U.S. v. Simmons, 91-5202

• Decision Date: 14 May 1992
• Docket Number: No. 91-5202,91-5202
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven Allen SIMMONS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 183

961 F.2d 183

UNITED STATES of America, Plaintiff-Appellee, v. Steven Allen SIMMONS, Defendant-Appellant.

No. 91-5202.

United States Court of Appeals Eleventh Circuit.

May 14, 1992.

Kenneth M. Swartz, Brenda G. Bryn, Asst. Federal Public Defenders, Miami, Fla., for defendant-appellant.

Linda Collins Hertz, Kathleen M. Salyer, Edward R. Ryan, Asst. U.S. Attys., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before HATCHETT, Circuit Judge, JOHNSON ^* and HENDERSON, Senior Circuit Judges.

PER CURIAM:

This case arises on appeal following the conviction and sentencing of defendant-appellant Steven Allen Simmons.

I. STATEMENT OF THE CASE

On October 31, 1989, City of Miami Police Officer Kelvin Knowles apprehended Steven Allen Simmons, whom Knowles had earlier observed clutching a brown paper bag. Knowles examined the bag and discovered that it contained a loaded firearm. After Knowles advised Simmons of his Miranda rights, Simmons asked the officer for "a break," and stated that he could not "stand a pistol charge." Simmons was arrested and incident to booking was found to have prior convictions for violent felonies.

On January 4, 1990, a federal grand jury returned a one-count indictment charging Simmons with possession of a firearm by a convicted felon, in violation of 18 U.S.C.A. §§ 922(g)(1), 924(a)(2), and 924(e) (West Supp.1992). A jury convicted Simmons on June 29, 1990. Pursuant to the Armed Career Criminal Act, the district court on February 22, 1991 sentenced Simmons to fifteen years imprisonment and three years of supervised release. See 18 U.S.C.A. § 924(e).

II. ANALYSIS

Simmons raises the following two principal claims on appeal: (1) the district court committed plain error by failing to excuse, sua sponte, certain jurors for cause, and (2) the district court considered convictions resulting from a constitutionally invalid guilty plea as predicate convictions when sentencing Simmons under the Armed Career Criminal Act. For the following reasons, we conclude that neither of these claims has merit. We therefore affirm Simmons' conviction.

A. Excusing jurors sua sponte

Simmons claims that four jurors--Dorothy White, Mary Floyd, Josephina Garcia, and Alejandro Gonzalez--displayed bias and partiality in the course of voir dire and, therefore, should have been excused by the district court sua sponte for cause. Simmons argues that the district court's failure to excuse those jurors for cause, notwithstanding Simmons' failure to challenge the jurors either for cause or peremptorily, deprived him of his Sixth Amendment right to an impartial jury.

The constitutional standard for juror impartiality is whether the juror "can lay aside his opinion and render a verdict based on the evidence presented in court." Patton v. Yount, 467 U.S. 1025, 1037 n. 12, 104 S.Ct. 2885, 2892 n. 12, 81 L.Ed.2d 847 (1984). Evaluation of bias involves assessing a juror's credibility and "therefore[ ] his or her demeanor." Depree v. Thomas, 946 F.2d 784, 790 n. 12 (11th Cir.1991). "Accordingly, it is generally proper for a reviewing court, which must rely on a cold record, to defer to the conclusions reached by the trial judge on this issue." Id.; see United States v. Nash, 910 F.2d 749, 753 (11th Cir.1990). If an objection is timely raised below, this Court reviews the determination of the district court for "manifest abuse of discretion." United States v. Muller, 698 F.2d 442, 444 (11th Cir.1983).

In the instant case, Simmons failed to object during the lower court proceedings. We must therefore grant the lower court's finding of impartiality still greater deference under the plain error doctrine:

Plain errors are those seriously affecting the 'fairness, integrity, or public reputation of judicial proceedings.' Furthermore, the error must be both obvious and substantial. [Plain error is found] in exceptional circumstances where needed to prevent a miscarriage of justice.

United States v. Solomon, 856 F.2d 1572, 1575 (11th Cir.1988) (quoting United States v. Fernandez, 496 F.2d 1294, 1297 (5th Cir.1974)); see Fed.R.Crim.P. 52(b). ¹

The district court in its voir dire properly instructed the jury regarding the law of proof and burden involved in criminal cases. The district court first asked the panel as a whole whether they would agree to hold the government to its burden of proof beyond a reasonable doubt, and all jurors agreed. The venire also agreed to give the appellant the presumption of innocence. The court then asked:

Is there anybody here who can't give the defendant the presumption of innocence and give it to him throughout the trial until such time as the government proves guilt beyond a reasonable doubt, if the government can do that? Anybody feel they can't do that?

