U.S. v. Oliver

• Decision Date: 14 November 2001
• Docket Number: No. 00-4191.,00-4191.
• Citation: 278 F.3d 1035
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald Scott OLIVER, also known as Mark Lloyd, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

278 F.3d 1035

UNITED STATES of America, Plaintiff-Appellee, v. Ronald Scott OLIVER, also known as Mark Lloyd, Defendant-Appellant.

No. 00-4191.

United States Court of Appeals, Tenth Circuit.

November 14, 2001.

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Benjamin A. Hamilton, Salt Lake City, Utah, for Appellant.

Paul M. Warner, United States Attorney, and Diana Hagen, Assistant United States Attorney, District of Utah, Salt Lake City, Utah, for Appellee.

Before TACHA, Chief Judge, BALDOCK, and HENRY, Circuit Judges.

TACHA, Chief Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Petitioner-appellant Ronald Scott Oliver appeals his convictions for two counts of bank robbery, 18 U.S.C. § 2113(a), (d), and one count of use of a firearm in connection with a crime of violence, id. § 924(c)(1)(A)(ii). Oliver appeals these convictions on the grounds that: (1) the United States Attorney improperly commented on Oliver's invocation of his rights under Miranda v. Arizona, 384 U.S. 436, 467-74, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); (2) the trial judge improperly limited Oliver's Sixth Amendment right to cross-examination; (3) the district court erred by conditionally admitting rebuttal evidence of Oliver's conviction for driving under the influence (DUI) during the prosecution's case-in-chief; (4) the district court erroneously refused to clarify the record on appeal; (5) there was insufficient evidence to support the conviction; and (6) these errors, taken cumulatively, warrant a new trial. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I. Facts

Between June 18 and July 17, 1999, the First Security Bank was robbed twice (the first and third robberies) and the Zions Bank was robbed once (the second robbery). Both banks are located in grocery stores. After an extensive investigation, police arrested Jerry Petty for the third robbery. In exchange for a possible recommendation for a downward departure in sentencing, Petty agreed to give information and testimony regarding the first two robberies.

Petty claimed to have met a man named Scott earlier in the summer of 1999. According to Petty, Scott confided that he had previously robbed the First Security Bank. Petty also said that the pair had robbed the Zions Bank together.

An investigation eventually led the police to suspect that Ronald Scott Oliver was "Scott." Police arrested Oliver after Melinda Jillson, a teller at First Security Bank, identified him as the first robber. Oliver was tried and convicted for the first robbery of First Security Bank and for the robbery of Zions Bank. Oliver appealed, and we now affirm.

II. Discussion

We address each of Oliver's six grounds for appeal in turn.

A. Prosecutorial Comment on Oliver's Invocation of his Miranda Rights

Oliver first argues that during the course of the trial the prosecutor improperly commented upon Oliver's invocation of his Miranda rights. This allegation arises out of the following exchange between the United States Attorney and Agent George Dougherty:

Q. (U.S.Attorney) And did you prior to instigating that interview give him what are known as Miranda warnings?

A. Yes, we did.

Q. Did he subsequently exercise his rights under the Miranda warning and not discuss anything with you concerning —

Oliver immediately objected and moved for a mistrial. During a recess, the court found that the question was not improper comment upon Oliver's Miranda rights and denied the motion. The court offered to issue a limiting instruction, which Oliver declined.

We review de novo whether a defendant's Fourteenth Amendment rights have been violated. United States v. Hampshire, 95 F.3d 999, 1004-05 (10th Cir.1996).

Use of a defendant's invocation of Miranda rights against the defendant at trial violates the Due Process Clause of the Fourteenth Amendment. Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (establishing that prosecutorial comment upon a defendant's invocation of Miranda for impeachment purposes is impermissible). A prosecutor's statement or question relating to the invocation of Miranda rights, however, does not always rise to the level of a constitutional Doyle violation. Greer v. Miller, 483 U.S. 756, 764, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987). Analysis under Greer proceeds in two steps. First, we ask whether the prosecutor's question constituted a "use" of the defendant's Miranda rights. Greer, 483 U.S. at 763, 107 S.Ct. 3102. If not, our second step is to ask whether the question so unfairly prejudiced the defendant as to rise to the level of a due process violation. Id. at 765, 107 S.Ct. 3102. An affirmative answer to either of these questions warrants reversal, provided that the error is not harmless.

