U.S. v. Hines, 91-8163

• Decision Date: 17 March 1992
• Docket Number: No. 91-8163,91-8163
• Citation: 955 F.2d 1449
• Parties: 35 Fed. R. Evid. Serv. 310 UNITED STATES of America, Plaintiff-Appellee, v. Luke K. HINES, Fred Crenshaw III, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1449

955 F.2d 1449

35 Fed. R. Evid. Serv. 310

UNITED STATES of America, Plaintiff-Appellee, v. Luke K. HINES, Fred Crenshaw III, Defendants-Appellants.

No. 91-8163.

United States Court of Appeals Eleventh Circuit.

March 17, 1992.

Gregory E. Bennett, Savannah, Ga., for Hines.

Charles M. Jones, Hinesville, Ga., for Crenshaw.

Kathryn M. Aldridge, Asst. U.S. Atty., Savannah, Ga., for U.S.

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

Before KRAVITCH, and EDMONDSON, Circuit Judges, and HENDERSON, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

I. INTRODUCTION

Defendants-appellants Luke K. Hines and Fred Crenshaw III appeal their December 4, 1990 convictions in the Southern District of Georgia on one count each of aggravated sexual assault, 18 U.S.C. § 2241, and one count each of aiding and abetting one another. 18 U.S.C. § 2.

Appellants raise three issues on appeal: (1) The lack of a jury instruction specifically detailing the defense of consent; (2) the testimony given by a Government witness that referred to aliases used by the defendants and to the fact that Crenshaw was incarcerated at the time of questioning; (3) the admission into evidence of "mugshots" as unfairly prejudicial. We hold that neither the court's failure to give a jury instruction on consent nor the Government's use of aliases was error. We also hold that the court's admission of the testimony referring to Crenshaw's questioning in jail was not an abuse of discretion. The court's admission of the defendants' mugshots, however, was an abuse of discretion and cannot be considered harmless beyond a reasonable doubt. For this reason, we vacate the convictions and remand to the district court for a new trial.

II. FACTS

On February 13, 1990 Kache Willis Kleckely ¹ left the trailer home in the Fort Stewart, Georgia area where she was staying with a friend of her then-fiance (now husband). Willis walked to the mailbox in the trailer park, intending to mail some greeting cards, but was unable to do so because they were too big for the slot. She then began to walk down the road away from the trailer park in search of another mailbox. The defendants, who were driving along the same road, offered Willis a ride to the local post office and back, an offer she accepted. Neither Willis nor her fiance had a car and it was not unusual for them to accept rides on and around Fort Stewart. Hines, who called himself "Ronnie," was driving and Crenshaw, who called himself "Johnny," was lying down in the passenger seat; Willis got in and sat in the back seat of the car.

The early part of the trip was uneventful. Willis testified that Crenshaw and Hines took her to the post office in Waltourville, where she mailed her cards and letters. They told her they would take her home, but first wanted to see someone who owed them money and lived "way out" from Fort Stewart. Willis stated that she did not object to the trip and that they stopped along the way at a gas station for fuel, where the defendants also purchased beer. Willis testified that she first became nervous about being alone with the defendants when she saw signs pointing to Jacksonville and Savannah, but was reassured when she realized they were re-entering Fort Stewart. Instead of returning to Willis' home, however, Hines turned onto a dirt road that entered a wooded area, stopped the car, and indicated that there was something wrong with the engine. After mentioning that it might be overheated, he turned the car around to face the main road. Instead of returning to the highway, he put the car into reverse and backed further into the woods. Hines stopped the car again, got out, and walked a short distance into the woods before returning.

At this point, Willis' and the defendants' stories diverge. Willis testified that Hines and Crenshaw climbed into the back seat with her, Hines told her he wanted to have sex with her and began to touch her. Willis says she hit Hines' hand away from her but Hines enlisted Crenshaw's help in holding Willis down while both Hines and Crenshaw removed her clothes. First Hines and then Crenshaw had intercourse with Willis, which, she testified, was without her consent.

According to Hines, ² the three had been flirting throughout the entire car trip and each of the defendants engaged in consensual sex with Willis. Hines testified that when he returned to the car after walking into the woods to look for help with the overheated engine, Willis and Crenshaw were engaged in sexual activity in the back seat. Hines subsequently also engaged in consensual intercourse with Willis.

