U.S. v. Powell

• Decision Date: 07 September 2001
• Docket Number: No. CRIM 01-20021-01-KHV.,CRIM 01-20021-01-KHV.
• Citation: U.S. v. Powell, 165 F.Supp.2d 1230 (D. Kan. 2001)
• Parties: UNITED STATES of America, Plaintiff, v. Alex E. POWELL, Defendant.
• Court: U.S. District Court — District of Kansas

165 F.Supp.2d 1230

UNITED STATES of America, Plaintiff, v. Alex E. POWELL, Defendant.

No. CRIM 01-20021-01-KHV.

United States District Court, D. Kansas.

September 7, 2001.

COPYRIGHT MATERIAL OMITTED

Robin D. Fowler, Office of United States Attorney, Kansas City, KS, for U.S Joseph D. Johnson, Joseph D. Johnson, Chartered, Topeka, KS, Charles D. Dedmon, Michael L. Harris, Office of Federal Public Defender, Kansas City, KS, Alex E. Powell, Leavenworth, KS, Terrence J. Campbell, Barber, Emerson, Springer, Zinn & Murray, LC, Lawrence, KS, for Alex E. Powell.

MEMORANDUM AND ORDER

VRATIL, District Judge.

On June 7, 2001, a jury found defendant guilty of being a felon in possession of a firearm and ammunition. This matter is before the Court on defendant's Motion For New Trial (Doc. # 33) and Motion For Judgment Of Acquittal (Doc. # 35), both filed June 29, 2001. After carefully considering the parties' briefs, the Court overrules defendant's motions.

Standards For Motions For New Trial

Rule 33, Fed.R.Crim.P., provides that a motion for a new trial may be granted "if required in the interest of justice." A motion for new trial under Rule 33 is not regarded with favor and is granted only with great caution. See United States v. Custodio, 141 F.3d 965, 966 (10th Cir.1998). The decision whether to grant a motion for new trial is committed to the sound discretion of the trial court. See id.

Standards For Motions For Judgment Of Acquittal

In considering a motion for judgment of acquittal pursuant to Rule 29, Fed.R.Crim.P., the Court cannot weigh the evidence or consider the credibility of witnesses. See Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Rather, the Court must "view the evidence in the light most favorable to the government and then determine whether there is sufficient evidence from which a jury might properly find the accused guilty beyond a reasonable doubt." United States v. White, 673 F.2d 299, 301 (10th Cir.1982). The jury may base its verdict on both direct and circumstantial evidence, together with all reasonable inferences that could be drawn therefrom, in the light most favorable to the government. See United States v. Hooks, 780 F.2d 1526, 1531 (10th Cir.), cert. denied, 475 U.S. 1128, 106 S.Ct. 1657, 90 L.Ed.2d 199 (1986). Acquittal is proper only if the evidence implicating defendant is nonexistent or is "so meager that no reasonable jury could find guilt beyond a reasonable doubt." White, 673 F.2d at 301.

Factual Background

The evidence at trial may be summarized as follows:

In March 1996, defendant was convicted of aggravated robbery and aggravated burglary in the District Court of Wyandotte County, Kansas. The Honorable J. Dexter Burdette sentenced defendant to a term of imprisonment of 64 months with credit for time served. Following his release from prison, defendant resided at a halfway house.

On October 20, 2000, defendant was released from the halfway house. That evening, he went to see his girlfriend, Sheila McElroy. At approximately 11:00 p.m., the two went to a friend's apartment at 2405 Elmwood Avenue in Kansas City, Kansas. The apartment was located on the upper level of a two story apartment building with a wrap around balcony on the second story. At approximately 12:20 a.m. on October 21, 2000, in response to a report of an armed disturbance at that address, Officers Chris Johnson and Steve Haulmark of the Kansas City, Kansas Police Department arrived at the apartment building. Sergeant Kenneth Shafer arrived shortly thereafter. Officer Johnson testified that as he approached the apartment building from the parking lot he saw defendant banging on an apartment door on the second floor. As Officer Johnson got closer, he observed a handgun in defendant's right hand. Officer Johnson signaled to Officer Haulmark that defendant had a gun. When defendant turned and saw the police officers, Officer Johnson identified himself and told defendant to drop his gun. According to Officer Johnson, defendant acted nervous; he reached down and placed the gun underneath a chair which was next to the door, immediately below a porch light. Officer Haulmark testified that after Officer Johnson told defendant to put down the gun, he saw that defendant had something in his hand and that defendant made a movement towards the ground. Officer Haulmark could not see what, if anything, defendant placed on the ground. After defendant placed the gun beneath the chair, Officers Johnson and Haulmark and Sergeant Shafer ran up the stairs and arrested defendant as he attempted to enter the apartment. Officer Johnson recovered the firearm which was loaded with five rounds of ammunition. Each officer testified that defendant resisted arrest.

