U.S. v. Thompson

• Decision Date: 21 March 2007
• Docket Number: No. 06-40961.,06-40961.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven Ladale THOMPSON, also known as Rock, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

482 F.3d 781

UNITED STATES of America, Plaintiff-Appellee, v. Steven Ladale THOMPSON, also known as Rock, Defendant-Appellant.

No. 06-40961.

United States Court of Appeals, Fifth Circuit.

March 21, 2007.

Reynaldo Padillo Morin (argued), Lufkin, TX, for U.S.

Eric Miller Albritton (argued), Albritton Law Firm, Longview, TX, for Thompson.

Appeal from the United States District Court for the Eastern District of Texas.

Before KING, WIENER, and OWEN, Circuit Judges.

WIENER, Circuit Judge:

Defendant-Appellant Steven Ladale Thompson was convicted by a jury of knowingly possessing with the intent to distribute more than five grams of cocaine base. Thompson contends on appeal that (1) statements made by the prosecutor during closing argument were so prejudicial that they denied him a fair trial, and (2) the district court's allowing the jury to view a videotape of a drug transaction in which Thompson allegedly participated was error because it was played to the jury without the accompanying audio portion albeit with a written transcript of the underlying audio recording scrolling along on the screen simultaneously with the video portion. We affirm.

I. FACTS & PROCEEDINGS

In January 2003, Sergeant Keith Deramus, a narcotics investigator for the Texas Department of Public Safety, met with a confidential informant (the "CI") who had offered to help the local police with narcotics investigations in exchange for leniency on several charges he faced. The CI informed Deramus that an individual nicknamed Rock was selling crack cocaine in Daingerfield, Texas. Later, through local law enforcement officials, Deramus learned of Thompson and his use of the nickname Rock. Deramus obtained a photograph of Thompson and showed it to the CI, who identified the photo's subject as the person selling crack in Daingerfield under the street name of Rock. Deramus then arranged for the CI to purchase crack cocaine from that person.

In October 2003, the CI consummated three drug transactions with this person whom he knew as Rock. Deramus recorded the telephone conversations in which these two men arranged the transactions and, by using a voice transmitter secretly worn by the CI, recorded the transactions themselves. The CI later wore a hidden camera during the third transaction with Rock, which allowed Deramus to capture the images on videotape as well as the participants' voices.

Primarily based on the testimony of Deramus and the CI, as well as this recorded evidence, a federal grand jury returned a three-count indictment charging Thompson with possessing with intent to distribute more than five grams of cocaine base. This led to Thompson's jury trial.

The only contested issue at trial was whether Thompson was the individual named Rock from whom the CI had purchased drugs in October 2003. The CI made a courtroom identification of Thompson as Rock and, after viewing the videotape of the third transaction along with the jury, made an in-court identification of Thompson as the person who sold him drugs on that and previous occasions. Superimposed on this video was a scrolling transcript, but the voice recording from which the transcript had been made was not audible.¹

Deramus testified at trial that a person known to the CI only as Rock was one of the individuals whom the CI mentioned as a "target" during the CI's initial debriefing. Deramus also testified that he had not heard of Rock before the debriefing of the CI, but "through research with the local authorities there in [the] Dangerfield Police Department, they informed me [that] they knew who this individual was." Deramus stated at trial that the local police gave him a photograph of a man whom they identified as Steven Thompson, the defendant, and whom they knew to go by the nickname Rock. Deramus then showed this photograph to the CI, who confirmed that the man in the photograph was the individual whom the CI had known only as Rock. The same photograph was entered into evidence at trial, and Deramus pointed out the defendant in open court as the person in the photograph.

Deramus also testified that after interviewing Thompson in March 2005, he (Deramus) again listened to the audio tapes of the transactions between the CI and Rock and recognized both recorded voices, one as that of the CI and the other as that of Thompson. Thus, in addition to the identification of Thompson by the CI, the jury heard Officer Deramus identify the defendant as the person in the photograph that the Dangerfield police had given to Deramus and had identified as the defendant, Thompson, aka Rock. The jury also heard Deramus identify that photograph as the one that he (Deramus) had shown to the CI, who had then confirmed to Deramus that the person in the photograph was the man known to the CI as Rock and named by the CI as a target in his initial debriefing by Deramus.