Both Hines and Willis agreed that after the intercourse, the defendants drove Willis back to the trailer park. On returning home, Willis called her housemate at his workplace, reported what had happened, and asked that he come home immediately. At her friend's urging, she called the local police department. She was questioned by police officers and taken to the Liberty County Hospital Emergency Room, where she was examined and released.

Willis gave Hinesville Police Department officers descriptions of the men she alleged had attacked her and explicit directions to where the attack had occurred. The wooded area where the car was parked was found to be located on Fort Stewart, within the territorial jurisdiction of the United States. The FBI was included in the investigation and prosecution was subsequently prepared by the Office of the United States Attorney for the Southern District of Georgia. The FBI and local police officers searched the area and essentially corroborated Willis' description of the scene.

Upon returning to the Hinesville Police station, FBI Special Agent Charles Gabriel and Hinesville Police officers composed two photospreads, each consisting of six photographs of individuals who fit the general physical description of the men identified by Willis as "Ronnie" and "Johnny." Willis examined the photospreads and positively identified two men as her assailants; Johnny was subsequently identified as Fred Crenshaw III and Ronnie was identified as Luke K. Hines. Crenshaw was known to the police as Eric James and the search warrant for his person to obtain bodily fluids was made out in that name. Crenshaw was located at Liberty County jail under the name of Eric James where he was being incarcerated for other activities unrelated to this charge. At trial Crenshaw frequently was referred to as Eric James as well as Eric Johnson, another name by which he was known.

Hines was located at his home in Hinesville and was questioned about Willis' allegations. Hines initially told the police that he had been at work the day Willis said she was attacked and did not know Willis. He later told the police that both he and Crenshaw had been with Willis and had had consensual intercourse with her.

The automobile described by Willis had been impounded by the Hinesville Police Department following an unrelated accident and was in police custody. After obtaining a search warrant, SA Gabriel searched the car, where he found numerous stuffed animals that had been described in detail by Willis.

At trial Hines maintained that Willis had consented to sexual intercourse with him and Crenshaw; Willis testified that Crenshaw and Hines had used force against her. The physical evidence was ambiguous. The physician who examined Willis in the emergency room testified that Willis had not suffered serious physical injury, but that she had evidence of muscle spasms and tenderness--signs of "overuse" that were neither inconsistent with, nor proof of, forcible intercourse.

SA Gabriel testified regarding Willis' identification of Crenshaw and Hines, whom Willis knew only as Johnny and Ronnie. He described how the photospreads had been put together and stated that Willis had positively identified her assailants. Over defense objections, the district court allowed the Government to introduce the photospreads as evidence of a prior identification of the defendants by Willis, although at trial Hines did not deny knowing or being with Willis.

SA Gabriel also described how he had located the defendants, and included the fact that Crenshaw was first interviewed in jail. The defense objected to the mention of Crenshaw's incarceration as unfair character evidence, but the district court overruled after reviewing the entirety of SA Gabriel's testimony.

At all points subsequent to the initial police interview, Hines did not deny that he and Crenshaw had sexual intercourse with Willis on February 13, 1990. Instead, Hines maintained that Willis had consented to intercourse and therefore no assault had occurred.

The Government was made aware before trial that neither Hines nor Crenshaw would present an alibi defense. The trial did not center on physical evidence or any question of identity; as the Government made clear in its closing argument, the credibility of Hines and Willis were essentially the only issues for the jury.

At the end of closing arguments the defense made a motion for acquittal, which was denied by the district court. The court charged the jury on the elements of aggravated sexual assault, including the requirement that the defendants had used force or the threat of force in order to engage Willis in sexual intercourse. The defense did not request a specific charge that consent to sexual intercourse is a complete defense to the charge of aggravated sexual assault, nor did the trial court include such a charge. The jury returned a verdict of guilty later the same day.

III. ANALYSIS

A. The Jury Charge

Appellants contend that the district court committed reversible error by failing to charge the jury that consent to sexual intercourse is a complete defense to the offense of aggravated sexual assault. Appellants admit that they neither requested such a charge nor objected to the substance of the charge actually given before the case was submitted to the jury....