U.S. v. Poindexter, s. 90-6030

• Decision Date: 15 August 1991
• Docket Number: 90-6260,Nos. 90-6030,s. 90-6030
• Citation: 942 F.2d 354
• Parties: 33 Fed. R. Evid. Serv. 1073 UNITED STATES of America, Plaintiff-Appellee, v. George POINDEXTER, Montez Day, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 354

942 F.2d 354

33 Fed. R. Evid. Serv. 1073

UNITED STATES of America, Plaintiff-Appellee, v. George POINDEXTER, Montez Day, Defendants-Appellants.

Nos. 90-6030, 90-6260.

United States Court of Appeals, Sixth Circuit.

Submitted March 26, 1991.

Decided Aug. 15, 1991.

W. Hickman Ewing, Jr., U.S. Atty., Timothy R. DiScenza, Asst. U.S. Atty. (argued and briefed), Office of U.S. Atty., Memphis, Tenn., for U.S.

Robert C. Brooks (briefed), Memphis, Tenn., for George Poindexter.

Clifton Harviel, Fed. Public Defender (argued and briefed), Memphis, Tenn., for Montez Day.

Before KENNEDY and RYAN, Circuit Judges, and FEIKENS, Senior District Judge. ^*

RYAN, Circuit Judge.

George Poindexter and Montez Day appeal their jury convictions for possession with intent to distribute cocaine and use of a firearm in a drug trafficking crime. Poindexter also appeals his conviction of being a felon in possession of a firearm, although he makes no argument in support thereof.

Day raises the following issues:

1. Whether Day was unfairly prejudiced by the district court's admonishment to defense counsel not to comment during closing argument on the lack of fingerprint evidence; and

2. Whether the district court erred by denying Day's Fed.R.Crim.P. 29 motion for acquittal or a new trial based on the insufficiency of the evidence on Count II, the gun possession charge?

We conclude that the court abused its discretion in forbidding Day's counsel to argue the lack of fingerprint evidence, and that Day was, as a result, denied a fair trial. We shall, therefore, reverse Day's conviction on both counts.

Poindexter raises the following issues:

1. Whether Poindexter was unfairly prejudiced by the district court's ruling limiting defense counsel's opening statement;

2. Whether Poindexter was unfairly prejudiced by the district court's ruling limiting cross-examination;

3. Whether the district court erred in explaining to the jury why it was being instructed to disregard a prior statement by the defendant; and

4. Whether Poindexter was unfairly prejudiced by the district court's admonishment to codefendant Day's counsel not to comment during closing argument on the lack of fingerprint evidence?

We think Poindexter was not unfairly prejudiced by any of the district court's rulings. Although we believe the court abused its discretion in limiting closing argument, in light of the strong evidence of Poindexter's guilt we find this error was harmless. We shall, therefore, affirm Poindexter's conviction.

I.

Belinda Sellers, who resided on Los Angeles Street in Memphis, Tennessee, observed drug sales and gun use at 766 Los Angeles Street, Memphis, Tennessee, the home of defendants George Poindexter and Montez Day. After she reported what she had seen to the police, she was asked to make a controlled purchase of narcotics and agreed to do so. With money supplied to her by the police, Sellers went to the defendants' home to make a drug buy where she met Poindexter and a man named Tarmooney. While inside the house, Sellers observed a "brick" of cocaine "the size of a paper towel." Poindexter and Tarmooney took Sellers' money and told her they needed a scale to weigh the cocaine. They left the room and returned about fifteen minutes later with a package of cocaine which they sold to Sellers. Based on this information, the police obtained a warrant to search the home.

The police officers who conducted the search testified that upon arriving at the home on January 5, 1990, to serve the warrant, they knocked at the door and yelled "police." There was no response, but when one of the officers heard shuffling inside, Officer Ross hit the door with a battering ram. On the second try, the door flew open. As the police entered, Poindexter fired a shot which struck Officer Robert Vaughn in the shoulder. The officers immediately arrested Poindexter.

During the search that followed, the police discovered sixteen grams of cocaine in the false bottom of a shaving cream can found in the bathroom. They also found three guns: a nine millimeter pistol in the front bedroom; a .32 caliber pistol on a lamp stand in the front room, and a .22 caliber pistol, the weapon used by Poindexter to shoot Vaughn. The police discovered Montez Day and a female visitor hiding in the closet of the rear bedroom.

