U.S. v. Triplett

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: McMILLIAN
• Citation: U.S. v. Triplett, 195 F.3d 990 (8th Cir. 1999)
• Decision Date: 17 September 1999
• Docket Number: No. 99-1579,99-1579
• Parties: (8th Cir. 1999) United States of America, Appellee, v. Leonard D. Triplett, Appellant. Submitted:

Page 990

195 F.3d 990 (8th Cir. 1999)

United States of America, Appellee, v. Leonard D. Triplett, Appellant.

No. 99-1579

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: September 17, 1999

Filed: October 28, 1999

Rehearing and Rehearing En Banc

Denied Dec. 29, 199

Appeal from the United States District Court for the Eastern District of Missouri

[Copyrighted Material Omitted] Before McMILLIAN and MURPHY, Circuit Judges, and TUNHEIM, District Judge.¹

McMILLIAN, Circuit Judge.

Leonard D. Triplett appeals from a final judgment entered in the United States District Court ² for the Eastern District of Missouri upon a jury verdict finding him guilty on two counts of possession with intent to distribute heroin, in violation of 21 U.S.C. 841(a)(1). See United States v. Triplett, No. 4:98CR131RWS (E.D. Mo. Mar. 2, 1999) (judgment). For reversal, Triplett argues that the district court (1) erred in denying his motion for a mistrial asserted on the grounds that the prosecutor's closing argument improperly commented upon his failure to testify at trial and misled the jury about his burden of proof and (2) abused its discretion in excluding expert testimony proffered by the defense and in denying his request to have the jury view the sites where the offenses allegedly occurred. For the reasons stated below, we affirm.

Jurisdiction

Jurisdiction was proper in the district court based upon 18 U.S.C. 3231. Jurisdiction is proper in this court based upon 28 U.S.C. 1291. The notice of appeal was timely filed pursuant to Fed. R. App. P. 4(b).

Background

Factual background

The government's evidence at trial is summarized as follows. On January 30, 1998, at approximately 8:30 p.m., police officer Daryl Walker and his partner, David Golliday, were on patrol duty in the City of St. Louis, Missouri, when a citizen flagged them down and informed them of drug trafficking activity in the 1700 block of Bacon. Walker and Golliday proceeded to the 1700 block of Coleman, one block east of Bacon, and parked their patrol car. Walker put on coveralls to conceal his uniform and walked to an unlit gangway where he could observe the area in question. During a period of about twenty minutes, Walker saw approximately ten people approach an individual standing in front of 1723 Bacon. The individual appeared to be taking cash from each person in exchange for a small item retrieved from a plastic bag in his hand. The individual matched the description provided by the citizen informant. Walker returned to the patrol car, and he and Golliday proceeded to the 1700 block of Bacon. in the patrol car. As they drove to the place where the individual had been observed, they at first kept their headlights off, then turned their headlights on as they approached the location. They saw the individual in question drop something in the grass and proceed up the steps of the residence at 1721 Bacon. Walker found a plastic sandwich bag in the grass. It contained several clear capsules, each with a brown substance inside. The individual was placed under arrest, informed of his rights, and handcuffed. He was searched incident to the arrest and a plastic grocery bag containing $906.00 in bills of $20 or less was found on his person. He was later identified as Leonard Triplett.

On February 5, 1998, at approximately 12:15 a.m., police officers Stephen Bendel and his partner, Richard Ahern, were on patrol duty in the City of St. Louis when they observed a car with the headlights off driving down an alley near Marcus and Page. As they drove toward the car, the officers shone their headlights and spotlight on the vehicle, made a U-turn behind the car, and stopped the car. When asked for a driver's license, the driver of the vehicle told the officers that he did not have one. He was ordered to exit the car. Upon exiting the car, he pushed Officer Ahern to the ground, reached into his right front pants pocket, and pulled out an item which he threw onto the driver's seat. Officer Bendel subdued the individual and handcuffed him, then retrieved a small plastic bottle from the car. It contained several clear capsules, each with a brown substance inside. The driver was placed under arrest, informed of his rights, and handcuffed. He was searched incident to the arrest and $328.00 in bills of $20 or less were found on his person. The individual was identified as Leonard Triplett. Procedural history

Triplett was indicted in the Eastern District of Missouri on March 26, 1998, on two counts of possession with the intent to distribute heroin, in violation of 21 U.S.C. 841(a)(1). He filed a motion in limine requesting (1) that he be allowed to present at trial the testimony of Randy Burkett, an architectural engineer who would render an opinion on night-time lighting conditions at the sites of Triplett's two arrests, and (2) that the jury be taken at night to view the scenes of his arrests.

