U.S. v. Patterson

• Decision Date: 14 July 1994
• Docket Number: No. 93-2693,93-2693
• Citation: 23 F.3d 1239
• Parties: 40 Fed. R. Evid. Serv. 1085 UNITED STATES of America, Plaintiff-Appellee, v. Mark A. PATTERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1239

23 F.3d 1239

40 Fed. R. Evid. Serv. 1085

UNITED STATES of America, Plaintiff-Appellee, v. Mark A. PATTERSON, Defendant-Appellant.

No. 93-2693.

United States Court of Appeals Seventh Circuit.

Argued Feb. 15, 1994.

Decided May 11, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied July 14, 1994.

Rodger A. Heaton, Asst. U.S. Atty., Lee H. Dodd (argued), Springfield, IL, for plaintiff-appellee.

Lance T. Jones (argued), Springfield, IL, for defendant-appellant.

Before WOOD, Jr. and KANNE, Circuit Judges, and FOREMAN, District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

A jury found Mark Patterson guilty of being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g). Because he had at least three previous convictions for violent crimes, the district judge determined that he was eligible for enhanced penalties pursuant to the Armed Career Criminal Act. 18 U.S.C. Sec. 924(e). Ultimately the judge sentenced Patterson to 288 months in prison. Patterson now appeals both his conviction and his sentence.

I.

On June 7, 1992 Anita Witherspoon and Kyle Taylor were at Comer Cox Park in Springfield, Illinois. They were seated in Witherspoon's car. Mark Patterson ("the defendant") and his cousin, James Patterson were in a car parked next to Witherspoon and Taylor. At some point James Patterson approached Kyle Taylor and had a discussion with him. He then took $88.00 from Witherspoon and returned to his car. ¹ Following this, Witherspoon took a machete from her trunk and approached the other car in an attempt to get her money back. ² James Patterson and the defendant pointed guns at her and threatened to kill her if she did not leave immediately. According to her, the defendant's gun was longer than James Patterson's gun. She left the park, but as she left she noted the license plate number of the defendant's car.

She reported the incident to the police and provided a description of the car as well as the name of the defendant. Less than an hour later, the police stopped a car matching the description Witherspoon had given. The defendant was driving. Two passengers were in the car who were not involved in the incident at the park. The police searched the car and found a .38 caliber revolver on the front passenger floorboard. The gun was protruding from a bag and visible to one looking in the car. Witherspoon and Taylor identified the defendant as being involved in the incident. Witherspoon also identified the gun. During the trial Witherspoon testified to these facts and identified the .38 caliber revolver (Government's exhibit 1) as the gun that the defendant had used to threaten her life.

The other two main witnesses, Kyle Taylor and James Patterson, both testified that the defendant did not have a gun during the incident. The prosecutor impeached them with prior inconsistent statements in which they had each stated that the defendant was in possession of a gun.

The jury began deliberating on December 8, 1992. At the end of their deliberations that evening, the district court excused one juror, because she had a prior commitment. The court instructed the jury to proceed the next morning with eleven jurors. During the remaining deliberations, the jury sent several inquiries to the court. It requested the transcript of Anita Witherspoon's testimony, a definition of reasonable doubt, and the transcript of the testimony of one of the witnesses used to impeach another witness. Although the court was prepared to allow the jury to view Witherspoon's testimony, they reached a verdict before the transcript was prepared. The court denied the request for the impeachment witness' transcript and instructed the jury that no fixed definition of reasonable doubt existed. The jury returned a verdict of guilty. After finding that the defendant had been convicted of at least three violent crimes in the past, the court applied the Armed Career Criminal Act in conjunction with the sentencing guidelines.

II.

The defendant raises the following arguments on appeal: 1) the government failed to present sufficient evidence to convict him of possessing a firearm beyond a reasonable doubt; 2) the government's impeachment of its own witnesses was improper; 3) the conduct of the prosecutor during the trial deprived the defendant of his right to a fair trial; 4) the court erred by applying the Armed Career Criminal Act; 5) the court erred by communicating with the jury without the defendant being present; 6) the court erred by dismissing one juror and allowing the remaining eleven to deliberate without substituting an alternate. We address each of these arguments below.

