U.S. v. Hendrix

• Decision Date: 03 December 2007
• Docket Number: No. 06-4355.,06-4355.
• Citation: 509 F.3d 362
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry HENDRIX, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

509 F.3d 362

UNITED STATES of America, Plaintiff-Appellee, v. Larry HENDRIX, Defendant-Appellant.

No. 06-4355.

United States Court of Appeals, Seventh Circuit.

Argued September 19, 2007.

Decided December 3, 2007.

Paul W. Connell (argued), Office of United States Attorney, Madison, WI, for Plaintiff-Appellee.

T. Christopher Kelly (argued), Kelly & Habermehl, Madison, WI, for Defendant-Appellant.

Before BAUER, MANION, and WOOD, Circuit Judges.

BAUER, Circuit Judge.

A jury convicted Larry Hendrix of possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to 262 months' imprisonment. Hendrix challenges his conviction, claiming that the district court erred in (1) finding that the prosecution made a race-neutral showing for striking two African-Americans during voir dire; (2) allowing testimonial evidence that a judge approved a warrant to search Hendrix's home; and (3) concluding that Hendrix was not subject to interrogation under Miranda. Hendrix also challenges his sentence. For the following reasons, we affirm.

I. Background

On February 9, 2006, agents of the Dane County Narcotics and Gang Task Force received information from a confidential informant about a man named "Chase," whom the informant later identified as Larry Hendrix. The informant told the agents that earlier that day he was at Hendrix's apartment and saw Hendrix move two firearms from the kitchen table to the back of the apartment where the bedrooms were located. The informant also told the agents that Hendrix was supposed to meet a man named "Meat" to sell heroin later that day. Detective Steven Wegner obtained a search warrant for Hendrix's apartment at 220 Deer Valley Road, Apartment 1, in Madison, Wisconsin.

That evening, the agents arrived at Hendrix's apartment and took Hendrix into custody on an outstanding arrest warrant for a traffic offense. After Detective Wegner read the search warrant to Hendrix, Officer Lester Moore transported Hendrix to Dane County Jail to book him on the traffic offense. The other agents, including Detective Wegner and Detective Bill Hendrickson, executed the search warrant and confiscated a sawed-off shotgun and ammunition, which they found in a back bedroom.

While Officer Moore booked Hendrix at the jail, he learned that the agents who executed the search warrant had recovered a firearm and ammunition at Hendrix's apartment. Hendrix was anxious as he waited in the booking area, and repeatedly asked Officer Moore about the charges against him. When Officer Moore told him that items found at his residence would lead to more charges against him, Hendrix replied that "all they were going to find would be a pistol." Officer Moore told Hendrix that the agents found something larger than a pistol, to which Hendrix responded that he "call[ed] everything a pistol," and that he had only obtained the weapon because his "apartment had been broken into . . . and [that he] needed some protection."

Hendrix was indicted under 18 U.S.C. § 922(g)(1) for possession of a firearm and ammunition as a convicted felon. Hendrix moved to suppress his statements made to Officer Moore during booking, and an evidentiary hearing was held on July 7, 2006. A magistrate judge found that Hendrix's post-arrest statements were volunteered and that Officer Moore did not subject Hendrix to questioning that afforded Hendrix protection under Miranda. The magistrate judge recommended that Hendrix's motion be denied. The district court accepted and adopted this recommendation, noting that the record showed that Hendrix was the one that did most of the talking and that Officer Moore merely responded in an effort to calm Hendrix down.¹

Voir dire took place on September 5, 2006. The venire consisted of thirty-three people, and after questioning by the court, both sides exercised a combined total of eighteen peremptory challenges. The court noted that the prosecution used two of its challenges to exclude Juror Nos. 22 and 16, the only African-Americans in the venire. Recognizing that a prima facie case of discrimination had been established, pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the court sua sponte called both parties to the bench for a sidebar. The prosecution offered an explanation as to why he struck those particular jurors, stating, "Mr. Woodland, number 22, he said his stepson is in prison for armed robbery, and that gave me pause. I struck from the panel everyone that I could that has relatives in prison . . . Ms. Hairston, number 16, who said her brother was in prison for murder. . . ." The prosecution also noted that he struck Juror No. 13, Ms. Strock, a Caucasian woman, "who said her [step]father was in prison." Defense counsel expressed concern that the only two African-Americans were gone, stating "[it] leaves us with a jury without any minorities. And Mr. Hendrix is obviously African-American, and so that gives us some concern." Defense counsel did not address the fact that Juror Martin, a Caucasian woman, was not struck from the panel, despite the fact that she had a brother who was sent to a reform school for armed robbery at age sixteen.