No venire person responded that he or she would not "do that." The court then followed with an explanation of why "[o]ur law does not require anybody to defend themselves." When the court asked if anyone would consider whether the defendant testified or not as a factor in deciding guilt or innocence, no juror indicated a difficulty. When, however, the court asked whether any juror would be swayed if the defendant neither testified himself nor called any witnesses, two jurors equivocated. Dorothy White stated she "didn't think" she could ignore the fact that no defense was presented. Mary Floyd initially stated that her position would "depend on the evidence" offered by the prosecution, and then stated that she would have "a little" problem if the defendant did not testify or offer witnesses. Josephina Garcia next indicated that she might be troubled. The court did not immediately attempt to rehabilitate Garcia's answer. Later, Alejandro Gonzalez responded that he would "tend to believe" the testimony of a police officer if faced with conflicting accounts offered by a police officer and a lay witness.

At the close of the court's voir dire, the court again addressed the panel as a whole:

If you were selected to sit on this jury, after hearing the evidence I will instruct you on the law that you must follow and apply in deciding the case, and I will instruct you that you must follow that law whether you agree with it or not.

I wonder if that's going to be a problem for anybody, if they think this is a bad law or don't agree with that law? The laws are the laws of Congress that have been enacted by Congress. Would you be able to apply that if you just kind of philosophically disagreed with the law? Anybody feel that would be a problem for them?

The court therefore revisited the issue of whether the prospective jurors could follow "the law" that had been carefully and thoroughly explained to the panel earlier. No member of the venire indicated that he or she would have any difficulty. We find that this final colloquy with the potential jurors established an indication of impartiality such that the error in not sua sponte removing the jurors, if any error existed at all, was not so conspicuous that the "judge and prosecutor were derelict in countenancing it." Bonavia, 927 F.2d at 570; cf. Bundy v. Dugger, 850 F.2d 1402, 1428 (11th Cir.1988) (court may find "firm indication of impartiality" despite earlier equivocations by jurors about how they might evaluate evidence).

In addition, defense counsel appears to have been following the voir dire closely and using his strikes selectively. Although defense counsel did not strike any jurors for cause, counsel proceeded to use eight peremptory strikes. At one point, defense counsel objected that the government had been striking primarily black jurors. At the conclusion of the voir dire, defense counsel had two remaining peremptory strikes but declined to use them. This decision not to use his remaining peremptory strikes may well have been a strategic decision to retain the four jurors in question. See Tafero v. Wainwright, 796 F.2d 1314, 1321 (11th Cir.1986) (counsel may make strategic decision to waive change of venue due to possible jury prejudice). ²

Given the final colloquy and the strong possibility of a strategic decision by defense counsel, any error by the lower court is clearly not "obvious." See Sorondo, 845 F.2d at 948-49. Simmons is therefore not entitled to relief on this claim. ³

B. Predicate felonies derived from constitutionally valid plea

Simmons challenges the enhancement of his sentence under 18 U.S.C.A. § 924(e) (West Supp.1992). Section 924(e) provides that felons convicted of possessing firearms in violation of 18 U.S.C.A. § 922(g), who also have three prior convictions for "violent felonies" or "serious drug offenses," are subject to incarceration for fifteen years to life. On January 24, 1980, Simmons pled guilty in state court to a series of violent crimes committed during a two week period in 1974. Having spent the intervening years from 1974 to 1980 in a mental institution, Simmons was declared competent to stand trial six months prior to pleading guilty. Simmons contends that the predicate offenses the government relied upon in seeking the enhancement were not constitutionally valid because he had not been sufficiently apprised of the consequences of his guilty plea in 1980. Specifically, Simmons argues that his long history of mental illness and the possibility of lingering effects required the state trial court to take the extraordinary steps of securing his express waiver of all three "Boykin rights": his right to a jury trial, his right to confront adverse witnesses, and his privilege against self-incrimination. See Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969). This argument is without merit.

The Boykin Court held that a silent record does not reflect that the defendant made a knowing and intelligent waiver of his right to trial, his right against compulsory self-incrimination and his right to confront his accusers. See id. This Circuit, however, has...