U.S. v. McKissick

• Citation: 204 F.3d 1282
• Decision Date: 24 February 2000
• Docket Number: 98-6351,No. 98-6320,98-6320
• Parties: (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DARHEE GRAY MCKISSICK, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DELMAR ANTON ZEIGLER, a/k/a Stix Zeigler, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1282

204 F.3d 1282 (10th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DARHEE GRAY MCKISSICK, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DELMAR ANTON ZEIGLER, a/k/a Stix Zeigler, Defendant-Appellant.

No. 98-6320, 98-6351

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

February 24, 2000

Appeals from the United States District Court for the Western District of Oklahoma. D.C. No. CR-98-29-L

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Daniel G. Webber, Jr. (Patrick M. Ryan, United States Attorney, with him on the brief), Assistant United States Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee in No. 98-6320 and No. 98-6351.

Teresa Brown, Assistant Federal Public Defender, Oklahoma City, Oklahoma, for Defendant-Appellant in No. 98-6320.

Joseph L. Wells, Oklahoma City, Oklahoma, for Defendant-Appellant in No. 98-6351.

Before BRORBY, ANDERSON, and BRISCOE, Circuit Judges.

BRORBY, Circuit Judge.

Mr. Darhee Gray McKissick and Mr. Delmar Anton Zeigler were arrested following a shooting at a nightclub in Oklahoma City. The Oklahoma County District Attorney's office declined to file charges against Mr. McKissick for shooting with intent to kill but authorized charges against Mr. McKissick and Mr. Zeigler for trafficking in 20.9 grams of cocaine base. The State of Oklahoma subsequently dismissed these charges. However, a federal grand jury, sitting in the Western District of Oklahoma, returned a six-count indictment, charging Mr. McKissick in three counts and Mr. Zeigler in four counts. Count One charged Mr. McKissick with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Count Two charged Mr. Zeigler with being a felon in possession of a firearm in violation of U.S.C. 18 § 922(g)(1). Count Three charged both defendants with possession of sixty-three grams of crack cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Count Four charged Mr. Zeigler with possession of sixteen grams of crack cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Count Five charged Mr. McKissick with carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). Count Six charged Mr. Zeigler with carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c).

Prior to trial, Mr. Zeigler moved to suppress the evidence against him. After holding a hearing on the motion, the district court denied Mr. Zeigler's request and the case proceeded to trial. The government filed an information pursuant to 21 U.S.C. § 851 notifying Mr. Zeigler it intended to seek enhanced penalties if Mr. Zeigler was convicted of the drug trafficking charges in Counts Three and Four. The Defendants were tried jointly. At the close of the government's case, the district court granted Mr. Zeigler's motion for acquittal on the weapons charges, Counts Two and Six. The court overruled Mr. Zeigler's motion for acquittal on the other counts and overruled Mr. McKissick's motion for acquittal.

The jury found Mr. Zeigler guilty on both drug trafficking charges. Pursuant to the statutory enhancements filed by the government, Mr. Zeigler was sentenced to life without parole for each Count with the sentences to run concurrently, plus ten years of supervised release. The jury found Mr. McKissick guilty on all three counts with which he was charged. Mr. McKissick was sentenced to 120 months imprisonment on Count One and 240 months imprisonment on Count Three, those sentences to run concurrently. Mr. McKissick was also sentenced to five years imprisonment on Count Five, to be served consecutively to the other sentences. Both defendants filed timely appeals. These appeals are addressed simultaneously in this opinion. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 and affirm.

I. BACKGROUND

In the early morning hours of December 7, 1997, a shooting took place in the parking lot of Lan's Night Club in Oklahoma City. The Oklahoma City Police Department sent out a dispatch reporting a drive-by shooting in the nightclub parking lot. According to the dispatch, the suspect vehicle was a 1970s model green Chevrolet Impala and the suspects were reported to be black males. Officer Dale Thomas, of the University Hospital Police, heard the dispatch and within minutes saw a car matching the description a couple of miles from the nightclub. Officer Thomas turned on his lights and stopped the car, but when he approached the car, it sped away. Officer Thomas followed the car to Presbyterian Hospital. The driver, Mr. McKissick, got out of the car and stated he had been shot. Officer Thomas asked Mr. McKissick to place his hands on the car, and the officer conducted a quick pat-down search for weapons. Officer Thomas then asked the front seat passenger, Mr. Zeigler, to step out of the car. Mr. Zeigler placed his hands on the car and Officer Thomas conducted a quick pat-down search of Mr. Zeigler for weapons. When Officer Thomas's partner arrived, Mr. Zeigler was handcuffed and placed in Officer Thomas's patrol car. Officer Thomas then took Mr. McKissick inside the hospital for treatment. Mr. McKissick later admitted the car was his.