A. Sufficiency of the evidence

The defendant first argues that the government failed to present sufficient evidence to convict him beyond a reasonable doubt. When reviewing the sufficiency of the evidence we ask "whether any rational trier of fact could have found all of the elements of the crime beyond a reasonable doubt, viewing the evidence and every reasonable inference in the light most favoring the prosecution." United States v. Colonia, 870 F.2d 1319, 1326 (7th Cir.1989). The main issue at trial was whether the defendant knowingly possessed the firearm charged in the indictment, a .38 caliber revolver. The government introduced this gun as Government's Exhibit 1. Furthermore, the government called Anita Witherspoon as a witness. She testified that she was present at Comer Cox Park when the defendant pointed a gun at her and threatened her life. She also testified that the gun he used to threaten her looked exactly like Government's Exhibit 1. After the incident in the park, the police, acting upon Witherspoon's report, arrested the defendant and found Government's Exhibit 1 in the car he was driving. At the time of the defendant's arrest, Witherspoon identified both the defendant and the gun. This evidence is sufficient to allow a jury to conclude that the defendant was knowingly in possession of the .38 caliber revolver on the day of the incident in Comer Cox Park.

The defendant's attempt to minimize the importance of this evidence stems from his characterization of Witherspoon's testimony as "inherently incredible," a characterization that is inaccurate. We have previously held that "[t]o be incredible as a matter of law, the testimony must be incredible on its face, it must be 'impossible under the laws of nature for the occurrence to have taken place at all.' " United States v. Hernandez, 13 F.3d 248, 252-53 (7th Cir.1994) (quoting United States v. Dunigan, 884 F.2d 1010, 1013 (7th Cir.1989)). In support of his claim, the defendant makes several arguments. First, he notes that in a previous hearing, Witherspoon had stated that Government's Exhibit 1 "looked more like the [gun James Patterson] had," not the gun the defendant used. At trial, however, she explained that at the hearing she was unaccustomed to seeing the gun with the trigger lock and tags that were placed on it. Those things made the gun appear shorter to her leading her to believe that it was James Patterson's gun. At trial she identified Government's Exhibit 1 as the defendant's gun because she then realized it was not as short as she initially believed. Her testimony was therefore always consistent. She consistently stated that the defendant had a gun and used it to threaten her. She consistently stated that his gun was shorter than his cousin's gun. Finally at trial she identified Government's Exhibit 1 as the gun the defendant pointed at her. Her explanation for why she earlier stated that it looked like the cousin's gun was perfectly consistent with all of her previous testimony. Therefore, this argument fails to establish that Witherspoon's trial testimony was incredible on its face.

Next the defendant notes that in earlier versions of the incident Witherspoon stated that the defendant's gun was silver; Government's Exhibit 1 is black. The defendant introduced this prior description as a means of impeaching Witherspoon's testimony. The jury is the final arbiter of questions pertaining to which witnesses to believe, ³ and which part of those witnesses' testimony to believe. ⁴ The fact that, shortly after a traumatic experience she initially provided a slightly different description of the gun does not render her trial testimony facially incredible. The inconsistency may affect her credibility but that credibility determination is for the jury to make, not this court. ⁵ Moreover, "[m]inor inconsistencies in the testimony do not render it legally incredible." Id. ⁶

B. The government's impeachment of its own witnesses

The prosecutor called Kyle Taylor and James Patterson as witnesses and impeached both of them with prior inconsistent statements. Federal Rule of Evidence 607 allows any party to attack the credibility of a witness, even its own witness. Nevertheless, the prosecution may not

call a witness that it [knows will] not give it useful evidence, just so it [can] introduce hearsay evidence against the defendant in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence....

United States v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984). Defendant now contends that the government had such a bad faith purpose when it called Taylor and Patterson as witnesses. Specifically he claims that the government knew that neither witness would provide useful testimony and nonetheless called them, solely for the purposes of introducing their otherwise inadmissible prior inconsistent statements. The record does not support such a conclusion.

1. Impeachment of James Patterson

The government's decision to call James Patterson does not even hint at a bad faith purpose. By all accounts, prior to trial, James Patterson had stated unequivocally that the defendant possessed a gun during the incident in Comer Cox Park. At trial however, he changed his story and testified that the defendant did not have a gun. Consequently,...