Starting with the first step of the Greer test, we find that the prosecutor's question did not constitute an improper use of Oliver's Miranda rights. Here, as in Greer, "[t]he fact of [the defendant's] postarrest silence was not submitted to the jury as evidence from which it was allowed to draw any permissible inference, and thus no Doyle violation occurred." 483 U.S. at 764-65, 107 S.Ct. 3102. In fact, the question in Oliver's case was even less damaging to the defendant than questions found permissible under Doyle in Greer and in this circuit's precedents. See, e.g., United States v. Lane, 883 F.2d 1484 (10th Cir.1989).

In Greer, for example, a prosecutor asked the defendant, "Why didn't you tell this story to anybody when you got arrested?" Id. at 759, 107 S.Ct. 3102. The defense attorney immediately objected under Doyle. Id. The trial court sustained the objection and issued a curative instruction. Id. The Supreme Court held that [T]he sequence of events at the trial, beginning with the single comment — but including particularly the proper and immediate action by the trial court, and the failure by defense counsel to request more specific instructions — indicates that [the defendant's] postarrest silence was not used against him within the meaning of Doyle."

Id. at 764 n. 5. The prosecutor's question in Greer — "Why didn't you tell this story to anybody when you got arrested" — made plain that the defendant actually had exercised his Miranda rights. Here, the prosecutor's wording — "Did [Oliver] subsequently exercise his rights under the Miranda warning ... ?" — left open the question of whether Oliver had exercised his Miranda rights. The trial judge then instructed the prosecution to move on until a hearing could be conducted on the motion for mistrial. The judge offered to issue a limiting instruction, which Oliver rejected. After the incident, there was no further comment by the United States Attorney. We are thus confronted with a situation almost identical to Greer.

In Lane, this court declined to find a Doyle violation in similar circumstances, but where the prosecutor's question about the invocation of Miranda elicited an answer. Lane, 883 F.2d at 1493-95. In Lane, the following exchange took place between a prosecutor and an F.B.I. agent:

Q. Did you advise him of his rights there?

A. Yes.

Q. Did he — he understood his rights?

A. He did.

Q. Did he say he would answer questions?

A. He did to a limited extent.

Q. Did he say he would answer questions but not others?

A. That's true.

Id. at 1493. The trial judge sustained an objection, instructed the jury not to consider the testimony, and the prosecutor made no further mention of the defendant's postarrest silence. Id. at 1493-94. We found no Doyle violation, and affirmed. Id. at 1494-95. The single unanswered question in Oliver's case carried less potential for damage than the exchange in Lane or the question in Greer, making it clear that the question at issue here does not warrant a reversal under Doyle.

Applying the second step of the Greer test, we find that the prosecutor's question did not "so infec[t] the trial with unfairness as to make the resulting conviction a denial of due process." Greer, 483 U.S. at 765, 107 S.Ct. 3102 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). The United States concedes on appeal that the prosecutor posed an improper question. Prosecutorial misconduct, however, must be "`of sufficient significance to result in the denial of the defendant's right to a fair trial'" before it will rise to the level of a due process violation. Id. The comment must be placed in the context of the whole trial, and not viewed in isolation. Id. at 766, 107 S.Ct. 3102 (citing Darden v. Wainwright, 477 U.S. 168, 179, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)). The single, unanswered question posed at Oliver's trial fails to meet this standard. Moreover, as evidenced by the sidebar that followed, the United States did not engage in an intentional attempt to infect the trial. Rather, the United States Attorney held a goodfaith belief that the question was proper (a belief that the trial court sustained). The prosecutor's knowledge of case law to support her position only lends credence to this belief. We find no grounds for reversal under either step of the Greer test.

B. Cross Examination Limitations

Oliver next complains that limitations on his cross-examination of Petty violated his confrontation rights under the Sixth Amendment. At trial, Oliver attacked Petty's truthfulness on cross-examination by eliciting facts regarding Petty's numerous failures to appear in court. He also attempted to discredit Petty's testimony by examining the details of Petty's plea bargain and his motives for entering into it. The district court allowed exploration of these general areas. The court did not, however, allow Oliver to inquire about the specific nature of...