Defendant testified that while he was on the balcony to the apartment building, he noticed police officers in the parking lot. He testified that he went to the apartment door and asked for McElroy, but that officers grabbed him as he entered the apartment. Defendant testified that the officers beat him without provocation and that he did not have a gun.

Analysis

I. Defendant's Motion For A New Trial

A. Admission Of Defendant's Prior Conviction

Defendant argues that the Court erred by admitting evidence of his prior conviction, i.e. that the prior conviction was for aggravated robbery and aggravated burglary. Rule 609, Fed.R.Evid., permits introduction of prior convictions for the purpose of attacking the credibility of a witness. When a defendant testifies, evidence of a prior conviction for a crime punishable by death or imprisonment for over one year "shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused." Fed. R.Evid. 609(a)(1). At trial, defendant objected to cross-examination about his prior conviction. The Court overruled his objection. The Court noted that because defendant had put his character, honesty and integrity in issue, the probative value of the evidence outweighed its prejudicial effect. Defendant renews his objection. The Court's evidentiary rulings are reviewed for an abuse of discretion. See United States v. Davis, 40 F.3d 1069, 1073 (10th Cir.1994), cert. denied, 514 U.S. 1088, 115 S.Ct. 1806, 131 L.Ed.2d 732 (1995).

On direct examination, defendant testified that he felt bad about "it" (his conduct underlying the prior conviction), he regretted doing "it," and that he "just happened to end up going to the penitentiary for it." See Partial Transcript Of Jury Trial (Doc. # 32) filed June 13, 2001 at 2-3. Defendant also testified about positive aspects of his prior conviction: his rehabilitation, his work history and his church attendance in prison. Defendant's testimony opened the door for government counsel to ask about "it," i.e. the fact that defendant had been convicted for aggravated robbery and aggravated burglary. See Brown v. United States, 356 U.S. 148, 155-56, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958) (defendant cannot claim immunity from cross-examination on matters he put in dispute); United States v. Wolf, 561 F.2d 1376, 1381 (10th Cir. 1977) (where defendant attempts to explain away effect of prior conviction or to minimize his guilt, defendant may be cross-examined on any facts which are relevant to direct examination); Martin v. United States, 404 F.2d 640, 643 (10th Cir.1968) (where defendant admits prior felony conviction, prosecution permitted to ask what felony was and when was it committed); cf. United States v. White, 222 F.3d 363, 370 (7th Cir.2000) (where defendant attempts to explain away prior conviction on direct examination, he has opened the door to impeachment by prosecution on details of conviction). Moreover, defendant, just like any other witness, put his character at issue by simply testifying. To preclude all cross-examination regarding his conviction "would make the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell." Brown, 356 U.S. at 156, 78 S.Ct. 622; see United States v. Haslip, 160 F.3d 649, 654 (10th Cir.1998) (Tenth Circuit has long permitted government to impeach testimony of defendant in same manner as any other witness, including reference to prior convictions); Burrows v. United States, 371 F.2d 434, 435 (10th Cir.1967) ("When a defendant in a criminal action takes the stand, he takes with him his character and reputation. He is supported by more than his own testimony, for the law presumes that his reputation is good with respect to all elements involved in the crime with which he is charged. For this reason it has always been considered proper in cross-examination to interrogate him as to all collateral matters which would clearly tend to disprove the legal presumption with which he is clothed.") (internal citation omitted). "Although [defendant] stipulated to his prior conviction of a felony, an element that the government would otherwise have to prove, ... [t]he jury has a right under the law to hear that any witness, whether it is the defendant or not, has a felony record that is or can be considered to be impeaching." United States v. Toney, 27 F.3d 1245, 1253 (7th Cir.1994).

Several circuit courts have outlined five factors to guide district courts when balancing the probative value and prejudicial effect of a defendant's prior conviction under Rule 609(a)(1). See, e.g., United States v. Jimenez, 214 F.3d 1095, 1098 (9th Cir.2000); United States v. Smith, 131 F.3d 685, 687 (7th Cir.1997); United States v. Sloman, 909 F.2d 176, 181 (6th Cir. 1990); Gordon v. United States, 383 F.2d 936, 940 (D.C.Cir.1967). These factors include:

1. the impeachment value of the prior crime;

2. the point in time of the conviction and the witness' subsequent history;

3. the similarity between the past crime and the charged crime;

4. the importance of the defendant's testimony; and

5....