While Mr. McKissick was in the emergency room reception area, Mr. Tommy Simpkins, who was also at the hospital for treatment of a gunshot wound, saw Mr. McKissick and immediately identified Mr. McKissick as the person who had shot him. At trial, Mr. Simpkins testified he had gone to Lan's Night Club that evening, but left after a fight broke out. Mr. Simpkins further testified he was in a van with some other men in the nightclub parking lot when they encountered Mr. McKissick and Mr. Zeigler in a green Chevrolet. Mr. McKissick and Mr. Simpkins traded insults related to their respective street gangs, and then Mr. McKissick leaned out the driver's side window of his car and fired a gun, striking Mr. Simpkins in the chest.

Oklahoma City Police Department Officer William Patten responded to a call from Presbyterian Hospital, and quickly learned a vehicle believed to be the one involved in the shooting was at the hospital. He was told one of the car's occupants had been shot and the other occupant, Mr. Zeigler, was being held by the hospital police. Officer Patten decided to transfer Mr. Zeigler to his police car, intending to arrest Mr. Zeigler for the drive-by shooting. Although he had been told Mr. Zeigler had already been "patted down" for weapons, Officer Patten decided to conduct his own pat-down search of Mr. Zeigler before placing him in his patrol car. Officer Patten discovered a bulge in Mr. Zeigler's crotch area inconsistent with his genitals. Officer Patten suspected the bulge was narcotics and pulled the lump out of Mr. Zeigler's pants. The bulge turned out to be the sixteen grams of crack cocaine that formed the basis for Count Four. Officer Patten then placed Mr. Zeigler in his patrol car. Officer Patten and his partner, Officer Harper, then entered the hospital to find the driver of the car, Mr. McKissick. After finding Mr. McKissick sitting in a chair in the hospital emergency room with a bullet wound in his right arm, Officer Patten told Officer Harper to handcuff Mr. McKissick and arrest him for discharging a firearm from a motor vehicle. Officer Patten then went back outside and looked in Mr. McKissick's car. While Officer Patten was standing outside the car, he saw a package on the back seat floorboard containing what he believed to be additional cocaine. However, Officer Patten did not mention the package in his report.

Officer Patten then transported Mr. Zeigler to the county jail. On the way, Mr. Zeigler admitted he had been smoking cigarettes laced with PCP. As Mr. Zeigler was being booked, he asked Officer Patten what charges he was facing. Officer Patten related the charges, and Mr. Zeigler responded: "The crack is mine, but I didn't shoot anybody."

Officer Darrin Guthrie, a technical investigator for the Oklahoma City Police Department, had been called to the hospital earlier in the evening on an unrelated matter. Officer Guthrie heard Mr. Simpkins accuse Mr. McKissick of shooting him in the chest. He witnessed the ensuing altercation between Mr. Simpkins and Mr. McKissick and assisted in separating them. Officer Guthrie restrained Mr. Simpkins and made sure he received medical attention. Officer Guthrie then returned to his vehicle, retrieved his camera, and took pictures of the victims and Mr. McKissick's car. The car doors were open and the engine was running. From the outside of the car, Officer Guthrie photographed spent shell casings and what he believed to be narcotics in a transparent, brown-colored baggie on the back seat floorboard. The car was then sealed and impounded. Officer Guthrie did not mention seeing the bag of suspected narcotics in his report.

Later that day, Officer Patten told Detective Riggs he had seen a large package in the back of the car he believed to be additional cocaine. Detective Riggs applied for a search warrant to search Mr. McKissick's car. In his affidavit, Detective Riggs stated he went to the Oklahoma City garage and saw the plastic baggie observed by Officer Patten and several spent shell casings in Mr. McKissick's car. In his affidavit, Detective Riggs did not mention the other officers' failure to include their observations of the baggie in their reports.

While executing the warrant, Officer Guthrie found two spent .380 caliber casings, one spent 9 mm casing, an empty 9 mm magazine in the glove box, and a package on the back floorboard. The package was discovered to contain sixty-three grams of crack cocaine, with which both Defendants were charged with possessing with intent to distribute in Count Three. Officers also searched the entire nightclub parking lot. One spent .380 caliber shell casing and two spent 9...