacking has evolved as the legal term of art to describe the offense of armed ro......