The case was tried before a jury beginning on December 9, 1998. Officers Walker and Golliday testified regarding the events of January 30, 1998, and Officers Bendel and Ahern testified about the events of February 5, 1998. On cross-examination, defense counsel questioned Walker and Golliday about apparent inconsistencies in their pre-trial statements and their trial testimony, and cross-examined Bendel and Ahern about their ability to see Triplett's car under the conditions to which they testified, among other matters.

During Walker's testimony, in response to a question by the prosecutor on redirect examination, Walker began saying: "We even conducted an interview of Mr. Triplett - or attempted to conduct an interview of Mr. Triplett, which - ." At that point, defense counsel objected and moved for a mistrial on the ground that the government's witness had improperly commented on Triplett's post-arrest silence in violation of Triplett's Fifth Amendment privilege against self-incrimination. The district court took an immediate recess and held a brief hearing on the motion. The district court denied the motion, explaining:

[G]iven the whole context of the testimony so far, I will deny the mistrial, because I do believe that the Eighth Circuit set forth in Sidebottom v. Delo, 46 F.3d 744, [759 (8th Cir.), cert. denied, 516 U.S. 849 (1995),] that the question is whether there is an intention to call attention to the defendant's failure to testify, and whether the jury would have naturally understood . . . [the witness's testimony] as a comment on defendant's failure to testify.

I don't think that [the witness's testimony] reached that threshold.

Trial Transcript, Vol. 2, at 84

The district court then instructed the prosecutor: "meet with your witnesses in this case, because any further comment of that sort, and then we will get perilously close to the line where a mistrial may be required, if that sort of testimony is elicited in the future, intentionally, or unintentionally." Id.

On the third day of trial, out of the presence of the jury, the district court held a Daubert ³ hearing at which Burkett, the expert witness for the defense, proffered his testimony and counsel presented arguments regarding its admissibility. See Trial Transcript, Vol. 3, at 2-61. Later that day, after the government had rested, the district court ruled that Burkett's testimony would be excluded under Daubert and further denied Triplett's request for a night time viewing by the jury of the arrest sites. See id. at 248-51.

The witnesses for the defense included two residents of the 1700 block of Bacon who had seen Triplett being arrested on the night of January 30, 1998. One stated that she was on Bacon immediately before Triplett's arrest and saw Triplett drive up to the 1700 block of Bacon, exit his vehicle, and knock on the door of the residence at 1721 Bacon. At that point, she testified, the police pulled up, approached Triplett, frisked him, and handcuffed him. See id. at 252-58. The other witness testified that he had been standing on the front porch of his residence at 1717 Bacon, next door to 1721 Bacon, when he saw Triplett walk up to the residence at 1721 Bacon and knock on the door. About that time, he testified, the police pulled up, approached Triplett, frisked him, and handcuffed him. The same witness testified that, although he did not see Triplett exit a car, he (the witness) had been standing on his front porch for approximately thirty minutes before observing Triplett approaching the residence at 1721 Bacon and had not seen Triplett in the vicinity beforehand. See id. at 287-96. Triplett elected not to testify. See id., Vol. 4, at 3.

In the rebuttal portion of closing arguments, the prosecutor argued to the jury: "What you didn't hear was evidence that the defendant didn't possess the drugs. You never heard that. You never heard evidence that the defendant didn't know that he possessed the drugs." Id. at 125-26. Defense counsel immediately objected, stating: "That is an improper argument, suggesting we had an obligation." Id. at 126. The district court then admonished the prosecutor: "No commenting on the defendant. Please proceed." Id.

After the jury instructions were given, defense counsel moved for a mistrial based upon the prosecutor's rebuttal argument. See id. at 144-45. Defense counsel argued to the district court that the comments were not responsive to any argument he had made in his closing argument. See id. at 145 ("I made sure I didn't make any statements about what they heard or anything of that nature."). The district court denied the motion, stating "she [the prosecutor] didn't even obliquely reference your client's failure to testify." Id. The district court then opined that, in any event, the jury instructions "cured" any problem that might have resulted from the prosecutor's closing argument. Id.

The jury found Triplett guilty on both counts. Triplett was sentenced to 210 months imprisonment ⁴ and three years of supervised release, and he was...