In addition, Joe Farino, the police chief of Daingerfield, Texas, testified that (1) he had served as the Daingerfield police chief for twelve years, (2) he knew almost everyone in town, but admittedly not every last member of the community,² (3) he knew Thompson, (4) he knew that Thompson's nickname was Rock, and (5) he did not know of anyone else in the community with the nickname Rock. The defense presented no witnesses.

In the government's closing argument, the prosecutor repeatedly punctuated his remarks to the jury with assertions that Thompson was the only person in Daingerfield, Texas nicknamed Rock. Thompson points to four such instances. First, the prosecutor began his closing argument by telling the jury that "there is only one Steven Thompson and only one individual known as Rock in Daingerfield, Texas, and that is the defendant." Later, the prosecutor showed the jury the photo of Thompson that Deramus had identified when it was entered into evidence and stated: "[T]his is Rock. And this is the only Steven Thompson in Daingerfield, Texas, and this is the only individual known as Rock in Daingerfield, Texas." Next, In summarizing the testimony of Chief Farino, the prosecutor told the jury that Farino "testified that there is only one Steven Thompson, who is also known as Rock in Daingerfield, Texas." Finally, after defense counsel's closing argument, in which he urged the jury to consider that Rock may have been someone other than Thompson, possibly someone from outside of Daingerfield, the prosecutor concluded his rebuttal by telling the jury that "there is only one Steven Thompson and only one individual named Rock in Daingerfield, Texas and that is the defendant right here."

After deliberating for three hours, the jury informed the court that it could not reach a unanimous decision. Over Thompson's objection, the court gave the jury a Modified Allen Charge from the Fifth Circuit Pattern Jury Instructions, and deliberations resumed. Thirty minutes later, the jury returned a verdict of guilty on all counts of the indictment.

II. ANALYSIS

A. The Prosecutor's Statements

1. Standard of Review

As Thompson failed to object timely to the prosecutor's comments, we review them for plain error.³

2. Applicable Law

Even when a defendant timely objects to remarks made by a prosecutor in closing argument, the defense burden of establishing that such remarks denied the defendant a fair trial is substantial.⁴ We accord "wide latitude to counsel during closing argument."⁵ In so doing, we analyze closing argument in the context of the trial as a whole, recognizing that "[i]nappropriate prosecutorial comments, standing alone" will not justify reversal of a conviction obtained in an otherwise fair proceeding.⁶ The determinative question in our inquiry is "whether the prosecutor's remarks cast serious doubt on the correctness of the jury's verdict."⁷ In answering this question, we consider "(1) the magnitude of the prejudicial effect of the prosecutor's remarks, (2) the efficacy of any cautionary instruction by the judge, and (3) the strength of the evidence supporting the conviction."⁸

3. Merits

a. Prejudicial Effect

Thompson contends that the magnitude of the unfair prejudice in this case was great, largely because the prosecutor's statements negated defense counsel's argument as to the one and only contested issue at trial—whether the evidence proves beyond a reasonable doubt that Thompson was the person nicknamed Rock who sold drugs to the CI in October 2003. Thompson insists that the prosecutor's remarks (1) amounted to improper personal testimony, (2) were unsupported by the evidence, and (3) misstated witness testimony. Thompson emphasizes that the prosecutor repeated his improper remarks at the close of his rebuttal argument, knowing that defense counsel would have no further opportunity to address the jury.

The government counters that the prosecutor was simply asking the jury to draw reasonable inferences from the evidence presented to it. The government contends that the prosecutor's remarks had, at most, an insignificant prejudicial impact.

We are satisfied that the prosecutor's remarks were not actionably improper, much less so erroneous as to constitute plain error. We have long recognized that the proper function of the attorneys in closing argument is "to assist the jury in analyzing, evaluating and applying the evidence" and not "to `testify' as an `expert witness.'"⁹ Nevertheless "the assistance permitted includes counsel's right to state his contention as to the conclusions that the jury should draw from the evidence."¹⁰ It is permissible, therefore, for an attorney "to make statements that indicate his opinion or knowledge of the case . . . if the attorney makes it clear that the conclusions he is urging are conclusions to be drawn from the evidence."¹¹ "Except to the extent he bases any opinion on the evidence in the case, he may not express his personal opinion on the merits of the case or the credibility of witnesses."¹²

Here, there is no question but that the prosecutor voiced his opinion about the...