The prosecution then added that Mr. Woodland was "one of those CSI guys," and that he had "great concern about the jurors who watch a lot of CSI," because it was a "straightforward case."² Additionally, the prosecution noted that Mr. Woodland had a friend who was a Wisconsin Department of Corrections officer, and Ms. Hairston had a good friend who was a police officer. Defense counsel did not respond, and the court stated, "Okay, I think that's a legitimate showing," and excused Jurors Woodland, Hairston, Strock and fifteen other individuals as a result of the parties' peremptory challenges. When voir dire ended, defense counsel requested a copy of the transcript of the proceeding.

The trial began on September 11, 2006. Before opening statements, defense counsel stated on the record that he wanted "the record to be clear the defense has made . . . a challenge to the [prosecution's] use of its peremptory challenges under Batson," to which the court replied, "Thank you."³

During opening statements, the prosecution told the jury that police officers had information to believe that Hendrix had a firearm in his apartment, and obtained a search warrant from a judge to search the apartment. After opening statements ended, defense counsel requested a sidebar and moved to enjoin the prosecution from referring to the fact that a judge approved the search warrant for Hendrix's apartment.⁴ The court granted defense counsel's motion, noting that the prosecution was allowed to say that the officers had a warrant, but was not permitted to refer to a judge's approval of the warrant.

The prosecution's first witness was Detective Hendrickson. During direct examination, the prosecution asked, "Prior to the execution of [the] warrant, had the warrant been approved?" Detective Hendrickson answered, "Yes, by a Dane County Judge, yes." After the detective finished testifying, defense counsel moved for a mistrial, arguing that the prosecution was not permitted to elicit testimony about a judge's approval of the search warrant. The court stated, "I did say that [the prosecution] couldn't mention the judge approved [the warrant]." The court did not rule explicitly on Hendrix's motion for mistrial, and the trial continued.

The jury found Hendrix guilty. On September 28, 2006, Hendrix filed a motion for a new trial, arguing that the district court denied him a fair trial in finding that the prosecution made a race-neutral showing in striking the only two African-Americans in the venire, and in denying Hendrix's motion for a mistrial after the prosecution made improper references to a judge's approval of a search warrant.

On November 30, 2006, the district court denied Hendrix's motion for new trial. The court held that the prosecution's explanation of its strikes were race-neutral, credible, and lacked purposeful discrimination under Batson. The court found that the prosecution's explanations were sufficient, in that the two African-American jurors and one Caucasian juror were struck because they might be biased against the government, due to having relatives that had been convicted of serious crimes. The court also noted that in his motion for a new trial, Hendrix argued for the first time that the prosecution did not strike all of the jurors in the venire with relatives in prison, referring to Juror Martin. The court explained: "If this is true, [Hendrix] did not bring it to my attention at the sidebar conference, when [the prosecution] could have responded and when any problem could have been cured."

Furthermore, the court held that Hendrix did not raise any specific concerns at the sidebar during voir dire about the prosecution's reasons for striking the jurors, nor did he identify any new grounds for his challenge on the morning of trial, despite having a week to review the voir dire transcript. The court found that Hendrix failed to show during voir dire that the prosecution's exercise of its peremptory challenges violated his right to equal protection, Hendrix waived the right to make any additional showings, and the reasons given by the prosecution for striking the two African-American jurors were legitimate.⁵

The district court also held that the prosecution's improper references to the search warrant were limited, and any error was harmless. The court noted that the prosecution should not have asked Detective Hendrickson about whether the search warrant had been approved, but that the testimony "was not elaborated on and, given the strong evidence against [Hendrix], it would not have had any effect on the outcome of the trial."

In preparing the pre-sentencing report ("PSR"), the probation office found that Hendrix qualified as an Armed Career Criminal under 18 U.S.C. § 924(e),...