Both Poindexter and Day were indicted on charges of possession of approximately sixteen grams of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (Count I), and knowingly carrying or using a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count II). Additionally, Poindexter was charged with knowing possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) (Count III). The defendants were tried by a jury in a joint trial.

During his opening statement, defense counsel attempted to explain that Poindexter used the gun in self-defense, and not in relation to a drug trafficking crime. The court refused to permit this claim, stating that self-defense is not relevant to a charge of using or carrying a firearm in relation to a drug trafficking crime.

During the government's case in chief, Sellers admitted, under cross-examination by Day's counsel, that she used crack cocaine approximately once a month over a four-month period. Counsel then attempted to impeach Sellers' veracity by referring to testimony she had given at a prior hearing in which she stated that she did not then recall using drugs. The prior testimony had begun with the question whether there was any reason Sellers would have trouble recalling dates. She was then asked whether she had trouble recalling because she used drugs. The court sustained the government's objection to this impeachment effort on the ground that defense counsel's cross-examination questions lifted the prior testimony out of context and were misleading and confusing.

On further cross-examination, Sellers, in response to an inquiry about how much cocaine she had purchased from Poindexter, answered that she had purchased an "eight ball." She stated that she did not know how many grams were in an eight ball but that she had turned over her entire purchase to the police. Later, defense counsel asked Officer Balee how much cocaine was in an eight ball and the officer responded that an eight ball is an eighth of an ounce, or 3.5 grams. The court sustained the government's objection when counsel asked the officer to convert the amount to grams. As an offer of proof, Officer Balee testified that Sellers turned over to the police only .8 grams. At a bench conference, defense counsel claimed that this line of questioning was relevant to Sellers' credibility since she had testified that she bought an eight ball, 3.5 grams, but turned over to the police only .8 grams. The court prohibited the questioning, however, because there was no evidence that Sellers knew how much an eight ball weighed.

Stephanie Simmons, Poindexter's girlfriend who was present during the raid, also testified. At a prior hearing in juvenile court, Simmons had testified that on the night of the raid the defendants "were talking about how much an ounce would cost and stuff like that and who would want to buy, and he going to hook them up with some people." At trial, Simmons denied ever having heard such a discussion. When confronted with her prior statement, she acknowledged having given it. Simmons also testified that the two defendants carried guns with them "all the time."

Officer Leo Hampton testified on direct examination that two pagers were found during the search and that Poindexter had admitted owning one of them. The court sustained defense counsel's objection to this testimony, as Poindexter's statement had not been furnished to defense counsel in discovery. Defense counsel then objected to the court explaining to the jury the basis for the ruling because the explanation suggested to the jury that the statement was reliable evidence excluded for merely technical reasons. The court overruled the objection and explained that the testimony was excluded under rules requiring the prosecution to provide the defense with statements by the defendant prior to trial.

On cross-examination of Officer Hampton, Poindexter's counsel attempted to explore Hampton's knowledge of the law requiring officers to knock and announce their business when executing a search warrant. The government objected. Defense counsel explained that he was attempting to challenge the credibility of the officers' testimony that they knocked at the door and announced their purpose by showing that they had a legal obligation to knock but a practical motive not to do so in order to prevent loss of evidence. The court sustained the objection, holding that it had already been determined at a pretrial hearing that the officers had knocked and that the search warrant was valid.

During closing argument, Day's counsel recalled that Officer Lonnie Thweatt had testified that it appeared to him that the shaving cream can in which the cocaine had been found had been dusted for fingerprints. Counsel then observed that the government had produced no evidence identifying the fingerprints. The court sustained the prosecution's objection to the lack of fingerprint testimony argument, stating that "[f]ingerprint evidence can only be introduced by an expert [who could] explain ... the science, the identification by fingerprints" and that an absence of fingerprint evidence did not "prove anything."

After the jury convicted both defendants on all counts, Day filed a Fed.R.Crim.P. 29 motion asking the court to set aside the jury verdict against him and grant him either a judgment of acquittal or a new trial. The district court, finding a jury submissible issue whether Day and Poindexter had possessed cocaine with intent to distribute from their home prior to and at the time of the raid, and finding that the presence of the...